NATIONAL LABOR RELATIONS BOARD 

DIVISION OF JUDGES 

BENCH BOOK 

An NLRB Trial Manual 

August  2010

i

BENCH BOOK 

An NLRB Trial Manual 

TABLE OF CONTENTS 

INTRODUCTION............................................................................................................... 1 

CHAPTER 1. OPENING AND CLOSING TRIAL............................................................... 3

§ 1–100  Suggested Form of Opening Statement by Judge............................................. 3 

§ 1–200  Suggested Form of Closing Statement by Judge .............................................. 3 

§ 1–300  Model Sequestration Order............................................................................... 4 

§ 1–400  Administration of Oath ...................................................................................... 5 

§ 1–410  Witness Oath.............................................................................................. 5 

§ 1–420  Interpreter's Oath........................................................................................ 6

CHAPTER 2. ADMINISTRATIVE LAW JUDGE................................................................ 7

§ 2–100  Designation....................................................................................................... 7 

§ 2–200  Ex Parte Communications ................................................................................ 7 

§ 2–210  Basic Prohibition......................................................................................... 7 

§ 2–220  Exceptions to Basic Prohibition .................................................................. 7 

§ 2–230  Procedure When Prohibited Communication Received .............................. 8 

§ 2–300  Duties of Administrative Law Judges ................................................................ 9 

§ 2–400  Trials............................................................................................................... 11 

§ 2–500  Disqualification of Judge................................................................................. 12 

§ 2–510  Grounds Asserted for Disqualification....................................................... 12 

§ 2–520  Disqualification Procedure........................................................................ 16

CHAPTER 3. PLEADINGS ............................................................................................. 17

§ 3–100  The Charge..................................................................................................... 17 

§ 3–110  General Principles .................................................................................... 17 

§ 3–120  Filing and Service Under Section 10(b) .................................................... 17 

§ 3–130  Sufficiency of the Charge ......................................................................... 17 

§ 3–140  Withdrawal or Dismissal ........................................................................... 18 

§ 3–200  Complaint ....................................................................................................... 18 

§ 3–210  Adequacy of Complaint ............................................................................ 18 

§ 3–220  Complaint Closely Related to Timely Charge ........................................... 19 

§ 3–230  Bill of Particulars....................................................................................... 20 

§ 3–300  Amendments to Complaints............................................................................ 20 

§ 3–310  Who May Seek and Who May Grant Amendments...................................20 

§ 3–320  When Amendments Are Allowed .............................................................. 20 

§ 3–330  Amendments and Section 10(b) ............................................................... 21 

§ 3–340  De Facto Amendment—Unpleaded But Fully Litigated.............................21 

§ 3–400  Consolidation and Severance of Complaints................................................... 22 

§ 3–410  General Principles .................................................................................... 22 

§ 3–420  Consolidation ........................................................................................... 23 

§ 3–430  Severance................................................................................................ 23
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§ 3–500  Answer to Complaint....................................................................................... 24 

§ 3–550  Affirmative Defenses ................................................................................ 25 

§ 3–600  Section 10(b) Affirmative Defense................................................................... 25 

§ 3–610  Computation of Section 10(b) Period........................................................ 25 

§ 3–620  Not a Rule of Evidence............................................................................. 26 

§ 3–630  Continuing Violations................................................................................ 26 

§ 3–635  Backpay for Continuing Violations ............................................................ 27 

§ 3–640  Fraud or Deception................................................................................... 27 

§ 3–650  Revival of Withdrawn or Dismissed Charge.............................................. 27 

§ 3–700  Other Affirmative Defenses............................................................................. 28 

§ 3–710  Misconduct of Charging Party................................................................... 28 

§ 3–720  Laches ..................................................................................................... 28 

§ 3–730  Inadequate Investigation/Compliance with Casehandling Manual.............29 

§ 3–740  Deferral to Grievance Arbitration .............................................................. 29 

§ 3–750  Relitigation of Issues ................................................................................ 29 

§ 3–760  Section 8(g) Notice................................................................................... 30 

§ 3–770  Settlement Bar.......................................................................................... 30

CHAPTER 4. SERVICE OF DOCUMENTS..................................................................... 33

§ 4–100  In General....................................................................................................... 33 

§ 4–110  Federal Rules of Civil Procedure Not Controlling...................................... 33 

§ 4–200  Methods of Service......................................................................................... 33 

§ 4–300  Failure of Service............................................................................................ 34 

§ 4–310  Efforts to Frustrate Service....................................................................... 34 

§ 4–400  Who Must Be Served...................................................................................... 35 

§ 4–500  Determining Date of Service ........................................................................... 35 

§ 4–600  Proof of Service .............................................................................................. 35 

§ 4–700  Special Aspects of Service of Particular Documents....................................... 36 

§ 4–710  Charges and Amended Charges .............................................................. 36 

§ 4–720  Complaint and Notice of Hearing.............................................................. 37 

§ 4–730  Compliance Specifications........................................................................ 37 

§ 4–740  Answers to Complaints and to Compliance Specifications........................ 38 

§ 4–750  Subpoenas............................................................................................... 38

CHAPTER 5. PRETRIAL DISCOVERY AND DEPOSITIONS......................................... 39

§ 5–100  Pretrial Discovery............................................................................................ 39 

§ 5–200  Depositions..................................................................................................... 39

CHAPTER 6. TIME AND PLACE OF TRIAL................................................................... 41

§ 6–100  Before Trial Opens.......................................................................................... 41 

§ 6–200  After Trial Opens............................................................................................. 41 

§ 6–300  Requests for Continuance to Obtain Counsel ................................................. 41 

§ 6–310  Length of Continuance to Obtain Counsel or Substitute Counsel.............. 43 

§ 6–320  When Counsel or Party Leaves Trial After Request Is Denied.................. 43 

§ 6–400  Motions for Continuance to Prepare a Defense............................................... 43 

§ 6–500  Motions for Continuance Because of Unavailable Witness .............................44

CHAPTER 7. APPEARANCES AT TRIAL...................................................................... 45

§ 7–100  Representation at Trial.................................................................................... 45 

§ 7–110  Respondent Not Represented by Counsel................................................ 45 

§ 7–120  Representations That Present Possible Conflicts .....................................45
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§ 7–130  Attorney as Witness.................................................................................. 46 

§ 7–140  Representation at Postelection Proceedings ............................................ 46 

§ 7–200  Failure of Party to Appear at Trial ................................................................... 46 

§ 7–250  Absence of Respondent's Attorney........................................................... 46 

§ 7–300  Rights of Charging Parties and Discriminatees ............................................... 46 

§ 7–400  Intervention at Trial......................................................................................... 48 

§ 7–410  Necessary Parties .................................................................................... 48 

§ 7–420  Parties in Interest ..................................................................................... 49 

§ 7–500  Misconduct by Attorney or Representative...................................................... 49 

§ 7–510  Exclusion of Counsel................................................................................ 49 

§ 7–520  Authority to Admonish or Reprimand Counsel .......................................... 50 

§ 7–530  Suspension of Counsel............................................................................. 51 

§ 7–540  Awarding Litigation Costs ......................................................................... 53

CHAPTER 8. SUBPOENAS............................................................................................ 55

§ 8–100  In General....................................................................................................... 55 

§ 8–110  Application for Subpoena ......................................................................... 55 

§ 8–120  Service of Subpoena ................................................................................ 55 

§ 8–130  Geographic Reach of Subpoena .............................................................. 56 

§ 8–140  Fees and Mileage Required to be Paid..................................................... 56 

§ 8–150  Expert Witnesses, Required Fees and Mileage ........................................ 56 

§ 8–200  Revocation of Subpoenas............................................................................... 56 

§ 8–210  Petition to Revoke “In Writing”.................................................................. 56 

§ 8–220  “Within 5 Days” Requirement.................................................................... 57 

§ 8–230  Grounds for Revoking Subpoena.............................................................. 57 

§ 8–300  Scope of Subpoenas ...................................................................................... 58 

§ 8–310  Material Must Be “Reasonably Relevant”.................................................. 58 

§ 8–320  Request Must Not Be Vague or Overbroad .............................................. 58 

§ 8–330  Burdensomeness of Production................................................................ 58 

§ 8–340  Electronically Stored Information (Computer Records) .............................58 

§ 8–350  Request for Bargaining Information .......................................................... 59 

§ 8–360  Preserving Related Material ..................................................................... 59 

§ 8–400  Privileged Material .......................................................................................... 59 

§ 8–405  Burden of Proof—Privilege Log/Index....................................................... 59 

§ 8–410  In Camera Inspections.............................................................................. 60 

§ 8–415  Protective Orders ..................................................................................... 60 

§ 8–420  Attorney­Client Privilege........................................................................... 62 

§ 8–425  Business Records/Legal Advice in Collective Bargaining .........................63 

§ 8–430  Waiver of Attorney­Client Privilege ........................................................... 63 

§ 8–435  Crime/Fraud Exception to Attorney­Client Privilege .................................. 64 

§ 8–440  Duration of Attorney­Client Privilege......................................................... 64 

§ 8–445  Work Product Privilege............................................................................. 64 

§ 8–450  Reporter’s Privilege .................................................................................. 65 

§ 8–455  Testimony by Board Agents and Privileged Files...................................... 65 

§ 8–460  Mediator Not Subject to Subpoena........................................................... 66 

§ 8–465  State Confidentiality Rules Not Controlling ............................................... 66 

§ 8–470  Union Authorization Cards Not Producible by Subpoena.......................... 66 

§ 8–500  Jencks Statements Not Producible by Subpoena............................................ 66 

§ 8–510  Tape/Video Recordings............................................................................ 66 

§ 8–520  Permission of the General Counsel .......................................................... 67
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§ 8–600  Refusal to Honor Subpoena............................................................................ 67 

§ 8–610  Failure of Witness to Appear .................................................................... 67 

§ 8–620  Failure to Produce Documents ................................................................. 67 

§ 8–630  Interference with Subpoena Compliance .................................................. 68 

§ 8–700  Enforcement of Subpoenas on Behalf of Private Party.................................... 69

CHAPTER 9. SETTLEMENTS........................................................................................ 71

§ 9–100  In General....................................................................................................... 71 

§ 9–200  Promoting Settlement ..................................................................................... 71 

§ 9–220  At Pretrial Conference .............................................................................. 71 

§ 9–230  At the Trial................................................................................................ 72 

§ 9–240  After the Trial............................................................................................ 72 

§ 9–300  Settlements Approved..................................................................................... 72 

§ 9–320  Settlements Before Record Opens and Testimony Taken ........................ 72 

§ 9–330  Settlements After Testimony Is Taken and Before Decision Issues .......... 73 

§ 9–340  Settlement After Judge’s Decision Issues—ADR Program .......................73 

§ 9–400  Standards for Approving or Rejecting Settlements.......................................... 73 

§ 9–410  Types of Settlements—Formal, Informal, and Non­Board.........................73 

§ 9–420  Formal Settlements .................................................................................. 74 

§ 9–430  Informal and Non­Board Settlements........................................................ 74 

§ 9–440  Settlement by Consent Order ................................................................... 75 

§ 9–500  Procedures for Considering, Accepting, or Rejecting Settlement .................... 75 

§ 9–550  Summary Judgment to Enforce Settlement .............................................. 77 

§ 9–600  Various Provisions of Settlement Agreements ................................................ 77 

§ 9–610  Nonadmission Clauses............................................................................. 77 

§ 9–620  Settlement Bar Rule ................................................................................. 77 

§ 9–630  Joint and Several Liability......................................................................... 78 

§ 9–640  Releases .................................................................................................. 78 

§ 9–650  Taxability.................................................................................................. 78 

§ 9–700  Deferral to Grievance/Arbitration Settlements ................................................. 78 

§ 9–800  Setting Aside Settlement Agreements............................................................. 79 

§ 9–850  Decision Vacated by Settlement............................................................... 80 

§ 9–900  Role of Settlement Judge................................................................................ 80

CHAPTER 10. SEQUESTRATION ORDER.................................................................... 83

§ 10–100  In General ..................................................................................................... 83 

§ 10–200  Scope of Order.............................................................................................. 83 

§ 10–210  Conferring with Counsel ........................................................................... 83 

§ 10–220  Showing Transcripts to Witnesses............................................................ 84 

§ 10–300  Requests to Separate Witnesses .................................................................. 84 

§ 10–400  Who Should and Should Not Be Separated................................................... 84 

§ 10–500  Violation of Sequestration Order.................................................................... 85

CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS...................................... 87

§ 11–100  Use of Audio and Video Equipment............................................................... 87 

§ 11–110  Auditory Equipment Use, Whether Required ............................................ 87 

§ 11–120  Tape Recorders in Trial, Whether Allowed ............................................... 87 

§ 11–130  Television Cameras, Not Permitted in Courtroom.....................................87 

§ 11–200  Bankruptcy, Jurisdiction of Board .................................................................. 87 

§ 11–300  Binding Precedent, Judge Required to Follow............................................... 88 

§ 11–310  Judges Decisions, When Not Binding Precedent...................................... 88 

§ 11–320  Reliance on Prior Findings of Another Judge............................................ 88
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§ 11–330  Reliance on Portions of Other Records .................................................... 89 

§ 11–340  Motions to Dismiss ................................................................................... 89 

§ 11–350  Motions for Summary and Default Judgment............................................ 89 

§ 11–400  Correction of Transcript................................................................................. 89 

§ 11–500  Interlocutory Appeals from Judges Rulings ................................................... 89 

§ 11–600  Opening a Trial by Telephone or Mail............................................................ 90 

§ 11–610  Testimony by Telephone .......................................................................... 90 

§ 11–620  Testimony by Video.................................................................................. 90 

§ 11–700  Remands, Limited Issues .............................................................................. 91 

§ 11–800  Stipulations, Use of ....................................................................................... 91 

§ 11–900  Motion to Reopen Record.............................................................................. 92 

§ 11–1000  Compliance Proceeding .............................................................................. 92

CHAPTER 12. ORAL ARGUMENT, BRIEFS, JUDGES DECISIONS.............................93

§ 12–100  Pretrial or Trial Briefs..................................................................................... 93 

§ 12–200  Post­Trial Oral Argument............................................................................... 93 

§ 12–300  Post­Trial Briefs............................................................................................. 93 

§ 12–400  Briefs Not Part of Official Record................................................................... 94 

§ 12–500  Expedited Decision Without Briefs, in Lieu of Bench Decision.......................94 

§ 12–600  Bench Decision ............................................................................................. 95 

§ 12–610  In General ................................................................................................ 95 

§ 12–620  Deciding to Issue Bench Decision ............................................................ 95 

§ 12–630  Procedures for Issuance of Bench Decisions ........................................... 95 

§ 12–640  Contents of Bench Decision ..................................................................... 96

CHAPTER 13.  EVIDENCE........................................................................................... 97

§ 13–100  Applicable Rules of Evidence, in General...................................................... 97 

§ 13–101  So Far as Practicable ............................................................................... 97 

§ 13–102  Taut Record ............................................................................................. 97 

§ 13–104  Background Evidence............................................................................... 98 

§ 13–105  Admissible to Show Motive....................................................................... 98 

§ 13–106  Presettlement Conduct............................................................................. 98 

§ 13–107  Section 8(c) and Union Animus ................................................................ 98 

§ 13–108  Judicial or Official Notice .......................................................................... 99 

§ 13–109  NLRB Decisions ....................................................................................... 99 

§ 13–110  State Unemployment Decisions................................................................ 99 

§ 13–111  Offers of Proof........................................................................................ 100 

§ 13–112  In General .............................................................................................. 100 

§ 13–113  During Examination of Adverse Witness................................................. 100 

§ 13–114  Narrative or Q and A Offers of Proof....................................................... 100 

§ 13–115  Waiver of Objection to Offer of Proof...................................................... 101 

§ 13–200  Hearsay....................................................................................................... 101 

§ 13–201  In General .............................................................................................. 101 

§ 13–202  Double Hearsay Excluded ...................................................................... 101 

§ 13–203  Admissible if Corroborated ..................................................................... 101 

§ 13–204  Exceptions to Hearsay Rules.................................................................. 102 

§ 13–205  Notice Not Required ............................................................................... 102 

§ 13–206  Affidavits................................................................................................. 102 

§ 13–207  In General .............................................................................................. 102 

§ 13–208  Declarant Deceased............................................................................... 103 

§ 13–209  Declarant Unavailable ............................................................................ 103 

§ 13–210  Of Recanting Witness............................................................................. 103
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§ 13–211  Bargaining Notes.................................................................................... 103 

§ 13–212  Newspaper/Television Reports............................................................... 104 

§ 13–213  Market Quotations, Directories ............................................................... 104 

§ 13–214  “Dead Man’s” Statutes............................................................................ 104 

§ 13–215  Position Letters or Statements................................................................ 104 

§ 13–216  Recordings............................................................................................. 105 

§ 13–217  Tape Recording (Audio/Video) Made Secretly........................................ 105 

§ 13–218  Tape Recording Obtained by Subpoena................................................. 106 

§ 13–219  Opinion Testimony by Lay Witness......................................................... 106 

§ 13–220  Expert Witness Testimony, In General ................................................... 106 

§ 13–221  Appropriateness of Expert Testimony..................................................... 106 

§ 13–222  Flawed Premises.................................................................................... 107 

§ 13–223  Handwriting/Union Authorization Cards .................................................. 107 

§ 13–224  Prior Notice to Opponent........................................................................ 107 

§ 13–230  Polygraphs ............................................................................................. 107 

§ 13–235  Adverse Inferences ................................................................................ 108 

§ 13–240  Admissions............................................................................................. 109 

§ 13–241  Admissions by Supervisor in Affidavit..................................................... 109 

§ 13–242  Statements of Non­Charging Party Witness Not Admission.................... 109 

§ 13–243  Admissions by Attorney/Position Statements.......................................... 109 

§ 13–244  Admissions by Employer in Section 8(b)(2) Case................................... 110 

§ 13–245  Settlement Discussions .......................................................................... 110 

§ 13–246  Document in Personnel File.................................................................... 110 

§ 13–250  Formal Papers—General Counsel Exhibit 1 ........................................... 111 

§ 13–255  Summaries............................................................................................. 111 

§ 13–260  Privileges................................................................................................ 111 

§ 13–261  General Rule—FRE 501......................................................................... 111 

§ 13–262  Attorney­Client Privilege......................................................................... 112 

§ 13–263  Work Product Privilege........................................................................... 112 

§ 13–264  Testimony of a Mediator......................................................................... 112 

§ 13–265  Fifth Amendment Claims ........................................................................ 112 

§ 13–266  Adverse Inference May Be Drawn .......................................................... 112 

§ 13–267  Grant of Immunity................................................................................... 113 

§ 13–300  Parol Evidence............................................................................................ 113 

§ 13–301  Evidence Improperly Obtained ............................................................... 113 

§ 13–400  State of Mind............................................................................................... 113 

§ 13–401  As Evidencing Coercion ......................................................................... 113 

§ 13–403  Evidence Affecting Remedy.................................................................... 114 

§ 13–405  Instatement of Applicants Denied Employment....................................... 114 

§ 13–406  Undocumented Workers......................................................................... 114 

§ 13–500  Reinstatement............................................................................................. 114 

§ 13–501  Litigation of Offer in Unfair Labor Practice Case..................................... 114 

§ 13–502  Misconduct—After­Acquired Evidence ................................................... 115 

§ 13–600  Witnesses ................................................................................................... 115 

§ 13–601  Competency ........................................................................................... 115 

§ 13–602  Trial Attorney for Party............................................................................ 116 

§ 13–603  Board Agents ......................................................................................... 116 

§ 13–606  Interpreters............................................................................................. 116 

§ 13–607  Appointment and Payment of Interpreters, Authority of Judge ................ 117 

§ 13–608  Examination of Witnesses ...................................................................... 117 

§ 13–609  Order of Examination.............................................................................. 117 

§ 13–610  Leading Questions ................................................................................. 117
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§ 13–611  Section 611(c) Witness........................................................................... 118 

§ 13–612  Refreshing Recollection.......................................................................... 118 

§ 13–613  Past Recollection Recorded ................................................................... 119 

§ 13–700  Cross­Examination...................................................................................... 119 

§ 13–701  Beyond the Scope.................................................................................. 119 

§ 13–702  Names of Employees Who Supported Union Not Obtainable ................. 119 

§ 13–703  Impeachment ......................................................................................... 119 

§ 13–704  No Impeachment on Collateral Matters................................................... 120 

§ 13–705  Criminal Convictions............................................................................... 120 

§ 13–706  Inconsistent Prior Statements................................................................. 121 

§ 13–800  Release of Witness Statements................................................................... 121 

§ 13–801  Generally Not Released/Jencks Exception............................................. 121 

§ 13–802  Copies in Possession of Others.............................................................. 122 

§ 13–803  Charging Party Entitled to Statements.................................................... 122 

§ 13–804  Statements by Respondent’s Witnesses................................................. 122 

§ 13–805  What Is a Jencks Statement?................................................................. 122 

§ 13–807  Notes Not Adopted ................................................................................. 123 

§ 13–808  Witness’s Notes Passed to General Counsel During Trial ...................... 123 

§ 13–809  Letters .................................................................................................... 123 

§ 13–810  In Camera Inspection on Relatedness Issue .......................................... 123 

§ 13–811  Time of Production ................................................................................. 123 

§ 13–812  Sufficient Time to Study.......................................................................... 124 

§ 13–813  Affidavits Admissible in Evidence ........................................................... 124 

§ 13–815  Right to Copy Jencks Statements........................................................... 124 

§ 13–816  Translation of Affidavit............................................................................ 125 

§ 13–900  Rebuttal and Surrebuttal Testimony ............................................................ 125

TABLE OF AUTHORITIES ........................................................................................... 127

BOARD CASES......................................................................................................... 127 

FEDERAL CASES ..................................................................................................... 143

INDEX ........................................................................................................................... 149

1

INTRODUCTION

This BENCH BOOK has been compiled to provide the National Labor Relations Board’s 

administrative law judges with a reference guide during trials when other resources are 

unavailable. It does not deal with issues that may arise during decision writing. It represents an 

effort to set forth Board precedent and other rulings and authorities on certain recurring 

procedural issues that may arise during the course of an NLRB trial. It is not a digest of 

substantive law. Nor should it be cited as precedent, or be considered a substitute for issue­ 

specific research. 

The basic sources that govern Board trials are the National Labor Relations Act (the Act), 

the Administrative Procedure Act (APA), the Board's Rules and Regulations (Board’s Rules), 

Statements of Procedure, Board decisions, and the Federal Rules of Evidence (FRE) applicable 

in U.S. district courts, so far as practicable. The Bench Book sometimes refers to the Federal 

Rules of Civil Procedure (FRCP). It also refers to unpublished Board orders, unappealed 

administrative law judges’ decisions, and other Board documents that are not binding precedent, 

but are included because they provide useful guidance.* Useful information is also available in the 

NLRB’s Classification Outline and Index (also known as CITENET, the Board’s website search 

database of Board cases) particularly in Chapter 596 “Procedure in ULP Proceedings,” in Chapter 

737 “Evidence,” and in Chapter 700 “General Legal Principles.”

* The Bench Book also includes citations to some of the two­Member Board decisions that issued from 

January 1, 2008 – March 29, 2010. The decisions, which are marked with an asterisk (*), may also lack 

precedential weight. See New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010) (holding that the two­ 

Member Board lacked authority to issue its decision in that case). They should therefore be cited, if at all, 

with caution, unless and until they have been affirmed by a three­Member panel or the full Board. See, e.g.,

ADF, Inc., 355 NLRB No. 62 (2010), reaffirming and incorporating by reference 355 NLRB No. 14 (2010). 

However, like unpublished orders, they may provide useful guidance in evaluating similar issues and 

factual situations.

3

CHAPTER 1. OPENING AND CLOSING TRIAL 

§ 1–100  Suggested Form of Opening Statement by Judge

The hearing will be in order. This is a formal trial before the National Labor 

Relations Board in ___________________, Case __________. [If consolidated with an 

objections­to­election case, add:] "consolidated with Case__________ for hearing on 

objections to election.'' 

The administrative law judge presiding is _________________. I am assigned to 

the _____________ [Washington, San Francisco, New York, or Atlanta] office of the 

Division of Judges. Any communications should be addressed to that office, and any 

requests for extensions of time should be addressed to the ___________ [Chief Judge or 

Deputy or Associate Chief Judge in Washington, or Associate Chief Judge in San 

Francisco, New York, or Atlanta] in that office. 

Will counsel and other representatives of the parties please state their 

appearances for the record. For the General Counsel . . . [the Charging Party] . . . [the 

Respondent]. 

If settlement discussions are desired at any time during the trial, I will be glad to 

grant a reasonable recess for that purpose. Trial developments sometimes change 

attitudes and make settlement possible. Accordingly, I am advising you now, before I have 

heard any of the testimony that I intend to offer opportunity for settlement discussions at 

two specific stages of the trial: first, at the conclusion of the General Counsel's case and, 

second, at the conclusion of the trial. If by inadvertence I overlook the matter, please call it 

to my attention. 

I invite you to bear in mind, as the trial proceeds, that opportunities for discussion 

of settlement will be available at all times on request. 

Mr./Ms. _______________ [the General Counsel's attorney] please introduce the 

pleadings and other formal papers. I will dispose of any preliminary motions after those 

are in evidence. 

The judge may also want to ask if the appearance sheet is completed.

§ 1–200  Suggested Form of Closing Statement by Judge

I will prepare and file with the Board my decision in this proceeding. A copy will be 

served on each of the parties. 

You are reminded to refer to the Board’s Rules and Regulations for information 

regarding the filing of briefs and proposed findings for my consideration, and regarding 

procedures before the Board after the issuance of a judge's decision. 

Now that all the evidence is in, you have a better opportunity to assess your 

chances regarding the outcome of the issues than you had at the outset of the trial. All 

parties should carefully weigh the risks entailed and decide whether an amicable
CHAPTER 1. OPENING AND CLOSING TRIAL 

4 

settlement of the issues might not offer a more satisfactory solution. Settlement may be 

arranged now or at any time before I issue my decision. 

I will allow until [date no more than 35 days from the close of the trial] for the filing 

of briefs and any proposed findings and conclusions. Any request for an extension of time 

for the filing of briefs must be made in writing to the [Chief Judge or Deputy or Associate 

Chief Judge in Washington, or Associate Chief Judge in San Francisco, New York, or 

Atlanta] and served on the other parties. The positions of the other parties regarding the 

extension should be obtained and set forth in the request. It is the policy of the Division of 

Judges to grant discretionary extensions only when they are clearly justified. Requests for 

extensions must contain specific reasons and show that the requesting party cannot 

reasonably meet the current deadline. 

There being nothing further, the trial is now closed. Off the record.

§ 1–300  Model Sequestration Order

Counsel has invoked a rule requiring that the witnesses be separated, or 

sequestered. This means that all persons who are going to testify in this proceeding, with 

specific exceptions that I will tell you about, may be present in the courtroom only when 

they are giving testimony. 

The exceptions are alleged discriminatees, natural persons who are parties, and a 

person who is shown by a party to be essential to the presentation of the party’s cause. 

They may remain in the courtroom even if they are going to testify, or have testified. 

Alleged discriminatees including charging parties, however, may not remain in the 

courtroom when other witnesses on behalf of the General Counsel or the Charging Party 

are giving testimony regarding events about which the alleged discriminatees will be 

expected to testify. 

The rule also means that from this point on until the trial is finally closed, no 

witness may discuss with other potential witnesses either the testimony that they have 

given or that they intend to give. The best way to avoid any problems is simply not to 

discuss the case with any other potential witness until after the trial is completed. 

Under the rule as applied by the Board, with one exception, counsel for a party 

may not in any manner, including the showing of transcripts, inform a witness about the 

content of the testimony given by a preceding witness, without express permission of the 

administrative law judge. The exception is that counsel for a party may inform the 

counsel’s own witness of the content of testimony, including the showing of transcripts, 

given by a witness for the opposing side to prepare for rebuttal of the testimony. 

I expect counsel to police the rule and to bring any violation of it to my attention 

immediately. It is the obligation of counsel to inform potential witnesses who are not now 

present in the courtroom of their obligations under the rule. 

(It is also recommended that, as witnesses leave the witness stand upon 

completion of their testimony, they be reminded that they are not to discuss their 

testimony with any other witness until the trial is completed.)
CHAPTER 1. OPENING AND CLOSING TRIAL 

5 

The above model is set forth in Greyhound Lines, 319 NLRB 554, 554 (1995). For more 

details on separating, excluding, or sequestering witnesses, see CHAPTER 10, “Sequestration 

Order,” below. 

NOTE: A shortened version of the Greyhound order is set forth below. 

A sequestration order is being issued in this proceeding. This means that all 

persons who expect to be called as witnesses in this proceeding, other than a person 

designated as essential to the presentation of a party’s case, will be required to remain 

outside the courtroom whenever testimony or other proceedings are taking place. 

A limited exception applies to witnesses who are alleged discriminatees in this 

matter. They may be present in the courtroom at all times, other than when witnesses for 

the General Counsel or a charging party are giving testimony about the same events 

about which the alleged discriminatees expect to testify. 

The sequestration order also prohibits all witnesses from discussing with any other 

witness or any possible witness the testimony he/she has already given or will give. 

Likewise, counsel for a party may not disclose to any witness the testimony of any other 

witness. Counsel may, however, inform his/her own witness of the content of testimony 

given by any opposing party’s witness to prepare to rebut that witness’ testimony. 

It is the responsibility of counsel to see that they and their witnesses comply with 

this sequestration rule. 

NOTE: The judge may want to ask if there is a person essential to the presentation of any 

party’s cause, to be designated to remain in the courtroom during the trial.

§ 1–400  Administration of Oath

Examination is under oath. Board’s Rules, Section 102.30. The oath should be 

administered to witnesses in a manner calculated to impress them with the importance and 

solemnity of their promise to adhere to the truth. Each witness should be sworn separately and 

impressively. 

An affirmation instead of an oath is acceptable. FRCP Rule 43(d). If a witness refuses to 

swear or affirm on the basis of religious conviction, any formula of words that can reasonably be 

construed as a promise or undertaking to testify truthfully will suffice. See Silver State Disposal 

Service, 326 NLRB 84, 98–100 (1998); and Union Starch & Refining Co., 82 NLRB 495, 496 

(1949).

§ 1–410  Witness Oath

“Do you solemnly swear that your testimony at this trial will be the truth, the whole 

truth, and nothing but the truth, so help you God?” 

“Please be seated and give your name and address to the court reporter.” 

(If needed for accuracy of transcript:) “How do you spell your name (or your first or 

last name)?” 

For affirmation: “Do you solemnly affirm that you will testify truthfully at this trial?”
CHAPTER 1. OPENING AND CLOSING TRIAL 

6

§ 1–420  Interpreter's Oath

“Do you solemnly swear that you are fluent in both English and __________ 

[foreign language] and that you will faithfully and truly, to the best of your skill, knowledge, 

and ability, translate from English to __________ [foreign language] and from 

__________ [foreign language] to English when called upon to do so during the trial, so 

help you God?”
7

CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

§ 2–100  Designation

Board’s Rules, Section 102.15, states that the complaint shall contain “a notice of hearing 

before an administrative law judge.” The Statements of Procedure, Section 101.10(a), states that 

a “designated administrative law judge presides over the hearing.” 

The administrative law judge is designated by the Chief Judge or Deputy or Associate 

Chief Judge in Washington, or by the Associate Chief Judge in San Francisco, New York, or 

Atlanta, “as the case may be.” Board’s Rules, Section 102.34. The designation “is a matter for 

administrative determination by the Board with which the parties have no concern.” East Texas 

Steel Castings Co., 116 NLRB 1336, 1337 (1956), enfd. 255 F.2d 284 (5th Cir. 1958).

§ 2–200  Ex Parte Communications 

§ 2–210  Basic Prohibition

Once designated, the judge is prohibited from ex parte communication with any of the 

parties to the proceeding. Board’s Rules, Sections 102.126 and 102.128(e). Nor shall any person 

“knowingly and willfully solicit the making of an unauthorized ex parte communication by any 

other person.”  Board’s Rules, Section 102.131. 

An ex parte communication is any “oral or written communication not on the public record 

[about] which reasonable prior notice to all parties is not given.” Board’s Rules, Sections 

102.127(b) and 102.129. The prohibition continues “until the issues are finally resolved by the 

Board.” Section 102.128. 

Even communications with the judge regarding inadvertent errors in a judge’s decision 

may be considered improper if the errors are substantive. See Wilco Business Forms, 280 

NLRB 1336, 1336 fn. 2 (1986)  (representative of the General Counsel notified an Associate 

Chief Judge of the omission of two employees’ names from the decision’s list of laid off 

employees, prompting the deciding judge to issue an errata adding the names). See also

Today’s Man, 263 NLRB 332, 333 fn. 3 (1982) (Board’s Executive Secretary treated as a 

prohibited ex parte communication a letter from the respondent’s counsel to the judge, requesting 

deletion of certain language from the judge’s decision).

§ 2–220  Exceptions to Basic Prohibition

Obviously, not every off­the­record communication between the judge and the parties is 

prohibited, because otherwise the judge could not perform some of the duties assigned by 

Board’s Rules, Section 102.35(a). See §2–300, “Duties of Administrative Law Judges,” below. 

Section 102.130 lists a number of ex parte communications that are not prohibited. These 

exceptions include: 

Communications of matters that a judge is authorized to handle ex parte. Board’s Rules, 

Section 102.31(a), states, “Applications for subpoena may be made ex parte.” Thus, a party may 

submit an application to a judge outside the presence of other parties and, further, without service
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

8 

on them of a copy of the application. See Blake Construction Co., 245 NLRB 630, 630 fn. 1 

(1979), enfd. in part 663 F.2d 272 (D.C. Cir. 1981). 

Communications for information regarding status of case. Board’s Rules, Section 

102.130(b). This includes, for example, calls to a party to ascertain if the trial, in fact, may be as 

long or short as estimated. In Care Manor of Farmington, 314 NLRB 248, 248 fn. 2 (1994), the 

Board held that this and the preceding exemption of Section 102.130(a) permitted a judge’s call 

to counsel for the General Counsel to advise “that [the judge] would be presiding” and to request 

that counsel notify the respondent’s counsel of that fact. The Board specifically noted “the 

absence of evidence that a prohibited topic was discussed or that some other prohibited conduct 

occurred” during that call. 

Communications to which all parties agree, or on which the judge formally rules, may be 

made ex parte. Board’s Rules, Section 102.130(c). This includes, for example, a judge’s 

settlement conversation with counsel for the General Counsel that had “occurred with the 

knowledge of the Respondents and on the heels of a discussion among all of the parties” and did 

not “in any way involve[ ] the merits of the complaint allegations.” Sanford Home for Adults, 253 

NLRB 1132, 1132 fn. 1 (1981), enfd. 669 F.2d 35 (2d Cir. 1981). 

Communications proposing settlement or agreement for disposition of any or all issues 

may be made ex parte. Board’s Rules, Section 102.130(d). For example, it is not improper for the 

judge trying a case to discuss settlement offers with alleged discriminatees, Sumo Airlines, 317 

NLRB 383, 383 fn. 1 (1995), nor to inquire about particular remedies that a party would demand 

or forgo to reach settlement, Sanford Home for Adults, above, as long as there was no 

discussion about the merits of the complaint’s allegations. 

Communications between the judge and a colleague concerning procedural matters may 

be made ex parte. It is not a prohibited ex parte communication for a judge to consult with a 

colleague concerning procedural matters pertaining to a case pending before the consulting 

judge. Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 943–944 (D.C. Cir. 1999).

§ 2–230  Procedure When Prohibited Communication Received

If the communication is oral, the judge should refuse to listen, inform the communicator of 

the prohibition and advise the communicator to put what he or she has to say in writing, with 

copies to all parties. If the communication was completed, the judge should prepare a 

memorandum stating its substance and place it “on the public record of the proceeding,” Board’s 

Rules, Section 102.132(a), with copies to be served “on all other parties to the proceeding and on 

the attorneys of record for the parties.” Board’s Rules, Section 102.132(b). 

If the communication is written, the judge should place it “on the public record of the 

proceeding,” Board’s Rules, Section 102.132(a), with copies to be served “on all other parties to 

the proceeding and on the attorneys of record for the parties.” Section 102.132(b). 

In both of those situations, parties have 14 days after mailing of the copies, to file with the 

judge and serve “on all other parties, a statement setting forth facts or conclusions to rebut those 

contained in the prohibited communication,” after which the “responses shall be placed in the 

public record of the proceeding, and provision made for any further action, including reopening of 

the record which may be required under the circumstances.” Board’s Rules, Section 102.132(b). 

It is not clear what steps should next be taken by the judge. Board Rules, Section 

102.133(a), does provide that when “the nature and circumstances of a prohibited communication
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

9 

. . . are such that the interests of justice and statutory policy may require remedial action, the 

Board, administrative law judge, or Regional Director, as the case may be, may issue to the party 

making the communication a notice to show cause, returnable before the Board within a stated 

period of not less than 7 days from the date . . . why the Board should not determine that the 

interests of justice and statutory policy require that the claim or interest in the proceeding of a 

party who knowingly makes a prohibited communication or knowingly causes a prohibited 

communication to be made should be dismissed, denied, disregarded, or otherwise adversely 

affected on account of [the] violation.” Succeeding subsections of Section 102.133 set forth 

actions to be taken by the Board, but make no provision for further action by a judge who issues 

the notice to show cause.

§ 2–300  Duties of Administrative Law Judges

The administrative law judge’s basic duty is “to inquire fully into the facts . . . whether the 

Respondent has engaged in or is engaging in an unfair labor practice affecting commerce as set 

forth in the complaint or amended complaint.” Board’s Rules, Section 102.35(a). See Hall 

Industries, 293 NLRB 785, 785 fn. 1 (1989), enfd. mem. 914 F.2d 244 (3d Cir. 1990). Obviously, 

this duty is primarily accomplished by “presid[ing] over the [trial].” Statements of Procedure, 

Section 101.10. In doing so, the judge is responsible for (1) “courtroom administration,” Liteky v. 

U.S., 510 U.S. 540, 555–556 (1994), (2) “attempting to move the trial along without unnecessary 

delay,” U.S. v. Gonzalez­Soberal, 109 F.3d 64, 73 (1st Cir. 1997)—though not by sacrificing 

“strict impartiality,” U.S. v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998), and (3) “prevent[ing] 

improprieties during the trial,” U.S. v. Warner, 971 F.2d 1189, 1197 (6th Cir. 1992). Regarding 

courtroom administration, the judge is “the governor of the trial for the purposes of assuring its 

proper conduct.” Quercia v. U.S., 289 U.S. 466, 469 (1933). 

Specific authority conferred upon administrative law judges by the Board is enumerated in 

Board’s Rules, Section 102.35(a)(1)–(a)(13). Some of that authority is discussed further below. 

To regulate the course of the trial. Board’s Rules, Section 102.35(a)(6). Participation of 

parties during trials “shall be limited to the extent permitted by the administrative law judge,” 

Board’s Rules, Section 102.38. “It is appropriate also for the [judge] to direct the [trial] so that it 

may be confined to material issues and conducted with all expeditiousness consonant with due 

process” (footnote omitted). Indianapolis Glove Co., 88 NLRB 986, 987 (1950). Toward that 

end, “[i]n the conducting of a [trial] the question of whether certain lines of inquiry or responses of 

witnesses should be curtailed rests within the sound discretion of the” judge. American Life 

Insurance and Accident Co., 123 NLRB 529, 530 (1959). 

See also FRE 611(a) (“The court shall exercise reasonable control over the mode and 

order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and 

presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and 

(3) protect witnesses from harassment or undue influence”). 

The judge’s authority to expedite trials, however, must not be exercised to the extent that 

it “limit[s] either party in the full development of its case.” Indianapolis Glove Co., above, 88 

NLRB at 987. See also American Life Insurance and Accident. Co., above, 123 NLRB at 530. 

Thus, a judge may not “cut off lines of inquiry and limit[ ] the response of witnesses to such an 

extent that the development of the case may have been hampered” (footnote omitted), Better 

Monkey Grip Co., 113 NLRB 938, 940 (1955), or to an extent that “precludes a fair 

determination” of the merits of parties’ cases, Dayton Power & Light Co., 267 NLRB 202, 202 

(1983). See also Boetticher & Kellogg Co., 137 NLRB 1392, 1392 fn. 1, 1398–1399 (1962) 

(Board held that the judge erred by refusing to permit respondent to cross examine a General
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

10 

Counsel witness because respondent refused judge’s direction to conduct cross examination 

before the charging party union had questioned the witness). 

In proper circumstances, however, the judge may place time limits on a party’s 

presentation of its case. Dickens, Inc., 355 NLRB No. 44, slip op. at 4 (2010); University 

Medical Center, 335 NLRB 1318, 1318 fn. 1, 1343 (2001), enfd. in part 335 F.3d 1079 (D.C. Cir. 

2003); and Teamsters Local 122 (August A. Busch & Co. of Massachusetts), 334 NLRB 

1190, 1193, and 1255 (2001) (also ordering litigation costs for delaying trial). See also §13–102, 

“Taut Record,” below. 

If appropriate or necessary to exclude persons or counsel from the trial for contemptuous 

conduct. Board’s Rules, Section 102.35(a)(6). Although Section 102.38 provides that “Any person 

shall have the right to appear at [the trial] in person, by counsel, or by other representative,” the 

right of parties and counsel to appear at trials is not unlimited. 

As pointed out above, judges are responsible for “courtroom administration,” Liteky v. 

U.S., above, and one aspect of that responsibility is “prevent[ing] improprieties during the trial.”

U.S. v. Warner, 971 F.2d 1189, 1197 (6th Cir. 1992). “To ensure a fair trial, the trial judge has a 

duty to require all counsel . . . to abide by the orders she issued and to adhere to the rules of 

evidence and procedure.” U.S. v. Logan, 998 F.2d 1025, 1029 (D.C. Cir. 1993), cert. denied 510 

U.S. 1000 (1993). Board’s Rules, Section 102.177(a), provides that, “Misconduct at any [trial] 

before an administrative law judge . . . shall be ground for summary exclusion from the [trial].” In 

taking this step, however, the judge should carefully explicate the reasons for exclusion. See

Great Lakes Screw Corp. v. NLRB, 409 F.2d 375, 378–381 (7th Cir. 1969). See also §7–510, 

“Exclusion of Counsel,” below. 

To make and file decisions. “After [trial] for the purpose of taking evidence upon a 

complaint, the administrative law judge shall prepare a decision.” Board’s Rules, Section 

102.45(a). See also Statements of Procedure, Section 101.11(a). Thus, although all parties can 

agree to stipulate the record for a decision, waiving trial before an administrative law judge, a 

judge cannot grant only one party’s motion to transfer a case directly to the Board for decision. 

See Machinists Lodge 1129 (Sunbeam Appliance Co.), 216 NLRB 630, 630 (1975). 

Board’s Rules, Section 102.45(a), requires that decisions “contain findings of fact, 

conclusions, and the reasons or basis [for them], upon all material issues of fact, law, or 

discretion presented on the record, and shall contain recommendations [on] what disposition of 

the case should be made.” See also Statements of Procedure, Section 101.11(a). Decisions 

which fail to make specific factual findings regarding issues raised by complaints, and which fail 

to include analysis of contentions, do not satisfy the obligations imposed on judges and may be 

remanded. See Webb Furniture Enterprises, 272 NLRB 312, 312 (1984). 

In decisions, judges must “apply established Board precedent which the Supreme Court 

has not reversed” (citation omitted), leaving “for the Board, not the judge, to determine whether 

that precedent should be varied.” Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984). Accord:

Pathmark Stores, Inc., 324 NLRB 378, 378 fn. 1 (2004). See also §11–300, “Binding Precedent, 

Judge Required to Follow,” below. 

After a decision issues, the judge may issue an erratum. Daniel Construction Co., 239 

NLRB 1335, 1335 fn. 2 (1979), enfd. mem. 634 F.2d 621 (4th Cir. 1980), cert. denied 450 U.S. 

918 (1981). But, an erratum may not be used as a means for making substantive changes in a 

decision. “Under [Board’s Rules] Secs. 102.35 and 102.45 . . . [the] judge is authorized to issue 

post­decisional errata to correct material typographical errors, but not to change matters of
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

11 

substance, such as findings on the merits.” Wilco Business Forms, 280 NLRB 1336, 1336 fn. 2 

(1986). As pointed out in that footnote, in addition to typographical errors, an erratum may be 

utilized to correct obvious omissions, but only ones explicitly encompassed by what has been 

said in the decision, such as correcting a notice so that it conforms to the remedy and 

recommended order. An erratum may not be utilized to add names of discriminatees who were 

never mentioned in the decision. For those changes, parties “should seek correction . . . either 

through exceptions . . . or by motions to the Board.” 

To call, examine, and cross­examine witnesses and to introduce documentary and other 

evidence. Board’s Rules, Section 102.35(a)(11). This section corresponds to FRE 614 and has 

generally been applied consistently therewith. Thus, a judge’s decision to question witnesses, or 

even to call witnesses, is not improper. Hall Industries, 293 NLRB 785, 785 fn. 1 (1989), enfd. 

mem. 914 F.2d 244 (3d Cir. 1990).  “Judges may do so repeatedly and aggressively to clear up 

confusion and manage trials,” or when “testimony is inarticulately or reluctantly given.” U.S. v. 

Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998), quoting from U.S. v. Norris, 873 F.2d 1519, 

1525–1526 (D.C. Cir. 1989), cert. denied 493 U.S. 835 (1989). See also Teamsters Local 722 

(Kasper Trucking), 314 NLRB 1016, 1017 (1994), enfd. mem. 57 F.3d 1073 (7th Cir. 1995); and

U.S. v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) (discussing judge’s role in “clarifying ambiguities, 

correcting misstatements, or obtaining information needed to make rulings”). Judges are not 

required to withhold their questioning until the parties have finished examining witnesses; rather, 

judges may “interrupt questioning . . . to clarify testimony or . . . develop a complete and 

integrated record.” Teamsters Local 722 (Kasper Trucking), above. 

Even so, discretion to examine witnesses and to introduce evidence is not unlimited. See

U.S. v. Gonzalez­Soberal, 109 F.3d 64, 72 (1st Cir. 1997). The judge “must refrain from 

impeaching or from examining witnesses to the extent that he takes out of the hands of either 

party the development of its case” (footnote omitted), Indianapolis Glove Co., 88 NLRB 986, 

987 (1950), from “appearing to assume the role of an advocate in attempting to impeach 

[witnesses’] prior testimony” (footnote omitted), Better Monkey Grip Co., 113 NLRB 938, 939 

(1955), and in general from slanting, as opposed to clarifying, the record. See NLRB v. Honaker 

Mills, 789 F.2d 262, 265 (4th Cir. 1986). 

The judge’s failure to ask questions of a party witness is generally not grounds for 

reversal. See Advocate South Suburban Hospital v. NLRB, 468 F.3d 1038, 1048 (7th Cir. 

2006)  (“[I]n an adversary legal system it is generally the attorney’s duty to provide specific 

testimony. [A]n advocate cannot palm off on the ALJ its apparent failure to properly question [the 

witness]”).

§ 2–400  Trials

“Any party shall have the right to appear at [the trial] in person, by counsel, or by other 

representative, to call, examine, and cross­examine witnesses and to introduce into the record 

documentary or other evidence,” Board’s Rules, Section 102.38. See also Statements of 

Procedure, Section 101.10(a). 

Public trials. Section 102.34 of the Board’s Rules provides that our hearings “shall be 

public unless otherwise ordered by the Board or the administrative law judge.”  The Board’s 

Statements of Procedure, Section 101.10(a) provides: “Except in extraordinary situations the 

[trial] is open to the public.” 

Unrepresented parties. The Act provides “no authority to provide counsel for litigants 

before the Board.” Golden Hours Convalescent Hospitals, 200 NLRB 279, 280 fn. 5 (1972).
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

12 

Moreover, the judge should not “act as advocate of those who appear” without representation, 

because to do so “would seriously erode [the judge’s] neutral position at the [trial].” Air Transport 

Equipment, 190 NLRB 377, 377 fn. 2 (1971), enfd. mem. 486 F.2d 1394 (2d Cir. 1972). An 

unrepresented party must “comply with relevant rules of procedural and substantive law,” Faretta 

v. California, 422 U.S. 806, 834 fn. 46 (1975), and has no “constitutional right to receive personal 

instruction from the trial judge on courtroom procedure.” McKaskle v. Wiggins, 465 U.S. 168, 

183–184 (1984). See also §7–110, “Respondent Not Represented by Counsel,” below. 

Intervention at Trial. A person seeking to intervene “shall file a motion in writing or, if made 

at the [trial], may move orally on the record, stating the grounds upon which [the] person claims 

an interest,” and may be permitted to intervene “in person or by counsel or other representative to 

[the] extent and upon such terms as [the Regional Director or administrative law judge, depending 

on whether the motion was made before or during trial] may deem proper.” Board’s Rules, 

Section 102.29. See §7–400, “Intervention at Trial,” below. 

Rules of evidence. “Any [unfair labor practice] proceeding shall, so far as practicable, be 

conducted in accordance with the rules of evidence applicable in the district courts of the United 

States under the rules of civil procedure for the district courts of the United States, adopted by the 

Supreme Court of the United States pursuant to section 2072 of title 28, U.S. Code [section 2072 

of title 28].” Section 10(b) of the Act. That provision is essentially restated in Board’s Rules, 

Section 102.39, and in Statements of Procedure, Section 101.10(a). This is an area covered in 

greater depth in CHAPTER 13, “Evidence,” below. 

NOTE: Board’s Rules, Section 102.39, states that “documentary evidence shall be 

submitted in duplicate.” 

Oral arguments and briefs. “Any party shall be entitled, upon request, to a reasonable 

period at the close of the [trial] for oral argument,” but it is within “the discretion of the . . . judge” 

to allow briefs “or proposed findings and conclusions, or both” to be filed. Board’s Rules, Section 

102.42. Under Board’s Rules, Section 102.42, however, “In any case in which the . . . judge 

believes that written briefs or proposed findings of fact and conclusions may not be necessary, he 

or she shall notify the parties at the opening of the [trial] or as soon thereafter as practicable that 

he or she may wish to hear oral argument in lieu of briefs.” Under that section, the judge has 

discretion to “fix a reasonable time for briefs” to be filed, “but not [more than] 35 days from the 

close of the [trial].”  “Whether to permit the parties to file post hearing briefs is a matter committed 

to the sound discretion of the administrative law judge.” K.O. Steel Foundry & Machine, 340 

NLRB 1295 (2003). See also CHAPTER 12, “Oral Argument, Briefs, Judges Decisions,” below.

§ 2–500  Disqualification of Judge 

§ 2–510  Grounds Asserted for Disqualification

“The functions of all administrative law judges . . . are conducted in an impartial manner,” 

Statements of Procedure, Section 101.10(b). The most commonly advanced ground for 

disqualification is the judge’s personal bias. The Fourth Circuit held in Eldeco, Inc. v. NLRB, 132 

F.3d 1007, 1010 (4th Cir. 1997), however, that a contention that “approximately 89%” of an 

administrative law judge’s “decisions in the last 20 years were in favor of the Union, thereby 

indicating a bias in favor of labor unions,” is irrelevant in determining bias. It cited its earlier 

decision, Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996), which held “this type 

of statistical argument is irrelevant” because in reality it “tells us little or nothing.”
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

13 

The terms “bias” and “prejudice” can also be applied when a judge’s conduct, for whatever 

reason, “precludes a fair determination” of the merits, Dayton Power & Light Co., 267 NLRB 

202, 203 (1983), prejudicing not only the party affected, but also the basic objective of “inquir[ing] 

fully into the facts.” Hall Industries, 293 NLRB 785, 785 fn. 1 (1989), enfd. mem. 914 F.2d 244 

(3d Cir. 1990). Beyond that, “proceedings should be free from any appearance [emphasis added] 

of partiality or bias.” Engineers Beneficial Assn. District 1 (Crest Tankers), 274 NLRB 1481, 

1482 fn. 5 (1985). 

In general, the terms bias and prejudice “connote a favorable or unfavorable disposition or 

opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it 

rests upon knowledge that the subject ought not to possess . . . or because it is excessive in 

degree.” Liteky v. U.S., 510 U.S. 540, 550 (1994). Thus, as the Court explained, those terms are 

not confined to opinions reached on the basis of extrajudicial sources, 510 U.S. at 554, but can 

be based upon “favorable or unfavorable predisposition” which “even though it springs from the 

facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render 

fair judgment.” 510 U.S. at 551. In reaching a determination in those areas, a series of factors 

have been scrutinized: 

Former representation of a party. Former service on the staff of the General Counsel’s 

office is not grounds for disqualification. Heads & Threads Co., 261 NLRB 800, 800 fn. 1 (1982), 

enfd. in part 724 F.2d 282 (2d Cir. 1983). Nor, for that matter, is past representation of another 

party, at least if that representation was relatively remote in time. Centeno Super Markets, 220 

NLRB 1151, 1151 fn. 1 (1975), enfd. 555 F.2d 442 (5th Cir. 1977), cert. denied 434 U.S. 1064 

(1978) (8 or 9 years had passed by time of trial). And, somewhat related, it is not grounds for 

disqualification that the administrative law judge is “employed by the Board which . . . also 

employs the staff of the General Counsel prosecuting the case.” Money Radio, 297 NLRB 705, 

705–706 (1990). 

Prior ruling against party. A judge is not disqualified from presiding over the remand of a 

case in which the same judge previously ruled against a respondent. Accordingly, the judge did 

not err in refusing to recuse himself simply because he had ruled against respondent’s 

predecessor in an unrelated case. Waterbury Hotel Management v. NLRB, 314 F.3d 645, 650– 

651 (D.C. Cir. 2003). But adherence to an erroneous ruling, after an initial remand, and 

allegations judge showed “irritation” and “impatience,” were found to warrant a second remand, 

this time to another judge, to remove any suggestion of bias or prejudice. St. Mary’s Nursing 

Home, 342 NLRB 979, 980 fn. 6 (2004), second remand decision affd. 240 Fed. Appx. 8, 10, 12–  13 (6th Cir. 2007). 

Criticisms of counsel, parties, or witnesses. Although “judicial remarks during the course 

of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, 

ordinarily do not support a bias or partiality challenge,” the criticisms “may do so if they reveal an 

opinion that derives from an extrajudicial source; and they will do so if they reveal such a high 

degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. U.S., 510 U.S. 

540, 555 (1994). 

For example, no prejudice is shown by comments “rebuk[ing] counsel for improper 

behavior” (citation omitted), U.S. v. Logan, 998 F.2d 1025, 1029 (D.C. Cir. 1993), cert. denied 

510 U.S. 1000 (1993), nor even necessarily for “remarks and behavior [that] could well be 

interpreted as disparaging the General Counsel and the Union.” Weather Shield Mfg., 292 NLRB 

1, 1 fn. 3 (1988), enf. denied 890 F.2d 52 (7th Cir. 1989). For that matter, bias was not shown by 

certain remarks made by the judge in an unrelated prior proceeding during which the judge had
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

14 

questioned counsel’s “professional integrity.” Merillat Industries, 307 NLRB 1301, 1301–1302 

(1992). 

On the other hand, the Board concluded that disqualification for bias was warranted by 

comments that “impugned the good faith of [a party] and questioned whether the General 

Counsel and the Charging Party were abusing the Board’s processes,” New York Times Co.,  265 NLRB 353, 353 (1982), as well as by “serious accusations and hostile tone” directed to one 

counsel, including the accusation that counsel would be “suborning perjury” if he asked certain 

questions. Reading Anthracite Co., 273 NLRB 1502, 1502 (1985). The Board has cautioned a 

judge against making intemperate comments about a witness and counsel for the General 

Counsel, to avoid giving even the appearance of bias, which might compromise the integrity of 

the Board’s decision­making process. Victor’s Café 52, Inc., 338 NLRB 753, 756–757 (2002). 

Referral of Evidence of Attorney Misconduct under Section 102.177 of the Board’s Rules. 

Judicial referral or reporting of evidence of attorney misconduct to disciplinary authorities is 

generally not grounds for recusal or disqualification. See U.S. v. Mendoza, 468 F.3d 1256, 1262 

(10th Cir. 2006); and Conklin v. Warrington, 476 F. Supp. 2d 458, 464 (M.D. Pa. 2007), affd. in 

relevant part 304 Fed. Appx. 115 (3d Cir. 2008) (unpublished). 

Comments about the merits and about evidence presented. A judge’s opinions, formed 

“on the basis of facts introduced or events occurring in the course of the current proceedings, or 

of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a 

deep­seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. U.S.,  510 U.S. 540, 555 (1994). Thus, although the Board has cautioned judges that it is “both 

advisable and prudent” to “refrain both on and off the record from making unnecessary remarks 

or comments to parties concerning the merits of their cases,” Aerosonic Instrument Corp., 116 

NLRB 1502, 1503 (1956), it has not viewed as improper either opinions expressed by judges 

about a particular defense, after all evidence has been received, Teamsters Local 722 (Kasper 

Trucking), 314 NLRB 1016, 1018 (1994), enfd. mem. 57 F.3d 1073 (7th Cir. 1995), or opinions 

“regarding the ultimate merits of the case . . . in the context of suggesting the possibility of 

settlement.” Roto Rooter, 288 NLRB 1025, 1025 fn. 2 (1988). 

For that matter, the Board concluded there was no bias shown by comments concerning 

testimony “which was evasive, unresponsive, and circumlocutory,” although it pointed out that the 

“comments would have better been left unsaid.” American Life Insurance and Accident Co.,  123 NLRB 529, 530 (1959). “A judge’s remarks that constitute mere expressions of a point of law 

are not sufficient to show personal bias or prejudice.” NLRB v. Honaker Mills, 789 F.2d 262, 265 

(4th Cir. 1986). 

On the other hand, bias was shown when the judge expressed his view that some 

“allegations . . . did not constitute unfair labor practices” and, accordingly, intended to preclude 

introduction of “any evidence to support [the] allegations.” Center for United Labor Action, 209 

NLRB 814, 814–815 (1974). See also Dayton Power & Light Co., 267 NLRB 202, 202–203 

(1983). Bias was also shown by a judge’s “statements throughout the [trial]” creating “the 

impression that he had prejudged the ultimate issue in the case.” Reading Anthracite Co., 273 

NLRB 1502, 1502 (1985). 

Rulings. “[J]udicial rulings alone almost never constitute valid basis for a bias or partiality 

motion . . . and can only in the rarest circumstances evidence the degree of favoritism or 

antagonism required . . . when no extrajudicial source is involved.” Liteky v. U.S., 510 U.S. 540, 

555 (1994). For example, no bias was shown when, before making evidentiary rulings, the judge 

sometimes asked how a party’s case would be prejudiced if its objection was overruled, and the
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

15 

judge told the parties “that a fair application of the rules of evidence may at times turn on whether 

. . . the case of the party opposing introduction of evidence would be prejudiced were the 

evidence received.” Blake Construction Co., 245 NLRB 630, 630 fn. 1 (1979), enfd. in part 663 

F.2d 272 (D.C. Cir. 1981). See also Bethlehem Temple Learning Center, Inc., 330 NLRB 1177, 

1177 fn. 1 and 1182–1183 (2000). 

Participation in questioning witnesses. As set forth in §2–300, “Duties of Administrative 

Law Judges,” above, administrative law judges possess authority to examine and cross­examine, 

as well as call, witnesses. As also pointed out, there are limits to that authority, and prejudice may 

be found when those limits are exceeded. 

Suggestions to counsel regarding how to proceed. It has been held improper for a judge 

to suggest that counsel “maintain a reasonably militant posture [regarding] the relevancy of . . . 

material.” Reading Anthracite Co., 273 NLRB 1502, 1502 (1985). Even so, the Board has not 

found bias when the judge suggested to counsel “a line of questioning” that “the judge might have 

accomplished . . . through his own questioning.” Teamsters Local 722 (Kasper Trucking), 314 

NLRB 1016, 1017 (1994), enfd. mem. 57 F.3d 1073 (7th Cir. 1995). 

Gratuitous and off­the­record remarks. A judge making such remarks, of itself, does not 

necessarily establish prejudice. Because of the potential for an appearance of partiality and 

accusations of bias, however, the Board has cautioned against gratuitous remarks. Better 

Monkey Grip Co., 113 NLRB 938, 940 (1955); and Teamsters Local 777 (Crown Metal), 145 

NLRB 197, 198 fn. 4 (1963), enfd. 340 F.2d 905 (7th Cir. 1964). It has also cautioned against off­ 

the­record remarks. Aerosonic Instrument Corp., 116 NLRB 1502, 1503 (1956) (“unnecessary 

remarks or comments to the parties [off the record] concerning the merits of their cases”); and

Thermoid Co., 90 NLRB 614, 614 fn. 2 (1950) (during a recess offering suggestions in trial 

tactics to counsel). 

Efforts to expedite trial. A “judge’s efforts at courtroom administration—even a stern and 

short­tempered judge’s ordinary efforts at courtroom administration—remain immune” from 

accusations of prejudice. Liteky v. U.S., 510 U.S. 540, 555–556 (1994). Even so, the efforts 

cannot be so extreme that they limit “either party in the full development of its case.” Indianapolis 

Glove Co., 88 NLRB 986, 987 (1950). For example, although “certain lines of inquiry or 

responses of witnesses [can] be curtailed,” American Life Insurance and Accident Co., 123 

NLRB 529, 530 (1959), in “attempting to move the trial along without unnecessary delay,” U.S. v. 

Gonzalez­Soberal, 109 F.3d 64, 73 (1st Cir. 1997), judges may not in the process preclude 

parties from presenting evidence that will allow a “fair determination” of the issues. Dayton 

Power & Light Co., 267 NLRB 202, 202 (1983); and Center for United Labor Action, 209 

NLRB 814, 814–815 (1974). Doing so may not lead to disqualification, but it surely will result in 

remand for further trial. See, for example, discussion of St. Mary’s Nursing Home, above. 

Copying from briefs. Although it is not per se disqualifying for a judge to adopt one side’s 

posthearing brief, “more or less verbatim,” the practice is frowned upon. Waterbury Hotel 

Management v. NLRB, 314 F.3d 645, 650–651 (D.C. Cir. 2003); Fairfield Tower Condominium 

Assn., 343 NLRB 923, 923 fn.1 (2004). However, where a judge, who had previously been 

warned against verbatim copying of briefs of the General Counsel and the Charging Party, did so 

again, the Board found that the judge’s decision created the impression that he was not impartial 

and the judge had “failed to conduct an independent analysis of the case’s underlying facts and 

legal issues.”  The Board therefore set aside the judge’s decision and remanded the case to a 

new judge for an independent review of the record and preparation of a new decision. Dish 

Network Service Corp., 345 NLRB 1071 (2005). See also J.J. Cassone Bakery, 345 NLRB 

1305 (2005); and §12–300, “Post­Trial Briefs,” below.
CHAPTER 2. ADMINISTRATIVE LAW JUDGE 

16

§ 2–520  Disqualification Procedure

“An administrative law judge may withdraw from a proceeding whenever he deems 

himself disqualified,” and parties can request that a judge withdraw “at any time following his 

designation and before filing of his decision.” Board’s Rules, Section 102.37. See also 

Statements of Procedure, Section 101.10(b). This means that if the asserted disqualifying facts 

are discovered after trial, but before issuance of the judge’s decision, a motion for disqualification 

must be made to the judge. Al Bryant, Inc., 260 NLRB 128, 128 fn. 1 (1982), enfd. 711 F.2d 543 

(3d Cir. 1983), cert. denied 464 U.S. 1039 (1984). 

To move for disqualification, a party must file with the judge “promptly upon the discovery 

of the alleged facts a timely affidavit setting forth in detail the matters alleged to constitute 

grounds for disqualification.” Board’s Rules, Section 102.37. See also Manor West, Inc., 311 

NLRB 655, 665 fn. 1 (1993) (motion to disqualify filed 7 weeks after trial closed but before judge’s 

decision issued found timely). 

If a party fails to file an affidavit with the judge before issuance of the judge’s decision, 

although aware of the asserted disqualifying facts, a subsequent motion for disqualification will be 

regarded by the Board as untimely. See Roto Rooter, 288 NLRB 1025, 1025 fn. 2 (1988);

Central Mack Sales, 273 NLRB 1268, 1268 fn. 2 (1984); and Sanford Home for Adults, 253 

NLRB 1132, 1132 fn. 1 (1981), affd. in relevant part 669 F.2d 35 (2d Cir. 1981). 

If the motion is timely filed, the judge must rule on the affidavit alleging grounds for 

disqualification and cannot simply refer it to the Board for disposition. See Al Bryant, Inc., above. 

Under Board’s Rules, Section 102.37, the judge can disqualify himself or herself if the affidavit is 

regarded as “sufficient on its face.” If the judge reaches a contrary conclusion, he or she “shall so 

rule on the record, stating the grounds for his ruling, and proceed with the [trial] or, if the [trial] has 

closed, he shall proceed with issuance of his decision,” presumably including a ruling on why 

disqualification is rejected.
17

CHAPTER 3. PLEADINGS 

§ 3–100  The Charge

See Board’s Rules, Section 102.9–102.14.

§ 3–110  General Principles

A charge may be filed by a labor organization, an employee, an employer, or any other 

entity. See Apex Investigation & Security Co., 302 NLRB 815, 818 (1991) (charges filed on 

behalf of, or by, health and welfare fund are valid because anyone may file a charge). A charge 

must be filed with the appropriate Regional Director or with the General Counsel. Board’s Rules, 

Sections 102.10 and 102.33. The venue of charge filing does not affect the Board’s jurisdiction.

Harris Corp., 269 NLRB 733, 734 fn. 1 (1984), citing Allied Products Corp., 220 NLRB 732, 

733 (1975).

§ 3–120  Filing and Service Under Section 10(b)

Under Section 10(b) of the Act, a charge must be filed and served within 6 months of the 

alleged unfair labor practice. 

A charge must be served, not merely filed, within the 6­month period. Dun & Bradstreet 

Software Services, 317 NLRB 84, 84–85 (1995), affd. 79 F.3d 1238 (1st Cir. 1996) (A charge 

served one day late, based in part on erroneous advice from Regional Office, is untimely). It does 

not, however, have to be received by the charged party within the 6­month period. NLRB v. 

Imperial House Condominium, 831 F.2d 999, 1003 (11th Cir. 1987); and NLRB v. Laborers 

Local 264, 529 F.2d 778, 781–785 (8th Cir. 1976). The charge must be signed. Board’s Rules, 

Section 102.11. But an unsigned copy served on the charged party is adequate if the original filed 

with the Regional Office is signed. Freightway Corp., 299 NLRB 531, 531 (1990). The Board has 

also held that the failure of a charging party to comply with the sworn acknowledgment or 

declaration requirements of Section 102.11 does not affect the timeliness of the filing of the 

charge. Alldata Corp., 324 NLRB 544, 544–545 (1997), enf. denied on other grounds, 245 F.3d 

803, 807 (D.C. Cir. 2001). 

Section 10(b) of the Act is discussed more fully at §3–600, “Section 10(b) Affirmative 

Defense,” below.

§ 3–130  Sufficiency of the Charge

A charge is required before the Board can act. NLRB v. Kohler Co., 220 F.2d 3, 7 (7th 

Cir. 1955). But a charge is not a pleading and does not require the specificity of a pleading. It 

merely serves to initiate a Board investigation to determine whether a complaint should be 

issued. NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959). A charge "is sufficient if it informs 

the alleged violator of the general nature of the violation charged against him and enables him to 

preserve the evidence relating to the matter.'' NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 704–  705 (8th Cir. 1967), quoting from NLRB v. Raymond Pearson, Inc., 243 F.2d 456, 458 (5th Cir. 

1957).
CHAPTER 3. PLEADINGS 

18

§ 3–140  Withdrawal or Dismissal

Withdrawal of a charge may be the result of solicitation by the General Counsel. If the 

charge lacks merit, but withdrawal is refused, the charge will be dismissed. The NLRB 

Casehandling Manual (Part One) Informal Dispositions Section 10120.3. Charges may also be 

withdrawn as part of a settlement agreement. 

Before the trial opens, a charge may be withdrawn only with the consent of the Regional 

Director. After the trial opens and evidence is introduced, but before the judge’s decision issues, 

the charge may be withdrawn only with the consent of the judge usually as part of the withdrawal 

of the complaint allegations approved by the judge pursuant to approval of a settlement 

agreement.  Alternatively, the judge may order the matter remanded to the Regional Director, 

who may rule on the withdrawal of the charge. After the judge’s decision issues, the charge may 

be withdrawn only with the consent of the Board. Section 101.9 of the Board’s Statement of 

Procedure. The Board has held that even after the opening of trial but before the receipt of 

evidence, the General Counsel has unreviewable discretion to withdraw the complaint. Sheet 

Metal Workers Local 28 (American Elgen), 306 NLRB 981, 981–982 (1992). After evidence has 

been introduced, however, the General Counsel no longer has unreviewable discretion to 

withdraw a complaint allegation. Sheet Metal Workers Local 162 (Lang’s Enterprises), 314 

NLRB 923, 923 fn. 2 (1994). See also CHAPTER 9, “Settlements,” below. 

The dismissal of a charge by the Regional Director may be appealed to the General 

Counsel’s Office of Appeals in Washington. Until the charge is finally dismissed by the Office of 

Appeals, it continues to exist during the appeals period. It is not time barred if it is reinstated 

during that period by the Regional Director, even though the reinstatement comes more than 6 

months after the occurrence of the unfair labor practice. Children’s National Medical Center,  322 NLRB 205, 205 (1996); Sioux City Foundry Co., 323 NLRB 1071, 1074 (1997), enfd. 154 

F.3d 832, 837–838 (8th Cir. 1998) (reinstatement in these circumstances is consistent with

Ducane Heating Corp., 273 NLRB 1389, 1389–1390 (1985), enfd. mem. 785 F.2d 304 (4th Cir. 

1986)). 

See also §3–650, “Revival of Withdrawn or Dismissed Charge,” below, in the context of 

Section 10(b) of the Act.

§ 3–200  Complaint

The authority to issue complaints rests solely with the General Counsel. The disposition of 

charges, and the decision whether a complaint should issue or be litigated, is within the exclusive 

province of the General Counsel and is not subject to review. Vaca v. Sipes, 386 U.S. 171, 182 

(1967) (“the Board's General Counsel has unreviewable discretion to refuse to institute an unfair 

labor practice complaint”). It is therefore error for a judge to conclude that the Regional Director 

was “without authority” to issue a complaint. See Cincinnati Enquirer, 298 NLRB 275, 275 

(1990), review denied 938 F.2d 284 (D.C. Cir. 1991), citing NLRB v. Food & Commercial 

Workers Local 23, 484 U.S. 112, 118–119, 124–126 (1987).

§ 3–210  Adequacy of Complaint

"The propriety of a pleading is today judged by its effectiveness as a mechanism for giving 

an adverse party notice of the claim upon which relief is sought.'' Curtiss­Wright Corp. v. NLRB,  347 F.2d 61, 72 (3d Cir. 1965). “All that is requisite in a valid complaint before the Board is that 

there be a plain statement of the things claimed to constitute an unfair labor practice that the 

respondent may be put upon his defense.” American Newspaper Publishers Assn. v. NLRB,
CHAPTER 3. PLEADINGS 

19 

193 F.2d 782, 800 (7th Cir. 1951), affd. 345 U.S. 100 (1953), quoting from NLRB v. Piqua 

Munising Wood Products Co., 109 F.2d 552, 557 (6th Cir. 1940). A complaint is adequate if it 

alleges “a defined and easily identified class of employees” and others “similarly situated” 

because the allegation is sufficient to put the respondent on notice that the complaint is not 

limited to named individuals. Iron Workers Local 433 (Reynolds Electrical), 298 NLRB 35, 35–  36 (1990), enfd. mem. 931 F.2d 897 (9th Cir. 1991). 

For another case discussing these principles, see Artesia Ready Mix Concrete, Inc.,  339 NLRB 1224, 1226 (2003). See also §3–230, “Bill of Particulars,” below.

§ 3–220  Complaint Closely Related to Timely Charge

A complaint is not restricted to the precise allegations of the charge. As long as there is a 

timely charge, the complaint may allege any matter sufficiently related to or growing out of the 

charged conduct. NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959). 

The test that applies for adding related uncharged allegations is stated in Redd­I, Inc.,  290 NLRB 1115, 1115–1116 (1988), citing NLRB v. Dinion Coil, 201 F.2d 484, 491 (2d Cir. 

1952). Although Redd­I dealt with allegations in complaint amendments that were not described 

in the underlying charge, a similar relatedness test applies to allegations in initial complaints.

Nickles Bakery of Indiana, 296 NLRB 927, 927–928 (1989). 

In applying the closely related test set forth in Redd­I, the Board looks at 

1)  Whether the untimely allegation involves the same legal theory as the timely charge. 

2)  Whether the untimely allegation arises from the same factual circumstances or 

sequence of events as the timely charge. 

3)  Whether the respondent would raise the same or similar defenses to both allegations. 

The Board has clarified Redd­I to make clear that the untimely allegation need not involve 

the same section of the Act as the other alleged violations. Nickles Bakery of Indiana, 296 

NLRB 927, 928 fn. 5 (1989). The boilerplate "other acts" language preprinted on the charge form, 

however, is not itself sufficient to support a more specific Section 8(a)(1) complaint allegation. 

See Nickles Bakery, above; and Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 591–592 (D.C. Cir. 

1994). 

The Board has also rejected a claim of different defenses when the complaint allegations 

involved the same unlawful object. Nickles, above, at 928 fn. 6. Sufficient nexus has likewise 

been found when the disputed charge and existing charge allegations "all occurred within the 

same general time period and concern conduct which constitutes an overall plan to resist the 

Union." Well­Bred Loaf, 303 NLRB 1016, 1016 fn. 1 (1991). See also Office Depot, Inc., 330 

NLRB 640, 640–642 (2000). But see The Carney Hospital, 350 NLRB 627, 630 (2007) (“Mere 

chronological coincidence during a union campaign does not warrant the implication that all 

challenged employer actions are related to one another as part of a planned response to that 

campaign”); and SKC Electric, Inc., 350 NLRB 857, 858 (2007) (applying Carney Hospital). 

Compare also Kentucky Tennessee Clay Co., 343 NLRB 931, 932 (2004), enfd. 179 

Fed. Appx. 153 (4th Cir. 2006), (reduction in hours closely related to charge); with *Trade Fair 

Supermarkets, 354 NLRB No. 16 (2009) (failure to apply bargaining agreement to nonmembers 

not closely related to retaliation against employees for union activity).
CHAPTER 3. PLEADINGS 

20 

See also §3–330, “Amendments and Section 10(b),” and §3–650, “Revival of Withdrawn 

or Dismissed Charge,” below, for more detailed discussions of the relatedness test in the context 

of Section 10(b).

§ 3–230  Bill of Particulars

Bills of particulars are normally handled at the pretrial stage by the Chief Judge or Deputy 

or Associate Chief Judge in Washington, or by the Associate Chief Judge in San Francisco, New 

York, or Atlanta. They may, however, be raised at the beginning of a trial in the same or a 

somewhat different form. 

As a general matter, "a bill of particulars is justified only when the complaint is so vague 

that the party charged is unable to meet the General Counsel's case.'' North American 

Rockwell Corp. v. NLRB, 389 F.2d 866, 871 (10th Cir. 1968). A complaint that alleges 

interrogation and threats, gives the month of the occurrence, and identifies the official responsible 

is sufficient to acquaint the respondent with the charges and issues to be considered at the trial.

Lloyd A. Fry Roofing Co. v. NLRB, 222 F.2d 938, 940 (1st Cir. 1955). 

Also adequate is a complaint that describes the nature of the activity and gives dates and 

names of the respondent's agents. Dal­Tex Optical Co., 130 NLRB 1313, 1315 (1961). The 

names of employees to whom an alleged Section 8(a)(1) violation was directed need not be 

pleaded, and a respondent is not entitled to disclosure of the names before the trial. See Walsh­ 

Lumpkin Wholesale Drug Co., 129 NLRB 294, 295 (1960); and Storkline Corp., 141 NLRB 

899, 902–903 (1963), enfd. in part 330 F.2d 1 (5th Cir. 1964). Nor is the General Counsel 

required to plead evidence or the theory of the case in the complaint. North American Rockwell,  above, 389 F.2d at 871; and Boilermakers Local 363 (Fluor Corp.), 123 NLRB 1877, 1913 

(1959). See also cases cited in Artesia Ready Mix Concrete, Inc., 339 NLRB 1224, 1226 fn. 3 

(2003). 

A rough rule of thumb is that a complaint should allege the 4 Ws: who committed the act, 

what was done, when was it done, and where. See also Board’s Rules, Section 102.15, which 

sets out what is required in a complaint.

§ 3–300  Amendments to Complaints 

§ 3–310  Who May Seek and Who May Grant Amendments

After the trial opens, the judge may amend the complaint only on motion by, or with the 

consent of, the General Counsel. GPS Terminal Services, 333 NLRB 968, 968–969 (2001). The 

charging party cannot enlarge upon or change the General Counsel’s theory of the case.

Kimtruss Corp., 305 NLRB 710, 711 (1991). However, the charging party may submit evidence 

regarding an appropriate remedy different from the remedy sought by the General Counsel.

Kaumagraph Corp., 313 NLRB 624, 624–625 (1994).

§ 3–320  When Amendments Are Allowed

Board’s Rules, Section 102.17, permits complaint amendments “upon [terms that] may 

seem just.” This gives the trial judge wide discretion. *Empire State Weeklies, Inc., 354 NLRB 

No. 91, slip op. 2 (2009). Generally, amendments are permitted when they are sufficiently related 

to existing allegations and no undue prejudice would be visited on the respondent. See Payless
CHAPTER 3. PLEADINGS 

21

Drug Stores, 313 NLRB 1220, 1220–1221 (1994); and Pincus Elevator & Electric Co., 308 

NLRB 684, 684–685 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993). See also Sheet Metal 

Workers Local 91 (Schebler Co.), 294 NLRB 766, 774–775 (1989), enfd. in part and remanded 

in part 905 F.2d 417 (D.C. Cir. 1990) (after the close of trial is too late). 

In Stagehands Referral Service, 347 NLRB 1167 (2006), the Board affirmed a judge 

who denied a motion to amend at the hearing. Citing Cab Associates, 340 NLRB 1391, 1397 

(2003), the Board analyzed three factors in determining whether the amendment was “just:”  (1) 

whether there was surprise or lack of notice; (2) whether the General Counsel offered a valid 

excuse for its delay in moving to amend; and (3) whether the matter was fully litigated. In 

assessing those factors, the Board concluded that the proposed amendment would not be just in 

the circumstances presented. Id. at 1171. 

Even when amendments would otherwise be permitted, however, the judge may be 

reluctant to grant amendments that require significant further evidence after the General Counsel 

has rested or when the case is nearing completion. Particularly in long cases in which there is no 

Section 10(b) problem, it might be more appropriate to require the filing of a new charge and, if 

there is merit to the charge, a new complaint. In any event, the judge has considerable discretion 

in granting motions to amend. If the motion is granted, the judge should be liberal in granting the 

respondents sufficient time to submit evidence in response to the amendments. 

Open­ended motions made at the conclusion of a trial to conform the pleadings to the 

proof should be viewed with skepticism. Any amendments should be explicit and anything 

material should be fully litigated. See generally Desert Aggregates, 340 NLRB 289, 292–293 

(2003). Minor discrepancies that are not material, such as dates, may not preclude a finding that 

is otherwise supported by the evidence. See *Empire State Weeklies, Inc., above.

§ 3–330  Amendments and Section 10(b)

In certain circumstances, uncharged allegations may be the subject of amendments to the 

complaint. “If a charge was filed and served within 6 months after the violations alleged in the 

complaint, the complaint (or amended complaint), although filed after the 6 months, may allege 

violations not alleged in the charge if (1) they are closely related to the violations named in the 

charge, and (2) occurred within six months before the filing of the charge.” Redd­I, Inc., 290 

NLRB 1115, 1115–1116 (1988), citing NLRB v. Dinion Coil, 201 F.2d 484, 491 (2d Cir. 1952). 

See also Old Dominion Freight Line, 331 NLRB 111 (2000). 

Thus, Section 10(b) establishes two independent requirements for complaint allegations: 

they must be closely related to charge allegations, and the unfair labor practices alleged in the 

complaint must have occurred less than 6 months before the charge was filed. *Trade Fair 

Supermarkets, 354 NLRB No. 16, slip op. at 3 (2009).

§ 3–340  De Facto Amendment—Unpleaded But Fully Litigated

An unpleaded matter may support an unfair labor practice finding if it is closely connected 

to the subject matter of the complaint and has been fully litigated. Pergament United Sales, 296 

NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); and Meisner Electric, Inc., 316 NLRB 

597, 597 (1995), affd. mem. 83 F.3d 436 (11th Cir. 1996). See also Airborne Freight Corp., 343 

NLRB 580, 581(2004); and Hi­Tech Cable Corp., 318 NLRB 280, 280 (1995), enfd. in part 128 

F.3d 271 (5th Cir. 1997).
CHAPTER 3. PLEADINGS 

22 

“A respondent cannot fully and fairly litigate a matter unless it knows what the accusation 

is.” Allied Mechanical Services, Inc., 346 NLRB 326, 329 (2006). Thus, as the Board stated in  *United States Postal Service, 352 NLRB 923, 923 (2008): 

The determination of whether a matter has been fully litigated rests in part on whether . . . 

the respondent would have altered the conduct of its case at the hearing, had a specific 

allegation been made [citing Pergament, above, 296 NLRB at 335]. Further, ‘[t]he 

presentation of evidence associated with an alleged claim . . . is insufficient to put the 

parties on notice that another, unalleged claim (for which the evidence might also be 

probative) is being litigated, especially where the two claims rely on different theories of 

liability,’ [citing Dilling Mechanical Contractors, 348 NLRB 98, 107 (2006)]. 

See also *New York Post, 353 NLRB No. 343 (2008); Lamar Advertising of Hartford,  343 NLRB 261, 265 (2004); Desert Aggregates, 340 NLRB 289, 292–293 (2003); and

Champion International Corp., 339 NLRB 672 (2003), in which the Board likewise found the 

new matters were not fully litigated. But see *AKAL Security, Inc., 354 NLRB No. 11, slip op. at 

4 (2009) (judge’s application of Burnup & Sims instead of Wright Line to find violation did not 

deny respondent due process as respondent clearly anticipated that Burnup & Sims could apply 

and litigated accordingly); and Facet Enterprises v. NLRB, 907 F.2d 963, 969–975 (10th Cir. 

1990) (upholding the Board’s finding of a refusal­to­bargain violation based on a direct dealing 

theory even though the alleged refusal to bargain was based on a theory of attempted unit 

splitting—“quite a different offense,” which was not explicitly mentioned in the complaint and 

which “requires divergent components of proof”—since the “issue of direct dealing was fully and 

fairly litigated at trial”). 

The fully litigated principle applies with particular force when the violation is established 

from testimonial admissions by the respondent’s witness. See Meisner Electric and Pergament,  above.

§ 3–400  Consolidation and Severance of Complaints 

§ 3–410  General Principles

Before issuance of a complaint, the General Counsel or Regional Director has exclusive 

authority to consolidate or sever cases. After a complaint issues and before a trial opens, the 

Regional Director retains authority to consolidate or sever on his or her own motion. Board’s 

Rules, Section 102.33(a)–(d). 

After issuance of a complaint and before a trial opens, the Chief Judge or Deputy or 

Associate Chief Judge in Washington, or the Associate Chief Judge in San Francisco, New York, 

or Atlanta, has the authority to consolidate or sever cases on motion of any party. After a trial has 

opened, consolidation or severance may occur only on motion to and granted by the trial judge. 

Board’s Rules, Sections 102.33(d), 102.24, 102.25, and 102.35(a)(8). When the issue is 

presented, the judge has the authority and “discretion to determine when consolidation, or 

severance, of any complaint is warranted, considering such factors as the risk that matters 

litigated in [an earlier trial] will have to be relitigated in [a second trial] and the likelihood of delay if 

consolidation, or severance, is granted.” Service Employees Local 87 (Cresleigh 

Management), 324 NLRB 774, 775–776 (1997). 

In compliance proceedings, see Board’s Rules, Section 102.54(b), regarding consolidation 

of complaint and related compliance specifications.
CHAPTER 3. PLEADINGS 

23

§ 3–420  Consolidation

Despite the discretion generally accorded to the General Counsel and (when the issue is 

presented to them) judges in determining whether cases should be consolidated (see Cresleigh 

Management, above), the Board generally disfavors piecemeal litigation. Thus, the General 

Counsel is expected to consolidate all pending charges into one complaint and litigate all known 

issues in one case. See Peyton Packing Co., 129 NLRB 1358, 1360 (1961); and Jefferson 

Chemical Co., Inc., 200 NLRB 992, 992 fn. 3 (1972). But the Board has recognized that Peyton 

Packing and Jefferson Chemical are not absolute. The Board has held that those cases do not 

give rise to a blanket rule that requires consolidation into one proceeding of all charges filed 

against the same respondent during the pendency of that proceeding. See Maremont Corp. 

World Parts Division, 249 NLRB 216, 216–217 (1980); and Harrison Steel Castings Co., 255 

NLRB 1426, 1426–1427 (1981). 

Thus, it is not appropriate for a judge in a second related case involving the same 

respondent to dismiss a complaint allegation under Peyton Packing, if the judge in the first case 

properly refused to allow an amendment to include that allegation in the first proceeding.

Maremont Corp., above; and FES, 331 NLRB 9, 14 fn. 13 (2000), enfd. 301 F.3d 83 (3d Cir. 

2002). See also Beverly Health & Rehabilitation Services, 346 NLRB 1319 fn. 3 and 1337 fn. 4 

(2006). Moreover, the General Counsel may litigate complaint allegations in a subsequent 

proceeding if the events underlying the new allegations occurred after the close of the trial in the 

first case. See Great Western Produce, 299 NLRB 1004, 1004 fn. 1 (1990). Separate litigation is 

also permitted where the General Counsel focuses on a discrete, reasonably self­contained, set 

of issues. See Beverly Health, above; and Goya Foods of Florida, 351 NLRB 94, 94 fn. 4 

(2007), enfd. 309 Fed. Appx. 422 (D.C. Cir. 2009). 

The Board seems reluctant to dismiss a second case under Peyton Packing and

Jefferson Chemical except in unusual circumstances. See Service Employees Local 87 

(Cresleigh Management), above, 324 NLRB at 775; Frontier Hotel & Casino, 324 NLRB 1225, 

1225–1226 (1997); and Detroit Newspapers, 330 NLRB 524, 525–526 (2000). Indeed, in U­ 

Haul of Nevada, Inc., 345 NLRB 1301, 1302 (2005), enfd. 490 F.3d 957 (D.C. Cir. 2007), the 

Board stated that “[e]ven where the General Counsel fails to consolidate cases that the Board 

believes should have been consolidated, the Board will not dismiss the complaint in the absence 

of a showing of prejudice to the respondent.”

§ 3–430  Severance

As indicated above, a judge has the authority, after a trial opens, to sever cases 

previously consolidated by the Regional Director. See Quaker Tool & Die, Inc., 169 NLRB 1148, 

1148 (1968) (reversing the judge on the merits of severance, but not questioning his authority). A 

good discussion of the issue by a judge who properly utilized his discretion to sever is found in

Adair Standish Corp., 283 NLRB 668, 669–671 (1987), enfd. mem. 875 F.2d 866 (6th Cir. 

1989). In Adair, a technical 8(a)(5) refusal to bargain case had been consolidated by the 

Regional Director with an essentially unrelated unfair labor practice case; but, after the trial 

opened, the judge properly severed the cases and issued separate decisions. See also Storer 

Cable TV of Texas, 292 NLRB 140, 140 (1988). There is no Jefferson Chemical problem with 

the severance in such circumstances. Winchell Co., 315 NLRB 526, 532 (1994), enfd. mem. 74 

F.3d 1227 (3d Cir. 1995).
CHAPTER 3. PLEADINGS 

24

§ 3–500  Answer to Complaint

Board’s Rules, Section 102.20, sets forth the requirements for an answer. It provides that, 

if no answer is timely filed within 14 days after service, all allegations of the complaint are 

deemed to be admitted as true. It further provides that the answer must specifically admit, deny, 

or explain each of the facts alleged in the complaint. 

Like FRCP 8(b), Section 102.20 allows an exception where the respondent is without 

knowledge sufficient to admit or deny the allegation, and so states in its answer, in which case 

the statement will operate as a denial. However, such a response may be stricken as a sham 

where the allegation involves the respondent’s own conduct or is otherwise within its knowledge. 

See Information Processing SVC, Inc., 330 NLRB No. 95 (2000) (striking pro se respondent’s 

responses to the service, jurisdictional, and supervisory allegations of the complaint), citing DPM 

of Kansas, 261 NLRB 220, 220 fn. 2 (1982). See also §7–520 below, regarding authority to 

admonish or reprimand counsel for denying allegations without good cause and purely for delay. 

In most cases in which no answer or an insufficient answer is filed, the General Counsel 

files a motion for default judgment directly with the Board pursuant to Board’s Rules, Section 

102.24(b). Clement­Blythe Cos., 168 NLRB 118, 118–119 (1967), enf. denied 415 F.2d 78 (4th 

Cir. 1969). Motions for default judgment must be filed no later than 28 days before the scheduled 

trial and are filed with the Executive Secretary of the Board and not the Division of Judges. 

If for any reason the General Counsel fails to file a motion for default judgment within the 

time prescribed by Board’s Rules, Section 102.24(b), issues regarding the absence, timeliness, or 

adequacy of an answer may be raised before the judge, to whose discretion the issues are 

committed. See Textile Workers Local 229 (Metzger Co.), 120 NLRB 1700, 1700–1701 (1958) 

(affirming the judge's refusal at the trial to accept an answer retroactively because no adequate 

excuse was offered for the untimely filing); and CCY New Worktech, Inc., 329 NLRB 194, 194 

(1999) (respondent failed to file answer and did not appear at the trial). See also §11–350, 

“Motions for Summary and Default Judgment,” below. 

Effect of a Withdrawn Answer. Sometimes, pursuant to a settlement or for other reasons, 

a respondent may withdraw an answer. “The withdrawal of an answer has the same effect as a 

failure to file an answer, i.e., the allegations in the consolidated complaint must be considered to 

be true.” Rock Technologies, 346 NLRB No. 68, slip op. 1 (2006). 

Amendment of an Answer. Under Board’s Rules, Section 102.23, a respondent may 

amend its answer at any time before trial. After the trial opens, the judge has the discretion to 

permit an amended answer. Motions to amend an answer, particularly when they come early in 

the trial and there is no prejudice to the General Counsel, should probably be viewed favorably. 

See FRCP 15(b) and Hylton v. John Deere Co., 802 F.2d 1011,1015 (8th Cir. 1986) (district 

court judge did not abuse his discretion by granting defendants in products liability case leave to 

amend their answer to respond to two allegations in amended complaint they had inadvertently 

failed to respond to). And see Baron Honda­Pontiac, 316 NLRB 611, 611 (1995) (because an 

allegation in the amended complaint was substantially unchanged from the denied allegation in 

the initial complaint, the Board did not deem the undenied allegation admitted). 

However, in St. George Warehouse, Inc., 349 NLRB 870 (2007), the Board upheld a 

judge’s denial of respondent’s motion, on the second day of trial, to amend its answer to deny a 

supervisory­status allegation that it had previously admitted, assertedly by mistake. See also

Harco Trucking, LLC, 344 NLRB 478, 479 (2005), holding that respondent’s request to amend
CHAPTER 3. PLEADINGS 

25 

its answer to deny corporate status for the first time in its posthearing brief to the judge was 

untimely. 

The Board has repeatedly held that admissions in an answer, or other pleadings, are 

binding even where the admitting party later attempts to produce contrary evidence. C.P. 

Associates, Inc., 336 NLRB 167 (2001); Consolidated Bus Transit, Inc., 350 NLRB 1064, 

1065 fn. 6 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). See also T. Steele Construction, Inc., 351 

NLRB 1032 fn. 12 (2007)  (rejecting respondent’s argument that its previous admission in its 

answer should be amended to a denial to conform to the evidence presented at trial); and

Boydston Electric, Inc., 331 NLRB 1450, 1451 (2000) (holding that judge erred in finding, based 

on the evidence at trial, that alleged discriminatee was not discharged, in light of respondent’s 

previous admission to the discharge in its answer).

§ 3–550  Affirmative Defenses

Affirmative defenses must be pled in an answer. Affirmative defenses raised for the first 

time in posthearing briefs are untimely and may be considered waived. Harco Trucking, LLC,  344 NLRB 478, 479 (2005); and Dayton Newspapers, Inc., 339 NLRB 650, 653 fn.8 (2003), 

enfd. in part 402 F.3d 651 (6th Cir. 2005). 

Defenses should be stricken if they are not recognized affirmative defenses in law, are 

outside the scope of the complaint, or are irrelevant to the issues set for hearing. Thus, 

compliance matters, which are not litigated in a complaint case, may not be raised as affirmative 

defenses and must be stricken. *Litigation Mediation Group, Inc., 12–CA–25513 (unpublished 

Board order, June 13, 2008). 

The General Counsel is not required to negate an affirmative defense in the complaint. 

See Flying Food Group, Inc.v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006).

§ 3–600  Section 10(b) Affirmative Defense

Section 10(b) of the Act is a statute of limitations. It generally "extinguishes liability for 

unfair labor practices committed more than 6 months prior to the filing of the charge.” NLRB v. 

Fant Milling Co., 360 U.S. 301, 309 fn. 9 (1959). For a complete analysis, see Machinists 

Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 414–429 (1960). 

Section 10(b) is not jurisdictional. It is an affirmative defense and, if not timely raised, it is 

waived. Public Service Co., 312 NLRB 459, 461 (1993); and DTR Industries, 311 NLRB 833, 

833 fn. 1 (1993), enf. denied on other grounds, 39 F.3d 106 (6th Cir. 1994).

§ 3–610  Computation of Section 10(b) Period

The Section 10(b) period commences only when a party has “clear and unequivocal 

notice of a violation.” Leach Corp., 312 NLRB 990, 991–992 (1993), enfd. 54 F.3d 802 (D.C. Cir. 

1995). The burden of showing notice is on the party raising the 10(b) affirmative defense. Ibid. 

The requisite notice may be actual or constructive, i.e., sufficient notice may be found if 

the party should have become aware of a violation in the exercise of reasonable diligence. See, 

e.g., Moeller Bros. Body Shop, 306 NLRB 191, 192 (1992). However, constructive notice will 

not be found where a delay in filing is a consequence of conflicting signals or otherwise
CHAPTER 3. PLEADINGS 

26 

ambiguous conduct. A & L Underground, 302 NLRB 467, 469 (1991). See also Cab 

Associates, 340 NLRB 1391, 1392 (2003). 

In Postal Service Marina Center, 271 NLRB 397, 397–400 (1984), the Board held that 

the Section 10(b) period is computed from the date of the alleged unlawful act, rather than the 

date its consequences become effective. Thus, an employee who received notice that he would 

be terminated, but waited to file a charge until the termination became effective—more than 6 

months from the date of the notice—was barred by Section 10(b). The Postal Service Marina

rule, however, is restricted to discriminatory discharge cases. It probably does not apply in refusal 

to bargain cases. See Esmark, Inc. v. NLRB, 887 F.2d 739, 746 fn. 6 (7th Cir. 1989). See also

Leach Corp., above, 312 NLRB at 991 fn. 7 (the Section 10(b) period for a Section 8(a)(5) 

charge, involving a plant transfer and withdrawal of recognition, did not begin until a “substantial 

percentage” of employees had been transferred). 

In computing the time, the day on which the unfair labor practice occurred is excluded.

MacDonald's Industrial Products, 281 NLRB 577, 577 (1986).

§ 3–620  Not a Rule of Evidence

Evidence may be admitted concerning events outside the 10(b) period, if the evidence is 

used only as background and not to prove a time­barred unfair labor practice. Machinists Lodge 

1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 414–429 (1960). See Monongahela Power Co.,  324 NLRB 214, 214–215 (1997) (admissible to shed light on the respondent’s motivation). 

When, however, the conduct within the 10(b) period can be found to be an unfair labor 

practice only through reliance upon an earlier unfair labor practice, evidence of the earlier 

conduct cannot be used, because "it does not simply lay bare a putative current unfair labor 

practice,” but "serves to cloak with illegality that which was otherwise lawful.” Bryan Mfg., above 

at 417–418. Thus, evidence of alleged supervisory coercion of employees to designate a union 

that occurred outside the 10(b) period, was barred by Section 10(b) when offered to prove 

illegality of contract executed within the 10(b) period. See Teamsters Local 27 (Combined 

Containair Industries), 209 NLRB 883, 883–884 (1974).

§ 3–630  Continuing Violations

An allegation that an employer maintained an unlawful no­solicitation rule within the 10(b) 

period is timely, even if the respondent promulgated the rule outside the period. Control 

Services, 305 NLRB 435, 435 fn. 2, 442 (1991), citing Alamo Cement Co., 277 NLRB 1031, 

1036–1037 (1985). 

Similarly, the Board held in A & L Underground, 302 NLRB 467, 468–469 (1991), that if 

the employer simply fails to abide by certain contract provisions, without repudiating the contract, 

each successive contract breach constitutes a separate unfair labor practice. However, if the 

charging party had received clear and unequivocal notice of the total contract repudiation before 

the 10(b) cutoff date, it is time barred from subsequently alleging contract violations within the 

10(b) period. See Chambersburg County Market, 293 NLRB 654, 655 (1989) (“a charge 

alleging an unlawful refusal to execute a bargaining contract is cognizable only when filed within 6 

months”).
CHAPTER 3. PLEADINGS 

27

§ 3–635  Backpay for Continuing Violations

Where a continuing violation is found, and the charging party did not have clear and 

unequivocal notice of the original violation, the usual make whole remedy from the date of the 

original violation is normally appropriate, i.e., backpay may be ordered beyond the 10(b) period, 

even in the absence of any fraudulent concealment. See Vallow Floor Coverings, Inc., 335 

NLRB 20, 20–21 (2001) (ordering employer to pay backpay since 1991, even though the charge 

was not filed until 6 years later, in 1997).

§ 3–640  Fraud or Deception

Fraudulent concealment of facts of an unfair labor practice from a charging party tolls 

Section 10(b), unless the charging party failed to exercise due diligence. Ladies Garment 

Workers (McLoughlin Mfg.) v. NLRB, 463 F.2d 907, 921–923 (D.C. Cir. 1972) (false 

representation that the employer was going out of business when in fact it was secretly moving 

plant). Accord: Burgess Construction, 227 NLRB 765, 766 (1977), enfd. 596 F.2d 378 (9th Cir. 

1979), cert. denied 444 U.S. 940 (1979) (fraudulent concealment found when the respondent 

fraudulently assured the union it no longer employed carpenters). 

For the effects of fraud on the General Counsel, see the next section.

§ 3–650  Revival of Withdrawn or Dismissed Charge

As a general rule, a withdrawn or finally dismissed charge may not be revived by the 

General Counsel after the Section 10(b) period has run. Ducane Heating Corp., 273 NLRB 

1389, 1390–1391 (1985), enfd. mem. 785 F.2d 304 (4th Cir. 1986). 

There are, however, three exceptions to the general rule: 

1)  Fraudulent Concealment. If material facts have been concealed from the General 

Counsel, a dismissed or withdrawn charge may be revived. Kanakis Co., 293 NLRB 435, 435–  437 (1989) (an affidavit submitted to General Counsel, upon which the General Counsel relied in 

dismissing the charge, was later discovered to have been perjured). Compare Brown & Sharpe 

Mfg. Co., 321 NLRB 924, 924–925 (1996), review denied 130 F.3d 1083, 1087 (D.C. Cir. 1997), 

cert. denied 524 U.S. 926 (1998) (finding no fraudulent concealment from the General Counsel of 

material facts on alleged bad­faith bargaining because the General Counsel did not ask for or 

demand information about certain issues); and Benfield Electric Co., 331 NLRB 590, 591–592 

(2000) (no fraudulent concealment found when an attorney’s position statement was not 

forthcoming about his client’s true motive, but did not attempt to conceal material facts). 

In Brown & Sharpe, above, 321 NLRB at 924, the Board set forth the three elements that 

are required to establish fraudulent concealment in these circumstances. They are (a) deliberate 

concealment, (b) of material facts, and (c) the injured party was ignorant of those facts without 

any fault or want of due diligence on its part. In Morgan’s Holiday Markets, 333 NLRB 837, 

840–841 (2001), the Board clarified that “material facts” means concealed evidence that would, 

“as an objective matter, make the critical difference in determining whether or not there was a 

reasonable cause to believe the Act was violated." 

2)  Noncompliance with Informal Settlement Agreement. If charges are withdrawn or 

dismissed as a consequence of an informal settlement agreement approved by the Agency and 

the respondent does not comply with the terms of the settlement, Section 10(b) does not bar 

revival of the charges. Settlements are subject to implicit condition that they will be carried out
CHAPTER 3. PLEADINGS 

28 

and that unfair labor practices will not be resumed. See Sterling Nursing Home, 316 NLRB 413, 

416 (1995). 

3)  Closely Related to Current Complaint. If a viable and timely charge exists and the 

General Counsel seeks to add allegations that were contained in a previously withdrawn or 

dismissed charge, the closely related test applies. See Redd­I, Inc., above, 290 NLRB at 1115– 

1116. See also Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148–149 (7th Cir. 1990), cert. denied, 

498 U.S. 1024 (1991); and Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 944–945 (D.C. Cir. 

1999), enfg. in part 324 NLRB 918, 918 fn. 1 (1997). And see §3–220, “Complaint Closely 

Related to Timely Charge” and §3–330, “Amendments and Section 10(b),” above. 

Finally, as suggested above, the general rule set forth in Ducane prohibiting revival of 

dismissed charges does not apply to a charge that has not been finally dismissed, but is pending 

before the General Counsel on appeal. See §3–140, “Withdrawal or Dismissal,” above. See also

Smithfield Packing Co., 344 NLRB 1, 10 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006).

§ 3–700  Other Affirmative Defenses 

§ 3–710  Misconduct of Charging Party

The alleged misconduct of a charging party is ordinarily not a defense to an unfair labor 

practice. See Carpenters Local 621 (Consolidated Constructors), 169 NLRB 1002, 1003 

(1968), enfd. 406 F.2d 1081 (1st Cir. 1969); and Plumbers Local 457 (Bomat Plumbing and 

Heating), 131 NLRB 1243, 1245–1247 (1961), enfd. 299 F.2d 497 (2d Cir. 1962). 

But if, as a legal matter, proof of misconduct could affect unfair labor practice findings, an 

affirmatively pleaded defense to that effect must be heard. This applies even though the 

misconduct was the subject of a charge dismissed by the General Counsel. Hotel & Restaurant 

Employees Local 274 (Warwick Caterers), 269 NLRB 482, 482–483 (1984). See also Chicago 

Tribune Co., 304 NLRB 259, 259–261 (1991) (bad­faith bargaining by the union may be raised 

as a defense to bad­faith bargaining by the respondent, even though the General Counsel 

dismissed the charge of union bad­faith bargaining). Compare Greyhound Lines, 319 NLRB 

554, 555–557 (1995) (affirmative defense based on alleged union misconduct was stricken 

because no nexus was shown between alleged misconduct and the respondent’s refusal to 

bargain, which was the subject of the complaint). 

Although not a defense to a complaint, union misconduct (violence) may require 

withholding a bargaining order. See Laura Modes Co., 144 NLRB 1592, 1596 (1963); and Allou 

Distributors, 201 NLRB 47, 47–48 (1973). Compare Cascade Corp., 192 NLRB 533, 533 fn. 2 

(1971), enf. denied 466 F.2d 748 (6th Cir. 1972), distinguishing Laura Modes and Maywood 

Plant of Grede Plastics, 235 NLRB 363, 365–366 (1978), enfd. as modified 628 F.2d 1 (D.C. 

Cir. 1980) (provocation must be weighed).

§ 3–720  Laches

Apart from the restrictions of Section 10(b) of the Act, the Board generally does not apply 

the doctrine of laches to itself or the General Counsel. See Mid­State Ready Mix, 316 NLRB 

500, 500–501 (1995), citing NLRB v. J. H. Rutter­Rex Mfg. Co., 396 U.S. 258, 264 (1969) 

(inordinate delay by the Board is no defense to a backpay order; the remedy is within the Board's 

discretion and the rights of innocent employees are involved). Indeed, despite characterizing the 

General Counsel’s 5 1⁄2 year delay as “inordinate” and “inexcusable,” the Board in United 

Electrical Contractors Assn., 347 NLRB 1, 2–3 (2006) denied a motion to dismiss in the
CHAPTER 3. PLEADINGS 

29 

absence of any showing of prejudice. But see Garvey Marine, Inc., 328 NLRB 991, 995–997 

(1999); and Wallace International of Puerto Rico, 328 NLRB 29, 29 (1999) (Board considers 

passage of time as a factor in evaluating whether to issue a Gissel bargaining order.) 

For an interesting discussion of whether and in what circumstances laches applies to the 

Government generally, see Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 

1090–1091 (7th Cir. 1992).

§ 3–730  Inadequate Investigation/Compliance with Casehandling Manual

Due process claims are tested not by analysis of the investigation, but by analysis of 

complaint allegations. Therefore, the adequacy of General Counsel’s investigation may not be 

litigated in the unfair labor practice trial. Redway Carriers, 274 NLRB 1359, 1371 (1985). 

Respondents may also argue that the General Counsel failed to follow the NLRB 

Casehandling Manual. However, the Casehandling Manual provides guidance only and is not 

binding on the General Counsel or the Board. See Hempstead Lincoln Mercury Motors Corp., 349 NLRB 552, fn. 4 (2007); and Offshore Mariners United, 338 NLRB 745, 746 (2002), and 

cases cited therein.

§ 3–740  Deferral to Grievance Arbitration

Deferral to the grievance and arbitration machinery of the collective­bargaining agreement 

pursuant to Collyer Insulated Wire, 192 NLRB 837, 839 (1971) is an affirmative defense that 

must be timely raised in the answer to the complaint or at the trial. *Airo Die Casting, Inc., 354 

NLRB No. 8, slip op. 1 fn. 5 (2009). Therefore, the respondent’s “interjection of this defense” after 

the trial closes is “untimely.” Master Mechanical Insulation, 320 NLRB 1134, 1134 fn. 2 (1996). 

See also Wisconsin Bell Telephone, 346 NLRB 62, 64, fn. 8 (2005) (although respondent raised 

deferral as an affirmative defense in its answer, the Board held that it waived the argument by 

failing to raise the issue subsequently at the hearing or in its brief to the judge).

§ 3–750  Relitigation of Issues

In the absence of newly discovered and previously unavailable evidence or special 

circumstances, the respondent in a Section 8(a)(5) unfair labor practice case may not relitigate 

issues that were or could have been litigated in a prior representation proceeding. Nursing 

Center at Vineland, 318 NLRB 901, 903 (1995), enfd. mem. 151 LRRM 2736 (3d Cir. 1996). Nor 

may the respondent relitigate in compliance proceeding matters decided in prior unfair labor 

practice proceedings. Task Force Security & Investigations, 323 NLRB 674, 674 fn. 2 (1997). 

See also *Allied Mechanical Services, Inc., 352 NLRB 662, 664 (2008) (respondent 

collaterally estopped from alleging that its bargaining relationship with a union was based on 

Section 8(f) rather that Section 9(a) because a prior Board decision involving the same parties 

was necessarily premised on the existence of a Section 9(a) relationship and a prior settlement 

agreement confirmed such a relationship); and Great Lakes Chemical Corp., 300 NLRB 1024, 

1025 and fns. 3 and 4 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992) (respondent collaterally 

estopped from relitigating facts relating to its duty to bargain as a successor, which were fully and 

fairly litigated and necessarily decided in prior proceeding involving same parties). 

With respect to the application of collateral estoppel and res judicata to the General 

Counsel or Board, see Precision Industries, 320 NLRB 661, 663 (1996), enfd. 118 F.3d 585
CHAPTER 3. PLEADINGS 

30 

(8th Cir. 1997). In that case, the Board held that prior age and race discrimination charges filed 

with the EEOC by several discriminatees did not judicially estop the General Counsel from 

asserting that the failure to hire was based on antiunion animus, as neither the General Counsel 

nor the Charging Party Union were parties in the EEOC proceeding. 

The Board in Precision Industries also rejected respondent’s res­judicata argument that 

the complaint was barred because respondent had prevailed in an ERISA suit brought by the 

Union and certain former employees and retirees. The Board cited “the general rule that the 

Government is not precluded from litigating an issue involving the enforcement of Federal law 

that a private party has litigated unsuccessfully, when the Government was not a party to the 

private litigation.” Ibid., citing Field Bridge Associates, 306 NLRB 322 (1922), enfd. sub nom.

Service Employees Local 32B–32J v. NLRB, 982 F. 2d 845 (2d Cir. 1993), cert. denied 509 

U.S. 904 (1993). 

See also Roadway Express, 355 NLRB No. 23 (2010), where the respondent employer 

argued that a court’s dismissal of the alleged discriminatee’s hybrid 301/DFR claim against the 

employer and union collaterally estopped the General Counsel from subsequently opposing 

deferral of the related 8(a)(3) allegations against the employer on the ground that the union had 

breached its DFR in the prior grievance proceeding. Relying on the same “general rule” above, 

the Board rejected the respondent’s argument as the General Counsel was neither a party to the 

unsuccessful lawsuit nor in privity with the alleged discriminatee (since the Board acts in the 

public interest), and the court dismissed the DFR claim on the ground that the discriminatee had 

waived it, rather than on the merits. 

The Board’s application of its general policy has been rejected by two circuit courts. See

NLRB v. Donna­Lee Sportswear, 836 F.2d 31 (1st Cir. 1987); and NLRB v. Heyman, 541 F.2d 

796 (9th Cir. 1976) (holding that where the existence of a contract has been decided by a district 

court in actions brought under ERISA or Sec. 301, the Board is precluded from relitigating that 

issue in a later 8(a)(5) case). However, in subsequent cases, the Board has distinguished these 

two circuit court decisions based on their particular facts. See Field Bridge Associates, above, 

306 NLRB at 323 fn. 2 (the existence of the contract was “the essence of the unfair labor practice 

charge,” rather than just one aspect of the allegations, and did not have “implications concerning 

Section 8(a)(3) of the Act”); Precision Industries, above, 320 NLRB at 663, fn. 13 (“the issue in 

the unfair labor practice case—the existence, vel non, of a contract—was the same as the one 

that had been decided in the court proceeding”); and Roadway Express, above (the Board’s 

unfair labor practice findings depended “entirely” on the existence of a contract, and the courts’ 

prior findings on that issue represented “a minimal intrusion into the Board’s jurisdiction” as “no 

broad policy question” was implicated in that determination).

§ 3–760  Section 8(g) Notice

A respondent’s assertion that the union failed to give notice under Section 8(g) of the Act 

is an affirmative defense. Therefore, raising the issue for the first time in a post­trial brief to the 

judge is untimely. Vencare Ancillary Services, 334 NLRB 965, 968–969 (2001), enf. denied on 

other ground, 352 F.3d 318 (6th Cir. 2003).

§ 3–770  Settlement Bar

A settlement agreement generally disposes of all issues unless the prior violations were 

unknown to the General Counsel, not readily discoverable by investigation, or specifically 

reserved from the settlement by the mutual understanding of the parties. Hollywood Roosevelt 

Hotel Co., 235 NLRB 1397, 1397 (1978).
CHAPTER 3. PLEADINGS 

31 

This so­called “settlement bar” rule is likewise an affirmative defense and is waived if not 

timely raised in the pleadings or at the trial. See Richard Mellow Electrical Contractors Corp.,  327 NLRB 1112, 1112–1113 (1999). See also §9–620, “Settlement Bar Rule,” below.

33

CHAPTER 4. SERVICE OF DOCUMENTS 

§ 4–100  In General

Service is a concept distinct from filing. That is, filing refers to receipt “by the Board or the 

officer or agent designated to receive” a pleading or other document. Board’s Rules, Section 

102.111(b). Service is “notice reasonably calculated, under the circumstances, to apprise 

interested parties of the pendency of the action and afford them the opportunity to present their 

objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also

NLRB v. O’Keefe & Merritt Mfg. Co., 178 F.2d 445, 447 (9th Cir. 1949) (“a form of notice 

reasonably calculated to give a defendant knowledge of proceedings and an opportunity to be 

heard”).

§ 4–110  Federal Rules of Civil Procedure Not Controlling

The Act (NLRA), the Board’s Rules and, to a degree, the Statements of Procedure, 

specify the requirements for service under the Act. Therefore, “the Federal Rules of Civil 

Procedure do not govern service of process in Board proceedings.” Control Services, 303 NLRB 

481, 481–482 (1991), enfd. 961 F.2d 1568 (3d Cir. 1992).

§ 4–200  Methods of Service

Under the Board’s Rules, the following methods of service can universally be utilized by 

Regional Directors and by parties, including counsel for the General Counsel after complaint has 

issued, except to the extent indicated: 

Personal service. Board’s Rules, Sections 102.14(a) (for charges), 102.113(a)–(d) (for 

complaints and amendments, compliance specifications and amendments, subpoenas, 

administrative law judges decisions, and other documents), and 102.114(a) (for papers “by a 

party on other parties”). 

Registered or certified mail. Board’s Rules, Sections 102.14(a) (for charges), 102.113(a)– 

(d), and 102.114(a), as above. 

Regular mail. Board’s Rules, Sections 102.14(a) (for charges); 102.113(d) (“by the 

Agency” for “documents” other than complaints and amendments, compliance specifications and 

amendments, subpoenas, and administrative law judges decisions); and 102.114(a) (for “papers 

by a party on other parties”). 

Private delivery service. Board’s Rules, Sections 102.14(a) (for charges); 102.113(d) (“by 

the Agency” for “documents” other than complaints and amendments, compliance specifications 

and amendments, subpoenas, and administrative law judges decisions); and 102.114(a) (for 

“papers by a party on other parties”). 

Service by Fax. Other means of service are permitted to parties, including counsel for the 

General Counsel after complaint has issued (except complaints and amendments, compliance 

specifications and amendments, and subpoenas), BUT “only with the consent of the party being 

served.” Board’s Rules, Section 102.114(a). One other means is by fax. Thus, charges, “papers 

by a party on other parties” and “documents”—other than subpoenas, complaints and backpay
CHAPTER 4. SERVICE OF DOCUMENTS 

34 

specifications, and amendments—“by the Agency” may be served by fax, or faxed, only with 

permission of the receiving party. 

When a document and other papers are filed by fax with the Agency, such as charges, 

Board’s Rules, Section 102.114(f), provides that a party shall serve copies “on all parties in the 

same way as used to serve the office where filed, or in a more expeditious manner,” and faxes 

“shall be used for this purpose whenever possible.” Board’s Rules, Section 102.114(h). If a party 

refuses to accept service by fax, or if a party cannot be served by fax, the “party shall be notified 

personally or by telephone of the substance of the [faxed] document, and a copy of the document 

shall be served by personal service or overnight delivery service.” Board’s Rules, Section 

102.114(h). 

E­Mail Service. Board Rules, Section 102.114(i) requires e­mail service on the other 

parties, if possible, for documents e­filed with the Agency. If the other party does not have the 

ability to receive e­mail service, the other party shall be notified by telephone of the substance of 

the e­filed document and a copy shall be served by personal service no later than the next day, 

by overnight delivery, or, with the permission of the other party, by facsimile transmission.

§ 4–300  Failure of Service

A party’s failure to make timely service on other parties is a basis for either “rejection of 

the document,” OR for “[w]ithholding or reconsidering any ruling on the subject matter raised by 

the document until after service has been made and the served party has had reasonable 

opportunity to respond.” Board’s Rules, Section 102.114(c). 

Ordinarily, the Board has been reluctant to reject a document. See Cameron Iron Works,  235 NLRB 287, 287–288 (1978), enf. denied on other grounds 591 F.2d 1 (5th Cir. 1979); Our 

Way, Inc., 244 NLRB 236, 236 fn. 1 (1979) (General Counsel’s failure to serve timely filed 

exceptions); and Terpening Trucking Co., 271 NLRB 96, 96 fn. 1 (1984) (the respondent’s 

failure to serve exceptions on the charging party). The Board has been particularly reluctant to do 

so if a party is unrepresented and if filing of that document otherwise complies with the Rules. 

See Tri­Way Security, 310 NLRB 1222, 1223 fn. 5 (1993) (answer to complaint); and Acme 

Building Maintenance, 307 NLRB 358, 359 fn. 6 (1992). 

However, in Active Metal Mfg., 316 NLRB 974, 974–975 (1995), a self­represented 

respondent’s timely­filed answer was rejected for failure to serve the charging party where there 

had been “repeated efforts by the Region to apprise the Respondent of its obligations under our 

Rules,” but service was never made. 

When service is attempted by fax, “failure to timely file or serve a document will not be 

excused on the basis of a claim that transmission could not be accomplished because the 

receiving machine was offline or busy or unavailable for any other reason.” Board’s Rules, 

Section 102.114(f).

§ 4–310  Efforts to Frustrate Service

“[T]he Board has long held that a respondent’s failure or refusal to claim certified mail or 

to provide for receiving appropriate service will not be permitted to defeat the purposes of the Act” 

(citations omitted). SMC Engineering & Contracting, 324 NLRB 341, 341 (1997) (complaint). 

Accord: Michigan Expediting Service, 282 NLRB 210, 210 fn. 6 (1986), enfd. mem. 869 F.2d 

1492 (6th Cir. 1989) (amended charge); and Da Vinci Fashions, 286 NLRB 809, 814–816 (1987) 

(compliance specification and amended compliance specification).
CHAPTER 4. SERVICE OF DOCUMENTS 

35

§ 4–400  Who Must Be Served

Complaints and amendments, compliance specifications and amendments, and “other 

documents” of the General Counsel “shall be served upon all parties.” Board’s Rules, Section 

102.113(a) and (d). Administrative law judges decisions also “shall be served upon all parties.” 

Board’s Rules, Section 102.113(b). 

“Subpoenas shall be served upon the recipient.” Board’s Rules, Section 102.113(c). 

Pleadings filed by a private party must be served on the other parties. Board’s Rules, 

Sections 102.21 (answers to complaints); 102.26 (request for special permission to appeal and 

the appeal, oppositions, and responses); 102.56(a) (answers to compliance specifications); and 

102.42 (briefs). 

A request for special permission to appeal a ruling by an administrative law judge, as well 

as the appeal and any statements in opposition or other responses, must be served on the other 

parties and the administrative law judge. Board’s Rules, Section 102.26. 

When service is required, it must be made on attorneys or representatives who have 

“entered a written appearance in the proceeding” on behalf of parties. But when “a party is 

represented by more than one attorney or representative, service upon any one of [the] persons 

in addition to the party shall satisfy [the] requirement.” Board’s Rules, Section 102.113(f).

§ 4–500  Determining Date of Service

“The date of service,” specified in Board’s Rules, Section 102.112, is as follows: 

Personal service: the day “delivered in person.” 

Mail: “the day when the matter served is deposited in the United States mail.” See

Electrical Workers IUE (Spartus Corp.), 271 NLRB 607, 607 (1984). 

Private delivery service: “the date the document was tendered to the delivery service,” as 

shown by a record provided by the delivery service. 

Fax: “the date on which the fax is received.” See Hardesty Co., 336 NLRB 258, 259 

(2001), enfd. 308 F.3d 859 (8th Cir. 2002) (presumption of employer’s receipt of union’s faxed 

information request supported by fax confirmation report, which was not rebutted by testimonial 

denial of employer’s lawyer at trial).

§ 4–600  Proof of Service

For “Complaints, orders and other process and papers of the Board, its member, agent, or 

agency,” Section 11(4) of the Act provides: “The verified return by the individual [making the 

service] setting forth the manner of . . . service shall be proof of the [service], and the return 

[postal service] receipt or telegraph receipt . . . when registered or certified and mailed or when 

telegraphed . . . shall be proof of service.” 

For other parties, and for pleadings and other documents, Board’s Rules specify some 

methods of proof of service:
CHAPTER 4. SERVICE OF DOCUMENTS 

36 

Personal service, “the verified return by the individual” serving the document. Board’s 

Rules, Section 102.113(e). 

Registered or certified mail, “the return [postal service] receipt.” Board’s Rules, Sections 

102.113(e) and 102.114(b). 

Telegraph, “telegraph receipt.” Board’s Rules, Section 102.113(e). 

Private delivery service, “the receipt from [the] service showing delivery.” Board’s Rules, 

Section 102.114(b). 

Delivery to a principal office or place of business, “verified return by the individual” serving 

the document. Board’s Rules, Section 102.113(e). 

For methods of service that are not exclusive, “any sufficient proof may be relied upon to 

establish service.” Board’s Rules, Sections 102.113(e) (the Agency), and 102.114(b) (parties). 

Whether service is made by the Agency or by a private party, the person making service 

“shall submit a written statement of service . . . stating the names of the parties served and the 

date and manner of service.” Board’s Rules, Section 102.114(e). See also United States Service 

Industries, 324 NLRB 834, 834 (1997). 

However, “failure to make proof of service does not affect the validity of service.” Board’s 

Rules, Section 102.114(e). Thus, the absence of such a statement will not invalidate service, nor 

preclude other methods of proof of service. The Board has long held that procedural 

requirements regarding proof of service should be liberally construed. See Control Services, 303 

NLRB at 481–482 (1991). For example, in G. W. Truck, 240 NLRB 333, 334–335 (1979), proof of 

a charge’s service was based upon testimony by a Board agent, supported by her written 

description, “almost contemporaneous with service,” of what had occurred when she served the 

charge.

§ 4–700  Special Aspects of Service of Particular Documents 

§ 4–710  Charges and Amended Charges

As indicated in §4–200, above, under Board’s Rules, Sections 102.14(a) and (b), service 

of a charge may be made by personal service, by registered, certified, or regular mail, by private 

delivery service, by fax, with “the permission of the person receiving the charge,” or “by any other 

agreed upon method.” 

Under the proviso of Section 10(b) of the Act, a charge must be both filed and served 

within the 6­month limitations period prescribed. Thus, the failure to make timely service warrants 

dismissal, even if the charge was timely filed. Dun & Bradstreet Software Services, 317 NLRB 

84, 84–86 (1995), affd. 79 F.3d 1238, 1250 (1st Cir. 1996). Accord: NLRB v. Laborers Local 

264, 529 F.2d 778, 782 (8th Cir. 1976). 

As pointed out in Dun & Bradstreet, above, the charging party, not the Regional Office, is 

responsible for assuring timely service of a charge. Although the Regional Office will normally 

serve a copy of the charge on the charged party, this is merely a courtesy and does not relieve 

the charging party of its service obligation. Board’s Rules, Section 102.14(a) and (b), and 

Statements of Procedure, Section 101.4.
CHAPTER 4. SERVICE OF DOCUMENTS 

37 

However, technical defects in the manner of service will not necessarily invalidate the 

service. See Control Services, above, 303 NLRB at 481–482 (1991) (“when charges have in fact 

been received, technical defects in the form of service do not affect the validity of the service”). 

For example, service of an unsigned copy of a charge was held adequate in Freightway Corp.,  299 NLRB 531, 531 (1990). 

Further, the “failure to make timely service of a charge on a respondent will be cured by 

timely service within the 10(b) period of a complaint on the respondent, absent a showing that the 

respondent is prejudiced by [the] circumstances.” Buckeye Plastic Molding, 299 NLRB 1053, 

1053 (1990). 

Where there are multiple charged parties, service on but one of them is sufficient if they 

are not truly independent entities, but are: 

Alter egos. BMD Sportswear Corp., 283 NLRB 142, 142 fn. 1 (1987), enfd. mem. 847 

F.2d 835 (2d Cir. 1988); and NLRB v. O’Neill, 965 F.2d 1522, 1528–1529 (9th Cir. 1992), cert. 

denied 509 U.S. 904 (1993). 

Single employers. Il Progresso Italo Americano Publishing Co., 299 NLRB 270, 270 fn. 

4, 289 (1990). 

Joint employers. Whitewood Maintenance Co., 292 NLRB 1159, 1169 fn. 29 (1989), 

enfd. 928 F.2d 1426 (5th Cir. 1991). 

Joint bargaining representatives. Electrical Workers IUE (Spartus Corp.), 271 NLRB 

607, 607 (1984). See also United Electrical Contractors Assn., 347 NLRB 1, 1–2 (2006) 

(service of charge on multi­employer association amounts, under agency principles, to service on 

each of its members). 

Only charged parties must be served. Thus, a copy of a charge need not be served upon 

the labor organization that is asserted to be a party to an allegedly unlawful collective­bargaining 

contract, or which is asserted to be unlawfully dominated, assisted, or supported, as long as no 

remedial order is sought against the labor organization. Meyers Bros. of Missouri, Inc., 151 

NLRB 889, 893 fn. 1 (1965) (“the limitations clause of Section 10(b) relates only to the Board’s 

power to issue complaints and thus limits the Board in proceeding against ‘Respondents’ as 

distinguished from ‘parties’”). See also General Molds & Plastics Corp., 122 NLRB 182, 186 

(1958).

§ 4–720  Complaint and Notice of Hearing

Complaints must be “served on all other parties.”  Board Rules, Section 102.15. Thus, in 

contrast to charges, a copy of the complaint and notice of hearing must be served on the party to 

a collective­bargaining contract that would be invalidated by the remedial order. Consolidated 

Edison Co. of New York v. NLRB, 305 U.S. 197, 218–219 (1938).

§ 4–730  Compliance Specifications

“[T]he Regional Director may issue and serve on all parties a compliance specification in 

the name of the Board.” Board’s Rules, Section 102.54(a). 

Service of a compliance specification upon the respondent’s attorney of record is 

sufficient. Star Grocery Co., 245 NLRB 196, 197 (1979); and Cera International Corp., 272
CHAPTER 4. SERVICE OF DOCUMENTS 

38 

NLRB 1360, 1360 fn. 2 (1984). This is so, even if the attorney no longer represents the 

respondent, unless notice has been given to the Regional Director of discontinuance of 

representation. Hopkins Hardware, 280 NLRB 1296, 1297 (1986).

§ 4–740  Answers to Complaints and to Compliance Specifications

Answers to complaints. Section 102.21 of the Board’s Rules provides that, “immediately 

upon the filing” of its answer, the respondent shall serve a copy on the other parties. As set forth 

in §4–300, “Failure of Service,” above, although the Board is reluctant to reject an answer for 

failure to make service on other parties, particularly if filed by an unrepresented respondent, it will 

do so if the answer is not substantially adequate or if the respondent has ignored repeated efforts 

to encourage it to make proper service. 

Answers to compliance specifications. Section 102.56(a) of the Board’s Rules provides 

that “each respondent alleged in the specification to have compliance obligations shall” file an 

answer and “immediately serve a copy” on the other parties.

§ 4–750  Subpoenas

Section 102.113(c) of the Board’s Rules provides that.  “subpoenas shall be served upon 

the recipient either personally or by registered or certified mail, or by telegraph, or by leaving a 

copy . . . at the principal office or place of business of the person required to be served.” 

It is not necessary to establish actual receipt of the subpoena by the recipient; “proof that 

it was mailed is sufficient to prove service.” Best Western City View Motor Inn, 327 NLRB 468, 

468–469 (1999). Moreover, “an attorney’s affirmation of service” will suffice as proof of service,  even “without submission of the postal [service] return receipt card.” Ibid.
39

CHAPTER 5. PRETRIAL DISCOVERY AND DEPOSITIONS 

§ 5–100  Pretrial Discovery

It is well established that pretrial discovery does not apply in Board proceedings. See

Offshore Mariners United, 338 NLRB 745, 746 (2002), and authorities cited therein. Thus, for 

example, in *Bashas’, Inc., 352 NLRB 661 (2008), the Board found that the judge improperly 

ordered the General Counsel to provide a list of witnesses in advance of their testimony because 

that would, in effect, amount to pretrial discovery.

§ 5–200  Depositions

A limited “good cause” exception exists to permit the taking of a deposition to preserve the 

testimony of one’s own witness at the discretion of the Regional Director or the judge. Board’s 

Rule, Section 102.30. Kenrich Petrochemicals v. NLRB, 893 F.2d 1468, 1483 (3d Cir. 1990), 

cert. denied 498 U.S. 981 (1990). But special circumstances must be shown. See David R. 

Webb Co., 311 NLRB 1135, 1136 (1993). (Board rejected respondent’s request for permission to 

take depositions of discriminatees in compliance proceeding as its stated reasons “could apply to 

virtually any backpay proceeding”). See also December 12, Inc., 282 NLRB 475, 475 fn. 1 

(1986). 

A respondent’s failure to request permission to take a deposition was cited in Goya 

Foods of Florida, 347 NLRB 1118, 1119–1120 (2006), enfd. 525 F.3d 1117 (11 th Cir. 2008). In 

that case, the judge had refused to admit into evidence a witness’ deposition that had been taken 

pursuant to a separate state court action. The judge noted that the respondent failed to seek 

enforcement of its subpoena to have the witness testify in the Board proceeding. In affirming the 

judge’s ruling, the Board noted, among other things, that the General Counsel had no opportunity 

to examine the witness in the state court proceeding, and that the respondent did not apply to the 

judge to permit deposing the witness with all parties in the Board proceeding present, as provided 

in Section 102.30 of the Board’s Rules. 

See also §11–620, “Testimony by Video,” below.

41

CHAPTER 6. TIME AND PLACE OF TRIAL 

§ 6–100  Before Trial Opens

Board’s Rules, Section 102.15, requires that a complaint contain “a notice of hearing” at a 

fixed date and “a time not less than 14 days after the service of the complaint.” 

“Except in extraordinary situations the [trial] is . . . usually conducted in the Region where 

the charge originated.” Statements of Procedure, Section 101.10(a). 

Generally, before trial, the Regional Director issuing a complaint may extend the date of 

the trial or may change the place at which it is to be held. But when there are less than 21 days 

before the scheduled trial date and a party objects to a postponement, motions to reschedule the 

trial should be filed with the Division of Judges, which rules only on whether to grant the motion to 

extend the trial date. Board’s Rules, Section 102.16(a). See also Carriage Inn of Steubenville,  309 NLRB 383 (1992). The “Regional Director issuing the complaint shall retain the authority to 

order a new date for [trial] and retains the responsibility to make the necessary arrangements for 

conducting [the trial], including its location and the transcription of the proceedings.” Board’s 

Rules, Section 102.16(b).

§ 6–200  After Trial Opens

After a trial opens the administrative law judge designated to conduct it possesses 

authority to “regulate the course of the [trial].” Board’s Rules, Section 102.35(a)(6). The judge 

may continue the trial “from day to day, or adjourn [it] to a later date or to a different place, by 

announcement . . . at the [trial] . . . or by other appropriate notice.” Board’s Rules, Section 102.43. 

“The granting or refusal of a continuance is within the discretion of the administrative law judge.”

Abrahamson Chrysler­Plymouth, 225 NLRB 923, 923 fn. 1 (1976), enfd. mem. 559 F.2d 1226 

(7th Cir. 1977). See also Teamsters Local 777 (Crown Metal), 145 NLRB 197, 197 fn. 2 (1963), 

enfd. 340 F.2d 905 (7th Cir. 1964). 

The exercise of that discretion will be reversed only when there is a “showing of abuse.”

Franks Flower Express, 219 NLRB 149, 149–150 (1975), enfd. mem. 529 F.2d 520 (5th Cir. 

1976). Thus, a decision not to transfer the trial to another city was upheld when, in the 

circumstances, it was “clearly reasonable.” Flame of Miami, Inc., 159 NLRB 1103, 1105 (1966). 

And a decision to deny a request for a second continuance was upheld because “no prejudice” 

was shown to the party who made the request. Peter Vitalie Co., 310 NLRB 865, 865 fn. 1 

(1993). 

NOTE: The notice of hearing that accompanies all complaints provides that the trial will 

commence on the date set by the Regional Director and continue “on consecutive days 

thereafter.”

§ 6–300  Requests for Continuance to Obtain Counsel

Typically, two situations are presented: (1) when an unrepresented party is seeking a 

continuance to obtain counsel or other representative; and (2) when the counsel or representative 

of a party is unavailable on the trial date.
CHAPTER 6. TIME AND PLACE OF TRIAL 

42 

To Obtain Counsel. When a party seeks a continuance to obtain counsel, a balance must 

be struck between the right of parties to be represented at the trial (Board’s Rules, Section 

102.38), and, on the other hand, the principle that “proceedings must proceed with the utmost 

dispatch.” NLRB v. American Potash & Chemical Corp., 98 F.2d 488, 492 (9th Cir. 1939), cert. 

denied 306 U.S. 643 (1939). In striking that balance in particular situations, several relevant 

considerations have been identified: 

1)  The length of time since the complaint issued, during which the party had an 

opportunity to obtain counsel. K & L Fire Protection Systems, 306 NLRB 988, 988 fn. 1 (1992) 

(“complaint had been outstanding for more than 6 months”). 

2)  Whether a continuance has already been granted to allow the party to obtain counsel.

Peter Vitalie Co., 310 NLRB 865, 865 fn. 1 (1993) (“the Respondent had already requested and 

had already been granted a prior postponement in this proceeding from July 22 until August 31”); 

and Crusader­Lancer Corp., 144 NLRB 1309, 1309 fn. 1 (1963) (“request for a 1­week 

continuance for the same purpose had previously been granted”). 

3)  Efforts shown by the moving party to obtain counsel. K & L Fire Protection Systems,  above (application to bankruptcy court for authorization to appoint an attorney “made only 3 days 

before the [trial] and without notice to the counsel for the General Counsel”); and Peter Vitalie 

Co., above, (after receiving one continuance to obtain counsel, the respondent “elected to do 

nothing except seek ‘another eleventh hour postponement’”). 

Unavailability of chosen counsel on trial date. In striking a balance in this area, the 

following relevant considerations have been identified: 

1)  Reason for unavailability. Mississippi Valley Structural Steel Co. v. NLRB, 145 F.2d 

664, 665–667 (8th Cir. 1944) (unreasonable to deny due to illness of counsel who was the only 

attorney conversant with case). 

2)  When the conflicting commitment was made. Hijos de Ricardo Vela, Inc., 194 NLRB 

377, 377 fn. 1 (1971), enfd. 475 F.2d 58 (1st Cir. 1973) (reasonable to deny when the conflicting 

commitment—to bargain on behalf of another client—was made “long after the notice of hearing” 

and “indeed only shortly before the scheduled [trial] date”). 

3)  Length of continuance contemplated. Wittek Industries, 313 NLRB 579, 579 (1993) 

(not unreasonable to deny when, in part, no alternative trial date proposed); and Smith­Weik 

Machinery Corp. v. Murdock Machine Co., 423 F.2d 842, 845 (5th Cir. 1970) (unreasonable to 

deny when only short continuance sought due to illness of counsel in complicated case). 

4)  Complexity of facts and issues. Franks Flower Express, 219 NLRB 149, 149–150 

(1975), enfd. mem. 529 F.2d 520 (5th Cir. 1976) (not unreasonable to deny when “neither a 

complicated nor lengthy proceeding”); and Smith­Weik Machinery Corp., above (unreasonable 

when, among other factors, case was complicated). 

5)  Whether it is the first request for a continuance. Franks Flower Express, above, 219 

NLRB at 150 (the “Respondent was granted the original continuance it requested”); and Glacier 

Packing Co., 204 NLRB 597, 600 (1973), enfd. 507 F.2d 415 (9th Cir. 1974) (one pretrial request 

granted, two later pretrial requests for further continuance denied). 

6)  Availability of substitute counsel. Mississippi Valley Structural Steel Co. v. NLRB,  145 F.2d 664, 665–667 (8th Cir. 1944) (unreasonable to deny when ill counsel was the only
CHAPTER 6. TIME AND PLACE OF TRIAL 

43 

attorney conversant with the case); Wittek Industries, above (not unreasonable to deny when 

the corporate counsel, who had some familiarity with the circumstances leading to the discharge 

of the alleged discriminatees, was available to try case); Franks Flower Express, above (not 

unreasonable to deny when “represented at the [trial] by a member of [unavailable counsel’s] 

firm, who may be presumed to have knowledge of the issues as framed by the pleadings”); and

NLRB v. Glacier Packing Co., 507 F.2d 415, 416 (9th Cir. 1974) (not unreasonable to deny 

when the unavailable counsel was a member of a firm with other attorneys capable of litigating 

the case).

§ 6–310  Length of Continuance to Obtain Counsel or Substitute Counsel

In the following cases, the Board found that the time granted  to obtain counsel or 

substitute counsel was reasonable in length: Peter Vitalie Co., above (40 days to secure 

counsel); Franks Flower Express, above, 219 NLRB at 149 (1975) (5 days to secure substitute 

counsel); Wittek Industries, above (1 day for counsel to be available); and NLRB v. Glacier 

Packing Co., above (4 hours to secure substitute counsel from same firm after pretrial denials of 

requests for further continuances).

§ 6–320  When Counsel or Party Leaves Trial After Request Is Denied

Inasmuch as “due process preserves [only] the opportunity to be heard,” Broadway 

Hospital, Inc., 244 NLRB 341, 341 fn. 5 (1979), when a continuance has been properly denied, it 

is not improper to go forward with the trial without the presence of counsel. NLRB v. Glacier 

Packing Co., above, 507 F.2d at 416 (9th Cir. 1974); and NLRB v. Hijos de Ricardo Vela, Inc.,  475 F.2d 58, 61 (1st Cir. 1973). See also Ethan Enterprises, Inc., 342 NLRB 129, 129 fn. 2 

(2004), enfd. 154 Fed. Appx. 23 (9th Cir. 2005) (approving judge’s decision to proceed with 

hearing after departure of respondent’s attorney, following adverse ruling, where the attorney 

agreed to notify respondent that hearing was going to proceed in his absence). And see §7–250, 

“Absence of Respondent’s Attorney,” below.

§ 6–400  Motions for Continuance to Prepare a Defense

The Board has upheld the denial of a respondent’s request for a continuance, after the 

General Counsel rests, to investigate and prepare its defense. Because of the information 

supplied to the attorney in the complaint and in the General Counsel’s opening statement and 

because of the recess granted the respondent’s attorney after the opening statement to confer 

with his client, who was alleged to have committed the unfair labor practices, the attorney was 

required to go forward with the respondent’s proof. Spiegel Trucking Co., 225 NLRB 178, 179 

fn. 8 (1976), enfd. mem. 559 F.2d 188 (D.C. Cir. 1977). See also East Bronx Health Center, 271 

NLRB 898, 898 fn. 1 (1984). 

The following factors have been viewed as important: 

1)  Whether the complaint complies with Board’s Rules, Section 102.15, which requires 

the complaint to contain a “clear and concise description of the acts which are claimed to 

constitute unfair labor practices, including where known, the appropriate dates and places of such 

acts and the names of respondent’s agents or other representatives by whom committed.” 

2)  Length of time between issuance of complaint and trial, during which a respondent 

could prepare its defense.
CHAPTER 6. TIME AND PLACE OF TRIAL 

44 

3)  Nature of arguments advanced in support of motion. See *Paint America Services, 

Inc., 353 NLRB 973 (2009) (rejecting pro se respondent’s arguments in support of request for 

further continuance); and East Bronx Health Center, above (“the reasons the Respondent 

presented in its motion for adjournment fail to explain adequately why the Respondent was 

unable to go forward with its case or why another postponement was necessary”).

§ 6–500  Motions for Continuance Because of Unavailable Witness

Obviously there are situations in which a respondent is truly surprised by particular 

evidence presented during the General Counsel’s case and, in consequence, demonstrates a 

need for a continuance to secure the presence of a particular witness or documents to meet 

unanticipated evidence. 

Aside from these situations, however, the following factors have been identified when 

concluding that denial of the motions was reasonable: 

1)  Existence of prior notice of likely involvement of witness, particularly when the witness 

is named in the complaint. *Asher Candy, Inc., 353 NLRB 959 (2009); Quebecor Group, Inc.,  258 NLRB 961, 961 fn. 1 (1981); and Don’t Stop, 298 NLRB 961, 962 (1990). 

2)  Failure to show steps taken to ensure presence of witness. Batchelor Electric Co.,  254 NLRB 1145, 1145 fn. 1 (1981), enfd. mem. 716 F.2d 903 (6th Cir. 1983); and Don’t Stop,  above. See also *Paint America Services, Inc., above (affirming judge’s denial of pro se 

respondent’s request for further continuance). 

3)  Failure to show that whereabouts of witness are unknown. Quebecor Group, Inc.,  above. 

4)  Failure to provide supporting details to explain absence of witness. Skyline Builders, 

Inc., 340 NLRB 109 (2003); Riverdale Nursing Home, 317 NLRB 881, 881 (1995); and Florida 

Coca­Cola Bottling Co., 31 NLRB 21, 21 fn. 2 (1996). 

5)  Showing that the witness simply chose to do something other than attend the trial.

Greenpark Care Center, 236 NLRB 683, 683 fn. 3 (1978) (the witness chose to leave the 

country on vacation despite “ample notice” of the trial date from the notice of hearing issued 

almost 2 months before the trial date); and Don’t Stop, above (“chose not to be present at the 

[trial] because it was his considered business judgment that his presence at the [trial] was less 

important than a meeting with a major customer”). 

6)  Failure to claim the presence of a witness was actually needed to present the 

respondent’s defense. Stevens Ford, 272 NLRB 907, 907 (1984), enfd. in part 773 F.2d 468, 

476–477 (2d Cir. 1985). 

7)  Failure to indicate when witness would become available. Sarkes Tarzian, Inc., 157 

NLRB 1193, 1194 fn. 3 (1966). 

8)  Failure to take advantage of a suggestion, which was not asserted to be unreasonable, 

for alternative arrangements to avoid continuance. Somerville Cream Co., 95 NLRB 1144, 1146 

(1951), enfd. 199 F.2d 257 (1st Cir. 1952) (moving trial temporarily to the home of an assertedly 

incapacitated witness).
45

CHAPTER 7. APPEARANCES AT TRIAL 

§ 7–100  Representation at Trial

Section 102.38 of the Board's Rules and Regulations gives any party the right to appear in 

person, or by any other representative. There is no requirement that the representative be a 

lawyer.

§ 7–110  Respondent Not Represented by Counsel

There is no constitutional or statutory right for the respondent to have an attorney 

appointed to represent it at government expense. Betra Mfg. Co., 233 NLRB 1126, 1126 fn. 2 

(1977), enfd. mem. 624 F.2d 192 (9th Cir. 1980), cert. denied 450 U.S. 996 (1981). Further, when 

a losing respondent was represented by an attorney at the trial, the respondent cannot overturn 

an adverse decision on any claim of a constitutional or statutory right to the effective assistance 

of counsel. Father & Sons Lumber v. NLRB, 931 F.2d 1093, 1096–1097 (6th Cir. 1991), enfd. 

297 NLRB 437, 437 (1989). 

It is sufficient that the self­represented respondent is accorded a full and fair opportunity to 

present the respondent's case and cross­examine witnesses. *Paint America Services, Inc.,  353 NLRB 973 (2009); and American Cleaning Co., 291 NLRB 399, 399 fn. 1 (1988). As long as 

the judge remains impartial, he or she may go somewhat beyond according fundamental fairness 

and due process by answering procedural questions or explaining basic rights. See Dickens, 

Inc., 355 NLRB No. 44, slip op. at 3 (2010) (judge instructed unrepresented respondent regarding 

which areas of testimony would be relevant); Quality Asbestos Removal, 310 NLRB 1214, 1215 

(1993) (judge informed the respondent's nonlawyer representative, its owner, that she could ask 

to see any statements of the Government's witnesses when they had completed their direct 

examination).

§ 7–120  Representations That Present Possible Conflicts

Courts clearly have the authority, derived from their “inherent power to preserve the 

integrity of the adversary process,” to disqualify counsel due to a conflict of interest under the 

canons of ethics. See Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127, 132–  133 (2d Cir. 2005). See also Paul E. Iacono Structural Engineer, Inc. v. Humphrey, 722 F.2d 

435 (9th Cir. 1983). 

For a discussion of whether the Board’s judges have or should exercise similar authority 

to disqualify a party’s attorney due to a conflict of interest under the canons of ethics, see Mack 

Trucks, 277 NLRB 711 fn. 1 and 715–723 (1985). See also §7–130, “Attorney as Witness,” 

below. 

For situations where a party’s attorney is a former Board lawyer, and is therefore subject 

to the postemployment restrictions currently set forth in Sec. 102.119 of the Board rules, see

Hillview Convalescent Center, 266 NLRB 758 (1983) (Board stated that it would order former 

Board attorney to terminate his participation if he was still doing so, as it would violate the Board’s 

post­employment rules, but reversed judge’s conclusion that entire law firm should also be 

disqualified under the circumstances presented).
CHAPTER 7. APPEARANCES AT TRIAL 

46 

With respect to alleged conflicts involving counsel for the General Counsel, see AM 

Property Holding Corp., 350 NLRB 998, 1008 (2007) (counsel for the General Counsel, whose 

prior law firm had represented the charging party, had no conflict under applicable Federal 

statutes and regulations because she had not served as an attorney for the law firm in the last 

year).

§ 7–130  Attorney as Witness

The Board will not police the canons of ethics of the various bar associations. When, for 

example, a party’s trial lawyer takes the stand as a witness, any objection that the attorney’s 

testimony should be stricken as a violation of the canons of ethics should be overruled.

Operating Engineers Local 9 (Fountain Sand Co.), 210 NLRB 129, 129 fn. 1 (1974). Accord:

Wells Fargo Armored Service Corp., 290 NLRB 872, 873 fn. 3 (1988). See also Page Litho, 

Inc., 311 NLRB 881, 881 fn. 1 (1993), enf. denied in part on other grounds mem. 65 F.3d 169 

(6th Cir. 1995) (citing Wells Fargo and disavowing judge’s statement that counsel was precluded 

ethically from appearing as a witness).

§ 7–140  Representation at Postelection Proceedings

In consolidated  “C” and “R” cases (when a complaint case is consolidated with objections 

or challenged ballots in a representation case), the established Board law permits the General 

Counsel's trial attorney to switch to a neutral as the Regional Director’s representative for the 

objections/ballots portion of the case. Freuhauf Corp., 274 NLRB 403, 405–406 (1985). The 

procedure generally has been upheld by the courts. See, for example, Beaird­Poulan Division 

v. NLRB, 649 F.2d 589, 597–598 (8th Cir. 1981); and Barrus Construction Co. v. NLRB, 483 

F.2d 191, 194–195 (4th Cir. 1973).

§ 7–200  Failure of Party to Appear at Trial 

§ 7–250  Absence of Respondent's Attorney

When the respondent has filed an answer, but its lawyer or representative fails to appear 

at the trial, the judge should hear the General Counsel's evidence and issue a decision. Beta 

Steel Corp., 326 NLRB 1267, 1267 fn. 3, 1268 (1998); Quality Hotel, 326 NLRB 83, 83 fn. 4 

(1998) (in which the judge issued a bench decision); and Bristol Manor Health Care Center,  295 NLRB 1106, 1106 fn. 1 (1989), enfd. mem. 915 F.2d 1561 (3d Cir. 1990). 

Of course, if the answer previously filed by respondent is found insufficient, a default or 

summary judgment may be appropriate. See *Asher Candy, Inc., 353 NLRB 959 (2009).

§ 7–300  Rights of Charging Parties and Discriminatees

Charging Parties. Board’s Rules, Section 102.38, provides that “Any party [including the 

charging party] shall have right” to appear at the trial, “to call, examine, and cross­examine 

witnesses,” and to introduce evidence, “except that the participation of any party shall be limited 

to the extent permitted by the administrative law judge.” 

The right of the charging party to participate in the trial extends to charging parties who 

are not represented by counsel. In that regard, the Board has observed that it would be “better 

practice” for the judge to specifically offer the unrepresented charging party the opportunity to
CHAPTER 7. APPEARANCES AT TRIAL 

47 

question each witness, although finding that the failure of the judge to do so does not represent a 

denial of due process. Cowin & Co., 322 NLRB 1091, 1091 fn. 1 (1997). 

The charging party also has the right under Board’s Rules, Section 102.118(b)(1), to see 

the affidavits of witnesses of the respondent in the General Counsel’s file for cross­examination.

Senftner Volkswagen Corp., 257 NLRB 178, 178 fn. 1, 186–187 (1981), enfd. 681 F.2d 557 (8th 

Cir. 1982). See §13–803, below. 

Although the charging party may participate in the trial, it cannot amend the complaint. 

See GTE Automatic Electric, 196 NLRB 902, 903 (1972) (judge erred by granting the charging 

party’s motion to allege an additional discriminatee). See also Winn­Dixie Stores, 224 NLRB 

1418, 1420 (1976), enfd. in part 567 F.2d 1343 (5th Cir. 1978) (judge lacks authority to amend 

the complaint unless “sought or consented to by the General Counsel” or “evidence has been 

received . . . without objection”); and GPS Terminal Services, 333 NLRB 968, 968–970 (2001) 

(judge erred by amending complaint consistent with respondent’s request). 

The General Counsel also controls the theory of the case, and a judge cannot consider 

theories for violations argued by the charging party that substantially differ from the General 

Counsel’s. Zurn/N.E.P.C.O., 329 NLRB 484 (1999); and Local 282 Teamsters, 335 NLRB 1253, 

1254 (2001). 

After a complaint issues, however, the responsibility for fashioning an appropriate remedy 

rests with the Board under Section 10(c) of the Act. Thus, it was error for a judge to preclude the 

charging party from introducing evidence in support of a restoration remedy, even though the 

General Counsel had not sought the remedy and the charging party had not appealed the 

Director’s refusal to seek the remedy. Kaumagraph Corp., 313 NLRB 624, 624–625 (1994); and

Sunland Construction Co., 311 NLRB 685, 706 (1993) (the charging party has the right to seek 

extraordinary remedies not sought by the General Counsel, including a bargaining order). Accord:

Gourmet Foods, 270 NLRB 578, 579 (1984). However, the remedies must be consistent with the 

General Counsel’s theory of the case. ATS Acquisition Corp., 321 NLRB 712, 712 fn. 3 (1996) 

(error for a judge to award backpay pursuant to a request of the charging party, because 

complaint did not allege unlawful unilateral changes). 

In a compliance proceeding, the charging party has somewhat greater rights, because the 

General Counsel does not have final authority under Section 3(d) of the Act, as it does regarding 

complaints. Ace Beverage Co., 250 NLRB 646, 647 (1980). Thus, in compliance matters, the 

General Counsel does not act on his own initiative, but as agent of the Board in effectuating the 

remedy. Therefore, the charging party is entitled to appeal to the Board a Regional Director’s 

decision regarding the cut­off date for reinstatement. Ace Beverage, above (the procedure 

followed was a motion to the Board for clarification of its prior order). 

This does not mean, however, that the charging party is entitled to raise and litigate issues 

before the judge, contrary to the backpay specification. The charging party should make its 

appeal directly to the Board from the Regional Director’s decision regarding the specification.

John Cuneo, Inc., 276 NLRB 75, 77 (1985), remanded 792 F.2d 1181 (D.C. Cir. 1986); and

Page Litho, Inc., 325 NLRB 338, 338–339 (1998). See Board’s Rules, Section 102.53(c), 

providing for review by the Board of the General Counsel’s decision concerning compliance 

determinations. 

Discriminatees. The failure of a discriminatee to appear or testify at the trial does not 

preclude the judge or the Board from finding a violation regarding that employee. Riley Stoker 

Corp., 223 NLRB 1146, 1146–1147 (1976), enfd. in part mem. 559 F.2d 1209 (3d Cir. 1977)
CHAPTER 7. APPEARANCES AT TRIAL 

48 

(Board reversed judge who dismissed an 8(a)(3) violation because the employee abstained from 

appearing at the trial). 

See also §10–400, below, regarding exclusion of charging parties and discriminatees from 

portions of the hearing pursuant to a sequestration order.

§ 7–400  Intervention at Trial

Board’s Rules, Section 102.29, permits “any person” to file a motion with the judge to 

intervene in the trial, and the judge shall rule on the motion and “may permit intervention . . . to 

[the] extent and upon such terms as he may deem proper.” See also FRCP 24. The issue of 

intervention is subject to the discretion of the judge and will not be disturbed absent abuse or 

prejudice. Auto Workers v. NLRB, 392 F.2d 801, 809 (D.C. Cir. 1967), cert. denied 392 U.S. 906 

(1968); and Biles­Coleman Lumber Co., 4 NLRB 679, 682 (1937). 

Intervention has been permitted by judges when employees or groups of employees 

sought intervention to litigate the union’s majority status or its solicitation of authorization cards.

Taylor Bros., Inc., 230 NLRB 861, 861 fn. 1 (1977); J. P. Stevens & Co., 179 NLRB 254, 255 

(1969), enfd. 441 F.2d 514 (5th Cir. 1971), cert. denied 404 U.S. 830 (1971); and Spruce Pine 

Mfg., 153 NLRB 309, 309 fn. 1 (1965), enfd. in part 365 F.2d 898 (D.C. Cir. 1966). 

For a good discussion of relevant factors to consider, see Camay Drilling Co., 239 NLRB 

997, 998–998 (1978). In that case, the Board reversed a judge’s denial of a motion to intervene 

filed by trustees of a jointly operated pension fund. The judge had concluded that the trustees 

would have no interest in the trial until a backpay proceeding was held. The Board disagreed, 

finding that because of the fiduciary obligations imposed on the trustees by ERISA, they are 

“interested parties” under the Administrative Procedure Act and are entitled to intervene to 

safeguard assets of the trust fund. 

See also Operating Engineers Local 12 (Griffith Co.), 212 NLRB 343, 345 (1974), revd. 

on other grounds 545 F.2d 1194 (9th Cir. 1976), cert. denied, 434 U.S. 854 (1977), in which the 

judge permitted trustees of trust funds to appear in an 8(b)(4)(ii)(B) and 8(e) case that involved a 

clause prohibiting subcontracting to employers who were delinquent in payments to the funds. 

For a case where the judge and Board denied a motion to intervene, but granted the right 

to file an amicus brief, see Hotel Del Coronado, 345 NLRB 306, 306 fn. 1, 308 fn. 1 (2005) 

(attorney for National Right to Work Legal Defense Foundation, who represented an employee of 

respondent opposed to unionization, sought to intervene in 8(a)(5) case to urge that a neutrality 

agreement entered into between respondent’s predecessor and the union was improper).

§ 7–410  Necessary Parties

For a discussion of the application of FRCP 19 (required joinder of parties) to Board 

proceedings, see Expert Electric, Inc., 347 NLRB 18, 19 (2006) (holding that, even assuming 

FRCP 19 applies to Board proceedings, which is questionable, individual members of a multi­ 

employer association were not necessary and indispensible parties to the 8(a)(5) refusal­to­ 

bargain case against the association itself because the Board could accord full relief to the parties 

without the joinder of each individual member).
CHAPTER 7. APPEARANCES AT TRIAL 

49

§ 7–420  Parties in Interest

A “party in interest” named in the complaint has the same rights as other named parties, 

under Section 102.38 of the Board’s Rules, to notice and an opportunity to be heard, including 

presenting evidence and examining witnesses. See, e.g., Midwestern Personnel Services, Inc.,  331 NLRB 348, 349 (2000); and U.S. Steel Corp., 280 NLRB 837 (1986). Thus, its position must 

also be considered in approving a settlement agreement, but only to the extent of its interest. See

Haven Manor Health Related Facility, 243 NLRB 39 (1979) (where union was party in interest 

only to 8(a)(2) allegations, its joining or becoming a party to settlement of 8(a)(1) and (3) 

allegations was unnecessary).

§ 7–500  Misconduct by Attorney or Representative

The judge has no authority to hold attorneys in contempt for engaging in misconduct 

during the trial such as interrupting other counsel, witnesses, or the judge, making derogatory 

comments to or about them, refusing to obey the judge’s rulings, or engaging in other conduct 

that the judge believes is intended to unreasonably delay the trial. 

However, the Board’s Rules and precedents provide the judge various other methods to 

deal with such misconduct. Obviously, the judge should first point out to the offending party that 

the conduct is improper and will not be tolerated. If the conduct nevertheless persists, Section 

102.177 of the Board’s Rules and Regulations (“Misconduct by Attorneys or Party 

Representatives”) provides that the judge may:  (1) exclude counsel from the hearing, (2) issue, 

after due notice, an admonishment or reprimand, and/or (3) refer the matter to the General 

Counsel for investigation and appropriate action.

§ 7–510  Exclusion of Counsel

Board’s Rules, Section 102.177(b), provides that “misconduct by any person . . . shall be 

grounds for summary exclusion from the [trial].” Although this option is within the judge’s 

discretion, it should be used cautiously because it involves an interference with the respondent’s 

right to counsel. See Great Lakes Screw Corp. v. NLRB, 409 F.2d 375, 380–381 (7th Cir. 1969) 

(court reversed the Board’s affirmance of a judge’s decision to exclude counsel, criticizing both 

the judge and the Board for not providing detailed and specific references to the attorney’s 

conduct that allegedly warranted exclusion). See also Operating Engineers District 1 (Crest 

Tankers), 274 NLRB 1481, 1482 (1985) (Board reversed judge who had excluded counsel 

because the judge believed that counsel had misrepresented his ruling in filing a special appeal 

and had refused the judge’s directive to “correct” the appeal). 

Procedures before and after exclusion. If the judge decides to exercise the exclusion 

option, it is essential that he or she provide the offending party with several warnings, specifying 

the conduct that the judge considers inappropriate. The judge should also make a clear statement 

on the record that he or she will exclude the party if the conduct continues. 

Further, if the person being excluded represents the respondent, it is appropriate, if not 

essential, to adjourn the trial to permit the respondent to obtain new counsel or to appeal the 

judge’s exclusionary ruling. See Great Lakes Screw Corp., 164 NLRB 149, 149 fn. 2 (1967), 

revd. and remanded 409 F.2d 375 (7th Cir. 1969). 

For a good example of how to proceed both before and after excluding a respondent’s 

representative from participating in the trial, see the judge’s decision in USA Remediation 

Services, Inc., 5–CA–31524, JD–20–06 2006, WL 691192 (March 15, 2006) (slip op. at 15–20),
CHAPTER 7. APPEARANCES AT TRIAL 

50 

adopted by the Board in the absence of exceptions in a May 16, 2006 order. See also the 

subsequent, related disciplinary proceeding, In re David M. Kelsey, 349 NLRB 327 (2007) 

(issuing default judgment imposing 6­month suspension for the same conduct). 

Conduct warranting exclusion. For cases where the judge has excluded the charging 

party’s representative, see Advance Waste Systems, 306 NLRB 1020, 1032–1033 (1992) 

(representative excluded over the objection of the General Counsel and with assistance of 

Federal Protective Service); and State Bank of India, 283 NLRB 266, 277–278 (1987). It is not 

clear whether an adjournment was requested or granted in either of these cases to permit the 

charging party to obtain a new representative. However, if an attorney for the charging party is 

excluded and the charging party requests an adjournment of the trial to obtain new counsel to 

appeal the exclusion ruling, the request should probably be granted. Great Lakes Screw, above. 

A possible middle ground, which could avoid the postponement problem, is available 

when the offending party has co­counsel. Thus, in Baddour, Inc., 281 NLRB 546, 546 fn. 2 

(1986), enfd. mem. 848 F.2d 193 (6th Cir. 1988), cert. denied 488 U.S. 944 (1988), the Board 

affirmed the judge’s ruling that an attorney, who constantly interrupted witnesses, objected to 

questions the judge had previously ruled proper, and argued after his evidentiary rulings, should 

be precluded from speaking or examining witnesses, but could remain in the room to assist co­ 

counsel. The Board concluded that judge’s ruling limiting the participation of the attorney was not 

improper.

§ 7–520  Authority to Admonish or Reprimand Counsel

Boards Rules, Section 102.177(b), also authorizes judges and the Board to “admonish or 

reprimand, after due notice, any person who engages in misconduct at a [trial].”  A “formal 

admonition or reprimand declares conduct improper and cautions the offender that repetition of 

offense will result in more severe discipline.” Sargent Karch, 314 NLRB 482, 486 fn. 14 (1994). 

See also 675 West End Owners Corp., 345 NLRB 324, 325–326 fn. 11 (2005), enfd. 304 Fed. 

Appx. 911 (2d Cir. 2008). But see Mail Contractors of America, 347 NLRB 1158 (2006), enf. 

denied on other grounds, 514 F.3d 27 (D.C. Cir. 2008) (holding that judge’s issuance in his 

decision of a “notice of potential admonishment, reprimand, or summary exclusion” stating that 

counsel’s hearing conduct was unprofessional and, if repeated, could result in an admonishment, 

reprimand, or exclusion, was itself an admonishment or reprimand under Sec. 102.177). 

The exclusion and formal­admonition remedies are not mutually exclusive and, in fact, in 

most cases, exclusion will also be accompanied by a formal admonition. See Advance Waste 

Systems, 306 NLRB 1020, 1032–1033 (1992), and State Bank of India, above, 283 NLRB at 

277–278 (1987). 

Due notice required. The rule specifically requires “due notice” before an admonishment 

or reprimand is issued. Thus, the judge should be careful to give both advance notice and an 

opportunity to respond before issuing such discipline. See Mail Contractors of America, above. 

One option would be to provide the representative notice during the hearing and an opportunity to 

respond in a posthearing brief before issuing the admonishment or reprimand. 

As indicated above, Section 102.177(b) also authorizes the Board to issue an 

admonishment or reprimand after due notice. In light of this, some judges have simply 

recommended in the decision that the lawyer or representative be admonished or reprimanded by 

the Board. This procedure allowed the representative to address the issue on exceptions before 

such discipline was actually administered. However, the Board has not been receptive to this 

procedure. See 675 West End Owners, above (holding that the judge should have either
CHAPTER 7. APPEARANCES AT TRIAL 

51 

exercised her authority under 102.177(b) to issue the warning and reprimand herself, or referred 

the matter to the General Counsel for investigation under 102.177(e) [discussed below]). 

Conduct warranting reprimand. Some examples of conduct found to warrant a formal 

reprimand, admonishment, or warning include: interrupting counsel, witnesses, and the judge and 

failing to follow the judge’s instructions, Advance Waste, above; inappropriate or unprofessional 

comments about the judge, Maietta Contracting, 265 NLRB 1279, 1279–1280 (1982), enfd. 

mem. 729 F.2d 1448 (3d Cir. 1984); profanity directed towards counsel and the judge and refusal 

to obey the judge’s instructions, accusing the judge of “taking money,” State Bank of India,  above; violating a separation of witnesses order of the judge, Seattle Seahawks, 292 NLRB 899, 

908 (1989), enfd. mem. 888 F.2d 125 (2d Cir. 1989); and willfully taking frivolous position at the 

trial to delay and abuse the Board’s processes, Nursing Center at Vineland, 318 NLRB 337, 

344 (1995). Other examples include talking loudly, interrupting while witnesses are testifying, 

interposing baseless objections and evading or disregarding a judge’s rulings. 675 West End 

Owners, above, 345 NLRB at 325–326. See also Government Employees (IBPO), 327 NLRB 

676 (1999); and Alan Short Center, 267 NLRB 886, 886 fn.1 (1983). 

Frivolous answers. Note that a separate rule, Section 102.21, specifically provides for 

disciplinary action against an attorney or representative for willfully filing an answer that is without 

good grounds to support it and is interposed for delay. This section has frequently been cited by 

the Board in cautioning and warning attorneys against engaging in misconduct. See, e.g., In re 

Konig, 318 NLRB 337, 338 fn.7 (1995); Graham­Windham Services, 312 NLRB 1199, 1199 fn. 

2 (1993); Worldwide Detective Bureau, 296 NLRB 148, 148 fn. 2 (1989); and M. J. Santulli 

Mail Services, 281 NLRB 1288, 1288 fn. 1 (1986). 

It is a useful tool for judges to cite these cases when encountering obviously frivolous 

answers to complaint allegations. This should be done in conference calls, especially because 

very often these answers engender subpoenas and needless litigation. It is not uncommon for 

attorneys to suddenly amend their answers when confronted with the possibility of disciplinary 

action for needlessly litigating issues that are not really in dispute.

§ 7–530  Suspension of Counsel

The final and most severe remedy for misconduct is set forth in Section 102.177(d) of the 

Board’s revised Rules, which states that misconduct “at any stage of any Agency proceeding, 

including but not limited to the trial,” which is “of an aggravated character, shall be grounds for 

suspension and/or disbarment from practice before the Board.” This section, which had 

previously been incorporated in Section 102.44, now also sets forth a detailed procedure for 

implementation. 

Procedure for referral of allegations. Under Section 102.177(e), any person, including the 

judge, can file an allegation of misconduct with the investigating officer, the Associate General 

Counsel, Division of Operations Management, who has final, unreviewable authority to initiate 

disciplinary proceedings against an attorney or other representative. 

The explanatory material published in the Federal Register indicated that the judge could 

recommend disciplinary action in his or her decision, which may then be referred by the Board to 

the investigating officer. 61 Fed, Reg, 65323, 65329, fn. 12 (Dec. 12, 1996). However, in 

subsequent cases, the Board has expressed a preference that the judge separately submit a 

recommendation for discipline directly to the investigating officer. See Earthgrains Co., 351 

NLRB 733, 733 fn. 3 (2007); 675 West End Owners Corp., 345 NLRB 324, 325–326 (2005), 

enfd. 304 Fed. Appx. 911 (2d Cir. 2008); and McAllister Towing & Transportation, 341 NLRB
CHAPTER 7. APPEARANCES AT TRIAL 

52 

394, 398 fn.7 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). See also Smithfield Packing 

Company, Inc., 344 NLRB 1, 19 fn. 59 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006) (agreeing 

with judge’s recommendation to refer perjury and subornation of perjury allegations to the 

General Counsel, but noting that the judge had the authority to do so as well). 

Thus, disciplinary allegations and recommendations should normally be sent to the 

General Counsel by separate letter, not to the Board. See, e.g., David M. Kelsey, 349 NLRB 327 

(2007) (judge excluded respondent’s representative from the hearing due to his misconduct, and 

thereafter, on the same day as his decision in the underlying case, sent a separate letter referring 

misconduct allegations to General Counsel pursuant to Sec. 102.177, which ultimately resulted in 

representative’s 6­month suspension). 

Definition of “aggravated” misconduct. The Board’s Rules do not define the term 

“aggravated” misconduct. But Section 102.177(a) of the Rules states that attorneys and 

representatives “shall conform to the standards of ethical and professional conduct required of 

practitioners before the courts, and the Agency will be guided by these standards in interpreting 

and applying the provisions of this section.” See also the supplementary information 

accompanying the final rule published in the Federal Register, 61 Fed. Reg. 65323, 65327 (Dec. 

12, 1996) (stating that the Board would be guided by standards, “including the ABA Model Rules 

of Professional Conduct, other ABA standards adopted in the future, applicable State Bar rules, 

and court decisions applying [the] rules”). 

The Board emphasized when it adopted Section 102.177 in 1996 that it was not changing 

the standard for “aggravated misconduct.” Thus, it is also instructive to examine case precedent 

to determine the meaning of that term. 

One of the most important factors appears to be the presence of prior disciplinary 

offenses. See Sargent Karch, 314 NLRB 482, 486 fn. 10 (1994), where the Board suspended an 

attorney from practice for 6 months for violating the judge’s sequestration order. The Board noted 

that the attorney had been “formally admonished” for identical misconduct in a prior case, and 

cited Section 6.23 of the American Bar Association Standards for Imposing Lawyer Sanctions, 

which states that prior disciplinary offenses constitute an “aggravating” factor justifying increased 

discipline. 

However, the Board made clear in Sargent Karch that it did not mean to imply that 

suspension would never be appropriate in the absence of a prior formal admonition or reprimand. 

The Board cited Matter of an Attorney, 307 NLRB 913, 913 (1992), in which it approved a 

settlement calling for a 6­month suspension of an attorney for using profanity and verbally 

addressing opposing counsel in a rude, vulgar, and profane manner, even in the absence of prior 

disciplinary proceedings against him. See also David M. Kelsey, 349 NLRB 327 (2007) (despite 

lack of prior discipline, Board issued default judgment and ordered 6­month suspension of 

respondent employer’s nonattorney representative for his misconduct during the trial in USA 

Remediation Services, Inc., 5–CA–31524, JD–20–06, 2006 WL 691192 (March 15, 2006), 

adopted in the absence of exceptions May 16, 2006). 

Common types of misconduct found to warrant suspension include interruptions, refusals 

to obey judge’s instructions or rulings, delaying tactics, and derogatory, abusive, or profane 

comments to opposing counsel and the judge. See *Uzi Einy, 352 NLRB 1178 (2008) (6­month 

suspension imposed on nonattorney respondent representative); and David M. Kelsey, above 

(same).
CHAPTER 7. APPEARANCES AT TRIAL 

53 

Length of suspension. Although 6 months appears to be a common sanction, longer 

suspensions have been ordered. See Stuart Bochner, 322 NLRB 1096, 1096 (1997) (Board 

issued 2­1/2 year suspension to attorney who had lied to the judge in one proceeding and 

purposely delayed other proceedings by engaging in frivolous delaying tactics, including the 

failure to produce subpoenaed documents without filing a motion to revoke in three separate 

proceedings, filed answers that he knew or should have known were false in three proceedings, 

and had been previously admonished by the Board in Advance Waste Systems, 306 NLRB 

1020, 1032–1033 (1992) for interrupting counsel, witnesses, and the judge and for failing to follow 

the judge’s instructions). See also Joel I. Keiler, 316 NLRB 763, 766–770 (1995), vacated by 

unpublished district court order dated February 3, 1998 (Board issued 1­year suspension to 

attorney who engaged in ad hominem comments and scurrilous characterizations of the General 

Counsel, as well as other conduct designed to obstruct and delay the Board’s exercise of 

subpoena authority, despite the Board’s previous expressions of disapproval with respect to his 

similar conduct in two prior cases). 

Although rare, the Board has also disbarred an attorney. See Kings Harbor Health Care,  239 NLRB 679 (1978) (attorney had pleaded guilty in criminal proceeding to subornation of 

perjury in prior Board proceeding). See also Application and Motion of Horowitz, 266 NLRB 

755 (1983) (denying same attorney’s subsequent request for reinstatement of right to appear 

before Board).

§ 7–540  Awarding Litigation Costs

The Board has also upheld the award of litigation costs against a party whose counsel has 

engaged in conduct deliberately designed to cause delay and thereby draw out the litigation.  See

Teamsters Local 122 (August A. Busch & Co. of Massachusetts), 334 NLRB 1190, 1193, and 

1255 (2001). See also 675 West End Owners Corp., 345 NLRB 324, 326, and 340 (2005).

55

CHAPTER 8. SUBPOENAS 

§ 8–100  In General 

§ 8–110  Application for Subpoena

Board’s Rules, Section 102.31, requires a written application for issuance of a subpoena. 

See §8–210, below. If the application is filed before trial, it should be filed with the Regional 

Director. If filed during the trial, it should be filed with the judge. 

Applications for subpoenas may be made ex parte. A judge must issue a subpoena and 

await a petition to revoke, even if the subpoena on its face seeks the production of unobtainable 

information. See Canova v. NLRB, 708 F.2d 1498, 1503 (9th Cir. 1983). After the trial opens, if 

the judge is unavailable, as over a weekend, the Regional Director may issue a requested 

subpoena because the issuance is “virtually a ministerial act and involves no exercise of 

discretion.” Free­Flow Packaging Corp., 219 NLRB 925, 926 (1975), enfd. in part 566 F.2d 1124 

(9th Cir. 1978).

§ 8–120  Service of Subpoena

Service of subpoenas may be made by personal service, by registered or certified mail, by 

telegraph, or by leaving a copy at the principal office or place of business of the person required 

to be served. Board’s Rules, Section 102.113(c). See also Offshore Mariners United, 338 NLRB 

745 (2002) . 

It is not required that a subpoena served by the last of these methods be left with a person 

specifically authorized to accept service of subpoenas. See Packaging Techniques, Inc., 317 

NLRB 1252, 1253 (1995); and Control Services, 303 NLRB 481, 483 fn. 13 (1991), enfd. 961 

F.2d 1568 (3d Cir. 1992) (table) (leaving a copy of the subpoena with the receptionist at the 

respondent’s principal place of business was effective service on the respondent’s officer under 

Section 102.113(c), even if the respondent had not authorized the receptionist to accept such 

service). 

Any sufficient proof may be relied upon to establish that service was made. Section 

102.113(e). Best Western City View Motor Inn, 327 NLRB 468, 468–469 (1999) (the attorney’s 

affirmation of service is sufficient). It is not essential to provide a postal return­receipt card signed 

by the person subpoenaed to effectuate service. Id. at 469. 

The date of service is the day when the subpoena is deposited in the United States mail, 

or is deposited with a private delivery service that will provide a record showing the date it was 

tendered to the delivery service, or is delivered in person. Board’s Rules, Section 102.112. See

National Automatic Sprinklers, 307 NLRB 481, 481 fn. 1 (1992). See also §4–750, 

“Subpoenas,” above. 

Note that a copy of the subpoena “shall” also be served on any attorney who has entered 

an appearance, but that service can be made “by any means of service permitted by these rules, 

including regular mail.” Section 102.113(f) of the Board’s Rules (formerly Sec. 102.111(b)). See 

also Iron Workers Local 75 (Defco Construction), 268 NLRB 1453, 1456 fn. 8 (1984) (declining 

to take adverse inference based on party’s failure to comply with subpoena where, inter alia, 

subpoena was not served on party’s attorney).
CHAPTER 8. SUBPOENAS 

56

§ 8–130  Geographic Reach of Subpoena

Section 11(1) of the Act provides that the Board may require the attendance of witnesses 

from any place in the United States, its territories, or possessions.

§ 8–140  Fees and Mileage Required to be Paid

Witnesses subpoenaed for trial shall be paid the same fees and mileage that are paid 

witnesses in the Federal courts by the party who issued the subpoena. Board’s Rules, Section 

102.32; Zurn/N.E.P.C.O., 329 NLRB 484, 486–487 (1999). See also 28 U.S.C. Section 1821 and 

FRCP 45(b). 

The failure of a respondent or charging party to provide fees and mileage with subpoenas 

at the time of service renders them “defective on their face,” and it is the recipient’s privilege not 

to comply with them.” Rolligon Corp., 254 NLRB 22, 22 (1981). See also Champ Corp., 291 

NLRB 803, 817 (1988), enfd. 933 F.2d 688 (9th Cir. 1990), cert. denied, 502 U.S. 957 (1991); and

O.K. Machine & Tool Corp., 279 NLRB 474, 479 (1986). 

In contrast, however, the General Counsel need not advance the standard fees upon 

service of a subpoena. Zurn/N.E.P.C.O., above. See also Valentine Painting and 

Wallcovering, Inc., 331 NLRB 883, 884 (2000) (rejecting respondent’s objection that witness and 

mileage fees were not tendered with the General Counsel’s subpoena, noting that the subpoena 

stated on its face that such fees would be paid upon the presentation of a voucher). See also 

FRCP 45(b) and NLRB Casehandling Manual (Part One), Secs. 11778 (service of subpoenas) 

and 11780 (witness fees). 

The distance to be traveled, however, may justify requiring that travel expenses be 

included with service of the subpoena, even by the Government. See Zurn/N.E.P.C.O., above 

(judge concluded that it was an “undue burden” to require disinterested witness to advance his 

own costs for 550 mile round trip). 

Note that a respondent’s failure to pay the witness fee and mileage to employees who 

appear at the hearing as required by the subpoena may also constitute a violation of the Act. See

Howard Mfg. Co., 231 NLRB 731, 732 (1977) (respondent did not tender fees either upon 

service or thereafter).

§ 8–150  Expert Witnesses, Required Fees and Mileage

Regarding expert witnesses, the standard fee for witnesses does not constitute payment 

of the fee charged by an expert, and a subpoena may be quashed when the appropriate expert 

witness fee has not been included with service of the subpoena. Zurn/N.E.P.C.O., above, 329 

NLRB at 486–487.

§ 8–200  Revocation of Subpoenas 

§ 8–210  Petition to Revoke “In Writing”

Board’s Rules, Section 102.31(b), provides that petitions to revoke “shall” be filed within 5 

days after service, “in writing.” However, to avoid unnecessary delay, a party may be required to 

argue orally against a subpoena. Packaging Techniques, Inc., 317 NLRB 1252, 1253 (1995)
CHAPTER 8. SUBPOENAS 

57 

(denying respondent’s request for the full 5 days allowed by Sec. 102.31 to file a written petition 

to revoke a subpoena served on the morning of the trial).

§ 8–220  “Within 5 Days” Requirement

As indicated above, any party served with a subpoena has 5 days from the date of receipt 

in which to petition for revocation of the subpoena. See Sec. 11 of the Act and Board’s Rules, 

Section 102.31(b).  In computing the time period, the date of service and intermediate Saturdays, 

Sundays, and holidays are not counted. Board’s Rules, Section 102.111(a). 

However, to avoid unnecessary delay, a party seeking to revoke a subpoena may be 

required to respond in less than 5 days. Packaging Techniques, Inc., above, 317 NLRB at 

1253. 

Note that the 5­day rule may not be strictly applied if the subpoenaed material is subject to 

a privilege. See M. J. Mechanical Services, 324 NLRB 812, 832 (1997) (“reporter’s privilege”) 

and cases cited by the judge there. See also the following court cases holding that a party did not 

waive its right to challenge subpoena enforcement by failing to exhaust administrative remedies 

by timely filing a petition to revoke: NLRB v. Midland Daily News, 151 F.3d 472, 474–475 (6th 

Cir. 1998) (a Board subpoena that “constituted a constitutional infringement of [the respondent 

newspaper’s] right to exercise commercial free speech”); and EEOC v. Lutheran Social 

Services, 186 F.3d 959, 960 (D.C. Cir. 1999) (an EEOC document protected by the attorney­ 

client privilege), discussed at length in NLRB v. Coughlin, 176 LRRM 3197, 2005 WL 850964 (S. 

Dist. Ill. 2005) (not reported in F. Supp. 2d) (following EEOC, above, with respect to documents 

privileged by attorney client and work product doctrines). 

But see Detroit Newspapers Agency, 326 NLRB 700, 751 fn. 25 (1998), enf. denied on 

other grounds 216 F.3d 109 (D.C. Cir. 2000), where the Board, in an unpublished order on 

interlocutory appeal during the trial, reversed a judge who refused to apply the 5­day rule 

because, inter alia, the subpoenaed material was covered by the attorney­client privilege. A panel 

majority of the Board held that the judge “abused his discretion . . . because the Respondent did 

not file a proper motion or petition to revoke within 5 days.” Dissenting, one Member would not 

have granted the special appeal, but would have permitted the issues to be raised “in the 

exceptions process.” See also FTC v. GlaxoSmithKline, 202 F.R.D. 8 (D.D.C. 2001) 

(distinguishing EEOC, above, on ground that FTC subpoena specifically stated that a petition to 

revoke or privilege log must be filed within 5 days).

§ 8–230  Grounds for Revoking Subpoena

A subpoena may be revoked if the evidence requested does not relate to any matter 

under investigation, the subpoena does not describe with sufficient particularity the evidence 

required, or the subpoena is invalid for any other reason sufficient in law. Board’s Rules, Section 

102.31 (b). See also Brink’s, Inc., 281 NLRB 468, 468 (1986) (setting forth general principles 

with respect to subpoena revocation and noting “useful guidance” provided by Federal Rules of 

Civil Procedure, although those rules are not binding on the Agency).
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§ 8–300  Scope of Subpoenas 

§ 8–310  Material Must Be “Reasonably Relevant”

Subpoenaed information should be produced if it relates to any matter in question, or if it 

can provide background information or lead to other evidence potentially relevant to an allegation 

in the complaint. Board’s Rules, Section 102.31(b) and Perdue Farms, 323 NLRB 345, 348 

(1997), affd. in relevant part 144 F.3d 830, 833–834 (D.C. Cir. 1998) (the information needs to be 

only “reasonably relevant”).

§ 8–320  Request Must Not Be Vague or Overbroad

Although a subpoena should be specific in asking for relevant information, a judge may 

often resolve objections that a subpoena is vague or overbroad by asking that the request be 

narrowed or made more specific. With a little time and attention, such objections may be resolved 

by compromise. 

If pressed, however, the judge must rule on such objections. In an unpublished order, the 

Board reversed a judge’s decision to quash a subpoena of the General Counsel for being vague 

and overbroad because the language in the subpoena asked for information about union 

pressure regarding employees’ refusal to work overtime in language borrowed from Board cases 

dealing with concerted refusals to volunteer for overtime in the healthcare industry. SEIU United 

Healthcare Workers—West, 20–CG–65 (October 24, 2006).

§ 8–330  Burdensomeness of Production

The party asserting burdensomeness must meet a high standard or burden of proof. A 

subpoena is not “unduly burdensome” simply because it requires the production of a large 

number of documents. To satisfy the burden, the party must show that production of the 

subpoenaed information “would seriously disrupt its normal business operations.” NLRB v. 

Carolina Food Processors, Inc., 81 F.3d 507, 513–514 (4th Cir. 1996), cited with approval in

McAllister Towing & Transportation Co., 341 NLRB 394, 397 (2004), enfd. 156 Fed. Appx. 386 

(2d Cir. 2005); and *CNN America, Inc., 352 NLRB 675, 676 (2008). 

In *CNN America, above, the Board indicated that, when analyzing a large scale request 

for information under a subpoena, the judge must balance the relevancy and need for the 

information against the potential cost and burdensomeness of its production in the form 

requested. The Board in that case also endorsed application of the Federal Rules of Civil 

Procedure to aid in resolving such questions. 352 NLRB at 676. See also §8–340, below.

§ 8–340  Electronically Stored Information (Computer Records)

In *CNN America, discussed above, the Board found that the respondent made a 

“plausible argument” that production of certain types of information in electronic form could be 

disruptive of its business operations. Noting the “complex issues” involved with such electronic 

records, the Board directed the appointment of a special master to assist in resolving the matter. 

The Board directed that the special master (another administrative law judge) apply the balancing 

tests described in FRCP 26(b)(2)(C) and The Sedona Principles. Principle 3 of Sedona requires 

the assessment of the “realistic costs of preserving, retrieving, reviewing, and producing 

electronically stored information.” Sedona also provides guidance in assessing the
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burdensomeness of production of computer information in different formats (i.e. metadata) and 

from different sources (i.e. disaster recovery backup tapes). 

In *CNN America, Inc., 353 NLRB 891 (2009), the Board adopted the special master’s 

analysis in the following two respects. Using the criteria contained in Sedona and FRCP 

26(b)(2)(C), the special master concluded that a narrowly tailored demand for electronic 

discovery should be produced with accompanying metadata since such production “in a highly 

functional format . . . will increase the utility of this material.”  353 NLRB at 902. By contrast, the 

master noted that the requesting party had failed to demonstrate the necessity for production of 

material from disaster recovery tapes. 353 NLRB at 902 fn. 21.

§ 8–350  Request for Bargaining Information

The General Counsel (and indirectly the charging party union) may not, by using a 

subpoena, obtain the same information that is allegedly unlawfully withheld from the union in 

violation of Section 8(a)(5) of the Act. This would amount to using the subpoena process “as a 

substitute for the Board order sought by the complaint.” Electrical Energy Services, 288 NLRB 

925, 931 (1988). 

Respondent subpoenas that broadly requested union records relating to pending 

negotiations, including communications between the union and its members, have been revoked 

in order to protect the bargaining process. See judge’s decision in Berbiglia, Inc., 233 NLRB 

1476, 1495 (1977). See also Champ Corp., 291 NLRB 803, 817 (1988), enfd. 933 F.2d 688 (9th 

Cir. 1990), cert. denied, 502 U.S. 957 (1991) (judge cited Berbiglia, as well as the subpoena’s 

overbreadth and facial deficiency, as grounds for revoking respondent’s subpoena seeking all 

union notes or other records describing or recording collective bargaining sessions). 

This rationale would seem also to apply to employer notes relating to bargaining strategy. 

See Boise Cascade, 279 NLRB 422, 432 (1986) (Board found no violation where employer 

refused to provide union requested information regarding historical overview of its negotiations 

and strategy, and adopted judge’s reasoning that “[a] proper bargaining relationship between the 

parties mandates that Respondent be able to confidentially evaluate possible interpretations of 

the existing labor agreement and that it be able to plan in confidence a strategy for altering or 

changing [the terms and conditions]”).

§ 8–360  Preserving Related Material

In Dauman Pallet, Inc., 314 NLRB 185, 213 (1994), the judge exercised his discretion to 

defer issues of “piercing the corporate veil” and personal liability to the compliance proceeding, 

but did not revoke the General Counsel’s subpoena for this reason to the extent it sought such 

information; rather, he ordered the respondent to preserve and maintain documents related to 

these issues for later use at the compliance stage of the proceedings.

§ 8–400  Privileged Material 

§ 8–405  Burden of Proof—Privilege Log/Index

The party asserting a privilege bears the burden of proving that it is applicable. *CNN 

America, Inc., 352 NLRB 448, 448–449 (2008). As part of this burden, the party must provide a 

privilege index log specifically identifying the documents it believes are covered by the privilege. 

The index must include “(1) a description of the document, including its subject matter and the
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purpose for which it was created; (2) the date the document was created; (3) the name and job 

title of the author of the document; and (4) if applicable, the name and job title of the recipient(s) 

of the document.” See *CNN America, Inc., above, 353 NLRB at 899 (quoting from the Board’s 

unpublished order in Tri­Tech Services, 15–CA–16707, dated July 17, 2003). See also U.S. v. 

Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), cert. denied 519 U.S. 

927 (1996). Once the index log is prepared and received, the judge may then, if necessary, 

review the documents in camera to decide whether the documents fall within the privilege.

§ 8–410  In Camera Inspections

In camera inspections conducted by administrative law judges have been specifically 

authorized by the Board. *CNN America, Inc., 352 NLRB 448, 449 (2008); Kaiser Aluminum & 

Chemical Corp., 339 NLRB 829 (2003); and Brink’s, Inc., 281 NLRB 468, 470 (1986). But see, 

to the contrary, NLRB v. Detroit Newspapers Agency, 185 F.3d 602, 605 (6th Cir. 1999). 

If a party seeks in camera inspection of material that is claimed to be privileged, the judge 

should require that party to articulate specific grounds for the inspection. If the moving party 

shows an adequate factual basis to support a good­faith belief that such inspection may reveal 

evidence that is not protected by the privilege, an in camera inspection should be conducted and 

privileged information should be redacted from whatever material is turned over. See U.S. v. 

Zolin, 491 U.S. 554, 571 (1989). 

In camera inspections may also be used in other contexts. For example, where a party 

sought copies of minutes of union meetings, the Board noted that Section 7 gives employees the 

right to keep attendance at union meetings confidential. Guess, Inc., 339 NLRB 432, 434 (2003). 

Thus, if such material is found relevant, the judge should view it in camera and redact any 

portions identifying individuals other than the alleged discriminatee. R.K. Mechanical, 27–CA– 

18863 (unpublished Board order, June 23, 2008, fn. 2). See also §13–810, “In Camera 

Inspection on Relatedness Issue,” below, with respect to Jencks statements.

§ 8–415  Protective Orders

It is clear that Board judges have the authority to issue protective orders in appropriate 

circumstances. Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 (2005). 

Thus, if a served party considers any items irrelevant, privileged, or otherwise exempt from 

production, the judge may want to consider the matter after an in camera inspection. Any 

subsequent ruling may include a protective order that conditions or limits use of the relevant 

material 

A party seeking a protective order in connection with subpoenaed documents bears the 

burden of establishing “good cause” for such an order. See FRCP Rule 26 (c). This requires a 

specific factual showing, as distinguished from mere conclusory statements, that disclosure will 

result in a clearly defined and serious injury. Further, even if such a showing is made (and, 

indeed, even if the parties stipulate to issuance of an order), the judge should balance this injury 

against other factors that may warrant denying or limiting the scope or duration of a protective 

order, including the public’s right to obtain information concerning judicial proceedings. See

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786­789 (3 rd Cir. 1994); and 8A Fed. Prac. & 

Proc. Civ. § 2035 (3d Ed. 2010). 

The judge has considerable discretion in deciding whether “good cause” exists to issue a 

protective order. However, it is not unlimited. For example, in Richmond Times Dispatch, 5­CA­ 

29157 et al, the judge granted a protective order relating to subpoenaed documents, including
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61 

timesheets that showed hours worked or wages paid to employees. The General Counsel 

requested special permission to appeal, and the Board in an unpublished order issued on August 

1, 2002, reversed the judge, noting that the material consisted of “routine employment­related 

information,” and that Respondent had “failed to demonstrate good cause warranting a protective 

order under FRCP 26 (c).” The Board majority did not pass at that time on whether the judge 

properly protected certain other information, including disciplinary records and electronic mail 

documents; however, the Board majority later denied the GC’s appeal with respect to this 

information, noting that there had been no showing of prejudice from entry of the protective order.

Richmond Times Dispatch, 346 NLRB 74, 74 fn. 1 (2005). The judge should also be careful not 

to unduly restrict the rights of other parties and discriminatees to participate in the proceeding. 

See Waterbed World, 289 NLRB 808, 809 (1988). 

If it is determined that such an order is appropriate, the judge may ask the party seeking 

the order to submit a proposed protective order. The judge can then tailor the order to meet the 

legitimate needs of the moving party and the possible objections of other parties. Protective 

orders generally limit the persons who are to have access to the information and the use to which 

these persons may put the information. 

If the protective order forbids disclosure of evidence to the general public or other 

nonparties or participants in the proceeding, it is essential that the judge place the evidence 

under seal. The failure to do so may undermine subsequent attempts to enforce the order. See

United Parcel Service, 304 NLRB 693, 694 (1991). It is also advisable to include the protective 

order in any recommended order issued by the judge. National Football League, 309 NLRB 78, 

79 (1992); and Carthage Heating & Sheet Metal, 273 NLRB 120, 123 (1984). 

The following are examples of protective orders issued in Board cases: 

1) AT&T Corp., 337 NLRB 689, 693 fn. 1 (2002): “The exhibits in this proceeding are 

covered by a protective order . . . and no exhibits are to be furnished to outside sources pursuant 

to the Freedom of Information Act or pursuant to other requests.” 

2) National Football League, 309 NLRB 78, 88 (1992):  “It is ordered that the protective 

order entered into during the hearing prohibiting the parties from disclosing the contents of certain 

testimony be continued in full force and effect and that all exhibits introduced into evidence under 

seal will continue to be maintained under seal and that portions of the transcript of the hearing 

held during in camera sessions will not be open to the public.” 

3) United Parcel Service, 304 NLRB 693, 693–694 (1991): The judge ruled that certain 

subpoenaed documents should be produced, over respondent’s objection, but directed that “their 

use shall be limited to this hearing and shall neither be disclosed nor disseminated to other than 

counsel of record at this hearing.” Two of the documents were later admitted into evidence. The 

issue in the case was whether the protective order was violated by use of the documents in 

another proceeding. The Board held that, because the judge did not order that the documents 

received in evidence be sealed and the respondent’s attorney did not request a seal, their use in 

another case, after the close of the hearing, by the charging party’s attorney was not improper. 

The Board noted that the judge “failed . . . to continue adequately the protection afforded by his 

extant order.” 

In United Parcel, the Board also noted that violation of a protective order may be 

enforced by processing a charge of misconduct under Section 102.177 of the Board’s Rules and 

Regulations. See §7–500 et seq., above.
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62 

Sometimes the General Counsel or other party may want to remove files and documents 

produced under subpoena to a separate room or even keep them overnight. The problem is 

enhanced if the request applies to personnel files and payroll records of current employees. 

Before permitting this (even if there is no objection), the judge must consider the possibility that a 

contention can be made later, when the General Counsel seeks a stipulation of authenticity, that 

some of the affected documents have been tampered with (for example, a contention that the 

presence of yellow (or other color) highlighting was not present when the files were turned over to 

the General Counsel) and that the party served cannot now stipulate to authenticity. Even worse, 

a contention could be made that the files had contained critical documents that have been 

removed, and not returned, and that now the served party will have to offer secondary evidence 

of their (purported) contents.

§ 8–420  Attorney­Client Privilege

The attorney­client privilege protects from disclosure communications from a client to an 

attorney and responsive communications from the attorney to the client. The privilege applies 

only if (1) the holder of the privilege is or sought to become a client; (2) the person to whom the 

communication was made (a) is a member of the bar of a court, or his or her subordinate, and (b) 

in connection with this communication is acting as a lawyer; (3) the communication relates to a 

fact of which the attorney was informed (a) by his or her client (b) without the presence of 

strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services 

or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or 

tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. See U.S. v. 

United Shoe Machinery Corp., 89 F. Supp. 357, 358–359 (D. Mass. 1950). See also In re 

Vioxx Products Liability Litigation, 501 F. Supp. 2d 789 (E.D. La. 2007). 

In ruling on attorney­client privilege, the Board generally tracks the Supreme Court’s 

decision in Upjohn Corp. v. U.S., 449 U.S. 383, 389–390 (1981). When a party argues that the 

information sought by a subpoena is protected by the attorney­client privilege, the relevant inquiry 

is whether the subpoenaed material discloses a communication made in confidence to an 

attorney by a client for the purpose of seeking legal advice. The privilege protects not only the 

giving of legal advice to one who can act on it, but also the giving of information to the attorney to 

enable him to give informed advice. Patrick Cudahy, Inc., 288 NLRB 968, 969–971 (1988). 

The privilege applies only to communications and not to facts. A witness may not refuse to 

disclose facts within his own knowledge simply because he incorporates those facts into a 

communication with his attorney. Sunland Construction Co., 311 NLRB 685, 699–700 (1993), 

quoting from Upjohn, above, 449 U.S. at 396–397. See also B.P. Exploration, Inc., 337 NLRB 

887, 889 (2002) (reports prepared at attorney’s behest in preparation for litigation were privileged 

attorney­client communications and “it was the reports—not the factual information contained in 

them—that the Union sought.”). Cf. Borgess Medical Center, 342 NLRB 1105, 1106 fn. 5 (2004) 

(since incident reports sought by union in connection with arbitration proceeding were not 

prepared by or with participation of attorney, the privilege does not apply). 

One recurring type of privilege issue concerns the proper characterization of 

communications involving in­house counsel in circumstances where it is shown that this official 

performs both legal and regular business functions. As one court has explained: 

It is often difficult to apply the attorney­client privilege in the corporate context to 

communications between in­house corporate counsel and those who personify the 

corporate entity because modern corporate counsel have become involved in all facets of 

the enterprises for which they work. As a consequence, in­house legal counsel
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63 

participates in and renders decisions about business, technical, scientific, public relations, 

and advertising issues, as well as purely legal issues.

In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 797 (E.D. La. 2007). The Board 

addressed the problem in *CNN America, Inc., 352 NLRB 448, 448–449 (2008), affirming the 

judge’s order for an in camera inspection of such communications to resolve claims of privilege. 

As the Board stated, an employer’s mere assertion that information was “sent or received by . . . 

in house counsel is insufficient to meet its burden.” 

For an in­depth analysis of attorney­client and work­product issues, see Epstein, The 

Attorney­Client Privilege and the Work­Product Doctrine, Fourth Edition, ABA Section of 

Litigation (2001).

§ 8–425  Business Records/Legal Advice in Collective Bargaining

Ordinary corporate records such as payroll or personnel records, cannot be swept within 

the privilege simply by being transmitted from the client to the attorney. Nevertheless, when legal 

advice relates to collective bargaining, the Board will not readily and broadly compel disclosure of 

confidential communications between attorney and client simply because the communications are 

intermixed with business and economic considerations. The notes of exchanges in a bargaining 

session with other parties are not protected, however, unless they are intermingled with privileged 

communications. See *CNN America, Inc., above, 352 NLRB at 449; and Patrick Cudahy,  above, 288 NLRB at 971 fn. 13. See also Taylor Lumber & Treating, Inc., 326 NLRB 1298, 

1298 fn. 2 (1998).

§ 8–430  Waiver of Attorney­Client Privilege

The attorney­client privilege may be waived, either deliberately or by inadvertence or 

failing to safeguard the material. Thus, in Farm Fresh, Inc., 301 NLRB 907, 917 (1991), the 

Board held that the privilege did not apply when a document, arguably subject to the privilege, 

was stolen and given to the union, as the respondent was required to safeguard the document. 

However, with respect to information disclosed in a Federal proceeding or to a Federal officer or 

agency, FRE 502 (enacted in September 2008), provides that an “inadvertent” disclosure will not 

operate as a waiver of the privilege if “reasonable steps” were taken to prevent disclosure and to 

rectify the error. As indicated in the Advisory Committee Notes, a number of factors may be 

considered in applying this rule, including the number of documents to be reviewed and the time 

constraints for production. 

The presence of a third person waives the privilege, even if the third person (not part of 

the client or legal team) is a lawyer who is present merely as a family counselor rather than to 

give legal advice. U.S. v. Evans, 113 F.3d 1457, 1462–1467 (7th Cir. 1997). 

The privilege may also be waived by providing the documents in other proceedings. Wal­ 

Mart Stores, Inc., 348 NLRB 833, 834 (2006). But see Taylor Lumber & Treating, Inc., above, 

326 NLRB at 1300 (no waiver where attorney gave affidavit during the regional office’s 

investigation, and the affidavit did not contain facts about privileged communications). 

Once waived, the attorney­client privilege is lost in all forums for proceedings running 

concurrent with or after the waiver occurs. Wal­Mart Stores, Inc., above, 348 NLRB at 834, citing 

cases. In Wal­Mart, the Board ruled that the respondent’s production of subpoenaed documents 

in a state court proceeding constituted a waiver in the Board proceeding, even though the waiver 

came months after the judge’s ruling in the NLRB case that the documents were privileged. The
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judge’s ruling was not final because the matter was pending before the Board on exceptions 

when the waiver took place. 

See also the discussion of these issues in §13–260 to §13–263, below.

§ 8–435  Crime/Fraud Exception to Attorney­Client Privilege

Attorney­client communications in furtherance of crimes or frauds are not protected by the 

attorney­client privilege. A sufficient showing of the applicability of the crime/fraud exception is 

made by evidence that, if believed, would prima facie establish the elements of an ongoing or 

future crime or fraud. See, e.g., Smithfield Packing Co., 344 NLRB 1, 13–14 fn. 60 (2004), enfd. 

447 F.3d 821 (D.C. Cir. 2006) (testimony with respect to communications between respondent’s 

former manager and respondent’s attorney regarding the preparation of manager’s affidavit, 

specifically as to whether manager gave a false affidavit to the respondent’s attorney and whether 

the attorney knew it was false, came within crime fraud exception). 

However, the Board has declined to apply the crime/fraud exception to attorney­client 

communications in furtherance of unfair labor practices. Patrick Cudahy, Inc., above, 288 NLRB 

at 972–974.

§ 8–440  Duration of Attorney­Client Privilege

In Swidler & Berlin v. U.S., 524 U.S. 399 (1998), the Supreme Court held that the 

attorney­client privilege survives the death of the client.

§ 8–445  Work Product Privilege

The work­product privilege protects documents prepared in anticipation of litigation by or 

for a party representative, regardless of whether the representative is an attorney. It was first 

recognized in Hickman v. Taylor, 329 U.S. 495, 511 (1947), and is now codified in Rule 26(b)(3) 

of the Federal Rules of Civil Procedure (FRCP). 

A document is covered by the privilege if it was prepared or obtained because of the 

prospect of litigation, rather than in the ordinary course of business, i.e. it would not have been 

prepared but for the “fairly foreseeable” prospect of litigation. See cases cited in Central 

Telephone Company of Texas, 343 NLRB 987, 988 (2004) (finding that the privilege applied, 

and that the union was not entitled to copies of notes taken by respondent’s human resources 

specialist while investigating alleged misconduct that later became the subject of a grievance, as 

the investigation was directed by in­house counsel, respondent did not ordinarily conduct such an 

extensive investigation, and its fear of litigation was “objectively reasonable” even though no 

litigation had been initiated and the employees had not yet been disciplined when the notes were 

prepared). 

FRCP 26(b)(3)(A)(ii) provides for an exception upon a party’s showing that it has “a 

substantial need for the materials” and “cannot, without undue hardship obtain their substantial 

equivalent by other means.” For cases applying this exception, see Central Telephone, above 

(union failed to meet its burden as the respondent had provided the union with witness 

statements and the union was able to conduct its own witness interviews); and Marian Manor for 

the Aged and Infirm, Inc., 333 NLRB 1084 (2001) (employer seeking copy of responses to 

union’s survey of employer’s nursing staff regarding supervisory indicia failed to show that it was 

unable to obtain the equivalent information by other means, including conducting its own survey 

of employees). See also Kaiser Aluminum & Chemical Corp., 339 NLRB 829 (2003)
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65 

(respondent failed to show substantial need for copy of position statement submitted by charging 

party to General Counsel in support of its charge during the investigation). 

However, even if the exception is found to apply, and documents within the privilege are 

ordered disclosed, Rule 26(b)(3)(B) requires protection against disclosure of the “mental 

impressions, conclusion, opinions, or legal theories of a parties’ attorney or other representative 

concerning the litigation.” Central Telephone, above, 343 NLRB at 998. 

For a case addressing waiver of the work product privilege, see *Ralphs Grocery Co.,  352 NLRB 128, 129 (2008) (finding no waiver by respondent employer). With respect to position 

statements, compare Kaiser Aluminum, above (charging party does not waive privilege by 

giving position statement to General Counsel); with Evergreen America Corp., 348 NLRB 178, 

187 (2006) (contrary rule applies where respondent submits position statement to General 

Counsel). See also FRE 502 (addressing waiver of the attorney­client and work­product privileges 

in connection with both intentional and inadvertent disclosures in Federal proceedings or to a 

Federal office or agency).

§ 8–450  Reporter’s Privilege

In *CNN America, Inc., 352 NLRB 675, 676–677 (2008), the Board did not specifically 

decide whether a reporter’s privilege applies in Board proceedings. However, assuming for sake 

of argument that it did, the Board endorsed a balancing test to determine whether the 

subpoenaed information must be provided. Relevant factors to consider are: whether the 

information is not obtainable from alternative sources; whether it is crucial to establish the claim; 

and whether the need for the information outweighs the interest in protecting the substance of the 

reporter’s newsgathering. Applying these factors, the Board found that the balance tipped in favor 

of disclosure to the General Counsel, noting the absence of any claim by CNN that the 

information sought was obtained from a confidential source or would likely lead to discovery of 

confidential information or sources.

§ 8–455  Testimony by Board Agents and Privileged Files

Section 102.118(a) of the Board’s Rules provides that, except as provided under the 

Board’s Freedom of Information Act (FOIA) regulations (102.117(a)–(c)), no person employed by 

the Agency or acting on its behalf shall produce or present files, reports, or records under the 

control of the Board or General Counsel in any legal proceeding, whether in response to a 

subpoena or otherwise, without the written consent of the Board or its Chairman (if the 

documents are in Washington, D.C. and in the Board’s control), or the written consent of the 

General Counsel (if the documents are in a Regional Office or in Washington, D.C. under the 

General Counsel’s control). 

The same section also requires similar consent to obtain testimony by an Agency 

employee or agent. See also Laidlaw Transit, Inc., 327 NLRB 315, 316 (1998) (to avoid the 

appearance of partiality, the Board has a strong and longstanding policy against Board agents 

and employees appearing as witnesses in a legal proceeding). See also §13–603, “Board 

Agents,” below.
CHAPTER 8. SUBPOENAS 

66

§ 8–460  Mediator Not Subject to Subpoena

Board policy does not permit a party to compel a mediator to testify in Board proceedings.

Success Village Apartments, Inc., 347 NLRB 1065, 1065 (2006). Thus, a subpoena requiring 

the testimony of a mediator to testify must be quashed.

§ 8–465  State Confidentiality Rules Not Controlling

Evidence that is otherwise admissible is not rendered inadmissible in Board proceedings 

because it is privileged under State law. See R. Sabee Co., 351 NLRB 1350, 1350 fn. 3 (2007) 

(judge properly accepted into evidence statements made during state court injunction proceeding 

and related court­ordered mediation of state law claims, despite claim of privilege under 

Wisconsin law); and North Carolina License Plate Agency # 18, 346 NLRB 293, 294 fn. 5 

(2006), enfd. 243 Fed. Appx. 771 (4th Cir. 2007) (evidence from a state unemployment 

commission, which was privileged under state law, was nevertheless admissible in Board 

proceeding). See also Trinidad Logistics Co., 7–CA–44621 et. al., ALJ order dated June 4, 

2002, 2002 WL 1466281 (California confidentiality provision precluding production of criminal 

convictions does not outweigh need of respondent to obtain such information by subpoena to use 

in impeaching an alleged discriminatee in Board proceeding).

§ 8–470  Union Authorization Cards Not Producible by Subpoena

A respondent may not obtain copies of union authorization cards by subpoena. The 

identity of card signers is deemed confidential and disclosure would have a chilling effect on 

union activity. See Wright Electric, Inc. v. NLRB, 200 F. 3d. 1162, 1167 (8th Cir. 2000), citing 

with approval National Telephone Directory Corp., 319 NLRB 420, 421–422 (1995). See also

§13–702, “Names of Employees Who Supported Union Not Obtainable,” below.

§ 8–500  Jencks Statements Not Producible by Subpoena

A Jencks “statement” or affidavit given to the General Counsel by a witness is not subject 

to production by subpoena in advance of trial. H. B. Zachry Co., 310 NLRB 1037, 1037, 1038 

(1993). Nor is such statement or affidavit producible under the Freedom of Information Act. See

Stride Rite Corp., 228 NLRB 224, 226 fn. 3 (1977). 

Such statements or affidavits are producible only after the witness has testified for use on 

cross­examination of the witness. See Board’s Rules Section 102.118(b)(c) and (d). For the origin 

of the rule, see Jencks v. U.S., 353 U.S. 657, 662 (1957). See also §13–800 et seq., “Release of 

Witness Statements,” below.

§ 8–510  Tape/Video Recordings

Tape recordings and transcripts of conversations between a supervisor and employee are 

not Jencks statements and need not be produced under Section 102.118(d). Leisure Knoll 

Assn., 327 NLRB 470, 470 fn. 1 (1999). Similarly, contemporaneous remarks captured on an 

audio or video tape, taken, for example, when applicants apply for work in an employer’s office, 

are not a Jencks “statement” because they are “not a description of a past event” but part of the 

substantive event itself. Delta Mechanical, Inc., 323 NLRB 76, 77 (1997). 

However, such recordings may be subpoenaed. Delta Mechanical, above. See also §13– 

218, “Tape Recording Obtained by Subpoena,” below. If the recording is in the sole possession of
CHAPTER 8. SUBPOENAS 

67 

the General Counsel, a written request must be made pursuant to Section 102.118(a). See

Gallup, Inc., 349 NLRB 1213, 1218 (2007), discussed more fully in the next section below.

§ 8–520  Permission of the General Counsel

One issue that has arisen following Leisure Knoll and Delta Mechanical, above, is 

whether a subpoena served on a witness to produce any audio or video tape recordings 

pertaining to the case, will reach the tapes if the witness had previously turned the tapes over to 

the Regional Office. In Gallup, Inc., above, the judge ruled that it did, and therefore struck the 

witness’ testimony under Bannon Mills (see §8–620, “Failure to Produce Documents,” below) 

when the General Counsel refused to turn the tapes over to the respondent pursuant to either the 

subpoena or the Jenks rule (as the recordings were not “statements” under that rule). On special 

appeal, however, the Board reversed, and held that the respondent must first request the General 

Counsel's consent to produce under Section 102.118(a). 

A second question is whether the trial must be delayed while the respondent makes a 

written request that the General Counsel (in Washington, D.C.) grant permission under Board's 

Rules, Section 102.118(a)(1), for production, and/or serves a new subpoena on the Regional 

Director or the Government's trial attorney. This will probably depend on the specific 

circumstances of each case. The judge should utilize his or her discretion.

§ 8–600  Refusal to Honor Subpoena 

§ 8–610  Failure of Witness to Appear

The failure of a witness to appear and testify in compliance with a subpoena on behalf of a 

party for whom the witness would normally be expected to give favorable testimony may 

appropriately give rise to an inference that the witness’ testimony would be unfavorable to that 

party (i.e. would favor the adverse party). Carpenters Local 405, 328 NLRB 788, 788 fn. 2 

(1999). See also §13–235, “Adverse Inferences,” below.

§ 8–620  Failure to Produce Documents

Several options are available to a judge where a party refuses to comply with a subpoena 

and the General Counsel has chosen not to initiate court enforcement proceedings to avoid 

undue delay in the hearing or for some other reason (see §8–700, below, “Enforcement  of 

Subpoenas on Behalf of Private Party”). McAllister Towing & Transportation, 341 NLRB 394, 

396–397 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). The appropriate option, if any, is within 

the discretion of the judge, who may choose any or all of them, depending on the circumstances. 

Ibid. The judge may: 

1)  Draw an adverse inference. See ADF, Inc., 355 NLRB No. 14, slip op. at 6 (2010), 

reaffirmed and incorporated by reference 355 NLRB No. 62 (2010); *Paint America Services, 

Inc., 353 NLRB 973, 989 (2009); *Essex Valley Visiting Nurses Assoc., 352 NLRB 427, 440– 

443 (2008); andTeamsters Local 776 (Pennsy Supply), 313 NLRB 1148, 1154 (1994); 

2)  Bar a noncomplying party from asking questions on direct or cross­examination about 

the subject matter sought by the subpoena. Perdue Farms, 323 NLRB 345, 348 (1997), affd. in 

relevant part 144 F.3d 830, 833–834 (D.C. Cir. 1998); and Packaging Techniques, Inc., 317 

NLRB 1252, 1253 (1995); and
CHAPTER 8. SUBPOENAS 

68 

3)  Permit the introduction of secondary evidence by the party who has been 

disadvantaged. Bannon Mills, 146 NLRB 611, 614 fn. 4, 633–634 (1964); and American Art 

Industries, 166 NLRB 943, 951–953 (1967), affd. in pertinent part 415 F.2d 1223, 1229–1230 

(5th Cir. 1969). This may be followed by an order precluding the offending party from cross­ 

examining witnesses who offer the secondary evidence. NLRB v. C. H. Sprague & Son, 428 

F.2d 938, 942 (1st Cir. 1970). 

A good discussion of the use of such sanctions is found in McAllister Towing & 

Transportation, above. In that case, the Board approved the judge’s imposition of limited 

sanctions for the failure of a party to comply and delay in complying with a valid subpoena. The 

Board noted that “[a] subpoena is not an invitation to comply at a mutually convenient time,” and 

that a party has an obligation “to begin a good faith effort to gather responsive documents” upon 

service of the subpoenas. 341 NLRB at 397. The Board therefore affirmed the judge’s approval of 

the use of secondary evidence by the party seeking production, her refusal to permit the 

noncomplying party from rebutting such evidence or cross­examining witnesses about it, and her 

drawing of adverse inferences against the noncomplying party. 

As indicated in McAllister Towing, the courts have generally upheld the Board’s authority 

to impose sanctions as an alternative to seeking court enforcement, based on the Board’s 

“inherent interest in maintaining the integrity of the hearing process.” But see NLRB v. Int’l 

Medication Systems, 640 F.2d 1110 (9th Cir. 1981), denying enf. of 244 NLRB 861 (1979). 

The adverse inference rule is not mandatory. See National Specialties Installations,

Inc., 344 NLRB 191 (2005). Generally, it would be improper to draw an adverse inference if a 

satisfactory explanation is provided for the failure to produce the documents. See Hansen Bros. 

Enterprises, 313 NLRB 599, 608 (1993) (discriminatee credibly testified that old tax returns did 

not exist); Champ Corp., 291 NLRB 803 (1988), enfd. 933 F.2d 688 (9th Cir. 1990), cert. denied 

502 U.S. 957 (1991) (union presented credible testimony concerning its good faith but 

unsuccessful search for subpoenaed notes and other evidence supported reasonable inference 

that notes could have been inadvertently destroyed or misplaced). The judge may, in his or her 

discretion, also decline to make an adverse inference under the particular circumstances 

presented. See CPS Chemical Co., 324 NLRB 1018, 1019 (1997), enfd. 160 F.3d 150 (3d Cir. 

1998) (no prejudice suffered by non­production). See also §13–235, “Adverse Inferences,” below. 

Noncompliance with a subpoena does not warrant the dismissal of a complaint. In

Teamsters Local 917 (Peerless Importers), 345 NLRB 1010 (2005), the Board reversed a 

judge who had dismissed the General Counsel’s complaint because the charging party failed fully 

to comply with the respondent’s subpoena, finding that the judge had abused his discretion. 

Citing McAllister Towing, above, the Board noted that there were other less drastic sanctions 

available to the judge and observed that dismissing a complaint because of subpoena 

noncompliance would have been unprecedented. 345 NLRB at 1011.

§ 8–630  Interference with Subpoena Compliance

It is a violation of the Act to state or imply that compliance with a subpoena is optional.

Bobs Motors, Inc., 241 NLRB 1236, 1236 (1979). Attempting to dissuade an employee from 

speaking to a Board agent or appearing at a Board trial also violates the Act. Alterman 

Transport Lines, Inc., 127 NLRB 803, 804 (1960); Certain­Teed Products Corp., 147 NLRB 

1517, 1520 (1964); and Fitel/Lucent Technologies, Inc., 326 NLRB 46, 54 (1998). See also

U.S. Precision Lens, 288 NLRB 505, 505 fn. 3 (1988) (treating a witness’ attendance at a Board 

trial as absences counting against her employer’s “excellent attendance” program violates
CHAPTER 8. SUBPOENAS 

69 

Section 8(a)(4)). A judge who learns that witnesses are being subjected to retaliation for testifying 

should take steps to prevent retaliation by at least firmly warning against it. 

In certain circumstances, the judge may impose litigation costs against a party who 

violates a judge’s instructions regarding subpoenas. In 675 West End Owners Corp., 345 NLRB 

324, 326, 327 fn. 11 (2005), enfd. 304 Fed. Appx. 911 (2d Cir. 2008), the Board approved such 

costs against a respondent who disobeyed the judge’s instructions that a revoked subpoena may 

not be served again and that issuance of a subpoena after the close of the hearing is “an abuse 

of Board process.” The Board agreed with the judge’s recommendation that a hearing be held to 

determine the litigation costs expended by the charging party and the General Counsel because 

of the respondent’s conduct, citing applicable authorities under the “bad faith” exception to the 

American Rule against awarding litigation costs.

§ 8–700  Enforcement of Subpoenas on Behalf of Private Party

Section 102.31(d) of the Board’s Rules provides that upon a party’s failure to comply with 

a subpoena issued on request of a private party, the General Counsel “shall” institute (but not 

prosecute) a proceeding in district court, “unless enforcement of the subpoena would be 

inconsistent with the law and the policies of the National Labor Relations Act.” 

The Board, however, has made clear that the General Counsel is not required to institute 

enforcement proceedings sua sponte, but only on request of the party on whose behalf the 

subpoena was issued. See Best Western City View Motor Inn, 325 NLRB 1186, 1186 (1998). 

Nor is the General Counsel required to initiate enforcement proceedings where the subpoena is 

incapable of being enforced. See Champ Corp., 291 NLRB 803 (1988), enfd. 933 F.2d 688 (9th 

Cir. 1990), cert. denied 502 U.S. 957 (1991) (subpoena was incapable of being enforced as 

documents were unavailable). 

Where enforcement proceedings are initiated, an adjournment of the trial may be 

necessary until the subpoena issue is resolved. Often the judge may avoid the delay attendant to 

subpoena enforcement by convincing the parties to resolve the issue by agreement.

71

CHAPTER 9. SETTLEMENTS 

§ 9–100  In General

“[T]he Board has from the very beginning encouraged compromises and settlements. The 

purpose of such attempted settlements has been to end labor disputes, and so far as possible to 

extinguish all the elements giving rise to them.” Wallace Corp. v. NLRB, 323 U.S. 248, 253–254 

(1944). As stated in the NLRB Casehandling Manual (Part One) Settlements Section 10124.1: 

It is the policy of the Board and the General Counsel to actively encourage the parties to 

reach a mutually satisfactory resolution of issues as an alternative to litigation. Moreover, 

the Administrative Procedure Act (Sec. 5(b)) requires that the Agency consider ‘offers of 

settlement, or proposals of adjustment where time, the nature of the proceeding, and the 

public interest permit.’ (5 U.S.C. § 554(c)(2)). Since voluntary remedial action is a high 

priority, diligent settlement efforts should be exerted in all meritorious cases. Settlement of 

a meritorious case is the most effective means to: 1) improve relationships between the 

parties; 2) effectuate the purposes of the Act; and 3) permit the Agency to concentrate its 

limited resources on other cases by avoiding costly litigation expenses.

§ 9–200  Promoting Settlement 

§ 9–220  At Pretrial Conference

Normally the trial judge has his or her first contact with the parties by telephone in the 

pretrial conference call. By definition, at this stage of the proceeding a complaint has issued, the 

parties have not been able to settle the case, and the trial is imminent. 

Consistent with the general policies set forth above, the judge at that time should 

emphasize the importance of pursuing settlement, and ensure that the parties are fully apprised 

of each other’s positions on settlement. The parties should also be encouraged to discuss their 

positions and settlement terms during the conference call, with the degree of judicial participation 

the parties and the judge find appropriate. Finally, the General Counsel should be asked to 

prepare a complete settlement package including, when appropriate, a calculation of all monetary 

obligations. 

Parties, particularly respondents, may sometimes be reluctant to freely discuss the merits 

of the case during settlement discussions. However, they should be encouraged to do so, at least 

to some extent, as it will assist in identifying areas of disagreement and evaluating whether a 

settlement is possible. 

It may be helpful to remind the parties of the many disadvantages of litigation, including: 

(1) the financial costs of trial; (2) the time that managers, supervisors, and employees will be 

absent from work to prepare for and attend the trial; (3) the delay in resolving the dispute, 

including the possibility of subsequent appeals and compliance proceedings; and (4) the risk of 

losing, and thereby either receiving nothing (if the charging party), or being ordered to pay 

additional backpay with interest (if the respondent), including medical expenses (see, e.g.,

Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001); McDaniel Ford, Inc., 331 NLRB 1645 (2000); 

and Hansen Bros. Enterprises, 313 NLRB 599 (1993)).
CHAPTER 9. SETTLEMENTS 

72 

If there is any possibility of settlement, the parties should be encouraged to continue 

settlement discussions after the conference call. If practical and potentially helpful, the judge 

should also attempt to schedule one or more follow­up conference calls. This will establish both a 

target date for the exchange of additional information or proposals and an agreed­upon time for 

further discussion. 

Ordinarily such calls should include all parties, unless the judge secures permission to 

speak to one party separately. The judge should be careful not to discuss settlement offers 

directly with an alleged discriminatee in the absence of counsel for the General Counsel.

§ 9–230  At the Trial

How much time a judge should allow before going on the record or during the trial for 

settlement discussions will depend on all the circumstances. Relevant factors include the 

willingness of the parties to share information and offer reasonable terms, the complexities of the 

case and the likelihood of reaching a full or partial settlement that will significantly reduce the time 

needed for litigation, and the availability of witnesses if the trial is delayed. 

The judge should carefully evaluate the circumstances to ensure that any significant delay 

is likely to be fruitful and minimally impact the flow of the trial in the event a final settlement is not 

realized.

§ 9–240  After the Trial

Parties may, of course, continue to engage in settlement discussions after the record is 

closed and while the judge is preparing a decision. Such discussions typically occur, if at all, 

without the judge, but the judge may participate if requested. If the parties desire an extension of 

time beyond the usual 35­day limit for the filing of posthearing briefs to engage in further 

settlement efforts, they may seek an extension from the Chief Judge or Deputy or Associate Chief 

Judge in Washington, or from the Associate Chief Judge in San Francisco, New York, or Atlanta.

§ 9–300  Settlements Approved 

§ 9–320  Settlements Before Record Opens and Testimony Taken

Neither the judge nor the Board has any role in approving or rejecting an unfair labor 

practice settlement before the trial opens. Consideration and approval or rejection of a pretrial 

settlement are the sole province of the General Counsel and his agents, subject to the review 

procedures provided to parties adversely affected by the rulings. NLRB v. Food & Commercial 

Workers Local 23, 484 U.S. 112, 124–126 (1987). 

The Board has applied this same policy where the General Counsel seeks to withdraw the 

complaint after the hearing has opened but no evidence has been introduced. See Sheet Metal 

Workers Local 28 (American Elgen), 306 NLRB 981, 981–982 (1992) (reversing the judge, the 

Board held that, even if the trial has opened, the General Counsel retains sole, unreviewable, 

authority to withdraw the complaint if no evidence has been introduced and no contention has 

been made that a legal issue was ripe for adjudication on the parties' pleadings alone). 

However, if the settlement is non­Board, i.e. the General Counsel is not a party to the 

settlement, it may properly be submitted to the judge for review and approval after the hearing 

has opened, even if no evidence has been introduced. See Flint Iceland Arenas, 325 NLRB 318 

(1998), where both the judge and the Board (on appeal) reviewed and applied the relevant factors
CHAPTER 9. SETTLEMENTS 

73 

in considering a non­Board settlement opposed by General Counsel at the beginning of the 

hearing and before any evidence was introduced.

§ 9–330  Settlements After Testimony Is Taken and Before Decision Issues

Section 101.9(d)(1) of the Board’s Statements of Procedure provides that if an informal 

settlement is reached after the trial opens and testimony is taken but before a decision is issued, 

it must be submitted to the trial judge for review and approval. This provision has been interpreted 

to apply to all settlements, including formal settlements providing for issuance a Board order. See

NLRB Casehandling Manual (Part One), Section 10164.7(b). See also Beverly California Corp.,  326 NLRB 232, 236 fn. 18 (1988); and Today’s Man, 263 NLRB 332 (1982). However, Section 

101.9(d)(1) provides that a formal settlement must also be submitted to the Board for final 

approval after receiving approval from the judge. 

If the judge approves or rejects the settlement over the objection of a party, the aggrieved 

party may file a special appeal with the Board pursuant to section 102.26 of the Board’s rules. 

See §11­500, “Interlocutory Appeals from Judges Rulings,” below.

§ 9–340  Settlement After Judge’s Decision Issues—ADR Program

After the judge issues a decision in a case, the matter is transferred to the Board and the 

judge has no further role. Therefore, any settlement proposal proffered to the judge after the 

decision has issued should be rejected as beyond the jurisdiction of the judge and returned. The 

moving parties should be directed to take appropriate matters to the Executive Secretary of the 

Board. 

The parties may also avail themselves of the Board’s voluntary Alternative Dispute 

Resolution (ADR) program, which applies to certain unfair labor practice cases pending before 

the Board on appeal. Typically an NLRB judge, not the judge who issued the underlying decision, 

will be appointed to mediate the matter.  Details of the ADR program may be found in the Board’s 

May 2009 press release announcing that the pilot program had been made permanent. See 

http://www.nlrb.gov/shared_files/Press%20Releases/2009/R­2684.pdf. For more information, the parties 

should consult the Executive Secretary’s office.

§ 9–400  Standards for Approving or Rejecting Settlements 

§ 9–410  Types of Settlements—Formal, Informal, and Non­Board

Settlements may be either formal (providing for issuance of a cease­and­desist order by 

the Board and court enforcement) or informal (not involving the issuance of a Board order). Either 

type of settlement may be utilized at any time after a charge has been filed, although normally 

informal settlements are not accepted after the case has been heard and the Board has issued a 

cease­and­desist order on the basis of the record. 

A third type of settlement, a non­Board settlement, involves an adjustment strictly between 

the respondent(s) and the other non­Board parties. The General Counsel is not a party to a non­ 

Board settlement, even though he may be involved in the settlement discussions and post­ 

settlement compliance. Thus, a complaint may not be dismissed because of an alleged breach by 

the General Counsel of a non­Board settlement. See Dilling Mechanical Contractors, 348 

NLRB 98, 103 (2006).
CHAPTER 9. SETTLEMENTS 

74

§ 9–420  Formal Settlements

The NLRB Casehandling Manual (Part One) Settlements Section 10164.1 provides:

Generally: A formal settlement is a written stipulation calling for remedial action in 

adjustment of unfair labor practices and providing that, on approval by the Board, a Board 

order in conformity with its terms will issue. Ordinarily it will also provide for the consent 

entry of a court judgment enforcing the order. 

The Board and the General Counsel have evolved an elaborate procedure for transferring 

formal settlements to the General Counsel’s Washington, D.C. office and the Board, with a 

significant body of sample language appropriate for formal settlements. See the NLRB 

Casehandling Manual (Part One) Settlements Sections 10164–10174. 

Normally formal settlement agreements are drafted by the Regional Offices, using the 

procedural and technical language in the manuals, to meet the requirements for submitting the 

agreements to the General Counsel and the Board for final review and approval. The judge 

should refrain from significantly reviewing nonsubstantive aspects of formal settlement 

agreements. But see Pipefitters Local 290, UFCW, 348 NLRB 998 (2006) (Board majority 

rejected proposed formal settlement because it did not contain provisions memorializing the 

parties’ reported agreement that the General Counsel would only seek enforcement of the order if 

the respondent failed to comply with it). 

If the judge rules on a formal settlement during the trial, the judge should indicate approval 

or rejection on the record. During an adjournment or after the trial closes, the judge should issue 

an order and notification to the parties. The Regional Office thereafter assumes the responsibility 

for transmitting the stipulation and supporting documents to the General Counsel’s Division of 

Operations Management so that the procedure for obtaining approval of the General Counsel and 

the Board can be implemented.

§ 9–430  Informal and Non­Board Settlements

In the lead case on settlements, Independent Stave Co., 287 NLRB 740, 743 (1987), the 

Board set out considerations for approving non­Board settlements. The Board stated that it would 

not reject the parties’ non­Board settlement “simply because it does not mirror a full remedy;” 

rather, it would 

examine all the . . . circumstances including, but not limited to, (1) whether the charging 

party(ies), the respondent(s), and any of the individual discriminatee(s) have agreed to be 

bound, and the position taken by the General Counsel regarding the settlement; (2) 

whether the settlement is reasonable in light of the nature of the violations alleged, the 

risks inherent in litigation, and the stage of the litigation; (3) whether there has been any 

fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether 

the respondent has engaged in a history of violations of the Act or has breached previous 

settlement agreements resolving unfair labor practice disputes. 

Applying these factors, the Board approved the settlement (which had been signed by three of 

the four alleged discriminatees) over the General Counsel’s objection. See also BP Amoco 

Chemical—Chocolate Bayou, 351 NLRB 614 (2007), where the Board applied the same factors 

to private termination agreements in which employees waived or released any subsequent 

claims, including the right to file charges with or obtain any relief from the Board arising out of
CHAPTER 9. SETTLEMENTS 

75 

their prior employment. (A further discussion of such releases is found in §9–640, “Releases,” 

below.) 

The Board has also applied the Independent Stave factors to both informal and formal 

settlements. See Woodworkers Local 3–433 (Kimtruss Corp.), 304 NLRB 1, 2 (1991) 

(upholding judge’s approval of post­hearing settlement of Section 8(b) allegations against the 

respondent union over the objections of the respondent employer in the companion Section 8(a) 

case); and KW Electric Inc., 327 NLRB 70 (1998) (approving formal settlement over charging 

party’s objection after judge’s decision issued). 

For other case examples applying the above factors, compare American Pacific Pipe 

Co., 290 NLRB 623, 623–624 (1988) (approving non­Board settlement of a backpay claim over 

General Counsel’s objection); Longshoremen ILA Local 1814 (Amstar Sugar), 301 NLRB 764, 

764–765 (1991) (approving non­Board settlement over the opposition of the General Counsel 

after the judge issued his decision), with Flint Iceland Arenas, 325 NLRB 318, 318–319 (1998), 

and Alamo Rent­A­Car, Inc., 338 NLRB 275 (2002) (rejecting non­Board settlements opposed 

by the General Counsel). See also Frontier Foundries, Inc., 312 NLRB 73 (1993) (rejecting non­ 

Board settlement that provided only 6 percent backpay, even though it also provided for 

additional amounts as “liquidated damages,” allegedly to avoid being taxed as income).

§ 9–440  Settlement by Consent Order

In very limited circumstances, the judge may also approve a settlement by “consent 

order”—that is, a unilateral settlement offered by the respondent and opposed by both the 

General Counsel and the charging party, but approved by the judge. 

Although the Board has cited Independent Stave in evaluating such consent orders, the 

key factor appears to be whether the proffered unilateral settlement addresses and fully remedies 

all the unfair labor practices alleged in the complaint. Compare Iron Workers Local 27 

(Morrison­Knudson), 313 NLRB 215, 217 (1993), enfd. mem. 70 F.3d 119 (9th Cir. 1995); Food 

Lion, Inc., 304 NLRB 602, 602 fn. 4 (1991); and Copper State Rubber, 301 NLRB 138, 138 

(1991) (rejecting proposed unilateral settlements), with National Telephone Services, 301 NLRB 

1, fn. 2 (1991); and Electrical Workers IUE Local 201 (General Electric Co.), 188 NLRB 855, 

857 (1971) (accepting proposed unilateral settlements). See also the Board’s unpublished order 

of August 29, 2008, in *Spurlino Materials, LLC, 25–CA–29866, where the Board cited and 

applied the Independent Stave factors in affirming a judge who had approved a consent order to 

which the General Counsel objected.

§ 9–500  Procedures for Considering, Accepting, or Rejecting Settlement

Preparation of written agreement. It is always wise to ensure that the parties prepare a 

legible and complete settlement with all elements included before the settlement is formally 

considered. Experience has shown that oral agreements are sometimes based on mutual 

misunderstandings. Indeed, even written settlements should be clear and understandable 

because the Board will set aside an ambiguous settlement where it concludes there has been no 

meeting of the minds. See Local Union 290, UFCW, 348 NLRB 998 (2006); and Doubletree 

Guest Suites Santa Monica, 347 NLRB 782 (2006). 

An informal settlement may be secured on Form NLRB 5378, “Settlement Agreement 

Approved by an Administrative Law Judge.” The forms are available in Regional Offices. The 

settlement agreement and the notice should be entered into evidence as exhibits so that the 

Board has a full record to review if there is an appeal.
CHAPTER 9. SETTLEMENTS 

76 

Positions of Parties. The positions of all parties on the settlement should also be put on 

the record. When a party objects to the approval of a formal settlement, the party must be given a 

reasonable opportunity on the record to state its position and argument opposing the settlement. 

See 101.9(d)(1) of Statements of Procedure. If the issues are somewhat complex, it may be 

appropriate to request briefs on the advisability of approving a settlement. 

Positions of Discriminatees. In settlements involving discriminatees, their position 

regarding approval of the settlement should also be put on the record, either directly or indirectly 

through the General Counsel or the charging party’s representation of their position. In Flint 

Iceland Arenas, 325 NLRB 318, 320 (1998), a Board majority rejected a non­Board settlement in 

part on this basis. The Board majority held, among other things, that although it is not necessary 

that all discriminatees be notified and that they all agree to be bound, the views of named and 

otherwise identifiable discriminatees should be taken into account and, if those individuals have 

not been informed of the settlement or have not been given opportunity to express their views of 

the settlement, their lack of a record position is a factor to be considered in evaluating the 

settlement. See also Alamo Rent­A­Car, Inc., 338 NLRB 275 (2002) (affirming the judge’s 

rejection of a non­Board settlement, opposed by the General Counsel, where the settlement only 

partially remedied the unfair labor practices alleged and had the approval of only one of four 

discriminatees). 

Judge’s Ruling or Order. The judge’s ruling and reasoning in approving or rejecting the 

settlement should likewise be stated on the record for purposes of review. Alternatively, If the 

settlement occurs after the close of trial or during a hiatus in the case, a written order is 

appropriate. The judge should issue an order rather than a decision when approving a settlement 

agreement, even where the judge overrules an objection to the settlement. 

Right to Appeal. If the judge approves or rejects the settlement over the objection of a 

party, the aggrieved party should be advised of the right to file a special appeal with the Board 

pursuant to section 102.26 of the Board’s rules. See Section 101.9(d)(2) of the Statements of 

Procedure. See also §11–500, “Interlocutory Appeals from Judges Rulings,” below. 

Recessing Trial Pending Compliance. Ordinarily, if a judge approves a settlement on the 

record, the judge should recess the trial indefinitely. The judge should ask that the General 

Counsel file a motion to dismiss when compliance has been completed. 

Alternately, if the compliance is straightforward after the settlement is approved, the 

complaint may be immediately dismissed and the case remanded to the Regional Director to 

handle compliance and close the case without further intervention by the judge. The parties 

should be informed that in the event the Regional Director determines compliance has not been 

achieved, the Regional Director may set aside the settlement and reissue the complaint, which 

would be assigned for trial in the normal course, without automatic reassignment to the judge who 

approved the settlement. 

Formal Settlements. If the judge approves a formal settlement, as indicated in §9–420, 

“Formal Settlements,” above, it should be approved in writing and left with the Regional Office so 

that the procedure in the NLRB Casehandling Manual (Part One) Settlements Section 10164.6 for 

obtaining approval of the Board can be implemented.
CHAPTER 9. SETTLEMENTS 

77

§ 9–550  Summary Judgment to Enforce Settlement

Settlement agreements, by their terms, may provide for summary judgment to enforce the 

settlement in the event of noncompliance. See, e.g., Great Northwest Builders, 344 NLRB 969 

(2005) (Board granted General Counsel’s motion for summary judgment where the settlement 

agreement provided that, in case of noncompliance, the respondent’s answer to the original 

complaint would be withdrawn and the General Counsel could obtain an order to remedy the 

allegations in the complaint through a motion for summary judgment. See also §9–800, “Setting 

Aside Settlement Agreements,” below.

§ 9–600  Various Provisions of Settlement Agreements 

§ 9–610  Nonadmission Clauses

Inclusion of a nonadmission clause is not a valid basis for objecting to a proposed formal 

settlement that provides for entry of an enforceable Board order and otherwise effectuates the 

policies of the Act. Containair Systems Corp. v. NLRB, 521 F.2d 1166, 1172 (2d Cir. 1975);

NLRB v. Oil Workers (Catalytic Maintenance), 476 F.2d 1031, 1037 (1st Cir. 1973); Concrete 

Materials of Georgia v. NLRB, 440 F.2d 61, 68 (5th Cir. 1971); and Mine Workers (James 

Bros. Coal), 191 NLRB 209, 209–210 (1971). But cf. Teamsters Local 115 (Gross Metal 

Products), 275 NLRB 1547 (1985) (upholding judge’s rejection of formal settlement after the 

close of the trial, which was opposed by the charging party, as it contained both a narrow order 

and a nonadmission clause notwithstanding that the respondent union was a recidivist, had 

allegedly again engaged in widespread picket line misconduct and violence, and offered only a 

limited defense at trial). 

Informal settlements containing such clauses are also frequently agreed to by the General 

Counsel and approved by judges and the Board, even over the objection of the charging party. 

See, e.g., Woodworkers Local 3–433 (Kimtruss Corp.), 304 NLRB 1, 2 (1991); and Garment 

Workers ILGWU Local 415–475 (Arosa Knitting) v. NLRB, 501 F.2d 823, 826, 832–833 (D.C. 

Cir. 1974). Although the NLRB Casehandling Manual (ULP), Sec. 10130.8, states that 

nonadmission clauses “should not be routinely incorporated in settlement agreements,” this 

provision appears to be intended simply to make clear to regional office personnel that they can 

reject such clauses in egregious cases. See BPH & Co. v. NLRB, 333 F.3d 213, 222 (D.C.Cir. 

2003). 

Nonadmission clauses, however, may not be included in the Board’s Notice to Employees 

“under any circumstances.” Pottsville Bleaching Co., 301 NLRB 1095, 1095–1096 (1991). See 

also Teamsters Local 372 (Detroit Newspapers), 323 NLRB 278, 280 fn. 4 (1997).

§ 9–620  Settlement Bar Rule

A prior formal or informal Board settlement disposes of all issues involving presettlement 

conduct, unless prior violations were unknown to the General Counsel, were not readily 

discoverable by investigation, or were specifically reserved from the settlement by mutual 

understanding of the parties. Hollywood Roosevelt Hotel Co., 235 NLRB 1397, 1397 (1978), 

reaffirmed in Park­Ohio Industries, 283 NLRB 571, 572 (1987). See also Ratliff Trucking 

Corp., 310 NLRB 1224, 1224 (1993) (finding that the issue was not specifically reserved, and that 

the settlement therefore barred the new complaint). Thus, where the issue is raised, the judge 

may have to determine the scope and meaning of the prior settlement agreement.
CHAPTER 9. SETTLEMENTS 

78 

A prior non­Board settlement, however, does not preclude the General Counsel from re­ 

alleging settled matters in subsequent unfair labor practices. Such a settlement is not approved 

by the Regional Director, even though withdrawal of a charge may have been approved, and 

therefore “does not estop the Regional Director from proceeding on any new charge alleging the 

same conduct as the withdrawn charges.” Auto Bus, Inc., 293 NLRB 855, 855–856 (1989), 

quoting the judge in Quinn Co., 273 NLRB 795, 799 (1984). See also KFMB Stations, 343 

NLRB 748, 748, fn. 3 (2004) (citing Auto Bus with approval).

§ 9–630  Joint and Several Liability

A settlement proposal limited to one of a number of (potential) jointly and severally liable 

respondents does not extinguish the liability of the nonsettling respondents, unless that is the 

intention of the parties. See Urban Laboratories, 305 NLRB 987, 987–988 (1991), citing Zenith 

Radio v. Hazeltine Research, 401 U.S. 321, 342–348 (1971) (an antitrust case).

§ 9–640  Releases

Release and discharge of the respondent from all claims by an employee is permissible 

as part of a settlement, unless it prohibits filing future unfair labor practice charges that are 

unrelated to the past dispute or employment. See First National Supermarkets, 302 NLRB 727, 

727–728 (1991) (Board found release lawful, as it was limited to claims arising out of the past 

employment relationship). See also BP Amoco Chemical—Chocolate Bayou, 351 NLRB 614, 

615–616 (2007) (Board approved settlement agreement entered into prior to the filing of charges,  providing for waiver and release of claim to file charges over terminations); and Septix Waste, 

Inc., 346 NLRB 494 (2006) (Board upheld settlement stipulation between union and employer 

that resolved all potential charges that were or could have been raised at the time of the 

stipulation). 

A release may also be found overbroad and unlawful if it prohibits the employee from 

providing evidence in the investigation of charges. See Clark Distribution Systems, Inc., 336 

NLRB 747 (2001).

§ 9–650  Taxability

Backpay is generally taxable as income in the year it is received. See Webco, Inc., 340 

NLRB 1, 12, 16 (2003) (reversing judge’s order in compliance proceeding requiring respondent to 

reimburse discriminatees for any higher federal and state income taxes they might incur as a 

result of a multi­year lump­sum award, as this remedy was not raised or addressed in the 

underlying unfair labor practice case); and Frontier Foundries, Inc., 312 NLRB 73 (1993) 

(rejecting non­Board settlement that provided only 6% backpay, even though it also provided for 

additional amounts as “liquidated damages,” allegedly to avoid being taxed as income). See also

U.S. v. Burke, 504 U.S. 229, 242 (1992) (Title VII case); and CIR v. Schleier, 515 U.S. 323 

(1995) (ADEA case). But see Banks v. U.S., 81 F.3d 874, 876 (9th Cir. 1996) (settlement for 

union’s breach of duty of fair representation “was of a tort­like cause of action” and therefore not 

taxable).

§ 9–700  Deferral to Grievance/Arbitration Settlements

The Board applies the principles of Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955) 

and Olin Corp., 268 NLRB 573, 573–575 (1984) in deciding whether to defer to a settlement 

agreement reached between an employer and union pursuant to their contractual grievance/
CHAPTER 9. SETTLEMENTS 

79 

arbitration machinery. See Alpha Beta Co., 273 NLRB 1546 (1985), review denied 808 F.2d 

1342, 1345–1346 (9th Cir. 1987) (deferring to settlement, despite the lack of any backpay, as the 

contractual grievance proceedings were fair and regular, all parties agreed to be bound, the 

employees were fully informed and given the right to accept or reject the settlement, and the 

General Counsel failed to establish that the settlement was clearly repugnant to the Act). 

In applying these standards, however, the Board may look to the Independent Stave

factors in determining whether the settlement is “clearly repugnant” or “palpably wrong.” See

Postal Service, 300 NLRB 196, 198, fn. 13 (1990).

§ 9–800  Setting Aside Settlement Agreements

An informal or non­Board settlement may be set aside if its provisions are breached, if 

postsettlement unfair labor practices are committed, or if the settlement is so ambiguous that 

there was no meeting of the minds. 

Noncompliance with Settlement. The Board’s Statements of Procedure, Section 

101.9(e)(2), specifically provides that if a respondent fails to comply with the terms of an informal 

settlement agreement, the Regional Director may set the agreement aside and institute further 

proceedings on the same charge. It is also well established that a Regional Director has the 

authority to reinstate a withdrawn charge following noncompliance with a non­Board settlement 

agreement, notwithstanding Section 10(b) of the Act, provided the original charge was timely 

filed. See Sterling Nursing Home, 316 NLRB 413, 416 (1995); and Norris Concrete Materials,  282 NLRB 289, 291 (1986). 

The Regional Director’s action in setting aside the settlement and reactivating the case is 

reviewable by the judge and the Board in the new complaint trial. For cases upholding the 

Regional Director’s action, see Nations Rent, Inc., 339 NLRB 830, 831 (2003) (employer 

reinstated and made whole employee, but continued to maintain  overbroad rule and failed to 

notify employee in writing that his discipline had been expunged); and American Postal Workers 

Local 735, 340 NLRB 1363, 1364–1365 (2003) (respondent union’s president published a post­ 

settlement column condemning the charging party and lauding the steward whose conduct led to 

the original charge). But see The Courier Journal, 342 NLRB 1148, 1149–1150 (2004) (Board 

majority found union’s failure to protest closure of original case on compliance, pursuant to 

settlement agreement, precluded unfair labor practice predicated on company’s failure to furnish 

certain information not provided at time of compliance). 

New Unfair Labor Practices. Subsequent or continuing unfair labor practices will ordinarily 

justify setting aside a settlement agreement. Scripps Memorial Hospital Encinitas, 347 NLRB 

52, 53 (2006); and; and YMCA of the Pikes Peak Region, Inc., 291 NLRB 998, 1010, 1012 

(1988), enfd. 914 F.2d 1442, 1449–1450 (10th Cir. 1990), cert. denied 500 U.S. 904 (1991). 

However, new unfair labor practices will not warrant setting aside the settlement if they 

are “isolated” or “insubstantial.” See Diamond Electric Mfg. Corp., 346 NLRB 857, 862–863 

(2006) (single post­settlement instance of discriminatory discipline insufficient), citing Coopers 

Int’l Union, 208 NLRB 175 (1974). See also Porto Mills, 149 NLRB 1454, 1470 (1964); and

Wooster Brass Co., 80 NLRB 1633, 1635 (1948). 

Ambiguous Agreement. An informal settlement may also be set aside if the agreement is 

so ambiguous that a conclusion is warranted that there was no meeting of the minds on a 

settlement. See Doubletree Guest Suites Santa Monica, 347 NLRB 782, 782–783 (2006)
CHAPTER 9. SETTLEMENTS 

80 

(setting aside prior informal settlement on this basis, and therefore finding no settlement bar to 

issuing new complaint).

§ 9–850  Decision Vacated by Settlement

Unless otherwise expressly provided, an order vacating a prior decision pursuant to a 

settlement vacates that decision “only insofar as there is no longer a court­enforceable order in 

the case and the decision has no preclusive effect on the parties.” Caterpillar, Inc., 332 NLRB 

1116, 1116 (2000). The decision remains published and “may be cited as controlling precedent 

with respect to the legal analysis therein.” Ibid. In this respect, it is distinguishable from a vacatur 

on the merits, which eliminates the prior decision for all purposes, including precedential effect.

§ 9–900  Role of Settlement Judge

The role of a judge as settlement judge is established and defined by the Board’s Rules, 

Section 102.35(b): 

Upon the request of any party or the judge assigned to hear a case, or on his or 

her own motion, the [Chief Judge or Deputy or Associate Chief Judge in Washington, or 

the Associate Chief Judge in San Francisco, New York, or Atlanta] may assign a judge, 

who shall be other than the trial judge, to conduct settlement negotiations. In exercising 

his or her discretion, the [Chief Judge, Deputy Chief Judge, or Associate Chief Judge] 

making the assignment will consider, among other factors, whether there is reason to 

believe that resolution of the dispute is likely, the request for assignment of a settlement 

judge is made in good faith, and the assignment is otherwise feasible. Provided, however, 

that no . . . assignment shall be made absent the agreement of all parties to the use of this 

procedure. 

(1) The settlement judge shall convene and preside over conferences and 

settlement negotiations between the parties, assess the practicalities of a potential 

settlement, and report to the [Chief Judge, Deputy Chief Judge, or Associate Chief Judge] 

the status of settlement negotiations, recommending continuation or termination of the 

settlement negotiations. [If feasible], settlement conferences shall be held in person. 

(2) The settlement judge may require that the attorney or other representative for 

each party be present at settlement conferences and that the parties or agents with full 

settlement authority also be present or available by telephone. 

(3) Participation of the settlement judge shall terminate upon the order of the [Chief 

Judge, Deputy Chief, or Associate Chief Judge] issued after consultation with the 

settlement judge. The conduct of settlement negotiations shall not unduly delay the [trial]. 

(4) All discussions between the parties and the settlement judge shall be 

confidential. The settlement judge shall not discuss any aspect of the case with the trial 

judge, and no evidence regarding statements, conduct, offers of settlement, and 

concessions of the parties made in proceedings before the settlement judge shall be 

admissible in any proceeding before the Board, except by stipulation of the parties. 

Documents disclosed in the settlement process may not be used in litigation unless 

voluntarily produced or obtained pursuant to subpoena.
CHAPTER 9. SETTLEMENTS 

81 

(5) No decision of [the Chief Judge, Deputy Chief Judge, or Associate Chief 

Judge] concerning the assignment of a settlement judge or the termination of a settlement 

judge's assignment shall be appealable to the Board. 

(6) Any settlement reached under the auspices of a settlement judge shall be 

subject to approval in accordance with the provisions of Section 101.9 of the Board's 

Statements of Procedure. 

Although the rule provides that the settlement judge shall be “other than the trial judge,” 

the settlement judge may be assigned to hear the case in the absence of any objections. See

*Kingsbridge Heights Rehabilitation and Care Center, 353 NLRB 631, 633 (2008).

83

CHAPTER 10. SEQUESTRATION ORDER 

§ 10–100  In General

The primary Board cases addressing separation of witnesses during trial are Unga 

Painting Corp., 237 NLRB 1306, 1308 (1978) (addressing rights of discriminatees under 

sequestration order); and Greyhound Lines, 319 NLRB 554, 554 (1995) (setting forth model 

sequestration order). 

Consistent with the statutory command to follow the Federal Rules of Evidence “so far as 

practical,” the Board has generally attempted to follow the “spirit” of FRE 615 (Exclusion of 

Witnesses) in fashioning its own rules in this area. Thus, as under FRE 615, the Board has held 

that exclusion of witnesses is a matter of right, and the judge therefore has no discretion to deny 

a request. Unga Painting, above. 

In dealing with specific situations arising under the rule, however, the Board has 

attempted to balance the sometimes competing interests of openness and protecting the rights of 

parties and discriminatees on the one hand, and “minimiz[ing] fabrication,” “detecting inconsistent 

testimony,” and “ascertaining the truth” on the other. Unga Painting, above. Specific situations 

addressed by the Board and courts are discussed in the sections below.

§ 10–200  Scope of Order

As indicated above, a model separation of witnesses order is set forth in Greyhound 

Lines, 319 NLRB 554, 554 (1995). See §1–300, above. 

The “heartland” of FRE 615 is the exclusion of potential witnesses from the courtroom “so 

that they cannot hear the testimony of other witnesses.” U.S. v. Sepulveda, 15 F.3d 1161, 1175–  1176 (1st Cir. 1993), cert. denied 512 U.S. 1223 (1994). However, under FRE 615, a court 

“retains discretion to add other restrictions or not, as it judges appropriate.” U.S. v. Magana, 127 

F.3d 1, 5 (1st Cir. 1997) (citing cases). Examples are discussed below.

§ 10–210  Conferring with Counsel

The judge has the discretion to prohibit counsel “from conferring with a witness during the 

witness’ testimony, including during any recesses in the trial.” Geders v. U.S., 425 U.S. 80, 87–  88 (1976). Similarly, it is not a denial of the right to assistance of counsel to prohibit a respondent 

from consulting with counsel during a short recess between direct and cross­examinations. Perry 

v. Leeke, 488 U.S. 272, 283–284 (1989). 

However, the judge may not prohibit “the normal consultation between attorney and client 

that occurs during an overnight recess [which] would encompass matters that go beyond the 

content of the defendant’s own testimony.” Ibid. See also United Chrome Products, 288 NLRB 

1176, 1176 fn. 1 (1988). (During a 10­minute recess while the General Counsel was examining 

an adverse­party witness, it was not error for the judge to allow that witness to speak with counsel 

to “be prepared for questioning by [that] counsel,” but not about “what he testified and how to 

change it”).
CHAPTER 10. SEQUESTRATION ORDER 

84

§ 10–220  Showing Transcripts to Witnesses

Informing prospective witnesses of prior testimony, including by showing transcripts to 

them, is prohibited “without express permission of the administrative law judge;” however, 

“counsel for a party may inform counsel’s own witness of the content of testimony, including the 

showing of transcripts, given by a witness for the opposing side . . . to prepare for rebuttal of [the] 

testimony.” Greyhound Lines, above, 319 NLRB at 554.

Greyhound modifies the Board’s prior seemingly absolute prohibition on showing 

separated witnesses the transcripts of other witnesses’ testimony. See El Mundo Corp., 301 

NLRB 351, 351 (1991). But, that modification appears confined to a showing by counsel and, 

further, to one limited to only so much of the transcript as is needed for possible rebuttal of 

testimony recited in the transcript, as opposed to making the entire transcript available to open­ 

ended perusal by a prospective witness.

§ 10–300  Requests to Separate Witnesses

As indicated above, if a request is made, the judge “shall” (i..e. is required to) order 

witnesses excluded. FRE 615 and Unga Painting Corp., above, 237 NLRB at 1307. No formal 

exceptions to this rule are recognized. However, the failure of the judge to issue a sequestration 

order on request will not require reversal in the absence of any prejudice. See AEI2, LLC, 343 

NLRB 433 (2004)  (finding no prejudice where there were only two other witnesses, one who 

would not have testified to the events, and the other who likely would have been designated as a 

party representative); and Curlee Clothing Co., 240 NLRB 355, 355 fn. 1 (1979), enfd. in 

relevant part 607 F.2d 1213 (8th Cir. 1979) (finding no prejudice where judge in a pre­Unga 

Painting hearing denied a request because the large number of witnesses and severe spatial 

limitations rendered separation impossible). 

No time is specified for making the request to separate witnesses. See FRE 615. See also

AEI2, LLC, above, 343 NLRB at 433 fn. 4; and authorities cited there. But see Alpert’s, Inc., 267 

NLRB 159, 159 fn. 1 (1983) (upholding judge’s denial of request that was not made until after the 

General Counsel’s second witness had testified). 

The judge also possesses authority to “order witnesses excluded” on his/her own motion, 

i.e. even if not requested. FRE 615.

§ 10–400  Who Should and Should Not Be Separated

All potential witnesses should be excluded from the trial. Unga Painting Corp., above, 

237 NLRB at 1307; and Greyhound Lines, above, 319 NLRB at 554. Both FRE 615 and the 

Board, however, recognize several exceptions. 

Party who is a natural person. See FRE 615(1) (“a party who is a natural person”) and

Greyhound, above, 319 NLRB at 554 (“natural persons who are parties”). 

Officer or employee of a non­natural party who is designated as its representative by its 

attorney. FRE 615(2). See also Greyhound Lines, above, 319 NLRB at 554 (“representatives of 

nonnatural parties”). The Board reads this exception as limiting a corporate respondent to its 

attorney and one other representative. Unga Painting Corp., above, 237 NLRB at 1308 fn. 16.  Further, in Opus 3 Ltd. v. Heritage Park, 91 F.3d 625, 630 (4th Cir. 1996), the court held that the 

representative must be an employee, and that the corporation’s “mere designation of a person to 

act on its behalf at trial” does not convert the person into its employee.
CHAPTER 10. SEQUESTRATION ORDER 

85 

Person essential to a party’s presentation. See FRE 615(3) (“a person whose presence is 

shown by a party to be essential to the presentation of his cause”); and Greyhound Lines,  above, 319 NLRB at 554 (“a person who is shown by a party to be essential to the presentation of 

the party’s cause”). It must be shown that the presence is “’essential,’ rather than simply 

desirable.” U.S. v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995), cert. denied 516 U.S. 980, 1130, 

1165 (1995 and 1996). See also Opus 3 Ltd. v. Heritage Park, above, 91 F.3d at 628 (burden is 

on party asserting that witness’s presence is essential). 

Alleged discriminatees. The Board allows a limited exemption for alleged discriminatees. 

They are exempted from exclusion, except “during that portion of the [trial] when another of the 

General Counsel’s or the charging party’s witnesses is testifying about events to which the 

discriminatees have testified, or will or may testify, either in the case­in­chief or on rebuttal.” Unga 

Painting Corp., above, 237 NLRB at 1307. See also Greyhound Lines, above, 319 NLRB at 

554. 

However, the judge retains some discretion in applying this limited exemption. Thus, in

Unga Painting, above, 237 NLRB at 1307, the Board stated that the judge may decline to follow 

the rule if, in his/her judgment “there are special circumstances warranting the unrestricted 

presence of discriminatees or total exclusion when not testifying.” For example, in a footnote the 

Board noted that the third exception in FRE 615 for “essential” persons “is broad enough to 

permit a showing of these special circumstances and allows the [judge] considerable discretion.” 

Ibid. at fn. 14. 

Discriminatees designated essential representative. Notwithstanding the Board’s footnote 

in Unga Painting, above, there appears to be some ambiguity regarding the right of a 

discriminatee who is also designated as the General Counsel’s or charging party’s representative 

to stay throughout the trial. The judge approved such a designation, and allowed the 

discriminatee to remain in the hearing room, in Impact Industries, 285 NLRB 5, 6 (1987), 

remanded on other grounds 847 F.2d 379 (7th Cir. 1988). But see Weis Markets, Inc. v. NLRB,  265 F.3d 239, 245–246 (4th Cir. 2001), modifying in part 325 NLRB 871 (1998) (court rejected 

respondent’s contention that it was prejudiced by judge’s allowing discriminatee who was the 

General Counsel’s designated representative to remain throughout the trial, even while 

subsequent General Counsel witnesses testified to the same events, but expressed disapproval 

of the judge’s “departure from Board precedent”). In any event, as indicated above, the judge 

should require a showing that the discriminatee’s unrestricted presence is “essential” in these 

circumstances.

§ 10–500  Violation of Sequestration Order

A prerequisite to finding a violation of a sequestration order is the issuance of the order 

itself. See U.S. v. Williams, 136 F.3d 1166, 1168–1169 (7th Cir. 1998) (parties informed the 

judge that they had agreed to sequestration, but there was “no formal request for entry of an 

order,” and “no sequestration order was ever entered”). Further, the parameters of the judge’s 

sequestration order should be clearly defined. See Continental Winding Co., 305 NLRB 122, 

129 (1991). 

Once an order has issued, however, counsel are expected to police the rule, to inform any 

witnesses not present at the time the judge issues the order of their obligations under the order, 

and to bring any violations to the judge’s attention. See Greyhound Lines, above, 319 NLRB at 

554.
CHAPTER 10. SEQUESTRATION ORDER 

86 

When a witness has violated a sequestration order, the Board’s preferred course appears 

to be “stricter scrutiny of the tainted testimony,” without striking the testimony of that witness.

Medite of New Mexico, Inc., 314 NLRB 1145, 1149 (1994), enfd. 72 F.3d 780 (10th Cir. 1995). 

Nevertheless, violating a separation of witnesses order “may warrant striking the tainted 

testimony if it can be demonstrated that a party was prejudiced by the violation of the rule.”

Suburban Trails, 326 NLRB 1250, 1250 fn. 1 (1998). 

If disregard of a sequestration order is revealed before a witness is called to testify, under 

FRE 615 that witness may be barred from testifying. U.S. v. Wilson, 103 F.3d 1402, 1406 (8th 

Cir. 1997) (holding that trial court “clearly acted within its discretion in concluding that Jones could 

not be called to testify at the last minute after sitting in the courtroom and listening to much of the 

case”). Cf. North Hills Office Services, 342 NLRB 437, 437 fn. 2 (2004) (Board rejected 

respondent’s contention that the judge improperly allowed the attorney for the charging party, 

who had been present throughout the trial to testify in violation of the sequestration order, 

inasmuch as the judge had warned the parties that the “credibility of witnesses who were present 

during the testimony of other witnesses would be subject to attack,” and “fairly applied the 

sequestration order to all parties”). 

As discussed above in §7–500 et seq. (Misconduct by Attorney or Representative), 

violations of a sequestration order by counsel may warrant an admonishment or reprimand or 

referral to the General Counsel under Section 102.177 of the Board’s rules. See Sargent Karch,  314 NLRB 482 (1994) (suspending attorney for 6 months after second violation).
87

CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

§ 11–100  Use of Audio and Video Equipment 

§ 11–110  Auditory Equipment Use, Whether Required

In Manno Electric, 321 NLRB 278, 278 fn. 7 (1996), the Board held that respondents 

were not denied due process when the judge failed to provide or offer special auditory 

enhancement devices to assist the company president who was hearing impaired. Although the 

respondent counsel informed the judge of the problem, the counsel made no request for the 

equipment. The judge on several occasions instructed witnesses to speak louder and there were 

no contemporaneous complaints that those instructions were not sufficient to reasonably 

accommodate the president’s hearing problems. The Board also noted that neither the Act nor its 

Rules require an unsolicited offer to provide this equipment.

§ 11–120  Tape Recorders in Trial, Whether Allowed

The use of a tape recorder by parties to record trial proceedings is within the discretion of 

the judge. Compare Red & White Supermarkets, 172 NLRB 1841, 1846 (1968) (use of tape 

recorder permitted), with Marriott Corp., 172 NLRB 1891, 1892 fn. 1 (1968), enfd. in part 417 

F.2d 176 (4th Cir. 1969) (permission to use tape recorder denied). 

Although the court in Marriott found no prejudice from the judge’s ruling, it indicated that 

use of the recorder should be permitted to the extent that it does not interfere with or slow down 

the trial. 417 F.2d at 178.  Nevertheless, the Board subsequently upheld a judge’s discretion to 

deny a respondent’s request to use a tape recorder in Daisy’s Originals, Inc., 187 NLRB 251, 

251 fn. 1 (1970) (judge denied request on ground he would not be able to police its use; the 

Board further noted that the judge and parties are bound by the transcript prepared by the official 

reporting service). 

Obviously, if a tape recording is permitted, it would be subject to the restrictions imposed 

by a sequestration order.

§ 11–130  Television Cameras, Not Permitted in Courtroom

The Board’s policy is that its trials may not be televised. That policy is reflected in a June 

10, 1991 letter from the Deputy Executive Secretary to a television station that had requested 

permission to televise a trial. The letter states that the policy may be reviewed later, but, to date, 

there has been no change.

§ 11–200  Bankruptcy, Jurisdiction of Board

“It is well established that the institution of bankruptcy proceedings does not deprive the 

Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final 

disposition. Board proceedings fall within the exception to the automatic stay provision for 

proceedings by a governmental unit to enforce its police or regulatory powers.” Bristol Nursing 

Home, 338 NLRB 737, 737 fn. 1 (2002) (citations omitted). See also Cardinal Services, 295 

NLRB 933 fn. 2 (1989); Phoenix Co., 274 NLRB 995, 995 (1985); and NLRB v. Evans 

Plumbing Co., 639 F.2d 291, 293 (5th Cir. 1981). Collection of backpay, however, requires a 

separate application to the bankruptcy court. NLRB v. Continental Hagen Corp., 932 F.2d 828,
CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

88 

832–833 (9th Cir. 1991); and NLRB v. 15th Avenue Iron Works, 964 F.2d 1336, 1337 (2d. Cir. 

1992).

§ 11–300  Binding Precedent, Judge Required to Follow

The judge is bound to apply established Board precedent which neither the Board nor the 

Supreme Court has reversed, notwithstanding contrary decisions by courts of appeals.  See, e.g.,

Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) ); Los Angeles New Hospital, 244 NLRB 960, 

962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981); and Iowa Beef Packers, 144 NLRB 615, 

616 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964). 

Of course, a judge is also bound to follow particular Board findings in a prior case, where 

appropriate, under the doctrine of collateral estoppel. See Great Lakes Chemical Corp., 300 

NLRB 1024, 1024–1025 and fn. 3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992). See also §3–750, 

“Relitigation of Issues,” above. And compare §11–320, “Reliance on Prior Findings of Another 

Judge,” below.

§ 11–310  Judges Decisions, When Not Binding Precedent

When the Board has adopted all or even a portion of a judge’s decision to which no 

exceptions have been filed, that decision or portion is not binding precedent for any other case. *California Gas Transportation, Inc., 352 NLRB 246, 246 fn. 3 (2008); Pathmark Stores, Inc.,  342 NLRB 378, 378 fn. 1 (2004); Watsonville Register­Pajaronian, 327 NLRB 957, 959 fn. 4 

(1999); and Colgate­Palmolive Co., 323 NLRB 515, 515 fn. 1 (1997).

§ 11–320  Reliance on Prior Findings of Another Judge

The Board does not take judicial notice of a judge’s decision in another case pending 

review before the Board because that decision is not binding authority. St. Vincent Medical 

Center, 338 NLRB 888 (2003), remanded on other grounds, 463 F.3d 909 (9th Cir. 2006). But a 

judge may rely on the factual findings made by another judge in a prior case, even though it is still 

pending before the Board. See Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 

394–395 (1998), enfd. mem. 215 F.3d 1327 (6th Cir. 2000) (judge’s findings in earlier case relied 

upon as showing evidence of animus in present case); and Detroit Newspapers Agency, 326 

NLRB 782 fn. 3 (1998), enf. denied 216 F.3d 109 (D.C Cir. 2000) (judge properly relied on earlier 

decision of another judge in a case pending before the Board to find that a strike was an unfair 

labor practice strike). This approach advances judicial efficiency, and avoids inconsistent results 

and delays attendant to awaiting the Board’s review of the judge’s decision in the earlier case. 

The judge, however, has the discretion, in appropriate circumstances, not to rely on 

another judge’s prior findings, particularly where they involve credibility. See Fluor Daniel, Inc. v. 

NLRB, 332 F.3d 961, 972 (6th Cir. 2003), cert. denied, 543 U.S. 1089 (2005) (judge was “under 

no obligation to consider determinations made by another ALJ in a wholly different case regarding 

the credibility of a particular witness”). See also Electrical Workers (Nixdorf Computers Corp.),  252 NLRB 539, 539 fn. 1 (1980) (it is “generally inappropriate” to base credibility determinations 

solely on credibility determinations made in a prior case). 

Further, in giving effect to the earlier judge’s findings, the judge should keep in mind that, 

if the Board (or a court) reverses the earlier judge’s findings on review, the judge’s findings in the 

second case may likewise be vulnerable to reversal. The second judge’s decision in this respect 

is contingent on the Board’s ultimate disposition of the issue litigated in the prior case.
CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

89

§ 11–330  Reliance on Portions of Other Records

In Beverly Health & Rehabilitation Services, 335 NLRB 635, 639 fn. 26 (2001), enfd. in 

part, 317 F.3d 316 (D.C. Cir. 2003), the Board stated that it expects parties to introduce all 

nontestimonial evidence on which they rely in the form of exhibits. They cannot “incorporate by 

reference” portions of other records, even those of Board cases involving the same parties.

§ 11–340  Motions to Dismiss

Sometimes a respondent will move to dismiss a complaint, or portions of a complaint, at 

the conclusion of the General Counsel’s case. In ruling on such a motion under Section 

102.35(a)(8) of the Board’s Rules, the judge should follow the same standard the Board uses in 

ruling on motions to dismiss under Section 102.24; that is, the judge should “construe the 

complaint in the light most favorable to the General Counsel, accept all factual allegations as true, 

and determine whether the General Counsel can prove any set of facts in support of his claims 

that would entitle him to relief.” Detroit Newspapers Agency, 330 NLRB 524, 525 fn. 7 (2000). 

See also Central Telephone Company of Texas, 343 NLRB 987, 998, Appendix B (2004) 

(upholding judge’s dismissal of complaint allegations). Cf. St. Mary’s Nursing Home, cited in full 

in §2–510, above, 342 NLRB 979, 980 fn. 6 (2004) (finding that the judge erroneously ruled from 

the bench that the General Counsel had failed to establish animus in a discrimination case) . 

When granting a motion to dismiss in these circumstances, the judge should issue a 

“decision” under Section 102.45(a) of the Board’s Rules, so that the appropriate procedures for 

appealing under Section 102.46 will apply. See Technology Service Solutions, 332 NLRB 

1096, 1096 and fn. 3 (2000).

§ 11–350  Motions for Summary and Default Judgment

A judge has the authority to rule on motions for summary and default judgment under 

Section 102.35(a)(8) of the Board’s Rules and Regulations. This authority exists notwithstanding 

the failure of the moving party to file such a motion with the Board under Section 102.24 of the 

Rules. See Calyer Architectural Woodworking Corp., 338 NLRB 315 (2002).

§ 11–400  Correction of Transcript

The judge should not unilaterally correct a trial transcript, except for obvious typographical 

errors. Corrections should be made pursuant to a motion by a party or, if there is none, after 

issuance of an order to show cause. Serv­Air, Inc., 161 NLRB 382, 382 fn. 1 (1966); and W. B. 

Jones Lumber Co., 114 NLRB 415, 415 fn. 1 (1955), enfd. 245 F.2d 388 (9th Cir. 1957). 

In Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB 95, 95 fn. 2 (1994), the 

Board rejected the General Counsel’s attempt to supply the surname of an additional 

discriminatee, whose name was inaudibly described in the transcript. The Board stated that the 

burden is on the parties to make certain the transcript is clear and correct. During a trial, the 

judge should make sure, to the extent possible, that the testimony is correctly and adequately 

transcribed, particularly that the witness’s testimony is audible.

§ 11–500  Interlocutory Appeals from Judges Rulings

A judge need not grant recesses to parties wishing to take interlocutory appeals and may 

continue with and close the trial without waiting for the Board to rule on the appeal. However, if
CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

90 

the judge has a genuine doubt about the ruling, any recess should allow adequate time for the 

Board to rule. It is suggested that the judge set a date by which the request for leave to appeal 

should be filed and set a resumption date no less than one week later. 

Note that Board’s Rules, Section 102.26, requires service of the request and any 

responses on the judge.

§ 11–600  Opening a Trial by Telephone or Mail

A judge may open a trial by telephone or by mail in the interests of saving time and 

expenses for all concerned. See, e.g., Ironworkers Local 843 (Norglass, Inc.), 327 NLRB 29 

(1998). 

This is typically done in a situation in which a charging party or the General Counsel is 

unwilling to join in a proposed settlement. See, e.g., CWA Local 9403 (Pacific Bell), 322 NLRB 

142 (1996). In such situations, one of the parties to the settlement makes a motion to open the 

trial by mail, to receive the formal papers, and consider the proposed settlement agreement. The 

judge issues a show cause order, giving the parties a date to show cause why the motion should 

not be granted or to submit a statement why the settlement should be approved. Upon receipt of 

the statements, if the judge decides the settlement should be approved, he or she issues an order 

granting the motion to open the record, discusses the objections, approves the settlement, and 

adjourns the trial indefinitely, pending full compliance with the agreement. 

If the parties are willing, this can be accomplished even more efficiently by considering the 

motion, the settlement agreement, and any objections in a telephone conference call, with a court 

reporter recording the proceedings. 

A similar procedure has also been used in the case of a lengthy trial at a distant location 

involving the production of voluminous subpoenaed documents. The trial was opened by a 

telephone conference call, the judge ruled on questions raised in a petition to revoke the 

subpoena, and set the ground rules for producing the documents. The judge then traveled to the 

trial site when the parties were ready to resume the trial.

§ 11–610  Testimony by Telephone

The Board has disapproved taking a witness’ testimony by telephone over the 

respondent’s objections. See Westside Painting, Inc., 328 NLRB 796, 796–797 (1999) (“under 

Section 102.30 of the Board’s Rules, witnesses in Board unfair labor practice proceedings may 

not testify by telephone”). The Board emphasized the importance of viewing the demeanor of the 

witness by the trier of fact, as well as the lack of sufficient safeguards that may have impaired the 

respondent’s right of cross­examination. 

Nevertheless, judges have, on occasion, taken telephone testimony when all parties 

agreed to the procedure. See, for example, Team Clean, Inc., 348 NLRB 1231 (2006), where an 

entire trial—albeit a short one with simple issues—was conducted by telephone.

§ 11–620  Testimony by Video

The Board has not yet passed on the use of video testimony in a contested unfair labor 

practice case, in which one of the parties has objected to the procedure. However, FRCP 43 

specifically provides that a court “may for good cause shown in compelling circumstances and
CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

91 

upon appropriate safeguards, permit presentation of testimony in open court by 

contemporaneous transmission from a different location.” 

Video testimony has been used in Board trials without objection. See *M.V.M., Inc., 352 

NLRB 1165, 1165 fn.1 (2008) (testimony of one witness taken by video without objection, where 

original testimony of witness erroneously was not transcribed). Moreover, the Board has instituted 

a pilot project for use of video testimony in representation cases. Pursuant to a January 2008 

memorandum from Associate General Counsel Richard Siegel (OM 08–20), regional directors are 

authorized to use video testimony in representation cases “when warranted,” even if a party 

objects. 

Video testimony may ameliorate any problems associated with telephone testimony (see

§11–610, above). Indeed, the Merit Systems Protection Board (MSPB) has approved the use of 

video testimony in its cases, notwithstanding the objection of a party (Koehler v. 

Department of the Air Force, 99 M.S.P.R. 82 (2005)), even though, like the NLRB, it has 

disapproved of telephonic testimony (Robertson v. Dept. of Transportation, 113 M.S.P.R. 16 

(2009)). Nevertheless, the judge should be satisfied that the proponent has shown a need—“good 

cause”—for video testimony, and carefully weigh any objections before approving it. 

Video conferencing equipment is available in all regional offices and most large law firms. 

If video testimony is taken, counsel should be given the opportunity to be present, perhaps 

through a surrogate, at the location where the witness appears, and all other reasonable due 

process requirements should be followed. Obviously, a reporter must be present to transcribe the 

testimony and care should be taken to ensure that the reporter is able to hear all the speakers 

wherever they are located. In addition, the camera should be adjusted to give a close­up view of 

the witness and exhibits should be provided in advance. These and other such technical or 

logistical problems should be considered in evaluating relative advantages and disadvantages of 

permitting videoconferencing.

§ 11–700  Remands, Limited Issues

On a remand for further trial, the judge is limited to considering only those matters 

specified by the Board’s order and cannot expand the scope of the trial. Monark Boat Co., 276 

NLRB 1143, 1143 fn. 3 (1985), enfd. 800 F.2d 191 (8th Cir. 1986).

§ 11–800  Stipulations, Use of

A stipulation of fact is ordinarily conclusive, precluding withdrawal or further dispute by a 

party joining in the stipulation after the judge accepts it (Kroger Co., 211 NLRB 363, 364 (1974)), 

except on a showing of honest mistake or newly discovered evidence. See also Graham, 3 

Handbook of Fed. Evid. Sec. 801:26 (6th Ed. 2009). 

The General Counsel may make appropriate stipulations with adverse parties concerning 

relevant facts, subject to the right of a charging party who does not join in a stipulation to 

introduce contrary evidence or additional material facts. Borg­Warner Corp., 113 NLRB 152, 154 

(1955), petition for review denied 231 F.2d 237 (7th Cir. 1956), cert. denied 352 U.S. 908 (1956). 

Under Section 102.35(a)(9) of the Board’s Rules, a record may be stipulated directly to 

the Board for decision, provided all parties consent and waive a trial and the issuance of a 

decision by the judge.
CHAPTER 11. MISCELLANEOUS PROCEDURAL MATTERS 

92 

Under Section 102.35(a)(9), the parties may also agree to waive a trial and stipulate facts 

to the judge for issuance of a judge’s decision. When a case is stipulated to a judge, he or she 

should make sure that the stipulation is complete enough to support a decision on all relevant 

issues.

§ 11–900  Motion to Reopen Record

After the close of the trial but before issuance of the judge’s decision, a party may file a 

motion with the judge to reopen the record on the basis of “newly discovered evidence.” The 

judge is authorized to rule on such a procedural motion under Board’s Rules, Section 

102.35(a)(8). 

The standards for ruling on such motions are set out in decisions addressing the Board’s 

similar authority under Board’s Rules, Section 102.48(d)(1). 

First, the movant must demonstrate that the evidence is truly “newly discovered.” In

Fitel/Lucent Technologies, Inc., 326 NLRB 46, 46 fn. 1 (1998), the Board held that newly 

discovered evidence is “evidence which was in existence” at the time of the trial, and the movant 

was “excusably ignorant” of it, i.e. the movant “acted with reasonable diligence to uncover and 

introduce the evidence.”  Thus, evidence that did not exist at the time of the trial because it 

relates to events that occurred after the close of the trial is not “newly discovered.” Allis­  Chalmers Corp., 286 NLRB 219, 219 fn. 1 (1987). See also Planned Building Services, Inc.,  347 NLRB 670, 670 fn. 2 (2006) (Board affirmed judge’s refusal to accept documents submitted 

by respondent after close of hearing on grounds that the evidence was not newly discovered). 

Second, the movant must “demonstrate that the introduction of the [evidence in question] 

would require a different result than that reached by the judge.” Fitel/Lucent Technologies,  above. See also County Waste of Ulster, 354 NLRB No. 54 (2009), reaffirmed and incorporated 

by reference 355 NLRB No. 64 (2010).

§ 11–1000  Compliance Proceeding

Special procedural rules govern supplemental backpay proceedings, particularly regarding 

the allocation of the burden of proof on various issues. For a case setting forth 10 of these 

burden­of­proof rules into a single list, see Minette Mills, Inc., 316 NLRB 1009, 1010–1011 

(1995). See also St. George Warehouse, 351 NLRB 961 (2007) (Board majority modified 

traditional rule and shifted burden of going forward to the discriminatee and General Counsel to 

present evidence that the discriminatee took reasonable steps to apply for substantially 

equivalent jobs).
93

CHAPTER 12. ORAL ARGUMENT, BRIEFS, JUDGES DECISIONS 

§ 12–100  Pretrial or Trial Briefs

The Board’s Rules contain no specific provision for pretrial or trial briefs. However, 

Section 102.35(a)(12), provides that judges have authority “to request the parties at any time 

during the [trial] to state their respective positions concerning any issue in the case or theory in 

support [of it].” Further, the 3d Edition of the U.S. Administrative Conference’s Manual for 

Administrative Law Judges states at 47: 

Some cases, particularly complex ones, can be facilitated by trial briefs stating the 

principal contentions of the parties, the evidence to be presented and the purposes for 

which it is submitted. [The] briefs may also present the results of research the judge has 

requested on legal or technical problems. The judge may instruct each party to include in 

the brief any procedural motions and requests, such as provisions to bar proposed written 

evidence. 

However, like post­trial briefs, the judge may not require the submission of briefs or draw 

any type of adverse inference from the nonsubmission of briefs.

§ 12–200  Post­Trial Oral Argument

Board’s Rules, Section 102.42, specifically provides that “any party shall be entitled, upon 

request, to a reasonable period at the close of the [trial] for oral argument, which may include 

presentation of proposed findings and conclusions, and shall be included in the stenographic 

report of the [trial].”

§ 12–300  Post­Trial Briefs

Board’s Rules, Section 102.42, provides that the judge has discretion whether to allow 

time for parties to file post­trial briefs. See also K.O. Steel Foundry & Machine, 340 NLRB 1295, 

1295 (2003) (upholding judge’s discretion to allow oral argument in lieu of briefs). However, in 

most cases, judges will allow parties to file post­trial briefs, as they can be quite helpful. 

Time to File. Section 102.42 provides that the judge may fix a reasonable time for filing 

the briefs, but not in excess of 35 days of the close of trial (counting intermediate weekends and 

holidays, see Sec. 102.111). Requests for extension of time must be filed with the appropriate 

Chief, Deputy, or Associate Chief Judge. 

Parties should be informed that the Board and its chief judges will not lightly grant 

postponements for the submission of briefs and that motions for extension of time should, on their 

face, explain the reason for the request and indicate whether the other parties object to the 

proposed extension. See §1–200, “Suggested Form of Closing Statement,” above. But see §12–  500, “Expedited Decision Without Briefs, in Lieu of Bench Decision” and §12–600, “Bench 

Decision,” below. 

Where Briefs Are to be Filed. The judge should inform the parties at the beginning of the 

trial that briefs should be filed in the office to which the judge is assigned (Washington, New York, 

Atlanta, or San Francisco). Motions for extension of time should be directed to the Chief, Deputy, 

or Associate Chief Judge at that office as well.
CHAPTER 12. ORAL ARGUMENT, BRIEFS, JUDGES DECISIONS 

94 

Filing and Service Requirements. Section 102.42, requires that three copies of the brief be 

filed, with simultaneous service on the other parties. Other filing and service requirements for 

briefs are set forth in Sections 102.111 – 102.114. See also CHAPTER 4, “Service of 

Documents,” above. 

Note that briefs may be e­filed, but not faxed (although they may be served by fax with 

consent of the served party). E­filing of briefs is subject to rules posted on the Board’s web­site. 

E­filed briefs must comport with all applicable time requirements, including those in Section 

102.111 of the Board’s Rules and Regulations. Filing is effective upon the receipt of an e­mailed 

document and notification that the e­filed brief has been received by the Division of Judges. A 

statement of service must accompany the e­filed brief, in accordance with Section 102.114(i) of 

the Rules. Electronic filings will be accepted up to 11:59 p.m., local time, at the receiving office on 

the due date. Parties who e­file documents are required to serve them on other parties to the 

case by e­mail whenever possible. 

Reply or Answering Briefs. There is no provision in the Board’s Rules for the filing of reply 

or answering briefs to the administrative law judge. However, the trial judge has the discretion to 

ask for them, or grant a motion for leave to file them, in an appropriate case. See Gallup, Inc.,  349 NLRB 1213, 1217 (2007), and cases cited there. 

CAUTION: Judges should not use excerpts from the briefs of the parties as a substitute 

for their findings and legal analysis in the written decision. Extensive and verbatim copying from 

the brief of the prevailing party in the judge’s decision not only creates the appearance of 

partiality, but also gives the impression that the judge failed to conduct “an independent analysis 

of the case’s underlying facts and legal issues.” Dish Network Service Corp., 345 NLRB 1071 

(2005). See also §2–510, “Grounds Asserted for Disqualification,” copying from briefs, above.

§ 12–400  Briefs Not Part of Official Record

Briefs to the judge do not normally become part of the official record in the case. See 

Board’s Rules, Section 102.45(b). See also Vanguard Fire & Security Systems, 345 NLRB 

1016, 1020 (2005).

§ 12–500  Expedited Decision Without Briefs, in Lieu of Bench Decision

The Board allows the issuance of an expedited decision, without waiting for the filing of 

briefs, upon due notice to the parties. Board’s Rules, Section 102.42, provides that: 

In any case in which the administrative law judge believes that written briefs or proposed 

findings of fact and conclusions may not be necessary, he or she shall notify the parties at 

the opening of the [trial] or as soon thereafter as practicable that he or she may wish to 

hear oral argument in lieu of briefs. 

Thus, after giving the required notice to the parties and after hearing the oral arguments in 

lieu of briefs, the judge may proceed to read the transcript, exhibits, and applicable authorities, 

and prepare a written expedited decision in the usual manner. 

An expedited decision may be preferred as an alternative to a bench decision, discussed 

below in §12–600. It avoids the sometimes hurried approach and potential pitfalls of a bench 

decision, which must be delivered orally at the close of the trial.
CHAPTER 12. ORAL ARGUMENT, BRIEFS, JUDGES DECISIONS 

95

§ 12–600  Bench Decision 

§ 12–610  In General

Board’s Rules, Section 102.35(a)(10), provides that administrative law judges shall have 

authority “to make and file decisions, including bench decisions delivered within 72 hours after 

conclusion of oral argument, in conformity with Public Law 89–554, 5 U.S.C. § 557.”  This 

procedure has received court approval. See NLRB v. Beverly Manor Nursing Home, 174 F.3d 

13, 35 (1st Cir. 1999), enfg. 325 NLRB 598 (1998).

§ 12–620  Deciding to Issue Bench Decision

Whether to issue a bench decision is within the informed discretion of the trial judge. 

However, bench decisions should not be issued in complex cases. Des Moines Register and 

Tribune Co., 339 NLRB 1035, 1035 fn. 1 (2003), petition for review denied, 381 F.3d 767 (8th 

Cir. 2004) (Board cautioned that judges should not issue bench decisions in complex cases, but 

should invite briefs and conduct a more thorough analysis in a written decision). Rather, they 

should be rendered only in those cases that “turn on a very straightforward credibility issue; cases 

involving one day [trials]; cases involving a well settled legal issue when there is no dispute [over] 

the facts; short single issue cases; or cases in which a party defaults by not appearing at the 

[trial]. . . . [I]n more complex cases, including cases with lengthy records, [bench decisions] would 

likely not be appropriate.” Proposed Board Guidelines on Bench Decisions, 59 Fed. Reg. 65, 

942–965, 943 (Dec. 22, 1994), adopted as a final rule, 61 Fed. Reg. 6941 (1996), codified as 29 

CFR §102.35. 

As indicated above, the judge should put the parties on notice as soon as practicable that 

a bench decision is contemplated and that oral argument instead of post­trial briefs will be 

required. Thus, if possible, the judge should notify the parties at the opening of the trial, or even 

before at the pretrial telephone conference, that a bench decision will be rendered. However, 

there may be circumstances where later notice is appropriate. See Beverly Manor, above, 174 

F.3d at 36 (approving mid­trial notice where the determination and announcement to the parties 

had been made by the judge as soon as practicable as the case evolved).

§ 12–630  Procedures for Issuance of Bench Decisions

Oral argument should be heard following the presentation of all evidence. The parties may 

request a brief time to outline and finalize their oral argument. 

The judge’s bench decision is delivered orally on the record. Under Board’s Rules, 

Section 102.35(a)(10), the decision may be issued up to 72 hours after the conclusion of oral 

argument. See E­Z Recycling, 331 NLRB 950, 950 fn. 1 (2000). However, the decision should 

ordinarily be delivered immediately following oral argument. 

The court reporter prepares the transcript of the proceedings, including the transcription of 

the orally delivered bench decision. Board’s Rules, Section 102.45, provides, in part: 

If the administrative law judge delivers a bench decision, promptly upon receiving the 

transcript the judge shall certify the accuracy of the pages of the transcript containing the 

decision; file with the Board a certified copy of those pages, together with any 

supplementary matter the judge may deem necessary to complete the decision; and 

cause a copy . . . to be served on each of the parties. Upon the filing of the decision, the 

Board shall enter an order transferring the case to the Board and shall serve copies of the
CHAPTER 12. ORAL ARGUMENT, BRIEFS, JUDGES DECISIONS 

96 

order, setting forth the date of [the] transfer, on all the parties. Service of the 

administrative law judge's decision and of the order transferring the case to the Board 

shall be complete upon mailing. 

The judge should be very attentive to the time restrictions of these provisions and comply 

with them. 

The certification may include corrections of the transcript. Although the judge should avoid 

wholesale revision of the oral decision, some correction or clarification of the decision is also 

permitted. In addition, if the judge concludes in reviewing the transcript that the oral decision was 

inadequate, the certification process provides opportunity for inclusion of “supplementary matter 

the judge may deem necessary to complete the decision.” Thus, the certification process may be 

utilized as necessary to eliminate faults or inadequacies in the oral decision. For example, the 

certification might include a formal order and notice that had been described only in summary 

fashion in the oral decision, or may include omitted case citations. 

Judges must always be mindful of the potential for errors in bench decisions. Transcripts 

of bench decisions often contain numerous and critical typographical errors. The errors 

necessitate substantial corrections. To eliminate the need for extensive corrections, judges have 

made their prepared remarks a record exhibit or have provided the court reporter a copy of their 

remarks for guidance. 

Under Board’s Rules, Section 102.46, the time for filing exceptions to a bench decision 

runs from the date of service of the order transferring the case to the Board. Thus, the date of the 

transfer shown on the Order Transferring the Case to the Board (which accompanies the judge’s 

certification of the bench decision and supplement)—not the date of oral delivery of the bench 

decision—controls the submission of exceptions to the bench decision.

§ 12–640  Contents of Bench Decision

The bench decision itself should contain all the elements that would appear in a regular 

written decision, including appropriate credibility determinations, necessary findings of fact and 

conclusions of law, and adequate rationale on all relevant issues. Every effort should be made to 

render the decision complete and unabbreviated. The Board will remand bench decisions that do 

not make necessary findings of fact and conclusions of law, do not properly deal with relevant 

contested testimony or other evidence, or fail to consider the contentions of the parties or present 

sufficient legal analysis. See, e.g., Dynatron/Bondo Corp., 326 NLRB 1170, 1170 (1998).
97

CHAPTER 13. EVIDENCE 

§ 13–100  Applicable Rules of Evidence, in General

“Any [unfair labor practice] proceeding shall, so far as practicable, be conducted in 

accordance with the rules of evidence applicable in the district courts of the United States.” 

Section 10(b) of the Act, 29 U.S.C. § 160(b) and Board’s Rules, Section 102.39.

§ 13–101  So Far as Practicable

The Board's position is that it is not required to apply the Federal Rules of Evidence (FRE) 

strictly. International Business Systems, 258 NLRB 181, 181 fn. 5 (1981), enfd. mem. 659 F.2d 

1069 (3d Cir. 1981). In general, the courts agree. NLRB v. Augusta Bakery Corp., 957 F.2d 

1467, 1479 (7th Cir. 1992) (dictum, but cases cited). But not always. See NLRB v. United 

Sanitation Service, 737 F.2d 936, 940–941 (11th Cir. 1984) (finding error in the receipt of a 

Board affidavit of alleged discriminatee who had died before trial). 

The Board is not bound by state rules of evidence. R. Sabee Co., 351 NLRB 1350, 1350 

fn. 3 (2007). See also §13–214, “Dead Man’s Statutes,” below.

§ 13–102  Taut Record

Ideally, the judge will receive evidence that is competent, relevant, and material, and 

exclude that which is not, resulting in a “taut” record. However, the judge may be presented with 

circumstances where the evidence is relevant but could result in significant delay in the trial. In 

these circumstances, the judge should refer to FRE 403, “Exclusion of Relevant Evidence on 

Grounds of Prejudice, Confusion, or Waste of Time.” The rule reads, in part: 

Although relevant, evidence may be excluded if its probative value is substantially 

outweighed by . . . confusion of the issues . . . or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence. 

FRE 403 creates a balancing test, and necessarily involves the exercise of discretion. 

Although the rule generally favors admission, evidence that has scant probative value may be 

excluded under the rule. See 22 Wright & Gold, Fed. Prac. & Proc. Evid. § 5214 (1st Ed. 2009); 

and Goode and Wellborne, Courtroom Handbook on Federal Evidence, pp. 257–261 (West 

2008). 

For cases upholding the judge’s exercise of discretion, see, e.g., J.S. Troupe Electric, 

Inc., 344 NLRB 1009, 1010 (2005) (Board cited both FRE 403 and FRE 608(b) in upholding 

judge’s exclusion of primary and secondary evidence of alleged discriminatee’s false claim for 

unemployment or workers compensation benefits, notwithstanding that the judge broadly credited 

the discriminatee); Dickens, Inc., 355 NLRB No. 44, slip op. at 4 (2010) (judge properly 

exercised discretion in terminating unrepresented respondent’s cross­examination, directing him 

to present his own testimony at that time, and subsequently cutting off his narrative testimony 

after several hours); University Medical Center, 335 NLRB 1318, 1318 fn. 1 & 1342–1343 

(2001), enfd. in part 335 F.3d 1079 (D.C. Cir. 2003) (upholding judge’s imposition of time limits on 

presentation of respondent’s case); Teamsters Local 122 (August A. Busch & Co. of 

Massachusetts), 334 NLRB 1190, 1193, and 1255 (2001) (same; also ordering litigation costs 

for delaying trial); and NLRB v. Champa Linen Service, 324 F.2d 28, 30 (10th Cir. 1963)
CHAPTER 13. EVIDENCE 

98 

(endorsing the judge’s refusal to permit cross­examination of truth of a statement, which was 

alleged to be a Section 8(a)(1) violation, that union official “stole a million dollars”). 

See also §2–300, “Duties of Administrative Law Judges,” above, for basic duty to “inquire 

fully into the facts.”

§ 13–104  Background Evidence 

§ 13–105  Admissible to Show Motive

It is well established that evidence of events occurring more than 6 months before the 

charge “may be considered as background to shed light on a respondent’s motivation for conduct 

within the 10(b) period.” Grimmway Farms, 314 NLRB 73, 73–74 (1994), enfd. in part mem. 85 

F.3d 637 (9th Cir. 1996) (walkout over 6 months earlier considered . . . to give meaning to 

statement made within 6 months). See also § 3–620, “Not a Rule of Evidence,” above, regarding 

admission of evidence concerning events outside the Section 10(b) period.

§ 13–106  Presettlement Conduct

Under well­established Board law, presettlement conduct may properly be considered as 

background evidence to establish the motive for the Respondent’s postsettlement conduct. Host 

International, 290 NLRB 442, 442 (1988). 

For example, in Monongahela Power Co., 324 NLRB 214, 214–215 (1997), the Board 

held that, in determining whether settlements of alleged discrimination had been breached by the 

postsettlement suspension and reassignment of two union supporters, the judge could consider 

evidence of presettlement statements by the respondent reflecting union animus, as “shedding 

light” on the respondent’s motivation. The Board cited its decision in Special Mine Services, 308 

NLRB 711, 711, 720–721 (1992), enfd. in part 11 F.3d 88 (7th Cir. 1993), in which it agreed with 

the judge that the respondent’s presettlement conduct evidenced “strong union animus” for the 

allegedly unlawful subcontracting. 

The presettlement conduct can be used to show motive even without a reservation­of­ 

rights clause in the settlement. See St. Mary’s Nursing Home, 342 NLRB 979, 979–980 (2004), 

affd. 240 Fed. Appx. 8, 12–13 (6th Cir. 2007). Further, if the settlement agreement does 

specifically reserve the General Counsel’s right to use the evidence obtained in the settled case 

for any purpose in the litigation of any other case, the General Counsel may present that 

evidence, and the Board may make findings and conclusions thereon, in a subsequent case. 

Thus, in Outdoor Venture Corp., 327 NLRB 706, 708–709 (1999), the Board held that the 

settled conduct in a prior case could be used to establish that a strike was prolonged by unfair 

labor practices and thereby converted to an unfair labor practice strike. 

Normally, evidence of settlement discussions is inadmissible to prove or disprove liability 

under FRE 408, but not if the evidence is used for other legitimate purposes. See §13–245, 

“Settlement Discussions,” below.

§ 13–107  Section 8(c) and Union Animus

To show animus, the General Counsel may offer unalleged statements (made either 

beyond or within the 6­month limitation period) indicating opposition to unionization. The Board 

relies on such statements on the issue of motivation, notwithstanding Section 8(c) of the Act. See
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99

Sunshine Piping, Inc., 351 NLRB 1371 (2007); Tejas Electrical Services, 338 NLRB 416, 417 

(2002); Tim Foley Plumbing Services, 337 NLRB 328, 329 (2001); and Stoody Co., 312 NLRB 

1175, 1176–1177, 1182 (1993). 

Some courts of appeals have disagreed with the Board’s reliance on such statements. 

See cases listed in Tim Foley Plumbing Services, above, at fn. 5; and Norton Audubon 

Hospital, 338 NLRB 320, 320 fn. 1 (2002). However, NLRB judges are bound to apply 

established Board law. See §11–300, above.

§ 13–108  Judicial or Official Notice

Under FRE 201, adjudicative facts that are not subject to reasonable dispute may be 

given judicial notice (sometimes referred to “official” or “administrative” notice)  at any stage of the 

proceedings, with or without a request by one of the parties. 

For Board cases approving of taking judicial notice, see E & I Specialists, 349 NLRB 446, 

455 (2007) (Rand McNally publication showing distances between cities); Rhee Brothers, Inc.,  343 NLRB 695, 697–698 fn. 5 (2004) ( the week date of a given calendar date); Amptech, Inc.,  342 NLRB 1131, 1146 (2004), enfd. 165 Fed. Appx. 435 (2006) (the general impact of historical 

events such as September 11); Mimbres Memorial Hospital & Nursing Home, 342 NLRB 398, 

403 fn. 14 (2004), enfd. 483 F.3d 683 (2007) (requirements mandated by state statutes). 

See also Metro Demolition Co., 348 NLRB 272, 272 fn. 3 (2006) (Board may take 

administrative notice of its own proceedings); and Drummond Coal Co., 277 NLRB 1618, 1618 

fn. 1 (1986) (after due notice, Board took official notice of an arbitral award issued after close of 

hearing, despite party’s objection). 

Courts also sometimes take notice of official documents. See Johnson v. Morgenthau,  160 F.3d 897, 898 (2d Cir. 1998) (notice taken of a party’s death when a copy of the death 

certificate is furnished to the court). But see American Stores Co. v. C.I.R., 170 F.3d 1267, 1270 

(10th Cir. 1999), cert. denied 528 U.S. 875 (1999) (no official notice taken of various IRS 

documents).

§ 13–109  NLRB Decisions

The Board may rely on findings and evidence in an earlier case as background in a 

subsequent case against the same respondent. Stark Electric, Inc., 327 NLRB 518, 518 fn. 1 

(1999). See also Planned Building Services, Inc., 347 NLRB 670, 670 fn. 2 (2006) (Board 

affirmed that judge could rely, at least in part, on prior cases involving the same respondent to 

find animus in the present case); and Success Village Apartments, Inc., 348 NLRB 579, 579 fn. 

4 (2006) (same). See also §11–300 to §11–330, above.

§ 13–110  State Unemployment Decisions

The Board receives in evidence and considers decisions in State unemployment 

compensation proceedings, but does not give the decisions controlling weight on unfair labor 

practice issues. See Cardiovascular Consultants of Nevada, 323 NLRB 67, 67 fn. 1 (1997) 

(reversing the judge, the Board received State unemployment compensation decision because 

established Board law holds them to be admissible but not controlling); and Whitesville Mill 

Service Co., 307 NLRB 937, 945 fn. 6 (1992) (the decision of the State agency that the 

employee was not fired for union activities was considered but found not to be persuasive
CHAPTER 13. EVIDENCE 

100 

because, at the State hearing, the plant manager refused to answer questions concerning his 

knowledge of union activity).

§ 13–111  Offers of Proof 

§ 13–112  In General

When the judge sustains an objection to a question propounded to a witness, the 

proponent may make an offer of proof to show the substance of the excluded evidence. FRE 

103(a)(2). Counsel normally makes a narrative offer by stating what the witness would testify if 

permitted to answer. See NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1479–1480 (7th Cir. 

1992). 

The judge may also direct that the offer be made by questions and answers (Q and A). 

FRE 103(b). See, e.g., Smithfield Packing Co., 344 NLRB 1, 13–14 and fn. 60 (2004), enfd. 447 

F.3d 821 (D.C. Cir. 2006) (judge properly permitted testimonial offer of proof with respect to 

communications between respondent’s former manager and respondent’s attorney regarding the 

preparation of manager’s affidavit, specifically as to whether manager gave a false affidavit to the 

respondent’s attorney and whether the attorney knew it was false, in order to determine whether 

the evidence came within crime fraud exception to attorney/client privilege). 

On the request of a party, documents offered as part of a rejected offer of proof should be 

placed in the rejected exhibits file. Crown Corrugated Container, Inc., 123 NLRB 318, 320 

(1959).

§ 13–113  During Examination of Adverse Witness

If the offer of proof is made on cross­examination, or on direct examination of an adverse 

witness, the judge may inquire of counsel (usually outside the presence of the witness) regarding 

the basis for anticipating a particular answer. The judge will then be in a position to determine 

whether an offer of proof is genuine or a mere “fishing expedition.” See generally Beacon 

Electric Co., 350 NLRB 238, 254 (2007), where the judge did not permit such an inquiry because 

respondent’s attorney was unable to show relevance.

§ 13–114  Narrative or Q and A Offers of Proof

The Q & A procedure can be useful if the judge is doubtful about his or her ruling. 

Sometimes the Qs & As will suggest that a different ruling should be made. In that event, the 

evidence will already be in the record if the judge reverses himself or is later reversed by the 

Board. For an example of a judge permitting an offer of proof in question and answer form, see

Metropolitan Transportation Services, 351 NLRB 657, 670 (2007). 

However, the negatives associated with a Q & A offer of proof usually outweigh the 

benefits. First, it will usually take more time than a simple narrative and the record may be 

unnecessarily expanded. Second, the parties are likely to be encouraged to litigate a “shadow” 

record through a series of offers of proof. The opponent will then seek to make offers rebutting 

the other party’s offers of proof, arguing that the judge should allow the rebuttal offers so that the 

Board can see that there is no merit to the offers of the proponent. See, e.g., Smithfield 

Packing, above, 344 NLRB at 186.
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§ 13–115  Waiver of Objection to Offer of Proof

If a party opposing the offer of proof later enters the same area as covered by the offer of 

proof, the objection is considered waived and the proffered matter may be considered as 

evidence. Goski Trucking Corp., 325 NLRB 1032, 1032 (1998) (charging party, in the absence 

of an objection from the General Counsel, crossed­examined witness on same subject addressed 

in the respondent’s offer of proof).

§ 13–200  Hearsay 

§ 13–201  In General

Hearsay rules are contained in FRE 801–807. As with other rules of evidence, the Board 

applies these rules “so far as practicable.” See §13–100, “Applicable Rules of Evidence, in 

General,” above. 

However, like other administrative agencies, the Board does “not invoke a technical rule of 

exclusion but admit[s] hearsay evidence and give[s] it such weight as its inherent quality justifies.”

Midland Hilton & Towers, 324 NLRB 1141, 1141 fn. 1 (1997), citing Alvin J. Bart & Co., 236 

NLRB 242, 242 (1978), enf. denied on other grounds 598 F.2d 1267 (2d Cir. 1979). Thus, 

hearsay evidence may be admitted “if rationally probative in force and if corroborated by 

something more than the slightest amount of other evidence.” Ibid., citing RJR Communications, 

Inc., 248 NLRB 920, 921 (1980). See also RC Aluminum Industries, Inc., 343 NLRB 939, 940 

(2004) (affirming judge’s ruling admitting corroborated hearsay). But cf. NLRB v. First Termite 

Control Co., 646 F.2d 424 (9th Cir. 1981) (holding that the evidence supporting legal jurisdiction 

was hearsay and remanding the case to the Board). 

In general, the judge should exercise informed caution before receiving hearsay unless it 

has the appearance of being reliable, probative evidence or is corroborated by other evidence. 

Admissibility, therefore, ought to be governed generally by the same basic considerations as 

evidence in general: On balance, what is the necessity of the evidence and its probative value, as 

compared with the possibilities of prejudice, inconvenience, and error resulting from its 

admission? This will usually be a matter of individual judgment in light of the particular 

circumstances.

§ 13–202  Double Hearsay Excluded

The Board upheld the judge’s exclusion of double hearsay in T.L.C. St. Petersburg, 307 

NLRB 605, 605 (1992), affd. mem. 985 F.2d 579 (11th Cir. 1993) (judge properly accorded no 

weight to twice­removed hearsay). See also Auto Workers Local 651 (General Motors), 331 

NLRB 479, 481 (2000) (Board held that an employee’s uncorroborated testimony that a second 

employee told her that he heard a supervisor called her a “voodoo sister” was unreliable hearsay 

and that it did not support a finding that the supervisor was in fact hostile to her). Compare

Kamtech, Inc., 333 NLRB 242, 242 fn. 4 (2001) (purported “double hearsay” admissible as 

admission of a party).

§ 13–203  Admissible if Corroborated

The Board held that the judge should have admitted corroborated hearsay in Dauman 

Pallet, Inc., 314 NLRB 185, 186 (1994) (overturning judge's exclusion of corroborated hearsay 

and according it weight). See also RC Aluminum Industries, above, 343 NLRB at 940 (affirming
CHAPTER 13. EVIDENCE 

102 

judge’s ruling admitting corroborated hearsay); and Meyers Transport of New York, 338 NLRB 

958, 968–969 (2003) (unobjected to and corroborated hearsay is admissible and may be used as 

basis for findings of fact).

§ 13–204  Exceptions to Hearsay Rules

Hearsay is also admissible under familiar exceptions set forth in FRE 803 and 804. 

Helpful guidance in applying these rules can be found in the notes and comments accompanying 

the rules.

§ 13–205  Notice Not Required

“The Board does not require adherence to the [Federal Rules of Evidence] requirement 

that the proponent of a hearsay statement make known to the adverse party, with a fair 

opportunity to prepare to meet it, of the intention to offer the statement, and the particulars of it, 

including the name and address of the declarant.” Sheet Metal Workers Local 28 (Borella 

Bros.), 323 NLRB 207, 209 fn. 2 (1997). [Note: the notice requirement was previously set forth in 

FRE 803(24), but is now contained only in FRE 807, the “Residual Exception”]. 

The judge, however, may exercise his or her discretion to impose a notice requirement in 

circumstances indicating that a lack of some notice will prejudice the adverse party or prolong the 

trial.

§ 13–206  Affidavits

It is well established that “a party may use an affidavit to refresh a witness’ recollection, to 

rehabilitate a witness’ direct examination testimony on cross­examination, or to prove a witness’ 

prior statements when a witness’ testimony at hearing differs from that witness’s affidavit.” W & M 

Properties of Connecticut, Inc., 348 NLRB 162, 162 (2006), enfd. 514 F.3d 1341 (D.C. Cir. 

2008). 

The following sections address the use of affidavits as substantive evidence under the 

hearsay rules. See also §13–240, “Admissions”; §13–612, “Refreshing Recollection”; §13–613

“Past Recollection Recorded”; §13–706 “Inconsistent Prior Statements”; and §3–800 et seq., 

“Release of Witness Statements”, below. 

§ 13–207  In General

Unless used to impeach or establish admissions of a party (discussed in other sections 

listed above), affidavits generally are received substantively only if the declarant is deceased or 

“unavailable,” or the taking of testimony poses a threat to the health of the witness. This is 

because there is no opportunity for the opponent to cross­examine or the judge to observe 

demeanor. Weco Cleaning Specialists, 308 NLRB 310, 311 fn. 7, 314–315 (1992); and

Colonna’s Shipyard, 293 NLRB 136, 143 fn. 2 (1989), enfd. mem. 900 F.2d 250 (4th Cir. 1990). 

See also §13–214, “Dead Man’s Statutes,” below, discussing the Board’s policy (contrary to the 

“Dead Man’s” statutes of some States) admitting statements attributed to deceased persons or 

those too ill to testify. See also Board’s Classified Index code numbers 737–8401–8400, 

“Affidavit of decedent,” and 737–8401–8500, “Affidavit of unavailable or hostile witness.”
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103

§ 13–208  Declarant Deceased

For a Board case involving a deceased declarant, see Weco Cleaning Specialists,  above, 308 NLRB at 311 fn. 7, 314–315. In that case, the Board affirmed the judge's receipt in 

evidence of an affidavit of a deceased company agent—taken by the union's attorney, a former 

Board lawyer—because the affidavit was corroborated by other evidence. But the Board attached 

less weight to the affidavit than did the judge.

§ 13–209  Declarant Unavailable

See FRE 804 regarding examples of unavailability. For Board cases, see Park 

Maintenance, 348 NLRB 1373, 1373 fn. 2 (2006) (Board reversed judge’s ruling admitting 

affidavits in the absence of a showing that the affiants were unavailable to testify, but found that 

the ruling constituted harmless error because the judge discredited the statements in the 

affidavit); and Marine Engineers District 1 (Dutra Construction), 312 NLRB 55, 55 (1993) 

(Board held that the judge properly struck the non­Board affidavit of a nonappearing witness, 

offered in support of an affirmative defense, as the proponent did not allege that the affiant was 

unavailable to testify). 

For a case involving a frightened witness, see Three Sisters Sportswear Co., 312 NLRB 

853, 865 (1993), enfd. mem. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996). In 

that case, the pretrial affidavit of a frightened witness (a current employee), who claimed not to 

remember anything about her affidavit other than her signature, was received in evidence as past 

recollection recorded under FRE 803(5).

§ 13–210  Of Recanting Witness

The judge has considerable discretion, under the Act’s guidance to apply the Federal 

Rules of Evidence “so far as practicable,” to rely on hearsay evidence as substantive evidence, 

where corroborated, to allay concerns over witness intimidation. See Conley Trucking v. NLRB, 520 F.3d 629 (6th Cir. 2008), enfg. 349 NLRB 308, 309–313 (2007) (upholding, as an “exemplary 

application” of the above principles, the judge’s admission into evidence of the pretrial affidavits of 

a recanting witness and his reliance on the affidavits as credited substantive evidence where 

corroborated). 

For a case involving a posthearing recanting affidavit, see Southdown Care Center, 313 

NLRB 1114, 1114–1115, 1118 (1994). In that case, the Board remanded for consideration of the 

posthearing recanting affidavit of a major witness indicating that most of her testimony in the trial 

was false. On remand the judge, disbelieving the recanting version, reaffirmed his original 

findings, which the Board adopted.

§ 13–211  Bargaining Notes

Generally, bargaining notes are admissible if made at or soon after bargaining sessions 

and authenticated by the sponsoring witness. Pacific Coast Metal Trades Council (Lockheed 

Shipbuilding), 282 NLRB 239, 239 fn. 2 (1986); Allis­Chalmers Mfg. Co., 179 NLRB 1, 2 fn. 9 

(1969); and NLRB v. Tex­Tan, Inc., 318 F.2d 472, 483 (5th Cir. 1963). In some cases the parties 

will stipulate to the receipt of the bargaining summaries of one or more parties, with the 

qualification that all parties are free to contest any entry and to advance their own version of the 

meetings. See Formosa Plastics Corp., Louisiana, 320 NLRB 631, 641 (1996).
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§ 13–212  Newspaper/Television Reports

Newspaper articles and job advertisements are self­authenticating. FRE 902(6). Self­  authenticating documents, however, are not necessarily admissible. See, for example, Sheet 

Metal Workers Local 15, 346 NLRB 199, 202 (2006), enf. denied on other grounds, 491 F.3d 

429 (D.C. Cir. 2007) (newspaper article’s quotation of a CEO excluded as hearsay). See also B. 

N. Beard Co., 248 NLRB 198, 199 fn. 9 (1980) (Board avoided the hearsay problem of an article 

quoting respondent’s president by disregarding the quote and instead considering only the 

newspaper reporter’s credited testimony describing what the president told him). 

See also Dorothy Shamrock Coal Co., 279 NLRB 1298, 1298 fn. 1 (1986), enfd. 833 

F.2d 1263 (7th Cir. 1987), where the judge excluded a newspaper article about increased 

reliance on leased drivers in the financially troubled trucking industry. The Board affirmed 

because the article was published after the employer laid off its drivers, and therefore, the article 

played no part in the employer's layoff decision. 

Television interviews may require different treatment. TV videotapes are not listed in FRE 

902 as self­authenticating. Questions are more likely to arise over the integrity of a TV news clip 

(has it been edited?) than whether a page from a newspaper is a forgery. In addition, once a TV 

videotape has been authenticated, it helps if the parties agree on a transcript of the text of the 

remarks, by speaker, shown on the TV videotape. Any remarks on the videotape of an absent 

witness possibly could be admissible under the “unavailability” exception in FRE 804.

§ 13–213  Market Quotations, Directories

A specific hearsay exception is provided for “Market quotations, tabulations, lists, 

directories, or other published compilations that are generally used and relied upon by the public 

or by persons in particular occupations.” FRE 803(17). A single article (or even a series of 

articles) in a general­interest newspaper may not satisfy that rule.

§ 13–214  “Dead Man’s” Statutes

Because unfair labor practice proceedings before the Board derive substantively and 

procedurally from a Federal statute, State law does not supply the “rule of decision” under FRE 

601. Accordingly, the Board is not bound to apply State “Dead Man’s” statutes excluding 

“statements attributed to deceased persons or those too ill to testify.” West Texas Utilities, 94 

NLRB 1638, 1639 fn. 3 (1951), enfd. 195 F.2d 519 (5th Cir. 1952); Quarles Mfg. Co., 83 NLRB 

697, 699 fn. 8 (1949), remanded 190 F.2d 82 (5th Cir. 1951) (on request of Board for vacating 

order and dismissing complaint). 

However, the Board subjects such a statement to “the closest scrutiny before deciding 

what weight to give it.” West Texas Utilities, above, 94 NLRB at 1639. See also Ann’s 

Laundry, 276 NLRB 269, 270 fn. 3 (1985) (same).

§ 13–215  Position Letters or Statements

A respondent’s position statement, submitted by its attorney, is admissible in evidence as 

an admission by a party­opponent under FRE 801(d)(2), even if submitted by the respondent’s 

former counsel. See United Scrap Metal, Inc., 344 NLRB 467, 467–468 and fn. 5 (2005); and

Optica Lee Borinquen, 307 NLRB 705 fn. 6 (1992), enfd. 991 F.2d 786 (1st Cir. 1993) (Table). 

See also §13–243, “Admissions by Attorney/Position Statements,” below.
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105

§ 13–216  Recordings 

§ 13–217  Tape Recording (Audio/Video) Made Secretly

General Rule. Tape recordings are generally admissible in Board proceedings, even if 

made without the knowledge or consent of a party to the conversation, and even if the taping 

violates State law. Times Herald Record, 334 NLRB 350, 354 (2001), enfd. 27 Fed. Appx. 64 

(2d Cir. 2001); Williamhouse of California, Inc., 317 NLRB 699, 699 fn. 1 and JD fn. 2 (1995); 

and Wellstream Corp., 313 NLRB 698, 711 (1994). 

A different result possibly might obtain if the Federal wiretapping statute were violated: 

that is, if the recording was secretly made in conjunction with the interception of a telephone 

conversation between two or more other parties. But the interception of a conversation over a 

cordless telephone’s radio wave has been held not to violate the Federal wiretapping law. In re 

Askin, 47 F.3d 100, 102–104 (4th Cir. 1995), cert. denied, 516 U.S. 944 (1995). And a 

supervisor’s remarks during a cordless phone conversation, picked up by the discriminatee’s 

“police” scanner and recorded by the discriminatee, provided evidence of animus in Scientific 

Ecology Group, 317 NLRB 1259, 1259, 1261 (1995). 

Tape recording issues frequently arise when an employee has secretly taped remarks of a 

manager made during a meeting or conference held on the jobsite. In McAllister Bros., 278 

NLRB 601, 601 fn. 2 (1986), enfd. 819 F.2d 439 (4th Cir. 1987), the Board expressly disavowed a 

statement by the judge that the Board historically has taken a dim view of personnel who tape­ 

record meetings with their employer. Indeed, citing cases, the Board stated that it “has sometimes 

found tape recordings of employee meetings to be the best evidence of what was said.” Ibid. 

Such conduct, however, is not a basis to discredit the individual who made the recording. 

See Fleming Companies, 336 NLRB 192, 192 fn. 2 (2001), enfd. in part, 349 F.3d 968 (7th Cir. 

2003) (Board stated that a witness’s surreptitious taping of a conversation with management 

representatives is not a basis for discrediting the witness’s testimony). However, it may be 

grounds for employer discipline. See Opryland Hotel, 323 NLRB 723, 723 fn. 3 (1997) (Board 

implied that if the employer's preexisting practice had been to prohibit employees from using or 

possessing tape recorders at work, and to discharge those violating the rule, then no backpay 

liability would attach from the time the employer discovered the violation). 

Collective­Bargaining Exception. As a policy matter, the Board excludes secret tape 

recordings of negotiations, because they “would inhibit severely the willingness of parties to 

express themselves freely.” Carpenter Sprinkler Corp., 238 NLRB 974, 974–975 (1978), affd. in 

relevant part, 605 F.2d 60, 65–66 (2d Cir. 1979). 

Authentication. Proper authentication of a tape means, in part, that any editing must be 

explained by someone with knowledge of the editing. In Medite of New Mexico, Inc., 314 NLRB 

1145, 1146 fn. 7 (1994), enfd. 72 F.3d 780, 787 (10th Cir. 1995), the Board affirmed the judge 

who excluded edited videotape taken by a guard, because the guard did not do the editing and 

could not describe what was edited. 

Defects in Recording. The tapes in many of our cases are of less than perfect quality, 

some words or passages being garbled or inaudible. Unless the defects are so substantial that 

they render the entire recording untrustworthy, any defects go to weight, not to admissibility. See

U.S. v. Parks, 100 F.3d 1300, 1305 and fn. 2 (7th Cir. 1996).
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106 

NOTE. Often the best way to receive evidence of a tape recording is to obtain a stipulation 

of a written transcript for receipt in evidence, along with the tape if requested.

§ 13–218  Tape Recording Obtained by Subpoena

In Delta Mechanical, Inc., 323 NLRB 76, 77 (1997), the Board held that a 

contemporaneous statement captured on a tape recording or videotape at a substantive event 

(union organizers applying for jobs) is not a Jencks statement because it is not a description of a 

past event. Instead, it is direct evidence because it is part of the substantive event itself. Thus, it 

is subject to a subpoena. See also Leisure Knoll Assn., 327 NLRB 470, 470 fn. 1 (1999). And, 

of course, it is, under proper circumstances, admissible as evidence. See also §8–500 and §8–

510, above.

§ 13–219  Opinion Testimony by Lay Witness

FRE 701, Opinion Testimony by Lay Witnesses, allows a lay witness to give an opinion or 

inference only if: “(a) rationally based on the perception of the witness, (b) helpful to a clear 

understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based 

on scientific, technical, or other specialized knowledge within the scope of Rule 702.” See also

§13–401, below, regarding employee subjective or opinion testimony about alleged 8(a)(1) 

statements.

§ 13–220  Expert Witness Testimony, In General

FRE 702, Testimony by Experts, sets forth the criteria for receiving an expert’s opinion. 

The judge must be satisfied that the expert is qualified, the subject matter is appropriate for 

expert testimony, and the expert testimony will assist in deciding the case. In addition, the 

testimony should be “based upon sufficient facts or data” and “the product of reliable principles 

and methods,” and the witness should have “applied the principles and methods reliably to the 

facts of the case.” 

For examples where Rule 702 has been applied in Board proceedings, see the judge’s 

decision in Fluor Daniel, Inc., 350 NLRB 702, 713 (2007) and cases cited there.

§ 13–221  Appropriateness of Expert Testimony

Under FRE 704, expert testimony is not inadmissible simply “because it embraces an 

ultimate issue to be decided by the trier of fact.” However, to be admitted, the testimony must still 

satisfy the standards set forth in Rule 702 (as well as 403). See also cases cited in §13–222,  below. 

But expert opinions on ultimate legal issues are properly excluded as within the exclusive 

province of the judge and Board. See generally Nationwide Transport Finance v. Cass 

Information, 523 F.3d 1051, 1058 (9th Cir. 2008) (expert testimony on ultimate legal issues 

inadmissible). See also Gilson v. Sirmons, 520 F.3d 1196, 1243 (10th Cir. 2008) (expert 

testimony on witness’s credibility inappropriate). 

Thus, the judge in a Board proceeding may exclude an expert opinion on such issues as 

the impact of allegedly objectionable conduct during the critical period before an election, whether 

alleged 8(a)(1) statements would have coerced employees, or whether the statements have 

caused employees to abandon their support of a union.
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§ 13–222  Flawed Premises

Where expert testimony has been received, the judge may disregard it if the premises on 

which the analysis and conclusions rest are flawed. See Raley’s, 348 NLRB 382, 562–563 

(2006) (handwriting expert testifying about signatures based on flawed premises); H. B. Zachry 

Co., 319 NLRB 967, 979–980 (1995), modified on different point, 127 F.3d 1300 (11th Cir. 1997) 

(judge disregarded management professor’s analysis, which was shown to be flawed); Fluor 

Daniel, Inc., 304 NLRB 970, 971 fn. 10, 975, 978, 980 (1991), enfd. mem. 976 F.2d 744 (11th 

Cir. 1992) (judge disregarded the conclusions of a consultant on statistics because he relied on 

flawed assumptions). 

See also Parts Depot, Inc., 348 NLRB 152, 152 fn. 6 (2006) (judge properly refused to 

permit an expert witness to opine in backpay proceeding, based on an analysis of employment 

trends, that employees did not make reasonable efforts to seek interim employment, since Board 

precedent requires consideration of an individual’s particular circumstances rather than just 

probabilities). 

The foregoing rulings are consistent with the Supreme Court's expression in General 

Electric Co. v. Joiner, 522 U.S. 136 (1997) that a “court may conclude that there is simply too 

great an analytical gap between the data and the opinion proffered.”

§ 13–223  Handwriting/Union Authorization Cards

Either the judge or an expert (or both) may compare handwriting and signatures with 

authenticated specimens in order to authenticate union authorization cards.  See FRE 901(b)(3) 

and Parts Depot, Inc., 332 NLRB 670, 674 (2000), enfd. 24 Fed. Appx. 1 (D.C. Cir. 2001) (“[T]he 

Board has long held, consistent with Section 901(b)(3) of the Federal Rules of Evidence, that a 

judge or a handwriting expert may determine the genuineness of signatures on authorization 

cards by comparing them to W–4 forms in the employer’s records” or other employment 

documents). See also Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 105 (D.C. Cir. 

2000), enfd. 328 NLRB 1058, 1059–1060 (1999).

§ 13–224  Prior Notice to Opponent

Prior notice should normally be given by a party intending to use an expert witness at the 

trial so that the opposing party may have time to obtain its own expert. The failure to do so may 

be considered by the judge in ruling on the admissibility of the expert testimony under FRE 403.  See §13–102, above.

§ 13–230  Polygraphs

A polygraph was admitted by the judge and given some, but not controlling, weight in 

assessing credibility in J.C. Penny Co., 172 NLRB 1279 (1968), enfd. in relevant part 416 F.2d 

702, 705 (7th Cir. 1969). Some courts have also accepted such evidence upon stipulation or for 

impeachment or corroboration. See U.S. v. Picciononna, 885 F.2d 1529 (11 th Cir. 1989). See 

also Lee v. Martinez, 136 N.M. 166, 168 (2004) (summarizing treatment of polygraph evidence 

by jurisdiction). 

However, the Board has not directly spoken on the admissibility of evidence concerning 

polygraph tests. Further, it appears that federal appellate courts will uphold a trial court‘s 

discretion to reject such evidence as inadmissible. See U.S. v. Henderson, 409 F.3d 1293, 1303
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(11 th Cir. 2005), cert denied 126 S.Ct. 1331 (2006); and U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 

1999). 

See also Ludlum v. Department of Justice, 87 M.S.P.R. 56, 66 fn. 3 (2000) (Merit 

Systems Protection Board refused to consider agency’s failure to use a polygraph test or the 

employee’s willingness to undergo one as probative, stating that “even if a polygraph examination 

had been conducted, it is not clear that the results would be admissible or probative”); and Finley 

Lines Joint Protective Board Unit 200 v. Norfolk Southern Ry., 312 F.3d 943, 947 (8th Cir. 

2002) (upholding the assignment of no weight to polygraph evidence by a public law board).

§ 13–235  Adverse Inferences

The judge may draw an adverse inference when a party fails to produce documents under 

his control, or to call witnesses reasonably assumed to be favorably disposed toward the party. 

See Advocate South Suburban Hospital v. NLRB, 468 F.3d 1038, 1048 and fn. 8 (7th Cir. 

2006); and *Parksite Group, 354 NLRB No. 90, slip op. 5 (2009) (failure of respondent to call its 

manager who evaluated alleged discriminatees for rehire subject to adverse inference; General 

Counsel not required to subpoena manager). Cf. Forsyth Electric Co., 332 NLRB 801, 818 

(2000) (rejecting General Counsel’s request for adverse inference as testimony was not relevant 

and it was not naturally in the respondent’s interest to produce it). 

A party’s failure to explain why it did not call the witness may support drawing the adverse 

inference. See Martin Luther King, Sr. Nursing Center, 231 NLRB 15, 15 fn. 1 (1977) (judge 

properly drew adverse inference in absence of explanation). But see Roosevelt Memorial 

Medical Center, 348 NLRB 1016, 1022 (2006) (judge abused his discretion by drawing adverse 

inference from respondent’s failure to call a manager; circumstances indicated manager was not 

called because his testimony was unnecessary, not because it would have been adverse). 

Conversely, of course, an adverse inference would normally not be appropriate where an 

adequate explanation is provided. 

Bystander employees. Bystander employees are not presumed to be favorably disposed 

toward any party and no adverse inference is drawn against a party for not calling a bystander 

employee. Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), affd. on point, 123 F.3d 

899, 907 (6th Cir. 1997). However, the judge may weigh the General Counsel’s failure to call an 

identified, potentially corroborating bystander as a factor in determining whether the General 

Counsel has established by a preponderance of the evidence that a violation has occurred. C & S 

Distributors, 321 NLRB 404, 404 fn. 2 (1996), citing Queen of the Valley Hospital, 316 NLRB 

721, 721 fn. 1 (1995). 

Former Supervisors. No adverse inference is drawn from the failure of a respondent to call 

a former co­owner, manager, or supervisor when the record does not show it is reasonable to 

assume that the person is favorably disposed toward the respondent. See Goldsmith Motors 

Corp., 310 NLRB 1279, 1279 fn. 1 (1993); and Christie Electric Corp., 284 NLRB 740, 784 fn. 

137 (1987) (declining to draw an adverse inference from the failure to call a former supervisor). 

Failure to Honor Subpoena. See §8–620, “Failure to Produce Documents,” above, 

regarding the drawing of an adverse inference because a party fails to honor a subpoena duces 

tecum and the application of the Bannon Mills rule. See also cases cited under Board Classified 

Index code numbers, 596–7682–3320, 737–4267–2700, and 737–8433–6796. 

Destroyed Evidence. See Akiona v. U.S., 938 F.2d 158, 160–161 (9th Cir. 1991), cert. 

denied 503 U.S. 962 (1992) (“Generally, a trier of fact may draw an adverse inference from the
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109 

destruction of evidence relevant to a case”). But see BP Amoco Chemical—Chocolate Bayou,  351 NLRB 614, 636 (2007) (no inference of unlawful intent drawn from supervisors’ destruction of 

their worksheets used during selection process where respondent had no legal duty to retain the 

records and there was no business or personal reason for the supervisors to keep them).

§ 13–240  Admissions

Statements by a party or its agents are covered by FRE 801(d)(2), Admissions by Party 

Opponent: Statements Which Are Not Hearsay.

§ 13–241  Admissions by Supervisor in Affidavit

Prehearing affidavits given to the General Counsel by supervisors while employed by the 

respondent concerning matters within the scope of employment are nonhearsay admissions 

under FRE 801(d)(2). See Fredericksburg Glass & Mirror, 323 NLRB 165, 175–176 (1997) and 

cases cited there. See also Weco Cleaning Specialists, 308 NLRB 310, 311 fn. 7, 315 (1992) 

(judge admitted and relied on pretrial affidavit given by deceased manager to charging party; 

however, Board found it unnecessary to rely on the affidavit in affirming the judge’s decision). 

With respect to affidavits given by former managers (which would normally fall under FRE 

803 or 804, rather than 801(d)(2)), see Success Village Apartments, Inc., 347 NLRB 1065, 

1065 (2006). In that case, the Board affirmed the judge’s admission of an affidavit of a former 

manager of the respondent taken “ex parte” by the General Counsel after the manager ceased 

working for the respondent. The Board rejected the argument that the affidavit was taken in 

contravention of applicable ethical standards. The former manager testified at the trial and his 

affidavit was turned over to the respondent after his testimony, in accordance with Section 

102.118(b)(1) of the Board’s Rules.

§ 13–242  Statements of Non­Charging Party Witness Not Admission

Affidavits or statements of a noncharging party discriminatee generally are not admissible 

as substantive evidence because he/she is not a “party opponent” under FRE 801(d)(2). See

Performance Friction Corp., 335 NLRB 1117, 1120 fn. 20 (2001); and Vencor Hospital Los 

Angeles, 324 NLRB, 235 fn. 5 (1997). But see §13–210, “Of Recanting Witness,” above.

§ 13–243  Admissions by Attorney/Position Statements

Many cases find attorney statements, both in and out of court, to be admissions. For 

example, it is well­established Board law that a lawyer’s position letter can be received as an 

admission if it contains a statement or statements conflicting with the party’s position. See, e.g.,

Raley’s, 348 NLRB 382, 501–502 (2006); McKenzie Engineering Co., 326 NLRB 473, 485 fn. 6 

(1998); Hogan Masonry, 314 NLRB 332, 333 fn. 1 (1994); and Massillon Community Hospital,  282 NLRB 675, 675 fn. 5 (1987). See also United Technologies Corp., 310 NLRB 1126, 1127 

fn. 1 (1993), enfd. mem. 29 F.3d 621 (2d Cir. 1994) (position letter attached to an unsuccessful 

motion to dismiss the complaint). Indeed, it is reversible error for the judge to refuse to admit into 

evidence such a position paper. Massillon Community Hospital, supra; Florida Steel Co., 235 

NLRB 1010, 1011­1012 (1978); Ablon Poultry & Egg Co., 134 NLRB 827 fn. 1 (1961). 

The rule applies even to position statements previously submitted in representation 

proceedings. See Evergreen America, 348 NLRB 178 (2006), previously discussed in § 8­445, 

“Work Product Privilege,” above. See also Bliss & Laughlin Steel Co., 266 NLRB 1165, 1167 fn.
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110 

2 (1983), enfd. 754 F.2d 229 (7th Cir. 1985). However, it is unclear what, if any, weight the judge 

may give a position statement that has been disavowed by the attorney prior to trial. See Orland 

Park Motor, 333 NLRB 1017 fn. 1 & 1024­1026 (2001). 

Of course, a lawyer’s position letter can also be used to impeach the lawyer’s conflicting 

testimony at the trial. Harowe Servo Controls, Inc., 250 NLRB 958, 1033 (1980). See also

Performance Friction Corp., 335 NLRB 1117, 1149 (2001), describing other ways an attorney 

can make admissions in Board proceedings. 

However, a party may not affirmatively rely on its own assertions in position statements or 

briefs to help establish a point on which it carries the burden of proof. See Cannondale Corp.,  310 NLRB 845, 852 (1993) (attorney’s position letter); Domsey Trading Corp., 310 NLRB 777, 

814 fn. 35 (1993), enfd. 16 F.3d 517 (2d Cir. 1994) (attorney’s letter to the judge in the nature of a 

supplemental brief); Auburn Foundry, 274 NLRB 1317, 1317 fn. 2 (1985), enfd. 791 F.2d 619 

(7th Cir. 1986) (a statement in lawyer’s brief to the judge); and Riverwoods Chappaqua Corp. v. 

Marine Midland Bank, 30 F.3d 339, 343 (2d Cir. 1994) (statement made in the counsel’s 

opening statement).

§ 13–244  Admissions by Employer in Section 8(b)(2) Case

In Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB 95, 98 fn. 4 (1994), the 

Board strongly suggested that a seemingly hearsay statement of a nonparty employer is 

admissible in a Section 8(b)(2) case to show the basis for a discharge. The statement was not 

objected to and there was corroborating evidence.

§ 13–245  Settlement Discussions

FRE 408 prohibits use of offers of settlement or other statements during settlement 

discussions as admissions, but does not prohibit their use other purposes. Thus, for example, 

alleged threats made during informal grievance settlement discussions may be admitted in a 

subsequent NLRB case. Miami Systems Corp., 320 NLRB 71, 71 fn. 2 (1995), modified but 

affirmed on point, Uforma/Shelby Business Forms v. NLRB, 111 F.3d 1284, 1293–1294 (6th 

Cir. 1997). See also R. Sabee Co., 351 NLRB 1350, 1350 fn. 3 (2007) (anti­union statements of 

respondent’s negotiator during mediation of state claims admissible in NLRB proceeding).

§ 13–246  Document in Personnel File

A document in an employee’s personnel file may be received under FRE 801(d)(2) if it 

constitutes an admission against a respondent employer. Laidlaw Transit, Inc., 315 NLRB 509, 

512 (1994) (a memo in an employee's personnel file, signed by the employee’s manager and 

dated 10 days after the discharge, warrants an inference that the document, describing the 

termination interview, was company generated). 

Written warnings (or memos documenting oral warnings), discharge memos, or similar 

documents from personnel files are frequently offered by one or more of the parties. Normally the 

documents are offered for the limited purpose of showing the course of events motivating the 

company's decision to discipline the employee. Usually there is no objection for this limited 

purpose. 

Occasionally a party offers such documents for the truth of the matters asserted in the 

documents. Usually this occurs from a mistaken notion of needing to do so, or sometimes to 

substitute for testimony from a supervisor no longer with the company. The memos and other
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111 

documents may be admissible under FRE 803(6), the hearsay exception applicable to “records of 

regularly conducted activity” (business records). 

However, FRE 803(6) specifically provides for exclusion of such documents if “the source 

of information or the method or circumstances of preparation indicate lack of trustworthiness.” 

Thus, a trial judge is not required to receive a supervisor's memo to an employee’s personnel file 

if the circumstances suggest that the memo may have been prepared because of the “litigation 

potential” of the events at issue. See Pierce v. Atchison Topeka & Santa Fe, 110 F.3d 431, 444 

(7th Cir. 1997 (trial judge excluded memo and the Seventh Circuit refused to “second­guess [that] 

determination”).

§ 13–250  Formal Papers—General Counsel Exhibit 1

Generally, documents contained in General Counsel’s Exhibit 1 (charges, pleadings, 

motions, orders, and other matters that are part of the “record” under Section 102.45(b) of the 

Board’s Rules), should not be relied on as substantive evidence unless they contain an 

admission. For a case where the judge relied on a respondent’s precomplaint position statement, 

which was attached to a motion to dismiss and included in the “record,” apparently as part of GC 

Exh. 1, see United Technologies Corp., 310 NLRB 1126, 1127 fn. 1 (1993).

§ 13–255  Summaries

Summaries of documents are often prepared and offered in evidence in our cases where 

the documents themselves are too voluminous or complicated to be conveniently presented in 

their entirety. Under FRE Rule 1006, such summaries are admissible if the underlying documents 

would be admissible and have been made available to opposing counsel for examination, and a 

proper foundation for the summary is established (usually by the person who prepared the 

summary). 

A party may also offer a summary of documents already in the record. In such 

circumstances, the judge may properly consider whether admission of the summary is warranted 

under FRE 611(a). Other types of summaries or compilations may require evaluation under one 

or more rules, such as FRE 803(5) (recorded recollection) or FRE 803(6) (summaries or 

compilations made at or near the time of the events and kept in the regular course of business). 

Regardless of which type of summary is involved, in evaluating its admissibility and/or 

probative weight, the judge should carefully consider the circumstances under which the 

summary was prepared, and whether it reflects the author’s subjective view or interpretation of 

the underlying information.  See Monfort of Colorado, 298 NLRB 73, 82 fn. 37 (1990).

§ 13–260  Privileges 

§ 13–261  General Rule—FRE 501

As the committee and conference reports on FRE 501 indicate, in civil cases State law on 

privileges chiefly applies in diversity cases, with Federal law applying otherwise. Hence, in unfair 

labor practice trials before the NLRB, Federal law applies. See Quarles Mfg. Co., 83 NLRB 697, 

699 fn. 8 (1949), above, citing Section 10(b) of the Act in declining to apply the Texas “Dead 

Man’s” statute, as discussed in §13–214, above. See also R. Sabee Co., above, 351 NLRB at 

1350 fn. 3, discussed in §13–101 and §13–245, above.
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112 

For a more detailed discussion of privileges, including the attorney­client privilege, the 

work­product privilege, the reporter’s privilege, privileges connected with the production of Board 

files and testimony of Board agents, and the mediator’s privilege, see §8–400 et seq., above, 

dealing with subpoenas. The same principles apply where parties attempt to submit testimony or 

evidence involving the named privileges during the hearing. 

Protective orders may also be appropriate when handling testimony or evidence that may 

call into question confidential information. For a more detailed discussion of protective orders, see

§8–415, above.

§ 13–262  Attorney­Client Privilege

A full discussion of the privilege can be found in §8–420, et seq., above.

§ 13–263  Work Product Privilege

A full discussion of the work product privilege is found in §8–445, above.

§ 13–264  Testimony of a Mediator

As indicated above, a mediator cannot be compelled to testify in Board proceedings. See

§8–460, above. Note also that testimony regarding what a Federal mediator told the respondent’s 

agents “in the course of bargaining” is subject to a hearsay objection if offered for the truth (but 

not if offered for the fact of what was said). See Granite Construction Co., 330 NLRB 205, 210– 

211 fn. 1 (1999).

§ 13–265  Fifth Amendment Claims

There is no deprivation of rights under the Fifth Amendment simply because a civil or 

administrative proceeding goes forward while a criminal proceeding involving the same party is in 

progress. See United States v. White, 589 F.2d. 1283, 1286 (5th Cir. 1979); Diebold v. Civil 

Service Commission of St. Louis County, 611 F.2d 697, 700–701 (1979). “At the 

administrative hearing [the individual] will have a ‘free choice to admit, to deny, or to refuse to 

answer.’ This is full vindication of the Fifth Amendment privilege against self­incrimination.”

Luman v. Tanzler, 411 F.2d 164, 167 (5th Cir. 1969), cert. denied, 396 U.S. 929 (1969). 

In addition, because Board proceedings are not criminal cases (in which witnesses or 

parties may be taken into custody or deprived of their freedom), Board agents have no duty to 

warn charged parties of their constitutional rights. F. J. Buckner Corp. v. NLRB, 401 F.2d 910 

(9th Cir. 1968), cert. denied 393 U.S. 1084 (1969).

§ 13–266  Adverse Inference May Be Drawn

In civil cases, the trier of fact may draw an adverse inference from the invocation of a 

privilege under the Fifth Amendment. Matter of Maurice, 73 F.3d 124, 126 (7th Cir. 1995);

LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389–391 (7th Cir. 1995) (but more is 

required to sustain a judgment); and F.D.I.C. v. Elio, 39 F.3d 1239, 1248 (1st Cir. 1994). See 

also Sunshine Piping, Inc., 351 NLRB 1371, 1378 fn. 28 (2007) (Board relied on supervisor’s 

initial invocation of the Fifth Amendment as evidence that she sincerely believed that she had 

done something wrong).
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§ 13–267  Grant of Immunity

Under Board's Rules, Section 102.31(c), if any party desires to obtain testimony from a 

witness who has claimed a privilege under the Fifth Amendment, the party may request the judge 

to recommend that the Board seek approval from the Attorney General to issue an order requiring 

the witness to testify (under a grant of immunity). Absent such an order, the witness should not be 

asked or permitted to testify about the subject matter of his Fifth Amendment claim. See Domsey 

Trading Corp., 351 NLRB 824, 897 fn. 76 (2007).

§ 13–300  Parol Evidence

Although evidence outside an agreement is inadmissible to vary or contradict its terms, 

extrinsic evidence may be introduced for the purpose of clearing up ambiguities or ascertaining 

“the correct interpretation of the agreement.” Don Lee Distributor, Inc., 322 NLRB 470, 484–485 

(1996), enfd. 145 F.3d 834 (6th Cir. 1998), cert. denied 525 U.S. 1102 (1999). 

Parol evidence is also admissible to show mutual mistake of the parties to a contract.

London v. Grandview Building Assoc., 183 U.S. 308, 341 (1902); Federated American 

Insurance Co., 219 NLRB 200, 203 (1975); and NLRB v. Cook County School Bus, Inc., 283 

F.3d 888, 893 (7th Cir. 2002). See also Contek International, Inc., 344 NLRB 879, 883–884 

(2005) (a unilateral mistake may also be grounds for rescission if it is so obvious as to put the 

other party on notice of the error). 

For a case addressing a respondent’s argument that parol evidence should likewise be 

admitted to show “fraud in the execution” of an agreement, see Sheehy Enterprises, Inc., 353 

NLRB 803 (2009), reaffirmed and incorporated by reference 355 NLRB No. 83 (2010) (Board 

found it unnecessary to decide whether parol evidence is admissible under Board law to prove 

the defense, since, even if the evidence were considered and credited, it failed to establish the 

defense). See also Horizon Group of New England, 347 NLRB 795 (2006) (same).

§ 13–301  Evidence Improperly Obtained

The Board admits allegedly stolen documents unless it is established that an agent of the 

Government acted in collusion with the individual who stole the document. See NLRB v. South 

Bay Daily Breeze, 415 F.2d 360, 363–365 (9th Cir. 1969), cert. denied 397 U.S. 915 (1970) 

(thoroughly discussing the reasons for the policy and upholding it); and Air Line Pilots Assn., 97 

NLRB 929, 933 (1951). See also U.S. v. Janis, 428 U.S. 433 (1976). 

Note that it is not improper for the General Counsel to take the affidavit of a respondent’s 

former manager “ex parte” (i.e. without respondent’s counsel present). See Success Village 

Apartments, Inc., 347 NLRB 1065, 1065 (2006).

§ 13–400  State of Mind 

§ 13–401  As Evidencing Coercion

The test to determine coercion under Section 8(a)(1) is an objective test, not a subjective 

one. See, e.g., Multi­Ad Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 

2001). Thus, testimony about what an employee understood the supervisor's statement to mean 

may not be relied on and is normally not admissible. Miami Systems Corp., 320 NLRB 71, 71 fn.
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114 

4 (1995), enfd. in relevant part and remanded 111 F.3d 1284 (6th Cir. 1997). Compare NLRB v. 

Gissel Packing Co., 395 U.S. 575, 608–609 (1969).

§ 13–403  Evidence Affecting Remedy 

§ 13–405  Instatement of Applicants Denied Employment

In FES, 331 NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the Board issued a 

decision, after oral argument, to “give guidance to all parties litigating refusal­to­hire and refusal­ 

to­consider violations;” specifically “[to make] clear the elements of the violation, the respective 

burdens of the parties, and the stage at which issues are to be litigated.”  The Board adopted the 

framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. 

denied 455 U.S. 989 (1982), in allocating the parties’ respective burdens, but supplemented that 

analysis by requiring the General Counsel to establish additional facts in the hearing on the 

merits. 

The Board in FES also defined what evidence affecting a possible backpay and 

instatement remedy is appropriate at the compliance stage. In cases involving a finding of 

discriminatory refusal to hire, the compliance proceeding is used for “precise calculations for the 

make­whole remedy.”  The compliance proceeding also “may be used to determine which of the 

applicants would have been hired” in cases where the “number of applicants exceeds the number 

of available jobs.” It may also be used in construction industry cases to determine whether “the 

discriminatees would have been transferred to other worksites upon the completion of the project 

at which the unlawful conduct occurred.” FES, 331 NLRB at 14. The compliance proceeding is 

also used to determine whether discriminatees would have been selected for job openings arising 

after the beginning of the hearing on the merits, or for openings arising before the beginning of 

the hearing that the General Counsel neither knew nor should have known about. Id. at 15. 

In refusal­to consider cases, the Board stated that “whether the applicant would have 

been offered that job had he been given nondiscriminatory consideration . . . is appropriately 

determined in the compliance stage.” Id. at 16. 

Note that in Planned Building Services, Inc., 347 NLRB 670, 672 (2006), the Board 

modified the respondent’s burden in the compliance proceeding under FES in cases involving a 

successor employer’s failure to hire. See also W & M Properties of Connecticut, Inc. v. NLRB,  514 F.3d 1341 (D.C. Cir. 2008), affg. 348 NLRB 162 (2006) (upholding Board’s modification).

§ 13–406  Undocumented Workers

Although undocumented workers are employees entitled to exercise their rights under the 

Act, they are not entitled to backpay or reinstatement during the period when they are not 

authorized to be present in the United States. See Domsey Trading Corp., 351 NLRB 824, 825 

(2007), citing Hoffman Plastics Compounds v. NLRB, 535 U.S. 137 (2002). For the appropriate 

remedy in such cases, see *Case Farms of North Carolina, Inc., 353 NLRB 257, 263 (2008).

§ 13–500  Reinstatement 

§ 13–501  Litigation of Offer in Unfair Labor Practice Case

In an 8(a)(3) case in which denial of reinstatement is affirmatively alleged in the complaint, 

the better practice is to admit the respondent’s testimony of unconditional offers of reinstatement,
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115 

because the Board must fashion a remedy. Charles E. McCauley Assoc., Inc., 266 NLRB 649 

(1983); and Kelley Bros. Nurseries, 145 NLRB 285, 285 fn. 2 (1963), enf. denied 341 F.2d 433 

(2d Cir. 1965). 

However, where the matter has not been fully litigated in the merits hearing, the Board 

has found no prejudice by deferring the matter to the compliance proceeding. See Charles E. 

McCauley, above; Baker Mfg. Co., 269 NLRB 794, 794 fn. 2, 813 (1984), enfd. in part 759 F.2d 

1219 (5th Cir. 1985). 

. § 13–502  Misconduct—After­Acquired Evidence

If an employer satisfies its burden of establishing that the discriminatee engaged in 

unprotected conduct for which the employer would have refused to hire or discharged any 

employee, reinstatement is not ordered and backpay is terminated on the date that the employer 

first acquired knowledge of the misconduct. See, e.g., First Transit, Inc., 350 NLRB 825 (2007) 

(employee who admitted prior felony conviction at compliance hearing, denied reinstatement for 

concealing the conviction on her original employment application). See also Tel Data Corp., 315 

NLRB 364, 366–367 (1994), enfd. in part 90 F.3d 1195 (6th Cir. 1996); and John Cuneo, Inc.,  298 NLRB 856 (1990). 

Thus, if the issue arises at or before the merits hearing, the judge should normally receive 

and consider evidence on the issue, including the nature of the misconduct, when the respondent 

first learned of it, and whether the respondent would have refused to hire or discharged the 

employee for it had respondent known of it earlier. See Tel Data Corp., above. See also Bob’s 

Ambulance Service, 183 NLRB 961, 961 (1970), where the Board granted the respondent’s 

motion to reopen the record and remanded the proceeding to the judge to decide if reinstatement 

was an appropriate remedy, noting that “the issue of employee misconduct which may warrant 

forfeiture of reinstatement goes to the remedy and not to the issue of compliance with the 

remedy.”

§ 13–600  Witnesses

The general rules governing witnesses are set forth in FRE 601–706.

§ 13–601  Competency

Under FRE 601, “every person is competent to be a witness except as otherwise provided 

in the rules.” State law on competency of witnesses does not apply in Board proceedings, 

because the Act is a Federal statute and Section 10(b) of the Act provides that the Federal rules 

of evidence, “so far as practicable,” shall apply to Board proceedings. See also §13–261, 

“General Rule—FRE 501,” above. As a result, most objections to competency are eliminated, and 

are properly treated instead as bearing on credibility and weight.
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§ 13–602  Trial Attorney for Party

Unlike the courts, the Board does not pass on, and leaves to State bar associations to 

decide, questions of ethical propriety of a party’s trial attorney testifying in a Board proceeding. 

Thus, when the trial attorney’s testimony is otherwise relevant and competent, judges should 

overrule objections based on canons of ethics. Reno Hilton, 319 NLRB 1154, 1185 fn. 18 (1995);

Page Litho, Inc., 311 NLRB 881, 881 fn. 1, 889 (1993), enfd. in part mem. 65 F.3d 169 (6th Cir. 

1995); and Operating Engineers Local 9 (Fountain Sand), 210 NLRB 129, 129 fn. 1 (1974). 

See also §7–130, “Attorney as Witness,” above.

§ 13–603  Board Agents

Ordinarily, a Board agent cannot be required to testify in a Board proceeding. See Board’s 

Rules, Section 102.118(a), and Laidlaw Transit, Inc., 327 NLRB 315, 316 (1998) (“R” case, but 

states general policy in all Board proceedings, citing cases). See also Sunol Valley Golf Co.,  305 NLRB 493, 495 (1991), supplemented by 310 NLRB 357, 365, 368 fns. 7 and 8 (1993), enfd. 

48 F.3d 444 (9th Cir. 1995). 

It is also improper for the judge to draw an adverse inference from General Counsel's 

failure to call a Board agent to testify. Independent Stations Co., 284 NLRB 394, 394 fn. 1, 412, 

415 (1987).

§ 13–606  Interpreters

FRE 604 provides that: “[a]n interpreter is subject to the provision of these rules relating to 

qualification as an expert and the administration of an oath or affirmation to make a true 

translation.” See §1–420, “Interpreter’s Oath,” above. 

Interpreters should strive to translate exactly what was said, without comment or 

embellishment. Generally, there is no objection over the use of interpreters, although sometimes 

questions arise over the accuracy of the translation. In such cases, the version of the official 

interpreter governs, unless the judge, after due consideration, decides otherwise. See NLRB v. 

Bakers of Paris, Inc., 929 F. 2d 1427, 1436 fn. 4 (9th Cir. 1991) (acknowledging “the need for 

the trier of fact in any judicial proceeding to consider the accuracy of the translations presented” 

and suggesting that the presence of an “official” translation may not always resolve the issue). 

See also *Coastal Insulation Corp., 354 NLRB No. 70, slip op. at 4 (2009) (judge advised that 

interpreter’s translation would constitute the transcribed record, but allowed charging party an 

opportunity to challenge the translation). 

Particular care should be given to the use of interpreters when assessing the credibility of 

a witness. It may be appropriate for the judge to restrict the use of interpreters in certain 

circumstances; for example, when alleged threats are made in English, the witness should be 

able to recount what was said in English. See Northern Cap Mfg. Co., 146 NLRB 198, 201­204 

(1964). See also Yaohan U.S.A. Corp., 319 NLRB 424, 424 fn. 2 (1995), enfd. mem. 121 F.3d 

720 (9th Cir. 1997) (affirming judge's restrictions on use of interpreters for witnesses who 

demonstrated some ability to converse in English). Where interpretation is necessary, the judge 

should carefully monitor the translation process to ensure that both the translator and the witness 

understood the questions asked and that the witness’ answers were accurately interpreted. See

NLRB v. Del Ray Tortilleria, Inc., 787 F.2d 1118, 1121­1122 (7th Cir. 1986), enfg. 272 NLRB 

1106, 1115 fn. 21 (1984).
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§ 13–607  Appointment and Payment of Interpreters, Authority of Judge

In George Joseph Orchard Siding, Inc., 325 NLRB 252, 252–253 (1998), the Board 

upheld the discretion of the judge to order the General Counsel to provide an interpreter in the 

unfair labor practice proceeding. Specifically, the Board (over the dissent of two Members) found: 

(1) that administrative law judges have “discretionary authority” to appoint interpreters in unfair 

labor practice cases, and (2) that the General Counsel “failed to establish that the judge abused 

his discretion by ordering the Agency to provide [and pay for] an interpreter in this case.” 

However, in a later backpay case involving about 200 unfair labor practice strikers, the 

Board also upheld the discretion of the judge to decline to order the General Counsel to provide 

and pay for an interpreter. Domsey Trading Corp., 325 NLRB 429, 429–432 (1998). The judge 

declined to order the General Counsel to pay an interpreter for discriminatees called by the 

respondent employer because it was the respondent’s burden to establish interim earnings and 

failure to mitigate its backpay liability, and requiring the Agency to pay the cost of interpreters 

would “in essence, give the Respondent a blank check to spend the Government’s money to 

defend itself.” The Board (with the dissenters in George Joseph Orchard now in the majority) 

found that the judge properly exercised his discretion under the circumstances. 

NOTE:  In both cases, the Board emphasized that it was limiting its ruling to the facts of 

the case, and that the matter might be more appropriately addressed through rulemaking.

§ 13–608  Examination of Witnesses

FRE 611(a) provides that the judge “shall exercise reasonable control over the mode and 

order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and 

presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and 

(3) protect witnesses from harassment or undue influence.” 

See also §2–300, “Duties of Administrative Law Judges,” and §13–102, “Taut Record: 

FRE 403,” above.

§ 13–609  Order of Examination

FRE 611(a) grants the trial judge wide discretion to allow witnesses to testify out­of­turn, 

for example to save time, avoid confusion, or accommodate the schedule of a critical witness. 

See 28 Wright & Gold, Fed. Prac. & Proc. Evid. § 6164 (1st Ed 2009); and Goode & 

Wellborne, Courtroom Handbook on Federal Evidence 376 (West 2008). But see Boetticher 

& Kellogg Co., 137 NLRB 1392, 1392 fn. 1, 1398–1399 (1962) (judge erred in precluding a 

respondent from conducting any cross examination of a General Counsel witness after the 

respondent refused the judge’s direction to cross examine the witness before the charging party 

union had questioned the witness).

§ 13–610  Leading Questions

Under FRE 611(c), leading questions ordinarily are not permitted on direct examination or 

examination of a friendly witness, except as may be necessary to develop the witness’ testimony, 

but are permitted on cross­examination or examination of an adverse witness. 

Leading questions may impair the probative value of the testimony. Greyston Bakery,  327 NLRB 433, 440 fn. 13 (1999). Even when there is no objection to leading questions on direct, 

the better practice is for the judge first to warn counsel not to lead. Liberty Coach Co., 128
CHAPTER 13. EVIDENCE 

118 

NLRB 160, 162 fn. 7 (1960). But see W & M Properties of Connecticut, Inc., above, 348 NLRB 

162 (no error for judge to permit General Counsel to ask leading questions on direct examination 

“to develop the witness’s testimony” after several nonleading questions were unsuccessful in 

eliciting certain testimony).

§ 13–611  Section 611(c) Witness

No advance request or ruling is necessary before beginning examination of a hostile or 

adverse witness under FRE 611(c). The test of that right comes when the opponent objects that a 

question is leading. Omaha Building Trades Council (Crossroads Joint Venture), 284 NLRB 

328, 329 fn. 4 (1987), enfd. 856 F.2d 47 (8th Cir. 1988). 

Generally, after direct examination of the adverse witness under 611(c), the nonadverse 

party may not ask leading questions on cross­examination. Nevertheless, the judge retains 

discretion to allow it. See 28 Wright & Gold, Fed. Prac. & Proc. Evid. § 6168 (1st Ed 2009). 

A charging party discriminatee is an adverse party under FRE 611(c) (formerly FRCP 

43(b)) and can be called as an adverse witness by the respondent. Security Services, Inc., 198 

NLRB 1166, 1166 (1972) (reversible error for the judge to preclude the respondent from calling 

the charging party discriminatee as an adverse witness rather than its own witness).

§ 13–612  Refreshing Recollection

Ordinarily the recollection of one’s own nonadverse witness should not be refreshed until 

his memory has been exhausted. The recollection of the witness may then be refreshed by 

leading questions or any artificial aid if appropriate and not improperly suggestive. 

Adverse Party’s Right to Introduce Refreshing Document. Under FRE 612 an adverse 

party is entitled to documents used by the witness to refresh recollection while testifying or in 

preparation for testifying, if the judge in his or her discretion “determines it is necessary in the 

interests of justice.” The adverse party “is entitled to inspect it, cross­examine the witness 

thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” 

See, e.g., J. G. Braun Co., 126 NLRB 368, 369 fn. 3 (1960) (where respondent on cross­ 

examination had read portions of an affidavit into the record to refresh the recollection of a 

witness, it was error for judge to reject the General Counsel's offer of the entire affidavit into 

evidence); and Baker Hotel of Dallas, 134 NLRB 524, 524 fn. 1 (1961), enfd. 311 F.2d 528 (5th 

Cir. 1963). See also FRE 106 (Remainder of or Related Writings or Recorded Statements). 

In Camera Inspection and Redaction. FRE 612 also provides that the judge may examine 

the documents in camera to excise any portion of the document not relevant to the subject matter 

of the testimony. In *CNN America, Inc., 352 NLRB 265 (2008), the Board indicated that, with 

respect to documents used in preparation for testifying, the judge’s review should be done after 

the witness has testified. In that case, the Board reversed a judge’s ruling that the respondent 

was required, before the witness testified, to provide opposing counsel with all documents that 

had been reviewed by the witness within 6 months prior to the hearing. The Board held that the 

judge read Rule 612(2) too broadly. For the rule to apply, the documents must have been viewed 

for the purpose of refreshing a witness’ recollection and the refreshing must be undertaken for the 

purpose of testifying. The Board held that the judge should only order documents to be turned 

over under Rule 612 after the witness has testified so that the judge may properly apply the 

conditions set forth in the rule.
CHAPTER 13. EVIDENCE 

119

§ 13–613  Past Recollection Recorded

Under FRE 803(5), the contents of a memorandum or record written, signed, or adopted 

by a witness reciting events which occurred in the past, but of which the witness has no present 

recollection, are admissible in evidence as substantive proof of the events. See J. C. Penney Co. 

v. NLRB, 384 F.2d 479, 484 (10th Cir. 1967) (distinguishing between writings admitted as past 

recollection recorded and writings used to stimulate memory [present recollection revived] or to 

determine truthfulness [prior inconsistent statements]). 

Reading Document vs. Submitting as Exhibit. If admissible under FRE 803(5), the 

memorandum or record may be read into the record by the party offering it as substantive 

evidence, and the adverse party may actually submit it as an exhibit. 

Foundation Required. Normally, a foundation must be laid, through testimony of the 

witness, that at the time of the memorandum he had a recollection of the events, and that he 

made or adopted them believing them to be true. J.C. Penney Co, above. But cf. Three Sisters 

Sportswear Co., 312 NLRB 853, 865 (1993), enfd. mem. 55 F.3d 684 (9th Cir. 1995), cert. 

denied 516 U.S. 1093 (1996), where the pretrial affidavit of a frightened witness (a current 

employee), who claimed not to remember anything about her affidavit other than her signature, 

was received in evidence as past recollection recorded under FRE 803(5).

§ 13–700  Cross­Examination 

§ 13–701  Beyond the Scope

FRE 611(b) provides that cross examination should be limited to the subject matter of 

direct examination. However, the rule gives judges discretion to allow questions beyond the 

scope of direct examination, and judges often do so (for example, to develop a full record without 

recalling witnesses). The judge should use his or her best judgment in the circumstances.

§ 13–702  Names of Employees Who Supported Union Not Obtainable

In National Telephone Directory Corp., 319 NLRB 420, 422 (1995), the Board held that 

a company respondent’s counsel, when cross­examining a union representative to test her 

credibility, could not obtain the identity of current employees who had signed authorization cards 

or attended union meetings. 

In a subsequent unpublished order, the Board upheld a judge’s ruling permitting 

production of cards and attendance sheets, but only after they had been redacted to show only 

the signatures of witnesses who testified about their own participation in these activities. The 

Board cited its ruling in National Telephone, above, that “the right of confidentiality exists for the 

protection of witnesses, and thus cannot be waived by the Union, but only by the employees 

themselves.”

§ 13–703  Impeachment

“Impeachment evidence is crucial in Board proceedings, because the [judge] sits as judge 

and jury.” Halstead Metal Products v. NLRB, 940 F.2d 66, 72–73 (4th Cir. 1991). 

The judge should be careful not to unduly restrict questions or evidence pertaining to 

impeachment. In Halstead Industries, 299 NLRB 759, 759 fn. 1 (1990), remanded, 940 F.2d 66,
CHAPTER 13. EVIDENCE 

120 

72–73 (4th Cir. 1991), the judge, affirmed by the Board, had refused to receive evidence in 

support of Halstead’s offer of proof that the General Counsel's main witness was biased against 

Halstead and in favor of the alleged discriminatee, because of the witness’ “intimate relationship” 

with the company's former employee relations director who had demonstrated hostility toward the 

company. The company argued that the former director was using the General Counsel's main 

witness to give false testimony showing an unlawful motive by the plant manager. The court 

remanded the case so that the impeachment evidence could be considered and weighed. 

However, it is “generally inappropriate” to consider credibility determinations made in a 

different case in making credibility determinations in a subsequent case. Electrical Workers 

(Nixdorf Computers Corp.), 252 NLRB 539, 539 fn. 1 (1980). As discussed below, there are 

also restrictions on the use of certain other types of impeachment evidence.

§ 13–704  No Impeachment on Collateral Matters

Under FRE 608(b), a judge has discretion to refuse to permit impeachment of a witness 

on a collateral matter that is not probative of the witness’ propensity to testify untruthfully 

concerning a material issue. Sunshine Piping, Inc., 351 NLRB 1371, 1374–1376 (2007) (judge 

could have excluded cross­examination of witness’ prior drug related acts as it was not relevant 

to alleged alteration of attendance records). See also New York Sheet Metal Works, Inc., 243 

NLRB 967, 967 fn. 3 (1979). 

Further, even if testimony on such collateral matters is allowed, the use of “extrinsic” 

evidence to impeach is generally prohibited (unless it involves a criminal conviction, see §13–  705, below). Thus, admission of extrinsic evidence of specific acts to attack the witness’ response 

is not permitted, unless it tends to show bias or motive to testify untruthfully. Sunshine Piping,  above. See also J.S. Troup Electric, Inc., 344 NLRB 1009, 1009–1010 (2005) (application of 

FRE 608(b) is subject to Rule 403, which permits a judge to exclude impeachment evidence if its 

probative value is outweighed by considerations of undue delay or waste of time). 

With respect to the appropriate weight to give specific prior acts in evaluating credibility, 

see Double D Construction Group, 339 NLRB 303, 306 (2003), in which the Board criticized a 

judge for discrediting a witness for lying about his social security number in the past, without 

taking into account all of the factors tending to support his credibility at the time of his testimony. 

See also Boardwalk Regency Corp., 344 NLRB 984, 984 fn. 1 (2005), pet. for review denied, 

196 Fed. Appx. 59 (3d Cir. 2006) (Double D Construction stands for the proposition that “a 

judge should not rely solely on a single prior act of falsification” in making credibility 

determinations; if there are other factors supporting the witness’s credibility, “they too must be 

considered”).

§ 13–705  Criminal Convictions

Under FRE 608(b) and 609, a witness may be impeached, subject to FRE 403, by 

reference to prior criminal convictions (not just arrests) if they are either (1) punishable by death 

or imprisonment over 1 year, or (2) the elements of the crime required proof or admission of an 

act of dishonesty or false statement. See Service Employees (GMG Janitorial), 322 NLRB 402, 

406 (1996) (mail fraud and conspiracy convictions admitted and considered under FRE 609). 

FRE 609 also sets forth time limits: the evidence may only be used within 10 years of the 

witness’ conviction or release from confinement, whichever is later (although the judge retains the 

discretion to allow older evidence if “the probative value. . . substantially outweighs its prejudicial 

effect”).
CHAPTER 13. EVIDENCE 

121 

The judge may, of course, still credit a witness, notwithstanding such convictions. See

Franklin Iron & Metal Corp., 315 NLRB 819 fn. 1 (1994), enfd. 83 F.3d 156 (6th Cir. 1996) 

(judge considered a felony conviction within the last 10 years for carrying a concealed weapon, 

but nevertheless credited the substantially corroborated testimony of the witness).

§ 13–706  Inconsistent Prior Statements

A witness may be impeached by reference to a prior inconsistent statement. Under FRE 

613, the inconsistent statement need not be shown or its contents disclosed to the witness during 

the examination, but must be shown or disclosed to the adverse party on request. Further, the 

statement generally cannot be admitted into evidence until the witness has been afforded an 

opportunity to explain or deny the statement and the opposing party has had an opportunity to 

question the witness about it. See also §13–800, with respect to the release of Jencks statements 

generally.

In evaluating prior inconsistent statements, the judge must carefully weigh the 

circumstances and relevance of the alleged contradictions. See Advocate South Suburban 

Hospital v. NLRB, 468 F. 3d 1038, 1046 (7th Cir. 2006) (“where a contradiction goes to the heart 

of a witness’s story, belief can be error. But crediting the witness makes sense when the 

impeaching statements differ only with respect to minor aspects of the story or where the 

discrepancies are easily explained.” [citations omitted]).

§ 13–800  Release of Witness Statements 

§ 13–801  Generally Not Released/Jencks Exception

The General Counsel has no obligation to produce exculpatory material contained in the 

Government's files. Indeed, Section 102.118 of the Board’s Rules prohibits any release of 

specified documents without the Board or General Counsel’s prior written consent. 

An exception is provided in 102.118(b) for pretrial “statements” given by a witness called 

by the General Counsel in an unfair labor practice case (and also in subsection (c), for 

“statements” in a postelection case). The term “statement” is defined in subsection (d) of the rule. 

See §13–805, below. Such pretrial statements or affidavits are also referred to as Jencks 

statements.  See §8–500, above. 

However, even Jencks statements need not be released or produced until after the 

witness has testified. Further, the entire statement need not be produced unless  the entire 

contents relate to the subject matter about which the witness testified. Section 102.118(b)(1). 

Thus, in Caterpillar, Inc., 313 NLRB 626, 626 (1993), the Board held that when the 

General Counsel asserts that material in a Jencks statement does not relate to the subject matter 

of the witness’ testimony on direct examination, the judge must inspect the statement in camera 

and excise any portion of the statement that does not relate to the testimony. The judge may 

exercise discretion in this respect, and retain portions that relate to the pleadings, even if not to 

the testimony. However, judges may not direct the General Counsel to produce affidavits from 

other cases, regarding matters on which the witness has not testified. See also Tejas Electrical 

Services, Inc., 338 NLRB 416, 416 fn. 2 (2002). 

With respect to the General Counsel’s obligations to search its files, on January 29, 1999, 

the Board issued an unpublished interim order in Albertson’s, Inc., Case 27–CA–13390, ruling
CHAPTER 13. EVIDENCE 

122 

that the General Counsel is obligated to search its files [before, it is implied, the witness testifies] 

for any statements in cases involving charges filed by the charging party union against the 

respondent during the period covered by the pending charges. Further, the Board denied the 

General Counsel's request to restrict the search to the same Regional Office where the pending 

charges were filed. However, it ruled that the General Counsel was not required to search files in 

cases involving charges against other employers.

§ 13–802  Copies in Possession of Others

In H. B. Zachry Co., 310 NLRB 1037, 1038 (1993), the Board made it clear that Section 

102.118(b)(1) also applies to affidavits in the possession of a charging party, i.e. the respondent 

is not entitled to the affidavits until after the witness is called and testifies on behalf of the General 

Counsel. No waiver results from the fact that witnesses give copies of their affidavits to the 

charging party union.

§ 13–803  Charging Party Entitled to Statements

A charging party is entitled, on request and for the purpose of cross­examination, to a 

pretrial statement of an agent who testifies on behalf of the respondent. See Senftner 

Volkswagen Corp., 257 NLRB 178, 178 fn. 1, 186–187 (1981), enfd. 681 F.2d 557 (8th Cir. 

1982), where the Board upheld the judge’s ruling that allowed the charging party to utilize for 

cross­examination the pretrial affidavit given by a respondent witness. See also Section 10394.7 

of the NLRB Casehandling Manual (Part One). 

Board law is somewhat unclear whether a charging party may demand a copy of a 

witness’ Jencks statement before or after calling the witness as an adverse or hostile witness 

under Section 611(c) of the Federal Rules of Evidence. See Louisiana Dock Co., 293 NLRB 

233, 250–251 (1989), enf. denied, 909 F.2d 281 (7th Cir. 1990). However, based on decisions 

dealing with 611(c) witnesses called by respondents, the answer would appear to be “no.”  See

Kenrich Petrochemicals, Inc., 149 NLRB 910, 911 fn. 2 (1964) (respondent not entitled to 

Jencks statement given by charging party, when charging party was called by respondent rather 

than the General Counsel, even though called as an adverse witness under FRCP 43(b)[now 

FRE 611(c)]). See also NLRB v. Duquesne Electric Co., 518 F.2d 701, 705 (3d Cir. 1975) 

(upholding judge’s application of Kenrich Petrochemicals where respondent called a 

discriminatee to testify, noting that FRCP 43(b) [now FRE 611(c)] only authorizes leading 

questions, not cross­examination).

§ 13–804  Statements by Respondent’s Witnesses

Respondents are not entitled to Jencks statements of their own witnesses. Clear Channel 

Outdoor, Inc., 346 NLRB 696 fn. 1 (2006). This is true even if called as an adverse or hostile 

witness under FRE 611(c). See Kenrich Petrochemicals, Inc., above, and NLRB v. Duquesne 

Electric Co., above. Note, however, that the court in Duquesne suggested that respondent might 

have been entitled to the discriminatee’s affidavit to impeach if “she had given testimony 

damaging to the [respondent’] case, which she never did.” 518 F.2d at 705.

§ 13–805  What Is a Jencks Statement?

Section 102.118(d) defines a Jencks “statement” to mean any written statement by the 

witness that is signed or otherwise adopted or approved by him/her, as well as a tape recording 

or transcription that is a substantially verbatim recital of an oral statement made by the witness to
CHAPTER 13. EVIDENCE 

123 

the party obligated to produce the statement and recorded contemporaneously with the making of 

the oral statement. 

If notes taken by a Board agent (or a memo made of an interview with the witness) are not 

adopted or approved by the witness, they are not a Jencks “statement” and are therefore not 

producible under Section 102.118(b)(1). Caterpillar, Inc., above, 313 NLRB at 627 fn. 4. See 

also National Specialties Installations, Inc., 344 NLRB 191 (2005) (written notice from third 

party to a witness, such as a notice from a witness’ bank, is not a “statement made by said 

witness” within the meaning of the Rule; and since it was not adopted by the witness, it is not 

producible). See also §8–510, above, with respect to other documents that are not considered 

“Jencks statements.”

§ 13–807  Notes Not Adopted

In Caterpillar, Inc., 313 NLRB 626, 626 fn. 2, 627 fn. 4 (1993), the Board held that the 

judge erred by ordering the General Counsel to produce a Board agent’s notes of conversations 

with witnesses, in the absence of any evidence that the notes had been adopted, or that the 

witnesses were even aware of the notes. 

Similarly, in Coca­Cola Bottling Co., 250 NLRB 1341, 1342 (1980), a Board agent’s 

“writing something” as a witness spoke to him did not qualify the document either as a 

“statement” or a statement “adopted or approved.”

§ 13–808  Witness’s Notes Passed to General Counsel During Trial

In Wabash Transformer Corp., 215 NLRB 546, 546 fn. 3 (1974), enfd. 509 F.2d 647 (8th 

Cir. 1975), cert. denied 423 U.S. 827 (1975), the respondent requested all notes that a witness 

had passed to the General Counsel during the trial. The General Counsel produced the notes in 

his possession, but stated on the record that he had probably discarded the others, because he 

did not consider them to be Jencks “statements” and the respondent had not previously shown 

any interest in them. Assuming arguendo that the notes constituted “statements,” the Board found 

no basis for rejecting the witness’ testimony under the circumstances.

§ 13–809  Letters

A signed letter constitutes a producible “statement.” See Rosenberg v. U.S., 360 U.S. 

367, 370 (1959).

§ 13–810  In Camera Inspection on Relatedness Issue

As discussed above in §13–801, when the General Counsel asserts that the Jencks 

statement requested to be produced contains information that does not relate to the subject 

matter about which the witness testified, the judge should review the statement in camera and 

excise any portions that do not relate to the subject matter of the testimony of the witness or the 

pleadings.

§ 13–811  Time of Production

The proper time for a request is at the close of the direct examination. U.S. v. Martinez,  151 F.3d 384, 390–391 (5th Cir. 1998), cert. denied 525 U.S. 1031 and 1085 (1998 and 1999). It 

is premature to demand production earlier. See also H. B. Zachry Co., 310 NLRB 1037, 1038
CHAPTER 13. EVIDENCE 

124 

(1993) (production cannot be required by subpoena on theory that employee witness waived 

confidentiality by giving copy to the union); and Edwards Trucking Co., 129 NLRB 385, 386 fn. 1 

(1960). 

Similarly, it may be too late to demand production after the witness has been excused.

Walsh Lumpkin Wholesale Drug Co., 129 NLRB 294, 296 (1960). See also Earthgrains Co., 336 NLRB 1119, 1122 (2001) (request for affidavits untimely when made immediately prior to 

close of trial after last witness had been excused); SBC California, 344 NLRB 243, 243 fn. 3 

(2005) (request for affidavit untimely when made at the close of respondent’s case). 

Requests have also been ruled untimely when not made until “well into” the cross­ 

examination of the witness. See I­O Services, 218 NLRB 566, 566 fn. 1 (1975) (holding that 

judge’s ruling was not an abuse of discretion under all the circumstances). See also the judge’s 

unexcepted­to ruling in Longshoremen ILA Local 20 (Ryan­Walsh Stevedoring), 323 NLRB 

1115, 1120 (1997) (request for affidavit after 2 hours of cross­examination could unnecessarily 

prolong the trial as counsel would likely attempt to “re­plough ground already covered”).

§ 13–812  Sufficient Time to Study

A judge’s denial of 15 minutes time to study the statement after production was found to 

be prejudicial error requiring a remand in A. R. Blase Co., 143 NLRB 197, 197–198 (1963), enf. 

denied 338 F.2d 327 (9th Cir. 1964). Normally, the General Counsel should not oppose a request 

for a reasonable time for study. See Section 10394.9 of the NLRB Casehandling Manual (Part 

One).

§ 13–813  Affidavits Admissible in Evidence

See §13–206 et seq., above, for a discussion of the admissibility of affidavits.

§ 13–815  Right to Copy Jencks Statements

There is no absolute right to make copies of the statements, unless the statements are 

admitted into evidence. This is within the judge’s discretion. Manbeck Baking Co., 130 NLRB 

1186, 1189–1190 (1961). However, Section 10394.9 of the NLRB Casehandling Manual (Part 

One), now provides that, for witness statements required to be produced by the General Counsel 

to a respondent, the General Counsel will produce both the original and a copy. 

With respect to retention of the statement, in Wal­Mart Stores, Inc., 339 NLRB 64 (2003), 

the Board held that a Jencks witness statement may not be retained after the close of the trial. 

After the witness has testified, the exception to the general prohibition against using Board files 

under Section 102.118(b)(1) of the Board’s Rules no longer applies and the prohibition of the 

Rule is restored. Nonetheless, the Board confirmed that a judge may, in his or her discretion, 

permit counsel to copy the statement and to retain it throughout the hearing “for any legitimate 

trial purpose.” Id. at fn. 3. See also Section 10394.9 of the NLRB Casehandling Manual (Part 

One) (providing that, on request, the respondent may retain the copies throughout the trial for 

legitimate trial purposes, returning them at the close of the trial (unless, of course, the statement 

has been made an exhibit)). 

Because some counsel may make notes that they would be reluctant to disclose to the 

General Counsel, it is prudent to establish a procedure in advance, such as an agreed upon 

destruction of copies with attorney notes, to avoid later controversy and dispute.
CHAPTER 13. EVIDENCE 

125

§ 13–816  Translation of Affidavit

In NLRB v. Doral Building Services, 666 F.2d 432, 435 (9th Cir. 1982), the court held 

that the General Counsel erroneously failed to provide an official translation of non­English 

language affidavits of his witnesses. It is not adequate to simply provide the original affidavits to 

the respondent and leave it up to the respondent to provide its own translator. The case was 

remanded so that the respondent could be provided with an official English translation of the 

original foreign language statements. See also NLRB v. Bakers of Paris, Inc., 929 F.2d 1427 

(9th Cir. 1991) (discussing both admissibility and use for impeachment of English affidavits taken 

of non­English speaking witnesses).

§ 13–900  Rebuttal and Surrebuttal Testimony

FRE 611 makes no mention of redirect and re­cross examination. However, the judge has 

broad discretion in deciding whether rebuttal and surrebuttal testimony would be helpful in 

developing the evidence, or whether it would inappropriately and unnecessarily prolong the trial. 

See Garden Ridge Management, Inc., 347 NLRB 131, 131 fn. 3 (2006), citing Water’s Edge,  293 NLRB 465, 465 fn. 2 (1989), enfd. in part 14 F.3d 811 (2d Cir. 1994). In Water’s Edge, the 

Board stated: 

We agree with the judge that O’Reilly’s testimony was technically not proper 

rebuttal because it was not introduced to refute evidence provided by the Respondent’s 

witness. We note, however, that the admissibility of evidence on rebuttal is committed to 

the discretion of the judge. . . . Thus, although the General Counsel should have elicited 

O’Reilly’s testimony during her case­in­chief, we find the judge did not err in admitting it. 

We reject the Respondent’s contention that O’Reilly’s testimony should be stricken. 

In Bethlehem Temple Learning Center, Inc., 330 NLRB 1177, 1177 fn. 1 (2000), the 

respondent proffered evidence on surrebuttal that a witness had a criminal conviction, to attack 

her credibility. The Board held that judge did not abuse his discretion in ruling that the respondent 

“made this proffer at a point too late in the trial.” In First Class Maintenance, 289 NLRB 484, 485 

fn. 4 (1988), the Board upheld the judge’s refusal to allow certain rebuttal testimony offered by the 

General Counsel, finding both that the evidence would have been cumulative and that the 

General Counsel had 9 days notice that he might desire the testimony. See also Tramonte v. 

Fibreboard Corp., 947 F.2d 762, 764 (5th Cir. 1991).

127

TABLE OF AUTHORITIES 

BOARD CASES 

*Airo Die Casting, Inc., 354 NLRB No. 8, slip op. 1 fn. 5 (2009)................................................29

*AKAL Security, Inc., 354 NLRB No. 11, slip op. at 4 (2009).....................................................22

*Allied Mechanical Services, Inc., 352 NLRB 662, 664 (2008).................................................29

*Asher Candy, Inc., 353 NLRB 959 (2009)..........................................................................44, 46

*Bashas’, Inc., 352 NLRB 661 (2008) ........................................................................................39

*California Gas Transportation, Inc., 352 NLRB 246, 246 fn. 3 (2008) ....................................88

*Case Farms of North Carolina, Inc., 353 NLRB 257, 263 (2008) ..........................................114

*CNN America, Inc., 352 NLRB 265 (2008) .............................................................................118

*CNN America, Inc., 352 NLRB 448 (2008) ................................................................... 59, 60, 63

*CNN America, Inc., 352 NLRB 675 (2008) .........................................................................58, 65

*CNN America, Inc., 353 NLRB 891 (2009) .........................................................................59, 60

*Coastal Insulation Corp., 354 NLRB No. 70, slip op. at 4 (2009)...........................................116  *Empire State Weeklies, Inc., 354 NLRB No. 91, slip op. 2 (2009)............................................20

*Essex Valley Visiting Nurses Assoc., 352 NLRB 427, 440–443 (2008)..................................67

*Kingsbridge Heights Rehabilitation and Care Center, 353 NLRB 631, 

633 (2008)...............................................................................................................................81

*Litigation Mediation Group, Inc., 12–CA–25513 (unpublished Board 

order, June 13, 2008) ..............................................................................................................25

*M.V.M., Inc., 352 NLRB 1165, 1165 fn. 1 (2008).......................................................................91

*New York Post, 353 NLRB No. 343 (2008)...............................................................................22

*Paint America Services, Inc., 353 NLRB 973 (2009)................................................... 44, 45, 67

*Parksite Group, 354 NLRB No. 90, slip op. 5 (2009)..............................................................108

*Ralphs Grocery Co., 352 NLRB 128, 129 (2008).....................................................................65

*Spurlino Materials, LLC, 25–CA–29866 ..................................................................................75

*Trade Fair Supermarkets, 354 NLRB No. 16 (2009)..........................................................19, 21  *United States Postal Service, 352 NLRB 923, 923 (2008) ......................................................22

*Uzi Einy, 352 NLRB 1178 (2008)..............................................................................................52

675 West End Owners Corp., 345 NLRB 324 (2005), enfd. 

304 Fed. Appx. 911 (2d Cir. 2008)......................................................................... 50, 51, 53, 69

A & L Underground, 302 NLRB 467 (1991)...............................................................................26

A. R. Blase Co., 143 NLRB 197, 197–198 (1963), enf. denied 338 F.2d 327 

(9th Cir. 1964) .......................................................................................................................124

Ablon Poultry & Egg Co., 134 NLRB 827 fn. 1 (1961) ............................................................109

Abrahamson Chrysler­Plymouth, 225 NLRB 923, 923 fn. 1 (1976), enfd. 

mem. 559 F.2d 1226 (7th Cir. 1977)........................................................................................41

Ace Beverage Co., 250 NLRB 646, 647 (1980) .........................................................................47

Acme Building Maintenance, 307 NLRB 358, 359 fn. 6 (1992) ................................................34

Active Metal Mfg., 316 NLRB 974, 974–975 (1995)...................................................................34

Adair Standish Corp., 283 NLRB 668, 669–671 (1987), enfd. mem. 875 

F.2d 866 (6th Cir. 1989) ..........................................................................................................23

ADF, Inc., 355 NLRB No. 14, slip op. at 6 (2010), reaffirmed and incorporated 

by reference 355 NLRB No. 62 (2010).....................................................................................67

Advance Waste Systems, 306 NLRB 1020, 1032–1033 (1992)..........................................50, 53
BOARD CASES 

128

AEi2, LLC, 343 NLRB 433 (2004)...............................................................................................84

Aerosonic Instrument Corp., 116 NLRB 1502, 1503 (1956)...............................................14, 15

Air Line Pilots Assn., 97 NLRB 929, 933 (1951).....................................................................113

Air Transport Equipment, 190 NLRB 377, 377 fn. 2 (1971), enfd. mem. 486 

F.2d 1394 (2d Cir. 1972)..........................................................................................................11

Airborne Freight Corp., 343 NLRB 580, 581 (2004)..................................................................21

Al Bryant, Inc., 260 NLRB 128, 128 fn. 1 (1982), enfd. 711 F.2d 543 (3d Cir. 1983), 

cert. denied 464 U.S. 1039 (1984)...........................................................................................16

Alamo Cement Co., 277 NLRB 1031, 1036–1037 (1985) ..........................................................26

Alamo Rent­A­Car, Inc., 338 NLRB 275 (2002)...................................................................75, 76

Alan Short Center, 267 NLRB 886, 886 fn. 1 (1983)..................................................................51

Albertson’s, Inc., Case 27–CA–13390 ....................................................................................121

Alldata Corp., 324 NLRB 544, 544–545 (1997), enf. denied on other grounds, 

245 F.3d 803, 807 (D.C. Cir. 2001)..........................................................................................17

Allied Mechanical Services, Inc., 346 NLRB 326, 329 (2006) ..................................................22

Allied Products Corp., 220 NLRB 732, 733 (1975) ...................................................................17

Allis­Chalmers Corp., 286 NLRB 219, 219 fn. 1 (1987).............................................................92

Allis­Chalmers Mfg. Co., 179 NLRB 1, 2 fn. 9 (1969)..............................................................103

Allou Distributors, 201 NLRB 47, 47–48 (1973)........................................................................28

Alpert’s, Inc., 267 NLRB 159, 159 fn. 1 (1983) ..........................................................................84

Alpha Beta Co., 273 NLRB 1546 (1985) ....................................................................................79

Alterman Transport Lines, Inc., 127 NLRB 803, 804 (1960) ....................................................68

Alvin J. Bart & Co., 236 NLRB 242, 242 (1978), enf. denied on other grounds 

598 F.2d 1267 (2d Cir. 1979).................................................................................................101

AM Property Holding Corp., 350 NLRB 998, 1008 (2007) ........................................................46

American Art Industries, 166 NLRB 943, 951–953 (1967), affd. in pertinent 

part 415 F.2d 1223, 1229–1230 (5th Cir. 1969).......................................................................68

American Life Insurance and Accident Co., 123 NLRB 529, 530 (1959).......................9, 14, 15

American Pacific Pipe Co., 290 NLRB 623, 623–624 (1988)....................................................75

American Postal Workers Local 735, 340 NLRB 1363, 1364–1365 (2003)..............................79

Amptech, Inc., 342 NLRB 1131, 1146 (2004), enfd. 165 Fed. Appx. 435 (2006)........................99

Ann’s Laundry, 276 NLRB 269, 270 fn. 3 (1985).....................................................................104

Apex Investigation & Security Co., 302 NLRB 815, 818 (1991)...............................................17

Application and Motion of Horowitz, 266 NLRB 755 (1983)....................................................53

Artesia Ready Mix Concrete, Inc., 339 NLRB 1224 (2003).................................................19, 20

AT&T Corp., 337 NLRB 689, 693 fn. 1 (2002)............................................................................61

ATS Acquisition Corp., 321 NLRB 712, 712 fn. 3 (1996)..........................................................47

Auburn Foundry, 274 NLRB 1317, 1317 fn. 2 (1985), enfd. 791 F.2d 619 

(7th Cir. 1986) .......................................................................................................................110

Auto Bus, Inc., 293 NLRB 855, 855–856 (1989)........................................................................78

Auto Workers Local 651 (General Motors), 331 NLRB 479, 481 (2000)................................101

B. N. Beard Co., 248 NLRB 198, 199 fn. 9 (1980)....................................................................104

B.P. Exploration, Inc., 337 NLRB 887, 889 (2002) ....................................................................62

Baddour, Inc., 281 NLRB 546, 546 fn. 2 (1986), enfd. mem. 848 F.2d 193 

(6th Cir. 1988), cert. denied 488 U.S. 944 (1988) ....................................................................50

Baker Hotel of Dallas, 134 NLRB 524, 524 fn. 1 (1961), enfd. 311 F.2d 528 

(5th Cir. 1963) .......................................................................................................................118

Baker Mfg. Co., 269 NLRB 794, 794 fn. 2, 813 (1984), enfd. in part 759 

F.2d 1219 (5th Cir. 1985).......................................................................................................115

Bannon Mills, 146 NLRB 611, 614 fn. 4, 633–634 (1964)..........................................................68

Baron Honda­Pontiac, 316 NLRB 611, 611 (1995) ...................................................................24
BOARD CASES 

129

Batchelor Electric Co., 254 NLRB 1145, 1145 fn. 1 (1981), enfd. mem. 716 

F.2d 903 (6th Cir. 1983) ..........................................................................................................44

Beacon Electric Co., 350 NLRB 238, 254 (2007) ....................................................................100

Benfield Electric Co., 331 NLRB 590, 591–592 (2000) .............................................................27

Berbiglia, Inc., 233 NLRB 1476, 1495 (1977) ............................................................................59

Best Western City View Motor Inn, 325 NLRB 1186, 1186 (1998) ...........................................69

Best Western City View Motor Inn, 327 NLRB 468, 468–469 (1999) .................................38, 55

Beta Steel Corp., 326 NLRB 1267, 1267 fn. 3, 1268 (1998).......................................................46

Bethlehem Temple Learning Center, Inc., 330 NLRB 1177 (2000)..................................15, 125

Betra Mfg. Co., 233 NLRB 1126, 1126 fn. 2 (1977), enfd. mem. 624 F.2d 192 

(9th Cir. 1980), cert. denied 450 U.S. 996 (1981) ....................................................................45

Better Monkey Grip Co., 113 NLRB 938 (1955).............................................................. 9, 11, 15

Beverly California Corp., 326 NLRB 232, 236 fn. 18 (1988) .....................................................73

Beverly Health & Rehabilitation Services, 335 NLRB 635, 639 fn. 26 (2001), 

enfd. in part, 317 F.3d 316 (D.C. Cir. 2003).............................................................................89

Beverly Health & Rehabilitation Services, 346 NLRB 1319 fn. 3 and 1337 fn. 4 

(2006)......................................................................................................................................23

Biles­Coleman Lumber Co., 4 NLRB 679, 682 (1937) ..............................................................48

Blake Construction Co., 245 NLRB 630, 630 fn. 1 (1979), enfd. in part 663 

F.2d 272 (D.C. Cir. 1981) ....................................................................................................7, 14

Bliss & Laughlin Steel Co., 266 NLRB 1165, 1167 fn. 2 (1983), enfd. 754 

F.2d 229 (7th Cir. 1985) ........................................................................................................109

BMD Sportswear Corp., 283 NLRB 142, 142 fn. 1 (1987), enfd. mem. 847 

F.2d 835 (2d Cir. 1988) ...........................................................................................................37

Boardwalk Regency Corp., 344 NLRB 984, 984 fn. 1 (2005), pet. for review 

denied, 196 Fed. Appx. 59 (3d Cir. 2006)..............................................................................120

Bob’s Ambulance Service, 183 NLRB 961, 961 (1970)..........................................................115

Bobs Motors, Inc., 241 NLRB 1236, 1236 (1979)......................................................................68

Boetticher & Kellogg Co., 137 NLRB 1392, 1392 fn. 1, 1398–1399 (1962) ........................9, 117

Boilermakers Local 363 (Fluor Corp.), 123 NLRB 1877, 1913 (1959)......................................20

Boise Cascade, 279 NLRB 422, 432 (1986) ..............................................................................59

Borgess Medical Center, 342 NLRB 1105, 1106 fn. 5 (2004) ...................................................62

Borg­Warner Corp., 113 NLRB 152, 154 (1955), petition for review denied 231 

F.2d 237 (7th Cir. 1956), cert. denied 352 U.S. 908 (1956) .....................................................91

Boydston Electric, Inc., 331 NLRB 1450, 1451 (2000) .............................................................25

BP Amoco Chemical—Chocolate Bayou, 351 NLRB 614 (2007) .............................. 74, 78, 109

Brink’s, Inc., 281 NLRB 468 (1986) .....................................................................................57, 60

Bristol Manor Health Care Center, 295 NLRB 1106, 1106 fn. 1 (1989), enfd. 

mem. 915 F.2d 1561 (3d Cir. 1990).........................................................................................46

Bristol Nursing Home, 338 NLRB 737, 737 fn. 1 (2002) ...........................................................87

Broadway Hospital, Inc., 244 NLRB 341, 341 fn. 5 (1979)........................................................43

Brown & Sharpe Mfg. Co., 321 NLRB 924, 924–925 (1996), review denied 

130 F.3d 1083, 1087 (D.C. Cir. 1997), cert. denied 524 U.S. 926 (1998).................................27

Buckeye Plastic Molding, 299 NLRB 1053, 1053 (1990)..........................................................37

Burgess Construction, 227 NLRB 765, 766 (1977), enfd. 596 F.2d 378 

(9th Cir. 1979), cert. denied 444 U.S. 940 (1979) ....................................................................27

C & S Distributors, 321 NLRB 404, 404 fn. 2 (1996)...............................................................108

C.P. Associates, Inc., 336 NLRB 167 (2001).............................................................................25

Cab Associates, 340 NLRB 1391 (2003).............................................................................21, 26

Calyer Architectural Woodworking Corp., 338 NLRB 315 (2002) ...........................................89

Camay Drilling Co., 239 NLRB 997, 998–998 (1978) ................................................................48
BOARD CASES 

130

Cameron Iron Works, 235 NLRB 287, 287–288 (1978), enf. denied on other 

grounds 591 F.2d 1 (5th Cir. 1979)..........................................................................................34

Cannondale Corp., 310 NLRB 845, 852 (1993).......................................................................110

Cardinal Services, 295 NLRB 933 fn. 2 (1989)..........................................................................87

Cardiovascular Consultants of Nevada, 323 NLRB 67, 67 fn. 1 (1997)...................................99

Care Manor of Farmington, 314 NLRB 248, 248 fn. 2 (1994) .....................................................8

Carpenter Sprinkler Corp., 238 NLRB 974, 974–975 (1978), affd. in relevant 

part, 605 F.2d 60, 65–66 (2d Cir. 1979).................................................................................105

Carpenters Local 405, 328 NLRB 788, 788 fn. 2 (1999)............................................................67

Carpenters Local 621 (Consolidated Constructors), 169 NLRB 1002, 1003 

(1968), enfd. 406 F.2d 1081 (1st Cir. 1969).............................................................................28

Carriage Inn of Steubenville, 309 NLRB 383 (1992).................................................................41

Carthage Heating & Sheet Metal, 273 NLRB 120, 123 (1984)..................................................61

Cascade Corp., 192 NLRB 533, 533 fn. 2 (1971), enf. denied 466 F.2d 748 

(6th Cir. 1972) .........................................................................................................................28

Caterpillar, Inc., 313 NLRB 626 (1993)............................................................................ 121, 123

Caterpillar, Inc., 332 NLRB 1116, 1116 (2000)..........................................................................80

CCY New Worktech, Inc., 329 NLRB 194, 194 (1999)...............................................................24

Centeno Super Markets, 220 NLRB 1151, 1151 fn. 1 (1975), enfd. 555 

F.2d 442 (5th Cir. 1977), cert. denied 434 U.S. 1064 (1978) ...................................................13

Center for United Labor Action, 209 NLRB 814, 814–815 (1974)......................................14, 15

Central Mack Sales, 273 NLRB 1268, 1268 fn. 2 (1984)............................................................16

Central Telephone Company of Texas, 343 NLRB 987 ............................................... 64, 65, 89

Cera International Corp., 272 NLRB 1360, 1360 fn. 2 (1984) ...................................................37

Certain­Teed Products Corp., 147 NLRB 1517, 1520 (1964) ...................................................68

Chambersburg County Market, 293 NLRB 654, 655 (1989).....................................................26

Champ Corp., 291 NLRB 803 (1988), enfd. 933 F.2d 688 (9th Cir. 1990), 

cert. denied 502 U.S. 957 (1991)........................................................................... 56, 59, 68, 69

Champion International Corp., 339 NLRB 672 (2003)..............................................................22

Charles E. McCauley Assoc., Inc., 266 NLRB 649 (1983)......................................................115

Chicago Tribune Co., 304 NLRB 259, 259–261 (1991).............................................................28

Children’s National Medical Center, 322 NLRB 205, 205 (1996) .............................................18

Christie Electric Corp., 284 NLRB 740, 784 fn. 137 (1987).....................................................108

Cincinnati Enquirer, 298 NLRB 275, 275 (1990), review denied 938 F.2d 284 

(D.C. Cir. 1991) .......................................................................................................................18

Clark Distribution Systems, Inc., 336 NLRB 747 (2001)..........................................................78

Clear Channel Outdoor, Inc., 346 NLRB 696 fn. 1 (2006).......................................................122

Clement­Blythe Cos., 168 NLRB 118, 118–119 (1967), enf. denied 415 F.2d 78 

(4th Cir. 1969) .........................................................................................................................24

Coca­Cola Bottling Co., 250 NLRB 1341, 1342 (1980)...........................................................123

Colgate­Palmolive Co., 323 NLRB 515, 515 fn. 1 (1997) ..........................................................88

Collyer Insulated Wire, 192 NLRB 837, 839 (1971) ..................................................................29

Colonna’s Shipyard, 293 NLRB 136, 143 fn. 2 (1989), enfd. mem. 900 F.2d 250 

(4th Cir. 1990) .......................................................................................................................102

Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 fn. 6 (2007), enfd. 577 

F.3d 467 (2d Cir. 2009) ...........................................................................................................25

Contek International, Inc., 344 NLRB 879, 883–884 (2005) ...................................................113

Control Services, 303 NLRB 481 (1991), enfd. 961 F.2d 1568 

(3d Cir. 1992) .............................................................................................................. 33, 36, 55

Control Services, 305 NLRB 435, 435 fn. 2, 442 (1991)............................................................26

Coopers Int’l Union, 208 NLRB 175 (1974)...............................................................................79

Copper State Rubber, 301 NLRB 138, 138 (1991) ....................................................................75
BOARD CASES 

131

County Waste of Ulster, 354 NLRB No. 54 (2009), reaffirmed and incorporated 

by reference 355 NLRB No. 64 (2010).....................................................................................92

Cowin & Co., 322 NLRB 1091, 1091 fn. 1 (1997).......................................................................47

CPS Chemical Co., 324 NLRB 1018, 1019 (1997), enfd. 160 F.3d 150 

(3d Cir. 1998) ..........................................................................................................................68

Crown Corrugated Container, Inc., 123 NLRB 318, 320 (1959).............................................100

Crusader­Lancer Corp., 144 NLRB 1309, 1309 fn. 1 (1963) .....................................................42

Curlee Clothing Co., 240 NLRB 355, 355 fn. 1 (1979), enfd. in relevant part 607 

F.2d 1213 (8th Cir. 1979).........................................................................................................84

CWA Local 9403 (Pacific Bell), 322 NLRB 142 (1996)..............................................................90

Da Vinci Fashions, 286 NLRB 809, 814–816 (1987).................................................................34

Daisy’s Originals, Inc., 187 NLRB 251, 251 fn. 1 (1970)...........................................................87

Dal­Tex Optical Co., 130 NLRB 1313, 1315 (1961)...................................................................20

Daniel Construction Co., 239 NLRB 1335, 1335 fn. 2 (1979), enfd. mem. 634 

F.2d 621 (4th Cir. 1980), cert. denied 450 U.S. 918 (1981) .....................................................10

Dauman Pallet, Inc., 314 NLRB 185 (1994).......................................................................59, 101

David M. Kelsey, 349 NLRB 327 (2007) ....................................................................................52

David R. Webb Co., 311 NLRB 1135, 1136 (1993) ....................................................................39

Dayton Newspapers, Inc., 339 NLRB 650, 653 fn.8 (2003), enfd. in part, 

402 F.3d 651 (6th Cir. 2005)....................................................................................................25

Dayton Power & Light Co., 267 NLRB 202 (1983).................................................... 9, 12, 14, 15

December 12, Inc., 282 NLRB 475, 475 fn. 1 (1986)..................................................................39

Delta Mechanical, Inc., 323 NLRB 76, 77 (1997)...............................................................66, 106

Des Moines Register and Tribune Co., 339 NLRB 1035, 1035 fn. 1 (2003), 

petition for review denied, 381 F.3d 767 (8th Cir. 2004) ..........................................................95

Desert Aggregates, 340 NLRB 289, 292–293 (2003) ..........................................................21, 22

Detroit Newspapers Agency, 326 NLRB 700, 751 fn. 25 (1998), enf. denied 

on other grounds 216 F.3d 109 (D.C. Cir. 2000)......................................................................57

Detroit Newspapers Agency, 326 NLRB 782 fn. 3 (1998), enf. denied 216 

F.3d 109 (D.C Cir. 2000) .........................................................................................................88

Detroit Newspapers Agency, 330 NLRB 524 (2000) ..........................................................23, 89

Diamond Electric Mfg. Corp., 346 NLRB 857, 862–863 (2006) ................................................79

Dickens, Inc., 355 NLRB No. 44 (2010)......................................................................... 10, 45, 97

Dilling Mechanical Contractors, 348 NLRB 98 (2006) ......................................................22, 73

Dish Network Service Corp., 345 NLRB 1071 (2005).........................................................15, 94

Domsey Trading Corp., 310 NLRB 777, 814 fn. 35 (1993), enfd. 16 F.3d 517 

(2d Cir. 1994) ........................................................................................................................110

Domsey Trading Corp., 325 NLRB 429, 429–432 (1998)........................................................117

Domsey Trading Corp., 351 NLRB 824 (2007) ............................................................... 113, 114

Don Lee Distributor, Inc., 322 NLRB 470, 484–485 (1996), enfd. 145 F.3d 834 

(6th Cir. 1998), cert. denied 525 U.S. 1102 (1999) ................................................................113

Don’t Stop, 298 NLRB 961, 962 (1990)......................................................................................44

Dorothy Shamrock Coal Co., 279 NLRB 1298, 1298 fn. 1 (1986), enfd. 833 

F.2d 1263 (7th Cir. 1987).......................................................................................................104

Double D Construction Group, 339 NLRB 303, 306 (2003) ...................................................120

Doubletree Guest Suites Santa Monica, 347 NLRB 782 (2006).........................................75, 79

DPM of Kansas, 261 NLRB 220, 220 fn. 2 (1982)......................................................................24

Drummond Coal Co., 277 NLRB 1618, 1618 fn. 1 (1986)..........................................................99

DTR Industries, 311 NLRB 833, 833 fn. 1 (1993), enf. denied on other grounds, 

39 F.3d 106 (6th Cir. 1994)......................................................................................................25
BOARD CASES 

132

Ducane Heating Corp., 273 NLRB 1389, 1389–1390 (1985), enfd. mem. 785 

F.2d 304 (4th Cir. 1986) ....................................................................................................18, 27

Dun & Bradstreet Software Services, 317 NLRB 84 (1995), affd. 79 

F.3d 1238 (1st Cir. 1996)...................................................................................................17, 36

Dynatron/Bondo Corp., 326 NLRB 1170, 1170 (1998)..............................................................96

E & I Specialists, 349 NLRB 446, 455 (2007)............................................................................99

Earthgrains Co., 336 NLRB 1119, 1122 (2001) .......................................................................124

Earthgrains Co., 351 NLRB 733, 733 fn. 3 (2007) .....................................................................51

East Bronx Health Center, 271 NLRB 898, 898 fn. 1 (1984).....................................................43

East Texas Steel Castings Co., 116 NLRB 1336, 1337 (1956), enfd. 255 

F.2d 284 (5th Cir. 1958) ............................................................................................................7

Edwards Trucking Co., 129 NLRB 385, 386 fn. 1 (1960) ........................................................124

El Mundo Corp., 301 NLRB 351, 351 (1991) .............................................................................84

Electrical Energy Services, 288 NLRB 925, 931 (1988) ...........................................................59

Electrical Workers (Nixdorf Computers Corp.), 252 NLRB 539, 539 fn. 1 (1980) ...........88, 120

Electrical Workers IUE (Spartus Corp.), 271 NLRB 607, 607 (1984).................................35, 37

Electrical Workers IUE Local 201 (General Electric Co.), 188 NLRB 855, 857 

(1971)......................................................................................................................................75

Engineers Beneficial Assn. District 1 (Crest Tankers), 274 NLRB 1481, 

1482 fn. 5 (1985).....................................................................................................................13

Ethan Enterprises, Inc., 342 NLRB 129, 129 fn. 2 (2004), enfd. 154 Fed. 

Appx. 23 (9th Cir. 2005) ..........................................................................................................43

Evergreen America, 348 NLRB 178 (2006).............................................................................109

Expert Electric, Inc., 347 NLRB 18, 19 (2006)...........................................................................48

E­Z Recycling, 331 NLRB 950, 950 fn. 1 (2000) ........................................................................95

Fairfield Tower Condominium Assn., 343 NLRB 923, 923 fn.1 (2004) ....................................15

Farm Fresh, Inc., 301 NLRB 907, 917 (1991)............................................................................63

Federated American Insurance Co., 219 NLRB 200, 203 (1975) ...........................................113

FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002)................................................23, 114

Field Bridge Associates, 306 NLRB 322 (1922), enfd. sub nom. Service 

Employees Local 32B–32J v. NLRB, 982 F. 2d 845 (2d Cir. 1993), cert. 

denied 509 U.S. 904 (1993).....................................................................................................30

First Class Maintenance, 289 NLRB 484, 485 fn. 4 (1988) .....................................................125

First National Supermarkets, 302 NLRB 727, 727–728 (1991) ................................................78

First Transit, Inc., 350 NLRB 825 (2007).................................................................................115

Fitel/Lucent Technologies, Inc., 326 NLRB 46 (1998)........................................................68, 92

Flame of Miami, Inc., 159 NLRB 1103, 1105 (1966)..................................................................41

Fleming Companies, 336 NLRB 192, 192 fn. 2 (2001), enfd. in part, 349 F.3d 

968 (7th Cir. 2003).................................................................................................................105

Flint Iceland Arenas, 325 NLRB 318 (1998).................................................................. 72, 75, 76

Florida Coca­Cola Bottling Co., 31 NLRB 21, 21 fn. 2 (1996) ..................................................44

Florida Steel Co., 235 NLRB 1010, 1011­1012 (1978).............................................................109

Fluor Daniel, Inc., 304 NLRB 970, 971 fn. 10, 975, 978, 980 (1991), enfd. 

mem. 976 F.2d 744 (11th Cir. 1992)......................................................................................107

Fluor Daniel, Inc., 350 NLRB 702, 713 (2007).........................................................................106

Food Lion, Inc., 304 NLRB 602, 602 fn. 4 (1991) ......................................................................75

Formosa Plastics Corp., Louisiana, 320 NLRB 631, 641 (1996)............................................103

Forsyth Electric Co., 332 NLRB 801, 818 (2000)....................................................................108

Franklin Iron & Metal Corp., 315 NLRB 819 fn. 1 (1994), enfd. 83 F.3d 156 

(6th Cir. 1996) .......................................................................................................................121
BOARD CASES 

133

Franks Flower Express, 219 NLRB 149, 149–150 (1975), enfd. mem. 529 

F.2d 520 (5th Cir. 1976) ....................................................................................................41, 42

Fredericksburg Glass & Mirror, 323 NLRB 165, 175–176 (1997)...........................................109

Free­Flow Packaging Corp., 219 NLRB 925, 926 (1975), enfd. in part 566 

F.2d 1124 (9th Cir. 1978).........................................................................................................55

Freightway Corp., 299 NLRB 531, 531 (1990).....................................................................17, 37

Freuhauf Corp., 274 NLRB 403, 405–406 (1985) ......................................................................46

Frontier Foundries, Inc., 312 NLRB 73 (1993)....................................................................75, 78

Frontier Hotel & Casino, 324 NLRB 1225, 1225–1226 (1997) ..................................................23

G. W. Truck, 240 NLRB 333, 334–335 (1979)............................................................................36

Gallup, Inc., 349 NLRB 1213 (2007) ....................................................................................67, 94

Garden Ridge Management, Inc., 347 NLRB 131, 131 fn. 3 (2006)........................................125

Garvey Marine, Inc., 328 NLRB 991, 995–997 (1999) ...............................................................29

General Molds & Plastics Corp., 122 NLRB 182, 186 (1958)...................................................37

George Joseph Orchard Siding, Inc., 325 NLRB 252, 252–253 (1998) .................................117

Glacier Packing Co., 204 NLRB 597, 600 (1973), enfd. 507 F.2d 415 

(9th Cir. 1974) .........................................................................................................................42

Golden Hours Convalescent Hospitals, 200 NLRB 279, 280 fn. 5 (1972) ...............................11

Goldsmith Motors Corp., 310 NLRB 1279, 1279 fn. 1 (1993) .................................................108

Goski Trucking Corp., 325 NLRB 1032, 1032 (1998)..............................................................101

Gourmet Foods, 270 NLRB 578, 579 (1984).............................................................................47

Government Employees (IBPO), 327 NLRB 676 (1999)...........................................................51

Goya Foods of Florida, 347 NLRB 1118, 1119–1120 (2006), enfd. 525 

F.3d 1117 (11 th Cir. 2008)........................................................................................................39

Goya Foods of Florida, 351 NLRB 94, 94 fn. 4 (2007), enfd. 309 Fed. 

Appx. 422 (D.C. Cir. 2009) ......................................................................................................23

GPS Terminal Services, 333 NLRB 968 (2001)...................................................................20, 47

Graham­Windham Services, 312 NLRB 1199, 1199 fn. 2 (1993)..............................................51

Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394–395 

(1998), enfd. mem. 215 F.3d 1327 (6th Cir. 2000)...................................................................88

Granite Construction Co., 330 NLRB 205, 210–211 fn. 1 (1999)............................................112

Great Lakes Chemical Corp., 300 NLRB 1024 (1990), enfd. 967 F.2d 624 

(D.C. Cir. 1992) .................................................................................................................29, 88

Great Lakes Screw Corp., 164 NLRB 149, 149 fn. 2 (1967), revd. and 

remanded 409 F.2d 375 (7th Cir. 1969)...................................................................................49

Great Northwest Builders, 344 NLRB 969 (2005).....................................................................77

Great Western Produce, 299 NLRB 1004, 1004 fn. 1 (1990) ....................................................23

Greenpark Care Center, 236 NLRB 683, 683 fn. 3 (1978).........................................................44

Greyhound Lines, 319 NLRB 554 (1995) ............................................................ 5, 28, 83, 84, 85

Greyston Bakery, 327 NLRB 433, 440 fn. 13 (1999) ...............................................................117

Grimmway Farms, 314 NLRB 73, 73–74 (1994), enfd. in part mem. 85 

F.3d 637 (9th Cir. 1996) ..........................................................................................................98

GTE Automatic Electric, 196 NLRB 902, 903 (1972) ................................................................47

Guess, Inc., 339 NLRB 432, 434 (2003).....................................................................................60

H. B. Zachry Co., 310 NLRB 1037 (1993).................................................................. 66, 122, 123

H. B. Zachry Co., 319 NLRB 967, 979–980 (1995) ..................................................................107

Hall Industries, 293 NLRB 785, 785 fn. 1 (1989), enfd. mem. 914 F.2d 244 

(3d Cir. 1990) ................................................................................................................ 9, 11, 13

Halstead Industries, 299 NLRB 759, 759 fn. 1 (1990), remanded, 940 F.2d 66, 

72–73 (4th Cir. 1991).............................................................................................................119
BOARD CASES 

134

Hansen Bros. Enterprises, 313 NLRB 599 (1993) ..............................................................68, 71

Harco Trucking, LLC, 344 NLRB 478, 479 (2005).....................................................................25

Hardesty Co., 336 NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002)...........................35

Harowe Servo Controls, Inc., 250 NLRB 958, 1033 (1980) ....................................................110

Harris Corp., 269 NLRB 733, 734 fn. 1 (1984)...........................................................................17

Harrison Steel Castings Co., 255 NLRB 1426, 1426–1427 (1981) ...........................................23

Haven Manor Health Related Facility, 243 NLRB 39 (1979) ....................................................49

Heads & Threads Co., 261 NLRB 800, 800 fn. 1 (1982), enfd. in part 724 

F.2d 282 (2d Cir. 1983) ...........................................................................................................13

Hempstead Lincoln Mercury Motors Corp., 349 NLRB 552, fn. 4 (2007) ................................29

Hijos de Ricardo Vela, Inc., 194 NLRB 377, 377 fn. 1 (1971), enfd. 475 

F.2d 58 (1st Cir. 1973).............................................................................................................42

Hillview Convalescent Center, 266 NLRB 758 (1983)..............................................................45

Hi­Tech Cable Corp., 318 NLRB 280, 280 (1995), enfd. in part 128 F.3d 271 

(5th Cir. 1997) .........................................................................................................................21

Hogan Masonry, 314 NLRB 332, 333 fn. 1 (1994)...................................................................109

Hollywood Roosevelt Hotel Co., 235 NLRB 1397, 1397 (1978) .........................................30, 77

Hopkins Hardware, 280 NLRB 1296, 1297 (1986).....................................................................38

Horizon Group of New England, 347 NLRB 795 (2006) (same).............................................113

Host International, 290 NLRB 442, 442 (1988) .........................................................................98

Hotel & Restaurant Employees Local 274 (Warwick Caterers), 269 NLRB 482, 

482–483 (1984).......................................................................................................................28

Hotel Del Coronado, 345 NLRB 306, 306 fn. 1, 308 fn. 1 (2005)...............................................48

Howard Mfg. Co., 231 NLRB 731, 732 (1977)............................................................................56

Il Progresso Italo Americano Publishing Co., 299 NLRB 270, 270 fn. 4, 289 

(1990)......................................................................................................................................37

Impact Industries, 285 NLRB 5, 6 (1987), remanded on other grounds 847 

F.2d 379 (7th Cir. 1988) ..........................................................................................................85

Independent Stations Co., 284 NLRB 394, 394 fn. 1, 412, 415 (1987) ...................................116

Independent Stave Co., 287 NLRB 740, 743 (1987) .................................................................74

Indianapolis Glove Co., 88 NLRB 986, 987 (1950) ......................................................... 9, 11, 15

Information Processing SVC, Inc., 330 NLRB No. 95 (2000)...................................................24

International Business Systems, 258 NLRB 181, 181 fn. 5 (1981), enfd. mem. 

659 F.2d 1069 (3d Cir. 1981)...................................................................................................97

I­O Services, 218 NLRB 566, 566 fn. 1 (1975).........................................................................124

Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd. in part 331 F.2d 176 

(8th Cir. 1964) .........................................................................................................................88

Iron Workers Local 27 (Morrison­Knudson), 313 NLRB 215, 217 (1993), 

enfd. mem. 70 F.3d 119 (9th Cir. 1995)...................................................................................75

Iron Workers Local 433 (Reynolds Electrical), 298 NLRB 35, 35–36 (1990), 

enfd. mem. 931 F.2d 897 (9th Cir. 1991).................................................................................19

Iron Workers Local 75 (Defco Construction), 268 NLRB 1453, 1456 fn. 8 (1984)...................55

Ironworkers Local 843 (Norglass, Inc.), 327 NLRB 29 (1998) .................................................90

J. G. Braun Co., 126 NLRB 368, 369 fn. 3 (1960)....................................................................118

J. P. Stevens & Co., 179 NLRB 254, 255 (1969), enfd. 441 F.2d 514 (5th Cir. 1971), 

cert. denied 404 U.S. 830 (1971).............................................................................................48

J.C. Penny Co., 172 NLRB 1279 (1968), enfd. In relevant part 416 F.2d 702, 705 

(7th Cir. 1969) .......................................................................................................................107

J.J. Cassone Bakery, 345 NLRB 1305 (2005)...........................................................................15

J.S. Troup Electric, Inc., 344 NLRB 1009, 1009–1010 (2005)...........................................97, 120
BOARD CASES 

135

Jefferson Chemical Co., Inc., 200 NLRB 992, 992 fn. 3 (1972) ................................................23

Joel I. Keiler, 316 NLRB 763, 766–770 (1995), vacated by unpublished district 

court order dated February 3, 1998 .........................................................................................53

John Cuneo, Inc., 276 NLRB 75, 77 (1985), remanded 792 F.2d 1181 (D.C. Cir. 1986)............47

John Cuneo, Inc., 298 NLRB 856 (1990).................................................................................115

K & L Fire Protection Systems, 306 NLRB 988, 988 fn. 1 (1992).............................................42

K.O. Steel Foundry & Machine, 340 NLRB 1295 (2003).....................................................12, 93

Kaiser Aluminum & Chemical Corp., 339 NLRB 829 (2003)..............................................60, 64

Kamtech, Inc., 333 NLRB 242, 242 fn. 4 (2001).......................................................................101

Kanakis Co., 293 NLRB 435, 435–437 (1989) ...........................................................................27

Kaumagraph Corp., 313 NLRB 624, 624–625 (1994)..........................................................20, 47

Kelley Bros. Nurseries, 145 NLRB 285, 285 fn. 2 (1963), enf. denied 341 

F.2d 433 (2d Cir. 1965) .........................................................................................................115

Kenrich Petrochemicals, Inc., 149 NLRB 910, 911 fn. 2 (1964) .............................................122

Kentucky Tennessee Clay Co., 343 NLRB 931, 932 (2004), enfd. 179 Fed. 

Appx. 153 (4th Cir. 2006).........................................................................................................19

KFMB Stations, 343 NLRB 748, 748, fn. 3 (2004) .....................................................................78

Kimtruss Corp., 305 NLRB 710, 711 (1991)..............................................................................20

Kings Harbor Health Care, 239 NLRB 679 (1978) ....................................................................53

Konig, 318 NLRB 337, 338 fn.7 (1995).......................................................................................51

Kroger Co., 211 NLRB 363, 364 (1974).....................................................................................91

KW Electric Inc., 327 NLRB 70 (1998).......................................................................................75

Laidlaw Transit, Inc., 315 NLRB 509, 512 (1994)....................................................................110

Laidlaw Transit, Inc., 327 NLRB 315, 316 (1998)..............................................................65, 116

Lamar Advertising of Hartford, 343 NLRB 261, 265 (2004) .....................................................22

Laura Modes Co., 144 NLRB 1592, 1596 (1963).......................................................................28

Leach Corp., 312 NLRB 990, 991–992 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995)..............25, 26

Leisure Knoll Assn., 327 NLRB 470, 470 fn. 1 (1999).......................................................66, 106

Liberty Coach Co., 128 NLRB 160, 162 fn. 7 (1960) ...............................................................117

Local 282 Teamsters, 335 NLRB 1253, 1254 (2001).................................................................47

Local Union 290, UFCW, 348 NLRB 998 (2006)........................................................................75

Longshoremen ILA Local 1814 (Amstar Sugar), 301 NLRB 764, 764–765 (1991)..................75

Longshoremen ILA Local 20 (Ryan­Walsh Stevedoring), 323 NLRB 1115, 1120 

(1997)....................................................................................................................................124

Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 

(9th Cir. 1981) .........................................................................................................................88

Louisiana Dock Co., 293 NLRB 233, 250–251 (1989), enf. denied, 909 F.2d 281 

(7th Cir. 1990) .......................................................................................................................122

M. J. Mechanical Services, 324 NLRB 812, 832 (1997)............................................................57

M. J. Santulli Mail Services, 281 NLRB 1288, 1288 fn. 1 (1986)...............................................51

MacDonald's Industrial Products, 281 NLRB 577, 577 (1986).................................................26

Machinists Lodge 1129 (Sunbeam Appliance Co.), 216 NLRB 630, 630 (1975).....................10

Mack Trucks, 277 NLRB 711 fn. 1 and 715–723 (1985) ............................................................45

Maietta Contracting, 265 NLRB 1279, 1279–1280 (1982), enfd. mem. 729 

F.2d 1448 (3d Cir. 1984)..........................................................................................................51

Mail Contractors of America, 347 NLRB 1158 (2006), enf. denied on other 

grounds, 514 F.3d 27 (D.C. Cir. 2008).....................................................................................50

Manbeck Baking Co., 130 NLRB 1186, 1189–1190 (1961).....................................................124

Manno Electric, 321 NLRB 278, 278 fn. 7 (1996) ......................................................................87
BOARD CASES 

136

Manor West, Inc., 311 NLRB 655, 665 fn. 1 (1993)....................................................................16

Maremont Corp. World Parts Division, 249 NLRB 216, 216–217 (1980).................................23

Marian Manor for the Aged and Infirm, Inc., 333 NLRB 1084 (2001).......................................64

Marine Engineers District 1 (Dutra Construction), 312 NLRB 55, 55 (1993) ........................103

Marriott Corp., 172 NLRB 1891, 1892 fn. 1 (1968), enfd. in part 417 F.2d 176 

(4th Cir. 1969) .........................................................................................................................87

Martin Luther King, Sr. Nursing Center, 231 NLRB 15, 15 fn. 1 (1977).................................108

Massillon Community Hospital, 282 NLRB 675, 675 fn. 5 (1987) ..........................................109

Massillon Community Hospital, supra ...................................................................................109

Master Mechanical Insulation, 320 NLRB 1134, 1134 fn. 2 (1996)...........................................29

Matter of an Attorney, 307 NLRB 913, 913 (1992)....................................................................52

Maywood Plant of Grede Plastics, 235 NLRB 363, 365–366 (1978), enfd. as 

modified 628 F.2d 1 (D.C. Cir. 1980).......................................................................................28

McAllister Bros., 278 NLRB 601, 601 fn. 2 (1986), enfd. 819 F.2d 439 

(4th Cir. 1987) .......................................................................................................................105

McAllister Towing & Transportation Co., 341 NLRB 394 (2004), 

enfd. 156 Fed. Appx. 386 (2d Cir. 2005)..................................................................... 52, 58, 67

McDaniel Ford, Inc., 331 NLRB 1645 (2000).............................................................................71

McKenzie Engineering Co., 326 NLRB 473, 485 fn. 6 (1998) .................................................109

Medite of New Mexico, Inc., 314 NLRB 1145 (1994), enfd. 72 

F.3d 780, 787 (10th Cir. 1995).........................................................................................86, 105

Meisner Electric, Inc., 316 NLRB 597, 597 (1995), affd. mem. 83 F.3d 436 

(11th Cir. 1996) .......................................................................................................................21

Merillat Industries, 307 NLRB 1301, 1301–1302 (1992)............................................................13

Metro Demolition Co., 348 NLRB 272, 272 fn. 3 (2006)............................................................99

Metropolitan Transportation Services, 351 NLRB 657, 670 (2007).......................................100

Meyers Bros. of Missouri, Inc., 151 NLRB 889, 893 fn. 1 (1965)..............................................37

Meyers Transport of New York, 338 NLRB 958, 968–969 (2003)...........................................102

Miami Systems Corp., 320 NLRB 71, 71 fn. 2 (1995), modified but affirmed on 

point, Uforma/Shelby Business Forms v. NLRB, 111 F.3d 1284, 1293–1294 

(6th Cir. 1997) .......................................................................................................................110

Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), enfd. in relevant part and 

remanded 111 F.3d 1284 (6th Cir. 1997)...............................................................................113

Michigan Expediting Service, 282 NLRB 210, 210 fn. 6 (1986), enfd. mem. 869 

F.2d 1492 (6th Cir. 1989).........................................................................................................34

Midland Hilton & Towers, 324 NLRB 1141, 1141 fn. 1 (1997) ................................................101

Mid­State Ready Mix, 316 NLRB 500, 500–501 (1995) .............................................................28

Midwestern Personnel Services, Inc., 331 NLRB 348, 349 (2000) ..........................................49

Mimbres Memorial Hospital & Nursing Home, 342 NLRB 398, 403 fn. 14 

(2004), enfd. 483 F.3d 683 (2007)...........................................................................................99

Mine Workers (James Bros. Coal), 191 NLRB 209, 209–210 (1971)........................................77

Minette Mills, Inc., 316 NLRB 1009, 1010–1011 (1995) ............................................................92

Moeller Bros. Body Shop, 306 NLRB 191, 192 (1992)) ............................................................25

Monark Boat Co., 276 NLRB 1143, 1143 fn. 3 (1985), enfd. 800 F.2d 191 

(8th Cir. 1986) .........................................................................................................................91

Money Radio, 297 NLRB 705, 705–706 (1990)..........................................................................13

Monfort of Colorado, 298 NLRB 73, 82 fn. 37 (1990)..............................................................111

Monongahela Power Co., 324 NLRB 214, 214–215 (1997).................................................26, 98

Morgan’s Holiday Markets, 333 NLRB 837, 840–841 (2001)....................................................27

Multi­Ad Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 

(7th Cir. 2001) .......................................................................................................................113
BOARD CASES 

137

National Automatic Sprinklers, 307 NLRB 481, 481 fn. 1 (1992) .............................................55

National Football League, 309 NLRB 78 (1992) .......................................................................61

National Specialties Installations, Inc., 344 NLRB 191 (2005) ........................................68, 123

National Telephone Directory Corp., 319 NLRB 420 (1995)............................................66, 119

National Telephone Services, 301 NLRB 1, fn. 2 (1991) ..........................................................75

Nations Rent, Inc., 339 NLRB 830, 831 (2003)..........................................................................79

Nationwide Transport Finance v. Cass Information, 523 F.3d 1051, 1058 

(9th Cir. 2008) .......................................................................................................................106

New York Sheet Metal Works, Inc., 243 NLRB 967, 967 fn. 3 (1979).....................................120

New York Times Co., 265 NLRB 353, 353 (1982) .....................................................................14

Nickles Bakery of Indiana, 296 NLRB 927 (1989).....................................................................19

Norris Concrete Materials, 282 NLRB 289, 291 (1986) ............................................................79

Nortech Waste, 336 NLRB 554, 554 fn. 2 (2001).......................................................................71

North Carolina License Plate Agency # 18, 346 NLRB 293, 294 fn. 5 (2006), 

enfd. 243 F.3d. Fed. Appx. 771 (4th Cir. 2007)........................................................................66

North Hills Office Services, 342 NLRB 437, 437 fn. 2 (2004) ...................................................86

Northern Cap Mfg. Co., 146 NLRB 198, 201­204 (1964).........................................................116

Norton Audubon Hospital, 338 NLRB 320, 320 fn. 1 (2002).....................................................99

Nursing Center at Vineland, 318 NLRB 901, 903 (1995), enfd. mem. 

151 LRRM 2736 (3d Cir. 1996)..........................................................................................29, 51

O.K. Machine & Tool Corp., 279 NLRB 474, 479 (1986)...........................................................56

Office Depot, Inc., 330 NLRB 640, 640–642 (2000)...................................................................19

Offshore Mariners United, 338 NLRB 745 (2002)......................................................... 29, 39, 55

Old Dominion Freight Line, 331 NLRB 111 (2000)...................................................................21

Olin Corp., 268 NLRB 573, 573–575 (1984) ..............................................................................78

Omaha Building Trades Council (Crossroads Joint Venture), 284 NLRB 

328, 329 fn. 4 (1987), enfd. 856 F.2d 47 (8th Cir. 1988)........................................................118

Operating Engineers District 1 (Crest Tankers), 274 NLRB 1481, 1482 (1985)......................49

Operating Engineers Local 12 (Griffith Co.), 212 NLRB 343, 345 (1974), revd. on 

other grounds 545 F.2d 1194 (9th Cir. 1976), cert. denied, 434 U.S. 854 (1977).....................48

Operating Engineers Local 9 (Fountain Sand Co.), 210 NLRB 129 (1974).....................46, 116

Opryland Hotel, 323 NLRB 723, 723 fn. 3 (1997) ....................................................................105

Optica Lee Borinquen, 307 NLRB 705 fn. 6 (1992), enfd. 991 F.2d 786 

(1st Cir. 1993) (Table) ...........................................................................................................104

Orland Park Motor, 333 NLRB 1017 fn. 1 & 1024­1026 (2001)................................................110

Our Way, Inc., 244 NLRB 236, 236 fn. 1 (1979).........................................................................34

Outdoor Venture Corp., 327 NLRB 706, 708–709 (1999) .........................................................98

Pacific Coast Metal Trades Council (Lockheed Shipbuilding), 282 NLRB 

239, 239 fn. 2 (1986) .............................................................................................................103

Packaging Techniques, Inc., 317 NLRB 1252, 1253 (1995) ................................... 55, 56, 57, 67

Page Litho, Inc., 311 NLRB 881 (1993), enfd. in part mem. 65 

F.3d 169 (6th Cir. 1995) ..................................................................................................46, 116

Page Litho, Inc., 325 NLRB 338, 338–339 (1998) .....................................................................47

Park Maintenance, 348 NLRB 1373, 1373 fn. 2 (2006)............................................................103

Park­Ohio Industries, 283 NLRB 571, 572 (1987).....................................................................77

Parts Depot, Inc., 332 NLRB 670, 674 (2000), enfd. 24 Fed Appx. 1 (D.C. Cir. 2001) .............107

Parts Depot, Inc., 348 NLRB 152, 152 fn. 6 (2006)..................................................................107

Pathmark Stores, Inc., 324 NLRB 378, 378 fn. 1 (2004)............................................................10

Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004)............................................................88

Patrick Cudahy, Inc., 288 NLRB 968, 969–971 (1988)..............................................................62
BOARD CASES 

138

Payless Drug Stores, 313 NLRB 1220, 1220–1221 (1994) .......................................................20

Perdue Farms, 323 NLRB 345, 348 (1997), affd. in relevant part 144 F.3d 830, 

833–834 (D.C. Cir. 1998)...................................................................................................58, 67

Performance Friction Corp., 335 NLRB 1117 (2001)...................................................... 109, 110

Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 

(2d Cir. 1990) ..........................................................................................................................21

Peter Vitalie Co., 310 NLRB 865, 865 fn. 1 (1993)...............................................................41, 42

Peyton Packing Co., 129 NLRB 1358, 1360 (1961)...................................................................23

Phoenix Co., 274 NLRB 995, 995 (1985)...................................................................................87

Pincus Elevator & Electric Co., 308 NLRB 684, 684–685 (1992), enfd. mem. 

998 F.2d 1004 (3d Cir. 1993)...................................................................................................21

Pipefitters Local 290, UFCW, 348 NLRB 998 (2006) ................................................................74

Planned Building Services, Inc., 347 NLRB 670 (2006)............................................. 92, 99, 114

Plumbers Local 457 (Bomat Plumbing and Heating), 131 NLRB 1243, 

1245–1247 (1961), enfd. 299 F.2d 497 (2d Cir. 1962).............................................................28

Porto Mills, 149 NLRB 1454, 1470 (1964) .................................................................................79

Postal Service Marina Center, 271 NLRB 397, 397–400 (1984)...............................................26

Postal Service, 300 NLRB 196, 198, fn. 13 (1990).....................................................................79

Pottsville Bleaching Co., 301 NLRB 1095, 1095–1096 (1991) .................................................77

Precision Industries, 320 NLRB 661 (1996), enfd. 118 F.3d 585 (8th Cir. 1997) ................29, 30

Public Service Co., 312 NLRB 459, 461 (1993).........................................................................25

Quaker Tool & Die, Inc., 169 NLRB 1148, 1148 (1968).............................................................23

Quality Asbestos Removal, 310 NLRB 1214, 1215 (1993).......................................................45

Quality Hotel, 326 NLRB 83, 83 fn. 4 (1998)..............................................................................46

Quarles Mfg. Co., 83 NLRB 697 (1949), remanded 190 F.2d 82 

(5th Cir. 1951) ............................................................................................................... 104, 111

Quebecor Group, Inc., 258 NLRB 961, 961 fn. 1 (1981)............................................................44

Queen of the Valley Hospital, 316 NLRB 721, 721 fn. 1 (1995)..............................................108

Quinn Co., 273 NLRB 795, 799 (1984).......................................................................................78

R. Sabee Co., 351 NLRB 1350, 1350 fn. 3 (2007)........................................................ 66, 97, 110

R.K. Mechanical, 27–CA–18863 (unpublished Board order, June 23, 2008, 

fn. 2)........................................................................................................................................60

Raley’s, 348 NLRB 382 (2006)......................................................................................... 107, 109

Ratliff Trucking Corp., 310 NLRB 1224, 1224 (1993) ...............................................................77

RC Aluminum Industries, Inc., 343 NLRB 939 (2004)............................................................101

Reading Anthracite Co., 273 NLRB 1502, 1502 (1985) ......................................................14, 15

Red & White Supermarkets, 172 NLRB 1841, 1846 (1968) ......................................................87

Redd­I, Inc., 290 NLRB 1115, 1115–1116 (1988)........................................................... 19, 21, 28

Redway Carriers, 274 NLRB 1359, 1371 (1985)........................................................................29

Reno Hilton, 319 NLRB 1154, 1185 fn. 18 (1995)....................................................................116

Rhee Brothers, Inc., 343 NLRB 695, 697–698 fn. 5 (2004) .......................................................99

Richard Mellow Electrical Contractors Corp., 327 NLRB 1112, 1112–1113 

(1999)......................................................................................................................................31

Richmond Times Dispatch, 346 NLRB 74, 74 fn. 1 (2005) .......................................................61

Richmond Times Dispatch, 5­CA­29157 et al...........................................................................60

Riley Stoker Corp., 223 NLRB 1146, 1146–1147 (1976), enfd. in part mem. 

559 F.2d 1209 (3d Cir. 1977)...................................................................................................47

Riverdale Nursing Home, 317 NLRB 881, 881 (1995) ..............................................................44

RJR Communications, Inc., 248 NLRB 920, 921 (1980).........................................................101

Roadway Express, 355 NLRB No. 23 (2010).............................................................................30
BOARD CASES 

139

Rock Technologies, 346 NLRB No. 68, slip op. 1 (2006) ..........................................................24

Rolligon Corp., 254 NLRB 22, 22 (1981)...................................................................................56

Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006)......................................108

Roto Rooter, 288 NLRB 1025, 1025 fn. 2 (1988) .................................................................14, 16

Sanford Home for Adults, 253 NLRB 1132, 1132 fn. 1 (1981), affd. in relevant 

part 669 F.2d 35 (2d Cir. 1981)................................................................................................16

Sanford Home for Adults, 253 NLRB 1132, 1132 fn. 1 (1981), enfd. 669 F.2d 35 

(2d Cir. 1981) ............................................................................................................................8

Sargent Karch, 314 NLRB 482 (1994)........................................................................... 50, 52, 86

SBC California, 344 NLRB 243, 243 fn. 3 (2005).....................................................................124

Scientific Ecology Group, 317 NLRB 1259, 1259, 1261 (1995)..............................................105

Scripps Memorial Hospital Encinitas, 347 NLRB 52, 53 (2006) ..............................................79

Seattle Seahawks, 292 NLRB 899, 908 (1989), enfd. mem. 888 F.2d 125 

(2d Cir. 1989) ..........................................................................................................................51

Security Services, Inc., 198 NLRB 1166, 1166 (1972)............................................................118

SEIU United Healthcare Workers—West, 20–CG–65 (October 24, 2006)................................58

Senftner Volkswagen Corp., 257 NLRB 178, 178 fn. 1, 186–187 (1981), 

enfd. 681 F.2d 557 (8th Cir. 1982)...................................................................................47, 122

Septix Waste, Inc., 346 NLRB 494 (2006) .................................................................................78

Serv­Air, Inc., 161 NLRB 382, 382 fn. 1 (1966)..........................................................................89

Service Employees (GMG Janitorial), 322 NLRB 402, 406 (1996).........................................120

Service Employees Local 87 (Cresleigh Management), 324 NLRB 774, 

775–776 (1997).................................................................................................................22, 23

Sheehy Enterprises, Inc., 353 NLRB 803 (2009), reaffirmed and incorporated 

by reference 355 NLRB No. 83 (2010)...................................................................................113

Sheet Metal Workers Local 15, 346 NLRB 199, 202 (2006), enf. denied on 

other grounds, 491 F.3d 429 (D.C. Cir. 2007)........................................................................104

Sheet Metal Workers Local 162 (Lang’s Enterprises), 314 NLRB 923, 923 fn. 2 

(1994)......................................................................................................................................18

Sheet Metal Workers Local 28 (American Elgen), 306 NLRB 981, 981–982 

(1992)................................................................................................................................18, 72

Sheet Metal Workers Local 28 (Borella Bros.), 323 NLRB 207, 209 fn. 2 (1997) ..................102

Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB 766, 774–775 (1989), 

enfd. in part and remanded in part 905 F.2d 417 (D.C. Cir. 1990) ...........................................21

Silver State Disposal Service, 326 NLRB 84, 98–100 (1998).....................................................5

Sioux City Foundry Co., 323 NLRB 1071, 1074 (1997), enfd. 154 F.3d 832, 

837–838 (8th Cir. 1998)...........................................................................................................18

SKC Electric, Inc., 350 NLRB 857, 858 (2007) ..........................................................................19

Skyline Builders, Inc., 340 NLRB 109 (2003)............................................................................44

SMC Engineering & Contracting, 324 NLRB 341, 341 (1997)..................................................34

Smithfield Packing Co., 344 NLRB 1 (2004), enfd. 447 F.3d 821 

(D.C. Cir. 2006) ................................................................................................... 28, 52, 64, 100

Somerville Cream Co., 95 NLRB 1144, 1146 (1951), enfd. 199 F.2d 257 

(1st Cir. 1952)..........................................................................................................................44

Southdown Care Center, 313 NLRB 1114, 1114–1115, 1118 (1994)......................................103

Special Mine Services, 308 NLRB 711, 711, 720–721 (1992), enfd. in part 11 

F.3d 88 (7th Cir. 1993) ............................................................................................................98

Spiegel Trucking Co., 225 NLRB 178, 179 fn. 8 (1976), enfd. mem. 559 

F.2d 188 (D.C. Cir. 1977) ........................................................................................................43

Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955).....................................................................78
BOARD CASES 

140

Spruce Pine Mfg., 153 NLRB 309, 309 fn. 1 (1965), enfd. in part 365 F.2d 898 

(D.C. Cir. 1966) .......................................................................................................................48

St. George Warehouse, 351 NLRB 961 (2007) .........................................................................92

St. George Warehouse, Inc., 349 NLRB 870 (2007) .................................................................24

St. Mary’s Nursing Home, 342 NLRB 979 (2004), affd. 240 Fed. 

Appx. 8, 12–13 (6th Cir. 2007)...........................................................................................89, 98

St. Mary’s Nursing Home, 342 NLRB 979, 980 fn. 6 (2004), second remand 

decision affd. 240 Fed. Appx. 8, 10, 12–13 (6th Cir. 2007)......................................................13

St. Vincent Medical Center, 338 NLRB 888 (2003)...................................................................88

Stagehands Referral Service, 347 NLRB No. 1167 (2006).......................................................21

Star Grocery Co., 245 NLRB 196, 197 (1979) ...........................................................................37

Stark Electric, Inc., 327 NLRB 518, 518 fn. 1 (1999).................................................................99

State Bank of India, 283 NLRB 266, 277–278 (1987)..........................................................50, 51

Sterling Nursing Home, 316 NLRB 413, 416 (1995) ...........................................................28, 79

Stevens Ford, 272 NLRB 907, 907 (1984), enfd. in part 773 F.2d 468, 476–477 

(2d Cir. 1985) ..........................................................................................................................44

Stoody Co., 312 NLRB 1175, 1176–1177, 1182 (1993) .............................................................99

Storer Cable TV of Texas, 292 NLRB 140, 140 (1988)..............................................................23

Storkline Corp., 141 NLRB 899, 902–903 (1963), enfd. in part 330 F.2d 1 

(5th Cir. 1964) .........................................................................................................................20

Stride Rite Corp., 228 NLRB 224, 226 fn. 3 (1977)....................................................................66

Stuart Bochner, 322 NLRB 1096, 1096 (1997)..........................................................................53

Suburban Trails, 326 NLRB 1250, 1250 fn. 1 (1998).................................................................86

Success Village Apartments, Inc., 347 NLRB 1065, 1065 (2006) ............................ 66, 109, 113

Success Village Apartments, Inc., 348 NLRB 579, 579 fn. 4 (2006) ........................................99

Sumo Airlines, 317 NLRB 383, 383 fn. 1 (1995)..........................................................................8

Sunland Construction Co., 311 NLRB 685 (1993)..............................................................47, 62

Sunol Valley Golf Co., 305 NLRB 493, 495 (1991), supplemented by 310 

NLRB 357, 365, 368 fns. 7 and 8 (1993), enfd. 48 F.3d 444 (9th Cir. 1995) ..........................116

Sunshine Piping, Inc., 351 NLRB 1371 (2007).......................................................... 99, 112, 120

T. Steele Construction, Inc., 351 NLRB 1032 fn. 12 (2007)......................................................25

T.L.C. St. Petersburg, 307 NLRB 605, 605 (1992), affd. mem. 985 F.2d 579 

(11th Cir. 1993) .....................................................................................................................101

Task Force Security & Investigations, 323 NLRB 674, 674 fn. 2 (1997)..................................29

Taylor Bros., Inc., 230 NLRB 861, 861 fn. 1 (1977)...................................................................48

Taylor Lumber & Treating, Inc., 326 NLRB 1298, 1298 fn. 2 (1998).........................................63

Team Clean, Inc., 348 NLRB 1231 (2006) .................................................................................90

Teamsters Local 115 (Gross Metal Products), 275 NLRB 1547 (1985)...................................77

Teamsters Local 122 (August A. Busch & Co. of Massachusetts), 334 NLRB 

1190, 1193, and 1255 (2001) ...................................................................................... 10, 53, 97

Teamsters Local 27 (Combined Containair Industries), 209 NLRB 883, 

883–884 (1974).......................................................................................................................26

Teamsters Local 372 (Detroit Newspapers), 323 NLRB 278, 280 fn. 4 (1997) ........................77

Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB 95 (1994)........................89, 110

Teamsters Local 722 (Kasper Trucking), 314 NLRB 1016 (1994), enfd. 

mem. 57 F.3d 1073 (7th Cir. 1995).............................................................................. 11, 14, 15

Teamsters Local 776 (Pennsy Supply), 313 NLRB 1148, 1154 (1994)....................................67

Teamsters Local 777 (Crown Metal), 145 NLRB 197 (1963), enfd. 340 

F.2d 905 (7th Cir. 1964) ....................................................................................................15, 41

Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 (2005)........................60, 68

Technology Service Solutions, 332 NLRB 1096, 1096 and fn. 3 (2000) ..................................89
BOARD CASES 

141

Tejas Electrical Services, 338 NLRB 416 (2002)..............................................................99, 121

Tel Data Corp., 315 NLRB 364, 366–367 (1994), enfd. in part 90 F.3d 1195 

(6th Cir. 1996) .......................................................................................................................115

Terpening Trucking Co., 271 NLRB 96, 96 fn. 1 (1984)............................................................34

Textile Workers Local 229 (Metzger Co.), 120 NLRB 1700, 1700–1701 (1958).......................24

The Carney Hospital, 350 NLRB 627, 630 (2007) .....................................................................19

The Courier Journal, 342 NLRB 1148, 1149–1150 (2004) ........................................................79

Thermoid Co., 90 NLRB 614, 614 fn. 2 (1950)...........................................................................15

Three Sisters Sportswear Co., 312 NLRB 853 (1993), enfd. mem. 55 

F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996) ....................................... 103, 119

Tim Foley Plumbing Services, 337 NLRB 328, 329 (2001) ......................................................99

Times Herald Record, 334 NLRB 350, 354 (2001), enfd. 27 Fed. Appx. 64 

(2d Cir. 2001) ........................................................................................................................105

Today’s Man, 263 NLRB 332 (1982)......................................................................................7, 73

Trinidad Logistics Co., 7–CA–44621 et. al., ALJ order dated June 4, 2002, 

2002 WL 1466281 ...................................................................................................................66

Tri­Tech Services, 15–CA–16707, dated July 17, 2003.............................................................60

Tri­Way Security, 310 NLRB 1222, 1223 fn. 5 (1993)................................................................34

U.S. Precision Lens, 288 NLRB 505, 505 fn. 3 (1988)...............................................................68

U.S. Steel Corp., 280 NLRB 837 (1986).....................................................................................49

U­Haul of Nevada, Inc., 345 NLRB 1301, 1302 (2005), enfd. 490 F.3d 957 

(D.C. Cir. 2007) .......................................................................................................................23

Unga Painting Corp., 237 NLRB 1306 (1978) ............................................................... 83, 84, 85

Union Starch & Refining Co., 82 NLRB 495, 496 (1949)............................................................5

United Chrome Products, 288 NLRB 1176, 1176 fn. 1 (1988)..................................................83

United Electrical Contractors Assn., 347 NLRB 1 (2006)..................................................28, 37

United Parcel Service, 304 NLRB 693 (1991)...........................................................................61

United Scrap Metal, Inc., 344 NLRB 467, 467–468 and fn. 5 (2005).......................................104

United States Service Industries, 324 NLRB 834, 834 (1997) .................................................36

United Technologies Corp., 310 NLRB 1126, 1127 fn. 1 (1993), enfd. mem. 29 

F.3d 621 (2d Cir. 1994) ................................................................................................. 109, 111

University Medical Center, 335 NLRB 1318, 1318 fn. 1, 1343 (2001), enfd. in part 

335 F.3d 1079 (D.C. Cir. 2003)..........................................................................................10, 97

Urban Laboratories, 305 NLRB 987, 987–988 (1991)...............................................................78

USA Remediation Services, Inc., 5–CA–31524, JD–20–06, 2006 WL 691192 

(March 15, 2006), adopted in the absence of exceptions May 16, 2006) ...........................49, 52

Valentine Painting and Wallcovering, Inc., 331 NLRB 883, 884 (2000)...................................56

Vallow Floor Coverings, Inc., 335 NLRB 20, 20–21 (2001) ......................................................27

Vanguard Fire & Security Systems, 345 NLRB 1016, 1020 (2005)..........................................94

Vencare Ancillary Services, 334 NLRB 965, 968–969 (2001), enf. denied on 

other ground, 352 F.3d 318 (6th Cir. 2003)..............................................................................30

Vencor Hospital Los Angeles, 324 NLRB, 235 fn. 5 (1997)....................................................109

Victor’s Café 52, Inc., 338 NLRB 753, 756–757 (2002).............................................................14

W & M Properties of Connecticut, Inc., 348 NLRB 162 (2006), enfd. 514 

F.3d 1341 (D.C. Cir. 2008) ............................................................................................ 102, 118

W. B. Jones Lumber Co., 114 NLRB 415, 415 fn. 1 (1955), enfd. 245 F.2d 388 

(9th Cir. 1957) .........................................................................................................................89

Wabash Transformer Corp., 215 NLRB 546, 546 fn. 3 (1974), enfd. 509 F.2d 647 

(8th Cir. 1975), cert. denied 423 U.S. 827 (1975) ..................................................................123
BOARD CASES 

142

Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984)......................................................................10, 88

Wallace International of Puerto Rico, 328 NLRB 29, 29 (1999)...............................................29

Wal­Mart Stores, Inc., 339 NLRB 64 (2003) ............................................................................124

Wal­Mart Stores, Inc., 348 NLRB 833, 834 (2006).....................................................................63

Walsh Lumpkin Wholesale Drug Co., 129 NLRB 294 (1960)...........................................20, 124

Water’s Edge, 293 NLRB 465, 465 fn. 2 (1989) .......................................................................125

Waterbed World, 289 NLRB 808, 809 (1988) ............................................................................61

Watsonville Register­Pajaronian, 327 NLRB 957, 959 fn. 4 (1999)..........................................88

Weather Shield Mfg., 292 NLRB 1, 1 fn. 3 (1988), enf. denied 890 F.2d 52 

(7th Cir. 1989) .........................................................................................................................13

Webb Furniture Enterprises, 272 NLRB 312, 312 (1984).........................................................10

Webco, Inc., 340 NLRB 1, 12, 16 (2003)....................................................................................78

Weco Cleaning Specialists, 308 NLRB 310 (1992)......................................................... 102, 109

Well­Bred Loaf, 303 NLRB 1016, 1016 fn. 1 (1991)...................................................................19

Wells Fargo Armored Service Corp., 290 NLRB 872, 873 fn. 3 (1988) ....................................46

Wellstream Corp., 313 NLRB 698, 711 (1994) ........................................................................105

West Texas Utilities, 94 NLRB 1638, 1639 fn. 3 (1951), enfd. 195 F.2d 519 

(5th Cir. 1952) .......................................................................................................................104

Westside Painting, Inc.,  328 NLRB 796, 796–797 (1999) ........................................................90

Whitesville Mill Service Co., 307 NLRB 937, 945 fn. 6 (1992)..................................................99

Whitewood Maintenance Co., 292 NLRB 1159, 1169 fn. 29 (1989), 

enfd. 928 F.2d 1426 (5th Cir. 1991).........................................................................................37

Wilco Business Forms, 280 NLRB 1336, 1336 fn. 2 (1986)..................................................7, 10

Williamhouse of California, Inc., 317 NLRB 699, 699 fn. 1 and JD fn. 2 (1995) .....................105

Winchell Co., 315 NLRB 526, 532 (1994), enfd. mem. 74 F.3d 1227 (3d Cir. 1995) ..................23

Winn­Dixie Stores, 224 NLRB 1418, 1420 (1976), enfd. in part 567 F.2d 1343 

(5th Cir. 1978) .........................................................................................................................47

Wisconsin Bell Telephone, 346 NLRB 62, 64, fn. 8 (2005).......................................................29

Wittek Industries, 313 NLRB 579, 579 (1993)...........................................................................42

Woodworkers Local 3–433 (Kimtruss Corp.), 304 NLRB 1, 2 (1991)......................................75

Wooster Brass Co., 80 NLRB 1633, 1635 (1948)......................................................................79

Worldwide Detective Bureau, 296 NLRB 148, 148 fn. 2 (1989)................................................51

Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), 

cert. denied 455 U.S. 989 (1982)...........................................................................................114

Yaohan U.S.A. Corp., 319 NLRB 424, 424 fn. 2 (1995), enfd. mem. 121 F.3d 720 

(9th Cir. 1997) .......................................................................................................................116

YMCA of the Pikes Peak Region, Inc., 291 NLRB 998, 1010, 1012 (1988), 

enfd. 914 F.2d 1442, 1449–1450 (10th Cir. 1990), cert. denied 500 U.S. 904 (1991)..............79

Zurn/N.E.P.C.O., 329 NLRB 484 (1999)...............................................................................47, 56
143

TABLE OF AUTHORITIES 

FEDERAL CASES

Advocate South Suburban Hospital v. NLRB, 468 F. 3d 1038 (7th Cir. 2006)........ 11, 108, 121

Akiona v. U.S., 938 F.2d 158, 160–161 (9th Cir. 1991)............................................................ 108

American Cleaning Co., 291 NLRB 399, 399 fn. 1 (1988)......................................................... 45

American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782, 800 

(7th Cir. 1951), affd. 345 U.S. 100 (1953) ............................................................................... 18

American Stores Co. v. C.I.R., 170 F.3d 1267, 1270 (10th Cir. 1999), cert. 

denied 528 U.S. 875 (1999) .................................................................................................... 99

Askin, 47 F.3d 100, 102–104 (4th Cir. 1995), cert. denied, 516 U.S. 944 (1995) ..................... 105

Auto Workers v. NLRB, 392 F.2d 801, 809 (D.C. Cir. 1967), cert. denied 392 

U.S. 906 (1968)....................................................................................................................... 48

Banks v. U.S., 81 F.3d 874, 876 (9th Cir. 1996)......................................................................... 78

Barrus Construction Co. v. NLRB, 483 F.2d 191, 194–195 (4th Cir. 1973) ............................. 46

Beaird­Poulan Division v. NLRB, 649 F.2d 589, 597–598 (8th Cir. 1981)................................ 46

BPH & Co. v. NLRB, 333 F.3d 213, 222 (D.C.Cir. 2003)............................................................ 77

Canova v. NLRB, 708 F.2d 1498, 1503 (9th Cir. 1983).............................................................. 55

CIR v. Schleier, 515 U.S. 323 (1995)......................................................................................... 78

Concrete Materials of Georgia v. NLRB, 440 F.2d 61, 68 (5th Cir. 1971)................................ 77

Conklin v. Warrington, 476 F. Supp. 2d 458, 464 (M.D. Pa. 2007), affd. in 

relevant part 304 Fed. Appx. 115 (3d Cir. 2008) (unpublished) ............................................... 14

Conley Trucking v. NLRB, 520 F.3d 629 (6th Cir. 2008), enfg. 349 NLRB 308, 

309–313 (2007)..................................................................................................................... 103

Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 218–219 (1938).................... 37

Containair Systems Corp. v. NLRB, 521 F.2d 1166, 1172 (2d Cir. 1975) ................................ 77

Continental Winding Co., 305 NLRB 122, 129 (1991).............................................................. 85

Curtiss­Wright Corp. v. NLRB, 347 F.2d 61, 72 (3d Cir. 1965)................................................. 18

Diebold v. Civil Service Commission of St. Louis County, 611 F.2d 697, 

700–701 (1979)..................................................................................................................... 112

EEOC v. Lutheran Social Services, 186 F.3d 959, 960 (D.C. Cir. 1999).................................. 57

Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1010 (4th Cir. 1997)....................................................... 12

Esmark, Inc. v. NLRB, 887 F.2d 739, 746 fn. 6 (7th Cir. 1989).................................................. 26

F. J. Buckner Corp. v. NLRB, 401 F.2d 910 (9th Cir. 1968).................................................... 112

F.D.I.C. v. Elio, 39 F.3d 1239, 1248 (1st Cir. 1994).................................................................. 112

Facet Enterprises v. NLRB, 907 F.2d 963, 969–975 (10th Cir. 1990)....................................... 22

Faretta v. California, 422 U.S. 806, 834 fn. 46 (1975)............................................................... 12

Father & Sons Lumber v. NLRB, 931 F.2d 1093, 1096–1097 (6th Cir. 1991), 

enfd. 297 NLRB 437, 437 (1989)............................................................................................. 45

Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996) ............................................. 12

Finley Lines Joint Protective Board Unit 200 v. Norfolk Southern Ry., 312 F.3d 

943, 947 (8th Cir. 2002) ........................................................................................................ 108
FEDERAL CASES 

144

Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 972 (6th Cir. 2003), cert. denied, 

543 U.S. 1089 (2005).............................................................................................................. 88

Flying Food Group, Inc.v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006)...................................... 25

FTC v. GlaxoSmithKline, 202 F.R.D. 8 (D.D.C. 2001) .............................................................. 57

Garment Workers ILGWU Local 415–475 (Arosa Knitting) v. NLRB, 501 F.2d 

823, 826, 832–833 (D.C. Cir. 1974) ........................................................................................ 77

Geders v. U.S., 425 U.S. 80, 87–88 (1976)................................................................................ 83

General Electric Co. v. Joiner, 522 U.S. 136 (1997) .............................................................. 107

Gilson v. Sirmons, 520 F.3d 1196, 1243 (10th Cir. 2008)....................................................... 106

Great Lakes Screw Corp. v. NLRB, 409 F.2d 375 (7th Cir. 1969) ...................................... 10, 49

Halstead Metal Products v. NLRB, 940 F.2d 66, 72–73 (4th Cir. 1991) ................................. 119

Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127, 132–133 

(2d Cir. 2005).......................................................................................................................... 45

Hickman v. Taylor, 329 U.S. 495, 511 (1947) ........................................................................... 64

Hoffman Plastics Compounds v. NLRB, 535 U.S. 137 (2002)............................................... 114

Hylton v. John Deere Co., 802 F.2d 1011,1015 (8th Cir. 1986) ................................................ 24

J. C. Penney Co. v. NLRB, 384 F.2d 479, 484 (10th Cir. 1967)............................................... 119

Jencks v. U.S., 353 U.S. 657, 662 (1957).................................................................................. 66

Johnson v. Morgenthau, 160 F.3d 897, 898 (2d Cir. 1998) ...................................................... 99

Kenrich Petrochemicals v. NLRB, 893 F.2d 1468, 1483 (3d Cir. 1990), cert. 

denied 498 U.S. 981 (1990) .................................................................................................... 39

Koehler v. Department of the Air Force, 99 M.S.P.R. 82 (2005) ............................................. 91

Ladies Garment Workers (McLoughlin Mfg.) v. NLRB, 463 F.2d 907, 921–923 

(D.C. Cir. 1972)....................................................................................................................... 27

LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389–391 (7th Cir. 1995) ......................... 112

Lee v. Martinez, 136 N.M. 166, 168 (2004).............................................................................. 107

Liteky v. U.S., 510 U.S. 540 (1994) ........................................................................... 9, 13, 14, 15

Lloyd A. Fry Roofing Co. v. NLRB, 222 F.2d 938, 940 (1st Cir. 1955) ..................................... 20

London v. Grandview Building Assoc., 183 U.S. 308, 341 (1902)........................................ 113

Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 591–592 (D.C. Cir. 1994)......................................... 19

Ludlum v. Department of Justice, 87 M.S.P.R. 56, 66 fn. 3 (2000)........................................ 108

Luman v. Tanzler, 411 F.2d 164, 167 (5th Cir. 1969), cert. denied, 396 

U.S. 929 (1969)..................................................................................................................... 112

Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 414–429 

(1960) ............................................................................................................................... 25, 26

Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1090–1091 

(7th Cir. 1992)......................................................................................................................... 29

Matter of Maurice, 73 F.3d 124, 126 (7th Cir. 1995)................................................................ 112

McKaskle v. Wiggins, 465 U.S. 168, 183–184 (1984)............................................................... 12

Mississippi Valley Structural Steel Co. v. NLRB, 145 F.2d 664, 665–667 

(8th Cir. 1944)......................................................................................................................... 42

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)............................... 33

NLRB v. 15th Avenue Iron Works, 964 F.2d 1336, 1337 (2d. Cir. 1992).................................. 88

NLRB v. American Potash & Chemical Corp., 98 F.2d 488, 492 (9th Cir. 1939)..................... 42
FEDERAL CASES 

145

NLRB v. Augusta Bakery Corp., 957 F.2d 1467 (7th Cir. 1992) ....................................... 97, 100

NLRB v. Bakers of Paris, Inc., 929 F. 2d 1427 (9th Cir. 1991)........................................ 116, 125

NLRB v. Beverly Manor Nursing Home, 174 F.3d 13, 35 (1st Cir. 1999, enfg. 

325 NLRB 598 (1998) ............................................................................................................. 95

NLRB v. C. H. Sprague & Son, 428 F.2d 938, 942 (1st Cir. 1970) ............................................ 68

NLRB v. Carolina Food Processors, Inc., 81 F.3d 507, 513–514 (4th Cir. 1996)..................... 58

NLRB v. Champa Linen Service, 324 F.2d 28, 30 (10th Cir. 1963) .......................................... 97

NLRB v. Continental Hagen Corp., 932 F.2d 828, 832–833 (9th Cir. 1991)............................. 87

NLRB v. Cook County School Bus, Inc., 283 F.3d 888, 893 (7th Cir. 2002).......................... 113

NLRB v. Coughlin, 176 LRRM 3197, 2005 WL 850964 (S. Dist. Ill. 2005) 

(not reported in F. Supp. 2d) ................................................................................................... 57

NLRB v. Del Ray Tortilleria, Inc., 787 F. 2d 1118, 1121­1122 (7th Cir. 1986), 

enfg. 272 NLRB 1106, 1115 fn. 21 (1984)............................................................................. 116

NLRB v. Detroit Newspapers Agency, 185 F.3d 602, 605 (6th Cir. 1999) ............................... 60

NLRB v. Dinion Coil, 201 F.2d 484, 491 (2d Cir. 1952)....................................................... 19, 21

NLRB v. Donna­Lee Sportswear, 836 F.2d 31 (1st Cir. 1987).................................................. 30

NLRB v. Doral Building Services, 666 F.2d 432, 435 (9th Cir. 1982)..................................... 125

NLRB v. Duquesne Electric Co., 518 F.2d 701, 705 (3d Cir. 1975)........................................ 122

NLRB v. Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir. 1981) ............................................ 87

NLRB v. Fant Milling Co., 360 U.S. 301 (1959) ............................................................ 17, 19, 25

NLRB v. First Termite Control Co., 646 F.2d 424 (9th Cir. 1981)........................................... 101

NLRB v. Food & Commercial Workers Local 23, 484 U.S. 112 (1987) ............................. 18, 72

NLRB v. Gissel Packing Co., 395 U.S. 575, 608–609 (1969) ................................................. 114

NLRB v. Glacier Packing Co., 507 F.2d 415, 416 (9th Cir. 1974) ............................................. 43

NLRB v. Heyman, 541 F.2d 796 (9th Cir. 1976) ........................................................................ 30

NLRB v. Hijos de Ricardo Vela, Inc., 475 F.2d 58, 61 (1st Cir. 1973) ...................................... 43

NLRB v. Honaker Mills, 789 F.2d 262, 265 (4th Cir. 1986) ................................................. 11, 14

NLRB v. Imperial House Condominium, 831 F.2d 999, 1003 (11th Cir. 1987) ........................ 17

NLRB v. Int’l Medication Systems, 640 F.2d 1110 (9th Cir. 1981), denying enf. 

of 244 NLRB 861 (1979) ......................................................................................................... 68

NLRB v. J. H. Rutter­Rex Mfg. Co., 396 U.S. 258, 264 (1969).................................................. 28

NLRB v. Kohler Co., 220 F.2d 3, 7 (7th Cir. 1955) .................................................................... 17

NLRB v. Laborers Local 264, 529 F.2d 778 (8th Cir. 1976)................................................ 17, 36

NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 704–705 (8th Cir. 1967)....................................... 17

NLRB v. Midland Daily News, 151 F.3d 472, 474–475 (6th Cir. 1998)...................................... 57

NLRB v. O’Keefe & Merritt Mfg. Co., 178 F.2d 445, 447 (9th Cir. 1949)................................... 33

NLRB v. O’Neill, 965 F.2d 1522, 1528–1529 (9th Cir. 1992), cert. denied 509 

U.S. 904 (1993)....................................................................................................................... 37

NLRB v. Oil Workers (Catalytic Maintenance), 476 F.2d 1031, 1037 (1st Cir. 1973) .............. 77

NLRB v. Piqua Munising Wood Products Co., 109 F.2d 552, 557 (6th Cir. 1940)................... 19

NLRB v. Raymond Pearson, Inc., 243 F.2d 456, 458 (5th Cir. 1957) ....................................... 17

NLRB v. South Bay Daily Breeze, 415 F.2d 360, 363–365 (9th Cir. 1969), cert. 

denied 397 U.S. 915 (1970) .................................................................................................. 113

NLRB v. Tex­Tan, Inc., 318 F.2d 472, 483 (5th Cir. 1963)....................................................... 103

NLRB v. United Sanitation Service, 737 F.2d 936, 940–941 (11th Cir. 1984).......................... 97

North American Rockwell Corp. v. NLRB, 389 F.2d 866, 871 (10th Cir. 1968) ....................... 20

Opus 3 Ltd. v. Heritage Park, 91 F.3d 625 (4th Cir. 1996).................................................. 84, 85
FEDERAL CASES 

146

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786­789 (3 rd Cir. 1994) ................................ 60

Paul E. Iacono Structural Engineer, Inc. v. Humphrey, 722 F.2d 435 

(9th Cir. 1983)......................................................................................................................... 45

Perry v. Leeke, 488 U.S. 272, 283–284 (1989).......................................................................... 83

Pierce v. Atchison Topeka & Santa Fe, 110 F.3d 431, 444 (7th Cir. 1997)............................ 111

Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 943–944 (D.C. Cir. 1999)........................................ 8

Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 944–945 (D.C. Cir. 1999), 

enfg. in part 324 NLRB 918, 918 fn. 1 (1997).......................................................................... 28

Quercia v. U.S., 289 U.S. 466, 469 (1933)................................................................................... 9

Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 343 

(2d Cir. 1994)........................................................................................................................ 110

Robertson v. Dept. of Transportation, 113 M.S.P.R. 16 (2009)............................................... 91

Rosenberg v. U.S., 360 U.S. 367, 370, (1959) ........................................................................ 123

Sarkes Tarzian, Inc., 157 NLRB 1193, 1194 fn. 3 (1966) .......................................................... 44

Smith­Weik Machinery Corp. v. Murdock Machine Co., 423 F.2d 842, 845 

(5th Cir. 1970)......................................................................................................................... 42

Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148–149 (7th Cir. 1990), cert. denied, 

498 U.S. 1024 (1991).............................................................................................................. 28

Swidler & Berlin v. U.S., 524 U.S. 399 (1998)........................................................................... 64

Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), affd. on point, 123 

F.3d 899, 907 (6th Cir. 1997) ................................................................................................ 108

Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 105 (D.C. Cir. 2000), 

enfd. 328 NLRB 1058, 1059–1060 (1999)............................................................................. 107

Tramonte v. Fibreboard Corp., 947 F.2d 762, 764 (5th Cir. 1991) ......................................... 125

U.S. v. Burke, 504 U.S. 229, 242 (1992).................................................................................... 78

U.S. v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)..................... 60

U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 1999)....................................................................... 108

U.S. v. Evans, 113 F.3d 1457, 1462–1467 (7th Cir. 1997)......................................................... 63

U.S. v. Filani, 74 F.3d 378, 386 (2d Cir. 1996)........................................................................... 11

U.S. v. Gonzalez­Soberal, 109 F.3d 64 (1st Cir. 1997).................................................... 9, 11, 15

U.S. v. Henderson, 409 F.3d 1293, 1303 (11 th Cir. 2005), cert denied 126 S.Ct. 

1331 (2006)........................................................................................................................... 107

U.S. v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995), cert. denied 516 U.S. 980, 

1130, 1165 (1995 and 1996)................................................................................................... 85

U.S. v. Janis, 428 U.S. 433 (1976)........................................................................................... 113

U.S. v. Logan, 998 F.2d 1025, 1029 (D.C. Cir. 1993), cert. denied 510 U.S. 1000 

(1993) ............................................................................................................................... 10, 13

U.S. v. Magana, 127 F.3d 1, 5 (1st Cir. 1997)............................................................................ 83

U.S. v. Martinez, 151 F.3d 384, 390–391 (5th Cir. 1998), cert. denied 525 U.S. 

1031 and 1085 (1998 and 1999)........................................................................................... 123

U.S. v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) ............................................................ 14

U.S. v. Norris, 873 F.2d 1519, 1525–1526 (D.C. Cir. 1989), cert. denied 493 

U.S. 835 (1989)....................................................................................................................... 11

U.S. v. Parks, 100 F.3d 1300, 1305 and fn. 2 (7th Cir. 1996)................................................... 105

U.S. v. Picciononna, 885 F.2d 1529 (11 th Cir. 1989) ............................................................... 107

U.S. v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998)......................................................................... 9
FEDERAL CASES 

147

U.S. v. Sepulveda, 15 F.3d 1161, 1175–1176 (1st Cir. 1993), cert. denied 512 

U.S. 1223 (1994)..................................................................................................................... 83

U.S. v. Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998) ............................................................... 11

U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357, 358–359 (D. Mass. 1950) ................. 62

U.S. v. Warner, 971 F.2d 1189, 1197 (6th Cir. 1992)............................................................. 9, 10

U.S. v. Williams, 136 F.3d 1166, 1168–1169 (7th Cir. 1998) ..................................................... 85

U.S. v. Wilson, 103 F.3d 1402, 1406 (8th Cir. 1997).................................................................. 86

U.S. v. Zolin, 491 U.S. 554, 571 (1989) ..................................................................................... 60

United States v. White, 589 F.2d. 1283, 1286 (5th Cir. 1979)................................................. 112

Upjohn Corp. v. U.S., 449 U.S. 383, 389–390 (1981)................................................................ 62

Vaca v. Sipes, 386 U.S. 171, 182 (1967)................................................................................... 18

Vioxx Products Liability Litigation, 501 F. Supp. 2d 789 (E.D. La. 2007) ......................... 62, 63

W & M Properties of Connecticut, Inc. v. NLRB, 514 F.3d 1341 (D.C. Cir. 2008), 

affg. 348 NLRB 162 (2006) ................................................................................................... 114

Wallace Corp. v. NLRB, 323 U.S. 248, 253–254 (1944)............................................................ 71

Waterbury Hotel Management v. NLRB, 314 F.3d 645, 650–651 (D.C. Cir. 2003)............. 13, 15

Weis Markets, Inc. v. NLRB, 265 F.3d 239, 245–246 (4th Cir. 2001)........................................ 85

Woodworkers Local 3–433 (Kimtruss Corp.), 304 NLRB 1, 2 (1991)...................................... 77

Wright Electric, Inc. v. NLRB, 200 F. 3d. 1162, 1167 (8th Cir. 2000)........................................ 66

Zenith Radio v. Hazeltine Research, 401 U.S. 321, 342–348 (1971)....................................... 78

149

INDEX A 

absence of discriminatee at trial 

violation may still be found ......................47 

absence of respondent's counsel 

trial may proceed and decision 

written.....................................................46 

administrative law judge 

authority to admonish or reprimand ........50 

correction of transcript.............................89 

decisions 

bench decisions.....................................95 

binding only when subject of 

exceptions passed on by Board........88 

required to follow Board precedent......88 

designation ..................................................6 

disqualification ....................................12–15 

duties......................................................8–10 

ex parte communications 

basic prohibition......................................6 

exceptions to prohibition ....................6–7 

remedial action required .........................7 

admissions 

by attorney...............................................109 

by employer in 8(b)(2) case ....................109 

by supervisor...........................................109 

documents in personnel file ...................109 

in formal papers ......................................111 

in settlement discussions, for 

purpose other than liability .................109 

ADR................................................................73 

adverse inference 

for destruction of evidence.............108, 109 

for failure of witness subpoenaed 

by an adverse party to appear 

and testify...............................................67 

for failure to call favorable witness........108 

for failure to produce subpoenaed 

documents............................................108 

for invoking 5th Amendment 

privilege................................................112 

not for failing to call Board agent...........116 

not for failing to produce lost or 

misplaced documents ...........................68 

affidavits 

affidavit of former manager ....................113 

affidavit of nontestifying witness ...........103 

affidavit of recanting witness .................103 

affidavit of unavailable witness ..............103 

affidavit translation .................................125 

affidavits in general.................................102 

affirmative defenses 

generally.....................................................25 

must be pled ..............................................25 

other defenses.....................................28–31 

Section 10(b)........................................25–28 

after­acquired evidence admissible...........115 

Alternative Dispute Resolution (ADR) .........73 

amendments to complaint 

who may seek and grant 

amendments.....................................19, 20 

answer to complaint 

allegations deemed true if timely 

answer not filed......................................24 

amendments ..............................................24 

motion for summary or default 

judgment.................................................24 

service........................................................37 

time for filing..............................................24 

withdrawn answer .....................................24 

attorney as witness...............................46, 116 

attorney misconduct...............................49–53 

attorney­client privilege..........................57, 62 

applies to information revealing 

attorney’s legal advice, or 

information given to attorney 

for legal advice.......................................62 

bargaining notes not protected 

unless intermingled with 

privileged communications...........63, 103 

corporate records cannot be swept 

within the privilege simply by 

giving them to attorney .........................63 

counseling an unfair labor practice 

exception to attorney­client 

privilege..................................................62 

counseling an unfair labor 

practice, not a tort or crime 

exception to attorney­client 

privilege..........................................63, 112 

privilege survives death of client .............64 

privileged attorney work product, 

fully protected ........................................63 

waiver of privilege if third party 

present....................................................63
INDEX 

150

attorney's admissions ................................109 

auditory equipment not provided 

at trial .........................................................87 B 

background evidence admissible 

to show motive ..........................................98 

backpay, when taxable .................................78 

bankruptcy, Board jurisdiction ....................87 

bargaining notes .........................................103 

bench decision........................................95–96 

bill of particulars ...........................................20 

binding precedent, Board decisions........9, 88 

except when no exception taken 

to relevant portion of judge’s 

decision ..................................................88 

prior findings of another judge.................88 

use of prior record.....................................89 

Board agents 

not permitted to testify without 

written consent of Board or 

General Counsel ............................65, 116 

Board files 

exception for FOIA (Freedom of 

Information Act) material in files...........65 

no production of files without 

written consent of Board or 

General Counsel ....................................65 

briefs 

copying from, not permitted .....................15 

extension of time for filing..........................4 

parties informed where to file...................93 

when filed.....................................................4 C 

charge 

service........................................................36 

charge 

filed by any person or entity.....................17 

Regional Director’s dismissal 

may be appealed to General 

Counsel ..................................................18 

service........................................................36 

sufficiency of charge.................................17 

withdrawal only with consent of 

Regional Director pretrial and only 

with judge, as part of withdrawal 

of complaint allegations, after 

evidence introduced at trial...................18 

charging party 

misconduct of charging party 

as defense ..............................................28 

no right to amend complaint.....................47 

right to appeal to Board in 

compliance proceeding.........................47 

right to fully participate in trial .................47 

right to introduce evidence for 

remedy not sought by General 

Counsel, unless contrary to 

General Counsel’s complaint 

theory......................................................47 

right to pretrial affidavits ..........................46 

should be offered opportunity to 

question witness....................................46 

charging party discriminatee 

treated as adverse witness .....................118 

closely related charge.............................19, 21 

closing statement by judge at trial.................3 

competency of witnesses 

Federal law applies..................................115 

complaint 

adequacy....................................................18 

amendments ..............................................19 

amendments ..............................................20 

amendments ..............................................21 

bill of particulars........................................20 

charging party, no right to amend............47 

closely related to timely charge .........19, 20 

General Counsel's sole discretion 

to issue ...................................................18 

service........................................................37 

unpleaded issue fully litigated..................21 

compliance proceeding 

charging party may appeal to 

Board ......................................................47 

General Counsel without final 

authority .................................................47 

procedural rules ........................................92 

confidential information .............................112 

consolidation of cases 

before and during trial...............................22 

for litigating all known issues 

in one case .............................................23 

when case severed, trial with 

later case ................................................23 

continuances...........................................41–44 

continuing violations ....................................26 

correction of transcript.................................89
INDEX 

151

criminal convictions of witness 

because not criminal case, no 

warning to witness required 

before self­incrimination .....................120 

when evidence on cross­  examination admissible.......................120 

witness’ credibility still weighed ............120 

cross­examination 

beyond the scope of direct 

examination, usually permitted...........119 

criminal convictions, because 

not criminal case, no warning 

to witness required before self­ 

incrimination ........................................112 

impeachment evidence admissible 

except on collateral matter..................119 

names of union supporters not 

obtainable.............................................119 D 

de facto amendment to complaint 

when fully litigated ....................................21 

Dead Man's statutes 

evidence attributed to deceased 

persons admissible, but subject 

to closest scrutiny ...............................104 

evidence inadmissible in State 

court......................................................104 

Federal law applies..................................104 

default judgment.....................................24, 89 

deferral to arbitration 

when required in contract.........................29 

depositions, not permitted except 

when necessary to preserve 

testimony of one’s own witness...............39 

discovery not permitted................................39 

disqualification of judge.........................12–15 

document in personnel file 

generally admissible, but 

inadmissible if prepared for 

"litigation potential".....................110, 111 E 

e­filing............................................................94 

enforcement of subpoena 

in district court in name of Board ............69 

errata, issued by judge .................................10 

evidence affecting remedy for 

applicants denied employment 

Board's FES decision..............................114 

evidence 

instatement of applicants....................114 

evidence affecting remedy for 

illegal aliens / undocumented 

workers determination of 

backpay and reinstatement 

left to compliance ....................................114 

evidence improperly obtained 

not admissible if Government 

agent involved in seizure.....................113 

stolen documents admissible.................113 

ex parte communications 

basic prohibition..........................................6 

exceptions to prohibition............................6 

remedial action required.............................7 

examination of witnesses 

direct examination before cross­  examination..........................................117 

leading questions on direct 

should be discouraged........................117 

past recollection recorded, 

when no present recollection..............119 

refreshing witness’ recollection, 

after memory is exhausted..................118 

Section 611(c) witness, leading 

questions not waived...........................118 

when respondent manager is 

Section 611(c) witness, leading 

questions not permitted on 

cross­examination by respondent......118 

exclusion of witnesses from courtroom 

See separation of witnesses order.............5 

exculpatory material in General 

Counsel's files 

no obligation to produce.........................121 

exhibits submitted in duplicate....................11 

expedited decision in lieu of 

bench decision advantages......................94 

expert witness testimony 

disregarded if based on 

flawed premises ...................................107 

prior notice to opponent .........................107 F 

failure to produce subpoenaed 

documents, appropriate choices 

for judge.....................................................67
INDEX 

152

Federal mediator 

subpoena to compel attendance 

or testimony must be quashed ...........112 

Federal Rules of Evidence 

applied "so far as practicable" .................97 

Fifth Amendment privilege 

witness not required to testify 

without grant of immunity ...................112 

FOIA (Freedom of Information Act) .............65 

formal papers in General Counsel 

Exhibit 1 

admission in position letter attached 

to document in file admissible............111 

document admissible only when an 

admission.............................................111 

former Board employee as counsel.............12 

fraudulent concealment 

three elements required......................27, 28 

Freedom of Information Act (FOIA) .............65 

fully litigated unpleaded issue .....................21 G 

General Counsel 

may withdraw or dismiss charge 

before evidence introduced 

at trial......................................................18 

no final authority in compliance 

proceeding .............................................47 

sole discretion to issue complaint ...........18 

grant of immunity........................................113 H 

handwriting authentication ........................107 

hearings 

See trials ....................................................11 

hearsay 

admissibility if "rationally 

probative," with "slightest 

amount" of corroboration....................101 

exceptions to hearsay rule .....................102 

judge should exercise informed 

caution before receiving 

hearsay, relying on reliability, 

necessity, probative value, 

and corroboration by other 

evidence .......................................101, 102 

twice­removed hearsay, 

held unreliable......................................101 

I 

impeachment of witness, evidence 

admissible except on collateral 

matter .......................................................119 

in camera inspections...........................60, 123 

interference with subpoena 

compliance counting attendance 

at trial against attendance record.............68 

discouraging employee to 

appear at trial .........................................68 

discouraging employee to 

speak to Board agent.............................68 

stating or implying subpoena 

is voluntary.............................................68 

interlocutory appeals from 

judges rulings............................................89 

interpreters 

accuracy of translation, official 

interpreter’s version governs..............116 

if alleged threats made in 

English, witness should 

be able to recount in English ..............116 

judges’ authority to require 

Agency to furnish interpreters............117 

intervention at trial..................................11, 48 

investigation by General Counsel 

not litigable ................................................29 

issue preclusion, referring to 

res judicata and collateral 

estoppel......................................................29 

J 

Jencks statement..........................................66 

charging party entitled on cross­  examination to use affidavit of 

respondent witness .............................122 

definition of Jencks rule ...................66, 122 

General Counsel’s policy, on 

request, to furnish Jencks 

statement to charging party................122 

Jencks rule not waived when 

copy of affidavit given to union ..........122 

judge may permit copying of 

Jencks affidavit....................................124 

no production of affidavit of alleged 

discriminatee required when called 

by respondent, after no damaging 

testimony given....................................122
INDEX 

153

no production of Board agent’s 

unadopted notes of conversation 

with witness .........................................123 

no production of charging party’s 

affidavit when called by respondent 

before called by General Counsel.......122 

no requirement to produce 

affidavits from other cases 

regarding matters about which 

witness has not testified .....................121 

not producible by subpoena.....................66 

origin of Jencks rule .................................66 

signed letter relating to direct 

examination producible.......................123 

sufficient time to study required ............124 

tape recording of person applying 

for job, not a Jencks statement ..........106 

time for production..................................123 

when dispute over content of 

affidavit, judge must inspect 

statement in camera ............................121 

when portion of affidavit read 

into evidence, entire affidavit 

admissible ............................................118 

judge 

designation ..................................................6 

disqualification ....................................12–15 

duties............................................................8 

ex parte communications 

basic prohibition......................................6 

exceptions to prohibition ........................6 

remedial action required .........................7 

may prohibit counsel from 

conferring with witness .........................83 

judges rulings, interlocutory appeals..........89 

judicial notice................................................99 L 

laches, generally not applicable ..................28 

leading questions should be 

discouraged on direct.............................117 

litigation costs, when awarded ....................53 M 

market quotations and directories, 

a hearsay exception ................................104 

mediator testimony...............................66, 112 

misconduct of charging party 

may affect findings of violations ..............28 

may require withholding of 

bargaining order ....................................28 

must be heard if an affirmatively 

pleaded case ..........................................28 

ordinarily not a defense to alleged 

violations ................................................28 

motion for default or summary 

judgment..............................................24, 89 

motion to dismiss, standard to 

follow..........................................................89 

motion to reopen record for newly 

discovered evidence .................................92 N 

newly discovered evidence ..........................92 

newspaper reports, whether 

admissible................................................104 

nonadmission clause in settle­ 

ment agreement acceptable, 

but not included in posted 

notice..........................................................77 

non­Board settlements .........73, 74, 77, 78, 79 

noncompliance with settlement 

agreement, consequences..................27, 79 O 

oaths 

administration of oath.................................5 

interpreter’s oath.........................................6 

witness oath 

or affirmation............................................5 

objective test of coercion 

subjective understanding 

of supervisor's statement, 

normally inadmissible .........................113 

offer of reinstatement admissible ..............114 

offers of proof 

usually made in narrative form...............100 

when judge sustains objection 

to question ...........................................100 

when made on cross­examination .........100 

when objection to offered 

evidence is waived...............................101 

when Q and A offer permitted.................100 

official notice 

certain official documents ........................99 

NLRB decisions.........................................99 

opening and closing statements 

by judge at trial............................................3
INDEX 

154

opening trial by telephone or mail ...............90 

opinion testimony .......................................106 

oral argument..........................................11, 93 P 

parol evidence 

admissible to resolve ambiguities 

or to ascertain correct 

interpretation........................................113 

inadmissible to vary or contradict 

terms of agreement..............................113 

parties 

in interest ...................................................49 

misconduct, reprimand, 

suspension....................... 9, 13, 28, 49–53 

necessary...................................................48 

representation .....................................45, 46 

unrepresented .....................................11, 45 

past recollection recorded .........................119 

polygraphs 

whether results admissible.....................107 

position of parties may be 

requested during trial................................93 

position statement by attorney 

admissible........................................104, 109 

position statements ......................................65 

postelection proceeding 

counsel for General Counsel in 

complaint case.......................................46 

same counsel as Regional 

Director’s representative 

in representation case...........................46 

presettlement conduct showing 

union animus .............................................98 

pretrial and trial briefs ..................................93 

privileges 

attorney­client..............................62, 63, 112 

Board agents .............................................65 

burden of proof..........................................59 

Federal law applies..................................111 

Fifth Amendment, immunity ...................112 

in camera review........................................60 

privilege log/index.....................................59 

reporter’s ...................................................65 

waiver...................................................63, 65 

work product......................................64, 112 R 

rebuttal testimony.......................................125 

refreshing recollection, after 

memory is exhausted..............................118 

relitigation of issues at trial or in 

compliance proceedings...........................29 

remands, limited issues................................91 

remedy 

charging party’s right to introduce 

evidence for remedy not sought 

by General Counsel, unless 

contrary to General Counsel’s 

theory......................................................47 

reopen record for newly discovered 

evidence.....................................................92 

reply briefs in discretion of judge................94 

res judicata..............................................29, 30 

revival of withdrawn or dismissed 

charge not permitted unless 

1) fraudulent concealment........................27 

2) noncompliance with Settlement 

Agreement..............................................27 

3) closely related to current complaint ....28 

rules of evidence...........................................11 S 

Section 10(b) affirmative defense 

charge not filed and served in 

6 months...........................................17, 25 

computation of 10(b) period .....................25 

no bar to reinstating charge after 

fraudulent concealment, three 

elements required..................................27 

no bar to reinstating charge after 

noncompliance with settlement 

agreement.........................................27, 79 

no bar to reinstating charge while 

timely appeal of dismissal pending 

before General Counsel.........................18 

no bar when amended complaint 

closely related to timely charge............21 

Section 10 (b) not jurisdictional 

may be waived........................................25 

withdrawn or dismissed charge 

not revivable after 6 months, 

exceptions........................................27–28 

Section 611(c) witness 

leading questions not waived.................118 

when respondent manager is 

Section 611(c) witness, leading 

questions not permitted on cross­  examination by respondent.................118
INDEX 

155

Section 8(g) notice........................................30 

self­incrimination 

because not criminal case, no 

warning to witness required................112 

separation of witnesses order 

exceptions.............................. 4, 5, 83, 84, 86 

model order..................................................4 

requests for order.................. 4, 5, 83, 84, 86 

scope of order .......................4, 5, 83, 84, 86 

violations .............................................85–86 

sequestration 

See separation of witnesses 

order ...................................................4, 84 

service of charge required only 

on respondent, not on uncharged 

party to an alleged unlawful 

contract......................................................36 

service of documents .............................33–38 

settlement agreement 

after deferral to grievance procedure ......79 

evidence preserved for later trial 

in scope of agreement clause...............98 

set aside after noncompliance or 

new violation ....................................27, 79 

settlement approval 

after judge’s decision................................73 

after record opens and testimony 

taken.......................................................73 

before record opens and testimony 

taken.......................................................72 

settlement backpay, when taxable...............78 

settlement bar rule 

applied to issues disposed of in 

prior Board settlement, exceptions ......77 

not applied to issues in prior non­ 

Board settlement....................................77 

rule waived if not raised in pleading 

or at trial .................................................31 

settlement discussions 

admissible for other purpose .................110 

inadmissible to prove liability.................110 

settlement efforts 

efforts after trial.........................................72 

efforts at trial .........................................3, 72 

initial contact with parties often 

helpful to freely discuss facts 

and theories parties plan to rely on......71 

settlement judge .....................................80, 81 

settlement liability extinguished for only 

settling respondent, not for nonsettling 

respondents...............................................78 

settlement release of all employee 

claims permissible, unless filing 

of future charges prohibited.....................78 

settlements approved or rejected 

considerations.....................................75–76 

formal settlements.....................................74 

informal settlements..................................74 

non­Board settlements..............................74 

provisions of settlement ...........................77 

settlement by consent order, 

issued in very limited 

circumstances........................................75 

severance of cases 

before and during trial...............................22 

when appropriate.......................................23 

when severed case may be tried 

with later case ........................................23 

State confidentiality rules regarding 

subpoenas honored ..................................66 

State unemployment decisions, 

admissible but not conclusive..................99 

stipulation 

of facts to the judge for decision 

without trial ............................................91 

of record to the Board and waiver 

of trial......................................................91 

of undisputed facts ...................................91 

subpoenas.......................................55–69, 121 

burdensomeness.......................................58 

compliance...........................................67–69 

electronically stored information .............58 

fees and mileage........................................56 

in camera inspection.................................60 

not overbroad ............................................58 

not vague ...................................................58 

privileged material.........................59, 62–65 

protective orders .......................................60 

relevancy....................................................58 

revocation ............................................56–57 

service........................................................38 

summaries of evidence...............................111 

summary judgment.................................24, 89 

surrebuttal testimony .................................125 T 

tape recorder, whether permitted in 

courtroom ..................................................87 

tape recordings 

audio and video recordings made in 

secret................................................105–6 

when obtainable by subpoena................106
INDEX 

156

taut record 

avoiding needless and cumulative 

evidence .................................................97 

television cameras not permitted 

in courtroom ..............................................87 

television interviews, whether 

admissible................................................104 

testimony by Board agents 

Board agents not permitted to 

testify without written consent 

of Board or General Counsel ................65 

testimony by telephone 

disapproved, except when 

judge and all parties agree .......................90 

testimony by video........................................90 

transcript corrections...................................89 

translation of affidavit.................................125 

translators 

See interpreters .......................................116 

trial attorney as witness .......................46, 116 

trial briefs ......................................................93 

trial waived by stipulation ............................91 

trials 

briefs ..........................................................11 

intervention..........................................11, 48 

opening by telephone ...............................90 

postponements 

by judge..................................................41 

by Regional Director..............................41 

public nature..............................................11 

rights of parties ...................................46–48 

rules of evidence .................................11, 97 

scheduled to continue on 

consecutive days...................................41 

time and place .....................................41–44 U 

unconditional offer of reinstatement 

admissible................................................114 

undocumented workers / illegal aliens 

determination of backpay and 

reinstatement left to compliance ........115 

employees under the Act ........................114 

evidence of discrimination 

and prior awareness of 

undocumented status 

admissible ............................................114 

evidence of illegal status 

inadmissible .........................................114 

union animus 

Section 8(c) statements ............................98 

shown by presettlement conduct.............98 

union supporters 

names not obtainable on cross­  examination..........................................119 

unrepresented parties 

must comply with rules.............................11 

no authority to be provided 

counsel .............................................11, 45 

no right to receive personal 

instruction during trial...........................11 V 

video testimony or deposition 

See testimony by video.............................90 W 

waiver of attorney­client privilege................63 

waiver of trial by stipulation.........................91 

waiver of work product privilege .................65 

witness conferring with counsel..................83 

witness statements 

See Jencks statements, above ...............121 

work product privilege..................................64