Kaiser Aluminum & Chemical Corp.

National Labor Relations Board - Board Decisions

Jul 25, 2003

339 N.L.R.B. 829 (N.L.R.B. 2003)

KAISER ALUMINUM & CHEMICAL CORP. 829
Kaiser Aluminum & Chemical Corporation and
United Steelworkers of America, AFL–CIO.
Case 32–CA–17041
July 25, 2003
NOTICE OF PUBLICATION
On September 7, 2001, the Board issued an unpub-
lished Order in the above-entitled proceeding. Pursuant
to the request of the Charging Party, the Board has de-
cided to publish the previously issued Order in the bound
volumes of its decisions. The Order is attached.
ORDER
September 7, 2001
BY CHAIRMAN PETER J. HURTGEN AND MEMBERS
LIEBMAN AND WALSH
We grant the Charging Party’s Request for Special
Permission to Appeal the administrative law judge’s June
29, 2001 ruling denying the Charging Party’s petition to
revoke the subpoena duces tecum served on it by the
Respondent. The Respondent’s subpoena demands pro-
duction of the position statements submitted by the
Charging Party to the Region and to the General Coun-
sel’s Office of Appeals.
On appeal, we reverse the judge’s ruling. Contrary to
the judge, we find that the work product doctrine as re-
flected in Rule 26(b)(3) of the Federal Rules of Civil
Procedure applies to unfair labor practice proceedings,
and specifically to a position statement submitted by
counsel for a charging party to the General Counsel in
support of its charge during the General Counsel’s
investigation. We further find that a charging party
does not waive the work product privilege by sub-
mitting such a position statement to the General
Counsel.
Here, it appears undisputed that the Charging Party’s
position statements constitute “work product” within the
meaning of FRCP 26(b)(3). Further, we find that the
Charging Party did not waive the privilege by submitting
the position statements to the General Counsel during the
investigation. Finally, we find that the Respondent has
not demonstrated a substantial need for the position state-
statements. 1 Accordingly, we shall quash the subpoena
to the extent it seeks the Charging Party’s position state-
ments.2
The subpoena also seeks any and all attachments to the
position statements. To the extent the Charging Party
may claim that any of these attachments constitute work
product, we authorize the judge to review those docu-
ments in camera to determine whether they are also
exempt from disclosure based on the work product
privilege.

MEMBER WALSH, concurring.
I join my colleagues in reversing the judge’s ruling. I
find that the confidentiality interests and policy consid-
erations set forth in NLRB v. Robbins Tire Co., 437
U.S. 214 (1978), and H. B. Zachry Co., 310 NLRB
1037 (1993), apply to the Charging Party’s position
statements provided to the Agency, as well as to witness
statements that similarly cannot be obtained by subpoena
from the Agency. My rationale applies with equal force
to any documents that are attached to, and thus necessar-
ily a part of, the position statements. Accordingly, I con-
clude that the Respondent cannot compel disclosure by
the Union of the position statements that are the subject
of the subpoena in question here.3

1 FRCP 26(b)(3) provides that documents prepared in anticipation of
litigation or trial shall be discoverable only upon a showing that the
party seeking them has a “substantial need” for them and cannot obtain
them elsewhere without undue hardship. The Rule further provides that,
when the required showing is made, the court in ordering discovery
shall “protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a
party concerning litigation.”
2 In light of this finding, we find it unnecessary to address the
Charging Party’s argument that the position statements are also exempt
from disclosure under the principles set forth in NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214 (1978), and H. B. Zachry, 310
NLRB 1037 (1993).

339 NLRB No. 100