Caterpillar, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 626 (N.L.R.B. 1993)

626
313 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has completed the first of at least five dis-
crete segments to be litigated before the judge and the hearing in
this case is expected to last into the spring of 1994.
2 Affidavits produced and provided to the Respondent included
statements given to the Regional Office in cases not before the ad-
ministrative law judge and in cases which are still under investiga-
tion. Judge Rose also compelled the production and delivery of the
Board agent’s notes of telephone and personal conversations with
witnesses where, according to the General Counsel, the witnesses
were unaware of the notes and did not sign or adopt the notes.
3 Jencks v. U.S., 353 U.S. 657 (1957).
Caterpillar, Inc. and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America and its Local 145,
751, 786, 974, and 2096. Cases 33–CA–9876–3
et al.
January 18, 1994
ORDER
The National Labor Relations Board has decided to
include in the bound volumes the attached Order,
which issued on November 9, 1993.
By direction of the Board: Joseph E. Moore, Deputy
Executive Secretary.
ORDER
November 9, 1993
A hearing in the above proceeding opened before
Administrative Law Judge James Rose of the National
Labor Relations Board. During the course of the hear-
ing, on September 22, 1993, employee George H. Boze
Jr. was called by the General Counsel to testify con-
cerning issues raised in a number of cases involving
what have been characterized as ‘‘the insignia or but-
ton issues.’’1 Upon completion of Boze’s testimony on
direct, the Respondent requested copies of all state-
ments Boze had given to the Board. The judge directed
production of any statements given without regard to
the specific issues or cases involved and regardless of
whether the witness had testified in connection with
those cases or issues. Counsel for the General Counsel
objected to being compelled to produce affidavits in-
volving issues which were not then being litigated and
in cases which were not before the administrative law
judge. Judge Rose overruled the General Counsel’s ob-
jections and held that under the Jencks Act, 18 U.S.C.
§ 3500, all affidavits of a testifying witness are produc-
ible. The General Counsel complied with the judge’s
directive.
The same process was followed with respect to the
remaining witnesses scheduled for this discrete seg-
ment of the hearing, i.e., the judge required the pro-
duction of all affidavits given by the witnesses, several
of whom had given affidavits in various cases that
were not then being litigated and regarding matters on
which the witnesses had not testified. Pursuant to the
judge’s order, all affidavits were produced and were
utilized by Respondent’s counsel in cross-examina-
tion.2
On September 28, 1993, the General Counsel moved
the judge to reconsider his ruling. In denying the mo-
tion for reconsideration, the judge held that the Jencks
rule is essentially an agency housekeeping rule, that it
is his understanding that the underlying rationale of
Jencks ‘‘is to allow the defendant to have access to
any information that the government has which is ex-
culpatory or which effects [sic] the credibility of the
witness,’’ and that any material a person puts in an af-
fidavit and signs under oath may contain exculpatory
material in it. The judge further observed that he can
look at affidavits in camera, ‘‘but the problem is I
really don’t know . . . what information the Respond-
ent has.’’ Judge Rose further asserted that he did not
know what evidence the General Counsel had or what
the Respondent had and in response to this perceived
dilemma, Judge Rose stated: ‘‘And so I will err on the
side of giving that information to the Respondent, as
I believe it is the spirit of the Jencks rule.’’
The General Counsel has filed a request for special
permission to appeal from the judge’s ruling regarding
production of affidavits, contending that the judge has
not followed Section 102.118(b)(1) and (2) of the
Board’s Rules and Regulations, that the judge has in-
terpreted and applied the Jencks rule in an overly
broad fashion, and that the breadth of his ruling is par-
ticularly in doubt here ‘‘in that the Respondent has
demonstrated a proclivity toward engaging in conduct
warranting prosecution for violating the Act as evi-
denced by the fact that three dozen complaints have
issued against the Respondent and have been consoli-
dated for trial in this matter, that six more complaints
have issued which have not been consolidated for trial
before Judge Rose, and that there are currently over
twenty additional charges which have been filed
against the Respondent and are pending investigation
before various Regional Offices of this Agency.’’ The
General Counsel further argues that the judge’s ruling
not only provides the Respondent with unqualified dis-
covery in some instances but also permits the Re-
spondent to go on a fishing expedition in connection
with certain cases still under investigation.
Having duly considered the matter, the Board has
decided to grant the General Counsel’s appeal and, on
the merits, reverse the judge’s rulings regarding the
production of statements under Jencks.
As the administrative law judge correctly observed,
Section 102.118(b)(1) and (2) of the Board’s Rules and
Regulations is an ‘‘agency housekeeping rule’’ adopted
by the Board in response to the U.S. Supreme Court’s
Jencks’ decision3 and the subsequently enacted Jencks
Act. 18 U.S.C. § 3500. The Board’s Rule is very spe-
cific in setting forth the procedure to be followed in
627CATERPILLAR, INC.
4 Contrary to the judge’s unqualified assertion that Jencks requires
the prosecutor to produce all exculpatory material contained in the
files, both the Board and reviewing courts have held that the General
Counsel is under no general obligation to disclose any exculpatory
evidence uncovered during the pretrial investigation. See North
American Rockwell Corp. v. NLRB, 389 F.2d 866 (10th Cir. 1968).
Further, the Board has held that absent evidence that notes and
memos were adopted or approved by the witnesses, they are not wit-
ness statements (and hence not producible) under Jencks. Stride Rite
Corp., 228 NLRB 224, 226 fn. 3 (1977). See also Sec. 102.118(d)
of the Board’s Rules which defines the term ‘‘statement.’’ Although,
as indicated above, the judge is not without discretion in this area,
here the judge failed to exercise the discretion the Rule grants him
and instead ordered wholesale disclosure of information in the Gen-
eral Counsel’s files.
situations of this kind. In this regard, Section
102.118(b)(2) provides as follows:
(2) If the General Counsel claims that any state-
ment ordered to be produced under this section
contains matter which does not relate to the sub-
ject matter of the testimony of the witness, the ad-
ministrative law judge shall order the General
Counsel to deliver such statement for the inspec-
tion of the administrative law judge in camera.
This section further provides that on delivery the judge
‘‘shall excise the portion of such statements which do
not relate to the subject matter of the testimony of the
witness,’’ although the judge may exercise discretion
by declining to excise portions which, while unrelated
to the witness’ testimony, do relate to other matters
raised by the pleadings. (Emphasis added.)
When viewed in light of the provisions of Section
102.118(b)(1) and (2), it is clear that the judge has (1)
given an overly broad application to Jencks; (2) ig-
nored the Rule’s direction that the judge should excise
portions of a statement which do not relate to the mat-
ters as to which the witness has testified or to matters
raised by the pleadings; and (3) erred by compelling
the production of notes and memoranda in the absence
of evidence that they were adopted by the witness.4
Accordingly,
IT IS ORDERED that the General Counsel’s request
for special permission to appeal the judge’s ruling is
granted, the administrative law judge’s ruling is va-
cated, and the above proceeding is remanded to Ad-
ministrative Law Judge James Rose for further action
consistent with this Order.