The Great Atlantic and Pacific Tea Co.

National Labor Relations Board - Board Decisions

Sep 3, 1957

118 N.L.R.B. 1280 (N.L.R.B. 1957)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as the present contract by its terms will not expire until
April 1, 1959, we find that it is a bar to the present proceeding.1° We
shall, therefore, dismiss the petition without prejudice to a timely
refiling.
[The Board dismissed the petition.]
10 In view of our ultimate conclusion in this case , we deem it unnecessary to determine
whether, as the Intervenors contend , the Carpenters participated in the disaffiliation
movement , and whether proper notice of the disaffiliation meeting was not tendered to
the membership of Local 8-449.
The Great Atlantic and Pacific Tea Company, National Bakery
Division and Independent Bakery Workers Union
The Great Atlantic and Pacific Tea Company, National Bakery
Division and Arlene C. Smith. Cases Nos. 1-CA-2217 and 1-CA-
.d284. September 3, 1957
RULING ON APPEAL
The Board, pursuant to Section 102.26 of its Rules and Regula-
tions, has heretofore granted special permission to The Great Atlantic
and Pacific Tea Company, herein called Respondent, to appeal di-
rectly to it from an interlocutory ruling of the Trial Examiner
denying four motions that the General Counsel be directed to furnish
Respondent certain documents, as more fully described below. Upon
a consideration of said motions, the Trial Examiner's ruling and
opinion denying the same, and the briefs and arguments of the parties,
the Board on August 16, 1957, decided to sustain the Trial Examiner's
ruling denying said motions and notified the parties thereof officially
on the same day. The parties were also officially informed at the
same time that an opinion would be prepared and issued at a later
date. Such procedure followed the Board's practice of announcing
a decision prior, to the issuance of an opinion where necessary to re-
duce delay in the holding of a hearing in progress before a Trial
Examiner. Cf. Santa Ana Lumber Co., 87 NLRB 53.
A brief history of the events leading to the present appeal dis-
closes the following:
In Case No. 1-CA-2217, Independent Bakery Workers Union,
herein called Independent, charged Respondent with violations of
Section 8 (a) (1), (3), and (5) of the Act. Although this charge
originally also alleged a violation of Section 8 (a) (2), -complaint
did not issue thereon. In Case No. 1-CA-2284, Arlene C. Smith
charged Respondent with discriminatorily discharging her from its
employ contrary to the provisions of Section 8 (a) (1) and (3) of
the Act. Complaints, which issued in both cases, were ordered
118 NLRB No. 138.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1281
consolidated for hearing. As his first witness at the hearing the
General Counsel called Milton Stanzler, counsel for Independent.
Prior to the cross-examination of Stanzler, Respondent orally made
four motions. In substance, these motions require :
1. That the General Counsel be directed to furnish to Respondent
"all affidavits, reports, documents, and any other material. [the
Board] has in its files that it secured and adduced during the investi-
gation ... of the charge filed by the union" in 1-CA-2217 and by
Smith in 1-CA-2284.
2. "Alternately . . . that the General Counsel be directed to fur-
nish Respondents any statements in writing made by Mr. Stanzler,
any affidavits of Mr. Stanzler, any reports made by the Board on the
basis of information supplied by Mr. Stanzler which contained facts
Mr. Stanzler alleged were facts he knew of his own knowledge."
3. "Alternately . . . that the General Counsel be directed to fur-
nish Respondent any and all statements of Mr. Stanzler, affidavits
of Mr. Stanzler, and any reports made by any representative of the
National Labor Relations Board which contained facts and/or in-
formation supplied by Mr. Stanzler, whether or not Mr. Stanzler
indicated he knew them of his own knowledge, or was repeating facts
that were furnished him by some other person."
4. In both cases, that the General Counsel be directed to give Re-
spondent "all the information outlined in [the three preceding] mo-
tions, not only of Mr. Stanzler, but of any person or persons inter-
viewed by the representatives of the . . . Board in preparation of
these two cases, and whether or not they are to be witnesses in this
proceeding."
These four motions were motivated by the General Counsel's re-
fusal to make available to Respondent, pursuant to the latter's demand
therefor under Section 102.87 of the Board's Rules and Regulations,
the material recited in the motions. Upon the Trial Examiner's
denial of these motions on the ground that Section 102.87 of the
Board's Rules and Regulations deprived hint of authority to direct
the General Counsel to produce the documents sought, Respondent
has, with permission, brought the issue to the Board by appeal from
such ruling.
Respondent contends that (1) as a matter of law, Section 102.87
of the Board's Rules and Regulations, to the extent that it bars pro-
duction of the documents recounted in the four motions, has been
abrogated by the decision in Jencks v. United States, 353 U. S. 657 ;
and (2) regardless of the validity of the prohibitions contained in
said Section 102.87, the Board, "as a matter of policy," should
"produce not only the documents referred to above, but all documents
which may be relevant and material to the cross-examination of Gov-
ernment witnesses."
450553--58-vol. 118-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We do not consider Jencks as requiring the production of these
documents.
Section 102.87 of the Board's Rules and Regulations, in relevant
part, provides that
No regional director, field examiner, trial examiner, attorney,
specially designated agent, general counsel, member of the
Board, or other officer or employee of the Board shall produce
or present any files, documents, reports, memoranda, or records
of the Board or testify in behalf of any party to any cause pend-
ing in any court or before the Board, or any other board, com-
mission, or other administrative agency of the United States,
or of any State, Territory, or the District of Columbia with re-
spect to any information, facts, or other matter coming to his
knowledge in his official capacity or with respect to the contents
of any files, documents, reports, memoranda, or records of the
Board, whether in answer to a subpena, subpena daces tecum, or
otherwise, without the written consent of the Board or the chair-
man of the Board if the official or document is subject to the su-
pervision or control of the Board; or the general counsel if the
official or document is subject to the supervision or control of the
general counsel.
5 U. S. C. 22, which is applicable to independent agencies (Appeal
of the United States Securities and Exchange Commission and
William H. Timbers, etc., 226 F. 2d 501 (C. A. 6) ), expressly author-
izes the promulgation of said Section 102.87. See Boske v. Com-
ingore, 177 U. S. 459. In addition, Section 6 of our Act specifically
confers upon the Board jurisdiction to adopt the provisions of such
section.
We do not believe that the Jencks case has overturned statutes
authorizing departments and independent agencies to adopt rules
promulgated pursuant to such statutes, or measures reasonably cal-
culated to maintain records inviolable, absent an explicit holding in
that regard. In our opinion, the holding of Jencks is confined to crim-
inal causes; it is inapplicable to proceedings conducted in accordance
with the Administrative Procedure Act, 5 U. S. C. Sec. 1001 et seq.
We think this follows not only from analysis of the opinion, but also
from the Court's specific reference with approval to 5 U. S. C. 22 and
the practice thereunder "in civil causes," and the inapplicability
thereof "in criminal causes." 353 U. S. at 670-671. While we recog-
nize that some language in Jencks, especially if read out of context,
may lead to an inference that the decision extends to the present pro-
ceedings, nevertheless we are convinced that the tenor of the opinion
as a whole concerns only criminal cases.
For the above reasons, we are unable to accept our dissenting col-
league's contention that Jencks controls the disposition of the instant
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1283
case. We note that the Department of Justice has taken the position
that the Jencks case does not cover cases conducted under the Ad-
ministrative Procedure Act. See Brief for Respondent, Communist
Party v, Subversive Activities Control Board, No. 11,850, C. A., D. C.
This coincides with our holding that Jencks was intended to be lim-
ited to criminal cases.
Nor do we think, as does our dissenting colleague, that Section
102.86 (b) of the Board's Rules and Regulations renders the docu-
ments sought open to inspection by Respondent. Although documents
initially confidential under said section lose their protected character
if used to impeach a witness, or to refresh his recollection, or if they
are offered in evidence, they retain their confidential status when not
so used or offered. We do not interpret said Section 102.86 (b) as
authorizing the inspection of material otherwise confidential merely
because a witness testifies, without more, that he has given the same
to the General Counsel or the Board.
Irrespective of the pertinency of the Jencks case, Respondent's mo-
tions numbered 1, 3, and 4 (to the extent that they refer to persons
other than Mr. Stanzler), were properly denied as "broad or blind
fishing expeditions" which will not be tolerated. Jencks v. United
States, 353 U. S. 657, 667; Bowman Dairy v. United States, 341 U. S.
214, 221.
2. There is no merit to the suggestion that the General Counsel
be directed to produce the documents as a matter of policy.
Respondent further argues, even if Jencks does not render the doc-
ument sought available as a matter of law, that the Board "as a mat-
ter of policy" should direct the General Counsel to produce them.
Compliance with this request seems to amount to a pro tan to repeal
of Section 102.87 without a showing of a need therefor. Hence we
reject this request as lacking in merit.
The ruling of the Trial Examiner was right. It is hereby affirmed.
MEMBER JFNKINs, dissenting in part:
I disagree with only so much of the majority's decision as affirms
the Trial Examiner's denial of the Respondent's motion for the
production of "All written statements and affidavits made by [Milton]
Stanzler," a witness for the General Counsel who has already testified
on direct examination.
The record shows that the Respondent's motion for the production
of the statements and affidavits obtained from Stanzler was made
after Stanzler had testified in chief and prior to cross-examination, and
that the Trial Examiner's ruling in denying such motion was based
upon Section 102.86 of the Board's Rules and Regulations. In my
view, the Trial Examiner's ruling constitutes both a negation of the
spirit and intent of the decision of the United States Supreme Court
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Jencks case,' and an improper application of Section 102.S6 of
the Board's Rules and Regulations. My reasons for these separable
grounds of my disagreement with the Trial Examiner, and with my
colleagues' affirmation of his ruling, follow.
1. I feel that, whether or not the Jencks holding is controlling in a
proceeding under the Labor Management Relations Act, sound policy
considerations nevertheless dictate that, in prosecuting cases under
this Act, the Government should conform closely to the spirit and in-
tent of the Jencks decision so that the Government's role in the ad-
ministration of justice may be above suspicion and reproach.
The rule as to the right of an adverse party to see statements or
affidavits of an opposing witness for the purposes of cross-examination
or impeachment was, prior to Jencks, well established in both the
Goldman 2 and Gordon 9 cases. Goldman, in effect, held that unless
the witness used the notes or memoranda relating to his testimony
while testifying, the Court had discretion to deny inspection. This
rule, it appears tome, has been expressly overruled by Jencks. Gordon,
however, seemed to imply (and was so understood by the courts to hold)
that unless a foundation was laid to demonstrate inconsistency be-
tween the contents of a prior statement of the witness and his sworn
testimony in a trial, the statement need not be produced. Jencks
specifically overrules the necessity for the laying of a foundation of
inconsistency and holds that a, sufficient foundation for production
is laid if the witness testifies that his prior "reports were of the events
and activities related in [the] testimony." To quote a pertinent
portion of the opinion (353 U. S. at 666-667) :
The necessary essentials of a foundation, emphasized in that-
[the Gordon case] opinion, and present here, are that "[t]he
demand was for production of'. . . specific documents and did
not propose any broad or blind fishing expedition among docu-
ments possessed by the Government on the chance that something
impeaching might turn up. Nor was this a demand for state-
ments taken from persons or informants not offered as witnesses,"
(Emphasis added.) 344 U. S. at page 419. We reaffirm and re-
emphasize these essentials. "For production purposes, it need
only appear that the evidence is relevant, competent., and outside
of any exclusionary rule. . . ." 344 U. S. at page 420.
In the instant case, it is true that part of Respondent's motions were
not for "specific documents," and in effect proposed a "fishing expedi-
tion," with "a. demand for statements taken from persons or informants
not offered as witnesses" and therefore did not meet the essential
requirements of the "foundation" emphasized in the Jencks case.
3 ,Jencks v. United States, 353 U. S. 657.
2 Goldman v . United States , 316 U. S . 129, 132.
3 Gordon v. United States, 344 U. S. 414.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1285
However, the Respondent's motion did include a request for "speci is
documents" of a "person offered as a witness," who testified he had
made reports to Board representatives "of events and activities related
in his testimony." It therefore appears that such "evidence was rele-
vant, competent and outside of any exclusionary rule" and accordingly
that the essential foundation for the production of the Stanzler
statements was laid, if Jencks is applicable-and I so hold.
The General Counsel, in his brief, argues that Jencks is applicable
only to a criminal proceeding. Though it is true that the Court, in
Jencks, never specifically indicated whether it was laying down a
rule for both civil and criminal cases, the fact is that it referred to
both Goldman and Gordon and these cases formulated rules repeat-
edly applied in civil and criminal cases, as well as in cases under the
Administrative Procedure Act. In fact, in many cases, the Board
itself has invoked both Gordon and Goldman before the courts to
justify denial of documents to Respondents. Thus, in N. L. R. B. v.
T. TF. Phillips Gas and Oil Co., 141 F. 2d 304 (C. A. 3), the court,
on the basis of Goldman, sustained the Board's refusal to produce for
cross-examination statements of witnesses called by the Board. Re-
ferring to the applicability of the Goldman rule the court said (141
F. 2d atp. 306) :
"The rule can be no less applicable upon the hearing of the com-
plaint in a Labor Board case...."
The same concept of the Goldman and Gordon rules was applied by
the Second and First Circuit Courts of Appeal to sustain similar
Board refusals to require the production of statements obtained in
investigatory stages of the proceeding. N. L. R. B. v. Quest-Shon
Mark Brassiere Co., Inc., 185 F. 2d 285 (C. A. 2) ; cert. denied 342
U. S. 812; N. L. R. B. v. Jamestown Sterling Corp., 211 F. 2d 725
(C. A. 2) (1954) ; N. L. R. B. v. Thayer Company, 213 F. 2d 748 (C. A.
1) (1954). It seems to me, that to the extent that Jencks modifies the
Goldman and Gordon rules, their application in their original form
by the Board cannot be supported 4
Whether the rule in Jencks will be applied by the Court in "purely"
civil proceedings remains to be seen. But, in my opinion, it should
apply to any case where the Government prosecutes a violation of
law. It does not seem possible that one can read the decision and
come to a contrary conclusion. In sum, the opinion recognizes cer-
tain Government rights including the right to maintain the secrecy
of its files or the identity of its informants. But once the Govern-
ment undertakes to prosecute for a particular violation of law, it
has made its choice and its claim of privilege falls. It cannot be
4 In his dissenting opinion Mr. Justice Clark states that the rule of the Court announced
in Jencks is contra to Goldman.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contended that an unfair labor practice proceeding is "purely civil"
in nature. It is not litigation of the rights of private parties but it is
a prosecution initiated by the General Counsel of the Board wherein
he charges that a Respondent has violated certain provisions of the
Act and accordingly seeks certain remedies. Though the Act is neither
punitive nor compensatory but preventative and remedial in its na-
ture,5 it establishes a. public procedure looking only to public ends.'
The intent and rationale of Jencks is that the Government must
not be out to win at any cost but that justice must be done at any cost.
The reason for and objective of our prosecutions should be the same.
For the General Counsel to refuse access by a Respondent to an affi-
davit of a witness who has testified that he made such an affidavit
and that it covers his oral testimony could create the lurking suspicion
that "something is rotten in Denmark." Far better for us to follow
the broad mandate of the Supreme Court as laid down by Mr. Justice
Frankfurter in Communist Party v. Control Board, 351 U. S. 115,
at p.125:
The untainted administration of justice is certainly one of the
most cherished aspects of our institutions. Its observance is one
of our proudest boasts. This Court is charged with supervisory
functions in relation to proceedings in the Federal Courts. See
McNabb v. United States, 318 U. S. 332. Therefore fastidious
regard for the honor of the administration of justice requires the
Court to make certain that the doing of justice be made so mani-
fest that only irrational or perverse claims of its disregard can
be asserted.
Therefore whether the rule of the Jencks case applies to strictly
civil proceedings for the reasons stated above, it is my opinion that
it applies to prosecutions by Government agencies under public laws
such as the Labor Management Relations Act.
2. The General Counsel contends, and my fellow members agree,
that the Board's Rules and Regulations protect and justify the re-
fusal of the General Counsel to produce Stanzier's affidavit. This
contention is based on Section 102.86, subsection (b), which provides
in.part :
Subject to the provisions of sections 102.31 and 102.58, all files,
documents, reports, memoranda, and records pertaining to the
internal management of the Board or to the investigation or
disposition of charges or petitions during the nonpublic investi-
gative stages of proceedings and before the institution of formal
proceedings, and all matters of evidence obtained by the Board
or any of its agents in the course of investigation, which have not
N. L. R. B. v. Piqua Munising Wood Products Co., 109 F. 2d 552 (C. A. 6).
6Agwilines , Inc. v. N. L. R. B., 87 F. 2d 146 (C. A. 5).
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1287
been offered in evidence at a hearing before a trial examiner or
hearing officer or have not been made part of an official record by
stipulation, . . . are for good cause found by the Board held
confidential and are not matters of official record or available
to public inspection... .
That this Board has the power to make such a rule is without ques-
tion under Section 6 of the Act which confers authority similar to that
given heads of executive departments by 5 U. S. C. 22 (R. S. 161),
the provisions of which are set forth in the margin below.' These
provisions have been sustained by the Court. As to Section 6, see
cases set forth supra, and as to Section 22 of 5 U. S. C., see Tuohey v.
Ragen, 340 U. S. 462. In Jencks the Court stated (353 U. S. at 670) :
It is unquestionably true that the protection of vital national
interests may militate against public disclosure of documents in
the Government's possession. This has been recognized in de-
cisions of this Court in civil causes where the Court has considered
the statutory authority conferred upon departments of govern-
ment to adopt regulations "not inconsistent with law, for .. .
use . . . of the records, papers . . . appertaining" to his
department.
However, it is my opinion that the invocation of Sections 102.86
and 102.87 by the General Counsel and the majority of the Board is
without merit herein. As set forth above Section 102.86 (b) in part
states:
... all matters of evidence obtained by the Board or any of its
agents in the course of investigation, which have not been offered
in evidence at a hearing before a trial examiner or hearing officer
or have not been made part of an official record by stipula-
tion, . . . are for good cause found by the Board held confi-
dential.... (Emphasis supplied.)
I believe a careful reading of the section, which is the basis for the
instant claim of privilege, eliminates and totally destroys as confi-
dential or privileged matters all evidence obtained by any Board agents
which has been offered in evidence at a hearing before a Trial Ex-
aminer. Whenever the General Counsel, in the prosecution of a
complaint, on behalf of the Board, offers a witness, who, in the in-
vestigatory stages of the proceeding, has in an affidavit, given evi-
' Section 6:
The Board shall have authority from time to time to make, amend , and rescind, in,
the manner prescribed by the Administrative Procedure Act, such rules and regula-
tions as may be necessary to carry out the provisions of this Act.
5U.S.C. 22(R.S.161)
The head of each department is authorized to prescribe regulations , not inconsistent
with law, for the government of his department , the conduct of its officers ands
clerks, the distribution and performance of its business , and the custody, use, and
preservation of the records , papers , and property appertaining to it.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dente and when that witness testifies as to those same matters of
evidence, the confidential nature of his communication has been
totally and irretrievably destroyed and thereupon the Respondent
may, under the rule in the Jencks case ask for and obtain the state-
ment pertaining to the matters to which the witness has testified. I
fail to see how the "matters of evidence" mentioned in the section are
still "confidential" when the witness has testified, in open court, to
those same "matters of evidence." This does not destroy the con-
fidential nature of our files. It merely means that once we have required
a witness to testify to the "matters of evidence" in his affidavit, we
have, ipso facto, by our own act and choice, destroyed the confidential
nature of that evidence and preempted the invocation of Section 102.86
and 102.87. It is further noted that when Section 102.86 specifies
"matters of evidence," it is not referring to affidavits but to the
matters of evidence in such affidavits because affidavits are not, per se,
"matters of evidence."
The Board itself on many occasions chooses to exercise its power
of destroying such confidential nature of affidavits. For example, on
many occasions, the General Counsel uses prior statements to refresh
a witness' recollection. In other instances, if a witness' memory
is not refreshed, perhaps because of lapse of time, the General Counsel
may offer the statement as past recollection recorded, after laying the
proper foundation. In many instances, the General Counsel has
sought by use of an affidavit to impeach a surprise hostile witness who
has given testimony contrary to his prior statement. In all. these
cases, once the General Counsel elects to use the prior statement, he
himself, ipso facto, removes the confidential nature of the platters
of evidence and the prior statement becomes available to the
Respondent.
In a recent case, Aeronca Manufacturing Company, 118 NLRB 461,
a hearing on objections, the petitioner objected to the employer's use
of affidavits of witnesses given to the General Counsel during the
course of the investigation. The employer was permitted to intro-
duce some of the affidavits into evidence for impeachment purposes.
The petitioner objected on the basis that the affidavits should be treated
as confidential communications for the use of the Board. The Board,
in its decision, footnote 4, held that the propriety of the Board's use
of affidavits for impeachment purposes is well established, citing
Quest-Shoe Mark Brassiere, supra; Seaboard Terminal and Refrig-
eration Company, 114 NLRB 754; Bridgeport Castings Company,
109 NLRB 749, 752. The Board stated :
As the Board could have used the affidavits for this purpose, it
was not prejudicial error for the Regional Director's representa-
tive to permit their use by another party to the proceedings for
the same purpose.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1289
It is submitted that the last sentence supra aptly phrases the gist of
the argulnent. If the Board can use the affidavits for impeachment
purposes, the respondent should be able to do likewise. "What is
sauce for the goose, should be sauce for the gander." 8 It would be
the height of unfairness and contrary to the spirit of justice to allow
the Board, at its will, to use confidential documents for impeachment
purposes in the prosecution of a case and yet withhold them from a
respondent for the same purpose on the basis that they are confidential.
I can conceive of a case where the first witness called by the General
Counsel, because of lapse of memory, can have his memory refreshed
by exhibiting to him his affidavit. In that case, the document be-
comes available to the respondent. Yet the next General Counsel
witness, on cross-examination, may testify that he does not recall
whether he stated certain facts in his affidavit, and does not recall
whether the affidavit is the same as his oral testimony. To contend
that the respondent should not be allowed use of such affidavit for
impeachment purposes would be a denial of justice. In such a situa-
tion, in Lamar Creamnery, 115 NLRB 1113, the Board remanded a
case back to a trial examiner to allow a witness to testify as to whether
he had, in his affidavit, given evidence of certain matters adduced
in his oral testimony where the trial examiner had sustained an objec-
tion of the General Counsel to this line of questioning.
In sung, the words of Judge Learned Hand in United States v.
Ando7schek,142 F. 2d 503, 506, quoted at length by the Supreme Court
in Jencks, seem to me to be applicable even though that case was a
criminal prosecution :
"The government must choose; either it must leave the trans-
actions in the obscurity from which a trial will. draw them or it
must expose them fully."
Our cases-in the words of Mr. Justice Clark, in his dissent in
Jencks-do not involve any of the "problems of foreign relations,
espionage, sabotage, subversive activities, counterfeiting, internal se-
curity, national defense and the like." The simple rule of justice
should apply to our proceedings, that whereas we may declare "matters
of evidence" obtained by Board agents to be confidential, yet when
we elect to have a witness testify as to those same matters, the Board
should not be able to invoke its evidentiary privileges for
... the Government which prosecutes an accused also has the
duty to see that justice is done, [and] it is unconscionable to allow
it to undertake prosecution and then invoke its governmental
privileges to deprive the accused of anything which might be
material to his defense.'
8 Cf. Judge Learned Hand in N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co.,
130 F. 2d 503 , 506 (C. A. 2 ). Cited with approval in Danish Maid Bakery v. N. L. R. B.,
204 F . 2d 848 (C. A. 9).
9 Jencks, 353 U. S. at 671.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I therefore hold that because the General Counsel, in the prosecu-
tion of the Respondent herein on a complaint accusing the Respondent
of a violation of a public law, saw fit to call Stanzler as a witness and
because the witness testified he had given a previous statement con-
cerning the matters to which he had testified, the General Counsel
cannot now invoke the governmental privilege and deny the prior
statement to the Respondent. I further hold that, pursuant to the
clear wording of Section 102.86, the governmental privilege no longer
existed, once Stanzler had testified to the "matters of evidence" in
his previously confidential affidavit. Accordingly, in view of the
conceded fact that the Respondent has fully conformed to the pro-
visions of Section 102.87, I would grant its motion insofar as it merely
requests "all written statements and affidavits made by Stanzler" and
deny it in all other respects.
MEMBER RODGERS took no part in the consideration of the above
Ruling on Appeal.
0. E. McIntyre , Inc. and District 65, Retail , Wholesale and Depart-
ment Store Union , AFL-CIO, Petitioner. Case No. 2-RC-8367.
September 3,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Leonard J. Lurie, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act 2
1 The Petitioner excepted to certain rulings on the scope of cross-examination and
access to documents . The rulings . are affirmed . Due process is not denied by restrictions
.placed upon an asserted right to full cross -examination in representation proceedings.
American Cable & Radio Corp. v. Douds , 111 F. Supp . 482, 484-485 (D. C., So. N. Y.).
Nor are such proceedings to be governed by technical rules of evidence . Jerome E. Mundy
-Co., Inc., 116 NLRB 1487 , footnote 2.
2 On the basis of a computation including authorizations submitted during the course of
the hearing and checked against the Employer 's then current payroll , we are administra-
118 NLRB No. 168.