04/12/2024: Whole Foods Made Illegal Discovery Requests in Title VII Suit

Sometimes you should hire a lawyer.

1. BGM Co. Inc. and its affiliate Boyd Gaming Corporation, 20-CA-331200 (Unpublished Board Decision). The Region issued a subpoena for documents from the Employer. The Employer filed a petition to revoke this subpoena, which it is permitted to do under Section 11(1). The Board determined that there is no legal basis for granting this petition to revoke the subpoena. None of the underlying documents in this case are available, so it’s unclear what documents are being requested or why the Employer thought it was inappropriate for the Region to request them.

2. Fedex Office and Print Services, Inc., 16-RC-328798 (Unpublished Board Decision). The union challenged Regional Director’s decision to include 3 transferred employees in the union election, arguing that they had been transferred by the employer into the unit in order to tip the election. The Board rejected this challenge, noting that “the [union] does not contest the Regional Director’s finding that the 3 disputed individuals were employed at the unit location on the eligibility and election dates.” The union’s challenge does not appear to have been written by a lawyer, which is fine: you don’t need to be a lawyer to represent someone at the NLRB. But not having a lawyer, or at least someone who knows the NLRB process well, can certainly cause you to lose. It’s unclear whether that’s true in this case, but the Board decision here does include the gratuitous statement that “we have not considered certain facts alleged by the [union] in its Request for Review that were not timely raised to the Regional Director,” which suggests that they may have spotted some arguments the union could have relied upon but that were barred from consideration because the union failed to raise them appropriately.

3. Whole Foods Market, Inc., JD-23-24, 01-CA-288032 (ALJ Decision). The ALJ applied Guess? to determine that certain discovery requests made by Whole Foods in a Title VII lawsuit against it violated Section 8(a)(1). When an employer requests discovery of information related to NLRA protected activity, under Guess?, that request must be 1) relevant, 2) not have an illegal objective, and 3) the employer's interest in the information must outweigh employees' confidentiality interests under Section 7 of the NLRA. Whole Foods made at least three discovery requests that did not pass this test: (1) asking a former employee for information about employees' protected concerted activity in a Facebook group chat. The ALJ found the employees' Section 7 confidentiality rights outweighed Whole Foods' need for the information; (2) requesting an affidavit an employee provided to the NLRB during an unfair labor practice investigation. The ALJ found this had an illegal objective under prong 2 of the Guess? test; (3) objecting to redactions and confidentiality designations that protected identities of employees engaged in protected activity. The ALJ found the employees' Section 7 confidentiality rights outweighed Whole Foods' need for the information.