National Labor Relations Board v. Interbake Foods, LLC
2011 U.S. App. LEXIS 3441
| 4th Cir. | 2011Background
- NLRB subpoenaed Interbake to testify and produce documents; Interbake produced some and asserted attorney-client and work-product privileges on others.
- ALJ ordered in camera review of three privileged documents after the General Counsel challenged them; Interbake refused to produce.
- Board sought enforcement in district court under NLRA § 11(2); district court denied enforcement, saying only Article III courts may determine privilege.
- Board argues Congress authorized ALJs to evaluate privilege objections in hearings, with judicial review after Board denial.
- Court holds division of authority: ALJs may assess privilege, but enforcement of subpoenas through review must be by Article III courts; district court must decide enforceability, including privilege, in enforcing the subpoena.
- Court affirms district court on its decision not to delegate privilege determination to ALJ and remands for further in camera review of an e-mail string.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to decide privilege in enforcement | Board: ALJ may decide privilege during hearings; enforcement later by court. | Interbake: only Article III court may enforce subpoenas and decide privilege upon enforcement. | Yes; only Article III court may enforce subpoenas and resolve privilege on enforcement. |
| Division of power between Board/ALJ and district court | Board and ALJ can evaluate privilege; district court should defer to that process in enforcement. | District court must decide enforceability and privilege in the enforcement proceeding. | Affirmed; district court must decide enforceability and privilege; ALJ cannot enforce by itself. |
| Remand scope for e-mail string privilege | Prima facie privilege shown; in camera review appropriate for entire set of documents. | Need document-by-document analysis; e-mail string requires separate assessment. | Remanded to assess the February 9, 2009 e-mails and any replies document-by-document. |
Key Cases Cited
- NLRB v. Duval Jewelry Co., 357 U.S. 1 (1958) (Board authority to rule on privilege in hearings)
- Brimson, 154 U.S. 447 (1894) (agency subpoenas enforced by courts; preserve judicial power)
- Penfield Co. v. SEC, 330 U.S. 585 (1947) (courts not automata enforcing agency subpoenas)
- United States v. Morton Salt Co., 338 U.S. 632 (1950) (agency enforcement requires court involvement; enforceability standards)
- NLRB v. Interstate Builders, Inc., 351 F.3d 1020 (10th Cir.2003) (subpoena revocation standards; relation to privilege)