H. B. Zachry Co.

National Labor Relations Board - Board Decisions

Apr 7, 1993

310 N.L.R.B. 1037 (N.L.R.B. 1993)

1037
310 NLRB No. 164
H. B. ZACHRY CO.
1 In addition to waiver, the judge concluded that the Respondent
is entitled to the affidavits, ‘‘so that they might be used by Respond-
ent in preparing its defense.’’
2 Only three of the alleged discriminatees testified at the hearing
in support of the General Counsel’s case-in-chief, and the affidavits
of those individuals were turned over to the Respondent’s counsel
for purposes of cross-examination. The remaining affidavits subject
to the subpoenas were from job applicants who had not been hired
and who did not testify at the hearing.
3 By an unpublished Board Order dated March 26, 1993, the par-
ties were advised that the Charging Party’s and the General Coun-
sel’s requests for special permission to appeal had been granted and
that a fully articulated decision would follow.
H. B. Zachry Company and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO.
Cases 12–CA–14962(1–2) and 12–CA–15018
April 7, 1993
DECISION AND ORDER
BY CHAIRMAN STEVENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 27, 1992, the Regional Director for
Region 12 issued an order consolidating cases, consoli-
dated complaint and notice of hearing in the above
proceeding alleging, inter alia, that the Respondent
violated Section 8(a)(3) of the Act by refusing to hire
18 individuals based on their affiliation with the
Union, by discharging 2 other employees and by refus-
ing to rehire an employee based on their union activi-
ties.
Prior to the hearing, the Respondent served on the
Union identical subpoenas duces tecum seeking a vari-
ety of documents. Paragraph 7 of each subpoena cov-
ers, inter alia, affidavits reflecting communications be-
tween any agent of the Union and any of the 21 al-
leged discriminatees. Paragraph 7, by its terms, would
include such affidavits, even if they were taken by the
General Counsel in his investigation of the case. Re-
spondent appears to concede that such affidavits, if
solely within the possession of the General Counsel,
would not be subject to production until after an affi-
ant testifies as a witness for the General Counsel or the
Charging Party. However, because copies of these affi-
davits were given to the Union by the affiants, Re-
spondent contends that it is entitled to these docu-
ments, even if the affiants do not testify.
The General Counsel and the Charging Party seek to
revoke paragraph 7 insofar as it covers affidavits taken
by the General Counsel, even if copies thereof were
given by the affiant to the Union.
On March 8, 1993, the hearing opened before Ad-
ministrative Law Judge Philip McLeod. Judge McLeod
recognized that requiring the Union to turn over the af-
fidavits taken during the investigation violated the
Jencks rule ‘‘in spirit if not in its letter’’ and that re-
quiring production at the start of the hearing would
violate Jencks, ‘‘but as a matter of law I think the
affiants had waived their right to the more complete
privacy that they might be accorded had they not
turned over voluntarily copies of their own affidavits
to the union.’’1 Judge McLeod concluded that the
Union must turn over the affidavits at the close of the
General Counsel’s case-in-chief including ‘‘affidavits
in the union’s possession of witnesses who have nei-
ther been called by the General Counsel in its case,
nor intend to be called by the Charging Party in its
case.’’2
On March 17 and 18, 1993, respectively, the Charg-
ing Party and the General Counsel each filed a request
for special permission to appeal from the judge’s rul-
ing.3 The Charging Party and the General Counsel
contend that, under Jencks, statements taken during an
investigation must be produced, but only after the affi-
ant has appeared and testified at a hearing; that the
rule provides a respondent’s counsel with an oppor-
tunity to review pretrial statements for purposes of
cross-examination; and that the present rule provides
the Respondent with an opportunity to defend itself
while protecting a potential witness’ limited right to
confidentiality in regard to statements given during the
investigatory stage of a charge. Further, the Charging
Party and the General Counsel argue that the Respond-
ent seeks to obtain through the Union what is clearly
not available to it under the Board’s Rules and policy,
that the argument that the Board’s Rule applies only
to affidavits in possession of the General Counsel ele-
vates form over substance, and that to give the Re-
spondent access to Board affidavits in possession of
any party ‘‘subverts the spirit and policy underlying
the rule.’’ Accordingly, the Charging Party and the
General Counsel move the Board to grant their ap-
peals, reverse the judge, and direct the judge to quash
the Respondent’s subpoenas to the extent they require
the Union to turn over the affidavits of individuals
who have not testified and will not be called as wit-
nesses.
On March 24, 1993, the Respondent filed opposition
to the Charging Party’s and the General Counsel’s ap-
peals. Citing Martin v. Ronnigen Research & Develop-
ment Co., 1 Wage & Hour Cas. 2d (BNA) 176, 1992,
Westlaw 409936 (W.D. Mich. 1992), the Respondent
contends that in that case the court found that
‘‘[w]here an employee’s statements have already been
released by the Secretary [of Labor] or where an em-
ployee has already been deposed without objection
about his or her statements and witnesses with the
compliance officer, the [Jencks] privilege, of course,
has been waived as to that employee.’’ Accordingly,
the Respondent urges the Board to affirm the adminis-
trative law judge’s ruling that the individuals have
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 NLRB v. Robbins Tire Co., 437 U.S. 214 (1978).
5 The Respondent also argues that an employee, by giving a copy
of the affidavit to the Charging Party Union, waives his/her rights
to confidentiality. We disagree. The mere fact that an employee
gives a copy of an affidavit to the Charging Party does not establish,
clearly and unmistakably, that the employee has consented to release
the affidavit to the opposing side.
Martin v. Ronnigen Research & Development Co., supra, relied on
by the Respondent is distinguishable in that the witness’ affidavits
were released by the Secretary of Labor (the counterpart to the Gen-
eral Counsel in the instant case). That is not the situation here. In-
deed, the Respondent concedes that the affidavits are not available
to it from the General Counsel.
waived any right of confidentiality which might other-
wise attach to their statements.
Having duly considered the matter, the Board has
decided to grant the requests for special permission to
appeal and to reverse the judge. Section 102.118(b)(1)
of the Rules requires that an affidavit be supplied only
after a witness has testified. Concededly, Section
102.118(b)(1) speaks of affidavits ‘‘in the possession
of the General Counsel.’’ The affidavits here are in the
possession of the General Counsel and the Union, and
the subpoenas are directed to the Union. However,
Section 102.118(b)(1) is not limited to situations where
the affidavits are exclusively in the possession of the
General Counsel. In addition, as a practical matter, the
Union, as the Charging Party, has a legitimate interest
in asking employees for copies of affidavits given by
them to the General Counsel during investigation of
the case. Under Respondent’s contention, if the em-
ployee complies with the request, the protections of
confidentiality would be lost. Based on the policy con-
siderations set forth in Robbins Tire,4 the Board will
not require the production of the affidavit simply be-
cause the affiant gave a copy of it to the Charging
Party Union.5
ORDER
It is ordered that the Charging Party’s and the Gen-
eral Counsel’s requests for special permission to ap-
peal the judge’s ruling are granted and the administra-
tive law judge is reversed.
IT IS FURTHER ORDERED that the above proceeding
is remanded to Administrative Law Judge Philip
McLeod, with instructions to quash paragraph 7 of the
subpoenas to the extent that they seek the production
of statements from individuals who were not called to
testify.