Wal-Mart Stores

National Labor Relations Board - Board Decisions

May 19, 2003

339 N.L.R.B. 64 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
Wal-Mart Stores, Inc. and United Food and Com-
mercial Workers International Union, AFL–
CIO, CLC. Cases 28–CA–16831, 28–CA–16886,
28–CA–16887, 28–CA–16932, 28–CA–17001, 28–
CA–17012, 28–CA–17056, 28–CA–17157, and
28–CA–17208.
May 19, 2003
ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The issue raised in this matter is whether the adminis-
trative law judge has discretion to allow Respondent’s
counsel to retain pretrial statements and materials, pro-
vided pursuant to Section 102.118(b) of the Board’s
Rules and Regulations, after the close of the hearing. We
agree with counsel for the General Counsel that the ad-
ministrative law judge has no discretion to allow Re-
spondent’s retention of these so-called Jencks1 state-
ments beyond the close of the hearing.
As the hearing was about to close, counsel for the
General Counsel requested the administrative law judge
(ALJ) to order Respondent’s counsel to return all pretrial
statements provided to him pursuant to Section
102.118(b) of the Board’s Rules and Regulations. No
party had attempted during the hearing to enter the affi-
davits into evidence or otherwise make them part of the
official record. Respondent’s counsel demurred at the
request and claimed they were needed for use in any ap-
peals in the case. The judge closed the hearing and sug-
gested the parties resolve the issue among themselves.
He indicated he would entertain a posthearing motion if
there were no resolution. Unable to reach agreement
with Respondent’s counsel on the matter, counsel for the
General Counsel filed a motion with the judge seeking
return of the statements. Acknowledging that disclosure
of the statements is for the purpose of cross-examination,
the judge in his decision stated, however, that he did not
“read the rule to limit respondent’s use of statements to

1 Jencks Act, 18 U.S.C. § 3500 (1957). See also Jencks v. U.S., 353
U.S. 657 (1957). The Board’s provision for disclosure of pretrial
statements is provided in Sec. 102.118 of the Board’s Rules and Regu-
lations. Par. (b)(1) states in relevant part:
after a witness called by the General Counsel or by the charging party
has testified in a hearing . . . , the administrative law judge shall, upon
motion of the respondent, order the production of any statement (as
hereinafter defined) of such witness in the possession of the General
Counsel which relates to the subject matter as to which the witness has
testified. If the entire contents of any such statement relate to the sub-
ject matter of the testimony of the witness, the administrative law
judge shall order it to be delivered directly to the respondent for his
examination and use for the purpose of cross-examination.
cross-examination.”2 Concluding that he had discretion
to allow retention, the judge then weighed the General
Counsel’s concern for potential misuse if the statements
are retained by counsel against Respondent counsel’s
need for the statement throughout the course of litigation.
He found that on balance Respondent’s need for contin-
ued access to preserve and prosecute its case outweighed
the conjecture that the statements could be used for un-
toward purposes. Counsel for the General Counsel filed
exceptions to the judge’s decision on this issue and filed
a separate motion seeking the immediate return of the
statements. Respondent filed an opposition.
Section 102.118 of the Board’s Rules and Regulations
is a prohibition on the release of Board and General
Counsel files without permission. Subsection
102.118(b)(1) is a specific exception to that prohibition.
It provides for the release of a witness statement, after
that witness has testified, for use in cross-examination of
that witness. The rule, thus, embraces the Jencks re-
quirement. After that limited purpose is served, the ex-
ception no longer applies and the prohibition of the rule
is restored.
In our view, the plain meaning of Section 102.118(b)
of the Board’s Rules and Regulations limits the purpose
of disclosure to cross-examination. No other purpose is
stated, nor is there any hint that disclosure may be for
other uses. Had the Board intended for additional uses, it
would have stated those uses in the rule or provided for
them through its decision. Further, allowing respondents
to retain statements until the close of the hearing should
not be construed to expand the stated purpose of disclo-
sure. It merely facilitates the hearing in the event the
affiant is recalled.
Manbeck Baking Co., 130 NLRB 1186, 1189 (1961),
is not to the contrary. There the ALJ refused to permit
the Respondent to copy the statements or to permanently
retain them. The Board affirmed. Concededly, the
Board said,
Where, as here, these statements are not made a part of
the record, the Trial Examiner may nevertheless, in the
exercise of his discretion, permit the Respondent to
copy the statements where to do so would not impede
the hearing process.
The quoted language does not aid the Respondent. In
the first place, it refers to the “copying” part of the deci-
sion, not the “permanent retention” part. Secondly, it
refers to copying during “the hearing process,” not there-
after.3
2 JD(SF)–74–02, p. 37.
3 The Board subsequently approved an “operating procedure” under
which a copy would be furnished as a matter of courtesy to counsel. “If
339 NLRB No. 10
WAL-MART STORES 65
Based on the foregoing, we conclude that the adminis-
trative law judge did not have the discretion to expand
the stated purpose for disclosure provided in Section
102.118(b) of the rules. Further, the Respondent’s rea-
sons for retention of the statements have not persuaded
us to expand the stated purpose. Therefore, counsel for
the General Counsel’s motion is granted. Accordingly,

he so desires, counsel may retain the copy throughout the hearing to use
for any legitimate trial purpose, but on the close of the hearing he will
be expected to return the copy provided, as well as any other copies
made from it, to counsel for the General Counsel. 1970 Committee
Reports, Sec. of Labor Relations Law, American Bar Association, Vol.
II, p. 12.
the Respondent’s counsel is hereby ordered to return to
counsel for the General Counsel within 14 days of ser-
vice of this decision all copies of statements and attach-
ments thereto that were provided pursuant to Section
102.118(b) of the Board’s Rules and Regulations. Coun-
sel will certify that all such copies have been returned
and certify the names of those with whom he/she has
shared the statements.4

4 We are confident that the Respondent will comply with this Order,
even if it wishes to preserve its legal position in any argument it might
make in a court that reviews the ultimate Board decision.