Wal-Mart Stores, Inc. - Decision Summary

Wal-Mart Stores, Inc. (28-CA-16831, et al.; 339 NLRB No. 10) Las Vegas, NV May 19, 2003. The Board agreed with counsel for the General Counsel that the administrative law judge did not have the discretion to allow Respondent's counsel to retain pretrial statements taken from various Government witnesses, provided pursuant to Section 102.118(b) of the Board's Rules and Regulations or so-called Jencks statements, beyond the close of the hearing. Jencks Act, 18 U.S.C. 3500 (1957). See also Jencks v. U.S., 353 U.S. 657 (1957). The Board ordered the Respondent's counsel to return to counsel for the General Counsel all copies of the statements and attachments thereto within 14 days of service of its decision. Counsel must certify that all copies have been returned and must certify the names of those with whom he/she has shared the statements.

Subsection 102.118(b)(1) of the Board's Rules and Regulations 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 subject 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.

At the conclusion of the hearing, counsel for the General Counsel requested the judge to order the Respondent's counsel to return all pretrial statements provided to him pursuant to Section 102.118(b). Respondent's counsel claimed it needed the statements for any appeals. The judge closed the hearing, suggested the parties resolve the issue among themselves, and indicated he would entertain a posthearing motion if there were no resolution. The parties did not reach agreement and counsel for the General Counsel filed a motion with the judge seeking the return of the statements.

In his decision, the judge noted that the purpose of producing statements is their use in cross-examination, but he said he did not read Section 102.118(b) "to limit respondent's use of statements to cross-examination." Concluding that he had discretion to allow retention, the judge found on balance that the Respondent's need for continued access to preserve and prosecute its case outweighed the General Counsel's concern for potential misuse if counsel retained the statements. Counsel for the General Counsel filed exceptions to the judge's decision on this issue and a separate motion requesting the immediate return of the statements. The Respondent filed an opposition.

The Board held in granting the General Counsel's motion:

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 requirement. After that limited purpose is served, the exception no longer applies and the prohibition of the Rule is restored.

In our view, the plain meaning of Section 102.118(b) . . . 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 disclosure. It merely facilitates the hearing in the event the affiant is recalled.

The Board declined to expand the stated purpose of disclosure provided in Section 102.118(b), finding the Respondent's reasons for retention of the statements were unpersuasive.

(Chairman Battista and Members Liebman and Walsh participated.)