Guess?, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 432 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
Guess?, Inc. and Union of Needletrades, Industrial &
Textile Employees, AFL–CIO. Case 21–CA–
33132
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The issue presented in this proceeding is whether the
Respondent violated Section 8(a)(1) of the Act by asking
employee Maria Perez, during a deposition in a workers’
compensation case, for the names of employees who
attended union meetings. The judge found that the Re-
spondent did not violate the Act because the questions
were relevant to the Respondent’s defense in the work-
ers’ compensation case, and because the Respondent did
not have an illegal objective under the Act in asking
these questions. Contrary to the administrative law judge,
and for the reasons set forth below, we find that the Re-
spondent’s questioning of Perez violated Section
8(a)(1).1
Relevant Facts
Employee Maria Perez filed a workers’ compensation
claim against the Respondent relating to injuries she sus-
tained to her hand and shoulder. Dennis Hershewe
served as the Respondent’s attorney in that proceeding.2
On August 20, 1998, during the Respondent’s deposition
of Perez, Hershewe questioned Perez about her activities
at the union hall.3 Hershewe asked Perez how many
hours a week she spent at the union hall, and what kind
of activities she engaged in at the hall. Perez responded
that she spent a couple of hours a week at the union hall

1 On July 6, 2000, Administrative Law Judge Michael A. Mar-
cionese issued the attached decision. The General Counsel filed excep-
tions and a supporting brief. The Respondent filed cross-exceptions and
an answering brief to the General Counsel’s exceptions.
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 only to the extent consistent with this Deci-
sion and Order.
2 The parties stipulated that Hershewe, the attorney for the Respon-
dent’s workers’ compensation insurance carrier, was an agent of the
Respondent within the meaning of Sec. 2(13) of Act.
3 Prior to asking Perez for the identities of employees at the union
hall, Hershewe asked Perez whether she had viewed a film showing her
engaging in certain physical activities such as driving a car. Perez re-
plied that she had viewed the film with the “union attorneys.” Her-
shewe then asked Perez whether the union attorneys had represented
her in any matter, and Perez replied that one of the union attorneys had
filed a grievance for her in the past. Hershewe then asked Perez
whether she was a member of the Union, and followed up with the
questions about her union activities.
attending meetings with her coworkers. Hershewe asked
Perez how many of her coworkers attended the union
meetings, and also asked Perez for the names of those
coworkers in attendance.4 Perez provided Hershewe
with the names of several employees who had attended
the meetings, and added that there were many others as
well. Perez’ attorney did not object to these questions.5
Hershewe contends that he questioned Perez about her
activities at the Union’s offices in order to discover
whether Perez sustained her injuries while performing
activities on behalf of the Union, and also to ascertain
whether Perez engaged in physical activities at the union
hall that were inconsistent with her alleged injuries.6 He
contends that he needed the names of other employees in
attendance at the union hall in order to identify potential
witnesses to testify about these matters.
4 The only questions alleged to be unlawful are those that asked the
identities of employees who were at the union hall.
5 The parties stipulated that the relevant questions are the following:
Q. How many hours a week do you go to the union hall?
A. Perhaps a couple of hours a week, perhaps.
Q. And what do you do there?
A. Just our co-workers having a meeting, its simply that.
Q. Co-workers at Guess?
A. Yes?
Q. How many are there?
A. I wouldn’t be able to say.
Q. 10? 20? 30? 40?
A. Probably 20.
Q. Who were some of them?
A. There are several.
Q. I know. Give me some names.
A. Freddy.
Q. Freddy who?
A. I don’t know what his last name is.
Q. Anyone else?
A. Mario.
Q. Who else.
A. Guadalupe.
Q. Okay. Who else?
A. Rocio.
Q. Who else?
A. There are so many.
Q. I know. Okay. Keep going. You know who they are.
A. Yes, but
Q. Just give me the names.
A. Araceli.
Q. How do you spell that?
A. A-r-a-c-e-1-i.
Q. Anybody else?
A. Amilcar.
Q. How do you spell that?
A. A-m-i-l-c-a-r.
Q. Anybody else?
A. There’s many
6 The parties jointly entered into the record the “Declaration of Den-
nis Hershewe,” and have agreed that this declaration is to be treated as
if it were testimony at a hearing before an administrative law judge.
339 NLRB No. 61
GUESS?, INC. 433
The Judge’s Findings
The judge found that Hershewe’s questioning of Perez
about the identities of employees at the union hall did not
violate Section 8(a)(1). While recognizing that an em-
ployer’s interrogation of an employee about union activi-
ties is frequently found to violate the Act, the judge also
noted that such questioning is not per se unlawful. Rely-
ing on Maritz Communications Co., 274 NLRB 200
(1985) (deposition questions about an employee’s unfair
labor practice charge and the employee’s relationship
with the union not unlawful), and Wright Electric, Inc.,
327 NLRB 1194 (1999), enfd. 200 F.3d 1162 (8th Cir.
2000) (employer’s discovery requests for union authori-
zation cards unlawful), the judge applied a two-part test
for determining whether questions propounded during
discovery in a civil proceeding, which questions pertain
to employees’ protected concerted activities, are permis-
sible. First, the judge stated that the information sought
must be relevant to the civil suit. Second, the judge stated
that assuming the matter is relevant to the civil suit, the
employer must not have an illegal objective under the
Act. Citing Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, 738 fn. 5 (1983) (State court case for unlawful
objective can be enjoined as an unfair labor practice), the
judge explained that if the Board determines that the em-
ployer had an illegal objective under the Act, the Board
has the authority to enjoin the discovery request.
Applying this standard, the judge first found that the
questions at issue were relevant to the Respondent’s de-
fense in the workers’ compensation claim. The judge
found that California Civil Procedure Code, Section
2017,7 permitted the Respondent to depose Perez about
the identities of employees who were at the Union’s of-
fices with Perez, because these employees may have wit-
nessed activities relevant to the Respondent’s defense.
The judge added that the identities of these employees
were particularly relevant because Perez offered only
limited responses to questions about her activities at the
union hall.
Having found that Hershewe’s questions were rele-
vant, the judge next considered whether the questioning
had an illegal objective. The judge began his analysis of
this factor by noting that, to date, the only Board case to
find that a discovery request in a separate civil proceed-

7 California Civil Procedure Code Sec. 2017, states that
[u]nless otherwise limited by order of the court accordance with this
article, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pend-
ing action . . ., if the matter either is itself admissible in evidence ap-
pears reasonably calculated to lead to discovery of admissible evi-
dence. Discovery be obtained of the identity and locations of persons
having knowledge of any discoverable matter. . . .
ing was violative of Section 8(a)(1) was Wright Electric,
supra, which concerned a discovery request for union
authorization cards. The judge further noted that the
Board’s rationale in Wright Electric relied on an earlier
case, National Telephone Directory Corp., 319 NLRB
420 (1995), which the judge found distinguishable.
The judge explained that National Telephone involved
an interlocutory appeal from an administrative law
judge’s ruling in an unfair labor practice proceeding. The
Board held that the respondent employer in that case was
not entitled to obtain the names of employees who signed
union authorization cards or the names of employees
who attended the union meetings where the cards were
signed, even though this information was sought for the
purpose of cross-examining a key witness about events
testified to on direct examination. The judge determined
that National Telephone was distinguishable because it
involved the identities of employees who signed authori-
zation cards. The judge additionally found that National
Telephone was not applicable here because that case
involved a Board proceeding rather than a separate civil
lawsuit.
The judge concluded that the Board is generally reluc-
tant to limit the right of a party to engage in discovery in
a civil proceeding in another forum. With this in mind,
the judge found that the Respondent had a right to en-
gage in discovery to defend itself against the workers’
compensation claim, and that the line of questioning here
did not present a clear danger that employees’ Section 7
rights would be violated. The judge, thus, determined
that the questioning did not have an illegal objective.
Having found that the questioning was relevant and that
it lacked an illegal objective, the judge concluded that the
questioning did not violate Section 8(a)(1) of the Act as
alleged.
Analysis
We disagree with the standard applied by the judge.
For the reasons set forth below, we find that the applica-
tion of the proper standard requires a finding that the
questioning violated Section 8(a)(1).
A. The Appropriate Standard
As noted above, the judge’s analysis considered only
whether the questioning was relevant and, if so, whether
it had an illegal objective. We agree that these are proper
considerations, but further analysis is required. If the
questioning is found to be both relevant and lacking an
illegal objective, the analysis must then consider whether
the Respondent’s need for the information outweighs the
employees’ rights under Section 7 of the Act. See
Wright Electric, supra, and National Telephone, supra.
In both of these cases, the Board balanced the employer’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
need for the information against the employees’ rights,
under Section 7 of the Act, to keep their union activities
confidential.
In National Telephone, supra, the Board held that an
employer in an unfair labor practice proceeding was not
entitled to obtain the names of employees who attended
union meetings and signed authorization cards, after a
careful balance of competing legitimate interests. The
Board acknowledged the employer’s legitimate need for
this information, i.e., to cross-examine a witness about
events testified to on direct examination, but ultimately
concluded that this interest was outweighed by the confi-
dentiality interests of the employees who attended union
organizing meetings and signed union authorization
cards. The Board reasoned that while the danger of em-
ployee intimidation would be severely heightened if the
names of the employees were revealed, the danger of
prejudice to the employer in those circumstances was not
as great because the employer had the opportunity to
cross-examine other witnesses who corroborated this
testimony. In addition, as part of its balance of the com-
peting interests, and in order to safeguard the employer
from any undue prejudice in that proceeding, the Board
held open the possibility that it could afford less weight
to any portions of the testimony that were immune from
a full cross-examination. 319 NLRB at 421–422.
In Wright Electric, supra, the Board applied National
Telephone to find that an employer violated Section
8(a)(1) by seeking discovery of employee authorization
cards in a separate civil proceeding. As in National
Telephone, the Board’s analysis in Wright Electric in-
cluded a balance of the competing interests. The Board
held that the employer’s attempt to discover this informa-
tion violated Section 8(a)(1) because the employer
“failed to state an interest in examining employee au-
thorization cards that outweighs the considerable confi-
dentiality interests of employees who sign cards.” 327
NLRB at 1195.
Here, the judge construed National Telephone and
Wright Electric as holding that an employer’s attempt to
discover the identities of employees who sign authoriza-
tion cards is, in essence, a per se violation of Section
8(a)(1), but that the attempt to discover the identities of
employees who attended union meetings, assuming the
discovery attempt is relevant and otherwise lacks an ille-
gal objective, does not violate the Act. We disagree with
this analysis. It fails to recognize that the Board’s deci-
sions in these cases were based on the balancing of the
respective competing interests.
In addition, the judge erroneously limited the applica-
bility of these decisions to the identities of employees
who signed authorization cards. In finding that these
cases are not relevant to discovery questions about atten-
dance at union meetings, the judge considered the atten-
dance at union meetings in National Telephone to be
incidental to the information concerning the signed au-
thorization cards, because the cards were signed at the
union meetings. However, the Board’s analysis in that
decision did not include any such language of limitation,
and specifically considered the signing of authorization
cards and the attendance at union meetings as separate
conduct. Indeed, that decision specifically referred to the
dangers of an employer’s ability to “obtain the names of
employees who signed cards or attended meetings.” 319
NLRB at 421 (emphasis added). In view of this language
in National Telephone, and in view of the Board’s reli-
ance on National Telephone in its decision in Wright
Electric, we find that both of these cases are applicable
here to the extent that they require a balancing of the
respective interests.
Accordingly, we hold that in determining whether the
Respondent’s deposition questions were lawful, the ap-
propriate analysis is the following three-part test. First,
the questioning must be relevant. Second, if the question-
ing is relevant, it must not have an illegal objective.
Third, if the questioning is relevant and does not have an
illegal objective, the employer’s interest in obtaining this
information must outweigh the employees’ confidential-
ity interests under Section 7 of the Act.
B. Application of the Standard
As noted above, the first two parts of this analysis con-
sist of the same two questions asked by the judge, i.e.,
was the Respondent’s questioning relevant, and if so, did
the questioning have an illegal objective. Finding the
questioning relevant and lacking an illegal objective, the
judge answered both questions in the Respondent’s fa-
vor. We find, however, that it is unnecessary to address
these questions. Assuming arguendo that the questioning
was relevant and lacked an illegal objective, we find that
the questioning violates Section 8(a)(1) because, under
the third part of the analysis, the employees’ confidenti-
ality interests under Section 7 of the Act outweigh the
Respondent’s need for this information.
It is well settled that Section 7 of the Act gives em-
ployees the right to keep confidential their union activi-
ties, including their attendance at union meetings. See,
e.g., National Telephone, supra, 319 NLRB at 421. This
right to confidentiality is a substantial one, because the
willingness of employees to attend union meetings would
be severely compromised if an employer could, with
relative ease, obtain the identities of those employees.
Concededly, the employees’ confidentiality interests
may not be the same as they would be during an organiz-
ing campaign, as was the case in National Telephone.
GUESS?, INC. 435
Nevertheless, the confidentiality interests are still sub-
stantial here. Indeed, had the Respondent asked these
questions in a forum outside of the deposition, the ques-
tioning would constitute a clear violation of Section
8(a)(1). E.g., Resolute Realty Management, 297 NLRB
679, 685 (1990). We thus find that the employees’ con-
fidentiality interests are indeed significant.8
Conversely, we do not believe that the Respondent has
demonstrated that its need for this information justifies
compromising its employees’ Section 7 right to
confidentiality. While we assume that the questioning
was relevant, the relevance was only marginal.

The Respondent contends that the questioning was
necessary to determine whether there were any witnesses
that could support the Respondent’s defense in the work-
ers’ compensation case, i.e., that Perez sustained her in-
juries while performing activities on behalf of the Union,
or alternatively that she engaged in activities inconsistent
with her alleged injuries at the union hall. The deposi-
tion questions, however, were not limited to a particular
period in which Perez claimed to have been injured, and
did not inquire as to whether any of the employees had
witnessed Perez’ activities at the union hall during the
period in which she claimed to be injured. Instead, the
Respondent merely asked Perez to provide the names of
employees who have attended union meetings. Thus,
while the questioning would definitely reveal the identity
of employees who have engaged in activity protected by
Section 7 of the Act, its scope was very broad, and would
not necessarily lead to information that would be helpful
for, or relevant to, the Respondent’s workers’ compensa-
tion defense.9

8 We disagree with the dissent’s contention that the employees’ con-
fidentiality interests are somehow diminished by the fact that the ques-
tions were asked by the workers’ compensation attorney. This asser-
tion misses the point that employees are guaranteed a certain degree of
assurance that their Sec. 7 activities will be kept confidential, if they so
desire. Our colleague’s assertion also fails to recognize the possibility
that employees would choose to refrain from attending union meetings
if they knew that their employer could obtain this information through
the normal course of litigation.
9 Our dissenting colleague does not find it significant that the Re-
spondent’s questions were not limited to the names of employees who
witnessed Perez’ activities during the period of her injury. According to
the dissent, even if employees identified in the answers were not pre-
sent at the union hall during the relevant period, these employees would
lead to potential witnesses who observed Perez’ activities at the union
hall. We note, however, that the Respondent did not ask generally for
the names of people at the union hall, the Respondent only asked for
the names of its employees who were present. Thus, the Respondent’s
claim of great necessity for the identities of employees who were pre-
sent at the union hall at any time is entitled to considerable skepticism
in these circumstances because the Respondent made no attempt to
obtain the identities of any nonemployee witnesses to Perez’ activities
at the union hall.
Accordingly, because the questioning was so broad in
scope that it focused neither on the actual time period of
Perez’ injuries nor on the union meetings when Perez
was present, the Respondent’s need for the answers to
these questions is outweighed by the employees’ confi-
dentiality interests under Section 7 of the Act. Finally,
inasmuch as we have found that the Section 7 rights here
outweigh the Respondent’s discovery rights under Cali-
fornia State law, we conclude that the discovery here is
preempted under the Act.10
In sum, by asking Perez in the deposition to reveal the
identities of other employees who attended union meet-
ings, we find that the Respondent has violated Section
8(a)(1) of the Act as alleged.11
ORDER
The National Labor Relations Board orders that the
Respondent, Guess?, Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Questioning employees about the identities of em-
ployees who attend union meetings.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the Act.
(a) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the no-
tice marked “Appendix.”12 Copies of the notice, on forms
provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
10 Where the importance of the Sec. 7 rights that would be compro-
mised by a discovery request outweighs the interests that would be
served by the discovery request, the discovery is preempted by the Act.
See Wright Electric, Inc., 327 NLRB at 1195, citing Bill Johnson’s
Restaurants, 461 U.S. at 738 fn. 5.
11 We also find no merit to the Respondent’s contention that Perez
waived any confidentiality rights that existed under Sec. 7 of the Act. In
particular, we find insignificant the fact that Perez’ attorney did not
object to the questioning at issue. Perez’ attorney was acting to protect
Perez’ interests in the workers’ compensation case; he was not acting to
protect the Sec. 7 confidentiality interests of the employees who at-
tended the union meetings. Consequently, the failure by her attorney to
raise an objection at the deposition does not raise an issue of waiver
here.
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
dent to insure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent and former employees employed by the Respondent
at any time since August 20, 1998.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues, I agree with the administra-
tive law judge that the Respondent did not violate Sec-
tion 8(a)(1) of the Act by asking employee Maria Perez,
at a deposition in a workers’ compensation case brought
by Perez, for the names of employees who attended un-
ion meetings.
The facts are not in dispute. Employee Perez brought
a workers’ compensation case against the Respondent.
She alleged that she sustained injuries while working for
the Respondent, and was unable to work for a certain
period. The Respondent’s defense to Perez’ claim in-
cluded two matters. First, the Respondent claimed that
Perez engaged in activities, at the union hall, which were
inconsistent with her claimed injury. Second, the Re-
spondent claimed that Perez did not sustain her injuries
while at work, but rather sustained them while engaging
in activities at the union hall.
In pursuing these defenses, the Respondent’s insurance
counsel asked Perez about her activities at the union hall.
In addition, counsel asked for the names of other persons
who may have worked with Perez at the union hall, and
who may have therefore observed Perez at the union hall.
I find, contrary to my colleagues’ contention, that the
Respondent’s questions did not violate Section 8(a)(1).
As an initial matter, I agree with the judge that rele-
vance has been shown. The applicable statute, the Cali-
fornia Civil Procedure Code, Section 2017, provides as
follows:

Unless otherwise limited by order of the court in accor-
dance with this article, any party may obtain discovery
regarding any matter, not privileged, that is relevant to
the subject matter involved in the pending action . . ., if
the matter either is itself admissible in evidence or ap-
pears reasonably calculated to lead to discovery of ad-
missible evidence. Discovery may be obtained of the
identity and locations of persons having knowledge of
any discoverable matter. . . .

Further, California’s Civil Procedure Code has been inter-
preted to mean that information sought for discovery should
be regarded as relevant “if it might reasonably assist a party
in evaluating the case, preparing for trial, or facilitating set-
tlement thereof.” Gonzalez v. Superior Court, 33 Cal. App.
4th 1539, 1546 (1995).
The Respondent’s questioning easily satisfies this
standard. Obviously, Perez’ activities at the union hall
were directly related to the Respondent’s defense to the
workers’ compensation claim. Further, the names of
other persons at the union hall would lead to potential
witnesses who observed Perez’ activities at the union
hall. Clearly, this information is “reasonably calculated
to lead to discovery of admissible evidence.”
My colleagues assume that the questions at issue are
relevant. However, they add that if the questions are
relevant, they are only marginally relevant. They con-
tend that the questions are too broad. I disagree. The
California statute does not distinguish between degrees
of relevance. To the contrary, California’s discovery
rules are to be applied liberally in favor of discovery.1
What matters is whether the inquiry is “reasonably calcu-
lated to lead to discovery of admissible evidence.” As
shown, the information sought clearly meets this stan-
dard.2
Next, with respect to whether the Respondent’s ques-
tions had an illegal objective under the Act, I agree with
the judge that they did not. There is no evidence even
remotely suggesting that the Respondent had any objec-
tive other than to prepare its defense in the workers’
compensation case initiated by Perez.
Finally, I assume arguendo that, in a given case, a
party’s rights (under the State statute) can be outweighed
by employee rights under Section 7 of the Act. In such a
case, grave issues of preemption would arise. However,
I need not reach these issues. For, on the facts of this
case, the Respondent’s rights to inquire were not out-
weighed by Section 7 rights. As noted above, the Re-
spondent was seeking relevant information that was nec-
essary to determine the validity of Perez’ workers com-
pensation claim. The information went to the heart of
the Respondent’s defense to the workers compensation
claim. Accordingly, I find that the Respondent’s need
for this information was substantial.3

1 See Stewart v. Colonial Western Agency, Inc., 87 Cal. App. 4th
1006, 1013 (2001).
2 No party to the discovery proceeding objected to the questions.
3 I disagree with my colleagues’ contention that the Respondent did
not limit the questions, i.e., did not confine them to employees who
were present at the hall during the period of her injury. In response, I
note that there were no objections raised along these lines. Further, to
the extent that the questions related to periods when Perez was not
GUESS?, INC. 437
The employees’ Section 7 interests were less substan-
tial. In this regard, the instant case differs from Wright
Electric, Inc., 327 NLRB 1194 (1999), enfd. 203 F.3d
1162 (8th Cir. 2002). That case involved an employer
effort to discover authorization cards obtained in an or-
ganizational campaign. By contrast, the instant case does
not involve authorization cards, nor does it involve an
organizing campaign. Further, there is no record evi-
dence of any hostility toward the Union on the part of the
Respondent. In addition, the questioning was conducted
by someone with little connection to the Respondent’s
operations, i.e., the attorney for the Respondent’s work-
ers’ compensation insurance carrier. Finally, the ques-
tioning occurred away from the Respondent’s facility, in
the attorney’s private office. The likelihood that an em-
ployee would feel intimidated by the prospect that his or
her identity would be revealed in this manner is negligi-
ble at most. Consequently, in balancing the two compet-
ing interests, I find that the Respondent’s need for this
information outweighs any confidentiality interests that
are at stake here.
The instant case is also distinguishable from National
Telephone Directory Corp., 319 NLRB 420 (1995). That
case involved the issue of whether the Board should
quash a subpoena for authorization cards and the names
of employees who signed them. The Board quashed the
subpoena. The case did not involve the issue of whether
the employer violated the Act by seeking the information,
i.e., by making the subpoena request. By contrast, the
instant case involves the issue of whether Respondent
violated the Act by seeking the information. In my view,
it is one thing for the Board to quash a subpoena, it is
quite another thing for the Board to condemn as unlawful
the seeking of the subpoena.
Finally, I note that the parties have a constitutional
right to litigate civil claims. See Bill Johnson’s Restau-
rants v. NLRB, 461 U.S. 731 (1983); BE & K Construc-
tion Co. v. NLRB, 536 U.S. 516 (2002). In my view,
they have a similar right to defend against such claims.

injured, they were, at most, irrelevant to that extent. But, as noted
above, my colleagues do not challenge the relevance of the questions.
Nor was the Respondent’s need for this information somehow di-
minished by the fact that the Respondent did not ask for the names of
nonemployee witnesses to Perez’ activities at the union hall. Perez
testified that her activities at the union hall consisted merely of having
meetings with her fellow employees. It is no surprise, therefore, that the
followup question would ask for the names of her fellow employees
rather than nonemployees. Thus, the Respondent’s questions reasona-
bly reflect the fact that Perez’ fellow employees could likely provide
the Respondent with relevant information. In view of Perez’ specific
reference to attending meetings with her coworkers at the union hall, it
would not have been logical for the Respondent to followup with a
question about the existence of any nonemployees who might have
been in attendance.
Engaging in discovery is a well-recognized part of that
process. Thus, the Respondent’s conduct herein had the
aura of constitutional protection.
In sum, the Respondent’s questioning was relevant to
its defense in the workers’ compensation case, it did not
have an illegal objective under the Act, and the Respon-
dent’s need for this information outweighed the employ-
ees’ confidentiality interest. Accordingly, I find that the
Respondent did not violate Section 8(a)(1) by asking
Perez for the names of the employees who attended
meetings at the union hall.4
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT question our employees about the identi-
ties of employees who attend union meetings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.

GUESS?, INC.

Jean C. Libby, Esq., for the General Counsel.
Lawrence A. Michaels and Jenny Schneider, Esqs. (Mitchell
Silberberg & Knupp LLP), for the Respondent.
Janet Herold, Esq. (Bahan & Herold), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. The
Charging Party, Union of Needletrades, Industrial & Textile
Employees, AFL–CIO, filed the charge in this proceeding on
January 15, 1999. The complaint issued on October 14, 1999.
The complaint alleges that the Respondent, Guess?, Inc., vio-
lated Section 8(a)(1) of the Act on August 20, 1998, by interro-
gating an employee concerning the identities of other employ-
4 In view of my finding that the questioning is not violative of Sec.
8(a)(1), I do not pass on the Respondent’s waiver argument.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
ees who had attended union meetings. The alleged interrogation
occurred during a deposition of the employee conducted by an
attorney who represented the Respondent in a workers’ com-
pensation case filed by the employee. The Respondent filed its
answer to the complaint on October 21, 1999, denying the un-
fair labor practice allegation and raising a number of affirma-
tive defenses.
On May 10, 2000, the General Counsel, the Respondent, and
the Charging Party jointly filed a Motion to Submit Case on
Stipulation together with a Stipulation of Facts. By Order dated
May 11, 2000, I granted the motion, received the stipulation
and postponed the hearing indefinitely. The parties filed briefs
on June 1, 2000. The parties have stipulated that the stipulation
of facts with attached exhibits constitutes the entire record in
this case and that no oral testimony is necessary or desired by
any party.
On June 1, 2000, the Charging Party filed with its brief a re-
quest that I take judicial notice of a judgment entered against
the Respondent by the Court of Appeals for the Ninth Circuit
on November 16, 1998. The Respondent filed an opposition to
this request. The General Counsel has taken no position. The
judgment, on its face, was entered pursuant to an agreement
among the Respondent, the General Counsel, and the Charging
Party which resolved several unfair labor practice charges the
Charging Party had filed against the Respondent. The underly-
ing settlement agreement, which is attached to the Respon-
dent’s opposition, contains a nonadmissions clause.
Rule 201 of the Federal Rules of Evidence requires that a ju-
dicially noticed fact must be one “not subject to reasonable
dispute in that it is either (1) generally known within the territo-
rial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” While the fact that the court of ap-
peals entered such a judgment would seem to meet this test, it is
apparent that the Charging Party is seeking judicial notice of
much more than that fact. In its brief, the Charging Party relies
upon this judgment as proof that the Respondent engaged in the
alleged unfair labor practices which were the subject of the
proceeding resolved by the parties through their agreement.
This “history” of unlawful conduct is then relied upon to prove
an unlawful motive behind the interrogation at issue in this
case.
The Board has held in a number of cases that settlement
agreements or formal settlement stipulations that contain a
nonadmissions clause have no probative value in establishing
that violations of the Act have occurred and may not be used to
establish a party’s proclivity to violate the Act. Sheet Metal
Workers Local 28 (Astoria Mechanical), 323 NLRB 204
(1997); Tri-State Building Trades Council (Structures, Inc.),
257 NLRB 295, 297 (1981). Moreover, under Rule 408 of the
Federal Rules of Evidence, the fact that a party settled a claim
is not admissible to prove the validity of the claim. Thus, the
entry of the consent judgment as part of a formal settlement
agreement containing a nonadmissions clause is inadmissible to
establish that the Respondent in fact committed the unfair labor
practices alleged in the prior case.
Having considered the arguments made by the Charging
Party and the Respondent, I conclude that the Ninth Circuit’s
judgment is of no probative value in this case and inadmissible
as evidence of prior unlawful conduct. Accordingly, I shall
deny the Charging Party’s request to take judicial notice.
On the entire record, and after considering the arguments
made by the parties in their briefs,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with its principal
office and a facility in Los Angeles, California, designs, mar-
kets, and distributes wearing apparel. The Respondent annually
derives gross revenues from its business operations in excess of
$500,000 and sells and ships from its Los Angeles facility
goods valued in excess of $50,000 directly to points outside the
State of California. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The facts are undisputed. Employee Maria Perez filed a
workers’ compensation claim against the Respondent which
was heard by the State of California Division of Workers’
Compensation in a case entitled Maria Perez v. Guess; Fire-
man’s Fund Insurance, Cases LBO 281491 and LBO 281492.
Dennis J. Hershewe, Esq., of the law offices of Dennis J. Her-
shewe, represented the Respondent in that proceeding.2 On
August 20, 1998, Hershewe deposed Perez at his office in con-
nection with her workers’ compensation claim. The transcript
of that deposition is attached to the parties’ stipulation and part
of the record. The parties have stipulated, for the purposes of
this proceeding only, that Hershewe was acting as an agent of
the Respondent within the meaning of Section 2(13) of the Act.
Perez was represented at the deposition by her own attorney,
John A. Mendoza, Esq.
In the course of the deposition, which lasted almost 2 hours,
Hershewe asked Perez the following questions and received the
following responses:

Q. How many hours a week do you go to the union
hall?
A. Perhaps a couple of hours a week, perhaps.
Q. And what do you do there?
A. Just our co-workers having a meeting, its simply
that.
Q. Co-workers at Guess?
A. Yes?
Q. How many are there?
A. I wouldn’t be able to say.
Q. 10? 20? 30? 40?
A. Probably 20.
Q. Who were some of them?
A. There are several.

1 In addition to the parties’ brief, I received valuable assistance from
legal intern Kristine Sova who conducted additional legal research into
the novel issue raised by this case.
2 Hershewe was actually the attorney for Fireman’s Fund Insurance
Company, the Respondent’s workers’ compensation insurance carrier.
GUESS?, INC. 439
Q. I know. Give me some names.
A. Freddy.
Q. Freddy who?
A. I don’t know what his last name is.
Q. Anyone else?
A. Mario.
Q. Who else?
A. Guadalupe.
Q. Okay. Who else?
A. Rocio.
Q. Who else?
A. There are so many.
Q. I know. Okay. Keep going. You know who they
are.
A. Yes, but—
Q. Just give me the names.
A. Araceli.
Q. How do you spell that?
A. A-r-a-c-e-l-i.
Q. Anybody else?
A. Amilcar.
Q. How do you spell that?
A. A-m-i-l-c-a-r.
Q. Anybody else?
A. There’s many.

The parties have stipulated that this is the relevant question-
ing.3 Perez’ attorney did not object to any of these questions.
Attached to the stipulation and part of the record in this case
is a “Declaration of Dennis Hershewe,” made under penalty of
perjury, which the parties have agreed shall be treated as if it
were testimony given at a hearing before an administrative law
judge. Hershewe states that, among the issues he identified in
defending the Respondent against Perez’ claim, were whether
she engaged in fraud by fabricating or exaggerating her injuries
and whether she worked for any other employer at the time of
her injury who might be liable for her injury. In order to ex-
plore these issues during her deposition, Hershewe asked Perez
questions related to her activities during the time she claimed to
be injured, including questions about her activities during time
she spent at the Union’s offices. According to Hershewe, he
asked these questions to learn if she might have sustained her
injuries while performing activities on behalf of the Union and
whether her activities at the Union’s offices were inconsistent
with her alleged injuries. Hershewe states that he also asked for
the names of other employees of the Respondent who were
with her at the Union’s offices in order to identify potential
witnesses who could be called upon to testify about Perez’
activities and whether they were consistent with her alleged
injuries. Such individuals were also potential witnesses to any

3 The stipulation reveals that the Charging Party also alleged in the
original charge that Hershewe’s questioning of Perez about her own
union sympathies and activities and the union sympathies, activities,
and other matters involving other employees violated Sec. 8(a)(1) of
the Act. By letter dated October 1, 1999, the Board’s Regional Director
approved the withdrawal of this aspect of the charge, reserving only the
allegation that Hershewe interrogated Perez regarding the identity of
union supporters for litigation in this proceeding.
statements Perez may have made that would be inconsistent
with her alleged injuries or might reflect on her credibility.
Hershewe states further that the questions at issue are typical of
questions he routinely asks where a claimant’s injuries are dis-
puted and there is an issue that the claimant has fabricated or
exaggerated his or her injuries. Because the parties have waived
a hearing and the opportunity to cross-examine Hershewe, I
must accept the statements made in his declaration as true for
purposes of deciding the issues raised by the complaint.
The parties have stipulated that hearings were held on Perez’
workers’ compensation claims beginning on or around April 7,
1999, which resulted in two Orders dated October 12, 1999,
from Workers’ Compensation Administrative Law Judge Cyn-
thia A. Quiel, finding that one claimed injury was not sustained
in the course of her employment, but that an injury to her left
shoulder was compensable. Judge Quiel denied the Respon-
dent’s request for a finding of fraud on both claims and de-
ferred certain issues related to her disability.
Although the parties agree as to the facts, they are unable to
agree on the issue. According to the General Counsel, the issue
is whether the Respondent violated Section 8(a)(1) of the Act
by interrogating Perez concerning the names of other employ-
ees who attended union meetings during a deposition in a State
workers’ compensation proceeding. The General Counsel ar-
gues that a violation occurred because the information re-
quested was not relevant to the workers’ compensation case.
The General Counsel argues further that the questioning had an
illegal objective because it sought information that the Board
has historically treated as confidential in the absence of any
overriding business purpose that would warrant disclosure.
The Charging Party joins in the General Counsel’s argument
but goes further. As previously noted, the Charging Party con-
tends that the Respondent had an illegal motive in asking Perez
for the identity of other employees who were with her at the
union office because of its “history” of unlawful conduct, as
reflected in the Consent Judgment of the court of appeals.
According to the Respondent, the issue is whether it is a per
se violation of the Act for an employer to conduct discovery in
a State court legal proceeding where such discovery has the
effect of revealing the names of employees who engaged in
protected concerted activity. The Respondent would answer
that question in the negative. The Respondent argues that the
Board has generally permitted discovery into protected con-
certed activities in State court proceedings with the exception
of a request for union authorization cards. The Respondent does
agree with the General Counsel that State court discovery can
violate the Act when the information sought is both irrelevant
and the discovery is conducted for an improper purpose. Ac-
cording to the Respondent, the questions asked of Perez here
were relevant to the workers’ compensation proceeding and
were not asked for an illegal purpose. Finally, the Respondent
argues that any challenge to the questions asked at the deposi-
tion should have been raised, at least initially, under the Cali-
fornia Code of Civil Procedure rather than before the Board.
In Westwood Health Care Center,4 the Board recently re-
affirmed that the applicable test for determining whether an
4 330 NLRB 935 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
employer’s questioning of an employee constitutes an unlawful
interrogation is the totality-of-the-circumstances test adopted
by the Board in Rossmore House.5 In analyzing alleged interro-
gations under this test, the Board has found it appropriate to
consider the Bourne factors first set out in Bourne v. NLRB, 332
F. 2d 47, 48 (2d Cir. 1964). Those factors are:

(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g., was em-
ployee called from work to the boss’s office? Was there an
atmosphere of formality?
(5) Truthfulness of the reply.

In Westwood, supra, the Board cautioned that these factors are
not to be mechanically applied, but are to be used as a guideline
for evaluating the circumstances in which the questioning takes
place. 330 NLRB at 939. The alleged interrogation here is un-
usual because it occurred in the context of discovery in a non-
Board legal proceeding. Nevertheless, the Bourne factors and
the totality of circumstances test provide some guidance in
evaluating the questioning here.
While the Board has frequently found that an employer’s in-
terrogation of an employee regarding his or his coworker’s
union support and/or activity violates Section 8(a)(1) of the
Act,6 such questioning is not per se unlawful. The Board has
long recognized, for example, that an employer may have “le-
gitimate cause” to interrogate employees on matters involving
Section 7 rights where the questioning is directed toward the
“investigation of facts concerning issues raised in a complaint”
and “is necessary in preparing the employer’s defense for trial
of the case.” Johnnie’s Poultry Co., 146 NLRB 770, 775
(1964). In those circumstances, the employer will not run afoul
of the Act as long as he provides the employee with the requi-
site safeguards and assurances against reprisal. In two cases
more directly on point, the Board has recognized the right of an
employer to engage in discovery in civil proceedings even
where the discovery might encroach upon an employee’s pro-
tected activity. Maritz Communications Co., 274 NLRB 200
(1985); Wright Electric, Inc., 327 NLRB 1194 (1999), enfd.
200 F.3d 1162 (8th Cir. 2000). The parties are in agreement
that these last two cases are the governing authority here. They
differ, obviously, in how they would apply the law as set forth
in those cases to the stipulated facts.
In Maritz Communications, supra, an employee filed an age
discrimination suit in Federal court against his employer as well
as a charge with the Board claiming that he was discharged for
union activity. The employer deposed the employee in connec-
tion with his civil lawsuit. At the deposition, the employer’s

5 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
6 See Sundance Construction Management, 325 NLRB 1013 (1998);
T & J Trucking Co., 316 NLRB 771, 778–779 (1995).
attorney questioned the employee on a wide range of subjects,
including his relationship with the Union and the charge he
filed with the Board. The administrative law judge found that
this questioning violated Section 8(a)(1) of the Act because it
was coercive and concerned issues irrelevant to the civil suit.
The judge also found the interrogation unlawful because the
employer’s attorney did not comply with the safeguards estab-
lished in Johnnie’s Poultry, supra. The Board reversed the
judge and dismissed this allegation of the complaint. The Board
found that the deposition questions were “within the scope of
arguably relevant questioning permitted by the Federal Rules of
Civil Procedure.” 274 NLRB supra at 201. The Board noted
that, since the issues in the civil suit and the Board proceeding
arose from the same or similar operative facts, the employer’s
inquiry into the employee’s work history and termination were
“likely to touch on a number of areas also related to the unfair
labor practice proceeding.” Id. The Board found that the em-
ployer’s questions were also relevant because the employee’s
claim in the Board charge that he was unlawfully discharged
for union activities might have been inconsistent with his civil
lawsuit claim that he was terminated because of his age. In
dismissing the complaint, the Board also rejected the argument
that the interrogation violated the Act because the attorney did
not comply with Johnnie’s Poultry, supra. The Board held that
the employer was not required to give such assurances because
the employee initiated the lawsuit in which he was deposed and
“must have or should have been aware that the [employer]
could examine him concerning any matter relevant to the prepa-
ration of a defense to the civil suit.” Id. at 201–202.
In Wright Electric, supra, the employer had discharged an
employee for allegedly concealing his prior union involvement
and omitting any mention of it on his application. The Union
filed an unfair labor practice charge alleging that the employee’s
discharge violated Section 8(a)(1) and (3) of the Act, and the
employee filed a state claim for unemployment benefits. The
unfair labor practice charge was dismissed and the unemploy-
ment claim was denied. The employer then initiated a lawsuit in
state court against the employee and the Union alleging mali-
cious prosecution, breach of contract and fiduciary duty of hon-
esty and loyalty, unjust enrichment, fraudulent misrepresenta-
tion, concealment, and wrongful use of property. In connection
with that lawsuit, the employer made discovery requests for
documents concerning the Union’s efforts to organize or “salt”
the employer or other nonunion employees; any communica-
tions by the Union with the employer’s employees; any authori-
zation cards received from the employer’s employees; any
charges or complaints filed or lodged against the employer by
the Union; information relating to alleged “salts” and newslet-
ters or informational bulletins given to members. The General
Counsel issued a complaint alleging that the employer violated
Section 8(a)(1) and (4) of the Act by filing the malicious prose-
cution claims in its lawsuit and that the discovery requests vio-
lated Section 8(a)(1) of the Act. The administrative law judge
dismissed both allegations, applying the Supreme Court’s deci-
sion in Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983), to find that the Respondent’s lawsuit did not lack a rea-
sonable basis in fact and law. The judge found further that the
discovery requests were relevant to the State court litigation. He
GUESS?, INC. 441
concluded that it was unlikely that the Supreme Court in Bill
Johnson’s would direct the Board to allow a State court lawsuit
to proceed while permitting the Board to enjoin discovery of
items sought during the State court proceeding. 327 NLRB at
1205. The Board reversed the judge’s dismissal of the allegation
regarding the filing of the lawsuit, holding instead that the Board
should defer decision on this issue until final resolution of the
State court proceeding. As to the discovery requests, the Board
affirmed the judge’s dismissal of this allegation with one excep-
tion. The Board held that the Respondent’s requests for union
authorization cards signed by employees was unlawful, even if
the cards were arguably relevant to the State court proceeding.
Id. at 1195.
In reaching its conclusion in Wright Electric, supra, that the
employer’s discovery request was unlawful, the Board initially
noted the importance it has historically attached to protecting
the confidentiality of the identity of employees who sign union
authorization cards. The Board, relying upon Board and court
precedent, reasoned that employees would be chilled when
asked to sign union authorization cards if they knew that their
employer could see who signed them. Because of the tendency
of such a discovery request to deter employees in the exercise
of protected activity, the Board held that an employer must
demonstrate an overriding business justification to obtain
signed union authorization cards through discovery in a civil
proceeding. Id. The Board found that the employer’s justifica-
tion, i.e., that the presence or absence of union cards signed by
its employees would tend to prove or disprove whether the
union had a lawful objective in “salting” it, was not sufficient
to outweigh the considerable confidentiality interests of the
employees who signed cards. The Board also noted that the
employer itself had suggested that there were less intrusive
means of obtaining the same information. The Board then ad-
dressed the judge’s concern that the Board did not have author-
ity, under Bill Johnson’s Restaurant’s, supra, to enjoin discov-
ery in a civil lawsuit. According to the Board, the Supreme
Court’s decision in that case authorized the Board to enjoin
civil proceedings that have an illegal objective under Federal
law. Because the Board found that the employer had an illegal
objective in requesting the names of employees who signed
union authorization cards, it held that the request was unlawful
under Section 8(a)(1) of the Act and could be enjoined. Id.
The Board in Wright Electric, supra, relied upon its earlier
decision in National Telephone Directory Corp., 319 NLRB
420 (1995). In that case, the Board was faced with an interlocu-
tory appeal from an administrative law judge’s ruling that per-
mitted an employer, in an unfair labor practice proceeding, to
subpoena union authorization cards and the names of employ-
ees who attended union meetings at which the cards were
signed. The employer sought this information for use in cross-
examination and to impeach the credibility of one of the Gen-
eral Counsel’s key witnesses. The Board, in reversing the
judge, first noted that the Act normally prohibits an employer
from obtaining such information through interrogation or sur-
veillance of protected activity. While recognizing that the em-
ployer had an important interest in cross-examining and im-
peaching the credibility of witnesses against it, the Board held
that this interest did not outweigh the employees’ interest in
keeping their union activity hidden from their employer. The
Board reasoned that the fact that the employer sought this in-
formation during litigation, rather than through interrogation
and surveillance, did not reduce the potential chilling effect on
union activity that could result from employer knowledge of
this information. The court of appeals which enforced the
Board’s decision in Wright Electric cited National Telephone
Directory with approval. Wright Electric, Inc. v. NLRB, 200
F.3d at 1167.
The above precedent demonstrates that the Board does not
apply a per se rule prohibiting any discovery in a civil proceed-
ing that might invade employees’ protected concerted activities.
On the contrary, in Maritz Communications, supra, and Wright
Electric, supra, the Board permitted a wide range of discovery
into matters that are protected under the Act. The test appears
to be a two-part test. First, it must be determined whether the
information sought through discovery is relevant to the civil
suit. The Board, in Maritz, supra, held that relevance is to be
determined under the law of the forum in which the civil suit is
pending. The second part of the test, assuming relevance is
found, is whether the employer had an illegal objective under
the Act. This is what gives the Board the authority, under Bill
Johnson’s Restaurant, supra, to enjoin the discovery request.
As to the first test, I find that the questions that Hershewe
asked Perez during her deposition were relevant to her workers’
compensation claim. The California Code of Civil Procedure,
applicable to Perez’ workers’ compensation claim, defines
relevance for discovery purposes broadly:

Unless otherwise limited by order of the court in accordance
with this article, any party may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter
involved in the pending action . . ., if the matter either is itself
admissible in evidence or appears reasonably calculated to
lead to discovery of admissible evidence. Discovery may re-
late to the claim or defense of the party seeking discovery or
of any other party to the action. Discovery may be obtained of
the identity and locations of persons having knowledge of any
discoverable matter.

California Civil Procedure Code Section 2017(a).
There is no dispute that Hershewe’s questioning of Perez re-
garding her own activities while at the Union’s office during the
time she was claiming a work-related injury was lawful. Such
questions directly relate to the defenses raised by the Respon-
dent that Perez’ injuries were either fabricated or exaggerated.
They also relate to the issue whether her injuries were sustained
in the course of her employment or some other activity outside
work. If the inquiry regarding what she did at the Union’s office
is relevant, then the identity of persons who may have witnessed
her activities there is relevant. The California Code specifically
permits discovery of the identity of such witnesses. I also note
that it is common when questioning a witness, whether at a
deposition or in a Board hearing, for the attorney to ask who else
was present during a meeting or other event. The General Coun-
sel argues that Hershewe’s questions here were not relevant
because he asked Perez only a few limited questions regarding
her own activities. I disagree. Having asked her about her activi-
ties, even if in a limited fashion, he was permitted under the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
California Code to seek discovery of witnesses to that activity.
Moreover, I note that Perez offered only limited responses, vol-
unteering very little about her activities at the Union’s office.
Under these circumstances, the identity of witnesses who could
provide more information was particularly relevant.
Having found that the questioning was relevant, I must de-
termine if it was nevertheless unlawful under the Act because it
had an “illegal objective.” In Wright Electric, the Board found
that a request for union authorization cards had an illegal objec-
tive, relying upon the special protection afforded such cards
under the Act. The General Counsel and the Charging Party
argue that the Board’s reliance on National Telephone Direc-
tory, supra, which dealt with a request for union authorization
cards and the identity of employees who attended union meet-
ings, suggest that Hershewe’s questioning here was likewise
illegal. However, in Wright Electric, the Board omitted any
reference to the language in National Telephone Directory
regarding the employer’s request for the identity of employees
who attended union meetings. As pointed out by the Respon-
dent here, the meetings at issue in National Telephone Direc-
tory were the same meetings at which the union authorization
cards were signed. Under these circumstances, the disclosure of
the names of employees who were at the meetings would pro-
vide the employer with the information that the Board was
seeking to protect from disclosure. Moreover, the issue in Na-
tional Telephone Directory arose in the context of a Board
unfair labor practice proceeding. Because the Board has control
over its own proceedings, it has greater authority to limit the
rights of parties appearing before it.
The narrow holding in Wright Electric, supra, and the expan-
sive holding in Maritz Communications, supra, suggest that the
Board is reluctant to limit the right of a party to engage in le-
gitimate discovery in connection with a civil proceeding in
another forum. In fact, the only discovery that the Board has
found unlawful to date is the request for union authorization
cards. There is good reason for proceeding with caution in this
area. The Respondent did not initiate the litigation involving
Perez. The Respondent had a right to engage in discovery to
defend itself against her claim for workers’ compensation bene-
fits. The Board should not exercise its authority to limit the
rights of parties in non-Board proceedings unless there is a
clear danger that employees’ Section 7 rights will be violated. I
find that there is no such danger here.
There can be no question that, had a supervisor or manager
of the Respondent asked Perez these questions at the Respon-
dent’s facility, a violation of the Act would be found. The total-
ity of circumstances here negates the coercive tendencies of
such questioning. Hershewe, the questioner, was not directly
employed by the Respondent. He was an attorney retained by
the Respondent’s insurance carrier to defend it against a claim
Perez had initiated. There is no evidence that he had any in-
volvement in the Respondent’s labor relations practices. The
questioning did not take place in a supervisor or manager’s
office. It occurred at a lawyer’s office away from the plant. In
addition, Perez was represented by her own attorney who had
the right to object if he believed the questions were irrelevant or
sought privileged information. The nature of the questioning
related to the claim Perez had filed. As the Board noted in
Maritz Communications, Perez having filed her claim, she
should have known that she would be questioned about matters
related to that claim, including the identity of witnesses who
could corroborate her claims. See 274 NLRB at 201–202.
Moreover, the stipulated record here does not disclose a history
of employer hostility toward employees’ exercise of Section 7
rights. The Charging Party’s argument to the contrary is based
upon a settlement agreement containing a non-admissions
clause which, as noted above, does not establish that violations
of the Act have occurred. Finally, the fact that Perez, with the
assistance of her own attorney, answered these questions truth-
fully tends to show that she was not coerced under the circum-
stances here.
Having considered the stipulated evidence in the record, the
applicable legal precedent and the parties’ arguments, I con-
clude that the Respondent did not violate the Act when the
attorney defending it in Perez’ workers’ compensation case
asked her, during a deposition, for the identity of other employ-
ees who were present with her at the Union’s office during the
period she claimed to be suffering from a work-related injury.
As noted above, I have found that the questions asked were
relevant to the issues raised in the workers’ compensation pro-
ceeding under the law of the forum. I have found further that
the Respondent did not have an illegal objective in asking Perez
these questions. Under all the circumstances, the questioning
was not coercive. Accordingly, I shall recommend that the
complaint be dismissed.
CONCLUSION OF LAW
The Respondent did not violate Section 8(a)(1) of the Act
when, during a deposition in a workers’ compensation case, its
attorney asked the employee who filed the workers’ compensa-
tion claim for the names of employees who were with her at the
Union’s office during the time she claimed to be injured.
[Recommended Order for dismissal omitted from publica-
tion.]