FRED MEYER STORES, INC. AND ALLIED EMPLOYERS

National Labor Relations Board - Unpublished Board Decisions

Sep 24, 2012

19-CA-032908 (N.L.R.B. Sep. 24, 2012)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FRED MEYER STORES, INC. AND
ALLIED EMPLOYERS
and Cases 19-CA-032908
19-CA-033052
UNITED FOOD AND COMMERCIAL WORKERS
LOCAL 367, AFFILIATED WITH UNITED FOOD
AND COMMERCIAL WORKERS
INTERNATIONAL UNION
ORDER1
The Charging Party Union’s request for special permission to appeal the rulings
of Administrative Law Judge Gregory Meyerson denying in part its petition to revoke
Respondent’s subpoena duces tecum B-648027 is granted. On the merits, the Union’s
appeal is granted in part and denied in part.
The Union’s appeal is granted with respect to the judge’s ruling on paragraph 40
of the subpoena. In denying the petition to revoke with regard to paragraph 40, the
judge ruled that the Union was required to produce two position statements submitted
by its attorney to the Region during the Region’s investigation of the charges filed by the
Union. We find that, in so ruling, the judge clearly erred. It is well established that the
position statements of charging parties are privileged from disclosure under the work
product doctrine, and a charging party does not waive that privilege by submitting
position statement to the General Counsel during an investigation. See Kaiser
Aluminum & Chemical Corp., 339 NLRB 829, 829 (2003). In such circumstances, a
charging party’s position statements can only be disclosed if the party requesting the

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
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statements can demonstrate a “substantial need” for the statement. See id. Here, the
Union submitted its position statements to the General Counsel during an investigation,
and the Respondents have not shown a substantial need for the statements. The
judge’s ruling is therefore reversed.
The Union’s appeal is denied with respect to the judge’s ruling on paragraph 1 of
the subpoena, which requests copies of the Union’s constitution and bylaws. In this
regard, the Union has failed to demonstrate that the judge clearly erred in denying its
motion to quash this paragraph of the subpoena. Contrary to the Union’s contentions,
the judge found that the Respondent had made an adequate showing that the
constitution and bylaws were potentially relevant to its defenses. In addition, the Union
has failed to establish that the judge erred in finding that there is nothing confidential in
the documents and that the Union would not be prejudiced by the disclosure of these
documents. Accordingly, the Union is directed to comply with this paragraph of the
subpoena.
Dated, Washington, D.C., September 24, 2012.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER