David R. Webb Co.

National Labor Relations Board - Board Decisions

Jul 7, 1993

311 N.L.R.B. 1135 (N.L.R.B. 1993)

1135
311 NLRB No. 130
DAVID R. WEBB CO.
1 291 NLRB 236. The Board found that the Respondent violated
Sec. 8(a)(1) and (3) of the Act by terminating the employment status
and preferential recall rights of three employees.
2 By an unpublished Board Order dated June 25, 1993, the parties
were advised that the Respondent’s request for special permission to
appeal the Regional Director’s denial of request to take depositions
and motion to stay had been denied and that a published decision
would follow.
3 We therefore clarify the Order of June 25 to say that the appeal
is denied on its merits.
4 CHM (Part Three) Compliance Proceedings, sec. 10733.
David R. Webb Co., Inc. and Eugene McGaha. Case
25–CA–18553
July 7, 1993
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
A controversy having arisen over the amount of
backpay due the discriminatees under the terms of the
Decision and Order1 issued by the National Labor Re-
lations Board on September 30, 1988, the Regional Di-
rector for Region 25 issued a backpay specification
and notice of hearing alleging the amount of backpay
due.
A hearing in the above matter was scheduled for
June 28, 1993. On May 10, 1993, the Respondent filed
with the Regional Director identical applications to
take deposition with respect to each of the three
discriminatees. In support of its applications to depose,
the Respondent’s counsel alleged before the Regional
Director that the Respondent has no way of obtaining
information with regard to matters necessary for the
preparation of its case and to meet its burden of proof,
that it must first obtain the information from the
discriminatees by deposition, and then verify such in-
formation by reviewing employment records.
By letter dated May 20, 1993, the Regional Director
denied the request to depose, contending that the em-
ployees are just as accessible to the Respondent for
interviews as they are to the General Counsel and that
evidence concerning the employees’ search for interim
employment and interim earnings had already been
provided.
On May 28, 1993, the Respondent filed a request for
special permission to appeal the Regional Director’s
denial of request to take deposition and a motion to
stay hearing. In its appeal the Respondent contends
that testimony is needed before the hearing so that the
Respondent can verify the information given, that
interviews with the employees ‘‘are not evidence taken
under oath,’’ that a backpay proceeding differs from a
hearing on the merits in that the Respondent has the
burden of disproving the specification and that the
NLRB Casehandling Manual (CHM sec. 10733) pro-
vides that a ‘‘more liberal attitude toward depositions
should be shown’’ by the General Counsel, that the in-
formation supplied by the Region was ‘‘self-serving
statements of the individuals themselves,’’ that the Re-
gional Director’s decision contravenes the Board’s pro-
cedures in regard to permitting discovery in backpay
proceedings, and that the Regional Director’s denial of
the requests to depose is erroneous. The Respondent
moves the Board to grant the appeal, reverse the Re-
gional Director, and order that depositions be taken,
and that the hearing be stayed until the discriminatees
have been deposed and the Respondent has an oppor-
tunity to review and use the depositions.2
The General Counsel filed an opposition to the Re-
spondent’s request, arguing that the Respondent’s rea-
sons do not reveal any extraordinary circumstances
why deposing the discriminatees is necessary, and that
subject matters which form the ultimate issues must be
conducted in the presence of the factfinder subject to
the administrative law judge’s credibility findings. The
General Counsel further argues that the General Coun-
sel has already provided the Respondent with the same
information which the Respondent seeks through depo-
sitions, i.e., interim earnings, search for employment,
and availability for work, that the Respondent will
have ample opportunity to cross-examine the
discriminatees if they are called to testify or to call
these individuals as their own witnesses, and absent
any showing that the Respondent has been unable to
contact the discriminatees, the Respondent has failed to
demonstrate good cause for taking depositions.
The Respondent seeks special permission to appeal
the Regional Director’s denial of its request for per-
mission to take depositions of the three discriminatees
in this case and for stay of the compliance hearing
pending the taking of such depositions. We grant the
request for permission to appeal and affirm the Re-
gional Director.3
Even in compliance proceedings, the Board does not
in ordinary circumstances permit prehearing discovery
such as depositions. December 12, Inc., 282 NLRB
475 at fn. 1 (1986); Flite Chief, Inc., 258 NLRB 1124,
1125 (1981), enfd. mem. 696 F.2d 1003 (9th Cir.
1982). As those cases suggest, the General Counsel is
correct in stating that, read in context, the reference in
the Casehandling Manual to ‘‘a more liberal attitude
toward depositions’’ clearly concerns special cir-
cumstances in which witnesses are distant or otherwise
difficult to reach.4 The grounds for the Respondent’s
request here could apply to virtually any backpay pro-
ceeding. To accept them as good cause for granting an
exception to our normal procedures would be to make
prehearing discovery routinely available in such pro-
ceedings. Neither the constitution nor any statute re-
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See, e.g., Kenrich Petrochemicals v. NLRB, 893 F.2d 1468,
1484–1485 (3d Cir. 1990). 1 CHM sec. 10733.
quires making such discovery routinely available.5
Even granting that some advantages may be gained
from prehearing discovery, the fact remains that it can
be productive of delay, offering, as it does, abundant
opportunities for collateral disputes. The tradeoff re-
flected in the Board’s long-established policies is not
unreasonable, and we see no reason for abandoning
those policies now. Accordingly, we find that the Re-
gional Director did not abuse her discretion, and we
affirm her denial of the Respondent’s request for per-
mission to take depositions and postpone the hearing.
MEMBER RAUDABAUGH, dissenting.
I would grant permission to appeal and I would have
a full reexaminination of extant policies in this area.
The Respondent asked to depose the discriminatees in
this compliance proceeding. In such a proceeding, un-
like the initial unfair labor practice proceeding, the Re-
spondent bears the burden of proof. In addition, the
NLRB Casehandling Manual (CHM sec. 10733), al-
though not binding law, prudently suggests that, in
compliance proceedings, ‘‘a more liberal attitude
should be displayed toward depositions [of
discriminatees].’’1 Such depositions may well provide
a faster and fairer means of resolving compliance
issues, and indeed may obviate the necessity for a
hearing. Finally, the time for dealing with the Re-
spondent’s request is now, not in the exceptions proc-
ess after the hearing has been held.
The Respondent’s basis for the request is to verify,
prior to any hearing, information supplied by the
discriminatees relevant to their claim. Such verification
can serve to narrow the issues in a hearing or to elimi-
nate entirely the necessity for a hearing. If there is a
hearing, the depositions may be used for cross-exam-
ination, a proven method of arriving at truth.
Weighing against these advantages, my colleagues
contend that such depositions ‘‘can be productive of
delay.’’ They are careful to avoid the unsupported con-
tention that depositions, confined to backpay hearings,
will necessarily have that result. Surely, the Board
could impose clear limitations, including time limita-
tions, on such depositions. Finally, and most impor-
tantly, I am only suggesting here that the Board con-
sider the matter or initiate a field experiment, rather
than reject it out-of-hand.