Central Telephone Co.

National Labor Relations Board - Board Decisions

Dec 13, 2004

343 N.L.R.B. 987 (N.L.R.B. 2004)

CENTRAL TELEPHONE CO. OF TEXAS
343 NLRB No. 99
987
Sprint Communications d/b/a/ Central Telephone
Company of Texas and Communications Work-
ers of America, Local 6174, AFL–CIO. Cases
16–CA–21792–2 and 16–CA–21858
December 13, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 9, 2002, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel and the Charging Party Communi-
cations Workers of America, Local 6174 (the Union)
both filed exceptions and supporting briefs. The Re-
spondent Central Telephone Company of Texas filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified, and to adopt the recommended Order.
At the close of General Counsel’s case-in-chief, the
judge granted the Respondent’s motion to dismiss as to
the allegations that the Respondent violated Section
8(a)(5) by: (1) failing to furnish “Personnel Action
Forms” prepared in connection with the discharges of
four union officers/employees; and (2) by instituting a
change in the method of holding third-step grievance
meetings such that the Respondent’s employee relations
specialist might participate via conference call, in addi-
tion to the physical presence of another management
representative. In granting the Respondent’s motion to
dismiss, the judge found that (1) the “Personnel Action
Forms” were not within the scope of information re-
quested by the Union; and (2) the change concerning the
physical presence of the employee relations specialist at
third step meetings was not “material, substantial or sig-
nificant” so as to create a duty to bargain. We agree with
the judge and affirm his dismissal of these allegations.
With regard to the remaining allegation that the Re-
spondent violated Section 8(a)(5) by failing to provide to
the Union notes that the Respondent prepared during the
course of its investigation into alleged misconduct by
four union officers/employees, the judge held that the
notes were protected from disclosure under the attorney
work product doctrine. For the reasons explained below,
we affirm the judge’s dismissal of this allegation.
Factual Background
The Respondent’s human resources specialist, Laura
Hindman, received information from the Respondent’s
timekeeper, Portia Welch, that Local Union President
Glenda Turnbo had directed employees to engage in
“self-help” action by staying on the timeclock beyond
working hours in protest of their not receiving their pay-
checks on time. Welch faxed Hindman a letter written
by Turnbo to Bill Stubbs, the Respondent’s employee
relations manager, in which Turnbo warned Stubbs that
the Union was directing unit employees who did not re-
ceive their paychecks on payday to stay on the clock un-
til they did so. Welch also faxed Hindman the time re-
cords of a shop steward, which showed that he reported a
significant amount of overtime hours on a single day,
signaling that he had acted in support of Turnbo’s direc-
tive. Hindman testified that the Respondent has a zero
tolerance policy for the falsification of time records, and
that the Respondent has terminated employees in the past
for this offense. Upon initially learning of the alleged
misconduct involving at least two union officials, Hind-
man contacted David Sapenoff, the Respondent’s direc-
tor of employee relations, and showed him the letter sent
by Turbo. Hindman contacted Sapenoff directly because
Stubbs, her manager, was unavailable at the time. Sa-
penoff immediately called Don Prophete, an attorney in
the Respondent’s in-house legal department who super-
vises other attorneys, for guidance. The contact with
Prophete was not routine. Hindman testified that it was
not routine for her to deal with Prophete. Rather, she
usually dealt with attorneys who were subordinate to
Prophete. The instant matter was dealt with on a higher
level, i.e., by Director Sapenoff rather than by Hind-
man’s manager Stubbs, and by Prophete rather than one
of his subordinates.
As directed by Prophete, Hindman interviewed the
four union officers/employees, as well as several other
employees and managers. Hindman prepared statements
for the four union officers/employees based on her notes
and those of another human resources employee taken
during the interviews. Hindman’s notes contained not
only factual information, but also her mental impressions
of the witnesses’ demeanors. She prepared a summary
report and verbally reported the results of her investiga-
tion to Prophete. After Hindman completed the investi-
gation, Sapenoff, Stubbs, and Hindman held a conference
call with the field management team, as well as Prophete,
in order to review Hindman’s report and decide whether
termination was appropriate. In consultation with Proph-
ete and the human resources professionals, the field
management team decided to discharge the four union
officers/employees.
Hindman testified that she has routinely conducted in-
vestigations, but the type and magnitude vary considera-
bly. She testified that she had only performed this type
of full blown and complete investigation at the direction
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
of the legal department. Such an investigation includes
taking notes and preparing witness statements and a
summary report. She has conducted investigations of
this nature only once or twice in the past couple of years.
Hindman further testified that it was not routine to dis-
cuss possible terminations with Prophete.
The Union requested a copy of Hindman’s investiga-
tion notes in order to prepare for arbitration regarding the
four discharges. The Respondent refused to provide the
notes on the ground that the notes were protected from
disclosure pursuant to the attorney-client privilege and
work product doctrine. The Respondent did provide cop-
ies of the witnesses’ signed statements to the Union in
advance of arbitration.1
Discussion and Analysis
The work product privilege, which was first recog-
nized by the Supreme Court over 50 years ago in Hick-
man v. Taylor, 329 U.S. 495 (1947), and later codified in
Federal Rule of Civil Procedure 26(b)(3),2 protects from
disclosure written material prepared by a party or his
representative in anticipation of litigation or for trial.
The strong public policy underlying the work product
doctrine is to aid the adversarial process by providing a
certain degree of privacy to a lawyer in preparing for
litigation. The Hickman Court reasoned that without
such privacy,
Much of what is now put down in writing would re-
main unwritten. An attorney’s thoughts, heretofore in-
violate, would not be his own. Inefficiency, unfairness
and sharp practices would inevitably develop in the
giving of legal advice and in the preparation of cases
for trial. The effect on the legal profession would be
demoralizing. And the interests of the clients and the
cause of justice would be poorly served.
Id. at 511. Further, in In re Sealed Case, 146 F.3d 881,
884 (D.C. Cir. 1998), the D.C. Circuit stated that
“[p]rotection is needed because an attorney preparing for

1 The Union asked for Hindman’s report, and the Respondent de-
clined to supply it, citing attorney-client privilege. That request is not
alleged as unlawful.
2 Federal Rule of Civil Procedure 26(b)(3) states in relevant part:
[A] party may obtain discovery of documents and tangible things . . .
prepared in anticipation of litigation or for trial by or for another party
or by or for that other party’s representative (including his attorney,
consultant, surety, indemnitor, insurer, or agent) only upon a showing
that the party seeking discovery has substantial need of the materials
in the preparation of his case and that he is unable without undue
hardship to obtain the substantial equivalent of the materials by other
means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
trial must assemble much material that is outside the at-
torney client privilege, such as witness statements, inves-
tigative reports, drafts, pleadings and trial memoranda.”
Rule 26(b)(3) was amended in 1970 to expressly ex-
tend work product protection to documents prepared in
anticipation of litigation by or for a party representative,
regardless of whether the representative is an attorney.
Fed. R. Civ. P. 26(b)(3), advisory committee notes (1970
Amendment) (Subdivision (b)(3) of Rule 26 as amended
“reflects the trend of the cases by requiring a special
showing, not merely as to materials prepared by an attor-
ney, but also as to materials prepared . . . by or for a
party of any representative acting on his behalf.”).
The work product privilege is not absolute. Rule
26(b)(3) provides that a party may obtain otherwise pro-
tected documents upon a showing that he “has substantial
need of the materials in the preparation of his case and
that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.”
Fed. R. Civ. P. 26(b)(3). Even if such a showing is
made, however, “the court shall protect against disclo-
sure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a
party concerning the litigation.” Id.
The essential question in determining whether a docu-
ment qualifies as work product is “whether, in light of
the nature of the document and the factual situation in the
particular case, the document can fairly be said to have
been prepared or obtained because of the prospect of
litigation.”3 Senate of Puerto Rico v. U.S. Dept. of Jus-
tice, 823 F.2d 574, 586 fn. 42 (D.C. Cir. 1987) (quoting 8
Charles Alan Wright & Arthur R. Miller, Federal Prac-
tice and Procedure § 2024 (1970)) (emphasis added).
Work product protection will be accorded where a
“document was created because of anticipated litigation,
and would not have been created in substantially similar
form but for the prospect of that litigation.” Adlman, 134
F.3d at 1195. In order to meet this standard, the party
representative “must at least have had a subjective belief
that litigation was a real possibility, and that belief must

3 The “because of” test has been adopted by at least seven U.S. Cir-
cuit Courts of Appeal, including the D.C. Circuit. See In re Grand Jury
Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900,
907 (9th Cir. 2004); Pepsi Co, Inc. v. Baird, Kurtz & Dobson LLP, 305
F.3d 813, 817 (8th Cir. 2002); State of Maine v. U.S. Dept. of Interior,
298 F.3d 60, 68 (1st Cir. 2002); Montgomery County v. MicroVote
Corp., 175 F.3d 296, 305 (3d Cir. 1999); EEOC v. Lutheran Social
Services, 186 F.3d 959, 968 (D.C. Cir. 1999); U.S. v. Adlman, 134 F.3d
1194, 1195 (2d Cir. 1998); and Logan v. Commercial Union Ins. Co.,
96 F.3d 971, 976–977 (7th Cir. 1996). This test is distinguished from
the “primary motivation” test, recognized primarily by the Fifth Circuit,
which asks whether the primary motivation behind a document’s crea-
tion was to aid in anticipated litigation. U.S. v. Davis, 636 F.2d 1028,
1042 (5th Cir. 1981), cert. denied 454 U.S. 862 (1981).
CENTRAL TELEPHONE CO. OF TEXAS 989
have been objectively reasonable.” In re Sealed Case,
146 F.3d 881, 884 (D.C. Cir. 1998). The prospect of
litigation need not be actual or imminent; it need only be
“fairly foreseeable.” Coastal States Gas. Corp. v.
Dept.of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980). The
privilege “extends to documents prepared in anticipation
of foreseeable litigation, even if no specific claim is con-
templated” at the time the documents are prepared.
Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992).
Thus, it is not necessary for a specific claim to have been
threatened or filed at the time of the document’s creation,
as long as the document was prepared in anticipation of
foreseeable litigation. See, e.g., In re Sealed Case, 146
F.3d at 884 (finding documents prepared by outside
counsel in response to news reports questioning the le-
gality of the Republican National Committee’s relation-
ship with the National Policy Forum had been prepared
in anticipation of litigation even though the Federal Elec-
tion Commission had not yet filed a formal complaint);
EEOC v. Lutheran Social Services, 186 F.3d at 968–969
(finding that an attorney’s investigation report prepared
in response to two anonymous memoranda accusing the
organization’s president of creating a sexually hostile
work environment was protected work product even
though no lawsuit had been filed at the time of its crea-
tion).
Applying these standards to the present case, we find
that Hindman’s investigation notes were prepared in an-
ticipation of litigation and not in the ordinary course of
business.4 The fact that Hindman and Sapenoff immedi-
ately contacted the Respondent’s in-house attorney upon
receiving information about the alleged serious miscon-
duct of the four union officers supports the Respondent’s
contention that it subjectively anticipated litigation. Fur-
thermore, the Respondent’s fear of litigation was objec-
tively reasonable. In the world of labor relations, the
discharge of four union officers, including the Local Un-
ion President, for actions taken in their capacity as union
officials, would likely (albeit not inevitably) result in the
Union’s pursuing arbitration or filing an unfair labor
practice charge. This is particularly true here where the
Union would likely attempt to argue that the four union
officers were engaged in protected, concerted activity in
protest of the Respondent’s failure to provide pay checks

4 We do not contend that, in the absence of possible litigation, there
would have been no investigation. Rather, we contend that the scope
and character of this particular investigation was because of the possi-
bility of litigation.
As noted supra, the General Counsel does not challenge the Respon-
dent’s refusal to provide the Union with the report itself. That refusal
was based upon the attorney-client privilege. And yet, the refusal to
supply the notes, the very basis for the report, is the subject of the in-
stant 8(a)(5) attack.
on time. And, of course, the Union did pursue arbitration
with regard to each termination. Under these circum-
stances, the investigation notes, compiled by Hindman at
the direction of the Respondent’s in-house counsel in
anticipation of foreseeable litigation, are plainly within
the scope of the work product privilege.5
We do not dispute our dissenting colleague’s conten-
tion that notes taken in the ordinary course of business do
not fall within the ambit of work product protection. In
sum, we simply disagree with his application of the law
to the facts here. As indicated above, we find that
Hindman’s investigatory notes would not have been cre-
ated in substantially similar form but for the prospect of
litigation, and, hence, were not taken in the ordinary
course of business. Adlman, supra. Hindman testified
that she had conducted the type of extensive investiga-
tion involved in this case only once or twice before. As
noted above, she further testified that in-house counsel,
as opposed to her own manager, directed her to perform
this investigation, and that it was not routine for her to
discuss possible terminations with in-house counsel
Prophete. Thus, this particular investigation was not a
routine investigation done in the ordinary course of busi-
ness, but rather was done in anticipation of litigation.
Our dissenting colleague also argues that because no
articulable claim likely to lead to litigation had arisen at
the time the notes were prepared, the work product privi-
lege does not attach. In support, our colleague relies on
the fact that the notes were prepared before the Respon-
dent had terminated the four union officials/employees.
While the fact that a specific claim has not arisen is a
factor to consider in assessing whether a document was
prepared in anticipation of litigation, it is not dispositive.
In re Sealed Case, 146 F.3d at 887 (holding that “where
. . . lawyers claim they advised clients regarding the
risks of potential litigation, the absence of a specific
claim represents just one factor that courts should con-
sider in determining whether the work-product privilege
applies”). As the D.C. Circuit Court of Appeals has rec-
ognized, “[i]t is often prior to the emergence of specific

5 We find that even if we were to apply the Fifth Circuit’s primary
motivation test, the result here would be the same. That is, even if an
investigation would have been conducted for business reasons standing
alone, the primary motivation for this investigation was the possibility
of litigation. Hindman’s investigation was performed at the direction
of Attorney Sapenoff. Hindman testified that the investigation was
more extensive than that typically performed by the Respondent and
that she had not routinely performed this type of extensive investiga-
tion. As argued by the Respondent, it was keenly aware that litigation
was a likely result should the Respondent decide to terminate the union
officials’ employment. Thus, we find that the primary motivation
behind this extensive investigation was to aid the Respondent in the
substantially likely event that the Union pursued litigation against the
Respondent as a result of the discharges.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
claims that lawyers are best equipped either to help cli-
ents avoid litigation or to strengthen available defenses
should litigation occur.” Id. at 886. And as the Second
Circuit Court of Appeals explained in U.S. v. Adlman:
Although the non-occurrence of events giving rise to
litigation prior to preparation of the documents is a fac-
tor to be considered, . . . it does not necessarily preclude
application of the work-product privilege. For exam-
ple, where a party faces the choice of whether to en-
gage in a particular course of conduct virtually certain
to result in litigation and prepares documents analyzing
whether to engage in the conduct based on its assess-
ment of the likely result of the anticipated litigation, we
conclude[ ] that the preparatory documents should re-
ceive protection under Rule 26(b)(3).
134 F.3d at 1196; accord: Delaney, Migdail & Young,
Chartered v. IRS, 826 F.2d 124 (D.C. Cir. 1987) (IRS
attorneys’ memoranda analyzing expected legal chal-
lenges to a proposed system of statistical sampling was
prepared because of anticipated litigation that would re-
sult from adoption of the program and was therefore pro-
tected work product). Thus, documents do not automati-
cally lose their work product protection merely because
no specific claim has yet arisen. Here, Hindman under-
took the investigation at the direction of in-house counsel
in order to inform the Respondent’s decision whether to
terminate the four union officials’ employment. Such a
business decision must weigh the risk of litigation. And,
if the decision is to terminate the employees, that deci-
sion is likely to lead to litigation.
Moreover, our finding that Hindman’s notes constitute
protected work product serves the underlying purposes of
the NLRA. As observed by the D.C. Circuit Court of
Appeals, “[v]oluntary compliance with the law often
depends on sound legal advice; sound legal advice in
turn often depends on the attorney-client and work prod-
uct privileges.” EEOC v. Lutheran Social Services, 186
F.3d at 966. In finding documents prepared by outside
counsel covered by the work product privilege even
though a government agency had not yet filed a com-
plaint, the D.C. Circuit further noted:
[L]acking resources to pursue every suspected violation
of federal law, the government must depend on effec-
tive, conscientious private lawyers to help clients com-
ply voluntarily. . . . Weakening the ability of lawyers to
represent clients at the preclaim stage of anticipated
litigation would inevitably reduce voluntary compli-
ance with the law, produce more litigation, and increase
the workload of government law enforcement agencies.
In re Sealed Case, 146 F.3d at 887. Failing to recognize
the status of the Respondent’s notes as protected work
product in this case would hinder the ability of lawyers to
advise their clients regarding the prospect of litigation at
the preclaim stage, and thereby undermine the important
goal of fostering the peaceful resolution of labor disputes
through voluntary compliance with the NLRA.
In order to overcome the work product protection, the
Union had the burden of showing that it had a substantial
need for the notes and that it could not obtain equivalent
information without undue hardship. The Union has
made no such showing. The Respondent provided the
Union with copies of the witness statements in advance
of arbitration. The Union has not shown that it was un-
able to pursue additional information by conducting its
own witness interviews.6
Accordingly, we find that the investigation notes fall
within the ambit of the work product privilege and the
Union has not demonstrated the required “substantial
need” in order to overcome the privilege.7
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER WALSH, dissenting in part.
I agree with my colleagues that, for the reasons stated
by the judge, the Respondent did not violate Section
8(a)(5) by its delay in the production of Personnel Action
Forms requested by the Union in preparation for arbitra-
tion and by failing to have its human resources specialist
physically attend a third step grievance meeting, and
instead participate via teleconference, where another
management representative was physically present at the
meeting. However, I disagree with my colleagues’ find-
ing that the Respondent did not violate Section 8(a)(5) by
failing to produce notes recording statements made by
employees during interviews conducted as part of the
Respondent’s factual investigation into alleged miscon-
duct of four union officers/employees.

6 Assuming arguendo that General Dynamics, 268 NLRB 1432
(1984), represents extant Board law, and that it is appropriate to apply a
balancing test where a party claims attorney work product privilege, an
issue upon which we find it unnecessary to pass, we would nonetheless
reach the same result. The General Counsel and the Union have not
persuasively explained why the Union needs this information, clearly
nondisclosable under Rule 26(b)(3), and why the witness statements
provided did not satisfy the Union’s needs. See BP Exploration, 337
NLRB 887 (2002) (where attorney-client privilege asserted, Board
applied balancing test arguendo and found the respondent’s confidenti-
ality interest outweighed the union’s asserted need).
7 Given our finding that the notes constitute protected work product,
we do not need to pass on the Respondent’s other arguments that the
notes are protected from disclosure pursuant to the attorney-client privi-
lege or the Board’s Anheuser-Busch doctrine.
CENTRAL TELEPHONE CO. OF TEXAS 991
By the Respondent’s witnesses’ own admissions, the
interview notes were taken during a factual investigation
that was conducted in the ordinary course of business for
the nonlitigation purpose of determining whether the four
union officials had engaged in the alleged misconduct so
that the Respondent could decide the appropriate correc-
tive action. In holding these notes to be protected work
product, my colleagues disregard the universally fol-
lowed principle that documents prepared in the “ordinary
course of business” or for “other non-litigation purposes”
are not protected work product. They thereby extend the
work product doctrine beyond its intended scope and
unjustifiably impair the ability of unions to protect their
members’ contractual and statutory rights.
Applicable Standards
The work product doctrine is embodied in Federal
Rule of Civil Procedure 26(b)(3) and provides limited
protection for materials prepared “in anticipation of liti-
gation.” Fed. R. Civ. P. 26(b)(3). The doctrine “is de-
signed to balance the needs of the adversary system to
promote an attorney’s preparation in representing a client
against society’s general interest in revealing all true and
material facts relevant to the resolution of a dispute.” In
re Subpoenas Duces Tecum, 738 F.2d 1367, 1371 (D.C.
Cir. 1984). Because work product protection by its na-
ture may hinder an investigation into the true facts, it
must be narrowly construed consistent with its purpose.
Stout v. Illinois Farmers Ins. Co., 150 F.R.D. 594, 602
(S.D. Ind. 1993).
The party asserting work product protection bears the
burden of establishing that the materials were prepared in
anticipation of litigation. In re Grand Jury Proceedings
v. U.S. 156 F.3d 1038, 1042 (10th Cir. 1998); Hodges,
Grant & Kaufman v. U.S., 768 F.2d 719, 721 (5th Cir.
1985). In order for the work product privilege to attach,
the prospect of litigation must be more than a mere pos-
sibility or contingency. Binks Mfg. Co. v. National
Presto Industries, 709 F.2d 1109, 1119 (7th Cir. 1983)
(“The mere contingency that litigation may result is not
determinative.”) (quoting Janicker v. George Washing-
ton University, 94 F.R.D. 648, 650 (D.D.C. 1982)); Nick-
lasch v. JLG Industries, 193 F.R.D 570, 572 (S.D.Ind.
1999) (“There is consensus in the case law that the mere
possibility of litigation is insufficient to warrant a rea-
sonable anticipation of litigation.”). Instead, the assert-
ing party must generally show that “at the very least
some articulable claim, likely to lead to litigation, had
arisen” at the time the documents were prepared. Binks
Mfg. Co., 709 F.2d at 1119 (quoting Coastal States Gas
Corp. v. Dept. of Energy, 617 F.2d 854, 865 (D.C. Cir.
1980)) (emphasis added); accord: Kent Corp. v. NLRB,
530 F.2d 612, 623–624 (5th Cir. 1976) (finding that final
investigative reports prepared by NLRB staff attorneys
after investigation of unfair labor practice charges were
protected work product since “the prospect of litigation
was identifiable because of specific claims that had al-
ready arisen”).
As my colleagues point out, there are essentially two
standards that the federal courts of appeal have applied in
determining whether the asserting party has met its bur-
den of proving that the prospect of likely litigation
caused it to prepare the withheld materials. The Fifth
Circuit (the jurisdiction in which this case arose and the
hearing took place) applies the “primary motivation” test.
U.S. v. El Paso Co., 682 F.2d 530, 542–543 (5th Cir.
1982). Under this standard, the work product doctrine
applies only if the “primary motivating purpose behind
the creation of the document was to aid in possible future
litigation.” Id. (quoting U.S. v. Davis, 636 F.2d 1028,
1042 (5th Cir. 1981), cert. denied 454 U.S. 862 (1981)).
Other circuits apply a similar test that asks whether the
documents were prepared “because of” existing or ex-
pected litigation. See, e.g., EEOC v. Lutheran Social
Services, 186 F.3d 959, 968 (D.C. Cir. 1999); U.S. v.
Adlman, 134 F.3d 1194 (2d Cir. 1998); and Binks Mfg.
Co., 709 F.2d at 1119. Under this standard, the asserting
party must establish that the document would not have
been created “but for” the anticipated litigation. Care-
mark, Inc. v. Affiliated Computer Services, Inc., 195
F.R.D. 610, 616 (N.D. Ill. 2000) (“If a document would
have been created regardless of whether litigation was
anticipated or not, it is not work product.”).
Regardless of which standard is applied, all federal
courts universally adhere to the mandate of Rule 26(b)(3)
that documents “prepared in the ordinary course of busi-
ness” or “for other non-litigation purposes” fall outside
the work product privilege, even if those documents
might ultimately be used to assist in litigation. Fed. R.
Civ. P. 26(b)(3), advisory committee’s note (1970
Amendment).1 Such documents do not qualify for pro-
tection because it cannot be reasonably maintained that
they were created for the purpose of anticipated litiga-
tion. Thus, the critical inquiry under the Rule is whether
the document was produced for litigation or nonlitigation
purposes. Stout, 150 F.R.D. at 599 (“[T]he standard
against which documents are measured for work product
protection is . . . whether they were produced for litiga-
tion or non-litigation purposes.”); 8 Wright & Miller §
2024, at 346 (1970) (“[E]ven though litigation is already
in prospect, there is no work-product immunity for docu-

1 Documents prepared in the ordinary course of business are “but
one example of nonlitigation motivated documents.” Stout, 150 F.R.D.
at 594 fn. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
ments prepared in the regular course of business rather
than for purposes of the litigation.”).
Accordingly, the mere fact that the party seeking work
product protection foresaw litigation prior to investigat-
ing an accident or event does not qualify documents pro-
duced as a result of the investigation as protected work
product. Binks Mfg. Co., 709 F.2d at 1119. Instead, the
documents must have been produced for the purpose of
the anticipated litigation. Thus, “[i]f in connection with
an accident or an event, a business entity in the ordinary
course of business conducts an investigation for its own
purpose, the resulting investigatory report is producible
in civil pre-trial discovery.” Id. (quoting Janicker, 94
F.R.D. at 650).
For example, in In re Leslie Fay Cos., Inc. v. Securi-
ties Litigation, 161 F.R.D. 274, 280 (S.D.N.Y. 1995), the
court held that documents prepared in connection with a
company’s investigation into the propriety of an audit it
had performed were not protected work product. The
court found that while the company could have reasona-
bly anticipated litigation once the accounting irregulari-
ties were publicly disclosed, the company had not made a
sufficient showing that the investigation documents were
prepared “because of” the prospect of litigation. Instead,
the court found that the company conducted the investi-
gation primarily for business reasons, including to aid it
in making decisions on firing responsible personnel. Id.
at 280; accord:Seibu Corp v. KPMG LLP, No. 3-00-CV-
1639-X, 2002 WL 87461 (N.D.Tex. 2002) (finding that
internal investigation documents regarding the propriety
of an audit performed by the firm were not created be-
cause of anticipated litigation, even though the investiga-
tion was initiated by the firm’s in-house counsel, but
instead were prepared for the primary purpose of making
personnel decisions regarding the firm partners responsi-
ble for the audit).
Similarly, in Miller v. Federal Express Corp., 186
F.R.D. 376, 387 (W.D.Tenn. 1999), the employer rou-
tinely investigated all internal job discrimination com-
plaints under the direction of the employer’s legal de-
partment. The court held that the documents generated
during one such investigation and before the filing of a
formal EEOC complaint were prepared in the ordinary
course of adjusting employee complaints. The fact that
the employer’s corporate counsel instructed employees
that the investigation was being launched in anticipation
of litigation was insufficient to overcome the fact that the
employer would have undertaken the investigation irre-
spective of the prospect of litigation. The court therefore
held that the investigation documents were prepared in
the ordinary course of business and not entitled to work
product protection. Id.; accord: New England Telephone
Co., 309 NLRB 558 fn. 1 (1992) (finding that the mere
fact that the employer’s security report could be used in
litigation to defend the employer’s decision to terminate
an employee was insufficient to establish that the report
was prepared in anticipation of litigation).
Application of Standards
Regardless of which of the above standards is applied,
the Respondent did not present any evidence establishing
that Hindman’s investigation notes were prepared in an-
ticipation of litigation. Neither Hindman nor Bill Stubbs,
the Respondent’s employee relations manager, who were
the Respondent’s only witnesses, mentioned a prospect
of litigation at all in their testimony, much less that the
investigation was undertaken because of it.2 Far from
establishing that Hindman’s notes were created in antici-
pation of litigation, Hindman’s and Stubbs’ testimony
compels a finding that the investigation was performed in
the ordinary course of business for the nonlitigation pur-
pose of determining whether the four union officials had
engaged in the alleged misconduct so that the Respon-
dent could determine whether termination was appropri-
ate.
Specifically, Stubbs testified that the Respondent has
“an internal process” whereby the Respondent’s human
resources department always investigates alleged mis-
conduct by nonprobationary, unit employees. After the
investigation is completed, the field management team
makes the decision whether to terminate or discipline the
employee. Stubbs testified that the management team
always consults with the legal department, as well as the
human resources department, in reaching this decision.
Thus, the legal department’s involvement in employee
terminations is a routine part of the Respondent’s internal
procedure for dealing with allegations of misconduct by
unit employees.
Similarly, Hindman testified that she always investi-
gates alleged misconduct of any employee in the bargain-
ing units for which she is responsible before the Respon-
dent decides whether termination is the appropriate ac-
tion. She testified that she conducts these pre-
termination investigations at the direction of both the
human resources and legal departments and that she
“does everything in concert with their advice and direc-
tion.” She testified that an investigation may entail as
little as interviewing one person and taking notes or may
be more extensive, as in this case, and involve interview-
ing many witnesses and preparing witness statements.
She reports the results of an investigation to management

2 Moreover, the Respondent’s in-house counsel did not testify at the
hearing or present an affidavit regarding the purpose of the investiga-
tion.
CENTRAL TELEPHONE CO. OF TEXAS 993
and in-house counsel, and sometimes prepares an inves-
tigatory report summarizing the results. Hindman ex-
plained that whether she prepares a summary report de-
pends on the size of the investigation, which in turn de-
pends on the complexity of the issues involved and the
number of individuals who need to be interviewed.
Consistent with the Respondent’s internal policy and
procedure for investigating alleged employee miscon-
duct, Hindman testified that she conducted an extensive
investigation in this case in order “to gather all the facts”
so that they could “conclude what the proper, corrective
action would be.” She met with David Sapenoff, the
director of employee relations, to discuss the information
she had received from Portia Welch, the Respondent’s
time keeper, regarding the union officers’ alleged in-
volvement in falsifying time records. She and Sapenoff
called Don Prophete, an attorney in the Respondent’s in-
house legal department, who told her to conduct an in-
vestigation in order “to determine what had, in fact, oc-
curred.” Prophete instructed her to interview witnesses
and prepare statements for the four union officers.
Hindman interviewed the four union officers as well as
several other employees and managers, and took notes of
what they said. She prepared statements for the union
officers on the basis of the notes taken during their inter-
views. After completing the interviews, she prepared a
written summary of her investigation. She, Sapenoff,
and Stubbs then held a conference call with the manage-
ment team and in-house counsel Prophete. The group
reviewed Hindman’s report and decided to terminate the
four union officials.
Based on the Respondent’s witnesses’ admissions, it is
incontrovertible that it is the Respondent’s policy and
procedure to always investigate alleged misconduct by
any unit employee before making a termination decision.
Hindman provided undisputed testimony that she con-
ducted the investigation into the four union officers’ al-
leged misconduct for the purpose of gathering all of the
facts so that the Respondent could make a decision re-
garding the appropriate corrective action. It is also clear
that the Respondent’s in-house counsel is routinely con-
sulted by the human resources department with regard to
employee relations matters, advises and directs Hindman
in handling allegations of employee misconduct, and is
always involved in termination decisions. The Respon-
dent presented no evidence that this investigation dif-
fered in any material respect from other investigations
into alleged employee misconduct performed in the ordi-
nary course of business. Most significantly, the Respon-
dent presented no evidence to refute the non-litigation,
business purpose of the investigation identified by
Hindman. Thus, it is clear from the record evidence that
Hindman’s witness notes were created during a factual
investigation conducted in the ordinary course of busi-
ness for the nonlitigation, business purpose of determin-
ing whether the four union officers had engaged in the
alleged misconduct so that the Respondent could deter-
mine the appropriate corrective action. Accordingly, the
investigation notes were not prepared “because of” litiga-
tion or for the “primary motivating purpose” of aiding in
anticipated litigation, and therefore do not fall within the
protection of the work product doctrine.
Based on this record, the majority concedes that the
Respondent would have performed an investigation into
the four union officers’ alleged misconduct irrespective
of a prospect of litigation. Nevertheless, the majority
baldly asserts that “the scope and character of this par-
ticular investigation was because of the possibility of
litigation.” To support this argument, my colleagues rely
on (1) their assertion that this investigation was “not rou-
tine” because of its “extensive” nature; (2) the fact that
in-house counsel directed Hindman to conduct the inves-
tigation;3 and (3) their assumption that the Union would
likely, “albeit not inevitably,” pursue litigation if the Re-
spondent ultimately discharged the four union officials.
The majority’s argument is to no avail for several rea-
sons.
First and foremost, the majority’s decision ignores and
contradicts Hindman’s own testimony that the nonlitiga-
tion, business purpose of the investigation was to gather
all of the facts so that the Respondent could determine
whether to discharge the four union officials. Hindman
in no way testified that “the scope and character of this
particular investigation was because of the possibility of
litigation.” Hindman’s unrefuted admission regarding

3 In an apparent attempt to bolster their argument that the investiga-
tion was “not routine,” my colleagues assert that Hindman testified that
she “did not usually deal with Prophete” and that “it was not routine
[for her] to discuss possible terminations with Prophete.” The majority
thereby seems to imply that it was unusual for her to deal with the
Respondent’s in-house attorneys generally. This is not the case.
Hindman testified, as explained above, that she regularly consults in-
house counsel on employee relations issues, and that she is directed by
both the human resources and legal departments and therefore does
“everything in concert with their advice and direction.” In this particu-
lar case, she and Sapenoff contacted Prophete because, while she more
regularly dealt with two other attorneys, Chris Pace and Tony Byergo,
Sapenoff happened to deal more regularly with Prophete. Furthermore,
Hindman did not testify that it was unusual for her to deal with Proph-
ete. Hindman testified that with regard to possible terminations, she
consults with Pace, Byergo, or Prophete, “depending on who’s avail-
able.” On this record, the fact that Hindman and Sapenoff contacted
Prophete, as opposed to another attorney in the in-house legal depart-
ment, does nothing to obviate the fact that in-house attorneys are rou-
tinely involved in employee misconduct investigations and decisions
regarding appropriate corrective action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
the nonlitigation, business purpose of her fact investiga-
tion ends the work product inquiry.
Accordingly, my colleagues’ reliance on Hindman’s
testimony that she had conducted investigations that
were this extensive only once or twice before is mis-
placed. This is particularly true given Hindman’s testi-
mony that the purpose of her “extensive” investigations,
like the one in this case, was to gather all of the facts so
that the Respondent could determine the appropriate cor-
rective action. The majority’s argument misunderstands
the work product standard as differentiating between
frequent and infrequent activities, rather than between
litigation and nonlitigation purposes. As explained su-
pra, it is the purpose for which the interview notes were
created that is the key inquiry under the work product
rule, not whether the investigation entailed actions that
were taken frequently or infrequently. Stout, 150 F.R.D.
at 597 (“Although consideration of the producer’s busi-
ness or routine may be relevant under the Rule as evi-
dence of the purpose or use for which the producer cre-
ated the documents, the standard against which docu-
ments are measured for work product protection is not
the nature of a document producer’s business or the his-
tory of its internal procedures, but whether they were
produced for litigation or non-litigation purposes.”).
Here, even if one were to disregard Hindman’s state-
ments identifying the business purpose of her factual
investigation, the record is clear that this investigation
was performed in the ordinary course of business. As
noted above, it is the Respondent’s internal policy and
process to always investigate alleged misconduct by any
unit employee before a termination decision is made.
The steps Hindman takes to investigate alleged miscon-
duct vary depending on the complexity of the issues in-
volved and the number of witnesses that need to be inter-
viewed. For example, she may interview only one wit-
ness and take notes, or she may, as in this case, interview
many witnesses, take notes, and prepare witness state-
ments and a summary report. There is no record evi-
dence to support the majority’s apparent contention that
investigations involving certain of these steps fall outside
the Respondent’s internal policy and process for investi-
gating alleged employee misconduct or are conducted for
purposes outside the ordinary course of business. Thus,
the majority’s argument that Hindman’s investigation
was not conducted in the ordinary course of business
fails.
My colleagues’ reliance on the fact that in-house coun-
sel Prophete directed Hindman to conduct the investiga-
tion is also misplaced. As explained above, whether a
document is protected under Rule 26(b)(3) depends on
the purpose behind its preparation, rather than on the
identity of the party representative who requests or pre-
pares it. Caremark, Inc., 195 F.R.D. at 615. Accord-
ingly, it is well settled that investigation documents pre-
pared in the ordinary course of business and/or for a
nonlitigation purpose do not become protected work
product by mere virtue of an attorney’s direction of or
involvement in the investigation. See, e.g., Miller, 186
F.R.D. at 387 (documents generated during investigation
undertaken in the ordinary course of adjusting employee
complaints were not work product despite the fact that
corporate counsel directed the investigation); Nicklasch
v. JLG Industries, Inc., 193 F.R.D. at 573 (noting the
“consensus in the case law that the involvement of an
attorney is not enough to convey work product status”
and finding that accident reports prepared at the direction
of in-house counsel were not protected work product
where the reports included no evaluation of the likeli-
hood of litigation, and the manufacturer investigated the
reported incidents as a matter of course in order to de-
termine the causes of the accidents and possible correc-
tions); In re Kidder Peabody Secs. Litig., 168 F.R.D. 459
(S.D.N.Y. 1996) (holding that documents prepared by
outside counsel during an investigation into misappropri-
ated funds by one of the employer’s major traders were
not work product where the investigation was undertaken
to find out what the trader had done and to help deter-
mine corrective action). Thus, Prophete’s mere directing
of Hindman to perform the investigation here, in the ab-
sence of any record evidence that the investigation was
performed for the purpose of anticipated litigation, does
not render her interview notes protected work product.
Moreover, my colleagues’ reliance on the assumption
that the Union would likely pursue litigation if the Re-
spondent terminated the four union officials is also mis-
placed. There are innumerable business decisions, such
as employee terminations, that may become the subject
of future litigation. It is well established that this fact
alone is not sufficient to bring documents relating to such
decisions, like Hindman’s interview notes, within the
ambit of work product protection. Otherwise, any docu-
ment which is later used to aid a party in litigation would
be considered protected work product, regardless of the
purpose for which it was originally prepared. The work
product doctrine does not sweep nearly this far. Binks
Mfg. Co., 709 F.2d at 1118 (“The mere fact that litigation
does eventually ensue does not, by itself, cloak materials
prepared by an attorney with the protection of the work
product privilege; the privilege is not that broad.”);
Coastal States Gas Corp., 617 F.2d at 865 (“To argue
that every audit is potentially the subject of litigation is
to go too far. While abstractly true, the mere possibility
CENTRAL TELEPHONE CO. OF TEXAS 995
is hardly tangible enough to support so broad a claim of
[work product] privilege.”).
Finally, any prospect of litigation in this case was nec-
essarily too far removed from Hindman’s preparation of
the interview notes because the event that could give rise
to such a prospect—the termination of the four union
officers—had not even occurred at the time Hindman
conducted her investigation. Indeed, the purpose of the
investigation was to determine whether to take that ac-
tion. Thus, the Respondent cannot show that at least
“some articulable claim, likely to lead to litigation had
arisen” at the time the interview notes were created.
Coastal States Gas Corp., 617 F.2d at 865. This is not a
case where the Respondent was investigating possible
unlawful actions already taken by the four union officials
in anticipation of filing a claim against them, or a case
where the Respondent was investigating its own poten-
tially unlawful conduct in anticipation of having to de-
fend itself in future litigation. The Respondent simply
cannot meet its burden of proof based on a mere contin-
gency that litigation might result if the Respondent de-
cided to terminate the four union officials as a result of
its investigation. See, e.g., Electronic Data Systems
Corp. v. Steingraber, No. 4:02 CV 225, 2003 WL 2165,
3414 (E.D.Tex. 2003) (denying work product protection
to documents prepared during a pre-termination investi-
gation into alleged employee misconduct because no
articulable claim likely to lead to litigation arose prior to
the employee’s termination); Pete Rinaldi’s Fast Foods,
Inc. v. Great American Ins. Cos., 123 F.R.D. 198, 202,
204 (M.D.N.C. 1988) (holding that “where an insured
files a claim on its insurer, the insurer does not usually
generate work product material until the claim is paid or
denied”; “only when the company made a decision with
respect to the claim would it have been possible for there
to arise a reasonable threat of litigation so that informa-
tion gathered thereafter might be said to be acquired in
anticipation of the litigation”).
Despite the above well-settled principles, my col-
leagues argue that the fact that no articulable claim had
arisen at the time the interview notes were prepared is
not dispositive because the notes were prepared to aid a
business decision that was strongly influenced by the
prospect of litigation and therefore constitute protected
work product. However, the cases cited by the majority
in support of this argument do not support such a broad
proposition. In U.S. v. Adlman, the narrow issue ad-
dressed was “whether Rule 26(b)(3) is inapplicable to a
litigation analysis prepared . . . in order to inform a busi-
ness decision which turns on the party’s assessment of
the likely outcome of litigation expected to result from
the transaction.” 134 F.3d at 1197 (emphasis added). In
that case, the Second Circuit found that an attorney’s
written legal analysis of potential claims that might result
from a proposed merger would not have been produced
but for the prospect of litigation and therefore was pro-
tected work product. Id.4 In so holding, however, the
Second Circuit emphasized that the attorney work prod-
uct doctrine does not protect “documents that are pre-
pared in the ordinary course of business or that would
have been created . . . irrespective of the litigation.” Id.
at 1202. Similarly, in Delaney, Migdail & Young, Char-
tered v. IRS, 826 F.2d 124 (D.C. Cir. 1987), the court
found that memoranda prepared by IRS attorneys analyz-
ing expected legal challenges to the agency’s proposed
system of statistical sampling were prepared because of
anticipated litigation that might result from adoption of
the program and were therefore protected work product.
In both of these cases, the very subject of the legal
memoranda was the prospect of litigation. Therefore, the
courts found that the memoranda would not have been
prepared irrespective of the prospect of litigation. The
present case, however, does not involve an attorney’s
legal analysis of potential claims that might result from
the termination of the four union officials. Hindman’s
interview notes were prepared during an investigation
undertaken for the purpose of determining the facts nec-
essary for the Respondent to make a decision regarding
appropriate corrective action; therefore, the notes would
have been prepared irrespective of the prospect of litiga-
tion that might later develop as a result of making that
business decision.5
In conclusion, the record evidence does not support the
majority’s conclusion that Hindman’s interview notes
were prepared in anticipation of litigation. To the con-

4 The Second Circuit rejected the Fifth Circuit’s “primary purpose”
test, explaining that, under this test, the subject legal analysis would not
constitute protected work product because it was prepared primarily for
a business purpose, i.e., to aid the company’s decision whether to un-
dertake the contemplated merger, rather than for the primary purpose of
aiding in anticipated litigation.
5 The majority notes that the General Counsel did not challenge the
Respondent’s refusal, on attorney-client privilege grounds, to provide
the Union with Hindman’s summary report, and then adds: “And yet,
the refusal to supply the notes, the very basis for the report, is the sub-
ject of the instant 8(a)(5) attack.” While not entirely clear, the major-
ity’s implied point seems to be that if Hindman’s report is privileged,
the notes used to prepare that report necessarily must be work product.
But that conclusion does not follow. The attorney-client privilege
protects confidential communications between clients and their attor-
neys when the communications are for the purpose of securing legal
advice. In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984).
Whether a communication is attorney-client privileged has no relation
whatsoever to whether that communication was made in anticipation of
litigation. Thus, assuming Hindman’s report was privileged, that would
have absolutely no bearing on whether the notes upon which the report
was based were prepared in anticipation of litigation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
trary, the record testimony establishes that Hindman’s
interview notes were prepared during an investigation
that was conducted in the ordinary course of business for
the nonlitigation purpose of determining whether the four
union officers had engaged in the alleged misconduct so
that the Respondent could make a business decision—
whether to terminate their employment. Thus, the Re-
spondent failed to meet its burden of proving that Hind-
man’s notes were prepared in anticipation of litigation.
Accordingly, the Respondent violated Section 8(a)(5) by
failing to produce the requested notes to the Union.6
Jamal Allan, Esq. and Olivia Garcia, Esq., for the General
Counsel.
Anthony R. Byergo, Esq., of Overland Park, Kansas, for the
Respondent.
Ricardo Garcia, Esq. (David Van Os & Associates), of San
Antonio, Texas, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on November 7, 2002, in San Antonio, Texas. After the
parties rested, I heard oral argument, and on November 8, 2002,
issued a bench decision pursuant to Section 102.35(a)(1) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1 The conclusions of law and recommended Order
provisions are set forth below.

6 The Respondent also argues that Hindman’s notes are protected
from disclosure under the attorney-client privilege and the Board’s
Anheuser-Busch doctrine. Neither theory is applicable. The attorney-
client privilege protects only confidential communications between
clients and their attorneys when the communications are for the purpose
of securing legal advice. See In re Sealed Case, 737 F.2d at 98–99. As
the judge noted, Hindman is not an attorney, or employed by legal
counsel. Thus, her notes documenting communications with the inter-
viewed employees are not subject to the attorney-client privilege. In
Anheuser-Busch, Inc., 237 NLRB 982 (1978), the Board held that an
employer was not obligated to turn over to the union “witness state-
ments” which were otherwise relevant and necessary to enable the
union to evaluate the merits of a grievance. The Board modified its
Anheuser-Busch decision in New Jersey Bell Telephone Co., 300
NLRB 42 (1990), by concluding that in order for a statement to consti-
tute an excludable “witness statement,” the witness must have adopted
the statement. Because the witnesses in that case did not review the
statements taken by the employer, and did not in any manner adopt
them, the statements were not protected from disclosure under An-
heuser-Busch. Here, it is uncontested that the witnesses never reviewed
or adopted Hindman’s notes. Therefore, the notes are outside the scope
of the protection given to witness statements.
1 The bench decision appears in uncorrected form at pp. 222–231 of
the transcript. The final version, after correction of oral and transcrip-
tional errors, is attached as appendix A to this certification. On Novem-
ber 7, 2002, after the General Counsel had rested, Respondent moved to
dismiss the complaint. I granted that motion in part and denied it in
CONCLUSIONS OF LAW
1. The Respondent, Sprint Communications d/b/a Central
Telephone Company of Texas, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Charging Party, Communications Workers of Amer-
ica, Local 6164, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act in any manner al-
leged in the order consolidating cases, consolidated complaint,
and notice of hearing (the complaint).
On the findings of fact and conclusions of law, and on the
entire record in this case, I issue the following recommended.2
ORDER
The complaint is dismissed.
APPENDIX A
BENCH DECISION
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. In this
case, the General Counsel alleges that Respondent unlawfully
refused to provide the Union with the notes of an investigation
it conducted concerning activities which led to the discharge of
four employees. Concluding that the attorney work product
doctrine privileges these notes from disclosure, I recommend
that the Complaint be dismissed.
Procedural History
This case began on March 15, 2002, when the Charging
Party filed its initial charge in Case 16–CA–21792–2. On April
16, 2002, the Charging Party filed its initial charge in Case 16–
CA–21858. On about June 28, 2002, after an investigation, the
Regional Director of Region 16 of the National Labor Relations
Board issued a Complaint and Notice of Hearing. On July 31,
2002, the Regional Director issued an “Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing,” which
I will call the “Complaint.” In issuing this complaint, the Re-
gional Director acted on behalf of the General Counsel of the
Board, whom I will refer to as the “General Counsel” or as the
“government.”
Hearing opened before me in San Antonio, Texas, on No-
vember 7, 2002. On that day, after the General Counsel rested,
Respondent moved to dismiss the Complaint. After considering
the arguments of counsel, I partially granted that motion. Spe-
cifically, I dismissed the allegations raised by paragraphs 9(b),
11(b) and 12 of the Complaint. I denied the motion with respect
to the allegations raised by paragraphs 9(a) and 11(a) of the
Complaint.

part. My ruling on that motion appears in uncorrected form at pp. 173–
181 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as appendix B to this certification.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
CENTRAL TELEPHONE CO. OF TEXAS 997
Respondent then presented evidence concerning these allega-
tions. At the conclusion of Respondent’s evidence, on Novem-
ber 7, 2002, all parties presented oral argument. Today, No-
vember 8, 2002, I am issuing this bench decision.
Admitted Allegations
Based on the admissions in Respondent’s Answer, I find that
the charges were filed and served as alleged.
Further, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act, and that Employee Relations Manager Bill Stubbs and
Employee Relations Specialist Laura Hindman are its supervi-
sors and agents within the meaning of Sections 2(11) and 2(13)
of the Act, respectively.
Additionally, based on Respondent’s admissions, I find that
the Charging Party is a labor organization within the meaning
of Section 2(5) of the Act and, at all material times, has been
the exclusive bargaining representative, pursuant to Section
9(a) of the Act, of a unit of Respondent’s employees.
Moreover, I conclude that the unit represented by the Union,
described in Complaint paragraph 6, is an appropriate unit for
collective bargaining within the meaning of Section 9(b) of the
Act.
Disputed Issues
Although certain legal issues are in dispute, this case is
rather unusual because there are no credibility conflicts to re-
solve. The testimony of one witness does not contradict that of
another. In describing the facts, I rely largely on the testimony
of Laura Hindman, whom I credit based upon my observations
while she testified.
Uncontradicted evidence establishes that Respondent dis-
charged four employees, all of whom were officers of the Un-
ion. These include Union president Glenda Turnbo. Addition-
ally, it is undisputed that Hindman, a staff member in Respon-
dent’s human resources department and an admitted supervisor
and agent of Respondent, conducted an investigation before
Respondent imposed this discipline.
In this investigation, Hindman interviewed the employees
who were later discharged, as well as others, including both
rank-and-file employees and members of management. She
credibly testified, and I find, that an attorney in Respondent’s
legal department directed her to conduct the investigation, and
that she reported the results of this investigation to this lawyer.
Respondent does not deny that by letter dated January 23,
2002, the Union requested that Respondent furnish it with a
copy of the investigator’s notes. Additionally, Respondent
admits that it did not provide these notes. Rather, it denied the
Union’s request on the grounds that the notes were privileged
from disclosure. Specifically, in a February 11, 2002 letter to a
Union representative, an attorney in Respondent’s law depart-
ment stated, in part, as follows:
Please note that Sprint considers these documents protected
by the Attorney/Client Privilege and Work Product Doctrine.
Consequently, Sprint is not obligated to provide you with in-
formation of this nature.
At hearing, the Respondent also asserted that the notes in
question were protected from disclosure by the Board’s An-
heuser-Busch, Inc. [237 NLRB 982 (1978)] doctrine, under
which an employer is not required to furnish a union with wit-
ness statements. Respondent argues that the investigator’s notes
serve the same function as witness statements because they
memorialize what a witness stated. Therefore, Respondent con-
tends, they deserve the same protection from disclosure.
It is not necessary for me to determine whether the attorney-
client privilege or the Anheuser-Busch doctrine should apply
because I conclude that the attorney work-product doctrine
privileges the requested notes from disclosure.
As the name implies, the attorney-client privilege shields
from disclosure communications between a lawyer and a client.
Its application here would raise questions because Hindman is
not an attorney. She testified that she is not admitted to practice
law.
Moreover, Hindman interviewed a number of individuals
who are rank and file employees, and not part of Respondent’s
management. The attorney-client privilege would not apply to
such interviews because these individuals are not a client of the
attorney for whom she was conducting the investigation. In-
deed, some of them, namely the employees whom Respondent
later discharged, would be adverse parties in any litigation aris-
ing from the termination of their employment.
The attorney work product doctrine may apply even when
the attorney-client privilege does not. The Supreme Court rec-
ognized the work product privilege in Hickman v. Taylor, 329
U.S. 495 (1947). In that case the Court rejected “an attempt,
without purported necessity or justification, to secure written
statements, private memoranda and personal recollections pre-
pared or formed by an adverse party’s counsel in the course of
his legal duties.”
The work product doctrine may also apply to work per-
formed at a lawyer’s direction and under the lawyer’s supervi-
sion. For example, an attorney may hire a private investigator
to ascertain the facts relevant to a particular case. If the lawyer
had done the investigating himself, his notes would be pro-
tected by the work product doctrine, and it is logical that an
investigation performed by an assistant would enjoy a similar
privilege.
The General Counsel contends that for the notes of a law-
yer’s investigator to fall within the attorney work product doc-
trine, the investigation must be conducted in anticipation of
litigation. Respondent answers that the investigation in this case
certainly comes within the meaning of the phrase “in anticipa-
tion of litigation” because the discharge of four union officers
at one time almost certainly would result in an unfair labor
practice complaint or some other kind of litigation. However,
the present record establishes that Hindman conducted the in-
vestigation before Respondent made the decision to discharge
the four individuals. Indeed, the purpose of the investigation
was to allow the Respondent’s lawyer to give advice to the
management officials who would decide whether to take disci-
plinary action. Such advice presumably would include the law-
yer’s opinion regarding whether disciplinary action would vio-
late the National Labor Relations Act.
It would be more appropriate to call the investigation one
taken “in prevention of litigation” than one “in anticipation of
litigation.” However, I do not believe that this distinction
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD998
makes the attorney work-product doctrine inapplicable. One of
the most important functions of a lawyer - some would argue
that it is the very most important function - is to give a client
advice on how to comply with the law.
By counseling a client not to take an action which the attor-
ney concludes is illegal, the lawyer furthers the purpose of the
law and prevents the harm to society which a violation of the
law would produce. An attorney cannot perform this beneficial
function well without knowing all of the facts.
In doing such fact finding, the lawyer must, to some extent,
assess the credibility of the various witnesses. Otherwise, the
attorney will not be able to determine which witnesses are giv-
ing information most faithful to the truth. The attorney work
product doctrine certainly protects a lawyer’s own mental im-
pressions from disclosure.
In this case the investigator testified that her notes included
comments based on her observations of the witnesses. Thus, as
the “eyes and ears” of the attorney, she was providing the law-
yer with the sort of information which would fall within the
work product doctrine.
When Respondent decided that it needed legal advice before
taking disciplinary action, it had at least two alternatives. It
could use an attorney employed in its own law department, or it
could go to an outside law firm. If it had gone to an outside law
firm, an attorney in that firm might have retained a private in-
vestigator to perform the investigation which Hindman actually
conducted.
If a private investigator, acting under the direction of an out-
side lawyer, had conducted the investigation, I have little doubt
that the investigator’s notes would be protected by the work
product doctrine. Should the result be different because the
lawyer and investigator were full-time employees of Respon-
dent?
Although Hindman previously had worked as a paralegal in
Respondent’s law department, she was, at the time of the inves-
tigation, working in the human resources department as an
employment relations specialist. In conducting the investiga-
tion, however, she reported to a lawyer in the law department.
An in-house attorney performs essentially the same function,
and is accountable to the judicial process under the same ethical
standards as an attorney in an outside law firm. There is no
logical reason to distinguish between a private investigator
hired by an outside attorney, and a full-time employee “depu-
tized” or “conscripted,” as it were, to act as the investigator for
an in-house attorney. Therefore, I conclude that Hindman’s
notes are just as entitled to the protection of the attorney work
product privilege as would be the notes of a private investiga-
tor.
The privilege established by the attorney work product doc-
trine is not absolute. See generally, Upjohn v. United States,
449 U.S. 383 (1981). However, the General Counsel has not, in
this instance, established facts which would overcome it.
The facts in this case are different from those in National
Football League Management Council, 309 NLRB 78 (1992),
in which the Board adopted without comment a judge’s deci-
sion not to apply the work-product privilege to notes taken by
an attorney during a meeting at which the respondent’s execu-
tive committee discussed strategy for dealing with a strike. The
evidence in this case leaves no doubt that the attorney ordered
the investigation for a specific law-related purpose, namely, to
obtain facts needed to advise his client regarding compliance
with the National Labor Relations Act. Therefore, the National
Football League Management Council case should be distin-
guished.
The General Counsel suggests that Respondent had a duty to
provide the Union at the least with a redacted version of its
notes. However, I do not believe that redaction would be a
practical way of masking the impressions and observations and
separating them from so-called “objective” facts. Merely identi-
fying the witnesses contacted by the investigator would provide
more than a clue as to the attorney’s strategy if the matter came
to litigation.
In this regard, I note that Board proceedings do not provide
for routine pre-trial discovery. The investigation obviously had
an objective of avoiding litigation before the Board, the logical
forum for a complaint that an employer had discharged union
officers unlawfully. Allowing the Union a look at the investiga-
tive notes therefore would provide a form of pretrial discovery
to which it would not otherwise be entitled.
Having concluded that the work product privilege applies, I
further conclude that Respondent did not violate the Act by
refusing to furnish the Union with the notes. Therefore, I rec-
ommend that the Complaint be dismissed.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, and Order. When that Certi-
fication is served upon the parties, the time period for filing an
appeal will begin to run.
Thank you for the great courtesy and civility demonstrated
by all counsel during this proceeding. The hearing is closed.
APPENDIX B
RULING ON RESPONDENT’S MOTION TO DISMISS
After the General Counsel rested, Respondent moved for
dismissal of the Complaint. “In ruling on a motion to dismiss”
under Board’s Rules, Section 102.24, “the Board construes the
complaint in the light most favorable to the General Counsel,
accepts all factual allegations as true, and determines whether
the General Counsel can prove any set of facts in support of his
claims that would entitle him to relief.” Detroit Newspapers,
330 NLRB No. 81, slip op. at 2 fn. 7 (2000).
The Consolidated Complaint, which I will refer to simply as
the “Complaint,” alleges that Respondent committed three
separate violations of Section 8(a)(5) of the Act. Specifically,
Complaint paragraphs 9(a) and 11(a), read together, allege that
since about December 4, 2001, Respondent has failed and re-
fused to provide to the Union its investigators’ notes pertaining
to the termination of four employees. That is the first alleged
violation.
Complaint paragraphs 9(b) and 11(b), read together, allege
that since about January 23, 2002, Respondent has failed and
refused to provide the Union letters or forms reflecting author-
izing signatures pertaining to the termination of four of Re-
spondent’s employees. That is the second alleged violation.
CENTRAL TELEPHONE CO. OF TEXAS 999
Complaint Paragraph 12 alleges that about February 1, 2002,
Respondent changed the practice of holding third step griev-
ance meetings in person. That is the third violation alleged.
The General Counsel’s evidence establishes that on Decem-
ber 4, 2001, the Union was pursuing grievances on behalf of
four employees whom Respondent had discharged. On that
date, the Union requested in writing that Respondent provide
certain specified information pertaining to those grievances.
One of the grievants was an employee named Ken Lloyd.
The Union’s December 4, 2001 information request on Lloyd’s
behalf sought, among other things, the following:
Copies of the reports of the investigation as well as any state-
ments made by Ken to the investigators, signed or unsigned.
Copies of the investigator’s notes and personal findings.
The Union requested that Respondent provide similar infor-
mation for each of the other three grievants.
It is undisputed that Respondent did provide the Union with
the witness statements requested. The Complaint does not al-
lege that Respondent violated the Act by refusing to produce
such witness statements. Rather, the controversy here concerns
Respondent’s refusal to furnish the Union with the notes taken
by its investigators.
The Union continued to pursue its information request dur-
ing the grievance procedure and, on January 23, 2002, a Union
representative sent Respondent’s employee relations manager,
Bill Stubbs, a follow-up letter listing the information sought.
On February 11, 2002, Attorney Chris R. Pace in Respondent’s
law department replied. The reply stated, in pertinent part, as
follows:
Bill Stubbs has provided me with a copy of your letter of
January 23, 2002, in which you make five enumerated re-
quests for information in connection with the terminations of
Glenda Turnbo, Ken Lloyd, Kevin Scott and Wayne Moseley.
Please note that Sprint considers these documents protected
by the Attorney/Client Privilege and Work Product Doctrine.
Consequently, Sprint is not obligated to provide you with in-
formation of this nature.
Respondent has not furnished the Union with the requested
investigators’ notes. I conclude that the requested information
is relevant and necessary for the Union to perform its grievance
representation functions. However, that does not decide the
underlying issue, namely, whether or not the information is
privileged from disclosure.
During the hearing today, Respondent argued that the attor-
ney-client and attorney work product privileges apply. If I un-
derstand Respondent’s arguments correctly, it also contends
that the Board’s Anheuser-Busch doctrine applies. Under that
doctrine, an employer does not have to provide a Union with
written statements which the employer has taken from wit-
nesses. Respondent apparently contends that because the notes
of its investigator memorialize information provided by a wit-
ness, the notes are tantamount to a written statement and should
be afforded the same protection.
The General Counsel argued, in effect, that Respondent can-
not shield the notes from disclosure under the Anheuser-Busch
doctrine because Respondent already has turned over the state-
ments themselves. However, the evidence does not disclose
whether Respondent’s investigators interviewed witnesses who
did not give written statements. Therefore, I cannot assume that
Respondent’s production of the statements of some witnesses
renders the Anheuser-Busch defense moot.
Both the attorney-client privilege and the work-product
privilege are very important, and any assertion of these privi-
leges must be considered carefully. See, e.g., Upjohn Co. v.
United States, 449 U.S. 383 (1981); Patrick Cudahy, Inc., 288
NLRB 968 (1988). At the same time, an inappropriate exten-
sion of the privileges could deny a party to a collective-
bargaining relationship the information it needs to perform its
function, and thereby make it more difficult to fulfill the goals
of the National Labor Relations Act. In these circumstances,
any ruling which applies or denies the privileges would raise
important policy issues which, ultimately, the Board must re-
solve. Therefore, it is important to develop for the Board a suf-
ficient record.
The privileges protect from disclosure not only the commu-
nication made by a client directly to the attorney, but also cer-
tain communications made to an investigator who is working
under the direction and control of the attorney. Thus, there is a
possibility that an unduly broad application of the privileges
would shield from disclosure even information which employ-
ers now routinely provide, on request, to unions representing
their employees.
At this point, the record establishes only that Respondent’s
legal department and Respondent’s human resources depart-
ment were working together concerning the grievances in ques-
tion. It does not show who directed the investigators. The re-
cord also does not reflect what individuals saw the investiga-
tors’ notes and reports.
Thus, at this point, the record does not provide enough in-
formation to reach an informed conclusion concerning the ap-
plicability of the privileges to the requested documents. There-
fore, I deny Respondent’s motion to dismiss the first of the
alleged violations.
The second alleged violation concerns the Union’s request
for information described as follows in the Union’s January 23,
2002 letter: “Any letter or form that shows authorizing signa-
ture(s).”
The General Counsel asserts that because of this information
request, Respondent had a duty to furnish the Union with a
document entitled “Personnel Action Form” for each of the four
grievants. Although Respondent ultimately provided these
documents to the Union, the General Counsel asserts that Re-
spondent’s delay in doing so constitutes a refusal to bargain in
good faith which violates Section 8(a)(5) of the Act.
Based on the evidence presented by the General Counsel, I
conclude that the “Personnel Action Form” is not a document
which falls within the Union’s information request. The Union
sought letters or forms which bore “authorizing signatures.”
Union Representative Parra’s testimony establishes that the
Union wanted documents bearing the signature of the manage-
ment official who authorized the discharge of the four griev-
ants. The Personnel Action Forms do not bear the signaures of
the official or officials authorizing these actions, and the forms
do not identify who those officials were.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
It is true that the forms do bear some signatures, namely, of a
supervisor and of someone in the human resources department.
The General Counsel has not established that these individuals
authorized the disciplinary actions being grieved.
If the Union had requested the “Personnel Action Form” for
a grievant, Respondent would have been obligated to furnish it,
because such a document, concerning a bargaining unit em-
ployee, is presumptively relevant. However, the Union’s Janu-
ary 23, 2002 letter did not request the “Personnel Action
Forms.” Moreover, it may be noted that when Respondent ulti-
mately learned that the Union did want copies of these docu-
ments, Respondent provided them.
Because the documents fall outside the scope of the January
23, 2002 information request, the Respondent’s delay in pro-
viding them did not manifest bad faith or violate Section
8(a)(5) of the Act. Therefore, I grant Respondent’s motion to
dismiss the second unfair labor practice allegation.
The third unfair labor practice allegation concerns the physi-
cal presence of an official from Respondent’s human resources
department, which has its office in Overland Park, Kansas, at
third step grievance meetings in Killeen, Texas. For financial
reasons, Respondent decided that the human resources official
would be present at the meeting by means of a telephone con-
ference call, rather than “in the flesh.” However, a management
representative from the Killeen facility did attend the grievance
meeting in person.
The evidence establishes that this indeed was a change from
past practice, when the human resources representative from
Overland Park had travelled to Texas for the meeting. The fact
that Respondent made such a change, however, does not re-
solve the underlying issue, whether the change was lawful.
Generally, an employer has a duty to bargain with the exclu-
sive representative of a unit of its employees before making a
change in wages, hours, or other working conditions, but that
duty arises only if the change is a “‘material, substantial, and a
significant’ one affecting the terms and conditions of employ-
ment of bargaining unit employees.” Millard Processing Ser-
vices, Inc., 310 NLRB 421, 425 (1993), citing Angelica Health-
care Services Group, 284 NLRB 844, 853 (1987).
The General Counsel bears the burden of establishing that
the change was material, substantial and significant. Viewing
the evidence in the light most favorable to the General Counsel,
I cannot conclude that the government has carried this burden.
The Union’s president testified that there has been one third
step grievance meeting using the conference call method. At
the first of this meeting, there were problems in that individuals
tended to interrupt each other, but the situation got better as the
meeting progressed. The fact that the participants faced an ini-
tial difficulty in using the new method does not establish that
the change was material, substantial or significant.
In some cases, a face-to-face meeting may be important. The
Board, for example, discourages its judges from taking evi-
dence from a witness over the telephone, because it believes the
judge can better assess credibility by watching the witness’s
demeanor as he or she gives testimony. On the other hand,
Board judges routinely use telephone conference calls to dis-
cuss matters relating to settlement and to legal issues in a case.
A third step grievance meeting does not involve a judge or
arbitrator’s assessment of credibility, and there is no obvious
reason why one person’s participation in that meeting by tele-
phone would materially, substantially or significantly affect the
Union’s ability to represent the grievant. Even considering the
evidence in the light most favorable to the General Counsel, I
conclude that the change in question did not have any such
material, substantial or significant effect. Therefore, I grant
Respondent’s motion to dismiss the third unfair labor practice
allegation.
PROCEEDINGS
10:00 a.m.
THE COURT: On the record.
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. In this
case, the General Counsel alleges that Respondent unlawfully
refused to provide the Union with the notes of an investigation
Respondent conducting concerning activities which led to the
discharge of four employees.
Concluding that the attorney work product doctrine privi-
leges these notes from disclosure, I recommend that the com-
plaint be dismissed.
Procedural history: This case began on March 15, 2002,
when the Charging Party filed its initial charge in case 16–CA–
21797–2. On April 16, 2002, the Charging Party filed its initial
charge in case 16–CA–21858. On about June 28, 2002, after an
investigation, the Regional Director of Region 16 of the Na-
tional Labor Relations Board issued a complaint and notice of
hearing. On July 31, 2002, the Regional Director issued an
order consolidating cases, consolidated complaint, and notice of
hearing, which I will call the complaint.
In issuing this complaint, the Regional Director acted on be-
half of the General Counsel of the Board, whom I will refer to
as the General Counsel or as the Government.
Hearing opened before me in San Antonio, Texas on No-
vember 7, 2002. On that date, after the General Counsel rested,
Respondent moved to dismiss the complaint. After considering
the arguments of Counsel, I partially granted that motion. Spe-
cifically, I dismissed the allegations raised by paragraphs 9(b),
11(b), and 12 of the complaint. I denied the motion with respect
to the allegations raised by paragraphs 9(a) and 11(a) of the
complaint.
Respondent then presented evidence concerning these allega-
tions. At the conclusion of Respondent’s evidence on Novem-
ber 7, 2002, all parties presented oral argument. Today, No-
vember 8, 2002, I am issuing this bench decision.
Admitted allegations: Based on the admissions in Respon-
dent’s answer, I find that the charges were filed and served as
alleged. Further, I find that Respondent is an employer engaged
in commerce within the meaning of Section 2.2(6) and (7) of
the Act, and that employee relations manager Bill Stubbs and
employee relations specialist Laura Hindman are supervisors
and agents within the meaning of Sections 2.11 and 2.13 of the
Act respectively.
Additionally, based on Respondent’s admissions, I find that
the Charging Party is a labor organization within the meaning
of Section 2.5 of the Act, and at all material times, has been the
CENTRAL TELEPHONE CO. OF TEXAS 1001
exclusive bargaining representative pursuant to Section 9(a) of
the Act of the unit of Respondent’s employees.
Moreover, I conclude that the unit represented by the Union
described in complaint paragraph 6 is an appropriate unit for
collective bargaining within the meaning of Section 9(b) of the
Act.
Disputed issues: Although certain legal issues are in dispute,
this case is rather unusual because there are no credibility con-
flicts to resolve. The testimony of one witness does not contra-
dict that of another. In describing the facts, I rely largely on the
testimony of Laura Hindman, whom I credit based upon my
observations while she testified.
Uncontradicted evidence establishes that Respondent dis-
charged four employees, all of whom were officers of the Un-
ion. These include the union president, Linda Turnbo. Addi-
tionally, it is undisputed that Hindman, a staff member in Re-
spondent’s human resources department and an admitted super-
visor and agent to Respondent, conducted an investigation be-
fore Respondent imposed this discipline.
In this investigation, Hindman interviewed the employees
who were later discharged as well as others, including both
rank and file employees and members of management. She
credibly testified, and I find that an attorney in Respondent’s
legal department directed her to conduct the investigation, and
that she reported the results of this investigation to this lawyer.
Respondent does not deny that by letter dated January 23,
2002, the Union requested that Respondent furnish it with the
copy of the investigator’s notes. Additionally, Respondent ad-
mits that it did not provide these notes. Rather, it denied the
Union’s request on the grounds that the notes were privileged
from disclosure. Specifically, in a February 11, 2002 letter to a
Union representative, an attorney in Respondent’s law depart-
ment stated in part as follows:
“Please note that Sprint considers these documents protected
by the attorney/client privilege and work product doctrine.
Consequently, Sprint is not obligated to provide you with in-
formation of this nature.”
At hearing, the Respondent also asserted that the notes in
question were protected from disclosure by the Board’s An-
heuser-Busch doctrine, under which an employer is not re-
quired to furnish a union with witness statements.
Respondent’s argues that the investigator’s notes served the
same function as witness statements because they memorialize
what a witness stated. Therefore, Respondent contends they
deserve the same protection from disclosure.
It is not necessary for me to determine whether the attor-
ney/client privilege or the Anheuser-Busch doctrine should
apply, because I conclude that the attorney work product doc-
trine privileges the requested notes from disclosure. As the
name implies, the attorney/client privilege shields disclosure --
shields from disclosure communications between a lawyer and
a client.
It’s application here would raise questions because Hindman
is not an attorney. She testified that she is not admitted to prac-
tice law. Moreover, Hindman interviewed a number of indi-
viduals who are rank and file employees and not part of Re-
spondent’s management. The attorney/client privilege would
not apply to such interviews, because these individuals are not a
client of the attorney for whom she was conducting the investi-
gation. Indeed, some of them, namely the employees whom
Respondent later discharged would be adverse parties in any
litigation arising from the termination of their employment.
The attorney/work product doctrine may apply even when
the attorney/client privilege does not. The Supreme Court rec-
ognized the work product privilege in “Hickman v. Taylor,”
329 US 495, 1947. In that case, the court rejected “an attempt
without purported necessity or justification to secure written
statements, private memoranda, and personal recollections
prepared or formed by an adverve party’s counsel in the course
of its legal duties.”
The work product doctrine may also apply to work per-
formed at a lawyer’s direction and under the lawyer’s supervi-
sion. For example, an attorney may hire a private investigator
to ascertain the facts relevant to a particular case. If the lawyer
had done the investigating himself, his notes would be pro-
tected by the work product doctrine, and it is logical that an
investigation performed by an assistant would enjoy a similar
privilege.
The General Counsel contends that for the notes of a law-
yer’s investigator to fall within the work product doctrine, the
investigation must be conducted in anticipation of litigation.
Respondent answers that the investigation in this case certainly
comes within the meaning of the phrase “in anticipation of
litigation” because the discharge of four union officers at one
time almost certainly would result in an unfair labor practice
complaint or some other kind of litigation.
However, the present record establishes that Hindman con-
ducted the investigation before Respondent made the decision
to discharge the four individuals. Indeed, the purpose of the
investigation was to allow the Respondent’s lawyer to give
advice to the management officials who would decide whether
to take disciplinary action. Such advice presumably would in-
clude the lawyer’s opinion regarding whether disciplinary ac-
tion would violation the National Labor Relations Act.
It would be more appropriate to call the investigation one
taken in prevention of litigation than one in anticipation of
litigation. However, I do not believe that this distinction makes
the attorney work product doctrine inapplicable.
One of the most important functions of a lawyer, some
would argue that it is the very most important function, is to
give a client advice on how to comply with the law. By coun-
seling a client not to take an action which the attorney con-
cludes is illegal, the lawyer furthers the purpose of the law and
prevents the harm to society which a violation of the law would
produce. An attorney cannot perform this beneficial function
well without knowing all the facts.
In doing such fact-finding, the lawyer must, to some extent,
assess the credibility of the various witnesses. Otherwise, the
attorney will not be able to determine which witnesses are giv-
ing information most faithful to the truth. The attorney work
product doctrine certainly protects a lawyer’s own mental im-
pressions from disclosure.
In this case, the investigator testified that her notes included
comments based on her observations of the witnesses. Thus as
the eyes and ears of the attorney, she was providing the lawyer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1002
with the sort of information which would fall within the work
product doctrine.
When Respondent decided that it needed legal advice before
taking disciplinary action, it had at least two alternatives. It
could use an attorney employed in its own law department, or it
could go to an outside law firm.
If it had gone to an outside law firm, an attorney in that firm
might have retained a private investigator to perform the inves-
tigation which Hindman actually conducted. If a private inves-
tigator, acting under the direction of an outside lawyer, have—
had conducted the investigation, I have little doubt that the
investigator’s notes would be protected by the work product
doctrine, should the result be different because the lawyer and
investigator were full-time employees of Respondent.
Although Hindman previously had worked as a paralegal in
Respondent’s law department, she was, at the time of the inves-
tigation, working in the human resources department as an
employment relations specialist. In conducting the investiga-
tion, however, she reported to a lawyer in the law department.
An in-house attorney performs essentially the same function
and is accountable to the judicial process under the same ethical
standards as an attorney in an outside law firm. There is no
logical reason to distinguish between a private investigator
hired by an outside lawyer and a full-time employee deputized
or conscripted, as it were, to act as the investigator for an in-
house attorney. Therefore, I conclude that Hindman’s notes are
just as entitled to the protection of the attorney work product
privilege as would be the notes of a private investigator.
The privilege established by the attorney work product doc-
trine is not absolute. See generally “Upjohn v. United States,”
449 US 383, 1981. However, the General Counsel has not, in
this instance, established facts which would overcome it.
The facts in this case are different from those in “National
Football League Management Counsel,” 309 NLRB 78, 1992,
in which the Board adopted without comment a judge’s deci-
sion not to apply the work product privilege to notes taken by
an attorney during a meeting at which the Respondent’s execu-
tive committee discussed strategy for dealing with a strike.
The evidence in this case leaves no doubt that an—that the
attorney ordered the investigation for a specific law-related
purpose, namely, to obtain facts needed to advise its client re-
garding compliance with the National Labor Relations Act.
Therefore, the National Football League Management Counsel
case should be distinguished.
The General Counsel suggests that Respondent had a duty to
provide the Union at least—at the least with a redacted version
of its notes. However, I do not believe that redaction would be
a practical way of masking the impressions and observations
from so-called objective facts. Merely identifying the witnesses
contacted by the investigator would provide more than a clue as
to the attorney’s strategy if the matter came to litigation.
In this regard, I note that Board proceedings to not provide
for routine pre-trial discovery. The investigation obviously had
an objective of avoiding litigation before the Board, the logical
forum for a complaint that an employer had discharged union
officers unlawfully. Allowing the Union a look at the investiga-
tive notes, therefore, would provide a form of pre-trial discov-
ery to which it would not otherwise be entitled.
Having concluded that the work product privilege applies, I
further conclude that Respondent did not violate the Act by
refusing to furnish the Union with the notes. Therefore, I rec-
ommend that the complaint be dismissed.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
certification also will include provisions relating to the findings
of fact, conclusions of law and order. When that certification is
served upon the parties, the time period for filing an appeal will
begin to run.
Thank you for the great courtesy and civility demonstrated
by all counsel during this proceeding.
The hearing is closed.
(Whereupon, the proceedings were concluded at 10:15 a.m.,
November 8, 2002.)
CERTIFICATE
This is to certify that the attached proceedings before the Na-
tional Labor Relations Board, Region 16, Case Name: Sprint
Communications dba Central Telephone Company of Texas
Case No.: 16–CA–21972–2 and 16–CA–21858 Location: San
Antonio, Texas Date Held: November 8, 2002 was held accord-
ing to the record, and that this is the original, complete, and true
and accurate transcript that has been compared to the reporting
or recording, accomplished at the hearing, that the exhibit files
have been checked for completeness and no exhibits received in
evidence or in the rejected exhibit files are missing, unless oth-
erwise stated.