KINGSPAN INSULATED PANELS, d/b/a KINGSPAN BENCHMARK

National Labor Relations Board - Unpublished Board Decisions

Apr 27, 2012

09-CA-072906 (N.L.R.B. Apr. 27, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KINGSPAN INSULATED PANELS
D/B/A KINGSPAN BENCHMARK
and Cases 09-CA-072906
09-RC-069754
SHEETMETAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION NO. 24
ORDER1
Counsel for the Acting General Counsel’s Request for Special Permission to
Appeal Administrative Law Judge Arthur J. Amchan’s April 23, 2012 Order denying the
petition to revoke the subpoena issued to field attorney Joseph Tansino is granted. We
find that the Administrative Law Judge’s Order requiring Tansino to appear and give
testimony at the hearing on April 30, 2012 is premature because, at this point in the
proceedings, it is not apparent that the testimony of Tansino is necessary to resolve the
challenged ballots.
As stated in Drukker Communications, Inc. v. NLRB, 700 F.2d 727 (D.C. Cir.
1983), the evaluation of whether the evidentiary privilege asserted by counsel for the
Acting General Counsel applies to Tansino’s testimony involves the balancing of “need
against harm.” 700 F.2d at 731. In Drukker, which involved an underlying consent
election, the court found that the privilege did not shield the subpoenaed testimony of a
Board agent concerning an alleged oral agreement to exclude certain employees from
the agreed-upon unit. There, the parties’ dispute could not be resolved by reference to
the agreed-upon unit description, both because the language was reasonably

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2
susceptible to different interpretations and because the employer’s position implicated a
legal issue—whether the disputed voters were statutory employees at all. Id. at 732. In
addition, there was an actual conflict between the union attorney’s testimony and that of
the respondent’s attorney about a conversation between them that was witnessed by
the Board agent. Id. at 733.
Here, as the Respondent recognized in its Section 102.118 request to the Acting
General Counsel, the parties’ dispute might be resolved without the need for any
testimony at all under Caesar’s Tahoe, 337 NLRB 1096 (2002), if the judge finds the
parties’ stipulation unambiguous. Further, even assuming an ambiguity, there has been
no testimony yet and, thus, we are not confronted with an actual conflict. In these
circumstances, we find that the judge’s order is premature. If, however, the judge
determines that the parties’ stipulation is ambiguous, and he further determines that any
testimony the parties may give2 creates a factual conflict that can only be resolved by
the testimony of Tansino, then Tansino’s testimony may be compelled at that time;
provided, that his testimony shall be strictly limited to the parties’ factual dispute. See
Drukker, supra, 700 F.2d at 732 fn. 4.
Dated, Washington, D.C., April 27, 2012.
RICHARD F. GRIFFIN, JR, MEMBER
TERENCE F. FLYNN, MEMBER
SHARON BLOCK, MEMBER

2 In this regard, we observe that there are witnesses other than Board employees who
may be available to testify about the pertinent facts.