NLRB DIVISION OF JUDGES BENCH BOOK 

SUPPLEMENT—2005 

(This is a supplement to the existing Bench Book and its September 9, 2001 

page supplement, covering cases and materials through December 2005. 

Topics are pegged to section headings in the existing Bench Book) 

SECTION 2-300—REGULATING THE COURSE OF THE TRIAL—In 

University Medical Center, 335 NLRB 1318 fn. 1, 1343 (2001), enf’d in part 

335 F.3d 1079 (D.C. Cir. 2003), the Board recognized that, in the proper 

circumstances, it is appropriate for the judge to place time limits on the 

presentation of a party’s case. Here, the judge imposed a time limit on the 

presentation of the Respondent’s case in chief after concluding its case was 

taking too much time in proportion to the valid issues presented and there 

was no reasonable alternative except to impose such a limit. 

SECTION 2-510—ALJ DISQUALIFICATION—GROUNDS ASSERTED 

FOR DISQUALIFICATION—In Waterbury Hotel Management, LLC v.

NLRB, 314 F.3d 645, 650-651 (D.C. Cir. 2003), the Court rejected a 

respondent’s contention that the judge deprived it of a fair hearing because 

of bias. The Court noted that a judge may not be disqualified simply 

because he presided over the remand of a case in which he previously ruled 

against the same employer; thus, in the instant case, it was not error for a 

judge not to recuse himself simply because he had ruled against the 

respondent’s predecessor in an unrelated case. The Court also reaffirmed 

that adverse findings alone do not support a finding of bias. Finally, the 

Court held that it is not per se disqualifying for a judge to adopt one side’s 

post-hearing brief “more or less verbatim,” although this practice is frowned 

upon; in the instant case, the Board independently reviewed the entire record 

before affirming the judge. For a similar view on the adoption of briefs, see 

Fairfield Tower Condominium Ass’n., 343 NLRB No. 101 fn. 1 (2004). 

 But see Dish Network Service Corp., 345 NLRB No. 83 (2005), where 

the Board found that the judge, who had previously been warned against this 

practice in Fairfield Tower, copied so extensively from the briefs of the 

General Counsel and the Charging Party that it created the appearance that 

the judge’s decision was not impartial. According to the Board, the judge’s 

extensive and verbatim copying gave the impression that the judge “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 administrative law judge for an independent review of the 

record and the preparation of a new decision. The Board took the same 

approach in J.J. Cassone Bakery, Inc., 345 NLRB No. 111 (2005), another 

case involving the same judge. See also SECTION 12-401(new section), 

infra. 

ALJ DISQUALIFICATION—GROUNDS ASSERTED FOR 

DISQUALIFICATION—JUDGE SHOULD AVOID INTEMPERATE 

COMMENTS TO GUARD AGAINST EVEN THE APPEARANCE OF 

BIAS—In Victor’s Café 52, Inc., 338 NLRB 753, 756-757 (2002), the Board 

cautioned a judge against making intemperate comments about a witness and 

counsel for the General Counsel to avoid giving even the appearance of bias. 

In that case, the Board affirmed the judge’s credibility determinations, but 

expressed its concern that such comments might compromise the integrity of 

the Board’s decision-making processes. 

See also St. Mary’s Acquisition Co., 342 NLRB No. 100 (2004), 

where the Board, in response to a motion by the General Counsel to 

disqualify the judge, and by a 2-1 margin, cited a judge’s erroneous ruling, 

adhered to after an initial remand, and allegations that the judge showed 

“irritation” and “impatience,” in support of a second remand, this time to 

another judge. The Board did this in order to remove any suggestion of bias 

or prejudice, without specifically passing on the motion itself. See fn. 6 at 

slip op. 2.

SECTION 3-220—AMENDMENTS TO COMPLAINTS—WHEN 

AMENDMENTS ARE ALLOWED—CLEARLY RELATED 

DOCTRINE—SECTION 10(b)—In Precision Concrete, 337 NLRB 211 

(2001), enforcement denied in pertinent part, 334 F.3d 88 (D.C. Cir. 2003), 

the Board reaffirmed and applied its Redd-I rule (290 NLRB 1115, 1118 

(1988)) to find that an amended complaint allegation was closely related to 

an existing complaint allegation and therefore was not time-barred under 

Section 10(b) of the Act. The Board found that the otherwise untimely 

allegation involved the same legal theory as the timely allegation, it arose 

from the same factual situation or sequence of events and the respondent 

basically would raise similar defenses to both allegations. See also Kentucky 

Tennessee Clay Co., 343 NLRB No. 102, slip op. 2 (2004). 

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SECTION 3-340—AMENDMENTS TO COMPLAINTS—DE FACTO 

AMENDMENTS—UNPLEADED BUT FULLY LITIGATED—In Desert 

Aggregates, 340 NLRB No. 38, slip op. at 4-5 (2003), modified on 

reconsideration, 340 NLRB 1389 (2003), the Board, citing relevant 

authority, set forth the following general principles: The Board “may find a 

violation not alleged in the complaint, even where the General Counsel has 

not filed a motion to amend, if the issue is closely related to the subject 

matter of the complaint and has been fully and fairly litigated.” According 

to the Board, the fully litigated requirement is met if the respondent’s 

witness testified to the facts giving rise to the unalleged violation, no party 

objects, and the respondent has had an opportunity to further explore the 

issue. However, the Board also considers whether the absence of a specific 

allegation precluded a respondent from presenting exculpatory evidence or 

whether respondent would have altered its conduct of the case at the hearing, 

had a specific allegation been made. Thus, an unalleged violation is not 

necessarily fully litigated simply because the facts giving rise to it emerge 

incidentally during the hearing. In Desert Aggregates, the Board denied the 

General Counsel’s motion to amend made in a post-hearing brief because, in 

its view, the evidence about captive audience meetings, which contained a 

statement allegedly constituting a violation not contained in the complaint, 

emerged incidentally, the respondent did not have notice that the statement 

was at issue, and, thus, the failure to specifically allege a violation may have 

hindered respondent’s defense. Accordingly, the Board found that the 

matter was not fully litigated. 

In Champion International Corp., 339 NLRB 672 (2003), the Board, 

in a 2-1 decision, declined to find that an unpleaded allegation of direct 

dealing had been fully and fairly litigated, although the complaint alleged, 

and the Board found, unilateral action in violation of the Act. The Board 

held that the facts supporting that violation would not support a separate 

finding of direct dealing, absent a specific complaint allegation or 

amendment to that effect. There was no full and fair litigation of the direct 

dealing theory, according to the majority, because the respondent was not 

made aware that the facts relevant to the unilateral change allegation were 

intended to prove a separate direct dealing allegation. The Board stated, “It 

is axiomatic that a respondent cannot fully and fairly litigate a matter unless 

it knows what the accusation is.” 339 NLRB at 673. See also Lamar 

Advertising of Hartford, 343 NLRB No. 40, slip op. 5-6 (2004). 

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Compare Airbourne Freight Corp., 343 NLRB No. 72 (2004), where 

the Board approved a judge’s finding that a Section 8(a)(4) violation, which 

was not specifically alleged in the complaint, was fully litigated. The 

complaint alleged, and the judge found, based on an admission by a 

supervisor, that the respondent violated Section 8(a)(1) of the Act by telling 

an employee that he would not be transferred because he had filed charges; 

the complaint alleged, and the judge also found, that respondent in fact 

prevented the transfer for anti-union discriminatory reasons in violation of 

Section 8(a)(3) of the Act. The Board found that the supervisor’s statement 

demonstrated that in preventing the transfer respondent was motivated not 

only by union considerations but also by the fact that the employee filed 

charges. According to the Board, although the judge’s discussion of the 

Section 8(a)(4) violation focused on the supervisor’s statement, it clearly 

covered the respondent’s discriminatory actions, and the parties litigated the 

facts material to that issue “thoroughly and without objection in connection 

with the Section 8(a)(3) violation.” Thus, the Board found that the judge 

“did not exceed his discretion in finding a violation of Section 8(a)(4), as to 

the statement, even absent a specific complaint allegation,” citing Pergament 

United Sales, Inc., 296 NLRB 333, 334-335 (1989), enfd. 920 F.2d 130 (2nd 

Cir. 1990). See also Atlantic Veal & Lamb, Inc., 342 NLRB No. 37 at fn. 5 

(2004), enf’d mem. 2005 WL 3309307 (D.C. Cir. October 27, 2005). 

In U.S. Postal Service, 345 NLRB No. 100 (2005), the Board upheld a 

finding that the Postal Service and its union violated the Act by enforcing a 

contract provision against two employees that limited training instructor 

positions to union members. But the Board refused to remedy that violation 

by affirmatively and broadly ordering reinstatement for unidentified but 

similarly situated employees who were also denied those positions. The 

Board noted that the complaint alleged a violation only with respect to the 

two named employees and a broader violation was neither alleged nor fully 

and fairly litigated. It was not sufficient that a provision of the complaint 

sought the broader remedy for additional employees because, as the Board 

stated, that provision “did not address the threshold issue of what unfair 

labor practices the complaint alleged.” 

 

SECTION 3-500—ANSWER TO COMPLAINT—ADMISSIONS IN 

ANSWER—WAIVER OF AFFIRMATIVE AND OTHER DEFENSES—In 

C.P. Associates, Inc., 336 NLRB 167 (2001), the Board reaffirmed that “an 

admission is in effect a confessory pleading and it is conclusive upon the 

party making it.” Thus, the judge and the Board were entitled to rely on the 

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respondent’s admission in its answers that it terminated an employee “on or 

about” a certain date. As the Board stated, “admissions contained in 

pleadings are binding even where the admitting party later produces contrary 

evidence.” See also Harco Trucking, LLC, 344 NLRB No. 56 (2005), 

collecting cases. In Harco, respondent raised a corporate non-existence 

defense for the first time in its post-hearing brief to the judge, but had 

admitted its existence in its answer. Respondent did not seek to amend its 

answer at the hearing and it first raised the defense in its post-hearing brief 

to the judge. The Board found that to be untimely and ruled that the defense 

was waived in the circumstances. Accord: Dayton Newspapers, Inc., 339 

NLRB 650, 653 fn. 8 (2003), enfd 402 F.3d 651 (6th Cir. 2005) (Section 

10(b) defense, an affirmative defense raised for the first time in a posthearing brief to the judge, is waived). See also, infra, SECTION 13-245. 

SECTION 3-650—REVIVAL OF WITHDRAWN OR DISMISSED 

CHARGE—DUCANE HEATING RULE PREVENTING 

REINSTATEMENT OF DISMISSED CHARGES AFTER PASSAGE OF 6 

MONTHS—The rule in Ducane Heating, 273 NLRB 1389 (1985), enf. 

mem. 785 F.2d 304 (4th Cir. 1986), prevents the General Counsel from

reinstating dismissed charges once 6 months have passed even if the charges 

were timely filed. See Machinists v. NLRB, 130 F.3d 1083 (D.C. Cir. 1997). 

But the situation is different if an appeal of the dismissal remains pending 

before the General Counsel when the charge is reinstated. In that case, the 

General Counsel may reinstate the dismissed charge because “there is no 

basis for concluding that ‘dead’ allegations were being revived.” Sioux City 

Foundry, 323 NLRB 1071 (1997). 

SECTION 3-720—OTHER AFFIRMATIVE DEFENSES—LACHES—In 

an unpublished order (Gruma Corp., Cases 28-CA-17946 et al., March 15, 

2005), the Board denied that part of a respondent’s motion for summary 

judgment asserting that a complaint allegation should be dismissed because 

of laches. The Board stated that “laches may not defeat the action of a 

governmental agency in enforcing a public right,” citing Harding Glass 

Company, Inc., 337 NLRB 1116, 1118 (2002), enf’d in part 80 F.3d 7 (1st

Cir. 1996). But it also recognized that laches could “apply against the Board 

for inordinate delay in bringing an action,” provided that a party showed it 

was prejudiced by the delay, citing Pleasantview Nursing Home, Inc. v. 

NLRB, 351 F.3d 747, 765 (6th Cir. 2003) and other authorities. In Gruma, 

the Board found that the respondent had not made such a showing in the 

absence of a resolution of factual issues. In another unpublished order (The

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Hardaway Company, 12-CA-19952, July 31, 2003), the Board found 

“genuine issues of material fact with respect to the reasonableness of the 

General Counsel’s delay in issuing a complaint . . . and whether [the 

respondent] was unduly prejudiced by the delay.” The Board thus ordered a 

hearing on only that issue, recognizing that such a bifurcated hearing was

contrary to the Board’s usual practice set forth in F.M. Transport, Inc., 302 

NLRB 241 (1991). The Board did so in Hardaway because of the particular 

circumstances involved, including the assertion that witnesses were deceased 

or unavailable, that respondent was no longer in business and that the 

hearing on the merits, which could be somewhat lengthy, was not scheduled 

to begin for several months. 

SECTION 3-750—OTHER AFFIRMATIVE DEFENSES—

RELITIGATION OF ISSUES—COLLATERAL ESTOPPEL—BOARD’S 

FINDINGS IN EARLIER CASE CAN BE USED AS FINDINGS IN 

SUBSEQUENT CASE—In Great Lakes Chemical Corp., 300 NLRB 1024, 

1025 and fns. 3 and 4 (1990), enf’d 967 F.2d 624 (D.C. Cir. 1992), the 

Board granted summary judgment on General Counsel’s motion, holding 

that the Board’s findings in an earlier case could be used as a basis for 

findings in a subsequent case involving the same parties. The respondent 

was collaterally estopped from relitigating the facts in the earlier case. See 

also, infra, SECTION 9-850 (new section). 

SECTION 4-500—SERVICE OF DOCUMENTS—DETERMINING 

DATE OF SERVICE—FAX—In Hardesty Company, 336 NLRB 258, 259 

(2001), enf’d 308 F.3d 859 (8th Cir. 2002), the Board found that the judge 

properly inferred that the union had served the employer with an information 

request by fax. The union’s fax confirmation report, which was introduced 

in evidence, was sufficient to create a presumption that the employer’s 

lawyer received the fax. The lawyer’s non-testimonial denial at trial was not 

sufficient to rebut the presumption. See also, infra, SECTION 13-236 (new

section). 

SECTION 6-302—REQUESTS FOR CONTINUANCE TO OBTAIN 

COUNSEL—WHEN COUNSEL OR PARTY LEAVES TRIAL AFTER 

REQUEST IS DENIED—In Ethan Enterprises, Inc., 342 NLRB No. 15 at 

fn. 2 (2004), enf’d mem. 2005 WL 3037451 (9th Cir., November 14, 2005), 

the Board approved the judge’s decision to proceed with a hearing after 

respondent’s attorney abruptly left in the middle of the hearing after an 

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adverse ruling. The attorney agreed to explain to his client that the hearing 

was going to proceed in his absence. See also, infra, SECTION 7-220.

SECTION 7-220—FAILURE OF PARTY TO APPEAR AT TRIAL—

ABSENCE OF RESPONDENT’S ATTORNEY—See discussion at 

SECTION 6-302, supra, and SECTION 11-350 (new section), infra.

SECTION 7-300—RIGHTS OF CHARGING PARTIES AND 

DISCRIMINATEES—ONLY GENERAL COUNSEL CONTROLS 

THEORY OF THE CASE AND CAN MOVE TO AMEND 

COMPLAINT—In Local 282 Teamsters, 335 NLRB 1253, 1254 (2001) the 

Board reaffirmed the principle that the General Counsel, not the Charging 

Party, determines the theory of the case. Citing GPS Terminal Services, 333 

NLRB 968 (2001), the Board stated that a judge has no authority to amend a 

complaint in a manner that was neither sought nor consented to by the 

General Counsel, even where the record evidence would support the 

additional allegations. 

SECTION 7-500—MISCONDUCT BY ATTORNEY, 

REPRESENTATIVE OR PERSON—In two recent cases, the Board has 

stated that judges, who observe or document what they think is actionable 

misconduct by an attorney or other person, should file, directly and 

separately, any recommendation for discipline with the Board’s investigating 

officer, under Section 102.177(e) of the Board’s Rules and Regulations. In 

those cases, the judges had recommended, in their decisions, that the Board 

refer the matter to the investigating officer and the Board did so, without 

passing on the recommendation. See 675 West End Owners Corp., 345 

NLRB No. 27, slip op. 2-3 (2005); and McAllister Towing & 

Transportation, 341 NLRB No. 48, slip op. 5 at fn. 7 (2004), enf’d mem. 

2005 WL 3263835 (2nd Cir. November 30, 2005). See also Smithfield 

Packing Co., 344 NLRB No. 1, slip op. 14 at fn. 59 (2004) (In referring the 

matter, Board agreed with judge’s recommendation). 

In 675 West End Owners, the Board also pointed out that the judge 

has the authority, under Section 102.177(b), to admonish any person for 

misconduct during a hearing. In that same case, the Board approved the 

judge’s imposition of litigation costs on the offending party for misconduct 

(violation of the judge’s instructions regarding subpoenas) that may have led 

to additional costs for the charging party and the General Counsel. 345 

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NLRB No. 27 at slip op. 3 and fn. 11. See also discussion of 675 West End

Owners in SECTION 8-631(new section), infra. 

SECTION 8-110 (new section)—SUBPOENAS—In Electrical Energy 

Services, 288 NLRB 925, 931 (1988), the Board held that a charging party 

union cannot obtain by subpoena information it alleges the employer 

unlawfully withheld and is also the subject of the unfair labor practice 

complaint. 

SECTION 8-210—GROUNDS FOR REVOKING SUBPOENAS—In 

Brink’s Inc., 281 NLRB 468 (1986), the Board set forth some general 

principles with respect to the grounds for revoking subpoenas and the 

interrelationship between the Board’s rules on subpoenas and the Federal 

Rules of Civil Procedure. For example, in determining whether a subpoena 

should be revoked under the “any other reason sufficient in law” language of 

Rule 102.31(b) of the Board’s Rules, the Board suggested that it would look 

to the Federal Rules of Civil Procedure for “useful guidance,” even though 

the FRCP are not binding on the Agency. 

A subpoena is not “unduly burdensome” simply because it requests a 

large number of documents. McAllister Towing & Transportation Co., 

supra, 341 NLRB No. 48, slip op. 4 (2004). 

SECTION 8-330—SUBPOENAS—PROTECTING INTEGRITY OF 

MATERIAL—PROTECTIVE ORDERS—It is clear that Board 

administrative law judges have the authority to issue protective orders in 

appropriate circumstances. Local 917, Teamsters (Peerless Importers), 345 

NLRB No. 76 at fn. 7 (2005) 

A party seeking a protective order in connection with subpoenaed 

documents that might arguably involve confidential material bears the 

burden of establishing good cause for such an order within the meaning of 

Rule 26(c) of the Federal Rules of Civil Procedure. Under Rule 26(c)(7), a 

protective order may be issued to preclude revelation of a trade secret or 

other confidential research or development information, or to provide that 

“commercial information not be revealed or be revealed in a designated 

way.” 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 

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the persons who are to have access to the information and the use to which 

these persons may put the information. FRCP 26(c)(8) also provides that the 

protected documents may be placed in “sealed envelopes to be opened as 

directed by the court.” 

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 issued by me, 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.” 

 The United Parcel case, discussed above, also notes that the 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. 

As United Parcel further illustrates, protective orders may also be 

used to restrict the use of documents that have been admitted into evidence. 

See SECTION 13-237 (new section), infra. 

SECTION 8-400—PRIVILEGED MATERIAL—Insofar as a party 

contends that material within the scope of the subpoena is privileged, the 

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material should be submitted to the judge for an in camera inspection before 

a ruling on a petition to revoke is made. Brink’s, Inc, supra, 281 NLRB 468, 

470 (1986). If the party refuses to submit the material for in camera 

inspection, an adverse inference may be drawn. University Medical Center, 

supra, 335 NLRB 1318, 1335 (2001). 

SECTION 8-410—SUBPOENAS—ATTORNEY-CLIENT PRIVILEGE—

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 incorporated those facts into a communication with his attorney. Sunland 

Construction Co., 311 NLRB 685, 699-700 (1993), quoting from Upjohn 

Co. v. U.S., 449 U.S. 383, 396-397 (1981). The privilege may, of course, 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. The respondent was 

required to safeguard the document. For an in-depth analysis of attorneyclient and work product issues, see Epstein, The Attorney-Client Privilege 

and the Work-Product Doctrine, Fourth Edition, ABA Section of Litigation 

(2001). See also, infra, SECTION 8-450 (new section). 

 

In an unpublished order (Tri-Tech Services, 15-CA-16707 (July 17, 

2003)), the Board set forth the following general principles and procedures 

for presenting and deciding attorney-client privilege issues: “A party 

asserting the attorney-client privilege bears the burden of demonstrating the 

essential elements of the privilege—that there was a communication 

between client and counsel, that the communication was intended to be and 

was in fact kept confidential, and that the communication was made for the 

purpose of obtaining or providing legal advice. See U.S. v. Construction 

Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), cert. denied 519 

U.S. 927 (1996).” The Board also set forth the requirement that the party 

asserting the privilege must provide an index, identifying the allegedly 

privileged documents and the parties to each of the communications and 

providing sufficient detail to permit an informed decision as to whether the 

document was at least potentially privileged, citing Construction Products, 

supra, and Fed. R. Civ. P. 45(d)(2). Specifically, the index must include “(1) 

a description of the document, including its subject matter and the 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.” The judge may, if 

10
necessary, review the documents in camera to decide whether the documents 

fall within the privilege. 

In BP Exploration, Inc., 337 NLRB 887 (2002), the Board found that 

a respondent need not provide a union with information to which it was 

otherwise entitled because that information was protected by the attorneyclient privilege. The union sought certain health and safety reports that were 

prepared at the behest of respondent’s attorney and in contemplation of 

litigation. Respondent offered a summary of the reports and also offered to 

discuss alternative ways to provide the information requested by the union. 

Since the union insisted on the reports themselves rather than the factual

information in the reports, the Board found that there was no obligation to 

provide the reports or to bargain over an accommodation. The Board cited 

Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1982), in explaining the 

distinction between the disclosure of attorney-client communications and 

disclosure of facts contained in the communication; and In re Grand Jury 

Subpoenas, 123 F.3d 695 (1st Cir. 1997), in explaining that the privilege 

applies if the information relates to facts communicated for the purpose of 

securing a legal opinion, legal services or assistance in a legal proceeding 

(337 NLRB at 889 fns. 5 and 6). 

CRIME/FRAUD EXCEPTION TO ATTORNEY-CLIENT 

PRIVILEGE—In Smithfield Packing Co., supra, 344 NLRB No. 1 (2004), 

the Board discussed several aspects of the attorney-client privilege. It 

discussed the policy considerations supporting the general rule that 

confidential communications between an attorney and his or her client are 

privileged. But the Board noted that “[w]hen the advice pertains to future 

wrongdoing . . . the policy considerations do not apply,” thus providing the 

underpinning for the well established crime/fraud exception to [the] 

attorney-client privilege in federal law, although, as the Board also noted, 

this exception does not encompass violations of the Act. Id., slip op. 13. 

The Board approved the judge’s action allowing testimony concerning an 

alleged attorney-client communication as an offer of proof, but did not 

address the issue directly because the judge did not use any of that testimony 

in his decision. Ibid. The Board also affirmed the judge on another 

attorney-client issue. The judge permitted testimony concerning 

conversations between a witness for the General Counsel and the 

respondent’s attorney in the following circumstances. After the witness’s 

direct testimony, counsel for the respondent attempted to impeach the 

witness by asking her questions about affidavits the witness had given to 

11
respondent’s attorney. After testimony was elicited suggesting that the 

affidavits were false, the judge determined that the attorney-client privilege 

did not apply because the respondent had raised the issue of perjury and the 

testimony raised the issue of possible subornation of perjury and knowing 

introduction of false statements of material fact. The judge properly 

concluded that the affidavits and the communications surrounding the taking 

of the affidavits were within the crime/fraud exception because the credited 

testimony of the witness “pertained to the alleged preparation of false 

affidavits and therefore involved future commission of one or more of the 

crimes identified by the judge.” Id., slip op. 14. 

SECTION 8-440 (clarification)—SUBPOENAS AND STATE 

CONFIDENTIALITY RULES—The Board’s ruling, approved in Canova v. 

NLRB, 708 F.2d 1498, 1501 (9th Cir. 1983) and set forth in the existing 

section of the Bench Book, is of questionable validity. In Yuker 

Construction Co., 335 NLRB 1072 (2001), the Board left undisturbed a 

ruling by the judge that material subpoenaed by the General Counsel from 

the Michigan Unemployment Board, which were protected from disclosure 

by state law, were not privileged and were required to be produced. After 

discussing applicable more recent authorities, the judge concluded that “the 

better rule is that, where state privilege law conflicts with the enforcement of 

a federal statute and the privilege is not otherwise consonant with federal 

evidentiary law, state privilege law is not controlling.” Id. at 1082. Accord: 

ALJ decision in D.C. Scaffold, Inc., Case No. 1-CA-41294 et al., JD-48-04, 

slip op. 16-17 (May 19, 2004), adopted by the Board in the absence of 

exceptions by order dated July 21, 2004; and see Trinidad Logistics Co.,

Case No. 7-CA-44621 et al., ALJ order dated June 4, 2002, 2002 WL 

1466281 (California confidentiality provision precluding the production of 

evidence of criminal convictions does not outweigh need of respondent to 

obtain such evidence through the subpoena process in order to use in 

impeaching an alleged discriminatee testifying in a Board proceeding). 

SECTION 8-450 (new section)—SUBPOENAS—WORK PRODUCT 

DOCTRINE—POSITION STATEMENT OF CHARGING PARTY---In 

Kaiser Aluminum & Chemical Corp., 339 NLRB 829 (2003), the Board 

reversed a judge who had denied a charging party’s petition to quash a 

subpoena duces tecum served on it by a respondent asking for the production 

of the charging party’s position statements submitted to the General 

Counsel. The Board held that the work product doctrine, as reflected in Rule 

26(b)(3) of the Federal Rules of Civil Procedure, applies to unfair labor 

12
practice cases. Thus, the Board found that the position statements submitted 

by the charging party’s attorney during the General Counsel’s investigation 

amounted to attorney work product within the meaning of the Rule. The 

Board also found that the charging party did not waive the work product 

privilege by submitting the position statements to the General Counsel and 

that the respondent had not shown a “substantial need” for the position 

statements within the meaning of Rule 26(b)(3). See also, infra, SECTION

13-215, 13-243 and SECTION 13-275.

SECTION 8-500—JENCKS STATEMENTS—In National Specialties 

Installations, Inc., 344 NLRB No. 2 (2005), the Board held that a written 

notice from a third party to a witness, such as a notice from the witness’s 

bank, is not a “statement made by said witness” within the meaning of 

Section 102.118(d), and, since the notice was not adopted by the witness, by 

withholding the document, the General Counsel did not violate the Jencks 

rule. The Board went on to rule that, while, as a general matter, the General 

Counsel’s failure to produce the bank notice might have given rise to an 

adverse inference, the adverse inference rule is not mandatory. The Board 

found that, in the circumstances, the judge properly declined to make an 

adverse inference because the record evidence as a whole supported the 

judge’s findings of a violation, notwithstanding the General Counsel’s 

failure to produce the notice in question. 

 In NLRB v. Doral Building Services, 666 F.2d 432, 435 (9th Cir. 

1982), the Ninth Circuit found reversible error in the General Counsel’s 

failure to provide official translation of non-English language affidavits of 

its witnesses. The court found that it was not adequate to simply provide the 

original affidavits to the respondent after the witnesses testified and leave it 

up to the respondent to provide its own interpreter to translate the affidavits. 

Thus, the court refused to enforce the Board’s order and remanded the case 

so that the respondent (and the administrative law judge) would be provided 

with an official English translation of the original Spanish statements. See 

also SECTION 13-608 (new section), infra. 

SECTION 8-620—SUBPOENAS—FAILURE TO PRODUCE 

DOCUMENTS—BANNON MILLS SANCTIONS FOR FAILING TO 

TIMELY COMPLY WITH SUBPOENA—In McAllister Towing & 

Transportation, supra, 341 NLRB No. 48 (2004), the Board, by a 2-1 

majority, upheld a judge’s imposition of limited Bannon Mills sanctions for 

the failure of a party to comply with a valid subpoena. The General 

13
Counsel was permitted to use secondary evidence to prove matters as to 

which there was non-compliance and the respondent was not permitted to 

rebut that evidence; but the judge denied the General Counsel’s request to 

limit cross-examination and to automatically draw adverse inferences on the 

relevant issues, explaining that she would do so only if appropriate. The 

facts, which showed a pattern of delay, lack of diligence and untimely 

compliance, were as follows: Although the subpoena was served some 2 

weeks prior to the hearing and a motion to revoke was timely filed, the 

respondent did not supply even plainly relevant documents prior to the 

judge’s conference call held the day before the hearing. In the conference 

call, the judge instructed counsel for respondent to “substantially comply” 

with the subpoena the morning of the trial, rejecting counsel’s argument that 

there was no obligation to comply until the motion to revoke had been ruled 

on. At trial, the judge granted the motion to revoke only in part, but 

respondent complied only in a limited fashion with that portion of the 

subpoena that was not revoked. The General Counsel moved for sanctions 

for non-compliance, and, after further oral argument and deliberation, the 

judge granted the General Counsel’s motion, citing the respondent’s very 

limited compliance at trial and noting that respondent was wrong in asserting 

that it had no obligation to comply with the valid portion of the subpoena 

from the date of issuance until such time as the judge ruled on its motion to 

revoke. After the judge’s ruling on the Bannon Mills sanctions, respondent’s 

counsel for the first time indicated that some additional documents could be 

produced. The judge refused to alter her ruling, observing that respondent 

had resisted complying for 12 days, but saw fit to comply within an hour of 

her ruling on sanctions. 

The Board affirmed the judge’s ruling, stating that it was appropriate 

to impose sanctions for subpoena noncompliance, including permitting the 

party seeking production to use secondary evidence, precluding the noncomplying party from rebutting that evidence or cross-examining witnesses 

about it, and drawing adverse inferences against the non-complying party. 

The Board’s authority to impose such sanctions flows from its inherent 

authority to maintain the integrity of the hearing process, and the exercise of 

this authority is committed in the first instance to the judge’s discretion. The 

Board found that the judge did not abuse her discretion in this case. The 

Board noted that respondent did not comply with the subpoenas upon 

receiving them, even with respect to items that were clearly relevant and 

available, and that it did not begin to comply until after the judge disposed of 

its motion to revoke, and, even then, it sought additional time for 

14
consultations, despite the judge’s instruction to comply immediately. The 

Board specifically approved the judge’s observation that “[a] subpoena is 

not an invitation to comply at a mutually convenient time.” Slip op. at 4. 

Rejecting respondent’s arguments that the subpoena asked for quite a few 

documents and that it made a belated attempt to comply, the Board noted 

that respondent had an obligation “to begin a good faith effort to gather 

responsive documents” upon service of the subpoenas. Ibid. The Board also 

observed that respondent’s noncompliance was likely to prejudice the 

General Counsel’s case and the overall proceeding, noting that the General 

Counsel had started his case-in-chief and respondent was just beginning its 

process of compliance. Moreover, there was difficulty in getting 

subpoenaed witnesses to attend the hearing. Thus, the failure to timely 

produce subpoenaed documents meant that the General Counsel would have 

had to recall witnesses, which would have further disrupted and prolonged 

the hearing. 

 In Teamsters Local 917 (Peerless Importers), supra, 345 NLRB No. 

76 (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 

in so doing. The Board, citing McAllister Towing, supra, 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. 

 See also, infra, SECTION 13-235.

SECTION 8-631 (new section)—IMPROPER USE OF SUBPOENAS; 

VIOLATION OF JUDGE’S INSTRUCTIONS—In 675 West End Owners

Corp., supra, 345 NLRB No. 27, slip op at 3 and fn. 11 (2005), the Board 

approved the imposition of litigation costs against an individual 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 

misconduct of the individual respondent, citing applicable authorities under 

the “bad faith” exception to the American Rule against awarding litigation 

costs. See also discussion of 675 West End Owners in SECTION 7-500, 

supra, and discussion of McAllister Towing in SECTION 8-620, supra 

15
(Bannon Mills sanctions imposed because of delay in complying with 

subpoena in violation of judge’s instructions). 

SECTION 9-500—SETTLEMENTS—REJECTION OF—In Alamo RentA-Car, Inc., 338 NLRB 275 (2002) the Board affirmed the judge’s rejection 

of a proposed settlement agreement, applying the general principles of 

Independent Stave, 287 NLRB 740 (1987). The Board noted that the 

General Counsel objected to the settlement, only one of the four individual 

discriminatees approved of it, and the settlement failed to remedy any of the 

Section 8(a)(1) allegations in the complaint and only partially remedied two 

of the Section 8(a)(3) and (1) allegations. 

SECTION 9-550 (new section)—SETTLEMENTS—COMPLIANCE—

SUMMARY JUDGMENT TO ENFORCE—In Great Northwest Builders,

344 NLRB No. 120 (2005), the Board granted the General Counsel’s motion 

for summary judgment to enforce the terms of a settlement agreement. The 

agreement, by its terms, provided that, in case of non-compliance, 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 by virtue of a motion for summary judgment. See also John 

Pomaville Plumbing, 344 NLRB No. 138 (2005). 

SECTION 9-640—SETTLEMENTS—RELEASES—WAIVER AND 

RELEASE PROVISIONS IN SETTLEMENT AGREEMENTS—In Clark 

Distribution Systems, Inc., 336 NLRB 747 (2001), the Board found that 

broad waiver and release provisions limiting Board investigations and 

prosecution of unfair labor practices were invalid. In Clark, the Board found 

that the clause in question prohibited the signatory employees from

voluntarily providing evidence to the Board in its investigation of charges 

that concern other employees, distinguishing cases in which waiver and 

release agreements were limited to the claims of the employees who entered 

into them. The Board also found that, by conditioning acceptance of the 

settlement agreement on a requirement that employees not participate in the 

Board’s investigatory process, respondent violated Section 8(a)(1) of the 

Act. 

SECTION 9-800—SETTING ASIDE SETTLEMENT AGREEMENTS—

In Nations Rent, Inc., 339 NLRB 830, 831 (2003), the Board reaffirmed that 

a settlement agreement may be set aside and unfair labor practices found, 

based on pre-settlement conduct, if there has been a failure to comply with 

16
the provisions of the settlement agreement or if post-settlement unfair labor 

practices are committed, citing authorities. In Nations Rent, there was no

allegation of post-settlement unfair labor practices, but the Board, in a 2-1 

decision, found that the respondent violated the settlement agreement by 

failing to rescind an allegedly broad no-solicitation/no distribution rule and 

by failing to notify an employee in writing that any references to his 

unlawful discipline and discharge had been removed from respondent’s files 

and that they would not be used against him. 

 In American Postal Workers Local 735, 340 NLRB 1363 (2003), the 

General Counsel revoked a settlement and issued a new complaint, alleging 

that the respondent union had breached the earlier settlement agreement and 

committed a new violation. The union had complied with the terms of the 

original settlement, including the posting of a notice, to remedy an allegation 

that the union violated the Act by discriminating against the charging party, 

a nonmember. But, at the same time, the union’s president wrote an article 

addressed to all members calling the charging party a “scab” and a 

“freeloader,” and asserting that he was “proud” of the actions of the steward 

whose conduct had led to the original unfair labor practice charge. The 

Board, in a 2-1 decision, found that the comments of the union president 

suggested that it was “permissible, indeed laudable, for a union to 

discriminate against nonmembers,” and thus undermined the settlement. It 

found the situation analogous to cases where a respondent posts its own 

disparaging notice alongside the Board’s version. Accordingly, the Board 

found that the General Counsel acted within his discretion in setting aside 

the original settlement and issuing a consolidated complaint alleging 

violations both before and after the execution of the settlement. Id. at 1365. 

In The Courier Journal, 342 NLRB No. 118 (2004), the Board 

dismissed a complaint alleging that respondent had violated the Act by 

failing to provide relevant information to the union because that information 

was the subject of a prior settlement agreement that had been closed on 

compliance. The Board majority found, contrary to the dissent, that the 

information sought in the second complaint was not a new request for 

information, but rather an attempt to revive the original dispute that had been 

settled. According to the Board majority, the union alleged that the 

information sought in the second complaint was information omitted from 

the information provided pursuant to the settlement, but it failed to protest 

the closure of the case on compliance. Thus, the Board declined to set aside 

the settlement. 

17
SECTION 9-850 (new section)—EFFECT OF PRIOR DECISION THAT 

HAS BEEN VACATED BY VIRTUE OF SETTLEMENT—In Caterpillar, 

Inc., 332 NLRB 1116 (2000), the Board held that an order vacating a prior 

published decision pursuant to a settlement agreement vacates that decision 

“only insofar as there is no longer a court-enforceable order in the case and 

the decision has no preclusive effect on the parties.” The decision remains 

published and “may be cited as controlling precedent with respect to the 

legal analysis therein.” This is distinguishable from a vacatur on the merits, 

which does eliminate the prior decision for all purposes, including 

precedential effect. See also SECTION 3-750, supra, and SECTION 11-

303 (new section), infra. 

SECTION 10-500—VIOLATION OF SEPARATION OF WITNESSES 

ORDER—SEQUESTRATION RULE VIOLATION—PREJUDICE 

REQUIRED—In AEi2, LLC, 343 NLRB No. 56 (2004), the Board 

reaffirmed that a violation of a sequestration rule does not amount to 

reversible error unless the complaining party establishes prejudice. The 

Board affirmed the judge’s denial of respondent’s motion to sequester 

because it was untimely. But the Board also found that, even if the judge’s 

ruling was erroneous, it would not have made any difference because 

respondent failed to show that it was prejudiced by the judge’s ruling. The 

non-excluded witness, Carter, was not present in the discussion that was the 

critical event in the case, and thus did not testify about it. Moreover, as the 

Board observed, Carter would have been designated as the Charging Party’s 

designee to remain in the hearing room to assist counsel, had the motion to 

sequester been granted. Since, as the Board also noted, at footnote 3, 

another witness would have been designated by the General Counsel as his 

representative, the Board has in effect endorsed the notion that exceptions to 

a sequestration rule permit the General Counsel and the Charging Party to 

each designate a separate witness to remain in the hearing room to assist 

them. 

 In North Hills Office Services, 342 NLRB No. 25 (2004), slip op. 1, 

fn. 2, the Board rejected respondent’s contention that the attorney for 

charging party testified in violation of the judge’s sequestration order 

because he had been present throughout the trial. Noting that 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,” the Board held 

that “the judge fairly applied the sequestration order to all parties.” 

18
SECTION 11-200—BANKRUPTCY, JURISDICTION OF THE 

BOARD—The Board retains jurisdiction over, and its orders may be 

enforced against, bankrupt employers. In both Title 7 and Title 11 

bankruptcies, Board orders, as “government unit’s police or regulatory 

power,” are exempt under subsections (b)(4) and (b)(5) from the automatic 

stay provision in 11 U.S.C. Section 362(a) of the bankruptcy code. See 

Bristol Nursing Home, 338 NLRB 737 at fn. 1 (2002). Collection of back 

pay, however, requires a separate application to the bankruptcy court. NLRB 

v. Continental Hagen Corp., 932 F.2d 828, 832-835 (9th Cir. 1991); NLRB v. 

15th Avenue Iron Works, 964 F.2d 1336, 1337 (2d Cir. 1992). 

SECTION 11-301—JUDGES DECISIONS, WHEN NOT BINDING 

PRECEDENT—JUDGE’S DECISION ADOPTED WITHOUT 

EXCEPTIONS IS NOT BINDING PRECEDENT—It is well settled that the 

Board’s adoption of all, or even a portion, of a judge’s decision to which no 

exceptions are filed does not serve as precedent for any other case. 

Whirlpool Corp., 337 NLRB 726, 727 at fn. 4 (2002), enf’d mem. 92 Fed. 

Appx. 224 (6th Cir. 2004). See also Pathmark Stores, Inc., 342 NLRB No. 

31 at fn. 1 (2004) and Stanford Hosp. and Clinics v. NLRB, 325 F.3d 334, 

344 (D.C. Cir. 2003).

SECTION 11-302—MOTIONS TO DISMISS—ORALLY AT 

HEARING—BENCH DECISIONS—EVIDENCE IN SETTLED CASES 

PROPERLY USED AS BACKGROUND—In St. Mary’s Acquisition Co., 

supra, 342 NLRB No. 100 (2004), the Board reversed a judge who had 

orally dismissed a complaint on respondent’s motion, on the record, at the 

conclusion of the General Counsel’s case, and it remanded the case to 

another judge. In his initial decision, a ruling from the bench, the judge 

granted the respondent’s motion to dismiss, stating that the General Counsel 

had failed to establish union animus in support of the complaint allegations. 

On an initial appeal, the Board remanded the matter and ordered the judge to 

issue either a written decision or a bench decision, and the judge responded 

by simply issuing a “certification of transcript.” The Board did not pass on 

whether this complied with its initial remand order, but found that the 

motion to dismiss was not properly granted. It found that the judge 

erroneously rejected background evidence of animus proffered by the 

General Counsel, because it was submitted in a settled case. The Board 

found that this evidence should have been considered, citing Black 

19
Entertainment Television, 324 NLRB 1161, 1163 (1997) and Overnite 

Transportation Co., 335 NLRB 372, 376 fn. 18 (2001). 

 

As to the distinction between granting a motion to dismiss an entire 

case and issuing a decision, see also Technology Service Solutions, 332 

NLRB 1096 and fn. 3 (2000). In that case, the judge granted the 

respondent’s motion to dismiss after the conclusion of the General Counsel’s 

case, but, unlike in St. Mary’s, supra, gave the parties an opportunity to 

submit briefs. The Board subsequently vacated the judge’s decision and 

remanded the case for completion of the hearing and the issuance of a 

supplemental decision. After issuance of the supplemental decision, the 

Board ultimately affirmed the judge in part and reversed him in part, but it 

nevertheless questioned the nomenclature used by the judge in defining his 

actions. The judge had described his initial ruling as not being a decision 

under Section 102.45(a) of the Board’s Rules, but rather a dismissal under 

Section 102.35(a)(8). The Board disagreed, and found that it should have 

been labeled a decision so that the appropriate procedures in appealing the 

matter were those under Section 102.46 of the Board’s rules. 

See also, infra, SECTION 12-640 and SECTION 13-106. 

MOTIONS TO DISMISS—VIOLATION OF SKIP COUNSEL 

RULE—In Operating Engineers Local 17, 335 NLRB 578 (2001), the 

Board denied respondent’s motion to dismiss a complaint because one of its 

agents was interviewed by General Counsel and gave a statement without 

the respondent’s counsel being present. According to respondent, this 

conduct was improper and allegedly in violation of Section 10056.6 of the 

Board’s Case Handling Manual. That section of the Manual, which is 

known as the skip counsel rule, provides that normally when a respondent’s 

agent is interviewed by a Board agent the respondent’s counsel should be 

consulted and given an opportunity to be present. The Board, noting that the 

Manual was not binding authority, nevertheless found that the General 

Counsel’s conduct was not improper because the Board agent initiated 

contact with the witness at a time when no notice of appearance had been 

filed by respondent’s counsel, and, when it was, the witness was notified but 

agreed to continue the interview. In addition, the Board agent attempted to 

notify counsel for respondent but the latter delayed in obtaining his 

telephone messages until after the statement was secured. Significantly, the 

witness was not called to testify in the hearing and his statement was not 

used. 

20
SECTION 11-303 (new section)—RELIANCE ON ALJ FINDINGS IN 

PRIOR CASE PENDING REVIEW BEFORE THE BOARD—Although the 

Board itself does not take judicial notice of an ALJ decision in a case that is 

pending review before the Board because it is not binding authority (St. 

Vincent Medical Center, supra, 338 NLRB 888 (2003)), that does not mean 

that a judge may not rely on factual findings or credibility determinations 

made by a judge in a prior case. In such situations, the judge is not relying 

on the prior decision as binding authority, but making a judgment that, for 

reasons of judicial efficiency, he or she can justifiably rely on the prior 

factual or credibility determinations rather than take the same evidence and 

relitigate the same issues. The Board has approved this approach. See 

Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394-395 (1998), 

enf’d mem. 215 F.3d. 1327 (6th Cir. 2000), citing authorities (judge’s 

findings in earlier case relied upon as showing evidence of animus in the 

present case). Not only does this approach advance judicial efficiency, but it 

also avoids a possible inconsistent result, where one judge makes certain 

findings or credibility determinations and a second judge, hearing the same 

evidence, makes contrary findings or credibility determinations. It also 

avoids the delay attendant in awaiting the Board’s decision reviewing the 

earlier judge’s findings. In giving effect to the earlier judge’s findings and 

determinations, the second judge should understand that, if the Board (or a 

court) reverses the earlier judge’s findings on review, his or her findings 

may likewise be vulnerable. In this respect the second judge’s decision is 

somewhat contingent on the Board’s ultimate disposition of the issue 

litigated in the prior case. See Detroit Newspaper Agency d/b/a Detroit 

Newspapers, 326 NLRB 782 fn. 3 (1998), enforcement 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 for finding that a strike was an unfair 

labor practice strike). 

The above authorities simply permit the judge to rely on the earlier 

findings; the judge certainly has the discretion, in appropriate circumstances, 

not to rely on them. See Section 13-102, infra, and Fluor Daniel, Inc. v. 

NLRB, 332 F.3d 961, 972 (6th Cir. 2003), discussed therein. In Fluor 

Daniel, the Court found that a judge properly declined to rely on testimony 

about a witness’s lack of credibility in an earlier proceeding because 

consideration of that testimony would be “confusing” to the issues in the 

second case. When presented with this issue, the judge should consider the 

21
matter on a case by case basis and determine whether the circumstances

warrant reliance on the earlier findings. 

 Compare with SECTION 3-750, supra, discussing Great Lakes 

Chemical Corp., 300 NLRB 1024 (1990), where the Board itself has made 

earlier findings involving the same respondent. In those circumstances, it is 

appropriate to take official notice of the Board’s prior findings and 

determinations. See also SECTION 9-850 (new section) and Caterpillar, 

Inc., 332 NLRB 1116, discussed therein. 

SECTION 11-350 (new section)—MOTIONS FOR SUMMARY AND 

DEFAULT JUDGMENT—An administrative law judge has authority to rule 

on motions for summary judgment, default or otherwise, under Section 

102.35(a)(8) of the Board’s Rules and Regulations. This authority, which, 

under Section 102.35(a), applies with respect to cases assigned to the judge 

between the time the judge is designated and the time the case is transferred 

to the Board, exists notwithstanding failure of the moving party to file such a 

motion with the Board no later than 28 days prior to the scheduled hearing 

under Section 102.24 of the Rules. Calyer Architectural Woodworking 

Corp., 338 NLRB 315 (2002). 

In January 2004, the Board revised its rules to provide specifically for 

the granting of motions for default judgment where a respondent has failed 

to file an answer. Such motions may be made either to the Board or, under 

Section 102.35 of the Board’s Rules and Regulations, to the administrative 

law judge. According to the explanatory material set forth in connection 

with issuance of the final rule, motions for default judgment are not subject 

to the requirements of Section 102.24(b) that motions for summary judgment 

be filed no later than 28 days before the hearing. Such limitation is 

unnecessary where the respondent has failed to file an answer. 

SECTION 11-400—CORRECTION OF TRANSCRIPT—In Teamsters 

Local 705 (Pennsylvania Truck Lines), 314 NLRB 95 fn. 2 (1994) the Board 

rejected the General Counsel’s attempt through an exception to supply the 

surname of a discriminate, identified in the transcript as “Rich [inaudible],” 

where no post-hearing motion or stipulation to correct the record had been 

submitted. It stated that the burden was on the parties, not the court reporter, 

to make certain the transcript showed the correct name. During a trial, if a 

witness does not speak distinctly, the judge should see that the reporter 

22
checks the tapes to assure that all testimony is audible, particularly, in the 

case of critical witnesses. 

SECTION 11-405—PORTIONS OF OTHER RECORDS—In Beverly 

Health & Rehabilitation Services, 335 NLRB 635, 639 fn. 26 (2001), enf’d 

in part 317 F.3d 316 (D.C. Cir. 2003), the Board stated that it expects parties 

to introduce all non-testimonial evidence on which they rely in the form of 

individual exhibits. They cannot “incorporate by reference” portions of 

other records, even those of Board cases involving the same parties. 

SECTION 11-602 (new section)—TESTIMONY OR DEPOSITIONS BY 

VIDEO—Video conferencing is widely used by lawyers, courts and 

agencies for depositions. Perhaps, at least on a limited scale, they may be

used at trial. No Board case has directly addressed the issue, but testimony 

by video may well ameliorate any problems the Board had with telephone 

testimony in the Westside Painting case, discussed in Section 11-601 of the 

bench book. In Palace Arena Football LLC, a/k/a Detroit Fury, Case 7-CA45132, the judge approved the taking of a video deposition by the 

respondent of a witness who was unavailable to appear at trial and using that 

deposition as evidence in the case before him. The General Counsel 

objected to the procedure and requested permission to take a special appeal. 

In an unpublished order dated January 10, 2003, the Board denied the 

request, without prejudice to the right to raise the issue later on exceptions. 

The case subsequently settled so the Board had no occasion to address the 

issue. The Social Security Administration addressed the issue in a final rule 

issued on December 11, 2003 (68 Fed Reg. 69003), which permits hearings 

or parts of hearings (the testimony of individual witnesses) before SSA 

administrative law judge by virtue of video conferencing. Under that rule, 

however, if a “party” objects, SSA will reschedule the matter for a regular 

hearing. Video conferencing equipment is available in all regional offices 

and most large law firms. So long as counsel are given the opportunity to be 

present, perhaps by a surrogate, at the location used by the witness, and all 

other reasonable due process requirements are followed, there appears to be 

no significant reason why the procedure should not be used, if circumstances 

warrant, in Board proceedings. Obviously, a reporter must be present to 

transcribe the proceeding and care should be taken to insure that the reporter 

is able to hear all the speakers wherever they are located. To the extent that 

video conferencing may be thought to be an improvement over the present 

wide-spread use of telephone conference call settlement sessions, it seems to 

be even less objectionable, although probably more costly, than telephone 

23
settlement conferences. A cautionary note however: The process of 

videoconferencing may present technical or logistical problems that may 

outweigh the advantages of its use. 

SECTION 11-800—STIPULATIONS, USE OF—STIPULATED 

RECORDS—Section 102.35(a)(9) of the Board’s Rules and Regulations 

was amended in 2002 to delete a former provision that authorized a longtime unused kind of stipulation and to substitute a new one authorizing more 

generally stipulations of fact that “waive a hearing and provide for a 

decision by the administrative law judge.” Alternatively, the parties may 

agree to stipulate the matter to the Board, a procedure previously utilized, 

but never before formally embodied in the Board’s Rules. Before accepting 

a stipulated record for decision, the judge should make sure that the 

stipulation covers all evidence needed to render an effective decision. 

SECTION 12-401(new section)—USE OF BRIEFS IN DECISIONS—

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 winning 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 

No. 83 (2005). In that case, the Board set aside the judge’s decision because 

he had copied so extensively from the briefs of the General Counsel and the 

Charging Party. To dispel any impression of partiality, the Board remanded 

the case for a different judge to independently review the record and prepare 

a new decision. See also SECTION 2-510, supra. 

SECTION 12-500—EXPEDITED DECISION WITHOUT BRIEFS—In 

K.O. Steel Foundry & Machine, 340 NLRB No. 153 (2003), slip op. 1, the 

Board rejected a claim that the judge had erred in refusing to allow the 

respondent to file a post-hearing brief. Noting that the judge had precluded 

all parties from filing briefs, the Board held that “[w]hether to permit the 

parties to file post-hearing briefs is a matter committed to the sound 

discretion of the administrative law judge.” 

SECTION 12-620—DECIDING TO ISSUE BENCH DECISION—NOT 

IN COMPLEX CASES—In Des Moines Register and Tribune Co., 339 

NLRB 1035 fn. 1 (2003), petition for review den., 381 F.3d 767 (8th Cir. 

2004), the Board cautioned that judges should not issue bench decisions in 

24
complex cases, but should invite briefs and conduct a more thorough 

analysis of the matter in a written decision. 

SECTION 12-640—BENCH DECISIONS—CONTENTS OF BENCH 

DECISION—See SECTION 11-302, supra, and St. Mary’s Acquisition, 342 

NLRB No. 100 (2004) discussed therein. 

SECTION 13-102—EVIDENCE—TAUT RECORD—RULE 403 FRE—In 

Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 972 (6th Cir. 2003), the Court 

stated that the administrative law judge was “under no obligation to consider 

determinations made by another ALJ in a wholly different case regarding the 

credibility of a particular witness.” The witness was found to have filed 

frivolous charges, falsified evidence and committed perjury in an earlier 

case, but the Board had reversed those findings. According to the Court, the 

judge properly ruled that any testimony regarding involvement of the 

witness in the earlier case would “add confusion to the current case.” Thus, 

the Court refused to disturb the judge’s credibility determination in the case 

before it. 

SECTION 13-102(a) (new section)—EVIDENCE—TAUT RECORD—

RULE 403 FRE—CREDIBILITY—In J.S. Troup Electric, Inc., 344 NLRB 

No. 125 (2005), the Board upheld a judge’s exclusion of evidence 

purportedly showing that a witness, otherwise broadly credited, was working 

while receiving unemployment or worker’s compensation benefits, allegedly 

in violation of State law and that he was untruthful with State agencies on 

those matters. Citing FRE 608(b) and relevant case authority, the Board 

observed that extrinsic evidence bearing on a witness’s credibility is 

inadmissible unless it pertains to a criminal conviction, and, although a 

judge may, in his or her discretion, permit some cross-examination on a 

witness’s character for truthfulness, the judge may exclude such evidence if 

its probative value is outweighed by considerations of undue delay or waste 

of time. Thus, FRE 608(b) is subject to FRE Rule 403. Moreover, even if 

such cross-examination is permitted, the cross-examiner may not attempt to 

disprove the witness’s answers by extrinsic evidence because this would risk 

a mini-trial on peripheral matters. The Board also noted that the judge did 

not act summarily, but deferred ruling on the proffered evidence until he had 

heard all of the evidence bearing on the witness’s credibility. See also 

Boardwalk Regency Corp., 344 NLRB No. 122 fn. 1 (2005), where the 

Board clarified its earlier decision in Double D Construction Group, 339 

NLRB 303, 306 (2003), in which the Board criticized a judge for generally 

25
discrediting a witness for lying about his social security number. In 

Boardwalk Regency, the Board stated that Double D Construction stands for 

the proposition that “a judge should not rely solely on a single prior act of 

falsification;” but if there are other factors supporting the witness’s 

credibility, “they too must be considered.” See also SECTION 13-703—

IMPEACHMENT—CREDIBILITY. 

SECTION 13-106—PRESETTLEMENT CONDUCT—EVIDENCE IN 

SETTLED CASES PROPERLY USED AS BACKGROUND—See also 

SECTION 11-302, supra, and St. Mary’s Acquisition, 342 NLRB No. 100 

(2004) discussed therein. 

SECTION 13-203—HEARSAY—ADMISSIBLE IF 

CORROBORATED—In RC Aluminum Industries, Inc., 343 NLRB No. 103 

(2004), slip op. 2-3, respondent challenged a judge’s decision to admit into 

evidence a notation from a personnel file indicating that the alleged 

discriminatee had been terminated. While agreeing that the notation was 

hearsay, the Board affirmed the decision to admit it since it had been 

corroborated by the credible testimony of the alleged discriminatee. 

SECTION 13-215—POSITION STATEMENTS—ADMISSIBILITY—In 

United Scrap Metal, Inc., 344 NLRB No. 55 (2005), the Board held that a 

respondent’s position statement is admissible in evidence as an admission 

against interest, even though submitted by the respondent’s former counsel. 

The Board noted that the attorney who voluntarily provided the position 

statement to the General Counsel never withdrew as respondent’s counsel. 

Id. at fn. 5. See also, infra, SECTION 13-243.

Compare SECTION 8-450 (new section), supra, and Kaiser 

Aluminum, 339 NLRB 829 (2003), discussed therein. In Kaiser Aluminum, 

the Board found that the statement of a charging party’s attorney was 

protected by the work product privilege. 

SECTION 13-217—TAPE RECORDING (AUDIO/VIDEO) MADE 

SECRETLY – In Times Herald Record, 334 NLRB 350, 354 (2001), enf’d 

mem. 27 Fed. Appx. 64 (2nd Cir. 2001), the Board reaffirmed that a 

surreptitious tape recording is admissible even when the recording violates 

state law. And in Fleming Companies, 336 NLRB 192 at fn.2 (2001), enf’d 

in part 349 F.3d 968 (7th Cir. 2000), the Board stated that it did not consider 

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a witness’s surreptitious taping of a conversation with management 

representatives to be a basis for discrediting the witness’s testimony. 

SECTION 13-235—ADVERSE INFERENCES—BANNON MILLS 

SANCTIONS—See SECTION 8-620, supra, and McAllister Towing, 341 

NLRB No. 48 (2004) discussed therein. See also SECTION 8-500 and 

National Specialties Installations, 344 NLRB No. 2 (2005) discussed therein 

(Adverse inference rule is not mandatory). 

SECTION 13-236 (new section)—PRESUMPTION AS TO SERVICE OF 

DOCUMENTS BY FAX BY VIRTUE OF SENDER’S FAX 

CONFIRMATION REPORT—See SECTION 4-500, supra, and Hardesty 

Company, 336 NLRB 258, 259 (2001) discussed therein. 

SECTION 13-237 (new section)—PROTECTIVE ORDERS—Where 

appropriate, documents may be admitted in evidence, subject to protective 

orders limiting the use of the documents or requiring that they be placed 

under seal. See SECTION 8-330, supra, particularly Rule 26 of the Federal 

Rules of Civil Procedure and United Parcel Service, 304 NLRB 693, 694 

(1991), discussed therein. 

SECTION 13-243—ADMISSIONS BY ATTORNEY—See SECTION 13-

215, supra, and United Scrap Metal, 344 NLRB No. 55 (2005) discussed 

therein. 

SECTION 13-270—PRIVILEGES—ATTORNEY CLIENT—CRIMEFRAUD EXCEPTION—See Smithfield Packing Co., 344 NLRB No. 1 

(2004), discussed above, in SECTION 8-410, supra; and SECTION 8-450

(new section), supra, and Kaiser Aluminum, 339 NLRB 829 (2003), 

discussed therein. 

SECTION 13-275—WORK PRODUCT PRIVILEGE—In Sprint 

Communications d/b/a Central Telephone Co., 343 NLRB No. 99 (2004), 

the Board sets forth a thorough discussion of the work product privilege as it 

applies to Board proceedings. In that case, the Board affirmed a judge’s 

dismissal of a Section 8(a)(5) allegation that the respondent failed to provide 

relevant information to a union in support of a grievance. The union had 

requested a copy of notes taken by respondent’s human resources specialist 

with respect to an investigation into alleged misconduct by employees 

represented by it. The Board, in a 2-1 decision, found that the notes were 

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prepared in anticipation of litigation, because even though no litigation had 

been initiated and indeed the employees had not yet been disciplined when 

the notes were prepared, respondent’s fear of litigation was “objectively 

reasonable.” According to the Board majority, the particular investigation 

was not a routine one done in the ordinary course of business, but rather in 

anticipation of litigation. Slip op. 3. Thus, the Board majority held that the 

notes fell within the ambit of the work product privilege and the union had 

not met its burden of showing a “substantial need” to overcome the 

privilege. See also fn. 6 in the dissent for the differences between the work 

product privilege and the attorney-client privilege. See also SECTION 8-

450 (new section), supra, and Kaiser Aluminum, 339 NLRB 829 (2003) 

discussed therein. 

 Compare Borgess Medical Center, 342 NLRB No. 109 at fn. 5, in 

which the Board upheld a Section 8(a)(5) and (1) violation for the failure to 

provide information, rejecting a claim that the information was subject to the 

attorney-client and work product privileges. The incident reports that were 

the subject of the information request were prepared by employees, sent to 

the department director for review, then forwarded to the risk management 

staff, most of whom are not attorneys, for entry into the employer’s data 

base. Only incident reports that concern serious occurrences are forwarded 

to individual attorneys. See also SECTION 13-270 and SECTION 8-410 

and SECTION 8-450 (new section), supra. 

SECTION 13-406—BACKPAY AND REINSTATEMENT OF ILLEGAL 

ALIENS—In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 

(2002) the Supreme Court ruled that federal immigration policy, as 

expressed in the Immigration Reform and Control Act of 1986 (IRCA) 

prevented the Board from awarding back pay “to an undocumented alien 

who has never been legally authorized to work in the United States.” 

SECTION 13-606—INTERPRETERS—Rule 604 of the Federal Rules of 

Evidence provides as follows: “An interpreter is subject to the provisions of 

these rules relating to qualification as an expert and the administration of an 

oath or affirmation to make a true translation.” An Authors’ comment to the 

rule states that interpreters should strive to translate exactly what was said, 

without comment on the testimony or embellishment, citing cases. 

SECTION 13-608 (new section)—PROVIDING INTERPRETERS FOR 

JENCKS STATEMENTS USED IN CROSS-EXAMINATION—See 

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SECTION 8-500, supra, and the discussion therein of NLRB v. Doral 

Building Services, 666 F.2d 432, 435 (9th Cir. 1982), where the court 

required that the General Counsel provide an official English translation of 

non-English affidavits turned over to respondent for cross-examination of 

General Counsel’s witnesses. 

SECTION 13-703—IMPEACHMENT—CREDIBILITY—See SECTION

13-102(a) (new section), supra, and discussion therein of J.S. Troup Electric,

344 NLRB No. 125 (2005) and Boardwalk Regency, 344 NLRB No. 122 

(2005). See also SECTION 13-217, supra, and Fleming Companies, 336 

NLRB 192 fn. 2 (2001), discussed therein. 

SECTION 13-801—JENCKS STATEMENTS—JUDGE MUST MAKE IN 

CAMERA INSPECTION TO DETERMINE RELEVANCE—In Tejas 

Electrical Services, Inc., 338 NLRB 416 at fn. 2 (2002), the Board, citing 

Caterpillar, Inc., 313 NLRB 626 (1994), found that the judge erred by 

summarily denying respondent’s request for the production of affidavits 

given by witnesses in cases other than the instant one, without making a 

determination through an in-camera inspection that the affidavits were not 

relevant to the issues in the case before him. The Board found, however, 

that the error was not prejudicial in this particular case because the 

complaint was dismissed. 

SECTIONS 13-803 and 804 (clarification)—EVIDENCE—WITNESS

STATEMENTS (JENCKS RULE)—OF PERSONS NOT GOVERNMENT 

WITNESSES—SECTION 611(c) WITNESSES—The Charging Party is

entitled, on request and for the purpose of cross-examination, to the 

statement, in the possession of the General Counsel, of an agent who 

testifies on behalf of a respondent. Section 10394.7 of the Board’s Case 

Handling Manual (Part One). This codification of the ruling in Seftner 

Volkswagen Corp., 257 NLRB 178 fn. 1, 186-187 (1989) also apparently 

applies when a charging party calls an adverse witness under FRE Section 

611(c). See Louisiana Dock Co., 293 NLRB 233, 250-251 (1989), 

enforcement denied 909 F.2d 281 (7th Cir. 1990). 

 

SECTION 13-815—JENCKS STATEMENTS—RIGHT TO COPY OR 

KEEP—In Wal Mart Stores, Inc., 339 NLRB 64 (2003), the Board 

emphasized the narrow scope of the limited exception in Section 

102.118(b)(1) of the Board’s Rules and Regulation to the general prohibition 

in Section 102.118 against release of Board files, including witness 

29
affidavits, without permission. The specific exception provides for the 

release of a witness statement, after that witness has testified, for use in 

cross-examination of that witness. But, as the Board stated, “[a]fter that

limited purpose is served, the exception no longer applies and the 

prohibition of the Rule is restored.” Although, in Wal-Mart, the Board 

clearly held that the judge erred in permitting the respondent to retain 

witness statements after the close of the hearing, in dictum, the Board 

seemed also to question whether retention of the statements beyond the 

purpose stated in the rule was required. Nevertheless, it appears that a judge 

may, in his or her discretion, appropriately permit counsel to copy the 

statement and to retain it throughout the hearing “for any legitimate trial 

purpose.” Ibid at fn. 3. 

 In Pacific Bell Telephone Co. d/b/a SBC California, 344 NLRB No. 

11 fn. 3 (2005), the Board affirmed the judge’s ruling that the respondent 

was not entitled to a witness’s affidavit when the request was made 

untimely, namely, after the close of respondent’s case. The Board cited 

other cases in which the request was deemed untimely, for example, when 

the request was not made until after cross-examination was completed and 

the witness excused. 

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