Smithfield Packing Co.

National Labor Relations Board - Board DecisionsMay 18, 2001

334 N.L.R.B. 34 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 Smithfield Packing Co., Inc. and United Food and Commercial Workers Union Local 204. Cases 11–CA–18316, 11–CA–18415, 11–CA–18440, and 11–RC–6338 May 18, 2001 ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE This matter came to the Board on a request of the Act- ing General Counsel for special permission to appeal a ruling by Administrative Law Judge Pargen Robertson. The judge’s ruling required a production of completed questionnaires that the Acting General Counsel had se- cured from employees who had signed union authoriza- tion cards but did not testify at the hearing. The ques- tionnaires were secured during the Acting General Coun- sel’s investigation of whether the evidence would sup- port a Gissel1 bargaining order against the Respondent. Following receipt of the Acting General Counsel’s ap- peal, the Board requested the judge to set forth in writing the basis for his Order requiring production of the ques- tionnaires. On July 24, 2000, the judge issued the at- tached Response to the Board’s Order. The judge ex- plained that he ordered production of the questionnaires because they relate “to any matter” in question under Section 102.31(b) of the Board’s Rules,2 and because production would be in “the interest of due process and fair hearing.” After careful consideration, we have decided to grant the Acting General Counsel’s request and reverse the judge’s Order.3 Section 102.118(a) of the Board’s Rules prohibits disclosure of documents in the possession of the General Counsel, whether in response to a subpoena or otherwise, without the General Counsel’s written con- sent. A limited exception to this rule is set forth in Sec- tion 102.118(b)(1), which requires the production of statements by the General Counsel or Charging Party witnesses after they have testified. However, no party contends that the questionnaires at issue here are produc- ible under the Section 102.118(b)(1) exception. The em- ployee card signers were not called to testify by the Act- ing General Counsel or Charging Party. At the trial, the Acting General Counsel sought to authenticate the cards through the testimony of a handwriting expert rather than that of the employee card signers themselves.4 1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 2 The judge appears to have inadvertently cited to Sec. 102.30(b) of the Rules in support of his ruling. The reference appears to be to 102.31(b). 3 We regret the delay in ruling on the Acting General Counsel’s ap- peal. The judge’s response was inadvertently sent to NLRB Records rather than filed with the Board’s Executive Secretary, and was not brought to the Board’s attention until after issuance of the judge’s deci- sion on January 23, 2001. Further, we do not agree with the judge that production of the questionnaires would be in “the interest of due process and fair hearing.” As the cards are in evidence, the Respondent knows the identity of the card signers and could therefore secure their testimony to obtain the information in the questionnaires.5 Thus, there is no ba- sis to conclude that the Respondent would be prejudiced by failing to obtain the questionnaires. While, as the judge noted, production of the questionnaires might serve to speed the resolution of the hearing by providing a less time consuming and burdensome means of obtaining such information, ease and celerity do not necessarily implicate due process or a fair hearing. Nor is mere con- venience to a party a sufficient reason to compel the dis- covery of questionnaires that are privileged from disclo- sure under Section 102.118. Our colleague joins us in reversing the judge’s order given the applicability of Section 102.118. However, he does so with “misgivings” about the fairness of that Sec- tion, because pursuant thereto “the General Counsel can secure documents in the possession of respondent but respondent cannot secure documents in the possession of the General Counsel.” We do not share our colleague’s misgivings. The Board’s policy against disclosure of witness statements (except as provided in Sec. 102.118(b)(1)) is well established and has been sustained by the circuit courts.6 Further, Congress has long recog- nized the Board’s policy and never changed it.7 As the courts have commented, that policy is grounded in “the peculiar character of labor litigation,” where “witnesses” are especially likely to be inhibited by fear of the em- ployer’s or—in some cases—the union’s capacity for 4 See Parts Depot, Inc., 332 NLRB No. 64, slip op. at 5 (2000), and cases cited there (authenticity of authorization cards may be established through handwriting expert). See also Aero Corp., 149 NLRB 1283, 1287 (1964), enfd. 363 F.2d 702 (D.C. Cir. 1966) (same). 5 Although the judge noted that contacting these employees could be “a possibility expensive and fruitless effort,” there is nothing in the record before us that would indicate whether or not these employees are available to testify. 6 See cases cited in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 237 fn. 16 (1978). See also North American Rockwell v. NLRB, 389 F.2d 866 (10th Cir. 1968). But see NLRB v. Brookwood Furniture, 701 F.2d 452, 469 (5th Cir. 1983). 7 See NLRB v. Robbins Tire & Rubber, 437 U.S. at 238 (noting that Congress in enacting the investigatory records exemption [Exemption 7] to the FOIA in 1966 “was particularly concerned that premature production of witnesses’ statements in NLRB proceedings would ad- versely affect that agency’s ability to prosecute violations of the NLRA, and . . . the legislative history of the 1974 amendments affords no basis for concluding that Congress at that time intended to create any radical departure from prior, court-approved Board practice.”) 334 NLRB No. 5 SMITHFIELD PACKING CO. 35 reprisal and harassment.”8 Moreover, this “chilling effect on the Board’s [investigatory] sources”9 can exist regard- less of whether the statements are sought prior to or dur- ing the trial. As the Supreme Court has noted, employ- ees “may be reluctant to give statements to NLRB inves- tigators at all, absent assurances that unless called to tes- tify at a hearing, their statements will be exempt from disclosure until the unfair labor practice charge has been adjudicated.”10 We therefore adhere to the Board’s long- standing policy and reaffirm it. Accordingly, for all the foregoing reasons, we grant the Acting General Counsel’s request for special permis- sion to appeal and reverse the judge’s ruling requiring production of the questionnaires of employee card sign- ers who did not testify at the hearing. In order to ensure that the Respondent has a full opportunity to present its defense in light of our ruling, we shall remand the case to the judge for further proceedings upon proper motion by the Respondent. CHAIRMAN HURTGEN, concurring. I concur with the conclusion of my colleagues. How- ever, as discussed below, I do so with great reluctance. This is a Gissel case. The Acting General Counsel (AGC) introduced 188 cards, 154 of which were intro- duced through a handwriting expert, i.e., the employees were not called as witnesses. During the investigation, the Acting General Counsel sent questionnaires to the alleged card signers. The ques- tionnaires sought to ascertain whether they had signed the cards and, if so, the circumstances of these signings. At trial, the Respondent subpoenaed the responses. The AGC moved to quash (at least as to the 154 non- witness employees). The administrative law judge de- nied the AGC’s motion. The Board now reverses. Section 102.31(b) relates, inter alia, to subpoenas duces tecum. It requires the production of “any mat- ter . . . in question in the proceedings.” The documents sought herein clearly fall within that Section. However, if the document is in the possession of the AGC, a differ- ent rule applies. Section 102.118 of the Board’s Rules forbids the disclosure of materials in the possession of the General Counsel, “whether in response to a subpoena duces tecum or not.” The only way to achieve disclosure is through the General Counsel’s consent (not given here). The documents here are protected by that rule. There is an exception to Section 102.118, but it does not apply here. Under Section 102.118(b)(1), if the Gen- eral Counsel calls a witness, and if the General Counsel possesses a statement of the witness relating to his testi- mony, the General Counsel must produce the statement after direct examination. The exception is based on Jencks, and the statement can be used in cross- examination. In the instant case, the 154 employees were not called as witnesses, and thus the exception does not apply. 8 NLRB v. Robbins Tire & Rubber, 437 U.S. at 240, quoting from Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (3d Cir. 1976). 9 Id. at 241. 10 Id. In sum, Section 102.118 is a rule of the Board, and it applies here. Thus, I shall apply it. However, I have misgivings about the rule. In essence, it permits a liti- gant (the General Counsel) to withhold relevant docu- ments from the opposing party, and there is no compara- ble privilege for the opposing party. The General Coun- sel can secure documents in the possession of respon- dent, but respondent cannot secure documents in the pos- session of the General Counsel. The application of Section 102.118 is particularly troublesome here. The documents are unquestionably relevant. In addition, any confidentiality has been lost— the card signers have been identified at trial. Further, there is no claim of attorney work product. Finally, al- though the Respondent could perhaps call the 154 wit- nesses, that would be time consuming and burdensome to these proceedings. At the very least, the documents could confine the inquiry to those employees whose re- sponses raise questions. Unlike the instant case, the cases cited by my col- leagues involve pretrial disclosure. The one exception is in North American Rockwell. In that case, the employer sought a “blanket order” requiring the production, at trial, of any and all evidence inconsistent with the evi- dence presented by the General Counsel. The court de- nied that “blanket order.” There is no such blanket order here. Nor can there be any valid concern about protecting the identities of the employees. As my colleagues recog- nize, the identities of these employees have already been revealed by the handwriting expert who sought to verify their signatures. Indeed, if the Acting General Counsel had established verification through the employees them- selves (the usual procedure), it is clear that these state- ments would have been producible under 102.118(b)(1). The issue in this case is whether the Acting General Counsel can hide the statements by using the device of calling a secondary source (the handwriting expert). For the reasons set forth above, I would be inclined to require production were it not for Section 102.118. In sum, 102.118 raises issues as to the fairness of our proceedings, and as to our ability to conduct efficient hearings which search for truth. However, the rule is “on the books,” and, absent a change, I shall apply it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36 APPENDIX RESPONSE TO BOARD ORDER On July 19, 2000 the Board ordered that I discuss the basis for my order to General Counsel to produce questionnaires of employees that did not testify. General Counsel is seeking a Gissel1 bargaining order. The employees that completed the requested questionnaires allegedly signed union authorization cards and those cards were relied on by General Counsel in attempting to establish that the Union represented a majority of the unit employees. This matter has involved 13 hearing days as well as numer- ous conference calls between the attorneys and the administra- tive law judge. Several subpoenas issued by General Counsel and the Union were among the issues frequently discussed dur- ing those conference calls. At my direction Respondent permit- ted counsels for General Counsel and the Union access to its facility for examination of company records. Those examina- tions extended over several days. The question of production of questionnaires arose during a conference call. Respondent’s subpoena was brought to my attention after both General Coun- sel and the Union had rested. I considered Respondent’s request for production under both the subpoena provisions of the Board’s rules2 and under the Jencks rule (Section 102.118(b)(1)). The Board directed consideration of Aero Corp., 149 NLRB 1283 (1964). In Aero unlike here, the request for production was made under the Jencks rule3 and the Board discussed the affidavits as tools for cross-examination. Here Respondent did not seek the questionnaires for cross-examination. The Aero request was for affidavits as opposed to questionnaires. In Aero the Union’s asserted majority status did not depend on the au- thorization cards of those employees included in the request for affidavits. Here the Union’s asserted majority did depend upon receipt of authorization cards signed by questionnaire employ- ees. There were 188 authorization cards relied on to establish a 1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1979). 2 Eg., Sec. 102-31. 3 The Jencks Act is found at 18 U.S.C.A. Sec. 3500. See Sec. 102.118 of the Board’s rules and Rule 612 FRE. majority and 154 of those cards were introduced through a handwriting expert. In view of the facts before me it was apparent that Respon- dent’s request for the questionnaires did relate “to any matter” in question as provided in Section 102.30(b) of the Board’s rules. However, it was apparent that Section 102.30(b) con- flicted with the mandate of Section 102.118 of the Board’s rules. 1 determined that the interest of due process and fair hearing requited production of the questionnaires despite those apparent conflicts. My determination to require production of the questionnaires was based on the possibility that the questionnaires may include information that conflicted with testimony of the handwriting expert as to signatures on authorization cards; on possible in- formation as to what was said in soliciting the employees to sign the authorization cards and on possible information that may have otherwise supported Respondent’s defense in this matter. In deciding to apply Section 102.30(b) of the Rules, I con- sidered the fact that none of the questionnaires were completed by unknown employees or former employees. The authoriza- tion cards were in evidence. Respondent knew the names of all 154 employees and former employees that signed authorization cards that were admitted on testimony by the handwriting ex- pert. Therefore there was no question of confidentiality. I was also aware that other avenues for Respondent’s request for information, could have substantially extended the. time for completion of these proceedings. For example Respondent could have gone through a possibly expensive and possibly fruitless effort to locate all the 154 employees or former em- ployees and interview them regarding the same matters in- cluded in the questionnaires. Additionally, Respondent could have requested a delay in closing the record while its attorneys filed a request for information under the Freedom of Informa- tion Act. However, I decided that these proceedings would best be served by directing production of the questionnaires. I shall receive this response along with the Board’s order in evidence in these proceedings as ALJ Exhibit 1 (see Sec. 102.30(b) of the Board’s rules).