NLRB Advice Memoranda, NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES

BENCH BOOK

An NLRB Trial Manual

May 2025

Judge Jeffrey D. Wedekind (Retired)

Editor

Judge Mara-Louise Anzalone

Associate Editor

Judge Lauren Esposito

Associate Editor

Judge Charles Muhl

Associate Editor

FOREWORD

A handbook for NLRB trial examiners or administrative law judges has existed in various forms since the earliest days of the National Labor Relations Act. The Bench Book was first published in 2001 and has been updated periodically since. This year marks the fifteenth year that Judge Jeffrey Wedekind (now retired) served as Chief Editor. I want to express my heartfelt appreciation for the exceptional editing work he performed throughout these years. His extraordinary attention to detail and expertise in refining this publication's substantive content cannot be overstated. This included adding a detailed chapter focused on application of the Federal Rules of Evidence as applied to unfair labor practice (ULP) proceedings.

This May 2025 edition includes citations to numerous additional Board and court decisions, as well as further discussion of the various procedural and evidentiary issues they address. It also includes the December 1, 2024 amendments to the Federal Rules of Evidence applicable to civil proceedings, which are discussed in Chapter 16.

Like previous editions, this edition of the Bench Book is designed to provide NLRB judges with a reference guide during ULP hearings when other resources may not be readily available. However, it is also a useful tool for all trial practitioners before the Board. It sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during the hearing. It is not a digest of substantive law. Nor should it be cited as precedent or considered a substitute for issue-specific research. A good source for such research is the NLRB's Classification Outline and Index (also known as CITENET, the Board's website search database of Board cases) particularly Chapter 596 “Procedure in ULP Proceedings,” Chapter 737 “Evidence,” and Chapter 700 “General Legal Principles.”

The basic sources that govern ULP hearings are the National Labor Relations Act (the Act), the Administrative Procedure Act (APA), the Board's Rules and Regulations and Statements of Procedure, and Board decisions. The Board also applies, so far as practicable, the Federal Rules of Evidence (FRE), and frequently seeks guidance from the Federal Rules of Civil Procedure (FRCP). All citations in the Bench Book to the Board's Rules and Regulations and Statements of Procedure, the FRE, and the FRCP have been updated to reflect the most recent amendments.

The Bench Book also includes references to unpublished Board orders that may provide useful guidance. References to some of the two-Member Board decisions that issued from January 1, 2008–March 29, 2010, and the recess-Board decisions that issued from January 4, 2012–August 4, 2013, are included as well. These decisions, which are marked with an asterisk (*), lack precedential weight and should be cited, if at all, with caution, unless they have been reaffirmed. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) (holding that the two-Member Board lacked authority to issue its decision in that case); and NLRB v. Noel Canning, 573 U.S. 513 (2014) (holding that the appointments of Members Sharon Block, Richard Griffin, and Terence Flynn during a 3-day intrasession recess were invalid). However, they likewise may provide useful guidance in evaluating similar issues and factual situations.

A search of the Bench Book can be performed by pressing the “Ctrl” and “F” keys together and typing the search word(s) in the box.

Robert A. Giannasi

Chief Administrative Law Judge

BENCH BOOK

An NLRB Trial Manual

CHAPTER 1. MODEL STATEMENTS, ORDERS, AND OATHS

§1–100 Judge's Opening Statement

The following is a suggested opening statement:

This is a formal hearing before the National Labor Relations Board in __________, Case __________. [If consolidated with an objections-to-election case, add: “consolidated with Case __________ for hearing on objections to election.”]

The administrative law judge presiding is __________. I am assigned to the __________ office of the Division of Judges. Any written motions, position statements, or other communications during the hearing should be addressed to that office.

Will the parties' counsel or other representatives please state their appearances for the record at this time. For the General Counsel … For the Charging Party … For the Respondent …

Thank you. Although we are here to litigate the case, I am advising you now, before I have heard any of the testimony, that I intend to also offer you an opportunity for settlement discussions at two specific stages of the hearing: first, at the conclusion of the General Counsel's case and, second, at the end of the trial. If I inadvertently forget to do so, please call it to my attention. And do not hesitate to request a reasonable recess at any other time for further settlement discussions if you believe they may be fruitful.

General Counsel, would you please introduce the pleadings and other formal papers at this time. After they are in evidence, I will address any preliminary motions or other procedural matters the parties may wish to raise before their opening statements.

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

§1–200 Judge's Closing Statement

The following is a suggested closing statement:

The parties will be provided __________ [up to 35] days to file posthearing briefs.

The due date will therefore be __________. The briefs should be filed directly with the Judges Division office in __________, regardless of whether they are e-filed or mailed. See Sections 102.2–102.5 of the Board's Rules for filing and service requirements.

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 that office 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.

Please refer to the Board's Rules and Regulations for further information regarding the filing of briefs and proposed findings for my consideration, and regarding procedures before the Board after the issuance of my decision.

Finally, I remind you that settlement is still an option. In fact, now that the evidence is all in, you might be better able to assess your chances of winning than you were at the outset of the trial. I therefore encourage all parties to revisit and carefully weigh the risks entailed and decide whether an amicable settlement of the issues might not offer a more satisfactory solution.

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

§1–300 Sequestration Order

The following is a model sequestration order set forth in Greyhound Lines, 319 NLRB 554 (1995):

Counsel has invoked a rule requiring that the witnesses be sequestered. This means that all persons who are going to testify in this proceeding, with specific exceptions that I will tell you about, may only be present in the hearing room when they are giving testimony.

The exceptions are alleged discriminatees, natural persons who are parties, representatives of non-natural 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 hearing room even if they are going to testify or have testified. However, alleged discriminatees, including charging parties, may not remain in the hearing room when other witnesses on behalf of the General Counsel or the charging party are giving testimony regarding events as to which the alleged discriminatees will be expected to testify.

The rule also means that from this point on until the hearing 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 hearing 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 such 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 hearing room of their obligations under the rule.

It is also recommended that witnesses be reminded as they leave the witness stand that they are not to discuss their testimony with any other witness or potential witness until the hearing is completed.

The following is a shortened version of the Greyhound order:

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, except when witnesses for the General Counsel or a charging party are giving testimony regarding the same events that the alleged discriminatees are expected to testify about.

The sequestration order also prohibits all witnesses from discussing with any other witness or possible witness the testimony they have already given or will give.

Likewise, counsel for a party may not disclose to a witness the testimony of other witnesses for the same side. Counsel may, however, inform counsel's own witness of the content of testimony given by any opposing party's witness to prepare to rebut that testimony.

It is counsel's responsibility to make sure that they and their witnesses comply with this sequestration rule.

The judge should also ask each party to identify on the record the person designated as essential to the presentation of that party's case.

A full discussion of Board precedent with respect to separating, excluding, or sequestering witnesses is set forth in CHAPTER 11, Sequestration of Witnesses. As discussed there, the Greyhound model order is generally consistent with FRE 615. In light of more recent amendments to that rule, however, the judge should consider adding a statement to the model order making clear that excluded witnesses also may not access hearing testimony (at least not of witnesses for the same side) in any other manner. See §11–200, Scope of Sequestration Order.

§1–400 Witness Oath

Examination is under oath. NLRB Rules and Regulations, Sec. 102.30. The oath should be administered to each witness in a manner calculated to impress the witness with the duty to testify truthfully.

A solemn affirmation instead of an oath is acceptable. See FRE 603 and FRCP Rule 43(b). If a witness is unwilling, based on religious conviction, to either swear or affirm, any statement that can reasonably be construed as a promise or undertaking to testify truthfully will suffice. See Union Starch & Refining Co., 82 NLRB 495, 496 (1949); and Ferguson v. C.I.R., 921 F.2d 588 (5th Cir. 1991). But see Gordon v. State of Idaho, 778 F.2d 1397 (9th Cir. 1985) (witnesses need not “swear” or “affirm” or raise their right hand, but their alternative statement must indicate that they understand they can be prosecuted for perjury for failing to tell the truth, i.e., that they are testifying under penalty of perjury).

A party that will be calling a witness it knows is unwilling to swear or affirm should bring this to the judge's attention before the oath is administered.

The traditional oath is:

Do you swear that your testimony in this hearing will be the truth, the whole truth, and nothing but the truth, so help you God?

A typical affirmation substitutes “affirm” for “swear” and omits “so help you God” or any similar religious reference:

Do you affirm that your testimony at this hearing will be the truth, the whole truth, and nothing but the truth?

Some judges add or substitute a reference that a witness may be prosecuted for perjury for failing to tell the truth. For example:

Do you swear or affirm, under penalty of perjury, that your testimony in this hearing will be the truth, the whole truth, and nothing but the truth [so help you God]?

Following the oath or affirmation, the witness should be asked to state and spell the witness's name.

§1–500 Interpreter's Oath

The following is a suggested interpreter's oath:

Do you solemnly swear that you are fluent in both English and __________ [foreign language] and that you will truthfully and accurately interpret and translate, to the best of your skill and understanding, the questions asked of the witnesses and their answers in this proceeding?

CHAPTER 2. THE TRIAL JUDGE

§2–100 Designation

Section 102.15 of the Board's Rules states that the complaint shall contain “a notice of hearing before an administrative law judge.” Similarly, Section 101.10(a) of the Board's Statements of Procedure 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 the appropriate office, “as the case may be.” NLRB Rules and Regulations, Sec. 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. NLRB Rules and Regulations, Secs. 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.” Sec. 102.131.

An ex parte communication is any “oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.” Sec. 102.127(b). See also Sec. 102.129. The prohibition continues “until the issues are finally resolved by the Board.” Sec. 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 n. 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 n. 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

Not every off-the-record communication between the judge and a party is prohibited. Section 102.130 of the Board's Rules lists a number of ex parte communications that are permitted. These include:

Communications regarding matters that a judge is authorized to handle ex parte (Sec. 102.130(a)). This includes applications for subpoenas. NLRB Rules and Regulations, Sec. 102.31(a); and Blake Construction Co., 245 NLRB 630 n. 1 (1979), enfd. in part 663 F.2d 272 (D.C. Cir. 1981). Thus, a party may submit a subpoena application to a judge outside the presence of other parties and without serving them with a copy of the application.

Communications regarding the status of a proceeding (Sec. 102.130(b)). See, e.g., Care Manor of Farmington, 314 NLRB 248 n. 2 (1994) (judge did not make an improper ex parte communication by calling counsel for the General Counsel to advise that he would be presiding and to request that counsel notify the respondent's counsel of that fact, as there was no evidence that a prohibited topic was discussed).

Communications which all parties agree, or which the judge formally rules, may be made ex parte (Sec. 102.130(c)). See, e.g., Kendick Engineering, 244 NLRB 989 n. 2 (1979) (rejecting respondent's claim that the judge improperly had an ex parte off-the-record conversation with the General Counsel during the trial, as the conversation occurred with respondent's assent).

Communications proposing settlement or agreement for disposition of any or all issues (Sec. 102.130(d)). See, e.g., Sanford Home for Adults, 253 NLRB 1132 n. 1 (1981) (judge did not engage in improper ex parte communication by meeting privately with counsel for the General Counsel and the Regional Director to discuss settlement possibilities, as there was no evidence that the conversation, which occurred with respondent's knowledge on the heels of a settlement discussion with all parties, in any way involved the merits of the complaint allegations), enfd. 669 F.2d 35 (2d Cir. 1981); and Sumo Airlines, 317 NLRB 383 n. 1 (1995) (judge's statement to the alleged discriminatees about a pending settlement offer did not constitute an improper ex parte communication, as there was no evidence that the communication in any way involved the merits of the complaint allegations).

Communications between the trial judge and fellow judges. Although not specifically listed in rule 102.130, it is also permissible for the trial judge to consult with fellow judges concerning a legal or procedural issue in a case. See Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 944 and n. 2 (D.C. Cir. 1999). In that case, the court rejected the respondent's contention that the ALJ engaged in an improper ex parte communication by consulting with a colleague on the correct procedure for handling a motion to amend the complaint to add a new allegation. The court noted that 5 U.S.C. §557(d)(1)(A) and Section 102.126 of the Board's Rules only prohibit communications with “interested person[s] outside the Agency,” and that 5 U.S.C. §554((d)(1) only prohibits communications with “a person or party on a fact in issue.”

See also Rule 2.9(A)(3) of the ABA Model Code of Judicial Conduct (2020 Edition), which states: “A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.”

§2–230 Procedure When Prohibited Communication Received

Oral communications. If the ex parte communication is oral, the judge should refuse to listen, inform the communicator of the prohibition, and advise the communicator to put the communication in writing, with copies to all parties. If the communication was completed, the judge should prepare a memorandum stating its substance, place it “on the public record of the proceeding,” and serve copies “on all other parties to the proceeding and on the attorneys of record for the parties.” NLRB Rules and Regulations, Sec. 102.132(a) and (b).

Written communications. If the communication is written, the judge should place it “on the public record of the proceeding,” and serve copies “on all other parties to the proceeding and on the attorneys of record for the parties.” Ibid.

In both situations, parties have 14 days after the judge has served the copies to file with the judge and serve on all other parties, “a statement setting forth facts or contentions to rebut those contained in the prohibited communication.” Any such responses “will be placed in the public record of the proceeding, and provision may be made for any further action, including reopening of the record which may be required under the circumstances.” Sec. 102.132(b).

It is not clear what further steps should be taken by the judge. Section 102.133(a) of the Board's Rules provides:

Where the nature and circumstances of a prohibited communication … are such that the interests of justice and statutory policy may require remedial action, the Board, the Administrative Law Judge, or the 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 not less than 7 days from the date of issuance, why the Board may 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 may be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

Succeeding subsections of Section 102.133 set forth actions to be taken by the Board but do not provide for further action by a judge who issues the notice to show cause.

§2–300 Duties and Powers of Trial Judge

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.” NLRB Rules and Regulations, Sec. 102.35(a). Specific powers of administrative law judges are enumerated in Section 102.35(a)(1)–(a)(13) of the Board's Rules, several of which are discussed below.

To regulate the course of the hearing (Sec. 102.35(a)(6)). The judge should direct the hearing so that it “take[s] place in a dignified atmosphere, free of threats and intimidation,” Altemose Construction Co. v. NLRB, 514 F.2d 8, 12–13 (3d Cir. 1975), and is “confined to material issues and conducted with all expeditiousness consonant with due process,” Indianapolis Glove Co., 88 NLRB 986, 987 (1950).

In doing so, “the question of whether certain lines of inquiry or responses of witnesses should be curtailed rests within [the judge's] sound discretion.” American Life Insurance and Accident Co., 123 NLRB 529, 530 (1959). In appropriate circumstances, the judge may even place time limits on a party's presentation of its case. See, e.g., Dickens, Inc., 355 NLRB 255, 256–258 (2010) (judge acted within his discretion by imposing a 3-hour limit on the respondent's owner, who appeared pro se, to testify in narrative form, with additional time if necessary, and by cutting off his testimony after 4 hours); and University Medical Center, 335 NLRB 1318 n. 1, 1343 (2001) (judge did not violate respondent's due process rights by imposing, on the tenth day of hearing, a time limit of 1 week for respondent to finish its case, and by requiring respondent to rest a half day after the 1 week deadline), enfd. in part 335 F.3d 1079 (D.C. Cir. 2003).

However, the judge “must guard against expediting a hearing by limiting either party in the full development of its case.” Indianapolis Glove, above. See also Better Monkey Grip Co., 113 NLRB 938, 940 (1955) (trial examiner improperly “cut off lines of inquiry and limited the response of witnesses to such an extent that the development of the case may have been hampered”); and Boetticher & Kellogg Co., 137 NLRB 1392 n. 1, 1398–1399 (1962) (trial examiner improperly barred respondent from cross-examining a General Counsel witness because respondent refused his direction to conduct cross examination before the charging party union had questioned the witness).

See also §§16–102, 16–403, 16–607, and 16–611, below.

If appropriate or necessary, to exclude persons or counsel from the hearing for contemptuous conduct (Sec. 102.35(a)(6)). Although Section 102.38 provides that “any person shall have the right to appear at the hearing in person, by counsel, or by other representative,” the right of parties and counsel to appear at trials is not unlimited. Indeed, the same section states that “the participation of any party shall be limited to the extent permitted by the administrative law judge.” See also Section 102.177(a) of the Board's Rules (“misconduct at any hearing before an administrative law judge … shall be ground for summary exclusion from the hearing”), discussed in §6–610, Exclusion of Counsel, below.

To strike all related testimony of a witness who refuses to answer a proper question (Sec. 102.35(a)(6)). See, e.g., Nassau Insurance Co., 280 NLRB 878, 897 (1986) (judge properly acted within her discretion by striking the entire testimony of a General Counsel witness who failed to appear for further examination); and Today's Man, 263 NLRB 332 (1982) (judge properly ruled that the respondent's president could not assert the attorney-client privilege in response to certain questions on cross examination, directed him to respond to the questions, and issued an order striking his entire testimony when he failed to do so).

To hold conferences for the settlement or simplification of issues (Sec. 102.35(a)(7)). See §7–100, Conference Calls, and §9–220, Promoting Settlement at Pretrial Conference, below.

To rule on procedural requests and motions (Sec. 102.35(a)(8)). This authority is addressed more fully below in Chapter 10, Motions and Special Appeals (discussing, inter alia, motions in limine, motions to dismiss and for summary or default judgment, and motions to reopen the record). See also §3–230 (motions for a bill of particulars or more definite statement), §3–400, et seq. (motions for consolidation and severance), §3–840 (motions for deferral to grievance arbitration), §5–300, et seq. (motions to change the date or location of the hearing), §8–415 (motions for a protective order), §12–400 (applications to take testimony by videoconference); and §12–500 (motions regarding whether to hold an in-person or remote hearing).

To approve stipulations of fact (Sec. 102.35(a)(9)). See §10–200, Motions for Decision Based on Stipulated Record, below.

To make and file decisions (Sec. 102.35(a)(10)). “After a hearing for the purpose of taking evidence upon a complaint, the administrative law judge will prepare a decision.” NLRB Rules and Regulations, Sec. 102.45(a). See also NLRB Statements of Procedure, Sec. 101.11(a). Thus, in Machinists Lodge 1129 (Sunbeam Appliance Co.), 216 NLRB 630 (1975), the Board held that the judge erred in granting the respondent's posthearing motion to transfer the case directly to the Board for issuance of a decision over the objections of the General Counsel and the charging party. See also §15–800, Contents of Judge's Decision, below.

To call, examine, and cross-examine witnesses and to introduce documentary and other evidence (Sec. 102.35(a)(11)). This section corresponds to FRE 614 and has generally been applied consistently therewith. See Starbucks Corp., 374 NLRB No. 9, slip op. at 1 n. 1 (2024) (a judge may interrupt or question witnesses in order to clarify testimony); Teamsters Local 722 (Kasper Trucking), 314 NLRB 1016, 1017 (1994) (judge may examine witnesses or interrupt questioning in order to clarify testimony or develop a complete and integrated record), enfd. mem. 57 F.3d 1073 (7th Cir. 1995); Indianapolis Glove, above (“[I]t is appropriate for [the judge] to question witnesses in order to ascertain their credibility or to clarify their testimony.”); and NLRB v. Honaker Mills, 789 F.2d 262, 265 (4th Cir. 1986) (judge properly “attempted to obtain more specific statements from the witnesses to determine the weight that he should assign to their testimony”). See also Chipotle Services, LLC, 363 NLRB 336, 342 (2015) (judge called a witness to question him about respondent's efforts toward subpoena compliance), enfd. 849 F.3d 1161 (8th Cir. 2017).

However, care should be taken to avoid examining witnesses to the extent that the judge “takes out of the hands of either party the development of its case,” Indianapolis Glove Co., above, or “appear[s] to assume the role of an advocate in attempting to impeach [the witnesses'] prior testimony,” Better Monkey Grip Co., above.

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. [The respondent] cannot palm off on the ALJ its apparent failure to properly question [the witness]”).

§2,400 Disqualification of Judge

Section 102.36 of the Board's Rules states that an administrative law judge “may withdraw from a proceeding because of a personal bias or for other disqualifying reasons.”

§2,410 Grounds Asserted for Disqualification

“The functions of all administrative law judges … are conducted in an impartial manner,” NLRB Statements of Procedure, Sec. 101.10(b). “It is essential not only to avoid actual partiality and prejudgment … in the conduct of Board proceedings, but also to avoid even the appearance of a partisan tribunal.” Indianapolis Glove Co., 88 NLRB 986, 987 (1950).

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 n. 1 (1982), enfd. in part 724 F.2d 282 (2d Cir. 1983). Nor is past representation of a private party, at least if that representation was relatively remote in time. See Centeno Super Markets, 220 NLRB 1151 n. 1 (1975) (8 or 9 years had passed by time of trial), enfd. 555 F.2d 442 (5th Cir. 1977). See also 5 C.F.R. §2635.502(a) and (b)(1)(iv) (prohibiting any Agency employee from participating in a matter involving a party or representative of a party for whom the employee had served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee within the past year).

However, judges should recuse themselves if they previously served as a lawyer in the matter, participated personally and substantially as a government lawyer or public official concerning the proceeding, or publicly expressed an opinion concerning the merits of the matter while serving in government employment. See Rule 2.11 of the ABA Model Code of Judicial Conduct (2011 Edition) (also discussing other grounds for disqualification).

Prior disposition statistics. In Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1010 (4th Cir. 1997), the Fourth Circuit rejected the employer's contention that the judge was biased because approximately 89% of his decisions in the last 20 years were in favor of labor unions. The court stated that such statistics are “irrelevant,” citing its earlier decision in Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996) (“To evaluate an ALJ's impartiality in this way amounts to judging his record by mere result or reputation, and in reality, such statistics tell us little or nothing.”).

Prior rulings against party. “[J]udicial rulings alone almost never constitute a 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). Thus, bias may not be inferred simply because the judge made evidentiary rulings unfavorable to the party. United Nurses Associations of California v. NLRB, 871 F.3d 767, 778 (9th Cir. 2017). Likewise, a judge who previously decided a case against a respondent is not disqualified from presiding over the remand of the case. NLRB v. Donnelly Garment Co., 330 U.S. 219, 236–237 (1947). See also Waterbury Hotel Management v. NLRB, 314 F.3d 645, 650–651 (D.C. Cir. 2003) (judge did not err in refusing to recuse himself simply because he had ruled against respondent's predecessor in an unrelated case). But see St. Mary's Nursing Home, 342 NLRB 979, 980 n. 6 (2004) (judge's adherence to an erroneous ruling, after an initial remand, and allegations that the judge showed “irritation” and “impatience,” warranted a second remand to another judge to remove any suggestion of bias or prejudice), second remand decision affd. 240 F. Appx. 8, 10, 12–13 (6th Cir. 2007).

Criticism of counsel, parties, or witnesses. “[J]udicial 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”; however, 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, 510 U.S. at 555.

It is generally not evidence of bias that the judge rebuked counsel for improper conduct. See U.S. v. Logan, 998 F.2d 1025, 1029 (D.C. Cir. 1993) (judge “upbraided” counsel for flouting the judge's orders); and U.S. v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (judge referred counsel to a bar disciplinary board). See also Merillat Industries, 307 NLRB 1301, 1301–1302 (1992), where the Board rejected the charging party union's contention that the judge's actions in an unrelated case—questioning counsel for the General Counsel's professional integrity and thereafter withdrawing from that case and reporting the matter to the Regional Director—created the appearance of impartiality, notwithstanding that the judge's accusations were gratuitous and unwarranted.

But compare New York Times Co., 265 NLRB 353 (1982) (reversing and remanding case to another judge for a hearing de novo because the trial judge made unsupported statements “impugn[ing] the good faith of the Union and question[ing] whether the General Counsel and the Charging Party were abusing the Board's processes”); and Reading Anthracite Co., 273 NLRB 1502 (1985) (same, where the trial judge made “serious accusations” in a “hostile tone” to respondent's counsel, including telling the attorney that he would be “suborning perjury” if he attempted to ask certain questions of his witness, and accused the attorney, without any basis or justification, of engaging in “contemptuous and unethical conduct” by filing a motion for the judge's disqualification). See also Victor's Café 52, Inc., 338 NLRB 753, 756–757 (2002), where the Board cautioned judges against using intemperate language about a witness or counsel that “undermines the confidence of parties, representatives, and the public in the overall fairness and equity of the Board's treatment of parties…and ability to…render a fair judgment.”

Suggestions to counsel regarding litigation strategy or tactics. Such suggestions are generally improper. See Thermoid Co., 90 NLRB 614 n. 2 (1950) (“[W]e do not condone the practice of a Trial Examiner during a recess offering suggestions in trial tactics to counsel.”). For specific examples, compare Reading Anthracite Co., above (judge's conduct as a whole, including his statement that he “would appreciate it if counsel [for the General Counsel] would maintain a reasonably militant posture” with respect to the relevance of certain questioning by the respondent's counsel, at the very least gave the appearance of partiality and prejudgment sufficient to warrant disqualification), with Thermoid, above (trial examiner did not commit prejudicial error by suggesting that the General Counsel move to make respondent's witness his own in order to examine the witness beyond the scope of respondent's direct examination, as the suggestion “related to a technical rule of cross-examination procedure and, in any event, involved general background evidence upon which the Trial Examiner relied only to a very limited extent”), and Teamsters Local 722 (Kasper Trucking), 314 NLRB 1016, 1017 (1994) (finding no bias based on an “isolated incident” where the judge told the General Counsel to ask additional questions to more fully develop the record on a particular issue, as the judge might have accomplished the same thing through his own questioning), enfd. mem. 57 F.3d 1073 (7th Cir. 1995).

Questioning witnesses. It is well established that bias may not be inferred simply because the judge questioned the party's witnesses. United Nurses Associations of California, above, 871 F.3d at 778. See also §2–300, Duties of Trial Judge, above, regarding the authority of administrative law judges to call, examine, and cross-examine witnesses, and the limits to that authority.

Gratuitous remarks. The Board has cautioned against making gratuitous remarks regarding witnesses or testimony, Better Monkey Grip Co., 113 NLRB 938, 940 (1955), or matters “extraneous to the legal and factual issues,” Teamsters Local 777 (Crown Metal), 145 NLRB 197, 198 n. 4 (1963), enfd. 340 F.2d 905 (7th Cir. 1964).

Comments about the merits and 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 deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555. Thus, the Board has rejected allegations of bias where judges expressed an opinion about a particular defense after all the evidence had been received, Teamsters Local 722, 314 NLRB at 1018, or about the ultimate merits of the case in the context of suggesting the possibility of settlement, Roto Rooter, 288 NLRB 1025 n. 2 (1988). See also NLRB v. Honaker Mills, 789 F.2d 262, 265 (4th Cir. 1986) (“A judge's remarks that constitute mere expressions of a point of law are not sufficient to show personal bias or prejudice”).

However, 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). See also Center for United Labor Action, 209 NLRB 814, 814–815 (1974) (directing that a new judge be appointed where the original judge expressed his view, prior to hearing any evidence, that some allegations did not constitute unfair labor practices and that he therefore intended to preclude introduction of any evidence to support the allegations); and Reading Anthracite, above (same, where the judge made statements throughout the hearing creating the impression that he had prejudged the ultimate issue in the case and exhibited hostility, bias, and prejudice towards the respondent).

Encouraging settlement. “[S]imply encouraging the parties to consider settlement … [does] not display bias or create the impression of prejudgment.” J. Westrum Electric, 365 NLRB No. 151, slip op. at 1 n.1 (2017) (rejecting the respondent's contention that the judge displayed bias by encouraging the parties to discuss settlement after the General Counsel finished presenting his case and again at the close of the hearing), enfd. per curiam 753 F. Appx. 421 (8th Cir. 2019). See also §§9–200 through 9–240, below.

Copying from briefs. The Board discourages judges from extensively adopting and relying on partisan briefs. Fairfield Tower Condominium Assn., 343 NLRB 923 n.1 (2004). See also Waterbury Hotel Management, above, 314 F.3d at 650–651. Indeed, in Dish Network Service Corp., 345 NLRB 1071 (2005), the Board 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 because the judge had copied verbatim extensive portions of the briefs filed by the General Counsel and the charging party even though the Board had previously warned him in another case where he did so that it did not condone the practice. See also J.J. Cassone Bakery, 345 NLRB 1305 (2005); and §15–400, Posthearing Briefs, below.

§2–420 Disqualification Procedure

The provisions regarding disqualification of administrative law judges are set forth in Section 102.36(a) of the Board's Rules. A party may request the judge to withdraw “on grounds of personal bias or disqualification” at any time following the judge's designation and before filing of the judge's decision. The requesting 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.” If, in the judge's opinion, the affidavit is filed “with due diligence and is sufficient on its face,” the judge “will promptly disqualify himself/herself and withdraw from the proceeding.” If the judge does not disqualify himself/herself, the judge “must rule upon the record, stating the grounds for that ruling.” See also NLRB Statements of Procedure, Sec. 101.10(b).

The foregoing provisions require a party seeking to disqualify a judge based on the judge's hearing conduct to file the motion with the judge before the judge issues a decision. See Al Bryant, Inc., 260 NLRB 128 n. 1 (1982) (judge erred in admonishing respondent's counsel for filing the recusal motion with him rather than with the Board), enfd. 711 F.2d 543 (3d Cir. 1983). If a party fails to file the motion 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 n. 2 (1988); Central Mack Sales, 273 NLRB 1268 n. 2 (1984); and Sanford Home for Adults, 253 NLRB 1132 n. 1 (1981), affd. in relevant part 669 F.2d 35 (2d Cir. 1981).

For what constitutes “due diligence,” see Manor West, Inc., 311 NLRB 655 n. 1 (1993) (respondent's motion to disqualify, which was filed with the trial judge 7 weeks after the hearing closed but well before the judge's decision issued, was filed with due diligence and was not untimely).

CHAPTER 3. PLEADINGS

§3–100 The Charge

See Secs. 102.9–102.14 of the Board's Rules.

§3–110 General Principles

Under Section 10(b) of the Act, the General Counsel cannot issue a complaint unless a charge has been filed. See Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 4–5 (2019), and cases cited there.

A charge may be filed by anyone: a labor organization, an employee, an employer, or any other individual or entity. See NLRB Rules and Regulations, Secs. 102.9 (a charge may be filed by “any person”) and 102.1(a) (the term “person” has the same meaning set forth in Section 2 of the Act); and Sec. 2(1) of the Act (“The term “person” includes one or more individuals, labor organizations, associations, corporations, legal representatives, trustees, … or receivers”). See also FDRLST Media, LLC, 2–CA–243109, unpub. Board order issued Feb. 7, 2020 (2020 WL 1182438, 2020 NLRB LEXIS 57), reaffd. 370 NLRB No. 49, slip op. at 1 n. 4 (2020), affd. on point but enf. denied on other grounds 35 F.4th 108 (3d Cir. 2022). In that case, the respondent web magazine argued that the complaint should be dismissed because the charging party was “nothing more than a random person on the internet” who saw the publisher's allegedly unlawful tweet. The Board rejected the argument as “the clear and unambiguous weight of both Board and Supreme Court authority holds that any person may file an initial charge,” citing NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17–18 (1943), and Castle Hill Health Care Center, 355 NLRB 1156, 1190 (2010). And the Board's ruling was upheld on appeal. 35 F.4th at 119.

The charge must be filed with the Regional Director for a Region in which the alleged unfair labor practice occurred or with the General Counsel. NLRB Rules and Regulations, Secs. 102.10 and 102.33. However, the venue where the charge was filed does not affect the Board's jurisdiction or the validity of the complaint. See FDRLST Media, above, affd. on point 35 F.4th at 119–120; Harris Corp., 269 NLRB 733, 734 n. 1 (1984); and 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 both filed and served within 6 months of the alleged unfair labor practice. Dun & Bradstreet Software Services, 317 NLRB 84, 84–85 (1995) (charge served on respondent a day late was untimely, even if the charging party received erroneous advice from the Board's regional office), affd. 79 F.3d 1238 (1st Cir. 1996). But see Guild San Jose, 370 NLRB No. 47, slip op. at 1 n. 1 (2020) (the failure to properly serve the charge within the 10(b) period is cured by timely service of the complaint within the 10(b) period, absent a showing of prejudice), and cases cited there. For a discussion of what constitutes service of the charge, see Chapter 4, Service of Documents, below.

The charge must also be signed. NLRB Rules and Regulations, Sec. 102.11. But an unsigned copy served on the respondent is adequate if the original filed with the Regional Office is signed. Freightway Corp., 299 NLRB 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).

See also §3–210, Complaint Closely Related to Timely Charge; §3–330, Amendments and Section 10(b); §3–550, Revival of Withdrawn or Dismissed Charge; and §3–700, Section 10(b) Affirmative Defense, below.

§3–130 Sufficiency of the Charge

A charge merely serves to initiate a Board investigation to determine whether a complaint should be issued. It is not a pleading and is not measured by the standards applicable to a pleading in a private lawsuit. See FDRLST Media, above, citing NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959) (the role of the Board is not “to adjudicate private controversies” but “to advance the public interest in eliminating obstructions to interstate commerce.”); and NLRB v. Indiana & Michigan Electric, above, 318 U.S. at 18 (“The charge does not … serve the purpose of a pleading.”). Thus, 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 NLRB v. Raymond Pearson, Inc., 243 F.2d 456, 458 (5th Cir. 1957).

§3–140 Scope of Investigation of the Charge

The Regional Office is not required to limit the investigation of a charge to the specific unfair labor practices alleged therein. See NLRB v. Fant Milling Co., above, 360 U.S. at 307–309 (“Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge.”).

Section 10062.5 of the NLRB Casehandling Manual (Part 1) provides that, where the Regional Office's investigation uncovers evidence of other unfair labor practices not specified in the charge, the Region should make a determination whether the charge is sufficient to support the additional allegations, and if it is not, the charging party should be apprised of the deficiency and given an opportunity to file an amended charge.

Although the Casehandling Manual is not binding on the Board (see §3–830, below), the Board has implicitly approved the foregoing procedure. See Leukemia and Lymphoma Society, 363 NLRB 1082 (2016). In that case, the respondent moved to dismiss certain allegations involving its handbook rules because the allegations were unrelated to the charge; the Region evaluated the handbook on its own initiative; and the charging party amended the charge to include the handbook allegations at the Region's suggestion or direction. The Board found “no merit” in the respondent's contention that the allegations were barred by Section 10(b) in these circumstances, noting that the investigative procedure respondent described “conforms to Section 10062.5 of the NLRB Casehandling Manual (Part 1) Unfair Labor Practice Proceedings.”

§3–200 Complaint

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). See also Cincinnati Enquirer, 298 NLRB 275 (1990), (judge erred by stating that the Regional Director was “without authority” to issue the complaint), review denied 938 F.2d 284 (D.C. Cir. 1991).

§3–210 Complaint Closely Related to Timely Charge

A complaint is not restricted to the precise allegations of the charge. The complaint may also allege matters relating to and growing out of the charged conduct. NLRB v. Fant Milling Co., above, 360 U.S. at 309. The test is stated in Redd-I, Inc., 290 NLRB 1115, 1116 (1988):

If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) occurred within six months before the filing of the charge.

See also Old Dominion Freight Line, 331 NLRB 111 (2000).

In evaluating whether allegations are “closely related” under Redd-I, the Board considers whether:

1) the otherwise untimely allegations involve the same legal theory as the allegations in the timely charge;

2) the otherwise untimely allegations arise from the same factual situation or sequence of events as the allegations in the timely charge (i.e., the allegations involve similar conduct, usually during the same time period, and with a similar object); and

3) a respondent would raise the same or similar defenses to both the otherwise untimely allegation and timely allegations.

Starbucks Coffee Co., 372 NLRB No. 50, slip op. at 2 (2023), reconsideration denied 372 NLRB No. 102 (2023), enfd. in part ——— F.4th ———, 2024 WL 5231549 (3d Cir. 2024). See also Charter Communications, LLC, 366 NLRB No. 46, slip op. at 2 (2018), reconsideration denied by unpub. Board order issued June 7, 2018 (2018 WL 2761559, 2018 NLRB LEXIS 682), enfd. 939 F.3d 798 (6th Cir. 2019).

It is not necessary under the first factor that the otherwise untimely allegation involve the same section of the Act as the timely allegations. Nickles Bakery of Indiana, 296 NLRB 927 n. 5 (1989). See, e.g., Vista Del Sol Healthcare, 363 NLRB 1193, 1219 (2016) (untimely 8(a)(3) wage increase allegation involved common legal theory with timely 8(a)(1) inducement and promise of benefit allegations as both were based on respondent's animus against the union's organizing campaign).

The second factor is not satisfied “merely because timely and untimely allegations pertain to events that occurred during or in response to the same union campaign.” Charter Communications, slip op. at 2 n. 7, citing Carney Hospital, 350 NLRB 627, 630 (2007).

The third factor “is concerned, at least in part, with whether a reasonable respondent would have preserved similar evidence and prepared a similar case in defending against the untimely allegations as it would in defending against the timely allegations.” Charter Communications, slip op. at 4, citing Fry's Food Stores, 361 NLRB 1216, 1217 n. 5 (2014). See also Applebee's, 367 NLRB No. 44, slip op. at 3 (2018) (“[I]t is only necessary for this part of the test that the defenses be similar, not that they be identical.”). It is not a mandatory factor, i.e., the Board may find allegations closely related even if this third factor is not satisfied. See Earthgrains Co., 351 NLRB 733, 734 n. 8 (2007), citing Carney Hospital, 350 NLRB at 628 n. 8. See also Costco Wholesale Corp., 366 NLRB No. 9, slip op. at 1 n. 2 (2018) (finding that the Redd-I “closely related” test was satisfied based solely on the first two factors).

See also §3–330, Amendments and Section 10(b); §3–550, Revival of Withdrawn or Dismissed Charge; and §3–700, Section 10(b) Affirmative Defense, below.

§3–220 Adequacy of Complaint

Like all pleadings before the Board, the requirements of a complaint are governed by the Board's Rules rather than the Federal Rules of Civil Procedure. See Nissan North America, Inc., 10-CA-198732, unpub. Board order issued Nov. 16, 2017 (2017 WL 5516533, 2017 NLRB LEXIS 566), at n. 2; and Component Bar Products, Inc., 364 NLRB 1901, 1909 (2016). Section 102.15 of the Board's Rules states that a complaint “will” contain:

1. A clear and concise statement of the facts upon which the Board asserts jurisdiction, and

2. A clear and concise description of the acts which are claimed to constitute unfair labor practices, including, where known, the approximate dates and places of such acts and the names of Respondent's agents or other representatives who committed the acts.

“Applying this rule, the Board and the courts have consistently found that an unfair labor practice complaint is not judged by the strict standards applicable to certain pleadings in other, different contexts.” Artesia Ready Mix Concrete, 339 NLRB 1224, 1226 (2003), citing, e.g., NLRB v. Piqua Munising Wood Products Co., 109 F.2d 552, 557 (6th Cir. 1940) (“The Act does not require the particularity of pleading of an indictment or information, nor the elements of a cause like a declaration at law or a bill in equity. 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 respondent may be put upon his defense.”). See also Kumho Tires Georgia, 370 NLRB No. 32, slip op. at 5 n. 15 (2020) (“The General Counsel is not required to plead the exact testimony in his complaint.”); and Starbucks Corp., 373 NLRB No. 53, slip op. at 2 n. 7 (2024) (“[M]inor factual discrepancies [in the undisputed evidence] from what was alleged in the complaint as to the location of where a violation occurred do not create a due-process issue.”).

However, as discussed in §3–600 below, the Board will not issue a default (no answer) summary judgment on a complaint that fails to include a clear or specific factual basis to determine that the alleged conduct was unlawful.

§3–230 Bill of Particulars or More Definite Statement

If a respondent believes the complaint provides inadequate notice of the allegations, it may file a motion for a bill of particulars or more definite statement with the Division of Judges. See, e.g., Full-Fill Industries, LLC, 25–CA–249830, unpub. Board order issued Nov. 17, 2020 (2020 WL 6781765, 2020 NLRB LEXIS 550), at 1 n. 2 (such prehearing motions are properly filed with the Division of Judges rather than the Board).

Although FRCP 12(e) requires such a motion to be filed before a responsive pleading, the Board's Rules do not impose any deadline or timeframe. Nissan North America, above. However, the motion is normally filed before the hearing opens so that the respondent can use the additional details to prepare its defense. In that event, the motion will be handled by the Chief Judge or Deputy or Associate Chief Judge in the appropriate office, unless the trial judge has been designated.

If the motion is not filed until after the hearing opens, the trial judge will rule on the motion. The General Counsel's opening statement, however, may provide the details or clarification the respondent seeks, thereby rendering the motion moot. See Stor-Rite Metal Products, 283 NLRB 856, 861 n. 6 (1987), enf. denied on other grounds 856 F.2d 957 (7th Cir. 1988).

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.” Affinity Medical Center, 364 NLRB 878, 879 (2016), quoting North American Rockwell Corp. v. NLRB, 389 F.2d 866, 871 (10th Cir. 1968). Thus, in Affinity, the Board held that the judge erred in requiring the GC to provide additional information regarding a proposed amendment to the complaint, as the proposal already stated the nature of the alleged conduct (specific unilateral rule changes), the names of the supervisors allegedly involved in each change, the dates of the changes, and the location. See also Dal-Tex Optical Co., 130 NLRB 1313 n. 1 (1961) (employer's motion for particulars regarding certain alleged 8(a)(1) threats or statements was properly denied where the complaint described the nature of the activity, the dates, and the names of the agents that made the alleged threats or statements); Mid-Atlantic Restaurant Group LLC d/b/a Kelly's Taproom v. NLRB, 722 F. Appx. 284, 287 (3rd Cir. 2018) (ALJ did not abuse his discretion in denying the employer's motion for a bill of particulars regarding an employee's alleged 8(a)(1) discharge as the complaint adequately pled that the employee had openly complained about shift schedules, that her complaints constituted protected concerted activity, and that she was discharged for that activity); and Public Service Co. of Oklahoma v. NLRB, 318 F.3d 1173, 1181–1182 (10th Cir. 2003) (employer was not denied due process because the complaint's 8(a)(5) bad-faith bargaining allegation, which alleged that the employer had insisted on proposals granting it unilateral control over the employees' terms and conditions of employment, failed to specifically identify the bargaining proposals).

Compare Guitar Center Stores, Inc., 13–CA–130446, unpub. Board order issued Nov. 3, 2015 (2015 WL 6735635, 2015 NLRB LEXIS 809). In that case, the 8(a)(5) complaint alleged that the respondent had bargained in bad faith “at various times” during the previous 2 years by, inter alia, making regressive bargaining proposals and unilateral changes to mandatory subjects of bargaining, failing to make proposals for an extended period of time, and implementing benefits in nonunion facilities. The Board held that the judge did not abuse his discretion in granting the respondent's motion for a bill of particulars and ordering the General Counsel to identify the regressive bargaining proposals and unilateral changes at issue, the period of time during which respondent unlawfully failed to make proposals, and the benefits implemented at nonunion stores.

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 Sec. 102.15 of the Board's Rules, set forth in §3–220, above. Thus, the following additional information need not be pleaded:

Names of employees who were allegedly threatened or interrogated. The names of employees to whom an alleged threat or other 8(a)(1) violation was directed need not be pleaded, and a respondent is not entitled to disclosure of the names before the hearing. 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). See also Pacific 9 Transportation, Inc., 21–CA–116403, unpub. Board order issued June 11, 2015 (2015 WL 3643583, 2015 NLRB LEXIS 439). In that case, the judge ordered the General Counsel to disclose the identity of the driver or drivers allegedly interrogated given that the respondent had asserted, as an affirmative defense, that its drivers were independent contractors, the respondent had the burden of proving that defense with respect to the particular driver(s) involved, and the respondent would be expected to proceed with its defense as early as the first day of hearing. The Board reversed, noting that the respondent could request a continuance to prepare its defense, if needed. See also §7–100, below, discussing the Board's policy against pretrial discovery.

Dates alleged discriminatees engaged in union or concerted activity. The date(s) that an alleged discriminatee engaged in protected union or concerted activity likewise need not be pleaded. Cannoli Factory, 29–CA–187620, unpub. Board order issued April 18, 2017 (2017 WL 1462121, 2017 NLRB LEXIS 178).

Theory of the case. “The General Counsel is also not required to plead [ ] evidence or the theory of the case in the complaint.” Starbucks Corp., Case 10–CA–291616, unpub. Board order issued Nov. 9, 2022 (2022 WL 16851736, 2022 NLRB LEXIS 512), citing McDonald's USA, LLC, 362 NLRB 1347 (2015); and Boilermakers Local 363 (Fluor Corp.), 123 NLRB 1877, 1913 (1959). See also Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993); and North American Rockwell, above, 389 F.2d at 871.

With respect to General Counsel motions for a bill of particulars regarding affirmative defenses asserted in a respondent's answer, see §3–620, below.

§3–300 Amendments to Complaints

Section 102.17 of the Board's Rules provides that a complaint may be amended before, during, and after the hearing “upon such terms as may be deemed just.”

§3–310 Amendments Before the Hearing

Section 102.17 provides that the Regional Director may amend the complaint prior to the hearing. The RD may do so even if a motion to dismiss the complaint is pending before the Board. See Starbucks Corp., above. In that case, the respondent filed a prehearing motion with the Board to dismiss the complaint for failing to state a claim and lacking specificity. While the motion was still pending before the Board, the RD issued an amended complaint that superseded the original complaint. The Board ruled that the amendment was within the RD's authority under 102.17, and that “from a judicial economy standpoint,” there was “no practical reason to prevent the [RD] from curing an alleged deficiency in the complaint that the Respondent has brought to her attention in a motion to dismiss.” The Board also noted that the Respondent had “not alleged any prejudice resulting from the amendment,” and that even if the Board were to have granted the Respondent's motion to dismiss, it “would have done so without prejudice, allowing the [RD] to refile.” The Board therefore denied the motion to dismiss the original complaint as “moot.” It also denied the Respondent's additional motion to dismiss the amended complaint, finding that the amended complaint satisfied the pleading requirements of Section 102.15 of the Board's Rules. See also UPMC Western Psychiatric Hospital, 06–CA–316473, unpub. Board order issued Jan. 8, 2024 (2024 WL 95553), slip op. at 2 (citing and following Starbucks).

§3–320 Amendments During and After the Hearing

Section 102.17 provides that “upon motion,” the trial judge may amend the complaint “at the hearing and until the case has been transferred to the Board pursuant to §102.45” following the trial judge's decision. See also Folsom Ready Mix, Inc., 338 NLRB 1172 n. 1 (2003).

Motion by the General Counsel required. The complaint may only be amended on motion by the General Counsel. The judge may not amend the complaint over the GC's objection or in a manner inconsistent or contrary to the GC's motion. GPS Terminal Services, 333 NLRB 968, 968–969 (2001). Nor may the judge find a violation on a theory that the GC has expressly disclaimed. Indiana Bell Telephone Co., 370 NLRB No. 93, slip op. at 1 (2021); and Mid-Atlantic Regional Council of Carpenters (Goodell, Devries, Leech & Dann, LLP), 356 NLRB 61 n. 2 (2010).

The judge also may not find a violation based on an allegation or theory that has been asserted only by the charging party. See Hobby Lobby Stores, Inc., 363 NLRB 1965 n. 2 (2016) (“It is well settled that a charging party cannot enlarge upon or change the General Counsel's theory of a case.”), citing Kimtruss Corp., 305 NLRB 710, 711 (1991) (judge erred in finding an 8(a)(1) violation based on the charging party's theory as well as the GC's theory). See also GTE Automatic Electric, 196 NLRB 902, 903 (1972)(judge erred by granting the charging party's motion to amend the complaint to allege an 8(a)(3) discharge); Winn-Dixie Stores, 224 NLRB 1418, 1420 (1976), (judge erred in finding that the respondent engaged in surface bargaining as claimed by the charging party, as the GC had not acquiesced in expanding the complaint's 8(a)(5) allegations to include that allegation), enfd. in part 567 F.2d 1343 (5th Cir. 1978); Zurn/N.E.P.C.O., 329 NLRB 484 (1999) (judge properly refused to consider charging party's theory that respondent's hiring policy was unlawful on its face, as the GC argued only that it was unlawfully applied); and Concord Honda, 367 NLRB No. 104, slip op. at 1 n. 3 (2019) (Board refused to consider the charging party union's arguments that the employer's arbitration agreement was not enforceable under the FAA or other federal statutes, both because these alternative legal theories were “wholly outside the scope of the General Counsel's complaint” and because such claims were not within the Board's jurisdiction and “should be presented to the court or agency that has jurisdiction to consider them.”).

The courts generally agree. See Weigand v. NLRB, 783 F.3d 889, 895 (D.C. Cir. 2015); and Operating Engineers Local 150 v. NLRB, 325 F.3d 818, 830 (7th Cir. 2003) (General Counsel, not the charging party, controls the issues raised in the complaint).

But see §3–340, De Facto Amendment—Unpleaded But Fully Litigated, below, discussing when the judge may find a different violation even without a motion to amend the complaint. See also Service Employees Local 32BJ v. NLRB, 647 F.3d 435, 446 (2d Cir. 2011) (Board erred in refusing to consider an alternative theory of violation urged by the charging party simply because that theory had not been alleged by the General Counsel; Board has authority to consider such a theory if it is closely related to the subject matter of the complaint and was fully litigated), decision on remand 365 NLRB No. 162 (2017).

Notwithstanding the foregoing, a charging party may submit additional evidence in support of the General Counsel's theory of the case. See, e.g., DH Long Point Mgt. LLC, 369 NLRB No. 18, slip op. at 13 n. 37 (2020), enfd. per curiam 858 F. Appx. 366 (D.C. Cir. 2021). In that case, the ALJ ruled that the charging party union could present testimony about a manager's coercive statement as additional evidence of the employer's animus and discriminatory motive for disciplining and discharging an employee, even though the manager's statement was not alleged as a violation in the complaint. The ALJ noted that the employer was given adequate notice at the outset of the hearing that the union would be presenting such evidence.

As discussed in §6–400, below, charging parties may also submit, and the judge may consider, evidence regarding an appropriate remedy different from the remedy sought by the General Counsel.

Limits on Judge's Discretion. The judge has “wide discretion” in granting or denying a motion to amend; however, in exercising that discretion the judge should consider: “(1) whether there was surprise or lack of notice, (2) whether there was a valid excuse for the delay in moving to amend, and (3) whether the matter was fully litigated.” Rogan Bros. Sanitation, Inc., 362 NLRB 547, 549 n. 8 (2015), enfd. 651 F. Appx. 34 (2d Cir. 2016). See also §3–330, Amendments and Section 10(b), below, discussing allegations occurring more than 6 months before the motion to amend but within 6 months of the charge.

During the hearing. In Rogan Bros., above, the Board held that the first and third factors supported allowing the General Counsel to amend the complaint during the hearing to allege that the respondent employers were a single employer as well as alter egos. Although the GC had stated at the outset of the hearing that no single-employer allegation was being made, the GC subsequently filed the motion to amend during a 2-month adjournment, before the GC rested, and the allegation was thereafter fully litigated. Accordingly, the Board found that the judge did not abuse his discretion in granting the GC's motion. The Second Circuit agreed (albeit in an unpublished opinion). The court found no prejudice as the single-employer theory was substantially similar to the alter ego theory alleged in the complaint, it was added before the GC completed the case in chief, and the respondent could have recalled any of the GC's witnesses that had already testified.

See also Hood River Distillers, Inc., 372 NLRB No. 126, slip op. at 1 n. 2 (2023) (ALJ did not deny respondent due process by granting General Counsel's motion to add two more 8(a)(5) unilateral-change allegations on the first day of hearing where the union did not receive notice of the changes until days before the hearing, the judge allowed respondent time to prepare its defense before the GC presented testimony about them, and they were fully litigated); Remington Lodging & Hospitality, LLC, 363 NLRB 987 n.1 (2016) (ALJ did not deny the respondent due process by granting the GC's motion to add an 8(a)(1) allegation involving an employer leaflet 12 days after the hearing opened, as the respondent did not produce the leaflet in response to the GC's subpoena until 7 days after the hearing opened and the respondent had an opportunity to introduce evidence regarding the allegation before the hearing closed), enfd. 847 F.3d 180 (5th Cir. 2017); Amglo Kemlite Laboratories, 360 NLRB 319, 323 (2014) (ALJ erred in denying the GC's motion, on the last day of the 3-day hearing, to amend the complaint to allege an 8(a)(1) threat of mass discharge, as the respondent did not object to the testimony at the time it was adduced and had the opportunity to examine both the witness and the official who made the remark, and the motion amended an existing complaint allegation, which alleged a similar threat on the same day, to conform to that evidence), enfd. 833 F.3d 824 (7th Cir. 2016); and Pincus Elevator & Electric Co., 308 NLRB 684, 684–685 (1992) (ALJ abused her discretion by denying the GC's motion during the hearing to add a Johnnie's Poultry allegation that respondent's counsel had improperly questioned employees about the case without giving assurances against reprisal, as the respondent's counsel had first introduced the subject employee statement, the allegation was fully litigated, and the respondent had therefore suffered no prejudice), enfd. mem. 998 F.2d 1004 (3d Cir. 1993).

But see King Soopers, Inc. v. NLRB, 859 F.3d 23, 33 (D.C. Cir. 2017), denying enf. in relevant part of 364 NLRB 1153 n. 1 (2016). In that case, the court reversed the Board and found that the General Counsel's mid-hearing motion to amend the complaint came too late because the GC had access to all of the relevant information necessary to investigate the charge for a full year before the hearing, provided no valid excuse for failing to include the charge in the initial complaint, and did not make the motion to amend until after the company had finished cross-examining the GC's key witness).

Compare also Hood River Distillers, Inc., above, slip op. at 1 n. 2 (ALJ did not abuse his discretion in denying the General Counsel's motion on the ninth day of the 11-day hearing, after the GC had rested and the respondent had begun presenting its defense, to further amend the complaint to allege an additional 8(a)(5) allegation that respondent eliminated two positions; although the elimination of one of the positions did not become known until a respondent witness testified, respondent had previously made known that it eliminated the other position, and the changes were not fully litigated); and Latino Express, Inc., 358 NLRB 823 n. 3, and JD. at 827 n. 2 (2012), reaffd. 361 NLRB 1171 (2014) (ALJ did not abuse his discretion in denying, as “inexcusably late and prejudicial,” the GC's motion, at the end of the second day of the 3-day hearing, to amend the complaint to allege that respondent unlawfully served subpoenas on employees 2 weeks before the hearing that sought union-related pamphlets, letters, emails, and other documents in their possession).

At the close of the hearing. In Stagehands Referral Service, 347 NLRB 1167 (2006), the Board affirmed the judge's denial of a motion to amend the complaint at the end of the hearing. The complaint alleged that the union had discriminatorily failed to refer a single discriminatee, and the General Counsel sought to add an allegation that the entire hiring hall operation was unlawful because no objective criteria were applied. The Board found that the amendment would not have been “just” because: (1) the respondent had not been given notice that the hiring hall operation would be placed in issue; (2) the GC did not move to amend as soon as the evidence came to light, but only after the respondent had rested; and (3) it could not be assumed that the respondent's handling of the case would have been unchanged, as the lack of objective criteria had little or no bearing on the union's decision not to refer the discriminatee. Id. at 1171.

Compare Bruce Packing Co., 357 NLRB 1084, 1085–1086 (2011), revd. in relevant part 795 F.3d 18 (D.C. Cir. 2015). In that case, the General Counsel moved to amend the 8(a)(3) complaint to add an 8(a)(1) promise-of-benefits allegation. As in Stagehands Referral Service, the GC made the motion at the end of the hearing, after the respondent had rested, even though the relevant testimony had been elicited from one of the GC's employee witnesses the day before. The ALJ denied the motion, citing the lateness of the motion and the GC's delay in making it. The Board, however, held that the judge should have granted the motion because the issue had been fully litigated. The Board noted that respondent had called the supervisor, who denied making the promise, and respondent failed to identify any other evidence or defense that it would have presented if the motion to amend had been made earlier.

The D.C. Circuit reversed. The court rejected the Board's argument that the respondent had a burden to identify with specificity the testimony or defenses it could have presented to defeat the allegation. The court stated that, “[w]hen a late amendment deprives an employer of notice and the opportunity to litigate its liability, we will find prejudice warranting reversal so long as there is even a chance that the company could have successfully defended against the charge.” The court found that the respondent satisfied this “low standard” because, had the respondent been given earlier notice, it could have attacked the employee's credibility regarding the allegation, cross-examined her to expose any inconsistencies, and explored the issue more fully with the supervisor and other witnesses. The court also rejected the Board's argument that the respondent could have recalled witnesses to rebut the employee's testimony as the ALJ had closed the hearing without giving the respondent a chance to reopen evidence and, “moreover,” respondent was not “required to attempt to recall witnesses to cure the prejudice created” by the late amendment. Bruce Packing Co. v. NLRB, 795 F.3d at 24.

But see Boar's Head Provisions Co., 370 NLRB No. 124, slip op. at 1 n.2 (2021). There, the ALJ granted the General Counsel's motion at the end of the hearing to amend a complaint allegation that the respondent denied off-duty employees access to the parking lots to instead allege that respondent engaged in and created the impression of surveillance of the employees' union activities. On exceptions, the respondent argued that it was prejudiced by the judges' ruling, citing the D.C. Circuit's decision in Bruce Packing Co. v. NLRB, above. The Board, however, found that the respondent “could not have successfully defended against the unlawful surveillance charge” as the respondent had “called and elicited testimony from most, if not all, of [its] witnesses that were involved in the alleged surveillance activity” and the “clear record evidence” established that the respondent treated employee handbilling activity in a disparate manner compared to other, non-union employee activity such as selling fruit and vegetables from employees' vehicles.

After the hearing. In Desert Aggregates, 340 NLRB 289, 292–293 (2003), the Board denied the General Counsel's posthearing motion to amend the complaint to allege an additional 8(a)(1) statement by a manager. (The motion had been made in the GC's posthearing brief and the judge failed to rule on it.) The Board found that the respondent did not have fair notice that the manager's statement would be alleged as a violation because the manager's testimony about the statement emerged incidentally during the GC's cross-examination, and, consequently, was not fully litigated. See also Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB 766, 774–775 (1989) (affirming judge's denial of the General Counsel's posthearing request to amend the complaint to allege an additional 8(b)(3) violation), enfd. in part and remanded in part 905 F.2d 417 (D.C. Cir. 1990).

Compare Roundy's Inc., 356 NLRB 126 (2010), enfd. 674 F.3d 638, 646–647 (7th Cir. 2012). In that case, the complaint alleged that the respondent had unlawfully prohibited union representatives from handbilling at several of its stores. Although the General Counsel asserted only a disparate treatment theory at trial, the GC's posthearing brief also argued that the respondent had failed to show that it had a sufficient property interest to exclude the handbillers. The judge found that the GC had asserted this new theory too late. The Board, however, remanded for the judge to take evidence on the property-interest issue, noting that it was the respondent's burden to establish a sufficient property interest and that it would be unnecessary to reach the disparate treatment theory if the respondent lacked a sufficient property interest to exclude the handbillers. The judge thereafter reopened the hearing, found a violation at most of the respondent's stores under the property-interest theory, and the Board affirmed on that basis.

Obviously, the relevant factors identified by the Board can only be considered and applied if the General Counsel specifies exactly what is being added to or amended in the complaint. Thus, nonspecific, open-ended motions to conform the pleadings to the proof should be rejected.

§3–330 Amendments and Section 10(b)

A complaint may be amended to allege conduct outside the 10(b) period if the conduct occurred within 6 months of a timely filed charge and is “closely related” to the allegations of the charge. Fry's Food Stores, 361 NLRB 1216 (2014), citing Redd-I, Inc., 290 NLRB 1115 (1988). For a discussion of the Redd-I “closely related” test, see §3–210, Complaint Closely Related to Timely Charge, above. See also §3–550, Revival of Withdrawn or Dismissed Charge; and §3–700, Section 10(b) Affirmative Defense, below.

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

Judges occasionally must decide whether it is appropriate to find a violation in the absence of a specific allegation in the complaint. This typically arises in three situations: (1) where the conduct was alleged as a violation, but of a different section of the Act; (2) where the conduct was alleged as a violation, but on a different theory; and (3) where the conduct was not alleged as a violation at all. The issue may also sometimes arise where the evidence indicates that the alleged violation occurred on a different date than that alleged in the complaint.

In Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990), a case involving the first situation, the Board stated that the test is whether the issue “is closely connected to the subject matter of the complaint and has been fully litigated.” This test has since been applied in the other two situations as well. See cases cited below. See also Service Employees Local 32BJ v. NLRB, 647 F.3d 435, 447 (2d Cir. 2011) (noting, in remanding for the Board to properly apply the Pergament rule, that “the Board has applied this rule to a variety of circumstances”). Nevertheless, the judge should be careful to identify which of the three situations is presented. See *Massey Energy/Mammoth Coal, 358 NLRB 1643, 1652 n. 36 (2012), where the Board majority, in finding liability based on an unalleged theory, rejected as “inapposite” cases cited by the respondent and the dissent that involved unalleged violations.

Both parts of the Pergament test must be satisfied; if a matter is not closely connected to any of the complaint allegations, a violation cannot be found regardless of whether it was fully litigated. See List Industries, Inc., 373 NLRB No. 146, slip op. at 2 n. 5 (2024) (finding it unnecessary to consider whether employer's unalleged maintenance of an overbroad distribution policy was fully litigated, as it was not closely connected to any of the complaint allegations).

Violations of a different section of the Act. For cases involving this situation, see Pergament, above (judge properly found that the respondent's refusal to hire employees violated 8(a)(4) rather than 8(a)(3) as alleged, because both involved the lawfulness of the respondent's motivation for failing to hire the employees, no party objected to the General Counsel's introduction of the evidence relevant to the 8(a)(4) issue, and the respondent's personnel director corroborated the evidence and admitted that the employees were not hired because of the pending NLRB charges); KenMor Electric Co.., 355 NLRB 1024 (2010) (employer's job application referral system violated 8(a)(1) rather than 8(a)(3) as alleged), enf. denied in relevant part sub nom. Independent Electrical Contractors of Houston, Inc., v. NLRB, 720 F.3d 543 (5th Cir. 2013); Airborne Freight Corp., 343 NLRB 580, 581 (2004) (supervisor's alleged 8(a)(1) and (3) statements and refusal to transfer an employee both also violated 8(a)(4)); and Valley Cabinet & Mfg., 253 NLRB 98, 100 n. 10 (1980) (respondent union's 8(b)(2) failure to notify an employee of her dues obligations before requesting her discharge also violated 8(b)(1)A)), enfd. mem. 691 F.2d 509 (9th Cir. 1982).

Violations based on a different theory. The Board considers the following four factors in evaluating whether it is appropriate to find a violation on a theory that was not clearly articulated by the General Counsel:

(1) whether the language of the complaint encompasses the legal theory upon which the violation was found; (2) whether the factual record is complete, or, in other words, whether the facts necessary to find a violation under the theory in question were litigated; (3) whether the law is well established; and (4) the General Counsel's representations about the theory of violation, and the differences between the litigated theory and the theory [in question].

DirectSat USA, LLC, 366 NLRB No. 40, slip op. at 1 (2018) (finding that all four factors supported finding a violation on a different theory in that case), enfd. 925 F.3d 1272 (D.C. Cir. 2019).

The following are examples where the Board has found a violation on a different theory.

Section 8(a)(1) allegations. See Troy Grove, 372 NLRB No. 94, slip op. at 2 n. 10 (2023) (respondent's issuance of layoff notices violated 8(a)(1) even though the General Counsel only alleged that the layoffs themselves violated 8(a)(3) and the allegation was dismissed because the layoffs were rescinded before they became effective); Pain Relief Centers, P.A., 371 NLRB No. 143, slip op. at 2 n. 10 (2022) (respondent's state court breach of contract claims against the discriminatees violated 8(a)(1) because they were preempted, even though the GC only argued that they were baseless and retaliatory, as there could be no claim that respondent would have presented additional evidence if it knew the case would be decided on a preemption theory); Space Needle, LLC, 362 NLRB 35, 38–39 (2015) (supervisor's statements to an employee violated 8(a)(1) on the ground that they were coercive, regardless of whether they constituted an unlawful interrogation as alleged in the complaint, as the coercive-statement theory involved the same facts and inquiry as to whether the statement would reasonably tend to coerce employees, and was fully litigated), enfd. 692 F. Appx. 462 (9th Cir. 2017); Intertape Polymer Corp., 360 NLRB 957, 958 n. 8 (2014) (employer's confiscation of union literature from the employee breakroom violated 8(a)(1) because the employer's past policy or practice was to permit literature in that area, even though the complaint alleged a violation on a disparate-enforcement theory), enfd. on point 801 F.3d 224, 232–233 (4th Cir. 2015); Parexel Int'l, LLC, 356 NLRB 516 (2011) (finding an 8(a)(1) discharge violation based on a “preemptive strike” theory rather than the alleged “retaliation” theory); and AKAL Security, Inc., 354 NLRB 122, 125 (2009), reaffd. 355 NLRB 584 (2010) (holding that the judge's application of Burnup & Sims instead of Wright Line to find an 8(a)(1) discharge violation did not deny respondent due process as respondent clearly anticipated that Burnup & Sims could apply and litigated accordingly). See also 20/20 Communications, Inc., 369 NLRB No. 119, slip op. at 3 n. 7 (2020) (finding that the employer's arbitration agreement was unlawful on an additional basis not argued by the parties, as the finding was “based on the language of the [arbitration agreement] itself, which is part of the stipulated record”).

But compare Securitas Security Services USA, 369 NLRB No. 57, slip op. at 2 (2020) (declining to address whether the employer's investigative confidentiality policy was unlawful because it applied to nonparticipants in the investigation or prohibited employees from discussing the underlying incident, as the complaint only alleged that the employer unlawfully prohibited an employee-witness to an incident from discussing the incident with anyone during the investigation and did not allege that the employer's policy was overbroad in any other respect, and no such issues were litigated); Fry's Food Stores, 366 NLRB No. 138, slip op. at 4 (2018) (finding that the judge improperly found that a dues checkoff agreement was unlawful on its face where the General Counsel repeatedly stated at the hearing that the sole theory was that the employer and union had misapplied the agreement to prevent employees from revoking their authorizations); and Buonadonna ShopRite, 356 NLRB 857, 858 (2011) (finding that the judge improperly found an 8(a)(1) violation on the theory that the employer denied the employee's request to consult with a particular union representative by telephone before proceeding with an investigatory interview, where the complaint alleged only that the employer unlawfully denied the employee's request to be represented by the union during the interview, and the evidence showed that another union representative was present at the interview to represent him).

Section 8(a)(3) or (4) allegations. See Hawaiian Dredging Construction Co., 362 NLRB 81, 82 n. 6 (2015) (finding that employer's discharge or layoff of union members violated 8(a)(3) under both a Wright Line unlawful-motive theory and a Great Dane inherently destructive theory even though the General Counsel never advanced a Wright Line theory), enf. denied and remanded for reconsideration of the evidence supporting the employer's defenses 857 F.3d 877 (D. C. Cir. 2017), on remand 368 NLRB No. 7 (2019), rev. denied sub nom. Boilermakers Local 627 v. NLRB, 61 F.4th 971 (D.C. Cir. 2023).

But compare Lamar Advertising of Hartford, 343 NLRB 261, 265 (2004) (rejecting the General Counsel's attempt, on exceptions to the judge's decision, to “expand” the theory underlying the alleged 8(a)(4) violation, as the “necessary predicates” for finding a violation on the different theory were not litigated).

Section 8(a)(5) allegations. See Stein, Inc., 369 NLRB No. 10, slip op. at 4 (2020), reconsideration denied 2020 WL 1931433, 2020 NLRB LEXIS 118 (March 17, 2020) (respondent successor employer violated 8(a)(5) by discharging an employee pursuant to a unilateral change in the initial employment terms it had previously established, even though the GC alleged a violation on the ground that the successor employer had forfeited the right to set initial terms of employment, as the complaint allegation was broad enough to include the alternative rationale and the relevant facts were fully litigated); Graymont PA, Inc., 364 NLRB 356, 360–362 (2016) (respondent employer's failure to timely notify the union that the information it requested did not exist violated 8(a)(5) even though the complaint only alleged the failure to provide the information, as the issues were closely related and the respondent asserted that the information did not exist as an affirmative defense to the refusal-to-provide-information allegation); and Facet Enterprises v. NLRB, 907 F.2d 963, 969–975 (10th Cir. 1990) (upholding the Board's finding of an 8(a)(5) refusal-to-bargain violation based on a direct-dealing theory even though the alleged refusal to bargain was based on a theory of attempted unit splitting).

But compare Springfield Day Nursery, 362 NLRB 261, 262–263 (2015) (holding that the judge improperly found an 8(a)(5) violation based on a unilateral-change theory where only an 8(d) contract-modification theory was alleged in the complaint, litigated at the hearing, and addressed in the General Counsel's posthearing brief); and Baptist Hospital of East Tennessee, 351 NLRB 71 n. 5 (2007) (declining to address whether the employer violated 8(a)(5) under an 8(d) contract-modification theory, as the General Counsel only pursued a unilateral-change theory).

Section 8(b) allegations. See IBEW Local 58 (Paramount Industries, Inc.), 365 NLRB No. 30, slip op. at 4 n. 17 (2017) (holding that it was proper to find an 8(b)(1)(A) violation on an additional theory that the General Counsel had not clearly pursued, as “the conduct was alleged in the complaint,” “all of the underlying facts [were] undisputed,” “the law [was] well established,” and “no due process concerns [were] implicated”), rev. denied 888 F.3d 1313 (D.C. Cir. 2018); and Teamsters Local 89 (Jack Cooper Transport Co.), 365 NLRB No. 115 (2017) (finding that the respondent union's delay in furnishing certain information to the company violated 8(b)(3) even though the complaint only alleged that the union failed to furnish information to the company, as the issues were closely connected and the union itself elicited testimony to explain why it delayed furnishing the information).

But compare Laborers Local 91 (Scrufari Construction Co.), 368 NLRB No. 40, slip op. at 1 & n. 2 (2019) (declining to address whether the respondent union violated 8(b)(1)(A) by disciplining a member for filing NLRB charges against it, as the complaint only alleged that the union unlawfully disciplined the member because his brother criticized the union leadership, and the additional theory was not raised or litigated before the ALJ), enfd. 825 F. Appx. 51 (2d Cir. 2020).

Violations based on unalleged conduct. For cases finding violations based on unalleged conduct, see Northeast Center for Rehabilitation and Brain Injury, 372 NLRB No. 35, slip op. at 6 n. 21 (2022) (employer's unalleged actions to increase management visibility constituted 8(a)(1) surveillance, as the facts were fully litigated and the issue was closely connected to the complaint's 8(a)(1) allegations that the employer made certain statements that created the impression of surveillance), enfd. in relevant part 94 F.4th 67, 73 n. 3 (D.C. Cir. 2024); Ozburn-Hessey Logistics, LLC, 366 NLRB No. 173 (2018) (employer's unalleged unilateral change in its attendance policy violated 8(a)(5), and that its subsequent discharge of an employee pursuant thereto violated 8(a)(5) as well, where the complaint alleged that a prior change in the attendance policy violated 8(a)(5), the later change occurred during the same time period while the employer was challenging the union's certification, the General Counsel informed the employer's counsel by email months before the hearing that the later change was at issue, and the later change and its application to the terminated employee were fully litigated at the hearing), enfd. 939 F.3d 777 (6th Cir. 2019); Irving Ready-Mix, Inc., 357 NLRB 1272, 1285 n. 13 (2011) (certain unalleged but admitted statements by a manager violated 8(a)(1) where the complaint alleged that other statements by the same manager during the same phone conversation violated 8(a)(1)); Hi-Tech Cable Corp., 318 NLRB 280 (1995) (unalleged statements by two managers violated 8(a)(1) where the complaint alleged other 8(a)(1) violations, including an interrogation by one of the same managers in the same conversation, and the respondent did not object to the testimony about the statements, cross-examined the witnesses and presented its own witnesses to testify about them, and addressed their legality in its posthearing brief), enfd. in part 128 F.3d 271 (5th Cir. 1997); and Meisner Electric, Inc., 316 NLRB 597 (1995) (unalleged statement by the respondent's foreman violated 8(a)(1) where the complaint alleged other unlawful statements by the same foreman in the same speech and the foreman raised the issue and admitted making the statement while testifying on direct examination by the respondent's counsel), affd. mem. 83 F.3d 436 (11th Cir. 1996).

But compare Dalton School, 364 NLRB 132, 133 (2016) (8(a)(1) interrogation was not fully litigated, notwithstanding that it was related to the alleged 8(a)(1) termination and respondent relied on it as a defense to that allegation, as respondent was not put on notice that the pertinent facts would be used to prove an interrogation violation); Piggly Wiggly Midwest, 357 NLRB 2344, 2345 (2012) (8(a)(5) refusal to provide certain information was not fully litigated, even though respondent presented evidence on the issue, as the respondent had no reason, in the absence of a complaint allegation or amendment, to attempt to substantiate its previous response to the union that it was impossible to provide the information as requested); Dilling Mechanical Contractors, 348 NLRB 98, 105 (2006) (8(a)(3) refusal to hire was not fully litigated, even though the parties presented evidence regarding the underlying conduct, as that evidence was also relevant to the 8(a)(1) complaint allegation that the respondent had breached an earlier settlement agreement, the violations involved different burdens of proof, and none of the parties argued that the conduct violated 8(a)(3) in their posthearing briefs); Desert Aggregates, 340 NLRB 289, 292–293 (2003) (manager's unalleged statement during a captive-audience meeting was not fully litigated where the manager's testimony regarding his statement “emerged incidentally” during the General Counsel's cross-examination, and the GC's failure to move to amend the complaint during trial may have hindered the respondent in presenting exculpatory evidence); and Champion International Corp., 339 NLRB 672 (2003) (litigation of the alleged 8(a)(5) unilateral-change violation did not establish that the parties also fully litigated the unalleged 8(a)(5) direct-dealing violation).

See also Teamsters “General” Local 200, 357 NLRB 1844, 1845 (2011) (judge improperly found an 8(b)(1)(A) violation as his statements in response to the General Counsel's motion on the first day of hearing to add the allegation led respondent to reasonably believe that it would not have to defend against that allegation). Nor may the judge find a violation on a theory that the GC has expressly disclaimed.

Unnamed discriminates. Situations sometimes also arise where the judge must decide whether it is appropriate to find a violation and/or grant a remedy with respect to an unnamed discriminatee. “Where the General Counsel has alleged and proven discrimination against a defined and easily identified class of employees, the Board, with court approval, has found it appropriate to extend remedial relief to all members of that class, including individuals not named in the complaint,” leaving “the question of precisely which individuals comprise the class [to be] considered at the compliance stage of the case.” Iron Workers Local 433 (Reynolds Electrical), 298 NLRB 35, 35–36 (1990) (citations omitted), enfd. mem. 931 F.2d 897 (9th Cir. 1991). See also Denholme & Mohr, Inc., 292 NLRB 61 n. 1 (1988) (judge properly found that a previously unnamed discriminatee's discharge violated the Act—even though the complaint specifically named the other three discriminatees and the General Counsel indicated that the unnamed, fourth discriminatee had chosen not to participate—as the sole issue at hearing was whether the group of employees as a whole, rather than individually, were discriminatorily discharged).

Compare *Merchants Bldg. Maintenance, 358 NLRB 578, 579–580 (2012) (rejecting the General Counsel's request, in a refusal to hire case, to grant a remedy to a previously unnamed discriminatee where: (1) the complaint specifically named 22 other individual discriminatees and did not include “with others unknown” or similar catch-all language; (2) the GC reasonably should have known about the additional discriminatee; and (3) the GC did not request a remedy for the additional discriminatee until the case reached the Board), and cases cited there.

Different violation date. It is not unusual for the evidence at the hearing to show that the alleged violation occurred on a different date than the date alleged in the complaint. In such circumstances, the General Counsel will typically move to amend the complaint allegation to conform to the evidence. See, e.g., Carbonex Coal Co., 262 NLRB 1306, 1313 (1982). However, the violation may be found even absent an amendment where the issue was the same regardless of the date and was fully litigated. See Sunbelt Rentals, Inc., 370 NLRB No. 102, slip op. at 2 n. 8 (2021) (finding 3–4 month date discrepancy regarding an 8(a)(1) threat of futility inconsequential). Williams Enterprises, 301 NLRB 167, 168 (1991) (finding 5-month date discrepancy regarding an 8(a)(3) refusal to hire immaterial), enfd. In relevant part 956 F.2d 1226 (D.C. Cir. 1992). See also FRCP 15(b)(2) (issues tried by express or implied consent).

§3–400 Consolidation and Severance

§3–410 General Principles

Before issuance of a complaint, the General Counsel or the Regional Director has exclusive authority to consolidate or sever cases. The Regional Director also retains the authority to consolidate or sever on the RD's own motion after the complaint issues, but only until the hearing has opened. NLRB Rules and Regulations, Sec. 102.33(a)–(d).

After issuance of the complaint and before the hearing opens, the Chief Judge or Deputy or Associate Chief Judge in the appropriate office may consolidate or sever cases on motion of any party. After the hearing has opened, a motion for consolidation or severance is made to and ruled on by the trial judge. Secs. 102.33(d), 102.24, 102.25, and 102.35(a)(8).

Whether to grant or deny the motion is within the judge's discretion, “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). See also Affinity Medical Center, 364 NLRB 876 (2016) (judge did not abuse her discretion in denying the General Counsel's motion to consolidate three new complaints with the existing “highly complex 118-page amended consolidated complaint” given that the old and new allegations were not sufficiently intertwined to require consolidation and could be effectively litigated separately, and consolidation would cause significant delay in the ongoing proceeding); and McDonald's USA, LLC, 363 NLRB 847 (2016) (judge did not abuse her discretion in denying motion to sever consolidated complaints against McDonald's and numerous franchisees and to require separate complaints and hearings for each where the General Counsel alleged that they were joint employers).

With respect to consolidating a complaint with a compliance specification or a related representation case involving post-election challenges or objections, see §§14–110 and 14–200, respectively, below.

§3–420 Consolidation

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) (where the General Counsel had alleged and litigated certain conduct as an 8(a)(1) violation in an earlier proceeding, that same conduct could not be alleged and litigated as an 8(a)(5) violation in a separate proceeding); and Jefferson Chemical Co., Inc., 200 NLRB 992 n. 3 (1972) (where, notwithstanding a broad 8(a)(5) refusal-to-bargain charge, the General Counsel had alleged only a narrow unilateral change violation in an earlier proceeding and disavowed any allegation of general bad-faith bargaining, the GC could not subsequently allege and litigate in a separate proceeding a surface bargaining violation based on events occurring before the hearing had opened in the earlier proceeding).

However, this is not a “blanket rule” that requires consolidation into one proceeding of all charges filed against the same respondent that arise during the pendency of that proceeding. As the Board stated in Affinity Medical Center, above, “Jefferson Chemical and Peyton Packing have been narrowly limited to their factual situations,” and “only apply to cases involving the relitigation of the same conduct.” 364 NLRB at 877 (citations omitted). Thus, the Board in Affinity found no bar to litigating the allegations in three new consolidated complaints separately as they were “factually independent” of those in the ongoing consolidated proceeding. The Board also noted that the judge had denied the General Counsel's motion to consolidate the new complaints with the consolidated complaint in the ongoing proceeding.

See also Napleton Cadillac of Libertyville, 369 NLRB No. 56, slip op. at 10 (2020) (finding no bar to litigating allegations where the alleged unlawful conduct began 3 months after the last alleged unlawful conduct in the earlier proceeding, the General Counsel did not issue the consolidated complaint on the charges until over 9 months after the hearing in the earlier proceeding, and the respective allegations were factually independent); Frontier Hotel and Casino, 324 NLRB 1225 (1997) (finding no bar to litigating an allegation where it involved a “discreet act” that did not occur until well after the lengthy hearing in the earlier proceeding opened); Harrison Steel Castings Co., 255 NLRB 1426, 1426–1427 (1981) (finding no bar to litigating an allegation where the underlying charge was not filed until after the hearing in the earlier proceeding closed, the allegation was “not intertwined with” those in the earlier proceeding, and there was no evidence that the General Counsel knew about or should have discovered the alleged violation during the earlier proceeding); and Maremont Corp. World Parts Division, 249 NLRB 216, 216–217 (1980) (finding no bar to litigating an allegation in a separate proceeding where the General Counsel learned of the alleged violation just 6 days before the hearing in the earlier proceeding and the judge in that proceeding denied the GC's motion on the first day of hearing to add the allegation to the complaint).

Indeed, in Cresleigh Management, above, the Board found no bar even where the complaint was issued before the hearing on the complaint in the earlier proceeding. The Board stated that, “even when the General Counsel fails to consolidate cases that normally should be consolidated,” dismissal is improper “in the absence of a showing of prejudice to a party.” 324 NLRB at 776. Accord: U-Haul of Nevada, Inc., 345 NLRB 1301, 1302 (2005), enfd. 490 F.3d 957 (D.C. Cir. 2007).

§3–430 Severance or Bifurcation

As indicated above, a judge has the authority, after a trial opens, to sever cases previously consolidated by the Regional Director. See, e.g., Adair Standish Corp., 283 NLRB 668, 669–671 (1987) (affirming judge's order granting the charging party's motion, over the respondent's objection, to sever the technical 8(a)(5) test-of-certification case from the 8(a)(1), (3), and (5) case), enfd. mem. 875 F.2d 866 (6th Cir. 1989), cited with approval in Storer Cable TV of Texas, 292 NLRB 140 (1988). But see Quaker Tool & Die, Inc., 169 NLRB 1148 (1968) (trial examiner erred in sua sponte issuing an order after the close of the hearing severing two 8(a)(5) allegations that related to the same alleged unilateral action and had been fully litigated at the hearing).

Occasionally, a respondent may seek to sever and/or bifurcate litigation of particular issues raised by the complaint. For example, if the respondent is challenging the Board's jurisdiction or asserting a Section 10(b) limitations defense, it may seek to have such issues addressed before the unfair labor practice allegations are litigated. This likewise appears to be a matter within the ALJ's discretion. See Asociacion Hospital del Maestro, 317 NLRB 485, 490 (1995) (denying the respondent's appeal of the judge's denial of its motion to bifurcate the trial and litigate respondent's Sec. 10(b) statute of limitations defense before the merits); and Gulfport Stevedoring Assn., 15-CA-096939, unpub. Board order issued Sept. 9, 2013 (2013 WL 4782797, 2013 NLRB LEXIS 593) (denying respondent's motion to dismiss without prejudice to renewing its jurisdictional arguments, and any request to bifurcate the hearing, before the ALJ). See also NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995, 1002 (9th Cir. 2003) (noting that the ALJ denied the respondent's motion to sever); and Saginaw Chippewa Indian Tribe of Michigan v. NLRB, 838 F.Supp.2d 598, 606 (E.D. Mich. 2011), citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S.41, 51 (1938) (merely holding the unfair labor practice hearing is not irreparable harm).

But see U.S. Gypsum, 284 NLRB 4, 8 (1987). In that case, the General Counsel set aside a settlement agreement because of the respondent's alleged postsettlement unfair labor practices, and issued a complaint containing both the postsettlement allegations and the presettlement allegations. The judge ruled that the postsettlement allegations would be litigated and decided before litigating the presettlement allegations because there would be no basis to set aside the settlement and litigate the presettlement allegations if the postsettlement allegations were without merit. (See §9–800, Setting Aside Settlement Agreements, below.) The Board, however, granted the GC's special appeal, and directed the judge to permit the introduction of all evidence relating to all the consolidated cases for hearing.

Compare McDonald's USA, LLC, 363 NLRB 867 (2016) (denying respondents' special appeal and finding that the judge did not abuse her discretion by issuing a case management order in the consolidated proceeding providing that the General Counsel and charging parties would present evidence on the alleged joint employer status of the respondents before presenting evidence on the merits of the alleged unfair labor practices).

Relevant factors to consider may include the anticipated length of the trial on the jurisdictional, 10(b), or other threshold issue and the remaining issues; whether the same witnesses will be testifying on all issues; and the possible adverse impact on the memory and availability of witnesses if litigation of the remaining issues is delayed. Compare FRCP 42(b) (authorizing federal courts to order a separate trial of one or more separate issues or claims “for convenience, to avoid prejudice, or to expedite and economize”), discussed in 2 Moore's Manual—Federal Practice and Procedure §20.03 (2023); and Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 42 (Feb. 2024 Update). See also Hoyt v. Career Systems Development Corp., 2010 WL 2653368, 2010 U.S. Dist. LEXIS 66957 (S.D. Cal. June 30, 2010) (denying the defendant company's motion, in an employment discrimination case, to bifurcate and litigate the threshold issue of the plaintiff's status as an independent contractor or an employee, given that the motion was not filed until 6 business days before trial and 17 of plaintiff's 20 witnesses would be testifying about both that issue and the substantive discrimination claims).

§3–500 Withdrawal or Dismissal

Withdrawal of complaint. Under Section 102.18 of the Board's Rules, the Regional Director retains discretion to withdraw all or a portion of the complaint sua sponte at any time before the hearing, subject to review by the General Counsel but not by the Board or its ALJs. NLRB v. UFCW, Local 23, 484 U.S. 112, 119 (1987). See also United Natural Foods, Inc., 370 NLRB No. 127 (2021) (Regional Director's prehearing order withdrawing complaint was not reviewable by the Board notwithstanding that the respondent had filed a motion with the Board for summary judgment as the case had not yet transferred to the Board), rev. denied 88 F.4th 536 (5th Cir. April 24, 2023). Indeed, the Regional Director retains such discretion even after the hearing opens if the GC has not introduced any relevant evidence in support of the allegations and there is no contention that the allegations are ripe for adjudication on the pleadings alone. See Sheet Metal Workers Local 28 (American Elgen), 306 NLRB 981, 981–982 (1992).

The General Counsel's introduction of the pleadings and other formal papers (GC Exh. 1), which are considered procedural rather than substantive evidence (see §16–801.3, below), does not itself forfeit this discretion. See Boilermakers Local 6 v. NLRB, 872 F.2d 331, 333–34 (9th Cir. 1989), cited with approval in Sheet Metal Workers Local 28, where the court upheld the Board's finding that the GC retained authority to withdraw a complaint even though the formal papers had been introduced at the hearing.

Beyond that, the precise dividing line appears somewhat unclear. In Sheet Metal Workers Local 28, the Board stated that it was not “purporting to decide where the line is to be drawn in all circumstances” (306 NLRB at 982). However, it is clear that the Regional Director no longer possesses unreviewable discretion to withdraw the complaint if the General Counsel has presented sufficient evidence to establish a prima facie case. See General Maintenance Engineers, Inc., 142 NLRB 295 (1963), which was likewise cited with approval in Sheet Metal Workers Local 28.

If the Regional Director no longer retains authority to withdraw the complaint, the General Counsel must file a motion to withdraw with the ALJ (or the Board, if the case is before it), who has discretion to grant or deny the motion. See, e.g., Sheet Metal Workers Local 162 (Lang's Enterprises), 314 NLRB 923 n. 2 (1994) (Board exercised its discretion to deny the GC's motion to withdraw where the allegation had been submitted on a stipulated record and briefed). If the judge grants the GC's motion, the complaint allegation is withdrawn but the underlying charge remains. See Verizon Wireless, 369 NLRB No. 108, slip op. at 3 n. 15 (2020) (judge's order approving the GC's motion to withdraw certain complaint allegations following a change in Board law improperly required the Regional Director to dismiss the allegations on remand), citing Consumers Distributing, 274 NLRB 346 n. 1 (1985) (approval of a motion to withdraw the complaint allegations does “not result in the case being closed because the underlying charge is still alive.”).

Withdrawal of charge. Before the hearing opens, a charge may be withdrawn only with the consent of the Regional Director. After the hearing opens and evidence is introduced, but before the judge's decision issues, the charge may be withdrawn only with the consent of the judge. After the judge's decision issues, the charge may be withdrawn only with the consent of the Board. NLRB Statements of Procedure, Sec. 102.9.

Dismissal of charge. The dismissal of a charge by the Regional Director may be appealed to the General Counsel's Office of Appeals in Washington, D.C. 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 (1996); and Sioux City Foundry Co., 323 NLRB 1071, 1074 (1997), enfd. 154 F.3d 832, 837–838 (8th Cir. 1998). Compare Smithfield Packing Co., 344 NLRB 1, 10 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006) (where the General Counsel has denied the charging party's appeal of the Regional Director's dismissal of the charge, the charge cannot thereafter be reinstated pursuant to a motion for reconsideration after the 10(b) period). See also §3–550, Revival of Withdrawn or Dismissed Charge, below, in the context of Section 10(b) of the Act; and §13–600, Res Judicata and Collateral Estoppel, regarding the nonpreclusive effect in subsequent litigation of the GC's dismissal of a charge.

See also CHAPTER 9, Settlements, below.

§3–550 Revival of Withdrawn or Dismissed Charge

As a general rule, the General Counsel may not revive a withdrawn or finally dismissed charge 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) (affidavit submitted to and relied on by the General Counsel in dismissing the charge was later discovered to have been perjured). Compare Brown & Sharpe Mfg. Co., 321 NLRB 924, 924–925 (1996), rev. denied 130 F.3d 1083, 1087 (D.C. Cir. 1997) (finding no fraudulent concealment of material facts regarding alleged bad-faith 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) (finding no fraudulent concealment where the attorney's position statement was not forthcoming about his client's true motive but did not attempt to conceal material facts).

Three elements are required to establish fraudulent concealment: (1) deliberate concealment, (2) of material facts, and (3) the injured party was ignorant of those facts without any fault or want of due diligence on its part. Brown & Sharpe, 321 NLRB at 924. 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. See Falcon Trucking, LLC, 25–CA–132518, unpub. Board order issued Aug. 24, 2022 (2022 WL 3703864, 2022 NLRB LEXIS 364), citing, e.g., 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. Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988); Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148–149 (7th Cir. 1990); and Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 944–945 (D.C. Cir. 1999), enfg. in part 324 NLRB 918 n. 1 (1997). See also §3–210, Complaint Closely Related to Timely Charge, and §3–330, Amendments and Section 10(b), above.

Finally, the general rule set forth in Ducane prohibiting revival of dismissed charges does not apply to a charge that has not been finally dismissed and is pending before the General Counsel on appeal. See §3–500, Withdrawal or Dismissal, above.

§3–600 Answer to Complaint

Section 102.20 of the Board's Rules sets forth the requirements for an answer. It states that the respondent must file an answer “within 14 days from service of the complaint”; that the respondent must “specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial”; and that allegations not answered or denied or explained as required “will be deemed to be admitted to be true and will be so found by the Board, unless good cause to the contrary is shown.”

Although not identical, Section 102.20 is similar to FRCP 8. Thus, court decisions construing FRCP 8 may provide useful guidance in applying Section 102.20 where the Board has not specifically addressed the matter. See Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 8 (Feb. 2024 Update); State Farm Mutual Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 277–280 (N.D. Ill. 2001) (discussing “common flaws” in responsive pleadings under Rule 8). See also Bommarito v. Equixfax Information Services, LLC, 340 F.R.D. 566, 569–570 (E.D. Mich. 2022); and Martinez v. Naranjo, 328 F.R.D. 581, 599 (D.N.M. 2018) (“legal conclusions” and “speak for themselves” responses).

Sham responses. A response that the respondent is without knowledge 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 the pro se respondent's responses to the service, jurisdictional, and supervisory allegations of the complaint), citing DPM of Kansas, 261 NLRB 220 n. 2 (1982). See also §6–620 below, regarding the judge's authority to admonish or reprimand counsel for denying allegations without good cause and purely for delay.

Late Answer. Section 102.2(d) of the Board's Rules states that, like various other documents (motions, exceptions, and briefs), an answer to a complaint “may be filed within a reasonable time after the time prescribed by these Rules only upon good cause shown based on excusable neglect and when no undue prejudice would result.” A respondent's unexplained failure to file a request for an extension of time is a factor demonstrating lack of good cause. St. Monica Center for Rehabilitation & Healthcare, 370 NLRB No. 122, slip op. at 1 (2021).

The rule further requires that the late answer be accompanied by “a motion that states the grounds relied on for requesting permission to file untimely,” and that “the specific facts relied on to support the motion … be set forth in affidavit form and sworn to by individuals with personal knowledge of the facts.” The Board strictly adheres to this affidavit requirement. Elevator Constructors Local 2 (Unitec Elevator Services Co.), 337 NLRB 426, 428 (2002).

Amended Answer. Under Section 102.23 of the Board's Rules, a respondent may amend its answer at any time before the hearing. If the complaint has been amended, a respondent may also amend its answer after the hearing has opened “within such period as may be fixed by the [ALJ] or the Board.” Whether to otherwise grant a motion to amend the answer after the hearing has opened is “in the discretion of the [ALJ] or the Board.”

Motions to amend an answer, particularly when they come early in the hearing and there is no prejudice to the General Counsel, should probably be viewed favorably. See FRCP 15(a)(2); and Hylton v. John Deere Co., 802 F.2d 1011,1015 (8th Cir. 1986) (district court judge did not abuse his discretion by granting the defendants in a products liability case leave to amend their answer to respond to two allegations in the amended complaint that they had inadvertently failed to respond to).

However, in St. George Warehouse, Inc., 349 NLRB 870 (2007), the Board held that the judge did not abuse her discretion in denying the respondent's motion, on the second day of trial, to amend its answer to deny a supervisory-status allegation that it had previously admitted, assertedly by mistake. See also §16–801.3, Admission or Statement by Opposing Party, for a discussion of the conclusive or evidentiary effect of admissions in pleadings.

Motions to amend an answer have also been held untimely when made at the end of the respondent's case in chief. Oak Harbor Freight Lines, Inc., 358 NLRB 328, 332 n. 2 (2012), reaffd. 361 NLRB 884 (2014) (denying motion to allege an additional affirmative defense). See also the additional cases cited in the sections below regarding affirmative defenses.

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).

Motions for default or summary judgment. The failure to file a sufficient answer or to deny the complaint allegations normally warrants issuance of a default or summary judgment. See, e.g., Intersystems Design, 267 NLRB 1310, 1311 (1983) (respondent's plea of “nolo contendere” to certain allegations constituted an admission and warranted granting summary judgment as to those allegations).

However, there are exceptions. For example, in GTS Ambulance Transportation, 367 NLRB No. 82 (2019), the Board declined to grant a default judgment with respect to several 8(a)(3) disciplinary warning allegations because the complaint failed to allege that the warnings were issued because the employees joined or assisted the union or to discourage them from engaging in those activities, and thus did “not allege sufficient facts to determine whether the conduct violated the Act.”

For the same reason, in All Steel Iron Works, Inc., 13-CA-261682, unpub. Board order issued July 13, 2021 (2021 WL 2961497, 2021 NLRB LEXIS 273), the Board declined to issue a default judgment regarding an 8(a)(5) layoff allegation because the complaint failed to allege that the laid-off employees were in the bargaining unit, that the layoffs were mandatory subjects of bargaining, or that the respondent failed to provide the union with notice and an opportunity to bargain over the layoff decision. The Board also declined to issue a default judgment to the extent the complaint suggested that the employer also violated 8(a)(5) by refusing to notify and bargain with the union over the closure of the facility, as “the bare assertions of the complaint do not support a cause of action given the Supreme Court's decision in First National Maintenance Corp., v. NLRB, 452 U.S. 666 (1981).”

See also Carl R. Bieber, Inc., 369 NLRB No. 24, slip op. at 1 (2020) (denying default judgment with respect to an allegation that the employer unlawfully ceased remitting dues to the union following contract expiration, as this was not “a cognizable claim” given the Board's recent decision overruling precedent and holding that dues checkoff provisions are enforceable under Section 8(a)(5) of the Act only during the contract).

It is also “well established that the Board will not grant default judgment on an allegation that was denied in a timely-filed answer to a complaint even though the respondent later fails to timely answer an amended complaint repeating that allegation, provided that the repeated allegation is substantively unchanged from the original.” Central Market of Indiana, Inc., 366 NLRB No. 167, slip op. at 2 (2018) (internal quotations and citations omitted). This is true even where a complaint is reissued after a respondent fails to comply with a settlement agreement, unless the settlement explicitly provided for withdrawal of the prior answer or for entry of a default judgment in the event of noncompliance with the settlement. Pace Medical Transport, LLC, 371 NLRB No. 58, slip op. at 2 (2022).

Note that the Board typically shows some leniency toward pro se respondents in determining whether to grant a motion for default judgment for failing to file a sufficient answer. See Prompt Medical Transportation, 366 NLRB No. 50 (2018) (denying the General Counsel's motion for default judgment, even though the pro se respondent's letter did not respond to each and every allegation in the complaint and was not in a form that comported with the Board's rules, as the letter “could reasonably be construed as a denial of the substance of the complaint's [unfair labor practice] allegation and as an affirmative identification of material facts in dispute”), and cases cite therein. See also Central Market of Indiana, above.

But “pro se status alone does not establish a good cause explanation for failing to file an answer.” Cobalt Coal Corp., 367 NLRB No. 45 (2018) (granting the General Counsel's motion for default judgment even though the respondent's owner sent an email letter to the Region stating that it was insolvent and unable to afford counsel or file an answer). See also Mailhandlers Local 307 (U.S. Postal Service), 367 NLRB No. 144, slip op. at 1–2 and n. 3 (2019) (granting the General Counsel's motion for a default judgment for respondent's failure to file an answer to the properly served complaint even though the respondent asserted that it did not retain counsel until after the motion was filed, that it had not actually received the complaint when it was issued, and that the Region's subsequent reminder letter did not enclose another copy of it).

For a discussion of the Board's procedural rules for filing such motions, see §10–300, Motions for Summary and Default Judgment, below.

§3–610 Jurisdiction

The Board's statutory jurisdiction must be established in every case, regardless of whether any party has timely raised or contested jurisdiction. See, e.g., FiveCap, Inc., 331 NLRB 1165, 1176 (2000) (respondent did not waive the right to assert that it was an exempt “political subdivision” under Sec. 2(2) of the Act by failing to raise the issue in the prior representation case or admitting jurisdiction in its answer to the complaint in the unfair labor practice case), enfd. 294 F.3d 768 (6th Cir. 2002). Cf. Bannum Place of Saginaw, LLC, 372 NLRB No. 97, slip op. at 1 n. 1 (2023) (Board declined to address in the supplemental compliance proceeding whether respondents were joint employers with an exempt federal entity, as such a finding would be irrelevant to respondents' status as a statutory employer under Sec. 2(2) of the Act), enfd. 97 F.4th 351 (6th Cir. 2024).

However, “[w]hile a question concerning the Board's statutory jurisdiction may be raised at any time, it is well settled that the issue of jurisdiction under the Board's discretionary standards must be timely raised.” Anchortank, Inc., 233 NLRB 295 n. 1 (1977) (finding that the respondent waived the right to challenge the propriety of the discretionary jurisdictional standard alleged in the complaint because it did not raise the issue until after the hearing had closed), enfd. in part 618 F.2d 1153 (5th Cir. 1980). See also Paramedical Specialties Services, Inc., 322 NLRB 351 n. 1 (1996) (Board issued a default judgment against respondent notwithstanding that the complaint did not clearly define the nature of respondent's service contracts, as the respondent had failed to timely contest the Board's discretionary jurisdiction); Ryder Student Transportation, 297 NLRB 371, 372 (1989) (respondent failed to contest discretionary jurisdiction under the Board's Res-Care “right of control” test in the underlying representation proceeding); and Gateway Motor Lodge, 222 NLRB 851, 852 (1976) (respondent did not dispute that it satisfied the Board's discretionary jurisdictional commerce standards in the underlying representation case).

But see Laborers Local 1177, 269 NLRB 746 (1984) (“It is of no consequence that the complaint allegations were ultimately uncontested if they do not, in fact, establish discretionary jurisdiction.”). In that case, the Board dismissed the 8(b)(4) secondary boycott complaint, notwithstanding that no party disputed jurisdiction, because the complaint contained insufficient allegations to establish that the alleged primary and secondary employers' operations satisfied the Board's discretionary jurisdictional commerce standards and the General Counsel had not supplemented the allegations with evidence at the hearing. In a footnote (n. 3), the Board distinguished Anchortank because the issue there was whether the jurisdictional standard alleged in the complaint was the appropriate standard, not whether the applicable jurisdictional standard was met.

The Board will also assert jurisdiction in an unfair labor case where the respondent employer has refused to produce subpoenaed information relevant to whether it satisfies the Board's discretionary jurisdictional standards, provided the record demonstrates statutory jurisdiction. See Continental Packaging Corp., 327 NLRB 400 (1998) (granting General Counsel's motion for default summary judgment where respondent failed to file an answer to the complaint and refused to comply with court-enforced subpoenas requiring records relevant to determining discretionary jurisdiction, as the undisputed allegations in the complaint and motion established that respondent was within Board's statutory jurisdiction). See also NAA Worldwide, 371 NLRB No. 77, slip op. at 1, n. 2 (2022) (same), enfd. 2022 WL ———, 2022 U.S. App. LEXIS 34545 (9th Cir. Dec. 14, 2022); and Club Coyote, 372 NLRB No. 39, slip op. at 2, n. 4 (2023) (same, where respondent did not petition to revoke the subpoena or produce the subpoenaed documents). Compare Tropicana Products, Inc., 122 NLRB 121, 123 (1958) (likewise asserting jurisdiction in a representation case where the record established statutory jurisdiction and the employer plainly failed to cooperate by providing Board agents with requested information regarding discretionary jurisdiction, even though the Board did not attempt to subpoena the records).

For further discussion of the Board's jurisdictional standards, see NLRB Outline of Law and Procedure in Representation Cases §1-100 et seq. (January 2025).

§3–620 Affirmative Defenses

Affirmative defenses must be pled in an answer or timely raised at the hearing. Affirmative defenses raised for the first time after the hearing are untimely and may be considered waived. See, e.g., EF International Language Schools, Inc., 363 NLRB 191 n. 2 (2015) (defense that allegation is barred by Sec. 10(b) limitations period), enfd. 673 F. Appx. 1 (D.C. Cir. 2017); and Springfield Manor, 295 NLRB 17 n. 2 (1989) (defense that alleged discriminatee is a supervisor), and additional cases discussed in §§3–700 and 3–800 through 3–860, below.

Defenses may be stricken if they are not recognized affirmative defenses in law or are irrelevant to the issues set for hearing. See, e.g., Harding Glass Co., 347 NLRB 1112, 1115 (2006) (granting the General Counsel's motion to strike several of the respondent's affirmative defenses to the backpay specification as they were without merit as a matter of law), enfd. 500 F.3d 1 (1st Cir. 2007); TNT Logistics, North America, 346 NLRB 1301 n. 1 (2006) (upholding judge's pretrial order granting the General Counsel's motion in limine to strike seven of the respondent's eight affirmative defenses as that they raised irrelevant matters), enfd. 246 F. Appx. 220 (4th Cir. 2007); Tri-County Paving, Inc., 342 NLRB 1213, 1216 (2004) (striking defenses in a refusal-to-hire case that challenged the alleged discriminatees' status as bona fide applicants); Superior Industries International, 295 NLRB 320, 322 (1989) (striking, as frivolous and irrelevant, respondent's affirmative defense that the General Counsel was engaged in a “cover up” and that the Board's election procedures were under investigation by “at least forty [unnamed] U.S. Senators and Congressmen”); Electrical Workers Local 1316 (Superior Contractors), 271 NLRB 338, 340 (1984) (striking, as irrelevant and immaterial, respondent's affirmative defense regarding the charging party's motivation in filing the charge); Sheet Metal Workers Local 3 (McCarthy Heating & Air Conditioning Services, Inc.), 253 NLRB 330, JD. n. 2 (1980) (striking the respondent union's affirmative defense to the 8(b)(7)(C) picketing complaint that the charging party employer engaged in racial discrimination); and additional cases discussed in §3–700, Other Affirmative Defenses, below. See also FRCP 12(f) (authorizing courts to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” either on its own or on motion by a party).

A defense should also be stricken if it is interposed to engage in a “fishing expedition” to discover evidence needed to support the defense. See Flaum Appetizing Corp., 357 NLRB 2006, 2010–2011 (2011) (striking the employer's affirmative defenses in the backpay proceeding asserting that the discriminatees were undocumented aliens, as the employer failed, in response to a motion for particulars, to articulate any factual support, or reason to believe it could obtain such factual support, for the defenses), and cases cited therein.

The General Counsel is not required to anticipate and negate an affirmative defense in the complaint. See Flying Food Group, Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006), and cases cited there.

§3–700 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 n. 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 by the respondent in its answer or at the hearing, it is waived. EF International Language Schools, above; Approved Electric Corp., 356 NLRB 238 n. 1 (2010); and Dayton Newspapers, Inc., 339 NLRB 650, 653 n.8 (2003), enfd. in part 402 F.3d 651 (6th Cir. 2005).

The defense must also be specifically raised, i.e., the respondent must specify the allegation it asserts is untimely under Section 10(b); a mere boilerplate or catchall provision in the answer is insufficient. See United Government Security Officers of America International, 367 NLRB No. 5, slip op. at 1 n. 1 (2018). In that case, the complaint alleged that the respondent International and local unions had violated Section 8(b)(1)(A) and (b)(2) of the Act in certain respects. In their posthearing brief, the respondents asserted that one of the 8(b)(1)(A) allegations was untimely under Section 10(b). However, the respondents had not previously asserted the 10(b) defense to that allegation. Although their answer included a 10(b) affirmative defense, it did not specify which of the allegations was untimely. Rather, it only generally stated: “To the extent any allegations were not made and expressly included in an unfair labor practice charge filed within six (6) months of the alleged violation, the allegations are time-barred by the applicable six-month statute of limitations.” Nor had the respondents raised or litigated the 10(b) defense to the 8(b)(1)(A) allegation at the hearing. Accordingly, the Board found that the respondents had waived the defense.

§3–710 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 knew or should have known of a violation in the exercise of reasonable diligence. See, e.g., Castle Hill Health Care Center, 355 NLRB 1156, 1191 (2010); and 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 ambiguous conduct. A & L Underground, 302 NLRB 467, 469 (1991). See also New York Paving, Inc., 370 NLRB No. 44, slip op. at 1 n. 8, 22 (2020), enfd. per curiam 2021 WL 6102199, 2021 U.S. App. LEXIS 36626 (D.C. Cir. 2021); and Laborers Local 91 (Scrufari Construction Co.), 370 NLRB No. 42, slip op. at 16 (2020), enfd. 2023 WL 2003133, 2023 U.S. App. LEXIS 3577 (2d Cir. Feb. 15, 2023).

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) from filing the charge. This rule, however, is restricted to discriminatory discharge cases. It does not apply in refusal to bargain cases. See Howard Electrical, 293 NLRB 472, 475 (1989), enfd. mem. 931 F2d 63 (10th Cir. 1991); and Esmark, Inc. v. NLRB, 887 F.2d 739, 746 n. 6 (7th Cir. 1989). See also Leach Corp., 312 NLRB at 991 n. 7 (the Sec. 10(b) period for an 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 (1986).

§3–720 Background 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 time-barred unfair labor practice. See Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, above, 362 U.S. at 416 (“earlier events may be utilized to shed light on the true character of matters occurring within the limitations period”). For example, evidence preceding the limitations period may be admitted and considered in evaluating whether an employer had animus and an unlawful motive for disciplining an employee for union or protected activity, Monongahela Power Co., 324 NLRB 214, 214–215 (1997), and whether an employer unlawfully engaged in overall bad faith bargaining during the limitations period, Columbus Electric Cooperative, Inc., 372 NLRB No. 89, slip op. at 6 (2023). See also Mid-Atlantic Restaurant Group LLC v. NLRB, 722 F. Appx. 284, 288 (3rd Cir. Jan. 25, 2018) (ALJ did not abuse his discretion by considering evidence not specifically pled in the complaint, such as references to individuals not mentioned in the complaint and evidence beyond the complaint's timeframe, as he did not find any unfair labor practice other than that alleged in the complaint).

However, when 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.” Machinists Lodge 1424 (Bryan Mfg.), 362 U.S. at 417–418 (allegation that the employer and the union unlawfully maintained and enforced a facially lawful union security agreement outside the 10(b) period was barred because the allegation required the General Counsel to prove that the union lacked majority status, and that the agreement was therefore unlawful, at the time it was executed). See also Teamsters Local 27 (Combined Containair Industries), 209 NLRB 883, 883–884 (1974).

§3–730 Continuing Violations

Violations that are continuing in nature are not barred by Section 10(b). Thus, an allegation that an employer maintained an unlawful rule within the 10(b) period is timely, even if the respondent promulgated the rule outside the period. See, e.g., Dynamic Nursing Services, Inc., 369 NLRB No. 49, slip op. at 3 (2020); Charter Communications, LLC, 366 NLRB No. 46, slip op. at 1 n. 4 (2018), enfd. 939 F.3d 798 (6th Cir. 2019); and Cellular Sales of Missouri, LLC, 362 NLRB 241, 242 (2015), affd. in relevant part 824 F.3d 772, 779 (8th Cir.2016). There is likewise no 10(b) bar to finding that a contractual provision was unlawfully maintained and enforced more than 6 months after the contract was executed. Central Pennsylvania Regional Council of Carpenters, 337 NLRB 1030 (2002), enfd. 352 F.3d 831 (3d Cir. 2003) (anti-dual shop clause); and Teamsters Local 293 (R. L. Lipton Distributing), 311 NLRB 538, 539 (1993) (shop steward superseniority clause). But see Machinists Lodge 1424 (Bryan Mfg.), above.

Similarly, if the employer 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 respondent's total contract repudiation before the 10(b) cutoff date, it is time barred from subsequently alleging contract violations within the 10(b) period. See Springfield Day Nursery, 362 NLRB 261, 263–264 (2015); Vallow Floor Coverings, Inc., 335 NLRB 20 (2001); and A & L Underground, 302 NLRB 467, 468–469 (1991), and cases cited there. See also 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”).

§3–740 Backpay for Continuing Violations

Where a continuing violation is found, and the charging party did not know or have reason to know 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, 335 NLRB at 20–21 (ordering employer to pay backpay since 1991, even though the charge was not filed until 6 years later, in 1997).

§3–750 Fraud or Deception

Fraudulently concealing the facts of an unfair labor practice from a charging party tolls Section 10(b) as to both the violation and the remedy, unless the charging party failed to exercise due diligence. See Burgess Construction, 227 NLRB 765, 766 (1977) (respondent fraudulently and deceitfully concealed its unlawful employment of nonunion carpenters from the union by assuring the union that it would no longer employ carpenters), enfd. 596 F.2d 378 (9th Cir.), and cases cited there.

For fraudulent concealment of facts from the General Counsel, see the next section.

§3–800 Other Affirmative Defenses

§3–810 Charging Party's Motive or Misconduct

The charging party's motive for filing the underlying charge “is irrelevant to the disposition of the allegations in the [General Counsel's] complaint.” El Vocero de Puerto Rico, Inc., 357 NLRB 1585, 1586 (2011); and Dynabil Industries, Inc., 330 NLRB 360, 362 (1999).

Ordinarily, a charging party's own alleged misconduct is likewise not a defense to a respondent's unfair labor practices. See Teamsters Local 918 (Tale-Lord Mfg. Co.), 206 NLRB 382, 383 (1973) (“[C]onduct by a union agent otherwise coercive and thus violative of Section 8(b)(1)(A) of the Act cannot be justified merely because an employer agent also engaged in unlawful activity.”); Carpenters Local 621 (Consolidated Constructors), 169 NLRB 1002, 1003 (1968) (“‘[U]nclean hands’ estops neither a company from filing a charge against one who violates the Act, nor the Board from vindicating and protecting the public rights inherent in the Act, which have been infringed.”), enfd. 406 F.2d 1081 (1st Cir. 1969); and Plumbers Local 457 (Bomat Plumbing and Heating), 131 NLRB 1243, 1245–1247 (1961) (“One unfair labor practice does not excuse another. If a respondent believes that a charging party is guilty of unfair labor practices, the proper procedure is for the respondent to file unfair labor practice charges against the charging party and not to resort to unfair labor practices in justification or excuse.”), enfd. 299 F.2d 497 (2d Cir. 1962).

However, if proof of the charging party's misconduct could affect the unfair labor practice findings, an affirmatively pleaded defense regarding the misconduct must be heard. This applies even if no charge was filed regarding the misconduct, or a charge regarding the misconduct was withdrawn or dismissed. See County Concrete Corp., 366 NLRB No. 64, slip op. at 1 n. 1 (2018) (union's failure to advise employees of their Beck rights not to pay dues for nonrepresentational activities could be raised by the respondent employer as an affirmative defense to the 8(a)(5) complaint allegation that it unlawfully failed to deduct dues, even though no charge was filed asserting a Beck violation), enfd. 765 F. Appx. 712 (3d Cir. 2019); and Chicago Tribune Co., 304 NLRB 259, 259–261 (1991) (respondent employer in 8(a)(5) bad-faith bargaining case could raise the union's bad faith bargaining as an affirmative defense, even though the employer's previous 8(b)(3) charges regarding the union's conduct had been dismissed by the General Counsel or withdrawn by the employer). See also American Bottling Co. v. NLRB, 992 F.3d 1129, 1140 (D.C. Cir. 2021) (“When Regional Directors decline to bring charges, they do so by exercising authority delegated from the General Counsel rather than the Board. And when the General Counsel declines to issue a complaint ‘no proceeding before the Board occurs at all[,]’ and the action has no precedential value whatsoever.”), citing and quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138–139 (1975). Compare Greyhound Lines, 319 NLRB 554, 555–557 (1995) (affirmative defense based on alleged union misconduct was stricken because no nexus was shown between the alleged misconduct and the respondent's refusal to bargain, which was the subject of the complaint).

Alleged charging party misconduct may also be relevant to the remedy. See Laura Modes Co., 144 NLRB 1592, 1596 (1963); and Allou Distributors, 201 NLRB 47, 47–48 (1973) (union violence warranted withholding the normal bargaining order and instead directing an election). Compare Cascade Corp., 192 NLRB 533 n. 2 (1971) (distinguishing Laura Modes and issuing a bargaining order where a valid election was conducted and a certification had issued before any violence took place), enf. denied on other grounds 466 F.2d 748 (6th Cir. 1972); and Maywood Plant of Grede Plastics, 235 NLRB 363, 365–366 (1978) (provocation must be weighed), enfd. as modified 628 F.2d 1 (D.C. Cir. 1980).

§3–820 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. Newark Electric Corp., 366 NLRB No. 145, slip op. at 1 n. 1 (2018), enfd. 14 F.4th 152 (2d Cir. 2021); and UPS Ground Freight, Inc., 366 NLRB No. 100, slip op. at 2 (2018). See also Midwest Terminals of Toledo, 365 NLRB No. 157, slip op. at 1 n. 1 (2017), reaffg. 362 NLRB 468 n. 1 (2015) (rejecting defense even though the supervisor allegedly made the 8(a)(1) statement over 4 years before the hearing commenced and he no longer worked for the company and was unavailable as a witness), enfd. 783 F. Appx. 1 (D.C. Cir. 2019); Teamsters Local 75 (Schreiber Foods), 365 NLRB No. 48, slip op. at 5 n. 6 (2017) (rejecting defense even though the alleged unlawful events occurred in 1989 and the Board did not issue its second supplemental decision on remand from the court of appeals until 9 years after the court's remand order); United Electrical Contractors Assn., 347 NLRB 1, 2–3 (2006) (denying motion to dismiss complaint against members of the employer association, notwithstanding the General Counsel's “inordinate and inexcusable” 5½ year delay in naming them as respondents, given the absence of any showing of prejudice); Rogan Bros. Sanitation, Inc., 369 NLRB No. 53, slip op. at 5 n. 6 (2020) (rejecting defense despite 7-year delay between Board's original decision granting summary judgment pursuant to the noncompliance provisions of a bilateral informal settlement agreement and issuance of backpay specification); Human Development Assn., 348 NLRB 677 (2006) (rejecting defense despite the 13-year delay between enforcement of the Board's remedial order and issuance of the compliance specification), enfd. 275 F. Appx. 64 (2d Cir. 2008); and Entergy Mississippi, Inc., 361 NLRB 892, 893 n. 5 (2014) (considerable delay by the Board in issuing the backpay specification did not warrant a reduction in the backpay award even assuming the delay contravened the APA), affd. in relevant part 810 F.3d 287, 298–299 (5th Cir. 2015).

With respect to considering passage of time and other changed circumstances in evaluating the appropriateness of a Gissel bargaining order, see §16–402.5, Evidence Affecting Remedy, below.

§3–830 Inadequate Investigation/Compliance with Casehandling Manual

Due process claims are tested not by analysis of the investigation, but by analysis of the complaint allegations. Thus, the adequacy of the General Counsel's investigation may not be litigated in the unfair labor practice hearing. Redway Carriers, 274 NLRB 1359, 1371 (1985). See also Laborers Local 135 (Bechtel Power Corp.), 301 NLRB 1066, 1068 n. 19 (1991) (citing the same rule in a compliance proceeding).

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 GC or the Board. See Hempstead Lincoln Mercury Motors Corp., 349 NLRB 552 n. 4 (2007); and Offshore Mariners United, 338 NLRB 745, 746 (2002), and cases cited therein. See also Steel Workers (Cequent Towing Products), 357 NLRB 516, 518 (2011) (rejecting the respondent union's argument that it was justified in maintaining an alleged unlawful annual renewal requirement for objectors because the requirement was consistent with guidelines set forth in a prior General Counsel Memorandum).

But see §6–230, “Skip Counsel” Violations, below.

§3–840 Deferral to Grievance Arbitration

It is well settled that deferral to the grievance and arbitration machinery of the collective-bargaining agreement is an affirmative defense that must be timely raised in the answer to the complaint or at the trial. Detroit Medical Center, 369 NLRB No. 41, slip op. at 1 n. 1 (2020); and Provident Nursing Home, 345 NLRB 581 n. 3 (2005). Therefore, the respondent's assertion of this defense after the trial closes is untimely. SEIU United Healthcare Workers–West, 350 NLRB 284 n. 1 (2007), enfd. 574 F.3d 1213 (9th Cir. 2009); Milford Manor Nursing & Rehabilitation Center, 346 NLRB 50, 51 (2005); and Master Mechanical Insulation, 320 NLRB 1134 n. 2 (1996). See also Wisconsin Bell Telephone, 346 NLRB 62, 64, n. 8 (2005) (although the respondent raised deferral as an affirmative defense in its answer, it waived the argument by failing to raise the issue subsequently at the hearing or in its brief to the judge).

Burden of proof. The burden is on the moving party to prove that prearbitral deferral is warranted. See, e.g., King Soopers, 364 NLRB 1153, 1174–1175 (2016), enfd. in relevant part 859 F.3d 23, 30 (D.C. Cir. 2017); Regency Heritage Nursing & Rehabilitation Center, 360 NLRB 794, 806 (2014), enfd. 657 F. Appx. 129 (3d Cir. 2016); and Rickel Home Centers, 262 NLRB 731 (1982). The Board has found prearbitral deferral appropriate when the dispute arises within the confines of a long and productive bargaining relationship; there is no claim of animosity to the exercise of employee statutory rights; the parties' agreement provides for arbitration of a very broad range of disputes; the arbitration clause clearly encompasses the dispute; the employer has asserted its willingness to arbitrate the dispute; and the dispute is eminently well suited to resolution through arbitration. See Wonder Bread, 343 NLRB 55 (2004), citing Collyer Insulated Wire, 192 NLRB 837, 839 (1971), and United Technologies Corp., 268 NLRB 557 (1984). See also United Parcel Service, Inc., 369 NLRB No. 1, slip op.at 10 n. 31 (2019) (reaffirming these standards for prearbitral deferral to grievance arbitration and overruling more recent decisions holding that in 8(a)(1) and (3) discharge or discipline cases the parties must have explicitly authorized the arbitrator to decide the unfair labor practice issue), revd. on other grounds 372 NLRB No. 158 (2023).

With respect to postarbitral deferral, the party opposing deferral has the burden of demonstrating that the standards for deferral have not been met, i.e. the party opposing deferral must show that the proceedings were not fair and regular; that the contractual issue is not factually parallel to the unfair labor practice issue; that the arbitrator was not presented generally with the facts relevant to resolving that issue; and/or that the award is “clearly repugnant” to the Act. Olin Corp., 268 NLRB 573, 574 (1984). The Board also applies the same principles to settlements arising from the parties' contractual grievance/arbitration procedures. See Bethenergy Mines, Inc., 308 NLRB 1242, 1244 n. 8 (1992), citing, e.g., Alpha Beta Co., 273 NLRB 1546 (1985), rev. denied sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987). See also United Parcel Service, above (reaffirming these standards for postarbitral deferral and overruling more recent decisions holding to the contrary with respect to 8(a)(1) and (3) discharge and discipline cases).

As indicated above, the foregoing deferral policies and standards apply to collectively bargained grievance/arbitration procedures. The Board generally does not defer to dispute resolution procedures unilaterally established and implemented by the employer. See American Civil Liberties Union, Inc., 05–CA–300367, unpub. Board order issued March 6, 2024 (2024 WL 1012532, 2024 NLRB LEXIS 114), citing American League of Professional Baseball Clubs, 180 NLRB 190, 191 (1969); and Pontiac Osteopathic Hospital, 284 NLRB 442 n. 3 (1987).

Procedure. The judge should evaluate whether deferral is warranted before evaluating the merits of the complaint allegations. Detroit Medical Center, above, slip op. at 1 (“Deferral is a threshold issue which must be decided prior to addressing the merits of the allegations at issue.”). See also Olin Corp., 268 NLRB at 574. The judge appears to retain the discretion, however, whether or not to bifurcate litigation of the deferral and unfair labor practice issues. See *Sheet Metal Workers Local 18 (Everbrite, LLC), 359 NLRB No. 121, slip op. at 3 (2013) (“The Board has long held that … a deferral defense and the merits may be addressed in the same hearing …”); Cargill, Inc.,17-CA-088608, unpub. Board order issued Jan. 3, 2014 (2014 WL 31718, 2014 NLRB LEXIS 5) (judge did not abuse her discretion in ruling that the scheduled unfair labor practice hearing, which was anticipated to last only about 1–2 days, would proceed, and that evidence should be presented with respect to both the deferral issue raised by the respondent and the merits of the complaint); and Bunge Milling, Inc., 33-CA-15997, unpub. Board order issued Dec. 30, 2011 (2011 WL 6886279, 2011 NLRB LEXIS 770) (judge did not abuse his discretion by requiring the parties to submit prehearing briefs on whether the Board should defer to an arbitrator's decision and award).

If the facts relevant to the deferral issue are undisputed, it may be appropriate to address the issue without a hearing, either on a stipulation of facts or a motion to defer/dismiss. See, e.g., *IAP World Services, 358 NLRB 33 (2012) (affirming judge's decision deferring/dismissing the case pursuant to the parties' stipulation of facts); Spectrum Health Services, 372 NLRB No. 21 (2022) (granting respondent's prehearing motion); Wonder Bread, 343 NLRB 55 (2004) (same); Southern California Edison Co, 310 NLRB 1229 (1993) (same), rev. denied 39 F.3d 1210 (D.C. Cir. 1994); and Specialized Distribution Management, Inc., 318 NLRB 158 (1995) (finding that the judge properly deferred/dismissed the complaint pursuant to the respondent's motion). See also §10–400, Motions to Dismiss, below. But see BCI Coca-Cola Bottling Company of Los Angeles, 361 NLRB 839 (2014) (judge should have held evidentiary hearing to determine whether grievance settlement was repugnant to the Act).

As indicated in the cases cited above, if the motion for pre or postarbitral deferral is granted, the complaint should be dismissed. However, if the motion is for prearbitral deferral, the decision should note that the Board retains jurisdiction for the limited purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of the Board's decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) deferral to the arbitration award is unwarranted.

Information Requests. “The Board has long adhered to a policy of refusing to defer to arbitration disputes concerning information requests.” Borenstein Caterers, Inc., 373 NLRB No. 23, slip op. at 7 (2024), citing General Dynamics Corp., 268 NLRB 1432 (1984).

However, in evaluating whether an employer unlawfully refused to provide requested information to a union regarding a contractual grievance, the procedural validity and substantive merit of the grievance are irrelevant; such contractual issues are for an arbitrator to decide and are irrelevant to whether the employer's refusal to provide the information violated Section 8(a)(5) of the Act. See Research Medical Center, 373 NLRB No. 36, slip op. at 3 (2024); and Wilkes-Barre General Hospital, 371 NLRB No. 55, slip op. at 12 (2022), and additional cases cited there.

Inextricably intertwined or related allegations. Allegations that are inextricably intertwined or related to an alleged unlawful workplace rule should not be deferred. See Intertape Polymer Corp., 373 NLRB No. 82, slip op. at 3 (2024) (complaint allegations that employer unlawfully removed a letter posted by an employee on a bulletin board and disciplined him for posting the letter were inappropriate for deferral because they were inextricably intertwined with the complaint allegation that the employer's rule prohibiting unauthorized posting was unlawful).

§3–850 Prior Settlement

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, 235 NLRB 1397 (1978). This so-called “settlement bar” rule is likewise an affirmative defense and is waived if not timely raised in the pleadings or at the hearing. See Richard Mellow Electrical Contractors Corp., 327 NLRB 1112, 1112–1113 (1999).

See also §9–620, Reservation Clauses: Settlement Bar Rule; §13–400, Settlements; and §16–402.4, Evidence of Presettlement Conduct, below.

§3–860 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 posthearing brief to the judge is untimely. Vencare Ancillary Services, 334 NLRB 965, 968–969 (2001), enf. denied on other grounds, 352 F.3d 318 (6th Cir. 2003).

CHAPTER 4. FILING AND SERVICE OF DOCUMENTS

§4–100 Filing of Documents

Under the Board's Rules, all post-charge unfair labor practice case documents filed with the Agency, including the Division of Judges, must be e-filed utilizing the Agency's website (www.nlrb.gov). If a party files such documents in paper format, it must explain why it could not e-file them or why doing so would be unduly burdensome. Documents may not be filed with the Agency via email without the prior approval of the receiving office. See Sec. 102.5(c).

The time requirements for filing are set forth in Section 102.2. In computing the time prescribed, the day the time period begins to run is not included; however, the last day is included unless it is a Saturday, Sunday, or legal holiday. When the time period is less than 7 days, intermediate Saturdays, Sundays, and holidays are excluded. See Sec. 102.2(a).

E-filed documents must be received by 11:59 p.m. of the time zone of the receiving office. Non-e-filed documents must be received before the official closing time of the receiving office. However, with certain exceptions (charges, EAJA applications, petitions to revoke subpoenas, and requests for extension of time to file a document), the Board will accept as timely filed documents which are deposited with a delivery service at least one day before the due date, as shown by the postmark or other record provided by the delivery service. Sec. 102.2(b).

As discussed in §3-600, above, with respect to filing of answers, Section 102.2(d) of the Board's Rules states that motions, exceptions, answers to a complaint or backpay specification, and briefs may be filed “within a reasonable time after the time prescribed by these Rules only upon good cause shown based on excusable neglect and when no undue prejudice would result.”

For an example of how this rule is applied, see M&M Affordable Plumbing, Inc., 13–CA–121459, unpub. Board (ES) order issued May 3, 2018 (2018 WL 2086092, 2018 NLRB LEXIS 183). In that case, the respondent requested leave to file its exceptions and supporting brief with the Board in Washington D.C. after the deadline (April 6) because of (1) an unexpected emergency that arose on another legal matter on April 6 that diverted counsel's attention for most of the business day, (2) a previous family commitment that prevented counsel from remaining at the office after business hours on April 6 to complete the filing, and (3) intermittent difficulties establishing an internet connection from counsel's home computer on the evening of April 6, which prevented counsel from completing the filing from home until 12:23 a.m. (Chicago time) on April 7. The General Counsel opposed the request and the Board denied it stating:

The asserted reasons for the late filing—that counsel was busy with other legal matters, and experienced technological problems—do not rise to the level of excusable neglect. See NLRB Rules and Regulations, Section 102.2(d), 102.24(b). Thus, the Board has rejected claims that filing attorneys were busy, finding they do not rise to the level of excusable neglect. See, e.g., V. Garofalo Carting, Inc., 362 NLRB [1369, 1369–1370] (2015). The Board has similarly held that a user's technological problems when attempting to e-file do not constitute excusable neglect. Rather, parties who choose to file on the final day for doing so assume the risk that something can go wrong, particularly if, as here, the attempted filing takes place on the evening of the final day. As specifically stated in the Board's e-filing instructions [see the Board's website at https://apps.nlrb.gov/eservice/efileterm.aspx], “a user who waits until after close of business on the due date to attempt to E-File does so at [the user's] own peril.”

See also Starbucks Coffee Co. v. NLRB, No. 24-1123, 2025 WL 1135120, at *2-3 (D.C. Cir. April 17, 2025) (unpub.) (finding the Board did not abuse its discretion when it declined to accept exceptions filed 24 minutes late due to computer issues); NLRB v. Tri-County Electric Cooperative, No. 21-60887, 2023 WL 5040960, at *2 (5th Cir. 2023) (unpub.) (same, where exceptions were filed 30 minutes late due to error in identifying the proper time zone of the receiving office).

Note, however, that the Board has accepted documents that were not timely filed with the appropriate office of the Agency where they were timely filed with another office of the Agency. See Eldeco, Inc., 336 NLRB No. 82 (2001) (respondent's response to the Board's notice to show cause was misfiled with the Agency's regional office rather than the Board in Washington, D.C., assertedly because of a miscommunication between counsel); and Central Apex Reproductions, 330 NLRB 1163 (2000) (respondent's response to the Board's notice to show cause was misfiled with the Division of Judges in Washington, D.C. rather than the Board).

§4–200 Service of Documents

Service of documents on parties in Board proceedings is governed by the NLRA and the Board's Rules rather than the Federal Rules of Civil Procedure. Control Services, 303 NLRB 481, 481–482 (1991), enfd. 961 F.2d 1568 (3d Cir. 1992). See Section 11(4) of the Act and the following sections of the Board's Rules: 102.3 (date of service), 102.4 (service of process and papers by the Agency), 102.5 (service of papers by parties), and 102.14 (service of charges).

Pursuant to the foregoing provisions, depending on the type of document, service may be made by:

Personal service (charges, complaints, compliance specifications, ALJ decisions, Board orders, subpoenas, other Agency-issued documents, and documents served by a party on other parties).

Registered or certified mail (charges, complaints, compliance specifications, ALJ decisions, Board orders, subpoenas, other Agency-issued documents, and documents served by a party on other parties).

Private delivery service (charges, subpoenas, and documents served by a party on other parties).

Leaving a copy at the principal office or place of business of the person required to be served (complaints, compliance specifications, ALJ decisions, Board orders, subpoenas, other Agency-issued documents, and documents served by a party on other parties).

Email (charges with the permission of the person receiving the charge, complaints, compliance specifications, ALJ decisions, Board orders, other Agency-issued documents, and documents served by a party on other parties unless otherwise provided in the Rules).

Regular mail (charges, and documents served by a party on other parties).

Fax (charges, and documents under 25 pages in length served by a party on other parties).

Any other means with the consent of the party being served (charges and documents served by a party on other parties).

Any other method authorized by law (complaints, compliance specifications, ALJ decisions, Board orders, subpoenas, and other Agency-issued documents).

Service of process on an authorized agent constitutes effective service on the agent's principal. See Spectrum Mechanical Services, LLC, 368 NLRB No. 85, slip op. at 1 n. 1 (2019) (General Counsel's service of the complaint and reminder letters by certified and regular mail on the designated individual listed with the state division of corporations to receive service was sufficient service on the respondent company), and cases cited there.

Section 102.4(e) requires that pleadings or other papers served by the Agency must also be served on any attorney or other representative of a party. The attorney or representative may be served by any means permitted by the Rules, including regular mail. For cases addressing the failure to serve a party's attorney with a copy of a subpoena, see §8-120, below.

Note also that Section 102.5, which addresses service of documents by parties, states that, “unless otherwise specified elsewhere in these Rules, service on all parties must be made in the same manner as that used in filing the document with the Board, or in a more expeditious manner.” See 102.5(f).

§4–300 Determining Date of Service

The date of service is specified in Section 102.3 of the Board's Rules as follows:

Personal delivery or fax: “the date on which the document is received.” See also Hardesty Co., 336 NLRB 258, 259 (2001) (presumption of employer's receipt of union's faxed information request was supported by fax confirmation report, which was not rebutted by testimonial denial of employer's lawyer at trial), enfd. 308 F.3d 859 (8th Cir. 2002).

Private delivery service: “the day when the document … is deposited with a private delivery service that will provide a record showing the date the document was tendered to the delivery service.”

Mail: “the day when the document served is deposited in the United States mail.” See also Electrical Workers IUE (Spartus Corp.), 271 NLRB 607 (1984).

Email: “the day when the document … is sent by email.”

§4–400 Proof of Service

Section 11(4) of the Act and Sections 102.4(d) and 102.5(g) of the Board's Rules specify certain methods of proof of service:

Personal service or delivery to a principal office or place of business: “the verified return by the serving individual, setting forth the manner of such service.”

Registered or certified mail: “the return post office receipt.”

Private delivery service: “the receipt from [the] service showing delivery.”

However, the same sections of the Board's Rules state that the foregoing methods of service “are not exclusive; any sufficient proof may be relied upon to establish service.” See also Mailhandlers Local 307 (U.S. Postal Service), 367 NLRB No. 144, slip op. at 1 (2019) (service of the complaint by certified mail may also be established by the Postal Service's online tracking system or by the Board agent's affidavit), and cases cited there. See also LIOX Cleaners, Inc., 371 NLRB No. 64, slip op. at 1 n. 2 (2022) (“Affidavits of service by a Board agent constitute sufficient evidence of service, even in the absence of evidence of delivery by the Postal Service.”)

Where service of documents is permitted by regular mail, the failure of the postal service to return the documents is sufficient to establish actual receipt. See, e.g., California Truck Driving Academy, LLC, 373 NLRB No. 95, slip op. at 1 n. 1 (2024); and LIOX Cleaners, above. See also Joy Luck Palace Restaurant, 368 NLRB No. 108, slip op. at 1 n. 1 (2019) (same; also noting that the Region additionally sent copies of the complaint and amended complaint to the respondent's president/owner and its manager by electronic mail via the same email addresses that they had previously used to correspond with the Region, and there was “no indication that the Region's emails to the Respondent's officials were undeliverable”).

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”; however, “failure to make proof of service does not affect the validity of service.” NLRB Rules and Regulations, Sec. 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 481, 481–482 (1991), enfd. 961 F.2d 1568 (3d Cir. 1992). 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.

§4–500 Failure of Service

A party's failure to make timely service on other parties is a basis for either “rejecting the document,” or “[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.” NLRB Rules and Regulations, Sec. 102.5(i).

Ordinarily, the Board has been reluctant to reject a document due to lack of timely service. 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 n. 1 (1979) (General Counsel's failure to serve timely filed exceptions); and Terpening Trucking Co., 271 NLRB 96 n. 1 (1984) (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 Tri-Way Security, 310 NLRB 1222, 1223 n. 5 (1993); and Acme Building Maintenance, 307 NLRB 358, 359 n. 6 (1992) (answer to complaint). However, in Active Metal Mfg., 316 NLRB 974, 974–975 (1995), a self-represented respondent's timely-filed answer was rejected for failure to serve the charging party because there had been “repeated efforts” by the Region to apprise the respondent of its obligations but service was never made.

§4–600 Efforts to Frustrate Service

“It is well settled that a respondent's failure or refusal to accept certified mail or to provide for appropriate service cannot serve to defeat the purposes of the Act.” Frontline Security Services, 367 NLRB No. 131, slip op. at 1 n. 1 (2019). Thus, in California Truck Driving Academy, above, the Board issued a default judgment against the respondent for failing to file an answer because, “even assuming” the General Counsel's “multiple efforts to serve the Respondent by a variety of methods” failed, “those failures support the conclusion that the Respondent itself failed to provide for appropriate service as our case law demonstrates.” See also Apex Electrical Services, 356 NLRB No. 172, slip op. at 1 n. 3 (2011) (issuing default judgment with respect to compliance specification).

§4–700 Special Aspects of Service of Particular Documents

§4–710 Charges and Amended Charges

As discussed in §3–120, above, under the proviso to Section 10(b) of the Act, a charge must be both filed with the Agency and served on the charged party within the 6-month limitations period. Where service is made by regular mail, service is timely if the charge was deposited in the mail during the 10(b) period. See §4–300 above, and Laborers Local 264 (D & G Construction Co.), 216 NLRB 40 n. 1, 43 (1975), affd. in relevant part 529 F.2d 778, 781–785 (8th Cir. 1976).

The charging party, not the Regional Office, is responsible for assuring timely service of a charge on the charged party. Dun & Bradstreet Software Services, 317 NLRB 84, 85 (1995), affd. 79 F.3d 1238, 1250 (1st Cir. 1996). 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. NLRB Rules and Regulations, Sec. 102.14(a) and (b), and Statements of Procedure, Sec. 101.4.

Technical defects in the manner of service will not necessarily invalidate the service. See Control Services, 303 NLRB 481, 481–482 (1991), enfd. 961 F.2d 1568 (3d Cir. 1992) (“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 (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 (1990).

Where there are multiple charged parties, service on only one of them is sufficient if they are:

Alter egos. BMD Sportswear Corp., 283 NLRB 142 n. 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).

Single employers. Il Progresso Italo Americano Publishing Co., 299 NLRB 270 n. 4, 289 (1990).

Joint employers. Whitewood Maintenance Co., 292 NLRB 1159, 1169 n. 29 (1989), enfd. 928 F.2d 1426 (5th Cir. 1991).

Joint bargaining representatives. Electrical Workers IUE (Spartus Corp.), 271 NLRB 607 (1984). See also United Electrical Contractors Assn., 347 NLRB 1, 1–2 (2006) (service of a charge on a multi-employer association constitutes, under agency principles, 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 collective-bargaining contract, or which is asserted to be unlawfully dominated, assisted, or supported, if no remedial order is sought against the labor organization. Meyers Bros. of Missouri, Inc., 151 NLRB 889, 893 n. 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.” NLRB Rules and Regulations, Secs. 102.4(a) and 102.15. With respect to necessary parties and parties in interest, see §§6–510 and 6–520, below. See also Postal Service, 5–CA–122166, unpub. Board order issued June 25, 2015 (2015 WL 3932157, 2015 NLRB LEXIS 490) (attorney for a trade association failed to establish any interest in the case that might even arguably have entitled it to notification of the charge or complaint).

§4–730 Compliance Specifications

“[T]he Regional Director may issue and serve on all parties a compliance specification in the name of the Board.” NLRB Rules and Regulations, Sec. 102.54(a).

Service of a compliance specification upon the respondent's attorney of record is sufficient service on the respondent. Star Grocery Co., 245 NLRB 196, 197 (1979); and Cera International Corp., 272 NLRB 1360 n. 2 (1984). This is so, even if the attorney no longer represents the respondent, unless notice has been given to the Regional Director that the representation has been discontinued. 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 §4–500, 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 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 must” file an answer and “immediately serve a copy” on the other parties.

§4–750 Subpoenas

“The date of service for purposes of computing the time for filing a petition to revoke is the date the subpoena is received.” Sec. 102.31(b). See also §8–120, Service of Subpoena, below.

CHAPTER 5. TIME AND PLACE OF HEARING

§5–100 Before Hearing Opens

Section 102.15 of the Board's Rules requires that a complaint contain “a Notice of Hearing before an Administrative Law Judge at a fixed date and at a time not less than 14 days after the service of the complaint.” “Except in extraordinary situations the hearing is … usually conducted in the Region where the charge originated.” NLRB Statements of Procedure, Sec. 101.10(a).

Generally, before hearing, the Regional Director issuing a complaint may extend the date of the hearing or change the hearing location. But when there are less than 21 days before the scheduled hearing date and a party objects to a postponement, motions to reschedule should be filed with the Division of Judges, which rules only on whether to grant the motion to extend the hearing date. NLRB Rules and Regulations, Sec. 102.16(a). See also Carriage Inn of Steubenville, 309 NLRB 383 (1992). “When a motion to reschedule has been granted, the Regional Director issuing the complaint shall retain the authority to order a new date for hearing and retains the responsibility to make the necessary arrangements for conducting such hearing, including its location and the transcription of the proceedings.” NLRB Rules and Regulations, Sec. 102.16(b).

See also Hudson Institute of Process Research, 373 NLRB No. 11 (2024). In that case, the Board denied the General Counsel's special appeal of the ALJ's order directing an in-person hearing in Chicago instead of the Zoom hearing originally set by the Regional Director. However, citing Section 102.16(b), the Board remanded the case to the RD to set a new date and location for the in-person hearing as the date for the in-person hearing ordered by the judge had passed.

§5–200 After Hearing Opens

A notice of hearing accompanying a complaint typically provides that the hearing will commence on the date set by the Regional Director and continue “on consecutive days thereafter.” However, as discussed in §2–300 (Duties of Trial Judge), above, after a hearing opens the designated administrative law judge possesses authority to “regulate the course of the hearing.” NLRB Rules and Regulations, Sec. 102.35(a)(6). This includes the “discretion” to continue the trial “from day to day, or adjourn [it] to a later date or to a different place, by announcement … at the hearing … or by other appropriate notice.” Sec. 102.43. See also Abrahamson Chrysler-Plymouth, 225 NLRB 923 n. 1 (1976) (ALJ did not abuse her discretion in denying respondent's several motions for continuances at the beginning of the first and second days of hearing and at the close of the General Counsel's case), enfd. mem. 559 F.2d 1226 (7th Cir. 1977); and Liquor, Wine Sales Representatives, Local 3 (Sazerac Co.), 9–CC–298028, unpub. Board order issued Dec. 19, 2022 (2022 WL ———, 2022 NLRB LEXIS 578), at 2 n.2 (Regional Director did not abuse his discretion by issuing a prehearing order declining to transfer the hearing to a different location or to hold it by Zoom, but the trial judge “retain[s] discretion to transfer the case in accordance with … Section 102.43 or order a remote hearing in accordance with Section 102.34(a)(6) if, as the case proceeds, [the judge] determines that circumstances warrant such action”), and cases cited below.

§5–300 Requests for Continuance to Obtain Counsel

Typically, two situations are presented: (1) an unrepresented party seeks a continuance to obtain counsel or other representative; and (2) the party's counsel or representative is unavailable on the trial date.

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, NLRB Rules and Regulations, Sec. 102.38, and the principle that “proceedings must proceed with the utmost dispatch,” NLRB v. American Potash & Chemical Corp., 98 F.2d 488, 492 (9th Cir.) In striking that balance, 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. See K & L Fire Protection Systems, 306 NLRB 988 n. 1 (1992) (judge reasonably denied the pro se respondent's request at the hearing for a 2-week continuance to obtain approval from the bankruptcy court to retain counsel, as the complaint had been outstanding for more than 6 months).

2) Whether a continuance has already been granted to allow the party to obtain counsel. See Peter Vitalie Co., 310 NLRB 865 n. 1 (1993) (judge reasonably denied motion where the respondent had already requested and been granted a prior 6-week postponement); and Crusader-Lancer Corp., 144 NLRB 1309 n. 1 (1963) (trial examiner did not commit prejudicial error by denying respondents' motion where a request for a 1-week continuance for the same purpose had previously been granted).

3) Efforts shown by the moving party to obtain counsel. See K & L Fire Protection Systems, above (noting that the respondent's application to the bankruptcy court for authorization to appoint an attorney was not made until 3 days before the hearing); and Peter Vitalie Co., above, (noting that, after receiving the prior continuance, 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. See Mississippi Valley Structural Steel Co. v. NLRB, 145 F.2d 664, 665–667 (8th Cir. 1944) (trial examiner should have granted respondent's request for a postponement at the start of the hearing due to illness of counsel who was the only attorney conversant with case). But see Quicken Loans, Inc., 28-CA-146517, unpub. Board order issued Aug. 14, 2015 (2015 WL 4910611, 2015 NLRB LEXIS 609) (judge did not abuse his discretion by denying counsel's second postponement request due to medical problems where judge had informed counsel when granting the first postponement that, if he could not proceed on the new hearing date, he should prepare alternative counsel).

2) When the conflicting commitment was made. See Hijos de Ricardo Vela, Inc., 194 NLRB 377 n. 1 (1971) (trial examiner justifiably denied postponement request where counsel for respondent's conflicting commitment—to bargain on behalf of another client—was made “long after the notice of hearing” and “indeed only shortly before the scheduled hearing date”), enfd. 475 F.2d 58 (1st Cir. 1973); and Michalik, Joseph J., 96 NLRB 10, 16 (1951) (the conflicting criminal trial was scheduled well after the notice of hearing in the unfair labor practice case, and respondent's counsel failed to advise the court of the conflicting hearing date when the court asked him to suggest a trial date).

3) Length of continuance contemplated. Marine Engineers District 1 (Dutra Construction), 312 NLRB 55 (1993) (finding that the judge's denial of respondent counsel's motion for a postponement was not an abuse of discretion in part because of “the indefinite length of the requested postponement”).

4) Complexity of facts and issues. See Franks Flower Express, 219 NLRB 149, 149–150 (1975) (judge did not abuse his discretion by denying second postponement request where the case was “neither a complicated nor lengthy proceeding” and respondent was represented at the hearing by a member of the same firm who presumably had knowledge of the issues as framed by the pleadings), enfd. mem. 529 F.2d 520 (5th Cir. 1976).

5) Whether it is the first request for a continuance. See Quicken Loans, above; and Franks Flower Express, above.

6) Availability of substitute counsel. Compare Mississippi Valley Structural Steel Co. v. NLRB, above, with Franks Flower Express, above; Wittek Industries, 313 NLRB 579 (1993) (judge properly denied respondent's request for a postponement due to unavailability of its counsel of record, inasmuch as corporate counsel, who had some familiarity with the circumstances leading to the discharge of the alleged discriminatees, was available to try case); and NLRB v. Glacier Packing Co., 507 F.2d 415, 416 (9th Cir. 1974) (judge did not abuse his discretion by denying respondent's request for a postponement due to counsel's conflicting legal engagements where other attorneys in the firm were qualified to handle the case). See also IATSE Local 720, 369 NLRB No. 34, slip op. at 1 n. 2, and 6 (2020) (associate chief ALJ did not abuse his discretion by denying respondent's prehearing motion for a continuance due to counsel's scheduling conflict where, inter alia, another attorney with the same firm was involved in the proceeding and available).

§5–310 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 (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 the same firm after pretrial denials of requests for further continuances).

§5–320 When Counsel or Party Leaves After Request Is Denied

When a continuance has been properly denied, it is not improper to go forward with the hearing without the presence of counsel. NLRB v. Glacier Packing Co., above; and NLRB v. Hijos de Ricardo Vela, Inc., 475 F.2d 58, 61 (1st Cir. 1973). See also Ethan Enterprises, Inc., 342 NLRB 129 n. 2 (2004) (judge properly proceeded with the hearing where the respondent's attorney left in the middle of the hearing after an objection to one of his cross-examination questions was sustained, and the attorney agreed to notify respondent that the hearing would proceed in his absence), enfd. 154 F. Appx. 23 (9th Cir. 2005). And see §6–300, Failure of Party to Appear at Hearing, below.

§5–400 Motions for Continuance to Prepare a Defense

The judge has discretion to grant or deny respondent a continuance to prepare its defense. Spiegel Trucking Co., 225 NLRB 178, 179 n. 9 (1976) (judge did not abuse his discretion in denying respondent's request for a postponement to investigate the allegations described in the General Counsel's opening statement and to procure witnesses, as the complaint had adequately apprised respondent of the alleged violations), enfd. mem. 559 F.2d 188 (D.C. Cir. 1977). See also East Bronx Health Center, 271 NLRB 898 n. 1 (1984) (judge properly denied respondent's motion for a 10-day adjournment at the close of the General Counsel's case, as the hearing had previously been postponed at respondent's request, which afforded respondent an additional 2 months to prepare its case, and respondent failed to adequately explain why another postponement was necessary).

§5–500 Motions for Continuance Because of Unavailable Witness

Obviously, there will be circumstances where a continuance may be appropriate due to the temporary unavailability of an important witness. However, the following are circumstances where a judge's denial of a continuance has been upheld:

1) Existence of prior notice that witness would be necessary. Quebecor Group, Inc., 258 NLRB 961 n. 1 (1981) (witness was named as supervisor in complaint); and Don't Stop, 298 NLRB 961, 962 (1990) (complaint named witness as sole actor who committed unfair labor practices).

2) Failure to show steps taken to ensure presence of witness. Batchelor Electric Co., 254 NLRB 1145 n. 1 (1981), enfd. mem. 716 F.2d 903 (6th Cir. 1983).

3) Failure to show that the whereabouts of witness is unknown or that witness is otherwise unavailable. 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 (1995); and Florida Coca-Cola Bottling Co., 321 NLRB 21 n. 2 (1996).

5) Witness simply chose to do something other than attend the hearing. Greenpark Care Center, 236 NLRB 683 n. 3 (1978) (witness chose to leave the country on vacation despite issuance of the notice of hearing almost 2 months before the hearing date); and Don't Stop, above (witness “chose not to be present at the hearing because it was his considered business judgment that his presence at the hearing was less important than a meeting with a major customer”).

6) Failure to assert that witness was needed to present the respondent's defense. Stevens Ford, 272 NLRB 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 n. 3 (1966).

8) Failure to take advantage of reasonable alternative arrangements to avoid continuance. Somerville Cream Co., 95 NLRB 1144, 1146 (1951) (General Counsel offered to move trial temporarily to the home of the assertedly incapacitated respondent witness), enfd. 199 F.2d 257 (1st Cir. 1952).

§5–600 Motions to Change Location of Hearing

“Decisions regarding where to prosecute a complaint are primarily an administrative function within the GC's discretion …” FDRLST Media, LLC, 2–CA–243109, unpub. Board order issued Feb. 7, 2020 (2020 WL 1182438, 2020 NLRB LEXIS 57), at 2, reaffd. 370 NLRB No. 49, slip op. at 1 n. 4 (2020), affd. on point but enf. denied on other grounds 35 F.4th 108, 120–121 (3d Cir. 2022). However, the General Counsel's decision is not unreviewable. See Flame of Miami, Inc., 159 NLRB 1103, 1105 (1966) (holding that it was “clearly reasonable” and not “an abuse of discretion” for the trial examiner to deny respondents' motion at the opening of the hearing to transfer the hearing from Miami to New York, where some of the respondents were located, as the unlawful conduct took place in Miami and respondents did not contend that holding the hearing in Miami was unreasonable or burdensome); and Altemose Construction Co. v. NLRB, 514 F.2d 8, 12 (3d Cir. 1975) (ALJ committed reversible error by denying the respondent employer's motion to move to another location because of the “mob atmosphere” outside the federal building where the hearing was being held). See also §12–500, Holding Remote Hearings by Videoconference, below. Thus, if a motion is filed to move all or part of the hearing to another location, the ALJ should consider and rule on it pursuant to the general authority granted in Section 102.35(6) and (8) to regulate the course of the hearing and dispose of motions.

Guidance in ruling on a motion to relocate all or part of a hearing may be found in court decisions applying 28 U.S.C. Sec. 1404(a) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought …”). The decisions indicate that the trial judge has “broad discretion” in ruling on such motions. SEC v. Savoy Industries, Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978). Relevant factors include the plaintiff's choice of location; the availability and convenience of witnesses, parties, and counsel; the location of the documentary evidence; the place or situs where the material events occurred; and the possibility of delay and prejudice if transfer is granted. “The burden is on the moving party to demonstrate that the balance of factors weighs heavily in favor of transfer and that transfer would not merely shift inconvenience from one party to another.” Graham v. United Parcel Service, 519 F.Supp.2d 801, 809 (N.D. Ill. 2007) (denying employer's motion to transfer employee's ADA and ERISA action from the Eastern to the Western Division of the Northern District of Illinois), citing, e.g., In re National Presto Industries, Inc., 347 F.3d 662 (7th Cir. 2003) (upholding trial judge's denial of employer's motion to transfer SEC enforcement action from the Northern District of Illinois to the Western District of Wisconsin, even though the only factor favoring the former venue was the convenience of the SEC and its staff). See also Carlile v. Continental Airlines, Inc., 953 F.Supp. 169 (S.D. Tex. 1997) (denying employer's motion to transfer employee's discrimination action from Galveston to Houston, Texas).

CHAPTER 6. APPEARANCES AT HEARING

§6–100 Representation at Hearing

“Any party has the right to appear at the hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses and to introduce into the record documentary or other evidence.” NLRB Rules and Regulations, Sec. 102.38. See also NLRB Statements of Procedure, Sec. 101.10(a). There is no requirement that the representative be a lawyer.

§6–110 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 n. 2 (1977), enfd. mem. 624 F.2d 192 (9th Cir. 1980); and Golden Hours Convalescent Hospitals, 200 NLRB 279, 280 n. 5 (1972). It is sufficient that the self-represented respondent is accorded a full and fair opportunity to present its case and cross-examine witnesses. American Cleaning Co., 291 NLRB 399 n. 1 (1988). See also Father & Sons Lumber v. NLRB, 931 F.2d 1093, 1096–1097 (6th Cir. 1991) (there is no constitutional or statutory basis to overturn a Board decision on the ground that the respondent was denied the effective assistance of counsel), enfg. 297 NLRB 437 (1989).

An unrepresented respondent also has no right to receive personal instruction from the judge. Indeed, the Board has stated that 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 hearing”. Air Transport Equipment, 190 NLRB 377 n. 2 (1971), enfd. mem. 486 F.2d 1394 (2d Cir. 1972) See also McKaskle v. Wiggins, 465 U.S. 168, 183–184 (1984) (pro se defendant has no “constitutional right to receive personal instruction from the trial judge on courtroom procedure” and judge is not required to “take over the chores … that would normally be attended to by trained counsel”), citing Faretta v. California, 422 U.S. 806, 834 n. 46 (1975).

However, as long as the judge remains impartial, the judge may answer procedural questions or explain basic rights. See Air Transport, above; Dickens, Inc., 355 NLRB 255, 257 (2010) (judge instructed unrepresented respondent regarding which areas of testimony would be relevant); and 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).

§6–200 Ethical Issues Involving Representation

§6–210 Attorney as Witness

The Board will not police the canons of ethics of the various bar associations. For example, if 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 n. 1 (1974). Accord: Wells Fargo Armored Service Corp., 290 NLRB 872, 873 n. 3 (1988). See also Page Litho, Inc., 311 NLRB 881 n. 1 (1993) (citing Wells Fargo and disavowing judge's statement that counsel was precluded ethically from appearing as a witness), enf. denied in part on other grounds mem. 65 F.3d 169 (6th Cir. 1995). But compare §§6-220 and 6-230, below. See also §11–400, discussing who is subject to a witness sequestration order.

§6–220 Conflicts of Interest

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). The Board has the similar authority to protect its own processes. See Supreme Airport Shuttle LLC, 365 NLRB No. 27, slip op. at 1 (2017) (“The Board's decisions make clear that, in an unfair labor practice proceeding, an [ALJ], subject to the Board's review, has the authority to disqualify a party's counsel based on an impermissible conflict of interest.”), citing Mack Trucks, 277 NLRB 711 n. 1 and 715–723 (1985). See also *Stericycle, Inc., 32-CA-24230, unpub. Board order issued Jan. 28, 2010 (2010 WL ———, 2010 NLRB LEXIS 784) (Board permitted the respondent employer to present evidence at the unfair labor practice hearing regarding whether counsel for the union should be disqualified due to a conflict of interest). But cf. §6–210, Attorney as Witness, above.

For situations where a party's attorney is a former Board lawyer, and is therefore subject to the post-employment restrictions currently set forth in Section 102.120 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 post-employment rules, but reversed the judge's conclusion that the entire law firm should also be disqualified under the circumstances presented).

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 union, had no conflict under applicable Federal statutes and regulations because she did not do any work on behalf of the union while employed at the law firm and had not served as an attorney or consultant for the law firm in the last year); and Terrace Gardens Plaza, Inc., 315 NLRB 749 n. 1 (1994) (rejecting respondent's contention, in a test-of-certification refusal-to-bargain proceeding, that counsel for the General Counsel should be disqualified because she served as the hearing officer in the underlying representation case and investigated contemporaneous charges brought by the employer against the union that had previously represented the employees), enfd. 91 F.3d 222 (D.C. Cir. 1996).

In consolidated “C & R” cases (where a complaint in an unfair labor practice case is consolidated for hearing with election objections or challenged ballots in a representation case), established Board and court precedent permits counsel for the General Counsel to also serve as the Regional Director's neutral representative for the objections/ballots portion of the case. See, e.g., Barrus Construction Co. v. NLRB, 483 F.2d 191, 194–195 (4th Cir. 1973), and cases cited there. See also §14–200, Consolidated Representation Cases, below.

§6–230 “Skip Counsel” Violations

Rule 4.2 of the ABA Model Rules of Professional Conduct, sometimes referred to as the “skip counsel” rule, states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.

This rule and similar state bar and federal court ethics rules generally prohibit an attorney from communicating directly with a represented person about the subject of the representation without prior consent from that person's attorney or legal authorization to do so. For a detailed discussion of issues that may arise under such skip counsel rules with respect to both current and former supervisors/agents and the evidentiary sanctions issued by courts for violations, see ABA, Ann. Mod. Rules Prof. Cond. §4.2 (10th Ed. 2023).

The General Counsel's policies with respect to unfair labor practice investigations are set forth in the NLRB Casehandling Manual (Part 1), Sec. 10058, and periodically in GC Memoranda. See also Lori Ketcham, Skip Counsel Issues in NLRB ULP Investigations, 16 No. 1 Prof. Law. 18, 20 (2005).

For Board cases addressing alleged skip counsel violations, see Operating Engineers, Local 17 (Hertz Equipment Rental Corp.), 335 NLRB 578 (2001) (finding that the Region's investigator properly took an affidavit of the respondent union's organizer and agent without the presence of respondent's counsel given that the investigator initiated contact and scheduled the interview before a notice of appearance had been filed, the union organizer voluntarily agreed to go forward with the interview after the notice of appearance was filed, and the investigator promptly left a phone message with the respondent's attorney advising him of the scheduled interview); and Success Village Apartments, Inc., 347 NLRB 1065 (2006) (rejecting the respondent employer's contention that a former manager's affidavit was improperly admitted into evidence, as the respondent failed to establish that the former manager's affidavit was improperly obtained under the GC's then-existing investigatory policy in Sec. 10058 of the NLRB Casehandling Manual; the applicable state rule of professional responsibility permitted ex parte contacts between a government agency and a former employee of a represented adverse party unless the former employee had become a trial consultant for the former employer in preparing for the litigation).

§6–300 Failure of Party to Appear at Hearing

When the respondent has filed an answer, but its lawyer or representative fails to appear at the hearing, the judge should hear the General Counsel's evidence and issue a decision. Beta Steel Corp., 326 NLRB 1267 n. 3, 1268 (1998); Quality Hotel, 326 NLRB 83 n. 4 (1998); and Bristol Manor Health Care Center, 295 NLRB 1106 n. 1 (1989), enfd. mem. 915 F.2d 1561 (3d Cir. 1990).

Of course, if the answer previously filed by the respondent is found insufficient, a default or summary judgment may be appropriate. See §§3–500, and 10–400.

§6–400 Rights of Charging Parties and Alleged Discriminatees

Charging Parties. Section 102.38 of the Board's Rules provides that:

Any party has the right to appear at the hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses, and to introduce into the record documentary or other evidence, except that the Administrative Law Judge may limit participation of any party as appropriate.

As indicated in §8–110, below, like other parties to the proceeding, a charging party has the right to subpoena relevant documents for the hearing. See, e.g., Amazon.com Services LLC, 29–CA–261755, unpub. Board order issued Nov. 18, 2021 (2021 WL 5447980, 2021 NLRB LEXIS 473) (judge did not abuse his discretion in denying respondent's petition to revoke portions of the Acting General Counsel's subpoena duces tecum and the Charging Party's subpoena duces tecum).

Normally, the judge should specifically offer the charging party an opportunity to question each witness called by the other parties. See Cowin & Co., 322 NLRB 1091 n. 1 (1997) (the “better practice” is for the judge to “specifically offer” the charging party the opportunity to question each witness, although the failure of the judge to do so does not constitute a denial of due process absent a showing of prejudice).

As discussed in §16–613.1, Jencks Statements, below, the charging party also has the right on request, for purposes of cross-examination, to review the pretrial Board affidavit of a respondent agent after being called and examined by the respondent or by the General Counsel (as an adverse witness).

However, as discussed in §§3–200 and 3–310, above, the General Counsel has exclusive authority over the issuance and prosecution of unfair labor practice complaints under Section 3(d) of the Act. The charging party therefore has no right to introduce evidence in support of an allegation or theory not asserted by the GC.

With respect to remedies, the responsibility for fashioning an appropriate remedy rests with the Board under Section 10(a) and (c) of the Act. See Aryzta, LLC, 369 NLRB No. 55, slip op. at 4 and n. 6 (2020) (holding, for this reason, that the Board in a stipulated-record case “retains discretion to order remedies it deems necessary to effectuate the policies of the Act even if those remedies do not comport with the parties' stipulated remedies”). Thus, the charging party may introduce, and the judge may consider, evidence supporting a remedy not sought by the General Counsel. See Kaumagraph Corp., 313 NLRB 624, 624–625 (1994) (judge erred by refusing to allow the charging party to introduce evidence to support a restoration and reinstatement remedy for the respondent's alleged unlawful transfer of operations). However, the requested remedies must be consistent with the General Counsel's complaint and theory of the case. ATS Acquisition Corp., 321 NLRB 712 n. 3 (1996) (judge erred in awarding backpay at the request of the charging party as the complaint did not allege unlawful unilateral changes in terms and conditions of employment).

Alleged Discriminatees. Alleged discriminatees have no right to participate as a party unless they have filed an unfair labor practice charge or have moved to intervene and thereby become a party in the proceeding. See Lincoln Technical Institute, Inc., 256 NLRB 176 (1981) (alleged discriminate who failed to file either a charge or a motion to intervene had no right to file exceptions to the ALJ's decision), rev. denied 682 F.2d 427 (3d Cir. 1982).

As discussed in §16–611.5, below, the failure of an alleged discriminatee to appear and testify at the hearing in support of the complaint allegations does not warrant an adverse inference where the testimony is unnecessary.

See also §11–400, below, regarding exclusion of charging parties and alleged discriminatees from portions of the hearing pursuant to a sequestration order.

§6–500 Intervention at Hearing

Section 102.29 of the Board's Rules permits “any person” to file a motion with the judge during the hearing to intervene. The motion must be in writing or made orally on the record at the hearing and “stat[e] the grounds upon which [the] person claims an interest.”

For useful guidance in evaluating the timeliness of such motions, see 2 Moore's Manual–Federal Practice and Procedure §14.101 (2023); and Wright & Miller et al., 7C Fed. Prac. & Proc. Civ. §1916 (3d ed. June 2024 Update) (discussing timeliness of motions to intervene in federal court actions under FRCP 24). See also DirectSat USA, LLC, 366 NLRB No. 141, slip op. at 2 (2018) (denying as untimely non-party DirecTV's motion to intervene to seek reconsideration of the Board's decision, as DirecTV was aware months before the case was submitted to the judge that a proceeding was underway that could affect its interests), enfd. 925 F.3d 1272 (D.C. Cir. 2019); Boeing Co., 366 NLRB No. 128, slip op. at 2 and n. 3 (2018) (denying a non-party union's motion to intervene to seek reconsideration of the Board's decision, in part because, although the Board has permitted posthearing intervention in “rare instances,” Section 102.29 does not provide for intervention after the close of the hearing); Postal Service, 5–CA–122166, unpub. Board order issued June 25, 2015 (2015 WL 3932157, 2015 NLRB LEXIS 490) (denying as untimely a motion to intervene filed by a law firm representing a member of a trade association after the Board had adopted the judge's decision in the absence of exceptions); and Hilton Hotels Corp., 287 NLRB 562 n. 3 (1987) (denying an alleged discriminatee's motion to intervene as a party to join the charging party union's statement of position on remand from the court of appeals).

Whether to grant a motion to intervene is within the discretion of the judge or Board. See Section 10(b) of the Act (any person may be allowed to intervene and present testimony “in the discretion” of the judge or Board); and Section 102.29 of the Board's Rules (the judge “may, by order, permit intervention in person, or by counsel or other representative, to such extent and upon such terms as may be deemed proper”). See also DirectSat USA, above (intervention in unfair labor practice proceedings is discretionary and not a matter of right). Accordingly, the ruling of the judge or Board will not be disturbed absent abuse or prejudice. Auto Workers v. NLRB, 392 F.2d 801, 809 (D.C. Cir. 1967); and Semi-Steel Casting v. NLRB, 160 F.2d 388, 393 (8th Cir. 1947).

The Board has addressed motions to intervene in a variety of situations.

Benefit fund trustees. The Board has held that benefit fund trustees should be permitted to intervene where the complaint alleges that the employer violated 8(a)(5) by failing to make benefit fund payments. See Camay Drilling Co., 239 NLRB 997, 998 (1978). In that case, the judge concluded that the trustees would have no interest in the matter 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 (APA) 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), where the judge permitted fund trustees to appear in an 8(b)(4)(ii)(B) and 8(e) case alleging that the respondent union unlawfully maintained a clause in its master labor agreement prohibiting subcontracting to employers who were delinquent in making payments to the funds.

Employer associations. The Board has likewise held that an employer association is properly permitted to intervene under Section 10(b) where it is party to the collective-bargaining agreement with the union, and the complaint allegations against the employer-member of the association turn in part on the contract. See Sterling Furniture Co., 94 NLRB 32 n. 1 (1951).

Subcontractors. See Postal Service, 5–CA–140963, unpub. Board order issued Nov. 4, 2015 (2015 WL 6750316, 2015 NLRB LEXIS 820). In that case, the complaint alleged that the Postal Service had violated 8(a)(5) by unilaterally contracting out bargaining unit work to Staples and requested that the Postal Service be required to restore the unit work as a remedy. The Board held that the judge erred in granting Staples' motion to intervene as a party in the proceeding, as the complaint did not allege that Staples engaged in any unlawful conduct or that the contract between the Postal Service and Staples was invalid, or seek relief against Staples; rather, Staples' only interest appeared to be the potential impact of the remedy on its contract with the Postal Service. The Board therefore vacated the judge's order and directed the judge to “consider how best to afford Staples an opportunity, short of full-party status, to address its interest in remedial matters.”

Parties in other pending cases. See Boeing Co., above (denying a non-party union's motion to intervene to seek reconsideration of the Board's decision, in part because the union was a party in another case pending before the Board where it would have the opportunity to make the same arguments).

Alleged discriminatees. As discussed in §6–400 above, the Board in Lincoln Technical Institute, Inc., 256 NLRB 176 (1981), rev. denied 682 F.2d 427 (3d Cir. 1982), held that alleged discriminatees who are not charging parties must timely move to intervene before the judge in order to have a right to file exceptions to the judge's decision. Nevertheless, alleged discriminatees rarely seek to intervene at the hearing, but instead rely on the General Counsel and the charging party to advocate and protect their interests. For a case where a judge granted a motion to intervene filed by the two alleged discriminatees, see Murray American Energy, 6-CA-148388, JD–26–16 (2016 WL 1359359, 2016 NLRB LEXIS 260) at 1 n. 1, adopted in the absence of exceptions by unpub. Board order dated May 17, 2006 (2016 WL 2894515, 2016 NLRB LEXIS 354).

Decertification petitioners. See Chino Valley Medical Center, 363 NLRB 963 n. 1 (2016) (judge did not abuse his discretion by denying the decertification petitioner's motion to participate as an intervenor in the 8(a)(5) case alleging that the employer unlawfully withdrew recognition from the union), enfd. 895 F.3d. 69 (D.C. Cir. 2018); Latino Express, Inc., 360 NLRB 911 n. 2 (2014), reaffg. unpub. Board order issued Nov. 27, 2012 (2012 WL 5942293, 2012 NLRB LEXIS 802) (same); and Leggett & Platt, Inc., 9–CA–194057, unpub. Board order issued Jan. 23, 2018 (2018 WL 549552, 2018 NLRB LEXIS 33) (same). See also Wyman Gordon Pennsylvania, LLC, 4–CA–182126, unpub. Board order issued March 19, 2018 (2018 WL 1407026, 2018 NLRB LEXIS 683) (judge in 8(a)(5) withdrawal-of-recognition case did not abuse his discretion by granting the decertification petitioner only limited intervention to file a posthearing brief rather than full intervention).

Antiunion employees. See Hotel Del Coronado, 345 NLRB 306 n. 1, JD. at 308 n. 1 (2005) (judge denied an antiunion employee's motion to intervene in the 8(a)(5) case to urge that a neutrality agreement between respondent's predecessor and the union was improper; but both the judge and the Board, on later exceptions, permitted the employee to file an amicus brief); Aztec Bus Lines, 289 NLRB 1021, 1033 n. 3 (1988) (Board reversed the judge and ruled that a nonstriker lacked standing to intervene on behalf of himself and other nonstrikers in the 8(a)(1), (3), and (5) case alleging various violations by the employer before, during, and after the strike); and McKinney v. Southern Bakeries, LLC, 2014 WL 2812257, 2014 U.S. Dist. LEXIS 85022 (W. D. Ark. June 23, 2014) (court denied antiunion employee's motion to intervene in the 10(j) injunction proceeding to oppose the Board's request for an interim bargaining order against the employer, as the employer would adequately represent his interests in the proceeding and his proffered defenses to the complaint were not legally relevant).

See also *Affinity Medical Center, 8-CA-90083, unpub. Board order issued April 30, 2013 (2013 WL 1809351, 2013 NLRB LEXIS 292), final decision and order issued 362 NLRB 654 (2015). There, the Board held that the judge did not abuse his discretion in denying a motion filed by two employees to intervene in a post-certification refusal-to-bargain proceeding. The Board had previously denied the same employees' motion to intervene in the postelection objections proceeding on the ground that individual employees do not have standing to file objections. See *unpub. Board order issued Jan. 11, 2013 (2013 WL 143371, 2013 NLRB LEXIS 13). The judge cited the Board's previous order, as well as the lack of factual or legal support for the employees' objections to the election, in denying the motion to intervene. On appeal, the Board additionally noted that, under Section 102.9 of the Board's Rules, the employees were free at any time during the applicable limitations period to file an unfair labor practice charge alleging that the conduct at issue violated the Act.

But see Washington Gas Light Co., 302 NLRB 425 n. 1 (1991) (Board affirmed judge's ruling permitting an employee to intervene to represent his own interests in the 8(a)(5) dues-checkoff case, but not the interests of other employees absent evidence that they requested or authorized him to do so); Taylor Bros., Inc., 230 NLRB 861 n. 1 (1977) (judge granted motion, over General Counsel's objection, to permit 10 employees to intervene in the 8(a)(5) case for the limited purpose of any remedy that might issue regarding the bargaining status of the union); J. P. Stevens & Co., 179 NLRB 254, 255 (1969) (judge granted motion, over General Counsel's objection, and permitted 114 employees to intervene in the 8(a)(5) case to challenge the validity of their authorization cards), enfd. 441 F.2d 514 (5th Cir.); and Spruce Pine Mfg., 153 NLRB 309 n. 1 (1965) (judge granted motion by 64 antiunion employees, who were represented by counsel, to intervene in the 8(a)(5) case, and many testified regarding the manner in which the union procured authorization cards), enfd. in part 365 F.2d 898 (D.C. Cir. 1966). See also Novelis Corp., 3–CA–12193, unpub. Board order issued Sept. 12, 2014 (2014 WL 4545621, 2014 NLRB LEXIS 701) (judge did not abuse his discretion in granting limited intervention to four antiunion employees with respect to the 8(a)(5) Gissel bargaining order remedy requested in the complaint; the judge's order permitted the employees to cross-examine witnesses called by the other parties and to file a posthearing brief, but not to call witnesses absent a showing that the respondent company had not adequately addressed a relevant issue).

Whether and to what extent employees should be permitted to intervene to contest the allegations and remedial order in other circumstances (such as an 8(a)(3) discrimination case) is unclear. The full Board addressed this issue, albeit by unpublished order, in Boeing Co., 19-CA-32431, unpub. order dated June 20, 2011 (2011 WL 2451725, 2011 NLRB LEXIS 308). In that case, the General Counsel alleged that Boeing had discriminatorily transferred work from its facilities in the Pacific Northwest to a new facility in South Carolina, and requested as a remedy that the work be returned. Three employees at the South Carolina plant filed a motion with the judge to intervene. The employees sought either unlimited intervention, or, alternatively, the right to file a posthearing brief. The judge denied the motion in its entirety. However, on special appeal, the full Board reversed the judge in part. Noting that the judge had subsequently granted 16 state attorneys general the right to file a posthearing amicus brief, the Board held that the employees had articulated a sufficient interest to grant them limited intervention to likewise file a posthearing brief in the matter.

For court cases addressing this issue in arguably analogous circumstances under FRCP 24, compare Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) (cited by the judge in Boeing), which held that the district court did not abuse its discretion by denying a motion by male employees to intervene in the female employees' class action discrimination suit, as “the proposed intervenors have no protectable interest in positions that they may have obtained due to specific discriminatory employment decisions,” with Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469 (2d Cir. 2010), and Brennan v. New York City Bd. of Education, 260 F.3d 123, 130 (2d Cir. 2001), which reversed district court orders and granted intervention to white employees to challenge any proposed order or settlement remedying alleged race discrimination.

§6–510 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 indispensable parties to the 8(a)(5) refusal-to-bargain case against the association itself because the Board could accord full relief to the parties without the joinder of each individual member). Compare UPMC, 362 NLRB 1704 n. 2, and 1729 (2015) (holding UPMC, the parent entity of the respondent companies, liable for certain of the Board-ordered remedies, even though the complaint did not allege that UPMC, as a separate entity, committed unfair labor practices, as UPMC had stipulated and consented to be bound by those portions of the Board's remedial order).

§6–520 Parties in Interest

A “party in interest” named in the complaint normally 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, 350 (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 the 8(a)(2) allegations, its joining or becoming a party to the settlement of the 8(a)(1) and (3) allegations was unnecessary).

Note, however, that the Region may name a decertification petitioner as a “party in interest” in a related unfair labor practice complaint solely for the purpose of receiving a copy of the order or other document that finally disposes of the proceeding. See NLRB Casehandling Manual (Part 1), Sec. 11733.2(b); and BOC Group, Inc., 323 NLRB 1100 (1997). See also §6–500, above, regarding intervention by decertification petitioners.

§6–600 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. A brief recess may also help in certain circumstances. See Estate of Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016) (“After all, lawyers and witnesses, like misbehaving children or rattled basketball players, sometimes need a timeout.”).

If the conduct nevertheless persists, Section 102.177 of the Board's Rules (“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. Each of these is discussed in the following sections. See also §3–620, above (striking frivolous, irrelevant, or otherwise improper affirmative defenses in an answer), and §15–400, below (striking false or otherwise improper or unprofessional briefs).

§6–610 Exclusion of Counsel

Section 102.177(b) of the Board's Rules provides that “misconduct by any person … may be grounds for summary exclusion from the hearing.”

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). There, the court reversed the Board's affirmance of the judge's decision to exclude counsel, both because the judge and the Board did not provide detailed and specific references to the attorney's conduct that allegedly warranted exclusion, and because, in the court's view, counsel's conduct “f[e]ll short of being contemptuous.”

Thus, the judge should clearly specify the conduct that the judge considers inappropriate and warn on the record that counsel will be excluded if the conduct continues. See, for example, the judge's warnings to counsel in Earthgrains Company, 351 NLRB 733, 736 n. 14 (2007); and Baddour, Inc., 281 NLRB 546 n. 2 (1986), enfd. mem. 848 F.2d 193 (6th Cir.).

If the person being excluded represents the respondent, it is appropriate, if not necessarily required, 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 n. 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, 2006 NLRB LEXIS 89 (March 15, 2006), slip op. at 15–20, adopted in the absence of exceptions May 16, 2006. See also the subsequent related disciplinary proceeding, In re David M. Kelsey, 349 NLRB 327 (2007) (issuing a default judgment imposing a 6-month suspension for the same conduct).

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. See Great Lakes Screw, above.

A possible middle ground, which could avoid the postponement problem, is available when the offending party has co-counsel. In Baddour, Inc., above, 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.

§6–620 Authority to Admonish or Reprimand Counsel

Section 102.177(b) of the Board's Rules also authorizes judges and the Board to “admonish or reprimand, after due notice, any person who engages in misconduct at a hearing.” See also 675 West End Owners Corp., 345 NLRB 324, 325 (2005), enfd. 304 F. Appx. 911 (2d Cir. 2008). A formal admonition or reprimand declares the conduct improper and cautions or warns the offender that repeating the offense will result in more severe discipline. Sargent Karch, 314 NLRB 482, 486 and n. 14 (1994) (citing ABA Standards and Black's Law Dictionary). See also Mail Contractors of America, 347 NLRB 1158 (2006) (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), enf. denied on other grounds, 514 F.3d 27 (D.C. Cir. 2008).

The exclusion and formal-admonition remedies are not mutually exclusive and, in fact, in most cases, exclusion will also be accompanied by a formal admonition. See Advance Waste Systems, above, and State Bank of India, above.

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 administered. However, the Board has not been receptive to this procedure. See 675 West End Owners, above (holding that the judge should have either 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 Section 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 Systems, 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, refusal to obey the judge's instructions, and accusing the judge of “taking money,” State Bank of India, above; repeatedly misidentifying an opposing party's representative in an unprofessional manner, National Assn. of Broadcast Employees and Technicians Local 51 (ABC), 371 NLRB No. 15, slip op. at 1 n. 4 (2021); violating the judge's witness sequestration order, Seattle Seahawks, 292 NLRB 899, 908 (1989), enfd. mem. 888 F.2d 125 (2d Cir. 1989); and willfully taking frivolous positions 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 the judge's rulings. 675 West End Owners, above. See also Government Employees (IBPO), 327 NLRB 676 (1999); and Alan Short Center, 267 NLRB 886 n.1 (1983).

Frivolous answers. Note that a separate Board rule, Section 102.21, specifically provides for disciplinary action against an attorney or representative for willfully filing an answer that is not supported by good grounds 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., Nursing Center at Vineland, 318 NLRB at 338 n.7; Graham-Windham Services, 312 NLRB 1199 n. 2 (1993); Worldwide Detective Bureau, 296 NLRB 148 n. 2 (1989); and M. J. Santulli Mail Services, 281 NLRB 1288 n. 1 (1986). See also *Uzi Einy, 352 NLRB 1178 (2008) (imposing 6-month suspension on the respondent's nonattorney representative for his misconduct in 675 West End Owners Corp, above, including filing frivolous answers that denied allegations he knew to be true and had been established in previous Board proceedings).

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.

§6–630 Suspension of Counsel

The final and most severe remedy for misconduct is set forth in Section 102.177(d) of the Board's Rules, which states that misconduct “at any stage of any Agency proceeding, including but not limited to misconduct at the hearing,” which is “of an aggravated character may be grounds for suspension and/or disbarment from practice before the Agency and/or other sanctions.”

Procedure for referral of allegations. Under Section 102.177(e), any person, including the Board and its ALJs, 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. See, e.g., Roemer Industries, Inc., 367 NLRB No. 133, slip op. at 1 n. 2 (2019) (Board referred to the Investigating Officer allegations regarding a persistent pattern of misrepresentation by the respondent employer's attorney in briefs and other documents filed with the Board or its ALJs); and Imperial Sales, Inc., 365 NLRB No. 95, slip op. at 3 (2017) (Board referred allegations of hearing misconduct by the respondent employer's attorney to the Investigating Officer for investigation and appropriate disciplinary action).

The explanatory material that accompanied Section 102.177 when it was published in the Federal Register in 1996 indicated that the judge could recommend disciplinary action in the judge's decision, which might then be referred by the Board to the Investigating Officer. 61 Fed. Reg. 65323, 65329, n. 12 (Dec. 12, 1996). However, the Board has expressed a preference in subsequent cases that the judge separately submit a recommendation for discipline directly to the Investigating Officer. See Earthgrains Co., 351 NLRB 733 n. 3 (2007); 675 West End Owners Corp., 345 NLRB 324, 325–326 (2005), enfd. 304 F. Appx. 911 (2d Cir. 2008); and McAllister Towing & Transportation, 341 NLRB 394, 398 n.7 (2004), enfd. 156 F. Appx. 386 (2d Cir. 2005). See also Smithfield Packing Company, Inc., 344 NLRB 1, 19 n. 59 (2004) (agreeing with the 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), enfd. 447 F.3d 821 (D.C. Cir. 2006).

Thus, disciplinary allegations and recommendations should normally be sent to the Investigating Officer 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 the General Counsel pursuant to Sec. 102.177, which ultimately resulted in the representative's 6-month suspension).

Definition of “aggravated” misconduct. The Board's Rules do not define the term “aggravated” misconduct. But Section 102.177(a) states that attorneys and representatives “must conform to the standards of ethical and professional conduct required of practitioners before the courts, and the Agency will be guided by those 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 such standards “may include the ABA Model Rules of Professional Conduct (and/or any other standards adopted by the ABA in the future), applicable state bar rules, and court decisions applying such 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 instructive to examine case precedent before as well as after that date to determine the meaning of the term.

One of the most important factors appears to be the presence of prior disciplinary offenses. See Sargent Karch, 314 NLRB 482, 486 n. 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 ABA 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 (1992), where it approved a settlement that imposed a 6-month suspension on 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 a default judgment and imposed a 6-month suspension on the 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, 2006 NLRB LEXIS 89 (March 15, 2006), adopted in the absence of exceptions May 16, 2006); and *Uzi Einy, 352 NLRB 1178 (2008) (imposing a 6-month suspension on the respondent's nonattorney representative for his misconduct in 675 West End Owners Corp, above).

Length of suspension. Although 6 months appears to be a common sanction, longer suspensions have been ordered. See Stuart Bochner, 322 NLRB 1096 (1997) (Board issued a 2-1/2 year suspension to an attorney who had lied to the judge in one proceeding, purposely delayed other proceedings by engaging in frivolous delaying tactics, including failing to produce subpoenaed documents without filing a motion to revoke in three separate proceedings, and filing 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) (Board issued a 1-year suspension to an 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), vacated by unpub. district court order dated Feb. 3, 1998.

Although rare, the Board has also disbarred an attorney. See Kings Harbor Health Care, 239 NLRB 679 (1978) (attorney had pleaded guilty in a criminal proceeding to subornation of perjury in a prior Board proceeding). See also Application and Motion of Horowitz, 266 NLRB 755 (1983) (denying the same attorney's subsequent request for reinstatement of his right to appear before the Board).

§6–640 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 draw out the litigation. See Teamsters Local 122 (August A. Busch & Co. of Massachusetts), 334 NLRB 1190, 1193, 1255 (2001). See also Chino Valley Medical Center, 363 NLRB 963 n. 5 (2016); and Pacific Beach Hotel, 361 NLRB 709, 711–712 (2014); and cases cited there.

But see HTH Corp. v. NLRB, 823 F.3d 668, 678–679 (D.C. Cir. 2016), denying enforcement in relevant part of Pacific Beach Hotel, above, where the court held that the Board has neither inherent authority nor implicit authority under Sec. 10(c) of the Act to order a respondent to pay the litigation expenses of the General Counsel and the union. See also Veritas Health Services v. NLRB, 895 F.3d 69, 86 (D.C. Cir. 2018), denying enforcement in relevant part of Chino Valley, above, where “the Board agree[d] that its award of litigation costs and expenses was incorrect” and did not seek enforcement of those portions of its order, citing HTH Corp. v. NLRB.

§6–650 Counsel Misconduct as Unfair Labor Practice

In certain circumstances, a respondent counsel's questions or statements to or in the presence of witnesses at the hearing may constitute an unfair labor practice. See AM Property Holding Corp., 350 NLRB 998 n. 4 (2007) (granting the General Counsel's motion to amend the complaint during the hearing and finding that the respondent's counsel violated Section 8(a)(1) and (4) of the Act by stating on the record, in the presence of the witness, that he would “have to get an investigator” and “find out whether [the witness] is here in this country illegally”); and Imperial Sales, Inc., 365 NLRB No. 95, slip op. at 3 nn. 13–15, and 20 (2017) (granting the General Counsel's motion to amend the complaint during the hearing and finding that the respondent's counsel violated Section 8(a)(1) by telling the alleged discriminatees in the hearing room that he would report them to the immigration authorities and that they would “not get a penny”), enfd. 740 F. Appx. 216 (2d Cir. 2018).

But compare Wendt Corp., 3–CA–21225, unpub. Board order issued Nov. 13, 2018 (2018 WL 5964286, 2018 NLRB LEXIS 549). In that case, the respondent's counsel asked a witness on cross-examination whether he had taken certain notes during his work time. The General Counsel objected and moved to amend the complaint to allege that counsel's question threatened the witness with potential discipline in violation of Section 8(a)(1) of the Act. The judge granted the motion to amend. However, he reserved ruling on the merits of the amendment. Nevertheless, the respondent filed an immediate request for special permission to appeal, and the Board reversed, finding that the judge abused his discretion in permitting the amendment during the hearing. The Board reasoned that, although counsel's line of questioning was “inartfully expressed,” it was “relevant to determining whether the notes taken by the witness had been recorded at the time the events occurred or sometime later,” which counsel “immediately emphasized” in response to the GC's objection. The Board distinguished AM Property and Imperial Sales because they involved “very exceptional circumstances” where the “threatening questions or statements by counsel” were “unrelated to the unfair labor practices at issue.” Accordingly, the Board directed the judge to “reject the complaint amendment, without prejudice to the General Counsel's right to litigate this issue in a separate proceeding.”

§6–660 Referral for Possible Prosecution

Certain misconduct, whether committed by counsel, a party, or a witness, may violate Section 12 of the Act (interference with Board proceedings) or criminal statutes such as 18 U.S.C. §1001 (false statements) and 18 U.S.C. §1621 (perjury). See Pain Relief Centers, P.A., 371 NLRB No. 70, slip op. at 3–4 (2022), enfd. 2023 WL 5380323, 2023 U.S. App. LEXIS 22068 (4th Cir. Aug. 22, 2023). Where the record before the judge indicates that such misconduct occurred, the judge may recommend that the Board refer the matter to the appropriate authorities for possible prosecution. See, e.g., Multimatic Products, 288 NLRB 1279 n. 2, 1336–1337 (1988) (judge recommended, and the Board agreed, that the charging party union's alleged submission of false evidence during the investigation and in the hearing should be referred to the appropriate authorities for possible prosecution). Compare Irwin Industries, Inc., 325 NLRB 796, 797 n. 7 (1998) (Board declined to refer the charging party union's alleged misconduct to the Justice Department, as there was no showing that the union created any fraudulent evidence; rather, the judge simply credited one party's testimony over the other).

CHAPTER 7. PRETRIAL PROCEDURE

§7–100 Conference Calls

Pretrial conference calls typically address a variety of non-substantive procedural matters, including the parties' and the judge's expectations regarding the conduct of the trial (e.g. the number and scheduling of witnesses, the submission of exhibits, and the length of the trial), as well as the potential for reaching a settlement or stipulation of facts (see §9–220, below).

Accordingly, because the judge typically does not issue any final rulings on disputed issues during the calls, the calls are normally not transcribed by a court reporter. See Lewis Foods of 42nd Street, LLC, 2–CA–093893 et al., unpub. Board order dated April 21, 2015 (2015 WL 1815276, 2015 NLRB LEXIS 294) (judge did not abuse her discretion in denying respondent's request to create an official record of a pretrial conference call where the judge did not intend to make any rulings on pending motions during the call). If issues arise shortly before or during the calls, the judge may defer making any final rulings until later, either in a written order or at the hearing.

Occasionally, a conference call may be held after the hearing has officially opened, such as during a lengthy continuance or where the hearing had previously been opened only briefly by telephone or mail to address a pretrial issue (see §12-200, below). If the conference call is held to hear an oral motion or to rule on a motion, the call should be transcribed by a court reporter. However, as with pretrial conference calls, the judge retains the discretion not to have the call transcribed in other circumstances. See Lewis Foods of 42nd Street, LLC, 362 NLRB 1084 (June 26, 2015) (although the hearing had previously been formally opened, the judge did not abuse her discretion in denying respondent's request to transcribe scheduled conference calls regarding the manner and timeframe for producing subpoenaed documents, where the judge's letter to the parties scheduling the calls could not reasonably be read as contemplating the submission of oral motions during the calls).

§7–200 Pretrial Discovery

It is well established that pretrial discovery does not apply in Board proceedings. Section 102.118(a) of the Board's Rules prohibits the disclosure of documents in the General Counsel's possession, whether in response to a subpoena or otherwise, without the GC's written consent. As discussed in §8–445, below, Section 102.118(e) provides only a limited exception requiring production of Jencks statements by GC or charging party witnesses after they have testified.

The Board, with court approval, has historically followed this rule against pretrial discovery both to protect employees and other potential witnesses from reprisal or harassment and to avoid the delay and collateral disputes that often accompany discovery. See Offshore Mariners United, 338 NLRB 745, 746 (2002); and David R. Webb Co., 311 NLRB 1135 (1993), and authorities cited there. See also Kenrich Petrochems, Inc. v. NLRB, 893 F.2d 1468, 1484 (3rd Cir. 1990) (“[N]either the [C]onstitution nor the Administrative Procedure Act confer[s] a right to discovery in federal administrative proceedings.”), vacated and remanded on other grounds 907 F.2d 400 (3d Cir. 1990) (en banc).

Thus, the judge may not order the General Counsel to provide the respondent with a witness list. See Beta Steel Corp., 326 NLRB 1267 n. 3, 1268 (1998), enfd. mem. 210 F.3d 374 (2000); and *Bashas', Inc., 352 NLRB 661 (2008). See also §3–230, Bill of Particulars or More Definite Statement, above. Nevertheless, the GC in some instances may voluntarily provide the respondent with advance notice of current employees or managers who may be subpoenaed to testify, in order to reduce the impact on the respondent's business and/or for other appropriate reasons. See *Bashas', above (noting that the General Counsel had done so and that, “[w]here appropriate, voluntary agreements of this character can aid the efficient administration of the Act”). In addition, the judge may rule on requests that the testimony of such witnesses be scheduled to minimize the burden on the respondent or the witnesses pursuant to the judge's general authority to regulate the course of the hearing under Section 102.35(a)(6) of the Board's Rules. See §2–300, Duties and Powers of Trial Judge, above.

However, the policy against pretrial discovery does not mean that production of subpoenaed documents cannot be compelled until the day the first witness is scheduled to testify. See, e.g., Quickway Transportation, 09-CA-251857, unpub. Board order issued Oct.19, 2021 (2021 WL 4893957, 2021 NLRB LEXIS 432), at 2 (ALJ did not abuse his discretion by opening hearing solely to rule on subpoena issues and ordering respondent to immediately begin producing subpoenaed documents on a rolling basis, notwithstanding that the hearing was not scheduled to resume to take witness testimony until a month later).

Production of electronically stored information may also be compelled even before the hearing opens if the additional time would be needed to convert the produced ESI into a “reasonably usable” format. See Starbucks Corp., 372 NLRB No. 147 (2023). In that case, respondent produced subpoenaed ESI in TIFF+ format when the hearing opened. However, the General Counsel asserted that ESI in that format would not be searchable electronically, and therefore not reasonably usable, for several days until the NLRB's vendor had processed it through Relativity. The ALJ therefore ordered that any ESI produced in TIFF+ format must be produced 4 days before the hearing resumed. The Board subsequently denied respondent's special appeal, stating,

[I]t is within the judge's broad discretion, granted by the Board's Rules and Regulations, to require the Respondent's subpoena responses to be at a time and in format that is reasonably usable by the start of the hearing or, as in this instance, by the resumption of the hearing.

The Board added that “it is well within the judge's discretion, sua sponte or on request, to issue an order limiting the General Counsel's access to the documents should they be made available before the start of the hearing.” See also §8–340, Electronically Stored Information, below.

§7–300 Depositions

Under Section 102.30 of the Board's Rules, the judge has “discretion” to grant an application to take testimony by deposition, including by videoconference, but only upon a showing of “good cause” See December 12, Inc., 282 NLRB 475 n. 1 (1986) (“The Board does not allow the taking of depositions to provide discovery in ordinary circumstances.”); and David R. Webb Co., 311 NLRB 1135, 1136 (1993) (same rule generally applies in compliance proceedings). See also Kenrich Petrochemicals v. NLRB, above (ALJ properly denied respondent's request to depose the General Counsel's witnesses, as the Board's rules normally do not permit prehearing discovery and the “good cause” exception is limited to instances where discovery is needed for the preservation of evidence, usually because the witnesses will not be available to testify at the hearing).

A respondent's failure to request permission to take a deposition of a nontestifying witness was cited as grounds for rejecting the witness's prior state court deposition in Goya Foods of Florida, 347 NLRB 1118, 1119–1120 (2006), enfd. 525 F.3d 1117 (11th Cir. 2008). The ALJ in that case denied the respondent's request to admit the witness's prior state court deposition because 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 pursuant to Section 102.30 of the Board's Rules.

See also §12–400, Testimony by Videoconference, below.

CHAPTER 8. SUBPOENAS

§8–100 Issuance of Subpoenas

§8–110 Application for Subpoena

“Any party” to the proceeding may file an application for a subpoena. Sec. 11(1) of the Act; and Sec. 102.31 of the Board's Rules. Before the hearing, the application must be filed with the Regional Director; during the hearing, it must be filed with the judge. Ibid. As discussed in §2–220, above, the application may be made ex parte.

Upon receipt of the application, the subpoena(s) must be issued; there is no discretion. See Sec. 11(1) of the Act (“shall”); and Sec. 102.31 of the Board's Rules (“will”). See also Lewis v. NLRB, 357 U.S. 10, 14 (1958) (“The Act makes clear that issuance of subpoenas is mandatory….The only function remaining is ministerial. Consequently, the Board supplies blank subpoenas bearing its seal and the facsimile signature of a Board member to its regional offices and [administrative law judges] …. Upon application of a proper party the [regional office or ALJ] automatically issues the subpoena to the applicant.”). Indeed, for this reason, it is not inappropriate for the regional director to issue a requested subpoena after the hearing has opened if the judge is not available. See Free-Flow Packaging Corp., 219 NLRB 925, 926 (1975) (regional director issued subpoena over the weekend), enfd. in part 566 F.2d 1124 (9th Cir. 1978).

Thus, if requested to do so, the judge should issue the subpoena and await a petition to revoke, even if it is clear at the outset that a petition to revoke would be granted. See Canova v. NLRB, 708 F.2d 1498, 1503 (9th Cir. 1983).

§8–120 Service of Subpoena

As discussed in Chapter 4, above, service of subpoenas may be made personally, by registered or certified mail, by leaving a copy at the principal office or place of business of the person required to be served, by private delivery service, or by any other method of service authorized by law. See Sec. 102.4(b) of the Board's Rules.

Principal office or place of business. In Starbucks Corp., 372 NLRB No. 147 (2023), the Board found that the ALJ did not abuse her discretion in ruling that service of a General Counsel subpoena ad testificandum was proper where it was served on the respondent's manager at the location where the alleged unfair labor practices occurred and where the manager occasionally worked, notwithstanding respondent's contention that it was not the manager's principal place of work.

Service by private delivery service. Service may be made by Federal Express or similar carrier. Offshore Mariners United, 338 NLRB 745 (2002). There is no requirement that the subpoena be left with a person specifically authorized to accept service of subpoenas. See Control Services, 303 NLRB 481, 483 n. 13 (1991) (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 Sec. 102.113(c), even if the respondent had not authorized the receptionist to accept such service), enfd. mem. 961 F.2d 1568 (3d Cir. 1992).

Proof of service. A verified return by the serving individual, a return post office receipt, or any other sufficient proof may be relied upon to establish that service was made. NLRB Rules and Regulations, Sec. 102.4(d). See also 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 return-receipt card signed by the person subpoenaed).

Service on attorney or representative. Pursuant to Section 102.4(e) of the Board's Rules, a copy of the subpoena must also be served on any attorney or representative who has entered an appearance for a party. If served by the Board or its agents, service on the attorney or representative may be made by any means of service permitted by the Rules, including regular mail. See also NLRB v. Vista Del Sol Health Services, Inc., 40 F.Supp.3d 1238, 1258 (C.D. Cal. 2014).

However, absent a showing of prejudice, the failure to serve counsel does not constitute grounds for revoking a subpoena or invalidate it ab initio. See Haynes Security Services, Inc., 12–CA–296934, unpub. Board order issued Dec. 2, 2022 (2022 WL 17416555, 2022 NLRB LEXIS 542), at 1 n. 3 (finding no prejudice where a timely petition to revoke was filed); and Arizona 811, 28–CA–182241, unpub. Board order issued Feb. 2, 2017 (2017 WL 971635, 2017 NLRB LEXIS 80), at 1 n. 3 (same), and court cases cited there. Further, a lawyer with actual notice of a subpoena must file a petition to revoke to raise a credible claim of prejudice, even if over 5 days have passed since service on the client. NLRB v. Fresh & Easy Neighborhood Market, 805 F.3d 1155, 1161–1162 (9th Cir. 2015).

§8–125 Timing of Service of Subpoena

The General Counsel's Casehandling Manual states that subpoenas “should, where circumstances allow, normally be served at least 2 weeks prior to trial” to allow sufficient time to arrange for production of the witness or documents and for ruling on a petition to revoke before trial. NLRB Casehandling Manual (Part 1), Sec. 10340.

In McAllister Towing, 341 NLRB 394 (2004), enfd. 156 F. Appx. 386 (2d Cir. 2005), the Board rejected the respondent's contention that 2 weeks was insufficient. In that case, 12 days before the hearing, the General Counsel properly served each of the two entities allegedly constituting a single employer with a subpoena duces tecum requesting approximately 30 categories of documents. The Respondent timely petitioned to revoke the subpoenas, arguing that they would require production of “hundreds of thousands of pages of documents stored in numerous locations throughout the world,” that most of the documents were irrelevant, and that the GC timed the subpoenas “solely to interfere with [its] preparation for the hearing.” At a conference call the morning before the hearing opened, the judge advised counsel that she would rule on the petition to revoke the following morning, but instructed that the respondent should be ready to “substantially comply” with the subpoenas at that time. She rejected the respondent's argument that it was not obliged to gather and produce the documents until she ruled on the petition.

When the hearing opened the next day, the judge revoked the subpoenas in part and ordered the respondent to comply with the remaining parts. The respondent, however, failed to produce any significant records, repeating its position that 2 weeks prior to trial was too short and that it was entitled to a reasonable time to comply after the ruling on the petition to revoke. At the GC's request, the judge therefore imposed certain evidentiary sanctions.

The Respondent excepted to the judge's ruling following issuance of her decision. However, the Board found that the ruling was not an abuse of discretion, stating, “We agree with the General Counsel that the Respondent at the very least had an obligation to begin a good faith effort to gather responsive documents upon service of the subpoenas.” 341 NLRB at 397.

See also *Voith Industrial Services, Inc., 9-CA-75496, unpub. Board order issued Aug. 27, 2012 (2012 WL 3679872, 2012 NLRB LEXIS 532) (granting the General Counsel's special appeal and reversing the judge's order partially quashing a subpoena served 2 weeks before the hearing, as the respondent had “not submitted any evidence supporting its assertion that the time required to locate and review the documents would exceed 2 weeks”).

§8–130 Geographic Reach of Subpoena

Section 11(1) of the Act states that the Board may require the attendance of witnesses and production of evidence “from any place in the U.S. or any Territory or possession thereof, at any designated place of hearing.”

§8–140 Fees and Mileage Required to be Paid

Witnesses subpoenaed for a hearing must be paid the same fees and mileage that are paid witnesses in the federal courts by the party who issued the subpoena. See Sec. 11(4) of the Act; Sec. 102.32 of the Board's Rules; and Zurn/NEPCO, 329 NLRB 484, 486–487 (1999). See also 28 U.S.C. Sec. 1821; and FRCP 45(b). This rule applies, not only to a subpoena ad testificandum, but also to a subpoena duces tecum if it requires a witness to appear at the hearing and produce the records. See Colburn Electric Co., 334 NLRB 532, 538 n. 2 (2001), enfd. 54 F. Appx. 793 (5th Cir. 2002).

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 the recipient may refuse to comply with them. Rolligon Corp., 254 NLRB 22, 23 (1981). See also Champ Corp., 291 NLRB 803, 817 (1988), enfd. 933 F.2d 688 (9th Cir. 1990); and O.K. Machine & Tool Corp., 279 NLRB 474, 479 (1986).

In contrast, the General Counsel need not advance the standard fees upon service of a subpoena. See Zurn/NEPCO, above, citing 28 U.S.C. 1825(c). 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), enfd. 3 F. Appx. 116 (2d Cir. 2001).

However, the distance to be traveled may justify requiring that travel expenses be included with service of the subpoena by the GC. See Zurn/NEPCO, above (judge concluded that it was an “undue burden” under FRCP 45 to require an expert witness to advance his own costs for the 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's failure to tender fees to seven subpoenaed striker-discriminatees who had not been subpoenaed or called to testify by the General Counsel violated Section 8(a)(4) and (1) of the Act).

§8–150 Expert Witnesses, Required Fees and Mileage

The standard fee for witnesses does not constitute sufficient 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/NEPCO, 329 NLRB at 486–487.

§8–200 Revocation of Subpoenas

§8–205 Petition to Revoke “In Writing”

Section 102.31(b) of the Board's Rules provides that petitions to revoke “must” be filed “in writing.” However, oral motions may be permitted to avoid delay. See G.W. Truck, 240 NLRB 333 n. 1 (1979) (ALJ did not commit prejudicial error by granting the respondent's petition to revoke the General Counsel's subpoena duces tecum, notwithstanding that it was made orally rather than in writing); and Harvey Aluminum, Inc., 147 NLRB 1287 n. 1 (1964) (trial examiner did not commit prejudicial error by granting the General Counsel's oral motion to revoke the respondent's subpoenas duces tecum and ad testificandum). See also Earthgrains Co., 336 NLRB 1119, 1122 (2001), enfd. per curiam 61 F. Appx. 1 (4th Cir. 2003).

§8–210 “Within 5 Business Days” Requirement

A petition to revoke must be filed “within 5 business days after the date of service of the subpoena.” NLRB Rules and Regulations, Sec. 102.31(b). “The date of service for purposes of computing the time for filing a petition to revoke is the date the subpoena is received.” Ibid. The date of service and intermediate Saturdays, Sundays, and holidays are not counted. Sec. 102.2(a).

The petition to revoke must be received on or before the last day for filing, i.e., the postmark rule does not apply. Sec. 102.2(b). If the petition to revoke is filed prior to the hearing, it must be filed with the Regional Director, who will refer it to the administrative law judge or the Board for ruling. If the petition is filed during the hearing, it must be filed with the judge. Sec. 102.31(b).

Note that the 5-day 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) (quashing the respondent's subpoena duces tecum because the requested information was protected by the “reporter's privilege,” notwithstanding that the reporter filed his petition to revoke more than 5 days after service), enfd. mem. 172 F.3d 920 (D.C. Cir. 1998). 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, 2005 WL 850964, 2005 U.S. Dist. LEXIS 6660 (S.D. Ill. March 4, 2005) (following Lutheran Social Services with respect to documents protected by the attorney client privilege and work product doctrine). See also §8–220, below, regarding a judge's authority to revoke or modify a subpoena sua sponte.

But see Detroit Newspapers Agency, 326 NLRB 700, 751 n. 25 (1998), enf. denied on other grounds 216 F.3d 109 (D.C. Cir. 2000), where the Board, in an unpublished order, granted a special appeal during the trial and reversed a judge who refused to apply the 5-day rule because, inter alia, the subpoenaed material was covered by the attorney-client privilege. 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.” See also FTC v. GlaxoSmithKline, 202 F.R.D. 8 (D.D.C. 2001) (distinguishing Lutheran Social Services, above, on the ground that the FTC subpoena specifically stated that a petition to revoke or privilege log must be filed within 5 days); and NLRB v. Uber Technologies, Inc., 216 F.Supp.3d 1004, 1008 (N.D. Calif. 2016) (likewise distinguishing Lutheran Social Services in part because the NLRB investigative subpoena specifically stated that a petition to revoke must be filed in writing within 5 days).

§8–215 Standing to File Petition to Revoke

Parties generally have limited standing under FRCP 45 to petition to revoke subpoenas served on third parties or nonparties. See Wright & Miller et al., 9A Fed. Prac. & Proc. Civ. §2459 (June 2024 Update) (“Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.”). See also Anstead v. Virginia Mason Med. Ctr., 2022 WL 1166440, *3, 2022 U.S. Dist. LEXIS 72550 (W.D. Wash. April 20, 2022) (finding that defendant employer in employment discrimination case lacked standing to petition to revoke plaintiff's subpoenas on third-party consultants based on irrelevance, overbreadth and undue burden, but had standing to assert that certain subpoenaed documents were protected by the attorney client privilege).

However, the Board appears to distinguish between private parties and the General Counsel in applying this general rule.

Private parties. Consistent with the federal practice, the Board has held that an employer lacks standing to petition to revoke subpoenas addressed to employees and other third parties unless it has a personal right or privilege with respect to the subpoenaed documents. Red Apple 180 Myrtle Avenue Development, 29–CA–184816, unpub. Board order issued April 20, 2017 (2017 WL 1434208, 2017 NLRB LEXIS 185) (denying the employer's petition to revoke subpoenas ad testificandum addressed to employees as the employer failed to establish that it possessed any personal privacy rights to the information sought from them); and Jones & Carter, Inc., 16-CA-27969, unpub. Board order denying petition to revoke issued Oct. 20, 2011 (2011 WL 4994786, 2011 NLRB LEXIS 594), and unpub. Board order denying motion for reconsideration issued Dec. 30, 2011 (2011 WL 6936398, 2011 NLRB LEXIS 778) (holding that the employer's assertion of a contractual property interest in the services of its employees was not a legally sufficient basis to establish standing to petition to revoke subpoenas ad testificandum addressed to them).

See also Elite Ambulance, Inc., 31–CA–122353, unpub. Board order issued July 25, 2017 (2017 WL 3229278, 2017 NLRB LEXIS 380). In that case, Respondent Elite Ambulance petitioned to revoke investigative subpoenas duces tecum issued by the Region to Bank of America, N.A. The subpoenas sought bank records of the Respondent's owner and her husband to investigate whether they or other related business entities should be held personally or otherwise derivatively liable as alter egos to remedy the Respondent's backpay obligations. The Board held that the Respondent lacked standing to file the petition to revoke, as it had “failed to substantiate its assertion that it has any personal right or privilege with respect to the bank records sought, which are the personal bank records of individuals who are not parties to this proceeding and not the corporate records of Elite Ambulance, Inc.”

With respect to a union's standing to assert the rights of employee-members in opposition to a subpoena, see NLRB v. Raley's Drug Center, 1996 WL 304762, 1996 U.S. App. LEXIS 15209 (9th Cir. 1996) (unpub.) (union had standing to assert the first amendment associational rights of its employee-members in opposition to enforcement of an NLRB subpoena issued to the employer during the NLRB's investigation of a rival union's charges that the employer unlawfully assisted and recognized the union).

General Counsel. Consistent with the general federal rule, the Board has held that the General Counsel may petition to revoke a subpoena issued to a third party or nonparty where the subpoena improperly calls for production of confidential NLRB affidavits or statements. See Santa Barbara News-Press, 357 NLRB 452, 502 (2011), enf. denied on other grounds 702 F.3d 51 (D.C. Cir. 2012); and H.B. Zachry Co., 310 NLRB 1037 (1993).

The Board has also granted GC petitions to revoke third-party or nonparty subpoenas on the ground that the subpoenas seek irrelevant information or would otherwise undermine the integrity or efficacy of the Agency's proceedings. See King Soopers, Inc., 364 NLRB 1153, 1160, 1174 (2016) (granting the General Counsel's petition to revoke the respondent employer's subpoena duces tecum to the individual charging party seeking documentation of her search for work efforts and expenses, as the subpoenaed information was irrelevant at the merits stage of the proceeding), vacated in part on other grounds 859 F.3d 23 (D.C. Cir. 2017); Hoschton Garment Co., 279 NLRB 565 n. 4 (1986) (granting the General Counsel's petition to revoke the respondent employer's subpoena duces tecum to the alleged discriminatee seeking evidence whether she had obtained a leave of absence under false pretenses, as such evidence was immaterial to the issues in the case); and Modern Plastics Corp., 155 NLRB 1126, 1136 n. 17 (1965) (granting the General Counsel's petition to revoke the respondent employer's subpoena duces tecum to the charging party union's business agent seeking the collective-bargaining agreements between the union and other employers, as the subpoenaed documents were irrelevant to the issues in the case), set aside on other grounds 379 F.2d 201 (6th Cir. 1967). See also Imperial Sales, Inc., 365 NLRB No. 95, slip op. at 7 n. 2 (2017) (granting the General Counsel's motion to quash subpoenas ad testificandum served by the respondent employer on a number of employees to examine them about certain complaint amendments), enfd. 740 F. Appx. 216 (2d Cir. 2018).

Although these cited decisions do not specifically discuss standing, they are consistent with the General Counsel's broader public interests and responsibilities with respect to Agency proceedings. See Alberici-Fruin-Colnon, 226 NLRB 1315, 1316 (1976) (“Once a charge is filed, the General Counsel proceeds, not in vindication of private rights, but as the representative of an agency entrusted with the power and duty of enforcing the Act in which the public has an interest …”), enfd. 567 F.2d 833 (8th Cir. 1977); NLRB v. Laborers Local 282, 567 F.2d 833, 835–836 (8th Cir. 1977) (“Once an unfair labor practice charge is filed, the General Counsel proceeds in the public interest, not just in vindication of private rights.”); and Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720, 734 (6th Cir. 1964) (“The General Counsel, like the Board, is charged with the responsibility of representing the public interest, not that of private litigants.”).

See also Leslie ex. rel. NLRB v. Starbucks Corp., 2022 WL 7702642, 2022 U.S. Dist. LEXIS 172680 (W.D.N.Y. Sept. 23, 2022) (NLRB Regional Director had standing in 10(j) injunction proceeding to object, both on privilege grounds and on undue burden grounds under FRCP 26(c)(1), to subpoenas the respondent employer served on individual employees and union representatives).

Judge's responsibility and ruling. As standing is jurisdictional in nature, it should be raised sua sponte by the judge even if no party has raised the issue. See Jones & Carter, above. See also TMP Worldwide Advertising & Communications, LLC v. LATCareers, LLC, 2008 WL 5348180, 2008 U.S. Dist. LEXIS 104612 (W.D. Wash. Dec. 16, 2008). If standing is found lacking, the judge may deny the petition to revoke without considering the merits of the petition. See Jones & Carter, above.

Note, however, that there is court authority for construing and considering an invalid FRCP 45 petition to revoke as a motion for a protective order under FRCP 26(c) if the subpoena seeks irrelevant information. See Washington v. Thurgood Marshall Academy, 230 F.R.D. 18, 22 (D.D.C. 2005); and Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005). See also Danzy v. IATSE Local 22, 2020 WL 6887651, 2020 U.S. Dist. LEXIS 220813 (D.D.C. Nov. 23, 2020); Agilysys, Inc. v. Hall, 2018 WL 1229990 (N.D. Ga. Jan. 11, 2018); Uhler v. Van Cleave, 2017 WL 553276, 2017 U.S. Dist. LEXIS 19369 (W.D. Wash. Feb. 10, 2017); St. Clair v. Schlachter, 2016 WL 2984107, 2016 U.S. Dist. LEXIS 86100 (E.D. Cal. May 23, 2016); and Sirpal v. Fengrong Wang, 2012 WL 2880565, 2012 U.S. Dist. LEXIS 97145 (D. Md. July 12, 2012). For a discussion of protective orders, see §8–600, below.

There is also authority indicating that judges may revoke a subpoena sua sponte in some circumstances. See §8–220, below.

§8–220 Judge's Authority to Revoke Sua Sponte

Under FRCP 26(b)(2)(C), a court has authority, and in fact is required, to limit discovery on its own motion where the discovery sought is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive”; “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action”; or the proposed discovery is “outside the scope of Rule 26(b)(1),” i.e., the discovery is not limited to a “nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case …” See also Jiangmen Kinwai Furniture Decoration Co. Ltd. V. IHFC Properties, LLC, 2015 WL 5098791, *7, 2015 U.S. Dist. LEXIS 115267 (M.D. N.C. Aug. 31, 2015) (relying on the court's inherent authority to supervise discovery).

In Brink's Inc., 281 NLRB 468, 470 n.7 1986), the Board cited FRCP 26(b) as support for revoking an employer's subpoena request notwithstanding that the union failed to file a written petition to revoke that particular request as required by the Board's rules. Although the Board primarily relied on the lack of prejudice to the employer—the union orally requested to amend its petition to revoke at the hearing to include the request and the employer had an opportunity to argue against the amendment—the Board also noted that “FRCP 26(b)(1) permits a court to limit discovery ‘upon its own initiative’.”

For another Board case addressing the issue, see Electrical Energy Services, 288 NLRB 925, 931 (1988). In that case, the General Counsel served a subpoena on the respondent seeking every document that the 8(a)(5) complaint alleged the respondent had unlawfully failed to provide to the union. The respondent petitioned to revoke the subpoena, and the judge granted it on the ground that the GC was attempting to use the subpoena duces tecum as a substitute for the Board order sought by the complaint. Although the GC argued that the respondent's petition to revoke was untimely filed, the judge found it unnecessary to consider the argument, stating, “Even if the petition was not timely filed, I would, on motion of the administrative law judge, revoke the subpoena duces tecum because of the manifest improper purpose it seeks to achieve.” The GC subsequently filed exceptions to the judge's decision, but the Board affirmed the judge's rulings, findings, and conclusions.

See also Powerback Rehabilitation, 365 NLRB No. 119, slip op. at 1 n. 2, and 15 (2017), a post-election objections proceeding, where, notwithstanding the absence of a petition to revoke, the Board majority found that the acting regional director did not abuse his discretion by refusing to file a petition for court enforcement of the employer's subpoena duces tecum on the ground that it was “at best, a fishing expedition.”

§8–225 Grounds for Revoking Subpoena

Section 11(1) of the Act provides, in relevant part, that “[t]he Board … shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.”

Section 102.31(b) of the Board's Rules states that a subpoena “will” be revoked if the evidence requested “does not relate to any matter under investigation or in question in the proceedings,” the subpoena “does not describe with sufficient particularity the evidence whose production is required,” or “if for any other reason sufficient in law the subpoena is otherwise invalid.” This rule applies to subpoenas ad testificandum as well as subpoenas duces tecum. See, e.g., Elevator Constructors No. 1 (Otis Elevator), 29–CB–084077, unpub. Board order issued Aug. 29, 2014 (2014 WL 4302555, 2014 NLRB LEXIS 670), and cases cited there.

Although not binding on the Agency, the Federal Rules of Civil Procedure also provide “useful guidance” and “should be consulted.” Brink's, Inc., 281 NLRB 468 (1986) (citing FRCP 26 and 45 in quashing the employer's subpoenas in a representation case). See also Clinton Food 4 Less, 288 NLRB 597 n. 1, 618–619 (1988) (applying Brink's analysis in quashing the respondent employer's subpoena in an unfair labor practice case).

The asserted nonexistence of requested records is not grounds for revoking a subpoena. See Ironworkers Local 433, 21–CB–129959, unpub. Board order issued Feb. 4, 2015 (2015 WL 471558, 2015 NLRB LEXIS 76), at n. 2 (denying respondent union's petition to revoke, noting that “[i]f no evidence responsive to any portion of the subpoena exists, the custodian of records must provide sworn testimony to that effect, including a description of the [Respondent's] efforts to identify and locate such evidence.”). See also §8-350, Possession or Control, below.

A respondent's assertion that the Board lacks jurisdiction or that the allegations are barred by the section 10(b) statute of limitations are also not grounds for revoking a hearing subpoena, at least where Board jurisdiction is not plainly lacking or the limitations period has not clearly run. See NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995, 1002 (9th Cir. 2003). See also, with respect to investigative subpoenas, NLRB v. Bakersfield Californian, 128 F.3d 1339, 1351 (9th Cir. 1997) (10(b)); Pasha Automotive Services, 20–CA–195343, unpub. Board order issued June 22, 2018 (2018 WL 3109947, 2018 NLRB LEXIS 245) (10(b)); EEOC v. Kloster Cruise, Ltd., 939 F.2d 920, 924 (11th Cir. 1991) (jurisdiction); NLRB v. Fortune Bay Resort Casino, 688 F.Supp.2d 858 (D. Minn. 2010) (jurisdiction); Philander Smith College, 15–CA–278071, unpub. Board order issued Oct. 19, 2022 (2022 WL 11747339, 2022 NLRB LEXIS 480) (jurisdiction); and Eulen America, 12-CA-26948, unpub. Board order issued July 26, 2011 (2011 WL 3098547, 2011 NLRB LEXIS 373) (jurisdiction).

Ordinarily, the judge should not revoke a subpoena on grounds not asserted in the petition to revoke. See Postal Workers Local 64, 340 NLRB 912 (2003). In that case, the Region had issued investigative subpoenas ad testificandum to the charged union's president and vice-president, and the union had petitioned to revoke the subpoenas for certain reasons. The Board majority found that those reasons were without merit. However, the dissenting Board member argued that the testimonial subpoenas should be revoked because the Region failed to make a more specific showing that the testimony was relevant and to describe with more particularity the testimony being sought. The Board majority rejected the argument, finding, contrary to the dissent, that the petition to revoke did not sufficiently raise those issues. The majority stated that, for “both legal (procedural due process) and practical (administrative economy and efficiency) reasons,” the Board should “generally limit[] [its] review” of subpoenas “to the issues and arguments raised by the parties.” But see §8–220, above.

§8–230 Ruling on Petition to Revoke

Section 102.31(b) of the Board's Rules states that “[t]he Administrative Law Judge or the Board, as the case may be, will make a simple statement of procedural or other grounds for the ruling on the petition to revoke.” It is within the judge's discretion whether to issue the ruling orally on the record or in writing. Woodford Reserve Distillery, 373 NLRB No. 145, slip op. at 1 n. 2 (2024).

In ruling on a petition to revoke, the judge may evaluate the subpoena in light of any modifications or limitations that the subpoenaing party offers or agrees to in its opposition to the petition. See, e.g., Bannum Place of Saginaw, 7–CA–211090, unpub. Board order issued Dec. 17, 2018 (2018 WL 6628927, 2018 NLRB LEXIS 639), at 1 n. 2; and FCA US LLC, 8–CA–185825, unpub. Board order issued Oct. 31, 2017 (2017 WL 5000838, 2017 NLRB LEXIS 538), at 1 n. 3.

The ALJ's prompt ruling on the petition to revoke may assist the parties in preparing for trial and avoid subsequent delays. However, a judge's failure to rule prior to the scheduled hearing does not excuse a party from making a good faith effort to begin gathering the subpoenaed documents upon service of the subpoena and bring them to the hearing. See McAllister Towing & Transportation, 341 NLRB 394 (2004), discussed in §8–125, above. See also San Luis Trucking, 352 NLRB 211, 212 (2008), reaffd. 356 NLRB 168 (2010), enfd. 479 F. Appx. 743 (9th Cir. 2012).

In cases where a large number of documents has been subpoenaed, judges sometimes open the hearing solely to rule on pending subpoena disputes, and schedule the hearing to resume at some later date to begin receiving testimony. As indicated in §7–200, above, it is generally within the judge's discretion to require that the subpoenaed documents be produced before the resumption date in such circumstances, i.e., such an order does not violate the policy against pretrial discovery in Board proceedings. See Quickway Transportation, 09-CA-251857, unpub. Board order issued Oct. 19, 2021 (2021 WL 4893957, 2021 NLRB LEXIS 432), at 2.

§8–235 Admitting Subpoena Ruling and Related Pleadings Into the Record

Section 102.31(b) of the Board's Rules provides that the ruling on the petition to revoke, as well as the petition, opposition, and response, “will not become part of the official record except upon the request of the party aggrieved by the ruling …”

The Board's Rules do not specifically address or limit when the subpoena itself may properly be made part of the record. However, the subpoena is usually an attachment to the petition to revoke and will be admitted along with the ruling and related pleadings when the aggrieved party offers them.

The subpoena is also typically offered and admitted (along with any related pleadings and rulings, notwithstanding the restrictive language in 102.31(b)) when the party serving the subpoena contends it was not fully complied with, so the record on appellate review will include the underlying information considered by the ALJ in determining whether to issue evidentiary sanctions for the alleged noncompliance. See, e.g., Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76, slip op. at 12–13 (2021); Queen of the Valley Medical Center, 368 NLRB No. 116, slip op. at 8 n. 4, 38–40 (2019); and Shamrock Foods Co., 366 NLRB No. 117, slip op. at 15 n. 29 (2018), enfd. 779 F. Appx. 752 (D.C. Cir. 2019).

The subpoena is also sometimes offered by the subpoenaing party and admitted, along with related testimony or stipulations, to establish that no responsive documents were received and do not exist. See, e.g., Roemer Industries, Inc., 367 NLRB No. 133, slip op. at 8 (2019) (employer's failure to produce any documents in response to General Counsel subpoena seeking all communications with the union regarding its information request supported a finding that the union never received the information), enfd. 824 F. Appx. 396 (6th Cir. 2020); and Advanced Architectural Metals, 351 NLRB 1208, 1211–1212 (2007) (employer's failure to produce any documents in response to GC's subpoena seeking documents reflecting the purported sale or other transfer of the company supported a finding that employer never sold part of the company).

§8–300 Scope of Subpoenas

§8–310 Material Must Be “Reasonably Relevant”

Generally, 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. See NLRB Rules and Regulations, Sec. 102.31(b); McDonald's USA, LLC, 363 NLRB 1362, 1376 (2016); and Perdue Farms v. NLRB, 144 F.3d 830, 833–834 (D.C. Cir. 1998) (information must be “reasonably relevant”). Thus, the requesting party need not show that the subpoenaed information would itself be admissible at the hearing. NLRB v. North American Van Lines, Inc., 611 F.Supp. 760, 764–766 (N.D. Ind. 1985).

If the subpoenaed information is not reasonably relevant, the subpoena should be revoked. See UPMC, 366 NLRB No. 185, slip op. at 1 n. 3 (2018) (trial judge did not abuse his discretion in revoking respondent's subpoenas to the extent they sought information regarding the unions' motives for their campaign, as such information was not relevant to whether respondent violated the Act as alleged); Hoschton Garment Co., 279 NLRB 565 n. 4 (1986) (ALJ properly granted the General Counsel's petition to revoke the respondent employer's subpoena duces tecum to the alleged discriminatee seeking evidence whether she had obtained a leave of absence under false pretenses, as she was assertedly disciplined for violating the leave of absence by returning to the plant, not for obtaining it under false pretenses, and thus the subpoenaed evidence was immaterial to the issues in the case); *Hispanics United of Buffalo, 359 NLRB 368 (2012) (respondent's subpoena seeking various information from the alleged discriminatees, including communications among themselves, applications for and receipt of unemployment benefits, and any complaints to State or Federal agencies, was properly revoked by the judge as an unwarranted “fishing expedition” as the respondent failed to show that such information was relevant to any issue in dispute); and NLRB v. Jackson Hospital Corp., 557 F.3d 301, 305–306 (6th Cir. 2009) (ALJ did not violate respondent's due process rights in the compliance proceeding by quashing its subpoena to the extent it sought the discriminatees' personal banking and other records relating to their private financial obligations, as the employer failed to establish a reasonable suspicion to believe that the discriminatees were hiding income), enfg. 352 NLRB 194 (2008).

See also Allied Waste Services of Fall River, 01–CA–123082, unpub. Board order issued Dec. 31, 2014 (2014 WL 7429200, 2014 NLRB LEXIS 1011). In that case, the Board denied the company's petition to revoke the Region's investigative subpoena duces tecum seeking the company's employee handbook as the document was “potentially relevant” to the alleged discriminatory discharge allegation. However, the Board noted that “if the record revealed that the Region invoked our subpoena power to obtain employee handbooks or policy statements for the purpose of initiating or expanding charges or investigations, this would be an ‘improper purpose’ that would warrant revocation of the subpoena,” citing SEC v. Brigadoon Scotch Distributors, 480 F.2d 1047, 1056 (2d Cir. 1973).

With respect to employer subpoenas seeking information regarding after-acquired evidence, the immigration status of an alleged discriminatee or a witness, and collateral matters relevant to impeachment, see §§16.402.5, and 16.608.1, below.

For cases involving testimonial subpoenas, compare NP Red Rock, LLC, 28–CA–244484, unpub. Board order issued Dec. 2, 2020 (2020 WL 7075063, 2020 NLRB LEXIS 575), with Red Rock Resorts, Inc, 28-CA-228052, unpub. Board order issued Oct. 13, 2021 (2021 WL 4786766, 2021 NLRB LEXIS 421).

In NP Red Rock, the General Counsel served subpoenas ad testificandum on the respondent's top two corporate executives requiring them to appear and testify as 611(c) witnesses at the outset of the GC's case-in-chief regarding an alleged 8(a)(1) preelection grant of benefits violation. The ALJ granted the respondent's petition to revoke the subpoenas as the executives' testimony was not needed to establish a prima facie case and its relevance and probative value to rebutting the employer's defenses was speculative at that point. The judge noted that the GC could seek reconsideration of his ruling if and when the GC could show that their testimony would be relevant to any of the disputed allegations or issues and that its probative value would not be “substantially outweighed by a danger of … undue delay, wasting time, or needlessly presenting cumulative evidence” under FRE 403. The GC subsequently filed a special appeal, but the Board found that the judge's ruling was not an abuse of discretion.

However, in Red Rock Resorts, a different ALJ denied the respondents' petition to revoke the General Counsel's subpoenas ad testificandum on the same two top corporate executives requiring them to appear and testify as 611(c) witnesses in the General Counsel's case-in-chief regarding various allegations, including the respondents' alleged single-employer status. The respondents subsequently filed a special appeal, arguing, as they had to the judge, that requiring the top executives to testify was contrary to the “apex doctrine,” which requires a showing that such high-level executives have unique personal knowledge that cannot be obtained by less intrusive means. The Board, however, rejected the argument. The Board noted that, although some federal courts apply the apex doctrine in pretrial depositions, the Board has never applied it to revoke a subpoena for trial testimony or otherwise. The Board also emphasized that the respondents did not demonstrate that the subpoenas were issued to harass the executives or were unduly burdensome. The Board therefore “decline[d] to second guess the judge's significant discretion to regulate the course of the hearing and direct the creation of the record.”

§8–320 Request Must Not Be Vague or Overbroad

Vague requests. Several courts have held that subpoenas requesting all documents “relating to,” “pertaining to,” or “regarding” a general category of documents are generally too vague and do not describe with reasonable particularity what is being sought. See, e.g., Perez v. Tequila LLC, 2014 WL 5341766, 2014 U.S. Dist. LEXIS 149372 (N.D. Okla. Oct. 20, 2014), and cases cited there. See also Sack v. CIA, 53 F.Supp.3d 154, 164 (D.D.C. 2014), and cases cited there (same with respect to Freedom of Information Act requests).

For cases rejecting the argument that a subpoena duces tecum was too vague, see NLRB v. Carolina Food Processors, Inc., 81 F.3d 507, 513 (4th Cir. 1996) (General Counsel's investigative subpoena in a post-election unfair labor practice case requesting payroll documents, W-4s, and I-9s for “all bargaining unit employees” was not too vague as the unit was sufficiently identified in the parties' stipulated election agreement and the union's preelection request for recognition); NLRB v. Vista Del Sol Health Services, Inc., 40 F.Supp.3d 1238, 1265 (C.D. Cal. 2014) (General Counsel's investigative subpoena requests for (1) the company's articles and certificate of incorporation, and (2) its directors, officers, and shareholders, were not too vague as to time as the company only had one set of articles and one certificate of incorporation, and the second request was written in the present tense, indicating that only the current directors, officers, and shareholders were being requested); and SEIU United Healthcare Workers–West, 20–CG–65, unpub. Board order issued Oct. 24, 2006 (General Counsel's subpoena duces tecum was not impermissibly vague where it asked for information in language borrowed from Board cases dealing with concerted refusals to volunteer for overtime in the healthcare industry). See also Perez v. Lasership, Inc., 2015 WL 11109330, *6, 2015 U.S. Dist. LEXIS 179247 (D. Conn. Sept. 18, 2015) (rejecting the respondent's argument that DOL's subpoena was too vague and ambiguous, as respondent had identified “with precision” the specific documents that DOL was requesting numerous times in its other objections to the subpoena).

For cases addressing testimonial subpoenas, see, e.g., Postal Workers Local 64, 340 NLRB 912, 913 (2003) (subpoena ad testificandum was sufficiently specific where it identified the unfair labor practice case that the witness would testify about); and Offshore Mariners United, 338 NLRB 745 (2002) (same). Accord: Welded Construction L.P., 8–CA–190649, unpub. Board order issued June 28, 2017 (2017 WL 2830801, 2017 NLRB LEXIS 335); and Christus St. Vincent Regional Medical Center, 28-CA-149798, unpub. Board order issued Aug. 24, 2015 (2015 WL 5025387, 2015 NLRB LEXIS 631).

Overbroad requests. A subpoena may also be quashed to the extent it is overbroad, i.e., “needlessly broad” (NLRB v. Station Casinos, LLC, 2022 WL 18402549, 2022 U.S. Dist. LEXIS 236453 (D. Nev. Nov. 8, 2022) (Mag. J.), adopted 2023 WL 362668, 2023 U.S. Dist. LEXIS 10908 (D. Nev. Jan. 23, 2023), citing NLRB v. Int'l Medication Systems, 640 F.2d 1110, 1114 (9th Cir. 1981)).

See, for example, Brink's, Inc., 281 NLRB 468, 469 (1986). There, the respondent employer subpoenaed the union's meeting minutes, without limiting the request to meetings involving unit employees, and union membership lists, without specifying a time period. The Board granted the petitions to revoke those and other portions of the subpoenas that “generally were drafted without regard for the usual standards applicable to subpoenas or discovery” set forth in the Board's Rules and FRCP 26 and 45.

See also NLRB v. Fuyao Glass AM., Inc., 2018 WL 1166628, 2018 U.S. Dist. LEXIS 35544 (S.D. Ohio March 5, 2018). There, the court narrowed an NLRB investigative subpoena in a discriminatory discharge case that sought the employment records for all 800 employees working in the same department. The court held that the subpoena was overbroad because, for purposes of the NLRB's disparate treatment theory, only those employees supervised by the alleged discriminatee's supervisor, who made the discharge decision on his own without consulting HR or other managers, were “similarly situated” to the alleged discriminatee. But see Genpack, LLC, 372 NLRB No. 76, slip op. at 2 (2023) (“The fact that the disciplined employee received discipline from a different official does not, standing alone, distinguish that employee from a non-disciplined comparator.”) (citing cases).

A subpoena may also be quashed as overbroad to the extent the subpoena on its face requests privileged or otherwise protected information. See Cherokee Marine Terminal, 287 NLRB 1080, 1097 (1988); Harvey Aluminum, 156 NLRB 1353, 1365 (1966); and J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223 (5th Cir.) (quashing respondent subpoenas seeking the General Counsel's entire investigative file), and the discussion of Board agent testimony and files in §8–440, below. See also In re Horn, 976 F.2d 1314, 1318–1319 (9th Cir. 1992) (quashing a grand jury subpoena that, “on its face …clearly encompass[ed]” privileged information and placed an “unreasonable and undue burden upon the subpoenaed witness” to justify withholding documents “which the government [knew] in advance [were] beyond its reach”).

Note, however, that in Brink's, Inc., above, the Board stated that the hearing officer should not have revoked the employer's subpoena requests for all communications between the union and its law firm, even though “the possibility that some of this requested information would be privileged is clear and the subpoenas should have been drafted to minimize that possibility.” The Board stated that the hearing officer “should have conducted an in camera inspection of the documents to determine whether any of them were subject to the attorney-client privilege.” Accordingly, although the Board itself ultimately granted the petitions to partially revoke in their entirety because the challenged subpoena requests were clearly overbroad in other respects as well, the Board did so without prejudice to the employer obtaining “new subpoenas for documents that may have been excluded improperly” because of the hearing officer's ruling. See also the discussion of the procedures for handling privilege claims in §8–500, below.

Compare also NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1031 (10th Cir. 2003) (ALJ abused his discretion in summarily revoking the bulk of a subpoena respondent served on the union, as the subpoena was not “so overbroad so as to constitute a wholesale ‘fishing expedition’ meriting revocation in almost every particular”).

Over-inclusive search terms. “Search terms are an important tool parties may use to identify potentially responsive documents in cases involving substantial amounts of [electronically stored information].” Youngevity International Corp. v. Smith, 2017 WL 6541106, *10, 2017 U.S. Dist. LEXIS 210386 (S.D. Cal. Dec. 21, 2017). However, where search terms are proposed, they should not be so common that they will return too many records to review or digest. See, e.g., S.E.C. v. Waymack, 358 F.Supp.3d 56 (D.D.C. 2019) (court found that the SEC's proposed search terms were over-inclusive because they were present in every email's signature line and ordered the SEC to “craft search terms that are targeted to identify relevant documents”). The problem may be resolved by “using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level.” Government Accountability Project v. U.S. Dept. of Homeland Security, 335 F.Supp.3d 7, 13 n.3 (D.D.C. 2018) (addressing issue in the context of a FOIA request). See also §8–340, below, regarding electronically stored information.

§8–330 Burdensomeness of Production

FRCP 45(d)(3)(A)(iv) provides that, on timely motion, a court “must” quash or modify a subpoena that “subjects a person to undue burden.” The party asserting burdensomeness under this provision 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; rather, the party must show that production of the subpoenaed information “would seriously disrupt its normal business operations.” NLRB v. Carolina Food Processors, 81 F.3d 507, 513–514 (4th Cir. 1996), cited with approval in McAllister Towing & Transportation Co., 341 NLRB 394, 397 (2004), enfd. 156 F. Appx. 386 (2d Cir. 2005). See also NLRB v. Station Casinos, LLC, 2022 WL 18402549, *3, 2022 U.S. Dist. LEXIS 236453 (D. Nev. Nov. 8, 2022) (Mag. J.) (finding that respondent's claim that it had already produced thousands of documents to date in response to the General Counsel's subpoena “bel[ied] any such assertion of business disruption”) adopted 2023 WL 362668, 2023 U.S. Dist. LEXIS 10908 (D. Nev. Jan. 23, 2023).

Bare or general assertions that production would be seriously disruptive are insufficient. See NLRB v. AJD, Inc., a McDonald's Franchisee, 2015 WL 7018351, 2015 U.S. Dist. LEXIS 153370 (S.D.N.Y. Nov. 12, 2015) (whether a subpoena poses an undue burden “is typically a fact-intensive inquiry [requiring] a respondent to show that the actual costs of discovery are unreasonable in light of the particular size of the respondent's operations”; thus, the respondent franchisees' general allegations that the burden of production would be “astronomical,” that they have “virtually no” human resources to assist in production, and that production would require “countless hours” were insufficient); and NLRB v. Kava Holdings, Inc., 2017 WL 3841780, *4, 2017 U.S. Dist. LEXIS 142405 (C.D. Cal. Aug. 8, 2017) (Mag. J.) (employer's assertion that its records were archived and that many of the people who created them were gone, without any actual evidence of the difficulty it would face in locating and producing responsive documents, was insufficient to establish that the records were not reasonably available or that compliance with the Board's subpoena would disrupt or hinder its normal business operations), adopted 2017 WL 3841797 (C. D. Cal. Aug. 31, 2017). Compare NLRB v. Fuyao Glass America, Inc., 2017 WL 1276728, *2, 2017 U.S. Dist. LEXIS 52979 (S.D. Ohio April 6, 2017) (Mag. J.) (finding that the “knowledgeable and convincing” testimony of the employer's HR vice president regarding the burden of complying with the Board's subpoena warranted narrowing the subpoena “at least at the present time.”), adopted 2018 WL 1166628, 2018 U.S. Dist. LEXIS 35544 (S.D. Ohio March 5, 2018).

The burdensomeness of production may also be grounds for revoking or limiting a subpoena under the following balancing test set forth in FRCP 26(b)(1):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The following are examples of common issues that arise relating to the burden of production. See also §8–340, below, regarding electronically stored information.

Marginally relevant information. Where subpoenaed information is only marginally relevant, other factors may weigh in favor of quashing the subpoena. See, e.g., Aladdin Gaming, LLC, 345 NLRB 585, 588 (2005) (judge did not abuse his discretion in quashing the charging party union's subpoena given that the “marginal relevance” of the subpoenaed employer customer-contact information did not outweigh “the substantial privacy and business interests involved”), rev. denied 515 F.3d 942 (9th Cir. 2008). See also NLRB v. Detroit Newspapers, 185 F.3d 602, 605 (6th Cir. 1999) (“'this court's task is to weigh the likely relevance of the requested material to the investigation against the burden … of producing the material’”) (citation omitted).

Documents previously provided. The General Counsel may sometimes subpoena documents for hearing, even though they were already received from the respondent during the investigation, for purposes of authentication. See §16–901.5, Documents Obtained From Opposing Party, below. A stipulation as to authenticity may resolve the matter. Cf. Meharry Medical College, 10-CA-314858, unpub. Board order issued Sep. 17, 2024 (2024 WL 4229692) at 1, n. 2; McDonald's Corp., 372 NLRB No. 82, slip op. at 1 n. 2 (2023); and FCA US LLC, 8–CA–185825, unpub. Board order issued Oct. 31, 2017 (2017 WL 5000838, 2017 NLRB LEXIS 538,), at 1 n. 4 (holding, with respect to investigatory subpoenas, that the respondent is not required to produce the same documents it already voluntarily provided to the General Counsel, but it must accurately describe the documents that were previously provided and state whether those documents constitute all the documents being subpoenaed).

With respect to subpoena requests for records that are similar but not identical to those previously provided, see Binstock ex rel. NLRB v. Midwest Terminals of Toledo Int'l, 2019 WL 950104,*2, 2019 U.S. Dist. LEXIS 31302 (N.D. Ohio Feb. 27, 2019) (ruling that the respondent company could not avoid the Agency's investigative subpoena by claiming it previously produced documents that were “nearly identical,” “functionally equivalent,” or “substantially the same.”)

Cumulative or duplicative requests. FRCP 26(b)(2)(C)(i) states that a court “must” limit the frequency or extent of discovery if it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” In McDonald's USA, LLC, 363 NLRB 1929 n. 2, 1932 (2016), the Board found that the trial judge did not abuse her discretion in applying this provision, along with FRCP 45(d)(3)(A)(iv), to quash subpoenas duces tecum McDonald's had served on several nonparties seeking information that was materially identical to information sought in its subpoenas served on parties.

Similarly, in Nissan North America, 15–CA–171184, unpub. Board order issued Nov. 2, 2016 (2016 WL 6562347, 2016 NLRB LEXIS 805), the Board granted a nonparty's petition to revoke the Regional Director's investigative subpoena duces tecum, as the same information had been subpoenaed from the charged parties, which did not face the potential burden described by the nonparty. The Board did so, however, without prejudice to issuance of another subpoena to the nonparty in the event the Regional Director determined that the information is not available from the parties. See also *Duncan & Son Lines, 28–CA–079700, unpub. Board order issued Sept. 5, 2012 (2012 WL 3862635, 2012 NLRB LEXIS 569), at 1 n. 2 (employer was not required to produce “all” documents where the additional documents would be cumulative or duplicative).

The mere possibility that the requested information may be available from other sources, however, is not a basis to quash a subpoena. Bakery Workers, 21–CA–171340, unpub. Board order issued Aug. 3, 2016 (2016 WL 4141212, 2016 NLRB LEXIS 565). In that case, the Region's investigative subpoena requested commerce information, and the employer argued that the Region could and should get the information from other sources. The Board rejected the argument, stating, “[T]he possibility that the requested information may be available from other sources is not a basis to quash a subpoena, as the requested documents may be necessary to corroborate or supplement the investigative file.”

Requests to organize produced documents. As a general matter, a responding party may be required to organize its production in accordance with the subpoena duces tecum's definitions and instructions. See Starbucks Corp., 19-CA-297589, unpub. Board order issued Feb. 8, 2024 (2024 WL 519030, 2024 NLRB LEXIS 60) (finding that the ALJ did not abuse her discretion by ordering the respondent to do so).

Requests to compile evidence. A subpoena may also require a party to search for requested information in its possession and compile that information into document form for submission. Bruner Corp., 9–CA–148668, unpub. Board order issued Nov. 12, 2015 (2015 WL 7074669, 2015 NLRB LEXIS 836). For example, courts have held that, subject to the provisions of FRCP 26(b)(2) (discussed in §8–340, below), a party may be required to query an existing electronic database to produce reports in document form. See, e.g., North Shore-Long Island Jewish Health Systems, Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 51 (E.D.N.Y. 2018) (“Courts regularly require parties to produce reports from dynamic databases, holding that the technical burden of creating a new dataset for litigation does not excuse production.”) (internal quotations omitted), and cases cited there. Courts have also held that an employer may be required to compile requested information by examining files or other tangible items or by interviewing supervisors and other employees. See EEOC v. Maryland Cup Corp., 785 F.2d 471, 478–479 (4th Cir.) (EEOC, like the NLRB, has authority to subpoena “any evidence” and thus could require the company to inspect photo identification badges and interview supervisors and other employees to ascertain the race of former employees); and EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993) (EEOC had authority to require company to compile summaries regarding its promotion policies by examining personnel files or interviewing employees), and additional cases cited there.

Information regarding methodology of document search. A subpoena may require the subpoenaed party to be prepared to provide information regarding the manner or methodology of its search for requested documents. See Starbucks Coffee Co., 1–CA–177856, unpub. Board order issued May 19, 2017 (2017 WL 2241023, 2017 NLRB LEXIS 268), at 1 n. 1 (denying the employer's petition to revoke the Region's request, in its cover letter to the investigatory subpoena, that the employer “should be prepared” to provide information regarding the methodology of its electronic search for subpoenaed emails, including whose email was searched, what mailboxes, folders, archives, and document management systems were searched, and what search software and/or terms were used).

As discussed in §8-225, above, if a respondent asserts that subpoenaed documents do not exist, the ALJ may direct that it produce the custodian(s) of record who performed the search(es) for the subpoenaed documents to testify. See also Starbucks Corp., 372 NLRB No. 147 (2023) (ALJ did not abuse her discretion by ordering respondent to make available the custodian(s) of record who had performed its search for documents to testify regarding that issue to the extent that respondent contended that the subpoenaed documents did not exist); and Starbucks Corp., 9-CA-300652, unpub. Board order issued Dec.12, 2023 (2023 WL 8715751), at 1 (same).

§8–340 Electronically Stored Information (ESI)

Two common issues that arise with respect to electronically stored information (ESI) are: 1) the accessibility of the requested ESI; and 2) the format for production of the ESI.

1) Accessibility of Requested ESI

FRCP 26(b)(2)(B) states:

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).

Rule 26(b)(2)(C) states that, on a party's motion or on its own, a court “must” limit the frequency or extent of discovery if: (i) the discovery sought is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,” … or (iii) “the proposed discovery is outside the scope permitted by Rule 26(b)(1)” [which, as discussed above, sets forth a balancing test]. See also FRCP 45(e)(1)(D) (containing same provisions as 26(b)(2)(B)).

In UPMC, 366 NLRB No. 185, slip op. at 1 n. 3 (2018), the Board held that the judge did not abuse his discretion by revoking, as unduly burdensome, the respondent's subpoenas duces tecum issued to the charging party union and certain current and former employees and union organizers to the extent the subpoenas asked for all electronically stored information. The Board held that the judge properly relied on the factors set forth in the Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Second Edition (June 2007). Consistent with the most recent amendments to FRCP 26, the current, third edition of the Sedona Principles states as follows:

When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(1) and its state equivalents, which requires consideration of the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

19 Sedona Conf. J. 1, 32, 35–36, 65 (2018).

With respect to requests for production of emails, see, Healthbridge Management, LLC, 34–CA–12715, unpub. Board order issued Oct. 18, 2011 (2011 WL 4955613, 2011 NLRB LEXIS 591). In that case, the respondent contended that the judge improperly denied its petition to revoke in part a General Counsel subpoena seeking various communications, including emails. The respondent contended that compliance with the subpoena would require thousands of dollars and several months to retrieve and search email backup tapes for previously deleted emails. Granting the appeal in part, the Board directed the respondents

to provide all responsive documents and communications available without resort to analysis of the email backup tapes, subject to the … General Counsel having the opportunity to persuade the judge that an additional search is necessary and the Respondent having the opportunity to demonstrate that it would be unduly burdensome.

The Board has issued similar orders in several other cases. See, e.g., Somerset Valley, 22–CA–29599, unpub. Board order issued June 23, 2011 (2011 WL 2515543, 2011 NLRB LEXIS 317).

For a further discussion of backup tapes and other sources of ESI that may be considered “not reasonably accessible” under FRCP 26(b)(2)(B), see Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 301–308 (S.D.N.Y. 2012) (discussing how technological accessibility is addressed in the Advisory Committee Notes and the Sedona Principles, above). See also 5 Weinstein's Federal Evidence §900.04[3] (2021).

2) Format for Production of ESI

FRCP 34(b)(2)(E) states:

Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

An issue that frequently arises is whether ESI should be produced in its original or “native” format (with or without associated metadata) or some other common format, such as a Tagged Image File Format (TIFF) or Adobe Portable Document Format (PDF). Each format may have advantages or disadvantages depending on the type of document (emails, spreadsheets, audio/video files, PowerPoints, etc.) and the needs and/or resources of the requesting and producing parties. See the Sedona Principles, 19 Sedona Conf. J., at 169–186.

In Starbucks Corp., 19-CA-297589, the Board found that the ALJ did not abuse her discretion by requiring respondent to produce ESI in native form or in both TIFF+ and PDF format. See unpub. Board order issued Feb. 8, 2024 (2024 WL 519030, 2024 NLRB LEXIS 60). As discussed in §7–200, above, the ALJ may alternatively order that, if a respondent elects to produce subpoenaed ESI in a format that would not be “reasonably usable” by the requesting party without further processing, the ALJ may direct that the ESI be produced sufficiently in advance of the hearing so that it can be processed and rendered “reasonably useable” by the start of the hearing. See Starbucks Corp., 372 NLRB No. 147 (2023).

3) Use of Technology Assisted Review (TAR)

A respondent may also be required to notify the General Counsel whether it intends to use Technology Assisted Review (TAR), and, if so, for what classifications of documents or ESI. See Starbucks Corp., 19-CA-297589, above.

§8–350 Possession or Control

Section 102.31(a) of the Board's Rules provides that the Board shall, on written application of any party, issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence “in their possession or under their control.” See also FRCP 45(a)(1)(A) (providing for issuance of subpoenas requiring production of documents in a person's “possession, custody, or control”). The subpoenaed party is required to conduct “a reasonable and diligent search” for all requested evidence within its possession or control, and to “affirmatively” represent to the subpoenaing party if no responsive evidence exists. Micross Components, 1-CA-323838, unpub. Board order issued June 6, 2024 (2024 WL 2880096), at 1, fn. 3; Consolidated Waste Services Corp., 12–CA–192990, unpub. Board order issued May 24, 2018 (2018 WL 2387581, 2018 NLRB LEXIS 759), at 1 n. 2 (investigative subpoena); and Winthrop Management, 29–CA–188433, unpub. Board order issued Feb. 8, 2018 (2018 WL 834316, 2018 NLRB LEXIS 80), at 1 n. 2.

An employer's production obligation “extends not only to information in its immediate possession, but also to information that it could obtain from other persons or companies.” Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76, slip op. at 13 (2021), citing Clear Channel Outdoor, Inc., 346 NLRB 696, 702 n. 10 (2006) (“In responding to a subpoena, an individual is required to produce documents not only in [the individual's] possession, but any documents that [the individual] had a legal right to obtain.”). For example, an employer may be required to produce information that is within the same corporate organization. Cascades Containerboard, above (drawing adverse inference from respondent's failure to substantiate that it either searched its own records or sought unsuccessfully to obtain them from its parent corporation, the holding company, or some other part of the respondent's organization). It may also be required to produce communications by its supervisors or managers using company equipment in the course of conducting company business. See Consolidated Waste Services Corp., above.

With respect to business communications by supervisors and managers using their personal equipment or accounts, see Starbucks Corp., 9-CA-300652, unpub. Board order issued Dec. 12, 2023 (2023 WL 8715751), at 1-2. There, the ALJ ruled that, if the employer's managers, supervisors, and agents conducted company business on their personal cell phones, emails, or social media accounts, the employer had control over those communications and had to produce them, citing, e.g., Miramontes v. Peraton, Inc., 2023 WL 3855603, *11–12, 2023 U.S. Dist. LEXIS 98024 (N.D. Tex. 2023) (finding that the company had control over text messages between a supervisor and a manager that were contained on the supervisor's personal cell phone, as the company did not provide its employees with cell phones and they regularly conducted business on their personal cell phones). The employer filed a special appeal, but the Board found that the ALJ's ruling was not an abuse of discretion. Compare Consolidated Waste Services, above (noting that if communications by managers and supervisors were made “using strictly personal equipment or accounts that were not within the [e]mployer's control,” the employer was required to request the information and advise the Region if the supervisors and managers declined to provide it, whereupon the Region could seek the information directly from the managers and supervisors).

An employer may likewise be required in certain circumstances to request subpoenaed information that is not in its possession or control from subcontractors or vendors. If the request is denied, the employer must affirmatively represent this fact. See KMAC, Inc., 18–CA–185912, unpub. Board order issued Dec. 22, 2017 (2017 NLRB LEXIS 651, 2017 WL 6555202), at 1 n. 2 (subcontractors); and Taylor Farms Pacific, 32–CA–116854, unpub. Board order issued Feb. 6, 2015 (2015 NLRB LEXIS 83, 2015 WL 514108) (vendors). See also Winthrop Management, above (documents from “persons or companies directly or indirectly employed by or connected with” the employer); and Platinum Services Commercial Building Maintenance, Inc., 20–CA–224943, unpub. Board order issued June 25, 2019 (2019 NLRB LEXIS 364, 2019 WL 2644153) (documents from one of three named companies that allegedly constituted a single employer and/or alter egos, which the other two companies asserted “no longer exists”).

As discussed in §8-720, below, where a dispute arises over whether there has been full compliance with a subpoena, the judge may require the subpoenaed party to describe its efforts to comply, including whether it sought to obtain the subpoenaed documents from another person or company. However, the burden is generally on the party subpoenaing the documents to establish the subpoenaed party's right to obtain the documents from another person or company. See, e.g., U.S. v. Petroleum and Industrial Workers, 870 F.2d 1450,1452 (9th Cir. 1989); and Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143, 147 (S.D.N.Y. 2011) (citing cases).

§8–400 Privileged or Protected Material

As indicated in §8-320, above, a subpoena may be quashed to the extent the subpoena, on its face, seeks privileged material. The following sections apply where the subpoena has not been revoked, but the subpoenaed party asserts that one or more of the documents responsive to the subpoena contain privileged material. For additional, in-depth analyses of attorney-client and work-product issues, see Rice et al., Attorney-Client Privilege in the U.S. (Dec. 2023 Update); Gergacz, Attorney-Corporate Client Privilege (March 2024 Update); Greenwald, Schrantz, and Slachetka, Testimonial Privileges (3d ed. Feb. 2023 Update); and 2 Moore's Manual—Federal Practice and Procedure §15.03 (2023).

§8–405 Attorney-Client Privilege

“The Board recognizes the fundamental principle that communications made in confidence between an attorney and [the attorney's] client for the purpose of seeking and obtaining legal advice are privileged.” Smithfield Packing Co., 344 NLRB 1, 13 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006). This includes “both the communications which provided that advice and the communications that flowed from client to attorney as a basis for generating the advice.” Patrick Cudahy, 288 NLRB 968, 971 (1988), quoting Upjohn Corp. v. U.S., 449 U.S. 383, 390 (1981) (“the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice”).

A concise summary of the privilege is set forth in U.S. v. United Shoe Machinery Corp., 89 F.Supp. 357, 358–359 (D. Mass. 1950), which the Board cited with approval in Patrick Cudahy:

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 [the member's] 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 [the attorney's] 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.

The burden is on the party asserting the privilege to establish that it applies. See, e.g., EEOC v. BDO USA, LLP, 876 F.3d 690, 695 (5th Cir. 2017); U.S. v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009); U.S. v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996): U.S. v. White, 950 F.2d 426, 430 (7th Cir. 1991); and In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984). “Ambiguities as to whether the elements of a privilege claim have been met are construed against the proponent.” EEOC v. BDO, above. The privilege is interpreted narrowly because otherwise the factfinder would not be presented with relevant evidence. Ibid. But see §8–410, below, discussing the privilege and collective-bargaining records. See also §8-510, Privilege Logs, below.

Regarding communications from the attorney to the client, courts are divided on whether such communications are protected (1) only if they would reveal a confidential communication from the client; (2) only if they are based in significant part on a confidential communication from the client; or (3) irrespective of their relationship to any communications from the client. See Wright & Miller et al., 24 Fed. Prac. & Proc. Evid. §5491 (1st ed. June 2024 Update) (collecting cases). It appears that the Board has not directly addressed this issue.

Substance of communications. The privilege applies only to testimony or evidence that reveals the substance of communications to or from an attorney or the attorney's subordinate. For example, the privilege would normally apply to communications that reveal the client's motive in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law. However, it normally would not apply to the mere existence of an attorney-client relationship, including the identity of the client, the amount of the fee, and the general purpose of the work performed. See Clarke v. American Commerce National Bank, 974 F.2d 127, 129 (9th Cir. 1992), cited with approval in Benedictine Health Center, 18–CA–196456, unpub. Board order issued Dec. 27, 2017 (2017 WL 6728886), at 1 n. 1.

The privilege also would not normally apply to the mere fact that an attorney-client meeting or communication occurred about a general subject matter. See Rice et al., 1 Attorney-Client Privilege in the U.S. §6:22 (Dec. 2023 Update); Robinson v. Wells Fargo Bank, N.A., 2018 WL 1202826, *4, 2018 U.S. Dist. LEXIS 37311 (S.D. Ohio March 7, 2018); and Davine v. Golub Corp., 2017 WL 517749, *5, 2017 U.S. Dist. LEXIS 17815 (D. Mass. Feb. 8, 2017), and cases cited there. See also U.S. v. Carillo, 16 F.3d 1046, 1050 (9th Cir. 1994) and Ferrand v. Schedler, 2012 WL 3016219, *6–7, 2012 U.S. Dist. LEXIS 101597 (E.D. La. July 23, 2012) (questioning opposing party witnesses about whether and when they met with and discussed their testimony with the party attorney before testifying does not violate the attorney-client privilege, as coaching is a proper subject of impeachment in cross-examination and such questions do not require the witnesses to disclose the substance or content of the communication).

Likewise, the privilege normally would not apply if the communication was not to or from an attorney and did not reveal the attorney's advice. Thus, in Smithfield Packing, above, the Board held that the privilege did not apply to a supervisor's testimony about what her managers instructed her to do during a union campaign—notwithstanding the employer's argument that the instructions may have resulted from privileged communications between the manager and the employer's attorney—because the supervisor's “testimony pertained only to her instructions from her management superiors, not to any communications to or from counsel.” 344 NLRB at 12 n. 57.

However, courts have held that communications among corporate employees who are non-lawyers may be privileged in certain circumstances. See, e.g., EEOC v. George Washington Univ., 342 F.R.D. 161, 171 (D.D.C. 2022) (“communications among corporate employees who are not attorneys are entitled to protection if the purpose of those communications was to marshal facts for counsel to use in rendering legal advice”), citing, e.g., Santrade, Ltd. v. General Electric Co., 150 F.R.D. 539, 545 (E.D. N.C. 1993) (“a document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds …. [D]ocuments subject to the privilege may be transmitted between non-attorneys (especially individuals involved in corporate decision-making) so that the corporation may be properly informed of legal advice and act appropriately”). See also Swartwood v. County of San Diego, 2013 WL 6670545, *9, 2013 U.S. Dist. LEXIS 177774 (S.D. Cal. Dec. 18, 2013) (text of email circulated among defendant county's employees was properly redacted as privileged because it mentioned the county's attorney and repeated her legal advice to the county).

Communications vs. facts. The privilege applies only to communications and not to facts. Witnesses may not refuse to disclose facts within their own knowledge simply because they incorporated those facts into a communication with their attorney. Sunland Construction Co., 311 NLRB 685, 699–700 (1993), quoting from Upjohn, above, 449 U.S. at 396–397. Nor is factual information privileged merely because it was uncovered by the company while conducting an analysis at the direction of its attorney. See In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992). See also Patrick Cudahy, 288 NLRB at 971 n. 13 (“It is communication between attorney and client related to the giving of legal advice that is privileged—not simply documents that pass between them. Thus, nonprivileged documents—e.g., ordinary corporate records such as payroll or personnel records—cannot be swept within the privilege simply by being transmitted from client to attorney or vice versa.”).

With respect to internal reports containing factual information, see B.P. Exploration, Inc., 337 NLRB 887, 889 (2002) (Board held that the attorney-client privilege applied to safety reports because an attorney directed that the reports be created to provide legal advice regarding compliance with safety regulations and handling of citations; however, the Board emphasized that it was the reports, not the underlying information, that the union sought); and Borgess Medical Center, 342 NLRB 1105, 1106 n. 5 (2004) (privilege did not apply to incident reports sought by union in connection with arbitration proceeding because they were not prepared by or with participation of attorney).

Outside vs. in-house attorneys. Consistent with at least some courts, the Board appears to apply a rebuttable presumption that company communications with an outside attorney are for the purpose of legal advice. See Patrick Cudahy, 288 NLRB at 970. In that case, the respondent company asserted that certain documents subpoenaed by the General Counsel were privileged communications with the law firm it had hired to assist and give legal advice regarding contract negotiations with the union. In finding that the documents were privileged, the Board stated, “We start from the principle that ‘a matter committed to a professional legal adviser is prima facie so committed for the sake of legal advice … for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.’ 8 Wigmore, Evidence §2296 (McNaughton rev. 1961) (emphasis original).”

See also Diversified Industries v. Meredith, 572 F.2d 596, 610 (8th Cir. 1978) (en banc), also cited in Patrick Cudahy (“Here the matter was committed to Wilmer, Cutler & Pickering, a professional legal adviser. Thus, it was prima facie committed for the sake of legal advice and was, therefore, within the privilege absent a clear showing to the contrary.”); U.S. v. Chevron Texaco Corp., 241 F.Supp.2d 1065, 1073 (N.D. Calif. 2002) (“Communications between a client and its outside counsel are presumed to be made for the purpose of obtaining legal advice”), citing Diversified Industries, above, and U.S. v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (“If a person hires a lawyer for advice, there is a rebuttable presumption that the lawyer is hired ‘as such’ to give ‘legal advice,’ whether the subject of the advice is criminal or civil, business, tort, domestic relations, or anything else.”); and Wells Fargo Bank, N.A. v. ANC Vista I, LLC, 2016 WL 3774124, 2016 U.S. Dist. LEXIS 91515 (D. Nev. July 14, 2016) (same).

However, courts generally do not apply such a presumption to communications with an in-house attorney, at least not where the in-house attorney also has a nonlegal position or nonlegal responsibilities with the company. See, e.g., Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987) (communications with attorney serving as vice president and director of employee relations not privileged where attorney was not functioning primarily as in-house counsel). See also Rice et al., 1 Attorney-Client Privilege in the U.S. §7:1 (Dec. 2023 Update) (“[T]he unstated operating presumption in situations involving outside retained counsel with limited responsibilities to the client … does not apply to in-house counsel because of the many nonlegal responsibilities in-house counsel assumes (whether given a separate position and title or not).”). Courts have held that such communications are privileged only upon a clear showing that the in-house attorney participated in a professional legal capacity. Ibid, citing, e.g., In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (company could shelter former vice president/general counsel's advice “only upon a clear showing that he gave it in a professional legal capacity”). See also U.S. v. Chevron Texaco Corp., above, 241 F.Supp.2d at 1076; and Boca Investerings Partnership v. U.S., 31 F.Supp.2d 9, 11–12 (D.D.C. 1998). But see In re Google, Inc., 462 F. Appx. 975, 978 (Fed. Cir. 2012) (same “clear showing” must be made even if the in-house attorney did not have distinct nonlegal responsibilities).

If a communication to or from an in-house attorney may have both a legal and a business purpose, the courts generally apply a “primary purpose” test. As formulated by the D.C. Circuit, a communication is protected under this test if obtaining or providing legal advice was “a primary purpose of the communication, meaning one of the significant purposes of the communication.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759–760 (D.C. Cir. 2014) (rejecting the strict “but for” test applied by the district court). See also Pitkin v. Corizon Health, Inc., 2017 WL 6496565, *3–4, 2017 U.S. Dist. LEXIS 208058 (D. Or. Dec. 18, 2017); and In re General Motors LLC Ignition Switch Litigation, 80 F.Supp.3d 521, 530 (S.D.N.Y. Jan. 15, 2015) (adopting and applying the D.C. Circuit's analysis).

Thus, for example, an email will not become privileged simply because in-house counsel was copied (cc'd) on it. See, e.g., Uban 8 Fox Lake Corp. v. Nationwide Affordable Housing Fund 4, LLC, 334 F.R.D. 149, 161 (N.D. Ill. 2020); and Minebea Co. v. Pabst, 228 F.R.D. 13, 21 (D.D.C. 2005). See also Slocum v. International Paper Co., 549 F.Supp.3d 519, 524 (E.D. La. June 28, 2021). Likewise, the presence of in-house counsel at a meeting at which a discharge decision was made will not privilege communications generated and distributed at the meeting, where its primary purpose was business and the legal advice was merely incidental. Neuder v. Battelle Pacific Northwest National Lab., 194 F.R.D. 289, 293 (D.D.C. 2000).

For a Board case involving communications with in-house counsel, see Adams & Associates, Inc., 363 NLRB 1923 (2016), enfd. 871 F.3d 358 (5th Cir. 2017). An issue in that case was whether the respondent company was motivated by anti-union animus in failing to hire several of its predecessor's employees. The ALJ found that it was, based in part on an email that the company's CEO had sent to two company HR executives, and other communications between the HR executives, indicating the CEO's displeasure that the transition team had failed to avoid a successorship bargaining obligation with the union. Although both HR executives were attorneys and one had a dual role as the company's general counsel, after reviewing the communications in camera the ALJ ruled that the communications were not privileged because they pertained principally to human resources or labor relations and not to legal advice. The Board affirmed the ALJ (see nn. 5 and 15 of the Board's opinion), and the court likewise agreed with the ALJ's determination after independently reviewing the communications (871 F.3d at 370 n. 3).

See also National Football League, 309 NLRB 78, 97 (1992). A primary issue in that case was whether the NFL unlawfully discriminated against strikers by requiring them to report to work by Wednesday to be eligible to play the following weekend. In an effort to prove unlawful motivation, the General Counsel subpoenaed the minutes or notes taken by the Management Council's general counsel/assistant executive director, James Conway, at strike-strategy meetings. The Management Council moved to quash the subpoena on the ground that Conway's notes were privileged. However, after reviewing the notes in camera, the judge denied the motion, finding that the notes primarily reflected discussions of purely business matters, did not include Conway's mental impressions, and were taken as part of Conway's administrative functions as assistant executive director rather than as general counsel. The Management Council filed a special appeal of the judge's ruling, but the Board denied it.

Current and former employees. Another potential issue involves whether communications between an employer's attorney and a current or former employee of the employer constitute privileged attorney-client communications. The Supreme Court in Upjohn, above, held that the privilege applies to communications from corporate employees to the corporation's attorneys, regardless of the employee's corporate position, if “the communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.” 449 U.S. at 394.

Courts have since held that the privilege also extends to former employees, provided the communication relates to the former employee's conduct and knowledge gained during employment and is relevant and necessary for the attorney to provide advice to the corporation. See In re Allen, 106 F.3d 582, 605–606 (4th Cir. 1997); Admiral Insurance Co. v. U.S. District Court for the District of Arizona, 881 F.2d 1486, 1493 n. 6 (9th Cir. 1989); see also Vegnani v. Medlogix, LLC, 2020 WL 5634349, *2, 2020 U.S. Dist LEXIS 172300 (D. Mass. Sept. 21, 2020); MF Global Holdings Ltd. v. PricewaterhouseCoopers LLP, 232 F.Supp.3d 558, 569 (S.D.N.Y. 2017); and Hanover Insurance Co. v. Plaquenmines Parish Government, 304 F.R.D. 494, 498 (E.D. La. 2015), and cases cited there. See also Douglas R. Richmond, The Attorney-Client Privilege and Former Employees, 70 Catholic Univ. L. Rev. 39 (2021).

The burden is on the party asserting the privilege to establish that the requirements are met. See Sunbelt Rentals, Inc., 372 NLRB No. 24, slip op. at 18, n. 43 (2022) (finding that the privilege did not apply to prehearing discussions between employer's attorney and employee she intended to call as a witness because (1) the attorney never filed a notice of appearance on behalf of the employee; (2) as reflected in Upjohn, above, a company's attorney typically does not represent employees questioned in preparing for litigation on behalf of the company; and (3) the “vague discussions on the record fail[ed] to establish that the communications were privileged”).

Note that the Board has established certain safeguards in situations where an employer's attorney (or other agent) interviews current employees regarding protected activity in preparation for an unfair labor practice hearing. In such circumstances, the employer's attorney must communicate to the employees the purpose of the questioning, assure the employees that no reprisal will be taken against them, and obtain the employees' participation on a voluntary basis. Johnnie's Poultry Co., 146 NLRB 770, 774–775 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). See also Sunbelt Rentals, above (reaffirming and adhering to Johnnie's Poultry and finding that the respondent employer violated Section 8(a)(1) of the Act by failing to provide the required assurances.)

Third-party consultants and contractors. Communications with third-party consultants and contractors may also be privileged in certain circumstances. See, e.g., B.P. Exploration, Inc., 337 NLRB at 889 (finding that a communication between employer's attorney and company consultants—specifically, asking them to do a walk-around of the facility and identify the exposure the employer was facing in a lawsuit—“clearly was communication between attorney and client to obtain information necessary to provide adequate legal advice”).

See also Monterey Bay Military Housing, LLC v. Ambac Assurance Corp., 2023 WL 315072, *9, 2023 U.S. Dist. LEXIS 9646 (S.D.N.Y. Jan. 19, 2023) and cases cited there (discussing the so-called “functional equivalent” doctrine applied by some courts, which holds that communications between a company's attorney and a consultant are protected by the attorney-client privilege where the consultant serves as a de facto employee of the company and possesses the information needed by the attorney in rendering legal advice).

Charging parties and alleged discriminatees. It is unclear whether the Board recognizes communications between the General Counsel and individual charging parties or alleged discriminatees as protected by the attorney-client privilege. However, such communications may arguably be privileged on the ground that the GC is their “de facto” attorney. See, e.g., Donovan v. Teamsters Local 25, 103 F.R.D. 550 (D. Mass. 1984) (rejecting the defendant union's contention that the complaining witness in an action by the Department of Labor against the union under the LMRDA was not a true client of DOL's legal staff, as his sole legal recourse was through DOL and he accepted DOL's legal staff as his own lawyers in the case). Alternatively, the communications may be protected from disclosure under the “common interest” doctrine. See, e.g., U.S. v. Gumbaytay, 276 F.R.D. 671 (M.D. Ala. 2011) (attorney-client privilege protected communications between alleged victims of housing discrimination and government counsel who brought the discrimination action against the defendant on their behalf under the Fair Housing Act, as the alleged victims and the government had a common legal interest). See also §8–415, Waiver of Attorney-Client Privilege, below, for a further discussion of the common interest doctrine.

Grievants. “It is well established, as a matter of law, that an attorney handling a labor grievance on behalf of a union does not enter into an ‘attorney-client’ relationship with the union member asserting the grievance.” Gwin v. National Marine Engineers Beneficial Assoc., 966 F.Supp. 4, 7 (D.D.C. 1997), affd. per curiam 159 F.3d 636 (D.C. Cir. 1998). Nevertheless, communications between a grievant and the union's attorney may be protected from disclosure under the “de facto” attorney or “common interest” doctrines discussed above. See also Cook Paint and Varnish Co., 258 NLRB 1230 (1981) (employer violated 8(a)(1) by demanding, prior to an arbitration hearing over an employee's discharge, that the union steward disclose the substance of his conversations with the discharged employee and to produce his notes about the matter, as the union steward had the conversations with the employee and took the notes in his representational capacity, and compelling disclosure would “manifestly restrain[] employees in their willingness to candidly discuss matters with their chosen, statutory representatives”); and Bell v. Village of Streamwood, 806 F.Supp.2d 1052 (N. D. Ill. 2011) (finding that a union representative's role in disciplinary proceedings is “not unlike that of an attorney,” and that an “employee-union representative privilege” should therefore be recognized and applied with respect to communications between a union representative and a union member in such proceedings to the same extent and with the same limitations as the attorney-client privilege).

With respect to communications between employees and their union other than during the course of grievance/disciplinary proceedings, see §§8–455 (identity of union supporters) and 8–460 (collective-bargaining information), below.

§8–410 The Privilege and Collective-Bargaining and Business Records

Citing “labor law policy reasons,” the Board in Patrick Cudahy, 288 NLRB 968, 971 (1988), indicated that it would apply the attorney-client privilege broadly to communications relating to collective-bargaining. The complaint in that case alleged, inter alia, that the respondents violated the Act by refusing to bargain in good faith over a successor agreement with the union, and by entering negotiations with a fixed intent not to reach agreement in order to cause a strike, hire strike replacements, and displace the union as a viable bargaining agent. The General Counsel subpoenaed various records from the respondents, including bargaining notes, proposals, letters, memoranda, and strategies. Respondents petitioned to revoke the subpoenas to the extent they sought privileged attorney-client communications between the company and the law firm it hired to provide assistance and advice regarding the contract negotiations. Based on an in camera inspection of the subject documents, the ALJ denied the petition to revoke, concluding that the work the law firm was employed for and performed was more in the nature of affording business assistance than rendering legal advice. The Board, however, reversed. The Board recognized that “the process of collective bargaining invites the contribution of legal advice at all of its stages,” and that “labor attorneys often advise an employer or a union in contract negotiations and may even serve as the party's chief negotiators.” It also noted that “if collective bargaining is to work, the parties must be able to formulate their positions and devise their strategies without fear of exposure” (quoting Berbiglia, Inc., 233 NLRB 1476, 1495 (1977), discussed in §8–460, below). It therefore held that, “when the legal advice relates to collective bargaining, we will not readily and broadly exclude attorney-client communications from the privilege on the ground that business and economic considerations are also present.”

See also Taylor Lumber & Treating, Inc., 326 NLRB 1298 n. 2 (1998) (holding that the privilege applied to confidential communications between respondent's chief negotiator and members of respondent's management control group because he was also engaged by respondent to provide legal services in connection with other employment relations matters).

However, as indicated in §8–405, above, the Board in Patrick Cudahy made clear that “nonprivileged documents—e.g., ordinary corporate records such as payroll or personnel records—cannot be swept within the privilege simply by being transmitted from client to attorney or vice versa.” 288 NLRB at 971 n. 13.

Further, the Board did not address whether notes of exchanges in bargaining sessions with other parties are protected if they are not intermingled with privileged communications. Ibid (“We are not considering notes recording the exchanges in a bargaining session with other parties except in one instance where such notes are intermingled with privileged communications.”). For cases addressing this issue see §8–460, Collective Bargaining Information, below.

Finally, the Board emphasized that the analysis may be different in other, non-collective-bargaining situations. See 288 NLRB at 971 n. 12 (“In cases involving other types of unfair labor practices, when policy considerations such as those noted here are not involved, the analysis of the relationship of legal advice to business decisions and actions may be different and it may not necessarily result in as broad an application of the privilege as here.”) For example, a narrower or stricter analysis typically applied by the courts may be warranted in 8(a)(3) cases where the communication relates to an employer's antiunion campaign strategy rather than legal advice. See, e.g., Adams & Associates, Inc., 363 NLRB 1923 (2016), enfd. 871 F.3d 358 (5th Cir. 2017); and National Football League, 309 NLRB 78, 97 (1992), discussed in §8–405, above. See also Humphreys, Hutcheson & Moseley v. Donovan, 568 F.Supp. 161, 175 (M.D. Tenn. 1983) (privilege was not applicable to communications between attorney and company where attorney acted as a labor consultant to persuade the company's employees to reject the union, rather than as a lawyer), affd. 755 F.2d 1211 (6th Cir. 1985).

§8–415 Waiver of Attorney-Client Privilege

Generally, disclosing a privileged communication to a third person who is not acting as an agent of either the client or the client's attorney waives the privilege. U.S. v. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997). The majority of courts appear to hold that the party asserting the privilege has the burden of proving nonwaiver where the opponent alleges that the privilege has been lost by disclosure. 3 Weinstein's Federal Evidence §§503.20[4][a] and 900.04[2][f] (2021); 2 Moore's Manual–Federal Practice and Procedure §15.03[6][c] (2023); and Gergacz, Attorney-Corporate Client Privilege §5:13 (March 2024 Update).

In the corporate or organizational context, waiver may occur if dissemination of the communication was not limited to those with a reasonable need to know its contents, or if the corporation or organization failed to take reasonable steps to preserve confidentiality. See Gergacz, above, §5:48; Mueller and Kirkpatrick, 2 Federal Evidence §5:34 (4th ed. Aug. 2023 Update); and Greenwald, Schrantz and Slachetka, 1 Testimonial Privileges §1:83 (3d ed. Feb. 2023 Update). See also, with respect to communications in the presence of union officers or members, Jenkins v. Bartlett, 487 F.3d 482, 490–491 (7th Cir. 2007) (presence of a union officer during the conversations between an employee and the attorney appointed by the union to represent the employee did not waive the privilege as the union officer was present to assist the attorney), and Miller v. York Risk Services Group, 2014 WL 11514550, *3 (D. Ariz. July 22, 2014) (presence of at least five union members who were not plaintiffs at a pre-litigation union meeting with plaintiffs' counsel waived the privilege).

For a waiver to occur, however, the substance of the privileged communication must have been disclosed to the third person. See Western United Life Assurance Co. v. Fifth Third Bank, 2004 WL 2583916, *4, 2004 U.S. Dist. LEXIS 23073 (N. D. Ill. Nov. 12, 2004) (disclosure of the mere fact that a conversation between attorney and client occurred and the topic of the conversation did not disclose any privileged information and therefore did not constitute a waiver).

Further, courts have recognized a so-called “common interest” or “joint defense” exception to waiver where the disclosure was made in confidence to a third person having a common legal interest in furtherance of that interest. See Parts Depot, Inc., 332 NLRB 670, 677 (2000), enfd. 24 F. Appx. 1 (D.C. Cir. 2001), and NLRB v. Jackson Hospital Corp., 257 F.R.D. 302, 312–313 (D.D.C. 2009) (doctrine applies to communications between the charging party union and the General Counsel). See also Schaeffler v. U.S., 806 F.3d 34, 40–41 (2d Cir. 2015); and U.S. v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007).

With respect to intentional and unintentional disclosures in a federal proceeding or to a federal agency, see FRE 502, which is discussed more fully in §16-502, below. With respect to waiver by failing to furnish an adequate privilege log, see §8–510, below.

Once waived, the attorney-client privilege is lost in all forums for proceedings running concurrent with or after the waiver occurs. See Wal-Mart Stores, 348 NLRB 833, 834 (2006). In that case, the Board held 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 after the hearing closed and while the case was pending before the Board on the General Counsel's exceptions to the ALJ's decision. The Board therefore remanded the case to the ALJ to reopen the record to receive and evaluate the evidence.

§8–420 Crime/Fraud Exception to Attorney-Client Privilege

Attorney-client communications in furtherance of crimes or frauds are not protected by the attorney-client 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 Smithfield Packing Co., 344 NLRB 1, 14 n. 60 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006), discussed more fully below, where the Board rejected respondent's argument that the General Counsel failed to satisfy this burden of proof. See also 3 Weinstein's Federal Evidence §503.31 [4][a] (2021) (listing cases by circuit). The Ninth Circuit, however, has held that in civil cases “the party seeking disclosure must prove the crime-fraud exception applies by a preponderance of the evidence, meaning ‘the relevant facts must be shown to be more likely than not.’” Eastman v. Thompson, 594 F.Supp.3d 1156, 1196 (C.D. Cal. 2022), quoting Napster, Inc. Copyright Litigation, 479 F.3d 1078, 1094–95 (9th Cir. 2007), abrogated on other grounds by Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).

The Board has declined to apply the crime/fraud exception to attorney-client communications in furtherance of unfair labor practices. Patrick Cudahy, Inc., 288 NLRB 968, 972–974 (1988).

However, in Smithfield Packing, above, the Board held that the crime/fraud exception applied to otherwise privileged communications regarding the preparation of false affidavits about alleged unfair labor practices. In that case, a former manager for the respondent was called by the General Counsel to testify about the reasons why two employees were terminated. On cross-examination, the respondent introduced affidavits the manager had previously provided to its attorney that contradicted her testimony. The manager acknowledged signing the affidavits under penalty of perjury but testified that they were untrue. After further exchanges, the judge asked the manager if she was aware that the affidavits were false when she signed them. She replied that she was. The judge then asked if there were any communications between her and the respondent's attorney at the time indicating that the attorney was aware the affidavits were untrue. She replied that the attorney was aware of the false statements; that she told him they were incorrect, but he said she needed to make the statements as they appeared. She also testified that the final copies of the affidavits prepared by the attorney included statements that she never made.

Affirming the judge, the Board found that the communications between the manager and respondent's attorney were within the crime/fraud exception because “even assuming” they were privileged, “[the manager's] credited testimony indicates that the communications pertained to the alleged preparation of false affidavits and therefore involved the alleged future commission of one or more … crimes” (perjury, subornation of perjury, and knowing introduction of false statements of material fact). In support, the Board cited White v. American Airlines, 915 F.2d 1414, 1423–1424 (10th Cir. 1990) (applying crime/fraud exception under Oklahoma law to the employer's outside counsel's request that employee commit perjury in deposition). 344 NLRB at 13–14.

The Board also rejected respondent's contention that the judge should have considered the evidence “in camera” before permitting the manager's testimony on the record. The Board noted that the assertedly privileged evidence was testimony rather than documents and the finder of fact was a judge rather than a jury. Id. at n. 60. See also §8-520, In Camera Inspection, below.

§8–425 Duration of Attorney-Client Privilege

In Swidler & Berlin v. U.S., 524 U.S. 399 (1998), the Supreme Court held that the attorney-client privilege survives the death of a client. “The weight of authority, however, holds that a dissolved or defunct corporation retains no privilege.” SEC v. Carrillo Huettel LLP, 2015 WL 1610282, 2015 U.S. Dist. LEXIS 37462 (S.D.N.Y. 2015) (citing cases). Moreover, those courts “hold[ing] that the privilege survives the dissolution of a corporation generally do so on the basis of state [privilege] law,” id., which is not recognized in Board proceedings. See §8–475, State Confidentiality Rules, below.

§8–430 Work Product Doctrine

The work-product doctrine protects documents and tangible things 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 FRCP 26(b)(3) (Trial Preparation: Materials).

The burden is on the party asserting the work product doctrine to establish that it applies. 2 Moore's Manual–Federal Practice and Procedure §15.03[7] (2023). See also Public Service Co. of New Mexico, 364 NLRB 1017, 1019 (2016). Specifically, the party must show that the materials were prepared or obtained because of the prospect of litigation, rather than in the ordinary course of business, i.e., they would not have been prepared but for the “fairly foreseeable” prospect of litigation. See Central Telephone Company of Texas, 343 NLRB 987, 988 (2004) (finding that the privilege applied, and that the union was not entitled to notes taken by the respondent's HR specialist while investigating alleged misconduct that later became the subject of a grievance, as the investigation was directed by in-house 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). Compare Ascension Borgess Hospital, 372 NLRB No. 86, slip op. at 1 n. 1, and 9 (2023) (reaching opposite conclusion where investigation of employee misconduct was routine and conducted in a manner similar to all other such investigations, notwithstanding that the documents were labeled “confidential—prepared at the direction of legal counsel”).

With respect to whether witness statements or affidavits constitute protected work product, there appears to be a split among the courts regarding both unsigned draft affidavits and signed affidavits. The majority or more recent view appears to be that an unsigned draft statement or affidavit is protected work product, but a signed statement or affidavit is not and must therefore be produced on request even before the witness testifies. See Innovation Ventures, LLC v. Aspen Fitness Products, Inc., 2014 WL 2763645, *3, 2014 U.S. Dist. LEXIS 82706 (E.D. Mich. June 18, 2014) (unsigned draft affidavits): and Diaz v. Devlin, 327 F.R.D. 26, 29–32 (D. Mass. Aug. 28, 2018) (signed affidavits). But see Bell v. Lackawanna County, 892 F.Supp.2d 647, 661 (M.D. Pa. 2012) (distinguishing between signed third-party affidavits and signed party affidavits, holding that the latter constitute protected work product). However, a signed statement or affidavit may be protected from disclosure before the witness testifies for other reasons. See §§8–445 and 16–613.1, below, regarding Jencks Statements.

Unlike the attorney-client privilege, the work product doctrine includes a substantial need/undue burden exception. FRCP 26(b)(3)(A)(ii) provides that work product may be discovered “if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

For Board cases addressing this exception, see Central Telephone Company of Texas, above (union failed to meet its burden with respect to the respondent's investigative notes 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) (respondent failed to show substantial need for a copy of the position statement submitted by the charging party to the General Counsel in support of its charge during the investigation).

Further, even if the substantial need/undue burden showing is made, the judge may only require disclosure of so-called “fact work product”. Rule 26(b)(3)(B) requires the judge to protect against disclosure of the “mental impressions, conclusion, opinions, or legal theories of a parties' attorney or other representative concerning the litigation.” Thus, so-called “opinion work product” is “virtually undiscoverable.” United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 315 F.R.D. 103, 108–109 (D.D.C. 2016). See also 2 Moore's Manual–Federal Practice and Procedure, above.

§8–435 Waiver of Work Product Protection

Like the attorney-client privilege, work product protection may be waived by disclosure to third parties. See §8–415, Waiver of Attorney-Client Privilege, above. However, there are important differences. For example, there is no waiver of work product protection unless the third party was an adversary or the document was shared or disclosed in a manner that would materially increase the likelihood of disclosure to an adversary. See Anstead v. Virginia Mason Med. Ctr., 2023 WL 2541003, *4, 2023 U.S. Dist. LEXIS 44770 (W.D. Wash. 2023); Miller UK Ltd. v. Caterpillar, Inc., 17 F.Supp.3d 711, 735–736 (N.D. Ill. 2014); and Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 448 (S.D.N.Y. 1995). See also N.Y. Times Co. v. U.S. Dep't of Justice, 939 F.3d 479, 494 (2d Cir. 2019) (“A party waives the work product protection by taking actions inconsistent with its purpose, such as disclosing work product to its adversary, or by placing privileged documents ‘at issue’ in a litigation.”) (citations omitted).

Thus, unlike with the attorney-client privilege, the third party need not have a common legal interest with the party claiming work product protection to avoid waiver; a common business interest may be sufficient. See Miller UK Ltd., above; Pecover v. Electronic Arts, Inc., 2011 WL 6020412, 2011 U.S. Dist. LEXIS 138926 (N.D. Cal. Dec. 2, 2011); and Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 229 F.R.D. 441, 447 (S.D.N.Y. 2004), and cases cited there.

As with the attorney-client privilege, the courts do not appear uniform in assigning the burden of proof. Some courts hold that the party asserting work-product protection has the burden of proving nonwaiver. See, e.g., Pfizer, Inc. v. Regor Therapeutics, Inc., 2023 WL 1766419, *4, 2023 U.S. Dist. LEXIS 18898 (D. Conn. Feb. 3, 2023) (“Attorney-client privilege and work product claimants bear the burden of showing that they have not waived the protection”) (citing cases). However, other courts place the burden on the party seeking disclosure of work product to prove waiver. See, e.g., Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 379 (5th Cir. 2010); and Miller UK Ltd., 17 F.Supp.3d at 737.

For a Board case addressing waiver of work product protection, see Ralphs Grocery Co., 352 NLRB 128, 129 (2008), reaffd. 355 NLRB 1279 (2010) (limited waiver respondent executed in a federal criminal proceeding did not waive work product protection as to certain audit information as there was no evidence that the audit information was requested or inquired into by the U.S. Attorney).

With respect to position statements, compare Kaiser Aluminum, 339 NLRB 829 (2003) (charging party does not waive work product protection by giving position statement to the General Counsel); with Evergreen America Corp., 348 NLRB 178, 187 (2006) (contrary rule applies where respondent submits position statement to the General Counsel). See also §16–801.3, Admission or Statement by Opposing Party.

For a discussion of waiver of work-product protection as a result of intentional and inadvertent disclosures in a federal proceeding or to a federal agency, see FRE 502, which is discussed in §16–502, below. With respect to waiver by failing to furnish an adequate privilege log, see §8–510, below.

§8–440 Board Agent Testimony and Files

A respondent may not subpoena and obtain documents in the Regional Office's investigative files without the written consent of the General Counsel. See Section 102.118(a) of the Board's Rules, which states that, except as provided under the Board's Freedom of Information Act (FOIA) regulations (Sec. 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 GC (if the documents are in a Regional Office or in Washington, D.C. under the GC's control).

The Board has held that a respondent likewise may not “circumvent this rule by subpoenaing material from a party that it could not obtain from the General Counsel.” Logmet, LLC, 9-CA-247369, unpub. Board order issued April 26, 2021 (2021 WL 1814994, 2021 NLRB LEXIS 155), at 1. In that case, the respondent served virtually identical subpoenas duces tecum on both the Regional Director and the charging party union seeking a variety of materials that “support and/or evidence” the complaint allegations. The ALJ quashed both subpoenas to the extent they sought production of prehearing affidavits before the witness had testified, citing H.B. Zachry, 310 NLRB 1037 (1993) (discussed in §8–445 below regarding Jencks statements). However, the ALJ required the GC and the union to produce a variety of other subpoenaed materials, including correspondence, emails, text messages, and recordings, provided the materials did not disclose the identity of employees or their identifying information was redacted prior to production and the materials were not claimed to be privileged. Both the GC and the union thereafter filed special appeals and the Board reversed the ALJ's order to the extent it required production of these materials. Citing Rule 102.118(a) and H.B. Zachry, the Board held that, absent the GC's consent, neither the GC nor the union could be required to produce any of the subpoenaed materials. Accordingly, the Board directed that the subpoenas be revoked.

Pursuant to Section 102.118(b), the GC's written consent must also be given for a respondent or other party to subpoena an Agency employee or agent to testify. See also Laidlaw Transit, Inc., 327 NLRB 315, 316 (1998) (“[T]o avoid the appearance of partiality, the Board has a strong and longstanding policy against Board employees appearing as witnesses in Board proceedings. Special application must be made to the General Counsel in order for a Board agent to take the stand.”); and Sunol Valley Golf Co., 305 NLRB 493, 495 (1991) (Board “balanc[ed] the policy reasons for not involving Board employees as witnesses in Board litigation against the Respondent's mere speculation” about what the Board field examiner may have done, found that “the balance weigh[ed] against requiring the agent to testify,” and therefore quashed the respondent's subpoenas), supplemented by 310 NLRB 357, 365, 368 nn. 7 and 8 (1993), enfd. 48 F.3d 444 (9th Cir. 1995). See also §16–611.5, Failure to Call Witness: Adverse Inference, below.

The failure of the party serving the subpoena to seek and obtain written consent under Section 102.118 is grounds for revoking or quashing the subpoena. See, e.g., Howard Johnson Co., 250 NLRB 1412 n. 2 (1980), enfd. mem. 671 F.2d 1383 (11th Cir. 1982); and J.C. Penney Co., 205 NLRB 1043, 1044 (1973), enfd. mem. 493 F.2d 1400 (3d Cir. 1974).

§8–445 Jencks Statements

A Jencks “statement” or affidavit given by a potential witness to the General Counsel is not subject to production by subpoena in advance of the hearing. The Board's longstanding rule is that such statements or affidavits are producible only after the witness has testified and for use on cross-examination of the witness. See Sec. 102.118(e) of the Board's Rules; and Wendt Corp., 369 NLRB No. 135, slip op. at 1 n. 1 (2020) (citing cases), enfd. in part 26 F.4th 1002 (D.C. Cir. 2022).

This is true even if a copy of the statement was previously provided to the charging party union. See H. B. Zachry Co., 310 NLRB 1037, 1037–1038 (1993) (quashing the respondent employer's subpoena on the union to the extent it requested affidavits of non-testifying job applicants/alleged discriminatees in its possession that were taken by the General Counsel during the investigation of the case), citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236–242 (1978) (prehearing disclosure of statements given to the Board during the investigation by potential witnesses “would interfere with enforcement proceedings” within the meaning of exemption 7(A) of FOIA, given the danger of witness intimidation or harassment, the risk that potential witnesses will be reluctant to give statements absent assurances against disclosure unless called to testify, and the possibility that the respondent could construct defenses to the alleged violations).

For the origin of the rule, see Jencks v. U.S., 353 U.S. 657, 662 (1957). See also §16–613.1, Jencks Statements, below, for a more detailed discussion of such statements.

§8–450 Audio/Video Recordings

An audio or video recording of a conversation or incident is not a Jencks “statement” subject to Section 102.118(e) of the Board's Rules because it is “not a description of a past event” but part of the substantive event itself. See Leisure Knoll Assn., 327 NLRB 470 n. 1 (1999) (tape recordings and transcripts of conversations between a supervisor and an employee); and Dickens, Inc., 355 NLRB 255 n. 7 (2010) (tape recordings of incidents occurring in the employer's facility), citing with approval Delta Mechanical, Inc., 323 NLRB 76, 77 (1997).

However, such recordings may be subject to production pursuant to a subpoena. If the recording is in the sole possession of the General Counsel, a written request must be made pursuant to Section 102.118(a). See Gallup, Inc., 349 NLRB 1213, 1218 (2007). In that case, the respondent served a subpoena for any recordings on the alleged discriminatee (Snyder), but he did not produce a recording because he had given it to the GC during the investigation. The GC also refused to produce the recording pursuant to either the respondent's subpoena on Snyder or the Jencks rule (as the recordings were not “statements” under that rule). The judge ruled that production was required pursuant to the subpoena, stating that to do otherwise “would permit a party to hide evidence, in advance of any subpoena, by depositing it with his lawyer,” and that requiring respondent to serve the GC with a subpoena and file a 102.118(a) request would be “nothing more than an exercise in wasting time.” On special appeal, however, the Board reversed and held that the respondent was required to request the GC's consent to produce the recording under Section 102.118(a). See also §8–440, Board Agent Testimony and Files, above.

For a discussion of the admissibility and authentication of recordings in NLRB proceedings, see §16–402.7 and §16–901.2, below.

§8–455 Identity of Union Supporters (Authorization Cards)

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 “potential chilling effect” on union activity. National Telephone Directory Corp., 319 NLRB 420, 421–422 (1995) (judge erred in ordering production of the names of employees who signed authorization cards and attended union meetings, as the confidentiality interests of such employees outweighed respondent's need to obtain their identity for cross-examination and credibility impeachment purposes and could only be waived by the employees themselves).

See also Pain Relief Centers, P.A., 371 NLRB No. 143, slip op. at 2 (2022) (employer violated 8(a)(1) by requesting in a state court proceeding documents the discriminatees submitted to the General Counsel in a prior unfair labor practice case, the identity of all persons with whom the discriminatee discussed the NLRB case, all the facts alleged to support a violation of the Act, and all persons whom the discriminatee had contacted about serving as a witness in the NLRB case); Chino Valley Medical Center, 362 NLRB 283 n. 1 (2015) (employer violated 8(a)(1) by issuing subpoenas duces tecum to employees encompassing communications between employees and the union, union authorization and membership cards, and all documents relating to the distribution and/or solicitation of union authorization cards), enfd. sub nom. United Nurses Associations of California v. NLRB, 871 F.3d 767 (9th Cir. 2017); Guess?, Inc., 339 NLRB 432 (2003) (employer violated 8(a)(1) by asking an employee during a deposition in a workers' compensation case to reveal the identities of other employees who attended union meetings); and Wright Electric, Inc., 327 NLRB 1194 (1999) (employer violated 8(a)(1) by subpoenaing employee authorization cards in a state court lawsuit), enfd. 200 F.3d. 1162, 1167 (8th Cir. 2000).

The Board has applied the same rule to other types of materials that might reveal protected employee conduct. See Starbucks Corp., 373 NLRB No. 101, slip op. at 7 (2024) (finding that employer violated 8(a)(1) by serving two employees with subpoenas seeking information about employees' union activities, including their recordings of meetings about their union organizing, communications between employees, and related documents); Sheraton Anchorage, 19-CA-32148 et al., unpub. Board order issued Jan. 21, 2011 (granting the union's special appeal and quashing a respondent subpoena that sought all forms indicating that employees wanted continued representation by the union, notwithstanding that the General Counsel had introduced a few of them for impeachment purposes); and Trump Ruffin Commercial, LLC, 28–RC–153650, unpub. Board order issued July 28, 2016 (2016 WL 4036983, 2016 NLRB LEXIS 553) (affirming the hearing officer's ruling revoking the employer's subpoena, which requested “any and all photographs or records” in the petitioning union's possession relating to the employer's election objections, as production of such materials “could expose employee conduct protected by Section 7 of the Act that the Employer could not lawfully have photographed itself,” and the material was “not probative of [the Employer's] specific objections” to the election).

Note that the D.C. Circuit has generally upheld the Board's protection of such materials. See Veritas Health Services, Inc. v. NLRB, 671 F.3d 1267, 1274 (D.C. Cir. 2012) (citing National Telephone in holding that the ALJ did not abuse her discretion in redacting some documents and limiting certain testimony to protect the names of registered nurses who had contacted the union).

§8–460 Collective-Bargaining Information

Communications between the union and employees. The Board has held that employer subpoenas broadly requesting a union's records, including communications between the union and its members, are properly revoked to protect the bargaining process. See Berbiglia, Inc., 233 NLRB 1476, 1495 (1977). In that case, the General Counsel alleged that the respondent employer had violated Section 8(a)(3) of the Act by failing to properly reinstate employees following an unfair labor practice strike. Hoping to show that the strike, which occurred following failed contract negotiations, was an economic rather than unfair labor practice strike, the employer served a subpoena duces tecum on the union seeking a wide-ranging examination of the union's records, including communications between the union and its members and with other unions, persons, associations or organizations in correspondence or in meetings, that related to or tended to show the reasons for a strike. The ALJ, however, revoked the subpoena, stating:

[R]equiring the Union to open its files to Respondent would be inconsistent with and subversive of the very essence of collective bargaining and the quasi-fiduciary relationship between a union and its members. If collective bargaining is to work, the parties must be able to formulate their positions and devise their strategies without fear of exposure.

The employer thereafter filed exceptions, but the Board summarily affirmed the ALJ's rulings.

See also Hooks ex. rel. NLRB v. Hood River Distillers, Inc., 2021 WL 3732751, 2021 U.S. Dist. LEXIS 160342 (D. Ore. Mar. 30, 2021). There, the respondent employer subpoenaed the charging party union in the 10(j) injunction proceeding for its communications with its members regarding bargaining plans and issues, strike and picketing plans, and the employer's last and final offer. Applying the Board's Berbiglia doctrine, the district court found the documents privileged. The court also rejected the employer's argument that the union had waived that privilege by submitting to the Agency's regional office statements “describing some general communications” between itself and its members.

Note, however, that some courts have generally declined to recognize a broad “union relations” privilege covering communications between union members and their union other than during the course of disciplinary proceedings. See Leslie ex. rel. NLRB v. Starbucks Corp., 2022 WL 7702642, 2022 U.S. Dist. LEXIS 172680 (W.D.N.Y. Sept. 23, 2022) (denying, in a 10(j) injunction proceeding, the General Counsel's and the union's petitions to revoke the respondent's subpoenas based on the union-employee privilege, noting that “the Second Circuit does not recognize a union-employee privilege—at least not in this context”), citing Hernandez v. Office of the Commissioner of Baseball, 331 F.R.D. 474, 478 (S.D.N.Y. 2019) (requiring plaintiff in Title VII action to produce subpoenaed communications between him and his union as there were no disciplinary proceedings instituted against him), and cases cited there. Compare cases involving communications between grievants and their union discussed in §8–405, above.

For example, in Ozark Automotive Distributors, Inc. v. NLRB, the D.C. Circuit held that the hearing officer in a postelection proceeding involving the employer's election objections improperly revoked the employer's subpoena to the extent it sought communications between certain prounion employees and the union. The court held that because the subpoenaed communications were relevant to the employer's case (i.e., to whether the employees had actual or apparent authority to act on the union's behalf) and to the credibility of an employee witness for the union, the hearing officer should not have revoked the subpoena in its entirety. Rather, she should have required production of responsive information that did not infringe on any confidentiality interests under National Telephone (such as the mere date and time of calls between the union and the employee) and should have conducted an in camera review to determine if other responsive information that might infringe on employee confidentiality interests outweighed the employer's interests or to narrow the scope of the subpoena. 779 F.3d 576, 581–582 (D.C. Cir. 2015), denying enf. and remanding 357 NLRB 1041 (2011). See also Veritas Health Services, Inc. v. NLRB, 895 F.3d 69, 81 (D.C. Cir. 2018) (Ozark found that quashing the subpoena was an abuse of discretion “because the missing evidence prejudiced a critical element of that case”).

Bargaining notes and summaries. Parties frequently offer their own bargaining notes into evidence to support their respective positions regarding what occurred during negotiations. See, e.g., Hilton Anchorage, 370 NLRB No. 83 (2021), enfd. 2022 WL 3010171, 2022 U.S. App. LEXIS 210099, (9th Cir. July 29, 2022); and First Hospital Wyoming Valley, 370 NLRB No. 17 (2020). See also the cases cited in §16–803.1 and 16–803.6, below, regarding the hearsay exceptions for present sense impressions and records of regularly conducted activity.

However, following Berbiglia, the Board has limited the ability of employers and unions to subpoena or request each other's bargaining notes and summaries. See Champ Corp., 291 NLRB 803, 817–818 (1988) (revoking employer's subpoena that broadly sought all union notes, memoranda, transcripts, records or other writings describing or recording collective-bargaining negotiation sessions between the parties to show that a strike was not prolonged by the employer's alleged unfair labor practices), enfd. without addressing the subpoena issue 933 F.2d 688 (9th Cir. 1990); and Stericycle, Inc., 370 NLRB No. 89, slip op. at 1 nn. 5 and 6 (2021) (employer lawfully refused to provide the union with requested bargaining notes regarding certain provisions of the collective-bargaining agreement, as Berbiglia “support[s] the proposition that bargaining notes are generally privileged,” and “it is irrelevant whether an employer or a union requests or subpoenas the bargaining notes.”). See also Boise Cascade Corp., 279 NLRB 422, 432 (1986), where the ALJ found that the employer lawfully refused to comply with the union's request for a report that included a historical overview of the employer's negotiations with the union and the employer's negotiating strategy, as “[a] proper bargaining relationship between the parties mandates that [the employer] be able to confidentially evaluate possible interpretations of the existing labor agreement and … to plan in confidence a strategy for altering or changing” a particular program). Although no exceptions were filed to the ALJ's finding, the Board later cited that finding as support for its decision in Stericycle, above.

Note again, however, that this view appears not to have been embraced by the courts. See Chicago Bridge and Iron Company, N.V. v. Fairbanks Joint Crafts Council, AFL-CIO, 2019 WL 2579627, 2019 U.S. Dist. LEXIS 105600 (D. Alaska June 23, 2019) (declining, in a proceeding to determine pension obligations under a collective-bargaining agreement, to recognize a “labor relations privilege” and ordering the respondent union to produce notes and correspondence from its bargaining files that it had redacted or withheld from the employer), and other court cases cited there.

As discussed in §8–410, above, the Board has also applied Berbiglia in quashing a General Counsel subpoena to the extent it sought collective-bargaining information the respondent asserted was protected by the attorney-client privilege, including bargaining notes that were intermingled with such privileged communications. See Patrick Cudahy, Inc., 288 NLRB 968, 969–971 (1988).

However, courts have ordered disclosure of collective-bargaining information to the GC where no attorney-client privilege was asserted, holding that any concerns about maintaining confidentiality could be addressed by a protective order. See NLRB v. SEIU Local 521, 2008 WL 152176, 2008 U.S. Dist. LEXIS 3308 (N.D. Cal. Jan. 16, 2008) (court enforced GC investigative subpoena notwithstanding that the subpoenaed documents might incidentally contain information about the respondents' bargaining strategies, distinguishing Berbiglia and Champ on the ground that they involved employer subpoenas, the respondents had failed to explain or demonstrate how negotiations would be compromised if such information were disclosed to the Board, and any confidentiality concerns could be addressed by a protective order); and NLRB v. Jackson Hospital Corp., 257 F.R.D. 302 (D.D.C. 2009) (citing SEIU Local 521, the special master in a contempt proceeding rejected the respondent employer's assertion that it was privileged to withhold from the GC documents revealing bargaining strategy, and ordered the respondent to produce the subpoenaed documents to the GC subject to a protective order prohibiting disclosure of the bargaining-strategy information to the union).

See also ExxonMobil Corp., Beaumont Refinery, 16–CA–276089, unpub. Board order issued Dec. 11, 2023 (2023 WL 8715745, 2023 NLRB LEXIS 579). Citing the above court decisions, the ALJ ruled that the General Counsel was not prohibited from introducing into evidence certain internal company notes containing a historical overview and impressions by the company's in-house attorney and two managers regarding recently completed contract negotiations and a related lockout and decertification campaign. The ALJ distinguished Berbiglia and Patrick Cudahy on the grounds that the notes were not subpoenaed by the union but were inadvertently posted by a manager and subsequently discovered by an Exxon employee on the company intranet; the company failed to establish that the notes constituted privileged communications or protected work product; and there were no significant confidentiality concerns regarding disclosure of the notes to the union as the employee had already provided the notes to the union. The company filed a special appeal of the ALJ's ruling, but the Board denied it, without prejudice to renewing the objections in exceptions to the ALJ's decision, on the grounds that the company had “failed to establish that the judge abused his discretion or that his rulings cannot be appropriately addressed at a later state of the proceeding.” The Board also noted that, “to the extent the Respondent is concerned about the impact of disclosure of the interview notes on future negotiations with different parties, it can seek a protective order.”

With respect to whether the General Counsel in an 8(a)(5) or 8(b)(3) refusal-to-provide-information case may subpoena the same information that the respondent employer or union allegedly refused to provide, see Electrical Energy Services, 288 NLRB 925, 931 (1988) (GC's hearing subpoena seeking each and every document the respondent employer had allegedly unlawfully refused to provide to the union was “improper” and “an abuse of the subpoena power”). See also National Nurses Organizing Committee (Corpus Christi Medical Center), 371 NLRB No. 132, slip op. at 7, n. 17 (2022). The complaint in that case alleged that the union had violated Section 8(b)(1)(A) of the Act during a decertification campaign by failing to provide the individual charging party with a “neutrality agreement” between the union and the employer. Prior to the hearing, the charging party served a subpoena on the employer seeking the same agreement. The Board found that the judge did not err in failing to review the document in camera or require its production. Citing Electrical Energy Services, the Board stated that it would be improper for the charging party to use a subpoena as a substitute for a Board order requiring disclosure of the information that was allegedly unlawfully withheld. The Board noted that, while the agreement might be the best evidence of its contents, it was “far from the only evidence that could be probative of whether it affects employee's terms and conditions of employment.” The Board therefore rejected the GC's argument that “[t]he Board should hold that in a request for information case, whether it be … against an employer or a union, [Electrical Energy Services, Inc.] does not prohibit subpoena production of the at-issue document where the existence and substance of the document is highly relevant to a central, indeed dispositive issue, as in this case.”

Compare Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76, slip op. at 12 n. 19 (2021) (distinguishing Electrical Energy Services and denying respondent's petition to revoke the GC's subpoena where the subpoenaed information was relevant to the complaint allegations that the respondent discriminatorily and unilaterally reduced employees' profit-sharing payments in violation of Sec. 8(a)(3) and (5) of the Act).

§8–465 Mediator's Privilege

A party may not compel a mediator to testify in Board proceedings. Success Village Apartments, Inc., 347 NLRB 1065 (2006); NLRB v. Joseph Macaluso, Inc., 618 F.2d 51 (9th Cir. 1980). Thus, a subpoena requiring a mediator to testify must be quashed.

§8–470 Reporter's Privilege

Consistent with many courts that have addressed the issue, the Board recognizes a “qualified” privilege for reporters or journalists which balances the need for the subpoenaed information against the interests favoring nondisclosure. See M. J. Mechanical Services, 324 NLRB 812, 832 (1997) (granting reporter's petition to revoke the respondent's subpoena duces tecum seeking his notes and records relating to an article on the union's salting campaign at the respondent's work sites, as the remarks attributed to the persons in the article were either substantially admitted or not particularly relevant, the subpoena appeared to be simply a “fishing expedition” for any other unpublished statements that might help respondent's defense, and the respondent's need for the information therefore did not overcome the qualified reporter's privilege), enfd. mem. 172 F.3d 920 (D.C. Cir. 1998); and Valley Camp Coal Co., 265 NLRB 1683 (1982) (denying newspaper editor's petition to revoke the General Counsel's subpoena ad testificandum seeking her testimony regarding certain statements she had attributed to the respondent's owner explaining his decision to close a mine, as there was no absolute reporter's privilege not to appear and testify in a judicial proceeding, the subject article did not involve a confidential source, there was no other non-media source for the information, and the respondent's owner denied the statement attributed to him in the article, so the GC could not rely on the article itself for impeachment).

See also *CNN America, Inc., 352 NLRB 675, 676–677 (2008), supplemental proceedings 353 NLRB 891 (2009), final decision and order issued 361 NLRB 439 (2014), reconsideration denied 362 NLRB 293 (2015), rev. granted in part and denied in part 865 F.3d 740 (D.C. Cir. 2017). In that case, the General Counsel subpoenaed various documents relevant to CNN's newsgathering processes. CNN filed a petition to revoke on various grounds, including that the documents were protected from disclosure by the reporter's privilege. The judge denied CNN's petition, interpreting the privilege as applying only to confidential sources. CNN thereafter filed a special appeal, arguing that some courts of appeals have recognized a qualified privilege not only for confidential sources, but also for editorial and newsgathering processes. The Board found it unnecessary to decide if the qualified privilege applied. The Board found that, even assuming the privilege applied, the GC could overcome it under the balancing test developed by the courts because 1) the information sought was not available from an alternative source; 2) CNN's asserted defenses to the complaint had placed its newsgathering techniques at issue and made the information critical to the General Counsel's case; and 3) CNN did not contend that the subpoenaed information was obtained through a promise of confidentiality or that disclosure would likely lead to discovery of confidential information or sources. Finally, the Board noted that, to the extent CNN was concerned about disclosure of proprietary business information to third parties, it could seek a confidentiality agreement with the GC.

For a list of court cases and further discussion of the various issues that may arise in applying the qualified reporter's or journalist's privilege, see Graham, 4 Handbook of Fed. Evid. §501:1, n. 13 (10th ed. Nov. 2024 Update); and Greenwald, Schrantz, and Slachetka, 2 Testimonial Privileges §8:5 et seq. (3d ed. Feb. 2023 Update).

§8–475 State Confidentiality Rules

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 n. 3 (2007) (judge properly accepted into evidence statements made during a state court injunction proceeding and a related court-ordered mediation of state law claims, despite a claim of privilege under Wisconsin law); North Carolina License Plate Agency # 18, 346 NLRB 293, 294 n. 5 (2006) (evidence from a state unemployment commission, which was privileged under state law, was nevertheless admissible in the Board proceeding), enfd. 243 F. Appx. 771 (4th Cir. 2007); Landscape Forms, Inc., 7–CA–162398, unpub. Board order issued March 18, 2016 (2016 WL 1086677, 2016 NLRB LEXIS 214), at 1 n. 3 (rejecting the respondent's contention that the General Counsel's investigative subpoena should be revoked because the requested information was exempt from disclosure under Michigan state law); and Diva Limousine, 22–CA–091561, unpub. Board order issued Dec. 3, 2013 (2013 WL 6328060, 2013 NLRB LEXIS 739) (“objections [to subpoenas] made solely on the basis of a state code of civil procedure … are not cognizable in a Board proceeding”). See also Miller v. St. John's Health System, 2011 WL 3890315 2011, U.S. Dist. LEXIS 83766 (S.D. Ind. July 29, 2011) (denying motion to quash the employer's subpoena in an ADEA wrongful termination action seeking documents from the state agency relating to the plaintiff employee's application for unemployment benefits in order to determine what steps she had taken to mitigate damages by seeking employment), and §16–501 (FRE 501), below.

§8–480 Foreign Blocking Statutes

Like state confidentiality rules or laws discussed in the previous section, foreign “blocking” statutes—laws prohibiting the removal of documents from the foreign country or province pursuant to a subpoena issued by a judicial or administrative authority outside the country or province—are not grounds for quashing a Board subpoena. See Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76, slip op. at 12 n. 20 (2021) (rejecting respondent's contention that Quebec law prohibited disclosure).

§8–500 Procedures for Evaluating Privilege Claims

§8–510 Privilege Logs

Consistent with FRCP 26(b)(5)(A) and 45(e)(2)(A), to the extent a party in good faith believes that certain subpoenaed documents are privileged or otherwise protected from disclosure, it must promptly submit a privilege log or index identifying those documents. See, e.g., Haynes Security Services, Inc., 12–CA–296934, unpub. Board order issued Dec. 2, 2022 (2023 WL 17416555, 2022 NLRB LEXIS 542), at 1, n. 3; and Nestle Dreyers Ice Cream Co., 31–CA–190625, unpub. Board order issued Jan. 23, 2018 (2018 WL 549553, 2018 NLRB LEXIS 35), at 1 n. 2. See also NLRB v. NPC International, Inc., 2017 WL 634713, *6–7, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017) (rejecting the company's argument that it had no obligation to produce a privilege log at the agency level); and NLRB v. Sanders-Clark & Co., 2016 WL 2968014, 2016 U.S. Dist. LEXIS 57547 (C.D. Cal. April 25, 2016) (finding that the respondent waived the privilege by failing to timely submit a privilege log to the ALJ).

Detailed description required. The log must provide “sufficient detail to permit an assessment by the judge of the [party's] claims.” Meadowlands Hospital, above. See also FRCP 26(b)(5)(A)(ii) and 45(e)(2)(A)(ii)) (the person claiming the privilege must “describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”). At a minimum, the log or index should 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.” Tri-Tech Services, 15–CA–16707, unpub. Board order issued July 17, 2003, quoted in *CNN America, Inc., 353 NLRB 891, 899 (2009), final decision and order issued 361 NLRB 439 (2014), reconsideration denied 362 NLRB 293 (2015), rev. granted in part and denied in part 865 F.3d 740 (D.C. Cir. 2017). See also NLRB v. NPC International, 2017 WL 634713 at *9 (company's “conclusory” descriptions of the allegedly privileged emails were “wholly inadequate to enable the Court to determine whether the items were properly withheld”).

The particular privilege or doctrine relied on for withholding the document should also be identified. Failure to do so may constitute waiver. See, e.g., Monterey Bay Military Housing, LLC v. Ambac Assurance Corp., 2023 WL 315072, *10, 2023 U.S. Dist. LEXIS 9646 (S.D.N.Y. Jan. 19, 2023); and MSTG, Inc. v. AT&T Mobility LLC, 2011 WL 221771, 2011 U.S. Dist. LEXIS 5533 (N.D. Ill. Jan. 20, 2011), reconsideration granted in part, 2011 WL 841437, 2011 U.S. Dist. LEXIS 23417 (N.D. Ill. March 8, 2011).

Each document and attachment must be described. Unless otherwise agreed or ordered, the descriptive information should be provided for each communication or document, including attachments. NLRB v. Interbake Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011); and U.S. v. White, 950 F.2d 426, 430 (7th Cir. 1991). An attachment is not privileged simply because it is attached to a privileged communication, and it should therefore be separately identified and described in sufficient detail to evaluate the claim. See, e.g., Lee v. Chicago Youth Centers, 304 F.R.D. 242, 249 (N.D. Ill. 2014); and S.E.C. v. Beacon Hill Asset Mgt. LLC, 231 F.R.D. 134, 145 (S.D.N.Y. 2004). See also Roberts Technology Group, Inc., 2015 WL 4503547, *2, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015) (“[T]he privilege must be asserted on a document by document basis. The communication must be confidential and with the goal of furthering counsel's provision of legal advice. Where the attached communication is not confidential but merely contains readily available or pre-existing information not prepared by counsel, it is not privileged.”) (citations omitted).

Requiring additional information. Under the FRCP, a judge has discretion to require the party asserting the privilege to provide additional information in the form of affidavits or testimony in order to evaluate the privilege. See, e.g., In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001); Holifield v. U.S., 909 F.2d 201, 204 (7th Cir. 1990); Alexander v. FBI, 192 F.R.D. 42, 45 (D.D.C. 2000); Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 651-652 (E.D. Cal. 2010); and In re Rivastigmine Patent Litigation, 237 F.R.D. 69, 84 (S.D.N.Y. 2006). Any significant gaps or ambiguities in the factual bases for the privilege claim are construed against the proponent. Ibid. See also EEOC v. BDO USA, LLP, 876 F.3d 690, 695 (5th Cir. 2017).

Post-charge documents. Courts are split on whether post-complaint documents in civil litigation are conclusively or presumptively protected and therefore exempt from the FRCP privilege-log requirement. Compare, for example, First Horizon National Corporation v. Certain Underwriters at Lloyds, 2013 WL 11090763, 2013 U.S. Dist. LEXIS 189959 (W.D. Tenn. Feb. 27, 2013) (rejecting party's blanket claim that all post-complaint documents were protected attorney-client communications or work product); with Prism Technologies, LLC v. Adobe Systems, Inc., 2011 WL 5523389, 2011 U.S. Dist. LEXIS 131321 (D. Neb. 2011) (holding that communications between the parties and their attorneys that occurred after the date the litigation began need not be included on a privilege log, particularly in light of the extensive discovery requested), and cases cited there. See also the additional court decisions cited in Rice et al., 2 Attorney-Client Privilege in the U.S. §11:8 (Dec. 2023 Update) (arguing against such an exemption for post-complaint documents); and Douglas C. Rennie, Why the Beginning Should be the End: The Argument for Exempting Post-Complaint Materials from Rule 26(b)(5)(A)'s Privilege Log Requirement, 85 Tul. L. Rev. 109 (2010) (arguing for such an exemption).

However, it appears that neither the Board nor any court to date has applied the exemption to post-charge or complaint documents in NLRB unfair labor practice proceedings. In NLRB v. Jackson Hospital, 257 F.R.D. 302, 308 (D.D.C. 2009), the court stated that “sophisticated counsel [might] agree that a certain category of information is so clearly likely to be work product that it need not even be logged on a privilege log.” But the court did not itself exempt all post-charge or complaint documents from the privilege-log requirement.

Failure to submit a privilege log. If the party asserting the privilege failed to timely identify the document as privileged or demonstrate that an identified document is at least prima facie privileged in response to a subpoena, the judge may find that the privilege has been waived. See, e.g., In re Grand Jury Subpoena, above. See also Williams v. Sprint/United Management Co., 230 F.R.D. 640, 654–655 (D. Kan. 2005) (finding that defendant in age discrimination case waived its attorney-client privilege and work product claims with respect to withheld metadata associated with responsive documents by failing to raise or log those claims).

Courts consider various factors, including the scope of the subpoena, the amount of time the party had to respond to the subpoena, whether the party had been afforded one or more prior opportunities to properly identify and adequately describe the documents it now claims are privileged, and whether the failure to comply was flagrant, deliberate, or in bad faith. See, e.g., EEOC v. BDO USA, LLC, 876 F.3d at 697; NLRB v. NPC International, Inc., 2017 WL 634713 at *9; In re Chevron Corp., 749 F.Supp.2d 141, 180–186 (S.D.N.Y.), affd. 409 F. Appx. 393 (2d Cir. 1010); and In re In-Store Advertising Securities Litigation, 163 F.R.D. 452, 457 (S.D.N.Y. 1995), and cases cited there. See also NLRB v. Jackson Hospital Corp., 257 F.R.D. at 307–308 (where a party fails to submit an adequate privilege log, the court may: (1) permit the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) conduct an in camera inspection of the withheld documents; or (4) conduct an in camera inspection of a select sample of the withheld documents).

Note that it is unsettled whether ALJs have the authority to make a such a waiver finding with respect to subpoenaed documents. In NLRB v. Sanders-Clark & Co., 2016 WL 2968014 at *4–5, the district court held that the ALJ exceeded her authority in ruling that the respondent waived the attorney-client privilege by failing to submit a privilege log, as such a ruling “was, at base, a discovery sanction,” and only the federal district courts may issue “binding discovery sanctions.” The court relied on the Ninth Circuit's decision in NLRB v. International Medication Systems, 640 F.2d 1110 (9th Cir. 1981) (holding that only the federal district courts have authority to issue sanctions for subpoena noncompliance), as well as two subsequent decisions by the Sixth and Fourth Circuits citing the decision with approval, NLRB v. Detroit Newspapers Agency, 185 F.3d 602, 605 (6th Cir. 1999) (holding that a district court may not delegate to the ALJ responsibility for reviewing documents in camera to determine whether they are privileged); and NLRB v. Interbake Foods, 637 F.3d 492, 499 (4th Cir. 2011) (holding that, while an ALJ has authority to order production of documents for in camera review to aid in evaluating the privilege, if the responding party refuses to obey, only an Article III court may resolve the impasse and enforce the subpoena).

However, the Board, with the approval of the D.C. Circuit and some other circuit courts, holds that the General Counsel may seek, and ALJs may grant, evidentiary sanctions against a respondent for noncompliance with a subpoena ruling or order, including the failure to properly log materials claimed to be privileged, as an alternative to court enforcement. See §8–720, Failure to Produce Documents, below. Thus, Board precedent supports the authority of ALJs to make a waiver finding, whether or not the finding constitutes or is accompanied by any evidentiary sanctions for noncompliance.

For additional discussion of the burden of proving that subpoenaed documents constitute privileged attorney-client communications or protected work product, see §§8–405 and 8–430, above. For a general discussion of waiver of the attorney-client privilege and the work product doctrine, such as by intentional or unintentional disclosure, see §§8–415 and 8–435, above.

§8–520 In Camera Inspections

ALJ authority. There may be circumstances where in camera review of the documents is warranted prior to ruling. The authority of administrative law judges and hearing officers to conduct in camera inspections has been upheld by the Board. See Kaiser Aluminum & Chemical Corp., 339 NLRB 829 (2003) (work product); and Brink's, Inc., 281 NLRB 468, 470 (1986) (attorney-client privilege). See also Starbucks Corp., 19-CA-297589, unpub. Board order issued Feb. 8, 2024 (2024 WL 519030, 2024 NLRB LEXIS 60) (ALJ did not abuse her discretion by ordering respondent to bring unredacted copies of documents it claimed to be privileged to the hearing for in camera review, if needed); and Everport Terminal Services, Inc., 32–CA–172286, unpub. Board order issued Aug. 15, 2017 (2017 NLRB LEXIS 417, 2017 WL 3531095) (ALJ did not abuse her discretion in ordering the respondent union and one of its non-party locals to submit documents listed in their privilege logs for in camera inspection and to produce some of those documents to the General Counsel based on her assessment that they were not privileged).

For additional examples where ALJs have exercised that authority, see Adams & Associates, Inc., 363 NLRB 1923 (2016), enfd. 871 F.3d 358 (5th Cir. 2017), and National Football League, 309 NLRB 78 (1992), discussed in §8–405 (Attorney-Client Privilege: Outside vs. in-house attorneys), above. See also Patrick Cudahy, Inc., 288 NLRB 968 (1988), discussed in §8–410 (The Privilege and Collective-Bargaining and Business Records), above, where the trial judge (and apparently the Board itself on special appeal) conducted an in camera inspection of the documents respondent asserted were protected by the attorney-client privilege.

Factual basis required. Generally, 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 good-faith belief that in camera inspection may reveal evidence that is not protected by the privilege, the judge has discretion to order that the evidence be presented for such inspection, considering the amount of material to be reviewed, the material's relevance, and the likelihood that an inspection will reveal whether the documents are privileged. See U.S. v. Zolin, 491 U.S. 554, 571 (1989); and In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992). See also NLRB v. Interbake Foods, 637 F.3d 492, 502 (4th Cir. 2011), and on remand, 2011 WL 6736435, 2011 U.S. Dist. LEXIS 146536 (D. Md. Dec. 21, 2011) (finding that the General Counsel failed to present sufficient grounds to conduct an in camera inspection of email strings that respondent claimed were privileged attorney-client communications).

Procedures. If the ALJ determines that in camera inspection is warranted, an issue may arise whether it should be conducted by another ALJ acting as a special master. For a discussion of this issue, see §8–530, below.

If the ALJ determines that certain documents are not privileged and should be produced, the ALJ should not turn over the documents directly to the party subpoenaing them but should identify the documents to be produced and afford the parties an opportunity to seek review or enforcement. The ALJ should place the documents under seal so that they can be reviewed by the Board and/or court. See Quality Roofing Supply Company, 4–CA–36952, unpub. ALJ special master's report issued Aug. 17, 2011 (2011 WL 3625915).

In camera inspections may also be used in other contexts. For example, if a subpoena requests the minutes of union meetings, disclosure of those minutes might reveal the names of the employees who attended, which would normally be confidential. See §8–455, Identity of Union Supporters, above. Thus, if the meeting minutes are found relevant, the judge should view the minutes in camera and require redaction of any portions identifying individuals other than the alleged discriminatee(s). *R.K. Mechanical, 27–CA–18863, unpub. Board order issued June 23, 2008, at n. 2. See also §16–613.1, Jencks Statements, below.

Noncompliance with in camera inspection. As discussed in §8–720 below, the Board, with the approval of some circuit courts, has upheld the authority of ALJs to issue evidentiary sanctions for noncompliance with subpoena rulings and orders. This includes orders requiring a party to submit withheld documents for in camera inspection. See Pioneer Hotel & Gambling Hall, 324 NLRB 918, 920, 927 (1999) (drawing adverse inference in part because the respondent refused to submit withheld documents to the ALJ for in camera inspection to evaluate the claim of privilege), enfd. in relevant part 182 F.3d 939 (D.C. Cir. 1999).

§8–530 Special Masters

The ALJ assigned to conduct the hearing has discretion whether to request the Chief ALJ to appoint another ALJ as special master to address subpoena and privilege issues arising in connection with the hearing. See Starbucks Co., 03–CA–285671, unpub. Board order issued Aug. 4, 2022 (2022 WL 3138542, 2022 NLRB LEXIS 330) (denying respondent's special appeal from ALJ's order declining to request appointment of a special master, finding that “the judge is in the best position, in the first instance, to determine whether appointment of a special master would assist him with subpoena and privilege issues.”); and Starbucks Corp., 18–CA–295458, unpub. Board Order issued May 26, 2023 (2023 WL 5953952, 2024 NLRB LEXIS 246) (denying respondent's special appeal, finding that ALJ did not abuse her discretion by requesting appointment of a Special Master to decide privilege issues).

The Board has not to date set forth specific guidelines for determining when to request or use a special master. However, special masters have historically been used where an exceptionally large number of documents have been subpoenaed and the respondent claims that many of them are privileged attorney-client communications and/or protected work product. See, for example, *CNN America, Inc., 352 NLRB 675, 676 (2008) (directing the Chief ALJ to appoint an ALJ/special master because the subpoenas raised “complex issues due to their requests for electronically stored information ‘in native form, with all metadata and attachments intact’,” which required “extensive analysis under the Federal Rules and The Sedona Principles”; and the appointment would “minimize disruptions to the ongoing unfair labor practice hearing and allow [the trial judge] to focus on the litigation of the unfair labor practices alleged in the consolidated complaint.”), supplemental proceedings *353 NLRB 891 (2009) (attaching and adopting the special master's report). See also McDonald's USA, LLC, 368 NLRB No. 134, slip op. at 24 (2019) (trial judge requested and Chief ALJ appointed another ALJ to serve as special master to address hundreds of disputed entries on the respondents' privilege logs); and Amazon.com Services, LLC, 29–CA–277198, unpub. Board order issued Jan. 4, 2023 (2023 WL ———, 2023 NLRB LEXIS 4) (special master was appointed to conduct an in camera inspection and review of numerous withheld documents identified on respondent's privilege log).

Respondents may sometimes argue that appointment of a special master is required to conduct an in camera inspection because disclosure to the trial judge, as the trier of fact, would be prejudicial. However, this argument is not supported by Board law. See Starbucks Co., 2023 WL 5953952, and Board cases cited in §8–520 (In Camera Inspections: ALJ authority), above. Nor is it generally supported by court decisions. See, e.g., NLRB v. Interbake Foods, LLC, 637 F.3d 492, 500 (4th Cir. 2011) (“[W]e agree with the Board's argument that in camera review by an ALJ is not in conflict with its role as factfinder. The agency's structure ensures sufficient independence of ALJs to conduct hearings fairly, especially when they are subject to Board review and judicial review. We note that district judges sitting without a jury are permitted to review documents in camera, and we see no reason to conclude that ALJs are not likewise permitted to do so.”); and In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (reversing the district court judge's ruling that certain company documents were not privileged, but denying the company's request to reassign the case to a different judge on remand notwithstanding that the judge had reviewed the documents in camera). See also State ex. rel. Marshall County Commission v. Carter, 225 W. Va. 68,689 S.E.2d 796 (2010), where the state court rejected a similar argument involving ALJs on the state human rights commission:

The petitioners assert …that even if circuit court judges are permitted to examine allegedly privileged materials in camera, an ALJ should not be accorded the same power because an ALJ is a trier of fact. The implication is that an ALJ may be improperly influenced in their fact finding by knowledge of privileged material that is inadmissible at a hearing. We disagree. Administrative law judges who adjudicate Human Rights Act cases are licensed attorneys who are authorized by statute to hold and conduct hearings, to direct the scope of discovery including the consideration of motions to compel and motions for protective orders, to determine all questions of law and fact, and to render a final decision on the merits of the complaint. W. Va. Code §5-11-8(d)(3) (1998). As with circuit court judges who conduct bench trials, ALJs are regularly required to rule on evidentiary matters which requires them to consider evidence which is ultimately determined to be inadmissible. In such circumstances, we properly expect the circuit court judge or the ALJ to disregard inadmissible evidence and to render a decision based on the evidence introduced at the trial or administrative proceeding.

Nevertheless, there may be circumstances where the ALJ may wish to consider requesting a special master to avoid even the appearance of a partisan tribunal and the risk that the case might be ordered retried before a different ALJ following an appeal. See Patrick Cudahy, 288 NLRB 968, 978 (1988), where the Board reversed the trial judge's ruling, following his in camera inspection, that the subpoenaed documents were not privileged attorney-client communications, and remanded for a hearing de novo before a different ALJ “to avoid even the appearance of a partisan tribunal.”

The appropriate procedures to be followed after issuance of a special master's report are not well established. It therefore appears to be within the discretion of the Chief ALJ or the trial judge to determine in each case whether the trial judge will review the special master's report or whether a party may directly file a special appeal of the report with the Board. For a case where the former procedure was followed, see Amazon.com Services, LLC, above (finding that the respondent failed to establish that the trial judge abused her discretion in adopting the special master's report).

In any event, as indicated in §8–520 above, neither the special master nor the trial judge should disclose or provide the disputed documents to the General Counsel or other parties. It is up to the respondent to decide whether to comply with the rulings of the special master, trial judge, and Board. If it does not comply, the General Counsel may petition a court for enforcement of the subpoena or request an adverse inference.

§8–600 Protective Orders

ALJ authority. “It is clear that judges do have [the] authority” to issue a protective order. Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 n. 7 (2005), citing AT&T Corp., 337 NLRB 689, 693 n. 1 (2002) (ALJ issued a protective order prohibiting the disclosure of any of the hearing exhibits to “outside sources”); United Parcel Service, 304 NLRB 693 (1991) (ALJ issued a protective order with respect to certain documents subpoenaed by the General Counsel stating 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”); and National Football League, 309 NLRB 78, 88 (1992) (Board ordered that “the protective order entered into during the hearing prohibiting the parties from disclosing the contents of certain testimony [will] 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”). See also Exxon Corp. v. FTC, 665 F.2d 1274, 1278–1279 (D.C. Cir. 1981) (rejecting the companies' argument that the Federal Trade Commission's administrative law judges lack the authority to issue protective orders).

Good cause requirement. A party seeking a protective order with respect to disclosure of subpoenaed documents bears the burden of demonstrating “good cause” under FRCP 26(c) “or that disclosure would cause clearly defined and serious harm.” Impremedia, 29-CA-131066, unpub. Board order issued Jan. 14, 2015 (2015 WL 193732, 2015 NLRB LEXIS 19), at 1 n. 2 (denying respondent's request because it failed to establish either). The motion must be supported by a particular and specific demonstration of fact, as opposed to a mere conclusory or speculative claim of harm. See Waterbed World, 289 NLRB 808, 809 (1988) (denying respondent's motion for a protective order in part because of the “scanty and conclusory nature of the respondent's averments”). See also Loomis v. Unum Group Corp., 338 F.R.D. 225, 228–229 (E.D. Tenn. 2021); NLRB v. CEMEX, Inc., 2009 WL 5184695, 2009 U.S. Dist. LEXIS 123404 (D. Ariz. Dec. 22, 2009); Serrano v. Cintas Corp., 699 F.3d 884, 901(6th Cir. 2012); Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir. 2005); Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 1122, 1130 (9th Cir. 2003); and In re Terra International, Inc., 134 F.3d 302, 306 (5th Cir. 1998).

A particularly strong showing of harm may be required where a party seeks to prevent disclosure to a discriminatee. See Waterbed World, above (denying respondent's motion for a protective order, which would have barred disclosure to the discriminatees of documents attached to its motion to reopen the record, in part because of the Board's policy of affording discriminatees the right to hear testimony except under certain circumstances). Likewise, a stronger showing may be required where the documents have been introduced and made part of the formal record, given the public's interest in and historical access to judicial records. See, e.g., NLRB v. CEMEX, Inc., above, citing Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (requiring “compelling reasons” to seal documents). See also Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 944–945 (7th Cir. 1999) (trial judge “may not rubber stamp a stipulation to seal the record”).

Routine employment information. The Board has indicated that certain types of routine employment information normally do not warrant a protective order. Thus, in Richmond Times-Dispatch, 5–CA–29157 et al., unpub. Board order issued Aug. 1, 2002, the Board held that the judge improperly issued a protective order governing the production and exchange of subpoenaed documents to the extent it covered timesheets that showed hours worked or wages paid to employees. In agreement with the General Counsel, the Board held that the material consisted of “routine employment-related information,” and that the 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 special appeal with respect to that information, noting that there had been no showing of prejudice from entry of the protective order. Richmond Times-Dispatch, 346 NLRB 74 n. 1 (2005), enfd. 225 F. Appx. 144 (4th Cir. 2007). See also Hotel Bel-Air, 31–CA–074675, unpub. Board order issued March 20, 2018 (2018 WL 1409571, 2018 NLRB LEXIS 725) (ALJ did not abuse her discretion by denying the respondent's motion for a protective order restricting the use of payroll records that respondent produced to the General Counsel pursuant to a Board subpoena and district court order).

Sensitive personal information. In IATSE Local 16, 20–CB–213058, the Board ruled that the ALJ did not abuse his discretion by issuing a protective order sealing certain documents and preventing dissemination or disclosure to the public of certain sensitive personal information about the individual charging party. The Board noted that the information was irrelevant to the underlying unfair labor practice proceedings and that the respondent union had not challenged the sensitive nature of the information or demonstrated a significant interest in disseminating it. See unpub. order dated July 1, 2019 (2019 WL 2869824).

Provisions of order. If it is determined that a protective order is appropriate, the judge may ask the moving party to submit a proposed order. The judge can thereafter tailor the order to meet the legitimate needs of the moving party and the possible objections of other parties. See, e.g., Exxon Corp. v. FTC, above, 665 F.2d at 1274. See also Wal-mart Stores, Inc., 368 NLRB No. 24, slip op. at 1 n. 2, and 14 (2019) (judge properly granted the respondent employer's motion to enforce the terms of the protective orders the parties agreed to at the beginning of the hearing).

Protective orders typically address who may have access to the information, what the information may be used for, and how long the information may be retained. See the Board and court cases cited above. See also H & M International Transportation, Inc., 22-CA-089596, unpub. Board order issued May 23, 2014 (2014 WL 2194514, 2014 NLRB LEXIS 388) (Board ordered that production of the discriminatee's cell phone memory card “should be subject to a protective order agreed upon by the parties, or formulated by the judge in the absence of such agreement, requiring that the memory card be given to a designated qualified expert in forensic analysis of electronic records, not in the direct employ of any party, for retrieval and review of the audio file at issue, and any associated metadata, in order to protect the confidentiality and integrity of the data.”); and Pepsi-Cola, 307 NLRB 1378, 1379 n. 1 (1992) (judge granted the employer's unopposed motion to issue a protective order directing that excerpts from its security manual be sealed and returned to it at the close of the proceedings), which the Board subsequently cited as an example in Securitas Critical Infrastructure Services, Inc., 18–RC–120181, unpub. Board order issued April 4, 2014 (2014 WL 1339670, 2014 NLRB LEXIS 249), at 1 n. 1, and G4S Secure Solutions (USA), Inc., 12–RC–203988, unpub. Board order issued March 20, 2018 (2018 WL 1409568, 2018 NLRB LEXIS 129), at 1 n. 1.

Alternatively, the order may require redaction of personal identifiers, such as names, addresses, and social security numbers, prior to any disclosure. See, e.g., Rangel v. City of Chicago, 2010 WL 3699991, 2010 U.S. Dist. LEXIS 94989 (N.D. Ill. Sept. 13, 2010); and Kelly v. City of New York, 2003 WL 548400, 2003 U.S. Dist. LEXIS 2553 (S.D.N.Y. Feb. 24, 2003). See also §12–900, below, regarding the required redaction of personal information from documents submitted into the record.

Applicability of the Freedom of Information Act. Where a party seeks a protective order from the ALJ that would prohibit or restrict Agency personnel from disclosing information to the public, the judge should consider and address the applicability of the Freedom of Information Act (FOIA), 5 U.S.C. 552. FOIA generally requires federal agencies to promptly disclose their records on request unless one or more exemptions apply. The burden is on the agency to demonstrate that an exemption applies. U.S. Dept. of State v. Ray, 502 U.S. 164, 173 (1991). If an agency declines to disclose a record, it must explain the basis for nondisclosure under FOIA; it cannot simply rely on its own administrative protective order designating the record confidential at the time it was received. General Electric Co. v. NRC, 750 F.2d 1394, 1400 (7th Cir. 1984).

Various FOIA exemptions may apply to records submitted to the NLRB by private parties, including exemption 4, which exempts from disclosure matters that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” and exemption 6, which exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. Sec. 552(b)(4) and (6).

The Board's FOIA regulations specifically address “business information,” i.e., “commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4.” Among other things, the regulations state that, subject to certain exceptions, the Agency will provide a submitter with “prompt written notice” of a FOIA request or administrative appeal seeking business information that the submitter has designated in good faith as protected, or the Agency has reason to believe may be protected, and “a reasonable time” to respond and object to disclosure. See Sec. 102.117(c)(2)(iv) of the Board's Rules.

These regulatory provisions may provide legally sufficient protection with respect to such business information to render a protective order unnecessary or unwarranted. See Cannacruz, Inc., 32–CA–291904, unpub. Board order issued Oct. 28, 2022 (2022 WL 16550254, 2022 NLRB LEXIS 491), at 1 n. 2 (denying the employer's request for a non-disclosure/confidentiality agreement covering its subpoenaed commerce data as such data submitted to the Board “is deemed confidential and is not available for public inspection”), citing Illinois School Bus Co., 231 NLRB 1 n. 2 (1977) (denying the employer's motion for a protective order covering the commerce information it had submitted to the Agency). See also EEOC v. City of Milwaukee, 54 F.Supp.2d 885, 891–896 (E.D. Wisc. 1999); EEOC v. Morgan Stanley & Co., 132 F.Supp.2d 146, 154–155 (S.D.N.Y. 2000); U.S. Dept. of Education v. NCAA, 2006 WL 3198822, *9, 2006 U.S. Dist. LEXIS 64454 (S.D. Ind. Sept. 8, 2006), affd. 481 F.3d 936 (7th Cir. 2007); and EEOC v. Dept. of Developmental Services, 2009 WL 10693211, *3, 2009 U.S. Dist. LEXIS 147374 (E.D. Calif. June 23, 2009).

Compare NLRB v. CEMEX, Inc., above. In that case, the court issued a protective order barring the General Counsel from disclosing the respondent employer's customer lists and profit/loss statements, which the GC had subpoenaed for the administrative hearing before the ALJ, to the charging party unions or the public. The court only addressed FOIA in the context of the employer's additional request to seal the documents. The court denied that additional request because it was premature, i.e., because courts generally do not seal documents placed under a protective order at the “discovery” stage; because sealing documents is subject to a stricter “compelling reasons” standard; and because FOIA and the Board's regulations provided sufficient protection in the event a FOIA request was made for the documents. In support, the court cited EEOC v. AON Consulting, Inc., 149 F.Supp.2d 601, 607–608 (S.D. Ind. 2001) (declining to follow EEOC v. City of Milwaukee and granting the employer's request for a protective order prohibiting disclosure of employment tests and validation studies to the charging parties during the EEOC's investigation of the charges, but finding that FOIA provided sufficient protection after the EEOC's investigation concluded).

Alternatively, the FOIA provisions may provide guidance in formulating a protective order. See Exxon Corp. v. FTC, above, 665 F.2d at 1279 (protective order issued by FTC ALJ was sufficient because it guaranteed that the companies would be given 10 days' notice prior to release of confidential documents so that they could challenge the disclosure).

Sealing Documents. If the protective order forbids or restricts disclosure of an entire document that has been admitted into the record, it is essential that the judge place the document under seal. The failure to do so may undermine subsequent attempts to enforce the order. See United Parcel Service, 304 NLRB at 694. It is also advisable to include the protective order in any recommended order issued by the judge. See National Football League, 309 NLRB at 88; and Carthage Heating & Sheet Metal, 273 NLRB 120, 123 (1984).

Violations of order. Violating a protective order may constitute misconduct under Section 102.177 of the Board's Rules. See United Parcel Service, above, and §6–600, Misconduct by Attorney or Representative, et. seq., above.

§8–700 Noncompliance with Subpoena

§8–710 Failure of Witness to Appear and Testify

The failure of a party witness (i.e. an officer or agent of a party) to appear and testify in compliance with a subpoena may warrant evidentiary sanctions, including prohibiting the noncomplying party from calling the same witness and drawing adverse inferences against that party. Rogan Bros. Sanitation, Inc., 362 NLRB 547, 549 n. 9 (2015), enfd. 651 F. Appx. 34 (2d Cir. 2016), and Carpenters Local 405, 328 NLRB 788 n. 2 (1999), and cases cited there. See also IATSE Local 720, 369 NLRB No. 34, slip op. at 1 n. 2, and 6–7 (2020) (judge did not abuse her discretion by striking the testimony of the respondent union's business representative on direct examination by respondent given respondent's previous refusal to make him available to the General Counsel on the unjustified basis that the GC's subpoena had not been properly served).

If a subpoenaed nonparty witness appears but refuses to answer questions, the judge should advise that, absent a Fifth Amendment or other valid privilege, the witness is required by the subpoena to answer any and all relevant and appropriate questions posed by counsel. If necessary, the judge should also inform the witness about the consequences of refusing to answer, including that the Board may request a federal court to enforce the subpoena and to impose contempt sanctions if the witness thereafter declines to obey the court's order. See generally Barnett v. Norman, 782 F.3d 417, 422–424 (9th Cir. 2015) (discussing a district court judge's obligations if a subpoenaed witness refuses to testify).

§8–720 Failure to Produce Documents

A party has an obligation “to begin a good faith effort to gather responsive documents upon service” of a subpoena; accordingly, “a party who simply ignores a subpoena pending a ruling on a petition to revoke does so at [the party's] peril.” McAllister Towing & Transportation, 341 NLRB 394, 396–397 (2004) (upholding judge's imposition of evidentiary sanctions against the respondent for failing to substantially comply with subpoenas upon issuance of the judge's order partially denying its petition to revoke on the first day of hearing), enfd. 156 F. Appx. 386, 388 (2d Cir. 2005). See also San Luis Trucking, 352 NLRB 211, 212 (2008), reaffd. 356 NLRB 168 (2010) (imposing evidentiary sanctions where respondent merely made 2471 boxes of documents “available” to the General Counsel the afternoon before the hearing, without making any effort to separate requested from unrequested materials, and did not produce the requested documents as they were kept in the usual course of business or organized and labeled to correspond to the categories of the demand as required by FRCP 45 and 34), enfd. without addressing the sanctions issue 479 F. Appx. 743 (9th Cir. 2012).

Evaluating whether a good faith effort was made; custodian of records. A respondent may be required to make a custodian of records available to testify regarding the nature of its search for documents and to authenticate them, unless the parties can reach a stipulation regarding their authenticity. See Starbucks Corp., 19-CA-297589, unpub. Board order issued Feb. 8, 2024 (2024 WL 519030, 2024 NLRB LEXIS 60) (finding that the ALJ did not abuse her discretion by ordering respondent to do so).

A respondent also may be required to make its custodian of records available to testify if no responsive documents are produced or a dispute arises over the completeness of the production, in order to evaluate whether the respondent exercised due diligence. See, e.g., Starbucks Corp., 372 NLRB No. 147 (2023) (finding that the ALJ did not abuse her discretion by ordering respondent to make available the custodian(s) of record who had performed its search for documents to testify regarding that issue to the extent that respondent contended that the subpoenaed documents did not exist); and Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76, slip op. at 13 (2021) (judge rejected respondent's assertion that it did not have possession of subpoenaed documents, as respondent failed to call a custodian of records to substantiate that it searched its own records for the documents or sought unsuccessfully to obtain them from its foreign parent corporation, notwithstanding respondent's prior assurance to the judge that it would present the custodian of records' testimony).

See also Chipotle Services, LLC, 363 NLRB 336, 342 (2015) (judge called a witness to question him about respondent's efforts toward subpoena compliance), enfd. 849 F.3d 1161 (8th Cir. 2017); V5 Technologies v. Switch, Ltd., 332 F.R.D. 356, 366–367 (D. Nev. 2019) (court found that the subpoenaed individual's conclusory assertions of a good faith search were insufficient, given that certain otherwise identified responsive documents were not produced, and ordered her to use certain electronic search terms proposed by the party seeking the documents and to provide a sworn declaration identifying with particularity the details of the search); and Advanced Laboratories International, LLC v. Valentus, Inc., 2017 WL 6209297, 2017 U.S. Dist. LEXIS 202577 (N.D. Cal. Dec. 8, 2017) (court ordered the subpoenaed individual to provide a sworn declaration “describ[ing] in detail the steps he took to locate documents responsive to [the] subpoena, including the date(s) of each search performed, the locations searched (e.g., home office), the devices searched (e.g., phone, home computer, office computer), the types of files searched (e.g., email, Word, Skype logs, text messages, Facebook messages), and the methods used to perform the searches (e.g., the search terms used)”).

However, the judge has no obligation to press for specific information about the subpoenaed party's compliance efforts where it is clear that no significant efforts were made to gather the subpoenaed documents. See McCallister Towing, 341 NLRB at 398.

Imposing evidentiary sanctions. As indicated by McAllister Towing and San Luis Trucking, above, the Board has repeatedly affirmed the authority and discretion of ALJs to impose evidentiary sanctions against a noncomplying party where the General Counsel has elected not to initiate court enforcement proceedings (see §8–800, below). See also Starbucks Corp., 18-CA-295458, et al., unpub. Board Order issued May 26, 2023 (2023 WL 5953952, 2024 NLRB LEXIS 246) (denying respondent's special appeal, finding that the ALJ did not abuse her discretion by imposing evidentiary sanctions where respondent provided vague and inadequate information regarding its search for subpoenaed materials and refused to produce a custodian of the records). And the D.C. Circuit and certain other circuit courts have generally agreed. See Perdue Farms Inc. v. NLRB, 144 F.3d 830, 834 (D.C. Cir. 1998), and additional court decisions cited below. However, as discussed in §8–510 above, the Fourth, Sixth, and Ninth Circuits have held to the contrary.

Several sanctions are available where a party refuses or fails to timely or properly comply with a subpoena. The judge may:

1) Draw an adverse inference. See, e.g., Shamrock Foods Co., 366 NLRB No. 117, slip op. at 1 n. 1, and 15 n. 29 (2018) (respondent's contumacious failure to produce subpoenaed records regarding the duties of its floor captains warranted adverse inference that they would have corroborated the testimony of employees and provided additional evidence that the floor captains had Section 2(11) supervisory authority), enfd. per curiam 779 F. Appx. 752 (D.C. Cir. July 12, 2019); Sparks Restaurant, 366 NLRB No. 97, slip op. at 9–10 (2018) (respondent's failure to produce subpoenaed records of shifts worked by striker replacements warranted adverse inference that the records would not have supported respondent's position that the strikers were permanently replaced before their unconditional offer to return), enfd. 805 F. Appx. 2 (D.C. Cir. 2019); Chipotle Services, LLC, above, slip op. at 1 n. 1, and 8 (respondent's failure, despite repeated warnings by the judge, to produce numerous documents or conduct a diligent search for documents subpoenaed by the General Counsel and charging party warranted adverse inference that they would have revealed disparate treatment and supported the complaint allegation that the named discriminatee was unlawfully terminated); Metro-West Ambulance Service, 360 NLRB 1029, 1030 and n. 13 (2014) (respondent's unexplained failure, in an 8(a)(3) discrimination case, to produce subpoenaed accident reports over the previous 3 1/2 years warranted an adverse inference that they would not have supported respondent's position that it treated the discriminatee the same as other similarly situated employees); and Essex Valley Visiting Nurses Assn., 352 NLRB 427, 441–444 (2008), reaffd. 356 NLRB 146 (2010), enfd. 455 F. Appx. 5 (D.C. Cir. 2012) (respondent's failure to produce subpoenaed documents warranted an adverse inference supporting the General Counsel's allegation of single-employer status).

See also Starbucks Corp., 374 NLRB No. 8, slip op. at 5–6 (2024). There, the respondent refused to produce certain documents in response to the General Counsel's subpoena or submit them to the ALJ for in camera inspection to evaluate its privilege claims. The Board drew an adverse inference that the documents would not have contradicted the testimony of the GC's witnesses, but it did so based on the respondent's failure to introduce the documents. In support, the Board cited, e.g., Community Hospitals of Central California v. NLRB, 335 F.3d 1079, 1086–1087 (D.C. Cir. 2003) (observing that the ALJ “would have been justified in drawing the adverse inference [that unproduced subpoenaed documents would have been unfavorable to the employer] … even if no subpoena had been issued”); and Auto Workers v. NLRB, 459 F.2d 1329, 1338–1339 (D.C. Cir. 1972) (“[W]hile the adverse inference rule in no way depends upon the existence of a subpoena … the willingness of a party to defy a subpoena in order to suppress the evidence strengthens the force of the preexisting inference …. [T]he rule does not deprive the suppressing party of [its] constitutional right to an enforcement hearing on the subpoena, since [it] is not required to produce the evidence in question. Rather, the tribunal simply utilizes the commonsense inference that if the evidence would do the suppressing party any good, [it] would readily produce it.”).

An adverse inference should be drawn unless there is a valid reason for the judge not to do so. See Metro-West Ambulance Service, above (granting the General Counsel's exception and drawing an adverse inference notwithstanding the ALJ's conclusion that it was unnecessary to do so because the evidence presented was sufficient to prove the alleged violation), citing Auto Workers v. NLRB, 459 F.2d 1329, 1338–1344 (D.C. Cir. 1972) (absent a valid reason for bypassing the adverse inference rule, “the inference should actually be drawn and its impact evaluated”). See also Zapex Corp., 235 NLRB 1237, 1239–1240 (1978) (judge improperly failed to draw an adverse inference that the respondent had not satisfied its burden of proving its defense where the respondent failed to produce subpoenaed records relevant to the issue), enfd. 621 F.2d 328 (9th Cir. 1980).

Valid reasons for declining to draw an adverse inference include the following.

Subpoena was unclear. See, e.g., Sisters Camelot, 363 NLRB 162, 169 (2015) (unrepresented charging party could reasonably conclude that the respondent's subpoena did not seek certain emails he had forwarded to the General Counsel, as the subpoena's description of the requested documents suggested that it pertained only to personnel or work records).

Satisfactory explanation was provided. See, e.g., Shamrock Foods Co., above, slip op. at 1 n. 1, and 9 n. 8 (subpoenaed recordings, if they even existed, were not in the charging party union's possession or control); CPS Chemical Co., 324 NLRB 1018, 1019 (1997) (union president testified that he had searched for the subpoenaed attendance list but could not find it, and the company advanced no argument that his testimony was unworthy of belief), enfd. 160 F.3d 150 (3d Cir. 1998); Hansen Bros. Enterprises, 313 NLRB 599, 608 (1993) (discriminatee credibly testified that old tax returns did not exist); and Champ Corp., 291 NLRB 803 (1988) (charging party union presented credible testimony concerning its good-faith but unsuccessful search for meeting notes, and other evidence supported a reasonable inference that the notes could have been inadvertently destroyed or misplaced), enfd. 933 F.2d 688 (9th Cir. 1990).

Documents were claimed to be privileged. See U.S. ex rel. Barko v. Halliburton Co., 241 F.Supp.3d 37, 54–55 (D.D.C. 2017), affd. 709 F. Appx. 23, 29 (D.C. Cir. 2017), and cases cited there (adverse inference cannot be drawn from the invocation of the attorney-client privilege). But see Pioneer Hotel & Gambling Hall, 324 NLRB 918, 920, 927 (1999) (drawing adverse inference in part because respondent refused to permit in-camera inspection of the withheld documents to evaluate the claim of privilege), enfd. in relevant part 182 F.3d 939 (D.C. Cir. 1999); and Chromalloy Mining and Materials, 238 NLRB 688, 691, 696 (1978) (drawing adverse inference because respondent refused to produce the withheld document even after the ALJ reviewed it in camera and concluded that the claimed privilege did not apply), enfd in part without reaching issue 620 F.2d 1120, 1128 n. 5 (5th Cir. 1980). See also Starbucks Corp., above.

Documents are irrelevant to disputed issues. See CPS Chemical Co., above (judge properly declined to draw an adverse inference from the unions' failure to produce documents identifying employees who had joined the local union, as the relevant issue was whether the employees were eligible to join not whether they actually joined, and the absence of the documents therefore did not prevent the respondent company from proving any relevant point in the case or prejudice it).

Additional adverse inference unnecessary. See CVS Pharmacy, 372 NLRB No. 91, slip op. at 1 n. 1, and 7 nn. 3 and 4 (2023) (ALJ properly declined to impose adverse inference based on respondent's failure to produce subpoenaed documents where the weight of the evidence supporting the General Counsel's case, and a separate adverse inference the ALJ imposed based on respondent's failure to call a witness rendered the additional adverse inference unnecessary).

2) Bar the noncomplying party from introducing the unproduced responsive documents and other documentary or testimonial evidence about the same subject matter. See, e.g., New York Paving, Inc., 371 NLRB No. 139, slip op. at 38–40 (2022) (excluding notes of telephone conversation and testimony about them where respondent failed to produce the notes in response to the General Counsel's subpoena and otherwise failed to make a good faith effort to comply with the subpoena by failing to produce text messages and emails or to prepare a privilege log with respect to documents it asserted were privileged), enfd. 2023 WL 7544999, 2023 U.S. App. LEXIS 30396 (D.C. Cir. Nov. 14, 2023).

See also FRCP 37(c)(1) (“If a party fails to provide information … as required by Rule 26(a) …, the party is not allowed to use that information … to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: … (C) may impose other appropriate sanctions, including [an order under Rule 37(b)(2)(A)(ii) ‘prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence’]”); and Wright & Miller et al., 8B Fed. Prac. & Proc. Civ. §2289.1 (3d ed. Sept. 2024 Update) (discussing the court's discretion and the relevant factors considered in determining whether to impose sanctions under FRCP 37(c)(1)).

3) Bar the noncomplying party from cross-examining witnesses about the same subject matter. Shamrock Foods Co., above; and NLRB v. C. H. Sprague & Son, 428 F.2d 938, 942 (1st Cir. 1970). See also McAllister Towing & Transportation, 341 NLRB at 396 (noting that, although the judge did not impose this particular sanction, judges have the authority to do so).

4) Permit the disadvantaged party to introduce secondary evidence about the same subject matter. See Bannon Mills, 146 NLRB 611, 614 n. 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) (permitting the General Counsel to present secondary evidence, including employee testimony, regarding the number of employees in the unit in lieu of employee payroll and other records that the respondent failed to produce). See also Shamrock Foods Co., above, slip op. at 1 n. 1, and 24 n. 61 (permitting the General Counsel to introduce secondary evidence, including hearsay testimony, regarding wage increases granted by the respondent); and Roofers Local 30 (Associated Builders and Contractors, Inc.), 227 NLRB 1444, 1449 (1977) (same, regarding the identity of those who were present during and participated in the alleged incidents).

5) Strike pleadings or witness testimony that related to the same subject matter. See Equipment Trucking Co., 336 NLRB 277 n. 1 (2001) (striking respondent's answer with respect to certain allegations); and Lenscraft Optical Corp., 128 NLRB 807, 817 (1960) (striking testimony of witnesses who failed to reappear for cross-examination after the documents were belatedly disclosed).

Sanctions against the Charging Party. As suggested in some of the cases cited above, one or more of the foregoing evidentiary sanctions may be available where a charging party fails or refuses to fully comply with a respondent subpoena. See also Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 (2005) (judge could have imposed evidentiary sanctions against the charging party employer for refusing to comply with the respondent union's subpoena duces tecum, including permitting the respondent to use secondary evidence, precluding the charging party from rebutting that secondary evidence or cross-examining witnesses about it, and drawing adverse inferences against the charging party).

Sanctions against the General Counsel. An issue may occasionally arise whether sanctions should be issued against the General Counsel for the contumacious failure of a charging party or a discriminatee to fully comply with a respondent subpoena.

In Marquez Bros. Enterprises, Inc., 21–CA–039581, unpub. order issued Sept. 7, 2017 (2017 WL 3953408, 2017 NLRB LEXIS 447), the Board majority ruled that it was improper for the ALJ to issue evidentiary sanctions against the General Counsel because of the individual discriminatees' failure to fully comply with subpoenas duces tecum served on them by the respondent employer in the backpay proceeding. The ALJ had prohibited the GC from questioning any witnesses other than the compliance officer concerning the discriminatees' interim earnings. The majority reversed on the grounds that the GC acts on behalf of the Agency in the public interest rather than to vindicate private rights, and that the Board's backpay remedy is likewise a public rather than a private right. The majority found that the ALJ “therefore … improperly penalized the General Counsel for conduct that he did not control.” The majority also noted that the discriminatees were not represented, one of them lacked reasonable proficiency in English, both were willing to and did testify about their production of documents and attempts to comply with the subpoena requests, and there was no indication that their failure to comply fully with the subpoenas was willful.

Marquez Bros. and its reasoning were subsequently applied to an unfair labor practice proceeding in Queen of the Valley Medical Center, 368 NLRB No. 116 (2019). In that case, the ALJ barred the charging party union, which was represented by counsel, from examining certain witnesses as a sanction for failing to fully or timely provide all responsive documents subpoenaed by the respondent employer for the hearing. However, the ALJ declined to issue additional sanctions against the union as its failure to do so was not contumacious. Relying on Marquez, the ALJ also denied the employer's request to bar the General Counsel from questioning the witnesses as a sanction for the union's failure to fully or timely produce all subpoenaed documents (slip op. at 44). The employer subsequently challenged both rulings on exceptions, but the Board affirmed them. (While the Board's decision only specifically addresses the employer's argument that the ALJ should have issued additional sanctions against the union (slip op. at 1 n.4), the employer also specifically excepted and argued in its brief to the Board that the ALJ erred in denying its request to impose sanctions on the GC.)

But see Skylawn Funeral Home, 369 NLRB No. 145 (2020). There, the General Counsel sought to introduce, as GC Exhibit 14, certain text messages sent by the charging party union's shop steward to the union's president. The ALJ, however, rejected and excluded the GC exhibit as a sanction for the union's failure to produce them to respondent in response to its subpoena. The ALJ reasoned that the text messages were in the union's possession but the union had not made any effort to comply with respondent's subpoena request or to file a motion to quash it. The ALJ, however, denied respondent's request to strike the shop steward's testimony, finding that such a sanction was “too severe.” (Slip op. at 7–8.) Respondent subsequently excepted, arguing, inter alia, that the ALJ should have issued additional sanctions. The Board disagreed, stating:

Despite the Respondent's arguments to the contrary, we find that the judge did not abuse her discretion in determining what sanctions to impose for the Union's noncompliance with the Respondent's subpoenas. We therefore affirm the judge's decision to exclude only GC Exh. 14.

(Slip op. at 1 n. 1.) Note, however, that neither the ALJ nor the Board discussed Marquez or Queen of the Valley (which issued after the ALJ's decision) in their decisions. Further, the GC did not file exceptions to the ALJ's decision, and the ALJ's exclusion of GC Exhibit 14 was therefore not directly at issue before the Board. Thus, it is at least questionable whether the Board's decision is precedent on that issue.

Dismissal of Complaint. “The Board is careful not to impose drastic sanctions disproportionate to the alleged noncompliance.” Sisters Camelot, above, 363 NLRB No. 13, slip op. at 8. Thus, noncompliance with a subpoena normally does not by itself warrant the dismissal of a complaint. See Teamsters Local 917 (Peerless Importers), above. In that case, the Board reversed a judge who had dismissed the General Counsel's complaint because the charging party failed to produce an unredacted copy of a document subpoenaed by the respondent relevant to its defense. 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. See also Queen of the Valley, above, slip op. at 44.

§8–730 Failure to Preserve Evidence (Litigation Holds and Spoliation)

A duty to preserve discoverable information arises when a reasonable party in the same factual circumstances would have reasonably foreseen litigation. The duty requires that the party take reasonable and proportionate steps to preserve relevant and discoverable information within its possession and control. Depending on the scope of such information and other circumstances, this may include implementing a “litigation” or “legal” hold to ensure that the organization's key custodians or data stewards take steps to preserve such information and to prevent losses due to routine business or system operations. The failure to take reasonable and proportionate steps may warrant curative measures or evidentiary sanctions, including adverse inferences. See Mannina v. District of Columbia, 437 F.Supp.3d 1, 9–13 (D.D.C. 2020), and cases cited there. See also Ashworth et al., 10A Fed. Proc., L. Ed. §26:553 (Nov. 2023 Update) (discussing duty to preserve evidence for production and inspection); and Sedona Conference Commentary on Legal Holds, Second Ed.: The Trigger & The Process, 20 Sedona Conf. J. 341 (2019) (summarizing the above principles and offering guidelines).

Merely asserting that the documents were not produced in discovery, without any evidence that they existed or were destroyed, is insufficient to support a negative inference. Brisbon v. Tischner, 639 F.Supp.3d 164, 178 (D.D.C. 2022), affd. per curiam 2023 WL 5162363, 2023 U.S. App. LEXIS 20811 (D.C. Cir. Aug. 9, 2023). Courts require a party seeking an adverse inference based on spoliation of evidence to establish that: (1) there was an obligation to preserve the evidence at the time of destruction or alteration, i.e., the party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; (2) the records were destroyed with a “culpable state of mind”; and (3) the evidence was relevant to the extent that a reasonable factfinder could find that the evidence would support the party's claims or defenses. See National Assn. of Broadcast Employees and Technicians (American Broadcasting Companies, Inc.), 371 NLRB No. 15, slip op. at 5 (2021), citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003). See also Mannina v. District of Columbia, above, 437 F.Supp.3d at 6; Apple Inc. v. Samsung Electronics Co., 888 F.Supp.2d 976, 989–990 (N.D. Cal. 2012); and Grenig & Kinsler, Handbook Fed. Civ. Disc. & Disclosure §16:5 (4th ed. July 2022 Update).

With respect to hard-copy documents and tangible things, courts disagree about the level of culpability necessary for an adverse inference. Some hold that mere negligence is sufficient. See, e.g., Mannina v. District of Columbia, above, 437 F.Supp.3d at 12–13. Others require gross negligence or bad faith. See, e.g., Hodge v. BP Exploration & Production, 2023 WL 2302956, *10, 2023 U.S. Dist. LEXIS 33708 (E.D. La. March 1, 2023) (“Negligence is not enough to support the imposition of sanctions for spoliation, ‘for it does not sustain an inference of consciousness of a weak case.’”), citing Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). See also cases listed in Grenig & Kinsler, above, §16:8; and Sedona Conference Commentary, above.

With respect to electronically stored information (ESI), FRCP 37(e), as amended in 2015, specifically states that where ESI is lost due to a party's failure to take reasonable steps to preserve it, and cannot be restored or replaced through additional discovery, the court may presume that the lost ESI was unfavorable to the party “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation.” Intent may be established by circumstantial evidence, including the timing, method, and selectivity of the destruction, whether the destruction was inconsistent with preservation policies, the party's conduct throughout the litigation, and whether there is a credible explanation for the failure to preserve relevant ESI. See Bistrian v. Levy, 448 F.Supp.3d 454, 475 (E.D. Pa. 2020); and In re Petters Company, Inc., 606 B.R. 803, 827 and n. 217 (Bankr. D. Minn. 2019), and cases cited there. See also Burris v. JPMorgan Chase & Co., 566 F.Supp. 3d 995, 1017 (D. Ariz. 2021) (finding that plaintiff's “systemic efforts” to destroy ESI from multiple electronic devices “evince an unusually clear level of intent to deprive” his former employer of potentially relevant ESI).

However, absent sufficient direct or circumstantial evidence of intent, an adverse inference is improper, even if it has been shown that the ESI was likely relevant and its loss prejudicial. See Bistrian, above (denying adverse inference for this reason with respect to a hallway video that was overwritten). See also Youngevity International v. Smith, 2020 WL 7048687, 2020 U.S. Dist. LEXIS 227170 (S.D. Cal. July 28, 2020); and Alsadi v. Intel Corp., 2020 WL 4035169, 2020 U.S. Dist. LEXIS 126153 (D. Ariz. July 17, 2020), and cases cited there.

Lesser sanctions, such as precluding the spoliating party from presenting certain other evidence, may also be improper if their effect would be essentially the same as an adverse inference, for example if the party was precluded from presenting any evidence in support of its central or only claim or defense in the case. See Bistrian, above, at 478; and Youngevity, above, at *5 (citing Advisory Committee Notes to 2015 amendments to FRCP 37(e)(1)). However, it is generally appropriate to consider the destruction of the ESI as a factor along with all other factors in making the relevant factual finding. See ibid.

For a Board case addressing the duty to preserve evidence for an unfair labor practice proceeding, see Queen of the Valley Medical Center, 368 NLRB No. 116, slip op. at 41–44 (2019) (applying the three-part test described above and denying the respondent employer's request for adverse inferences against the charging party union for spoliation of records). See also McDonald's USA, LLC, 364 NLRB 1929, 1930 n. 5 (2016) (Board found that it was premature to decide whether McDonald's preservation efforts had been sufficient and what sanctions would not be appropriate until after McDonald's had completed searching all sources available to it within the scope of the court-enforced subpoena); and BP Amoco Chemical—Chocolate Bayou, 351 NLRB 614, 636 (2007) (rejecting the General Counsel's request in an 8(a)(3) termination/reduction-in-force case for an adverse inference based on the supervisors' destruction of the worksheets they used during the termination selection process, as the respondent had no legal duty to retain the records and there was no business or personal reason for the supervisors to keep them).

Regarding the duty to preserve evidence for a compliance/backpay proceeding, see Lucky Cab Co., 366 NLRB No. 56, slip op. at 7 (2018) (rejecting the employer's request in the backpay proceeding for a “negative spoliation inference” based on the discriminatee's failure to retain expense receipts, as the employer had the burden in a backpay proceeding to establish fraudulent concealment, and there was no direct or circumstantial evidence that the discriminatee had willfully destroyed the receipts to prevent them from being discovered), enfd. mem. 818 F. Appx. 638 (9th Cir. 2020). See also Santa Barbara News-Press, 370 NLRB No. 119, slip op. at 5–6 (2021) (rejecting the employer's argument in the backpay proceeding that all of the union's claimed bargaining expenses should be denied because the underlying receipts had been shredded, as they were destroyed pursuant to the union's normal document destruction policy or to clear up work space, and there was ample other evidence of the claimed expenses, including detailed contemporaneous expense reports), enfd. sub nom. NLRB v. Ampersand Publishing, LLC, 2022 WL 3305974, 2022 U.S. App. LEXIS 22326 (9th Cir. Aug. 11, 2022).

See also Dauman Pallet, Inc., 314 NLRB 185, 213 (1994). In that case, 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.

For a case addressing evidence-preservation letters, see National Assn. of Broadcast Employees and Technicians (American Broadcasting Companies, Inc.), above, 371 NLRB No. 15 (finding that the respondent union violated Sec. 8(b)(1)(A) by sending the individual charging party and his legal counsel evidence-preservation demand letters detailing an extensive duty to preserve a wide variety of types of data—including data not remotely relevant—and threatening to seek damages should he fail to satisfy the asserted duty).

§8–740 Interference with Subpoena Compliance\

It is a violation of the Act for an employer to:

(1) State or imply to a subpoenaed employee that compliance with the subpoena is optional. Bobs Motors, Inc., 241 NLRB 1236 (1979) (employer violated 8(a)(1) by telling employee that the Board's subpoena was not enforceable and it was up to him to decide whether to appear at the hearing), and cases cited there.

(2) Attempt to dissuade a subpoenaed employee from appearing at the hearing. See Alterman Transport Lines, Inc., 127 NLRB 803, 804 (1960) (finding 8(a)(1) violation where the employer told the subpoenaed employee on the day of hearing that it needed him to remain at work and did not want him to appear at the hearing, and gave him the phone number of the employer's counsel).

(3) Threaten to treat the subpoenaed employee's attendance at the hearing as an absence subject to discipline or other adverse action, or to impose conditions on attendance, such as trading shifts. See Fitel/Lucent Technologies, Inc., 326 NLRB 46, 54–55 (1998) (employer violated 8(a)(4) and (1) by telling employee that he needed to exchange shifts with another employee to avoid incurring an absence subject to discipline); and U.S. Precision Lens, 288 NLRB 505 n. 3 (1988) (employer violated 8(a)(4) and (1) by treating employee's days of attendance at hearing as absences that would count against her in the employer's “excellent attendance” program).

An ALJ who learns that such conduct may be occurring should at least warn the employer against it.

§8–800 Enforcement of Subpoenas on Behalf of Private Party

Section 102.31(d) of the Board's Rules provides that upon failure to comply with a Board subpoena issued on request of a private party, the General Counsel “shall,” in the name of the Board, institute 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.” See also Sec. 11(2) of the Act (providing for federal district court jurisdiction “upon application by the Board” in the event of “contumacy or refusal to obey a subpoena issued to any person”).

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 (1998) (applying the same rule to subpoena enforcement contempt proceedings). Nor is the GC required to initiate enforcement proceedings where the subpoena is incapable of being enforced. See Champ Corp., 291 NLRB 803 (1988) (respondent was not prejudiced by the GC's failure to seek enforcement of respondent's subpoena duces tecum on the charging party union as the evidence showed that the subpoenaed documents were unavailable through no fault of the union), enfd. 933 F.2d 688 (9th Cir. 1990). See also NLRB v. RadNet Mgt., Inc., 818 F. Appx. 663, 667 (9th Cir. June 17, 2020) (hearing officer in postelection objections case did not err by refusing to enforce certain employer subpoenas as they “were mere ‘fishing expeditions’ with no basis of belief or knowledge that they would provide any probative information”); Equinox Holdings, Inc. v. NLRB, 883 F.3d 935, 940 (D.C. Cir. 2018) (hearing officer in postelection objections case did not unreasonably refuse to enforce the company's subpoena of an employee witness, as the company never made a proffer that the testimony might have warranted setting aside the election); and Powerback Rehabilitation, 365 NLRB No. 119, slip op. at 1 n. 2 (2017) (Acting Regional Director did not abuse his discretion in postelection objections case by refusing to enforce the employer's subpoena duces tecum on one of its supervisors to determine if she had made objectionable preelection prounion statements because the subpoena was “at best, a fishing expedition,” notwithstanding that the supervisor had not filed a petition to revoke the subpoena).

If asked to rule on whether the subpoenaed party has contumaciously refused to comply with the subpoena within the meaning of Section 11(2) of the Act and Section 102.31(d) of the Rules, the ALJ should normally do so. See Station Casinos, LLC, 28-CA-22918, unpub. Board order issued March 3, 2011 (2011 WL 828422, 2011 NLRB LEXIS 93) (granting the respondent's request for special permission to appeal the Regional Director's refusal to institute subpoena enforcement proceedings, and remanding the matter to the judge with instructions to address in the first instance, upon respondent's request, whether the charging party had contumaciously refused to comply with those portions of the subpoena not previously quashed by the judge).

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.

CHAPTER 9. SETTLEMENTS

§9–100 In General

“[T]he Board from the very beginning has 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 1), 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 at the earliest possible stage. 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)(1)). 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's first contact with the parties is in a prehearing conference conducted by phone or video. 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 n. 2 (2001); McDaniel Ford, Inc., 331 NLRB 1645 (2000), enfd. 12 F. Appx. 75 (2d Cir. 2001); and Hansen Bros. Enterprises, 313 NLRB 599 (1993)).

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 follow-up conference calls. This will establish both a target date for the exchange of additional information or proposals and an agreed-upon 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

At their discretion, ALJs may offer parties an opportunity to settle at the hearing. As indicated in §1–100, Judge's Opening Statement, above, ALJs typically do so before going on the record, at the close of the General Counsel's case, and/or after all the evidence has been introduced. See J. Westrum Electric, 365 NLRB 1479 n. 1 (2017) (ALJ did not demonstrate bias against respondents by encouraging settlement after the GC's case had been presented and again at the close of the hearing; the judge stated at the beginning of the hearing that she would do so at those times, and she did not display bias against any party or create the impression that she had prejudged the case), enfd. 753 F. Appx. 421 (8th Cir. 2019).

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, 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 35-day 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 the appropriate office.

§9–300 Judge's Role in Approving Settlements

§9–320 Settlements Before Hearing Opens

Pursuant to Section 3(d) of the Act and Sections 102.18 and 102.19 of the Board's Rules, a Regional Director's decision to approve a settlement and withdraw a complaint prior to the opening of the hearing is not reviewable by the administrative law judge or the Board. The charging party's sole avenue of review in such circumstances is to file an appeal with the General Counsel in Washington, D.C., whose determination is final. See NLRB v. Food & Commercial Workers Local 23, 484 U.S. 112, 124–126 (1987). The same appears to be true if 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 ALJ and holding 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 is ripe for adjudication on the parties' pleadings alone), and other cases discussed in §3–500, Withdrawal or Dismissal, above.

However, there is no such limitation on Board review where the General Counsel rejects or opposes a proffered settlement executed by the respondent and the charging party. The Board may rule on the adequacy of such a settlement pursuant to a timely prehearing motion to dismiss the complaint under Section 102.24 of the Board's Rules. Fairmont Hotel, 314 NLRB 534 n. 4 (1994).

Judges have also reviewed and approved or rejected such settlements prior to the hearing or before any evidence has been introduced pursuant to their general authority to rule on prehearing motions under Sections 102.25 and 102.35(a)(8) of the Board's Rules. See, for example, Kiss Electric, LLC, 4–CA–164351, unpub. Board order issued June 27, 2017 (2017 WL 2794211, 2017 NLRB LEXIS 334). In that case, the Board upheld the judge's approval of an informal settlement over the General Counsel's objections that it did not provide backpay for the discriminatees, require instatement of one of the discriminatees, or include any provision for a default judgment. Although not reflected in the Board's order, the record before the Board indicated that judge had issued his written order approving the settlement the day before the scheduled hearing. See also Flint Iceland Arenas, 325 NLRB 318 (1998) (ALJ reviewed and approved a non-Board settlement executed by the respondent and the charging party over the General Counsel's objection at the beginning of the hearing and before any evidence was introduced; although the Board subsequently reversed the ALJ and rejected the settlement on appeal, it did so on the merits, not because the ALJ lacked authority to rule on the settlement); and Beverly Enterprises, Inc., 341 NLRB 296, 298 (2004) (ALJ considered and rejected the respondent's proposed settlement on the merits several months prior to opening the hearing).

As discussed in §9–500, below, the judge should ensure that the parties' positions for and against such a proposed settlement are placed on the record. One option, which has been used successfully by judges, is to open the hearing by telephone in advance of the scheduled date with a court reporter present. See §12–200, Opening the Hearing by Telephone or Mail, below. The settlement is placed into the record as an exhibit along with the formal papers; the parties and the discriminatees, if any, are provided an opportunity to state their positions on the record; and the judge rules on the settlement, either immediately on the record or afterwards in a written order. This procedure saves the parties, witnesses, counsel, and judge the time and expense of preparing for trial and traveling to the hearing site in the event the settlement is approved. It may also preserve the scheduled hearing date in the event the settlement is not approved.

§9–330 Settlements After Hearing Opens and Before Decision Issues

If an informal settlement is reached after the hearing opens and evidence has been introduced but before a decision is issued, it must be submitted to the trial judge for review and approval. See Section 101.9(d)(1) of the Board's Statements of Procedure. See also §§3–500 and 9–320, above. This applies to all settlements, including formal settlements providing for issuance a Board order. See Beverly California Corp., 326 NLRB 232, 236 n. 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 issues an order approving the settlement over objection, or rejecting the settlement, an aggrieved party may file a special appeal with the Board pursuant to Section 102.26 of the Board's Rules. See §10-600, “Interlocutory Special 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. 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 unfair labor practice and compliance cases pending before the Board. See Section 102.45(c) of the Board's Rules for the applicable procedures.

§9–400 Standards for Approving or Rejecting Settlements

§9–410 Types of Settlements—Formal, Informal, and Non-Board

As indicated above, settlements may be either formal (providing for issuance of a Board order and court enforcement) or informal (not involving 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 cease-and-desist and affirmative order based on the record.

A third type of settlement, a non-Board settlement, involves an adjustment strictly between the respondent(s) and the charging party(ies). The General Counsel is not a party to a non-Board settlement, even though the GC may be involved in the settlement discussions and post-settlement compliance. Thus, the GC cannot be found in breach of a non-Board settlement. See Dilling Mechanical Contractors, 348 NLRB 98, 103 (2006). See also §9–620, below.

§9–420 Formal Settlements

The NLRB Casehandling Manual (Part 1), Section 10164.1 provides:

A formal settlement is a written stipulation 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. Sec. 101.9(b)(1), Statements of Procedure.

The Casehandling Manual also sets forth procedures for transferring formal settlements to the General Counsel's Washington, D.C. office and the Board, as well as sample language appropriate for formal settlements. See Secs. 10164–10170.

Normally formal settlement agreements are drafted by the Regional Offices, using the procedural and technical language in the manuals, to meet the requirements for submission 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, 348 NLRB 998 (2006), where the Board majority rejected a 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. Alternatively, such as 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 GC and the Board can be implemented.

§9–430 Informal and Non-Board Settlements

In Independent Stave Co., 287 NLRB 740, 743 (1987), the Board set out the relevant considerations for approving non-Board settlements. The Board stated that it would not reject a non-Board 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 subject non-Board settlements in that case. Although the settlements were opposed by the General Counsel, did not resolve the 8(a)(3) refusal-to-hire allegation regarding one of the four charging parties/discriminatees, provided only 10 percent backpay to the other three charging parties/discriminatees, and did not provide for posting a notice, the Board approved the settlements as they were reached before the hearing, were signed by the three charging parties/discriminatees and approved by the union, and gave them employment with retroactive seniority.

See also Blue Fox Heating and Cooling LLC, 25–CA–297685, unpub. Order issued December 31, 2024 (2024 WL 5262300), at 1 n. 1 (affirming the ALJ's approval of a non-Board settlement notwithstanding the absence of default language); Amazon.com Services, LLC, 09–CA–298870, unpub. Board order issued April 18, 2024 (2024 WL 1701258), at 1 n. 1 (finding that the ALJ did not abuse his discretion by approving a non-Board settlement after the hearing opened that provided 100 percent backpay and an additional 50 percent front pay to the alleged discriminatee); and Starbucks Corp., 12–CA–295949, unpub. Board order issued June 26, 2023 (2023 WL 5953883, 2023 NLRB LEXIS 294), at 1 n. 1 (finding that the ALJ did not abuse his discretion by approving a non-Board settlement after the hearing opened that provided 100 percent backpay to the alleged discriminatee, notwithstanding the General Counsel's objections that, in light of the numerous other pending charges and complaints against the respondent across the country, the settlement improperly included a nonadmission clause, did not include default language, included a notice that did not address four of the complaint allegations, and removed oversight of compliance from the Region).

The Board also applies the Independent Stave factors to both informal and formal settlements. See, e.g., Kiss Electric, LLC, 4–CA–164351, unpub. Board order issued June 27, 2017 (2017 WL 2794211, 2017 NLRB LEXIS 334). In that case, the complaint alleged that the employer had unlawfully refused to consider and hire five union salts. The Board upheld the judge's approval of a prehearing informal settlement of the allegations notwithstanding the General Counsel's objections that the settlement did not provide backpay for the discriminatees, require instatement of one of the discriminatees, or include any provision for a default judgment. See also Woodworkers Local 3–433 (Kimtruss Corp.), 304 NLRB 1, 2 (1991) (upholding the judge's approval of a post-hearing informal settlement of 8(b) allegations against the respondent union over the objections of the respondent employer in the companion 8(a) case); and KW Electric Inc., 327 NLRB 70 (1998) (approving a formal settlement over the charging party's objection after the judge's decision issued).

For other cases approving settlements applying the above factors, see McKenzie-Willamette Medical Center, 361 NLRB 54 (2014) (approving a posthearing non-Board settlement of the 8(a)(5) failure-to-provide-information allegations over the General Counsel's objection that it did not provide for posting a notice or otherwise fully remedy the allegations); Hospital Perea Unidad, 356 NLRB 1204, 1204–1205 (2011) (reversing the ALJ and approving a prehearing non-Board settlement of an 8(a)(5) unilateral change allegation notwithstanding the General Counsel's objection that the respondent had committed similar unlawful conduct 2–3 years earlier); American Pacific Pipe Co., 290 NLRB 623, 623–624 (1988) (approving a prehearing non-Board settlement of a backpay claim notwithstanding the General Counsel's objection that it provided the discriminatee only about half of the total amount set forth in the specification); and Longshoremen ILA Local 1814 (Amstar Sugar), 301 NLRB 764, 764–765 (1991) (approving a non-Board settlement of the 8(b)(3) illegal strike allegation against the union over the General Counsel's objection, notwithstanding that the judge had already issued a decision on the stipulated record finding a violation and the settlement did not require the union to post a notice).

For a case approving a settlement involving an alleged joint employer, see McDonald's USA, LLC, a joint employer, et al., 368 NLRB No. 134 (2019), rev. denied sub nom. Fast Food Workers Committee & Service Employees Int'l Union v. NLRB, 31 F.4th 807 (D.C. Cir. 2022). In that case, the Board reversed the ALJ and approved informal settlements over the charging parties' objections, notwithstanding that the settlements were not executed by the General Counsel and the respondents until near the close of the 150-day hearing and respondent McDonald's did not guarantee compliance with the remedies as a joint employer of the respondent franchisees. The Board noted that the settlements required the franchisees to provide an immediate remedy for all 181 violations of the consolidated complaints, including full backpay for all 8(a)(3) violations and premium backpay for the discriminatees who waived reinstatement. The Board also noted that there was no history of recidivism by the respondents; that the settlements imposed certain remedial obligations on McDonald's in lieu of a guarantee of joint and several liability; and that there was no significant probability of prevailing on the complaint's joint-employer allegation. The Board also found that the lack of electronic posting of the notice was not a sufficient basis for rejecting the settlements, noting that there was no evidence that the respondents regularly communicated with employees electronically.

For cases rejecting settlements, see Texas Transeastern, 16–CA–280275, unpub. Board order issued Dec. 8, 2022 (2022 WL 21829070, 2022 NLRB LEXIS 557) (reversing the ALJ and rejecting a non-Board settlement opposed by the General Counsel where the complaint alleged that the employer prohibited employees from discussing wages in the workplace and discharged an employee for doing so but there was no notice posting or reinstatement remedy, and the settlement included a broad confidentiality provision and an enforcement mechanism allowing for money damages in case of a breach); Postal Service, 01–CA–176465, unpub. Board order issued July 27, 2018 (2018 WL 3642688, 2018 NLRB LEXIS 299) (rejecting a formal settlement of the complaint's 8(a)(5) allegations that the Postal Service unreasonably delayed providing the union with information, even though both the General Counsel and the charging party union agreed to the settlement, as the Postal Service was a recidivist and the stipulated order would allow it to seek modification or dissolution of the judgment after 5 years); International Shipping Agency, Inc., 24–CA–091723, unpub. Board order issued April 20, 2015 (2015 WL 1802717, 2015 NLRB LEXIS 288) (finding that the judge erred in approving a non-Board settlement in an 8(a)(5), (3), and (1) partial-closing case that was opposed by the General Counsel, did not provide for posting a notice, provided for only 32 percent backpay and a circumscribed preferential hiring remedy rather than a reinstatement remedy for the 28 alleged discriminatees, failed to address a large portion of the alleged violations, and required the employees to waive their right to strike); *Michels Corp., 30–CA–81206, unpub. Board order issued Dec. 19, 2012 (2012 WL 6625274, 2012 NLRB LEXIS 860) (finding that the judge improperly accepted a non-Board settlement over the General Counsel's objections where the settlement provided only backpay and a neutral employment reference to the alleged discriminatee, did not provide for any notice to other employees of their rights, and included a broad confidentiality clause); Alamo Rent-A-Car, Inc., 338 NLRB 275 (2002) (likewise disapproving a non-Board settlement where the first and second factors weighed heavily against approval); and Flint Iceland Arenas, 325 NLRB 318, 318–319 (1998) (same).

See also *Goya Foods of Florida, 358 NLRB 345 (2012) (finding that all four criteria favored rejecting the non-Board settlement); Frontier Foundries, Inc., 312 NLRB 73 (1993) (rejecting a non-Board settlement that provided only 6 percent backpay plus additional amounts as “liquidated damages,” allegedly to avoid being taxed as income, did not require posting any notices, and did not contain assurances against future misconduct); Flyte Time Worldwide, 362 NLRB 393 (2015) (Board declined to apply the Independent Stave analysis and denied the charging party's unopposed request, following issuance of the ALJ's decision, to withdraw his 8(a)(1) charge pursuant to a private settlement reached in a related class action wage and hour lawsuit, as the settlement did not even address, much less remedy, the 8(a)(1) allegation); and Fred Meyer Stores, Inc., 19–CA–032908, unpub. Board order issued Oct. 20, 2015 (2015 WL 6156743, 2015 NLRB LEXIS 762) (Board declined to remand a pending proceeding where the parties refused to disclose the terms of their non-Board settlement).

Note that, in International Shipping Agency, above, the Board also held that the judge erred in rejecting certain financial and tax records the General Counsel offered into evidence to show, contrary to the charging party union's assertion, that the respondent had the ability to pay a greater backpay amount than provided in the non-Board settlement.

Finally, the Board also applies the same Independent Stave analysis in evaluating whether private termination or severance agreements containing waiver and release provisions bar the unfair labor practice complaint allegations. See, for example, BP Amoco Chemical—Chocolate Bayou, 351 NLRB 614 (2007), where the Board applied the Independent Stave factors and found that the 8(a)(3) discharge allegations were barred by private termination agreements containing waiver and release provisions that all of the alleged discriminatees signed in exchange for enhanced severance benefits. See also A.S.V., Inc. a/k/a Terex, 366 NLRB No. 162 (2018), where the Board found that severance agreements containing waiver and release provisions signed by 11 of the 13 alleged discriminatees did not bar the 8(a)(3) layoff allegations or prevent the Board from fully remedying the discrimination against them, both because the agreements were inadequate under Independent Stave, and because the severance agreements were offered to the employees “as part of a broader scheme to eliminate union supporters”). (A further discussion of such waiver and release provisions is found in §9–640, below.)

§9–440 Settlement by Consent Order

A trial judge may also be asked by a respondent to approve a settlement by “consent order”—that is, a unilateral settlement offered by the respondent but not agreed to by either the General Counsel or the charging party. In Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024), the Board overruled precedent and eliminated a trial judge's authority to approve consent orders. The Board reasoned that Section 102.35(a)(7) of its rules appears to prohibit consent orders. That section authorizes the Board's administrative law judges to “[h]old conferences for the settlement or simplification of the issues by consent of the parties, but not to adjust cases” (emphasis added). The Board also found that its longstanding practice of approving consent orders created administrative challenges and inefficiencies, interfered with the General Counsel's statutory prosecutorial authority, and failed to effectuate the policies of the Act. The Board's ruling applied to all pending and future cases.

Nevertheless, the Board's previous decisions approving consent orders under the Independent Stave four-factor analysis may provide guidance in evaluating settlements where either the General Counsel or a charging party objects. The following are some examples.

Heil Environmental, 10-CA-114054, unpub. Board order issued June 20, 2014 (2014 WL 2812204, 2014 NLRB LEXIS 456). The complaint in that case alleged a variety of 8(a)(1) violations during an organizing campaign. The General Counsel objected to the respondent's proposed informal consent order because it did not require the respondent to read the remedial notice and failed to include “default” language providing for a formal Board order in the event of noncompliance. The Board rejected the GC's objections, finding that “a recent non-Board settlement entered into by the Respondent and the Charging Party which no party seeks to set aside and a 30-year old unrelated unfair labor practice case are insufficient bases for concluding that the Respondent has a history of violations of the Act.” Citing Independent Stave, the Board therefore found that the consent order substantially remedied the alleged violations.

Laborers Local 872, 28–CB–118809, unpub. Board order issued Jan. 12, 2015 (2015 WL 153954, 2015 NLRB LEXIS 10). The complaint in that case alleged that the respondent union had unlawfully failed to provide certain hiring hall information to the individual charging party. Under the proposed informal consent order, the union agreed to provide the charging party with the requested information and to post a union notice in the hiring hall for a year stating that, on request, the union would promptly make hiring hall referral records available for review by anyone using the hall. Applying the Independent Stave factors, the judge approved the consent order, notwithstanding the General Counsel's objection that it did not provide for posting an official Board notice that specifically addressed the refusal to provide information to the charging party. The Board upheld the judge's ruling, finding that the consent order “substantially remedie[d]” the alleged violations.

UPMC, 365 NLRB No. 153 (2017). There, the only allegation against UPMC was that it was a single employer with Presbyterian Shadyside (PS), the respondent company that allegedly committed the violations. Prior to litigating the single-employer allegation (which was severed pending resolution of related subpoena disputes to avoid delaying the substantive allegations against PS), UPMC offered to “guarantee the remediation of any violation” found against PS, and “as a guarantor … [be] liable for [PS's] compliance with any remedy ordered” and to “take any necessary action to ensure compliance” “to the extent PS fails to remediate any unfair labor practices on its own.” The General Counsel and the union objected to UPMC's offer because it was not equivalent to the full joint and several liability that would obtain if UPMC was ultimately adjudicated to be a single employer, which would allow the GC to hold UPMC primarily and directly liable for any violations committed by PS. However, the Board majority found that the GC's and the charging party's opposition were outweighed by the following “countervailing factors”: (1) UPMC's remedial guarantee was “as effective as” a finding of single-employer status; (2) there was no allegation or evidence presented at trial that UPMC had independently committed any unfair labor practices, and thus PS “should be primarily responsible to remedy its own violations”; (3) rejecting UPMC's offer would run the risk that UPMC might ultimately be found not to be a single employer and thus bear no responsibility for remedying the alleged violations; and (4) accepting UPMC's offer would greatly expedite the resolution of the proceeding by avoiding lengthy litigation of the single-employer allegation. Id. at 6–9.

El Super, 28–CA–170463, unpub. Board order issued June 10, 2019 (2019 WL 2435789, 2019 NLRB LEXIS 338). In that case, the General Counsel objected to the proposed consent order because there was a history of prior alleged violations by the respondent and the proposed consent order included a nonadmission clause and did not include “default” language providing for a Board order and court judgment in the event of noncompliance. The Board rejected the GC's objections and found that the consent order was properly approved under Independent Stave because (1) the consent order contained traditional remedies for the alleged violations; (2) the previous alleged violations had been resolved pursuant to a nonadmission informal settlement and a nonadmission consent order and thus did not establish a proclivity to violate the Act; and (3) an alternative enforcement mechanism existed in which the GC could issue a new complaint in the event of noncompliance.

§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 the Board 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.

Positions of Parties. The positions of all parties on the settlement should also be put on the record. See NLRB Statements of Procedure, Sec. 101.9(d)(1). If the issues are somewhat complex, it may be appropriate to request briefs on the advisability of approving a settlement.

Positions of Alleged Discriminatees. In settlements involving alleged discriminatees, their position(s) regarding approval of the settlement should also be put on the record, either directly or indirectly through the General Counsel or the charging party. In Flint Iceland Arenas, 325 NLRB 318, 320 (1998), a Board majority rejected a non-Board settlement in part on this basis. The Board majority held, among other things, that although it is not necessary that all alleged 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 on the record, this is a factor to be considered in evaluating the settlement. See also Alamo Rent-A-Car, Inc., 338 NLRB 275 (2002) (affirming the judge's rejection of a non-Board 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 alleged discriminatees).

Judge's Ruling or Order. As indicated in §§9–320 and 9–420, above, the judge's ruling and reasoning in approving or rejecting the settlement should likewise be stated on the record for purposes of review. See also El Super, 367 NLRB No. 34, slip op. at 1 n. 1 (2018) (judge did not err by including in the hearing record his prehearing decision denying the respondent's motion for approval of a consent order, together with the motion papers and exhibits). 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. As indicated in §9–330, above, if the judge issues an order approving the settlement over objection or rejecting the settlement, aggrieved parties 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 NLRB Statements of Procedure, Sec. 101.9(d)(2).

Recessing Trial and Remanding Pending Compliance. Ordinarily, if a judge approves a settlement on the record, the judge should recess the trial indefinitely pending compliance.

If the settlement is informal, the standard NLRB informal settlement form (NLRB Form 5378) states that the settlement agreement is remanded to the Regional Director to secure compliance with its terms. Form 5378 also provides that, upon notification of compliance, a motion to withdraw the complaint should be filed and the judge should issue an order approving withdrawal of the complaint as well as the answer. See also IATSE Local 16 (Various Employers), 20–CB–213058, unpub Board order issued June 4, 2019 (2019 WL 2408687, 2019 NLRB LEXIS 329) (judge acted in accordance with the terms of the informal settlement agreement and Sec. 10154.4 of the Board's Casehandling Manual in remanding the case to the regional director to secure compliance before entertaining a motion to withdraw the complaint). But cf. McDonald's USA, Inc., 368 NLRB No. 134, slip op. at 8 (2019) (approving informal settlements notwithstanding that they required the General Counsel to move for withdrawal of the consolidated complaints within 10 days after approval, before compliance was effectuated, given the unusual complexity of the consolidated complaints and the Regional Director's ability to reinstate the relevant charges and complaint allegations if the respondents commit post-settlement conduct that violated the terms of the settlement or the Act), rev. denied sub nom. Fast Food Workers Committee & Service Employees Int'l Union v. NLRB, 31 F.4th 807 (D.C. Cir. 2022).

If the settlement is a non-Board settlement that does not include similar provisions, the judge may approve withdrawal of the charge(s), dismiss the complaint, and remand the case to the Regional Director to handle compliance without further involvement by the judge. See, e.g., Longshoremen ILA Local 1814 (Amstar Sugar), 301 NLRB 764, 765 (1991). 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. See §9–800, below, Setting Aside Settlement Agreements.

With respect to formal settlements, see §9–420, above.

§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. Mine Workers (James Bros. Coal), 191 NLRB 209, 209–210 (1971). See also 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); and Concrete Materials of Georgia v. NLRB, 440 F.2d 61, 68 (5th Cir. 1971). But cf. Teamsters Local 115 (Gross Metal Products), 275 NLRB 1547 (1985) (upholding the judge's rejection of a formal settlement after the close of the hearing, 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), enfd. 800 F.2d 1136 (3d Cir. 1986).

Informal settlements containing such clauses are also frequently accepted 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 Section 10130.8 of the NLRB Casehandling Manual (Part 1) states that nonadmission clauses “should not be routinely incorporated in settlement agreements,” this provision is apparently 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 n. 4 (1997).

§9–620 Reservation Clauses: Settlement Bar Rule

As previously discussed in §3–750, above, a 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 (1978), reaffd. in Park-Ohio Industries, 283 NLRB 571, 572 (1987). See also Ratliff Trucking Corp., 310 NLRB 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. See also §13–400, Reliance on Settlements, and §16–402.4, Evidence of Presettlement Conduct, below.

As indicated in §9–410, above, however, a non-Board settlement does not preclude the General Counsel from re-alleging settled matters in subsequent unfair labor practice proceedings. 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 n. 3 (2004) (citing Auto Bus with approval).

For a discussion of the General Counsel's right to use evidence of settled conduct as background to establish motive or objective of a respondent's other conduct occurring before or after the settlement, see §16–402.4, Evidence of Presettlement Conduct, below.

§9–630 Joint and Several Liability

A settlement proposal limited to one of a number of alleged 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 Waiver and Release Provisions

The Board has held that a provision waiving and releasing a respondent from all claims by an employee is a permissible and lawful part of a settlement or severance agreement, unless it prohibits filing future unfair labor practice charges that are unrelated to the past dispute or employment, or prohibits providing evidence in the investigation of charges filed by other employees. See First National Supermarkets, 302 NLRB 727, 727–728 (1991) (employer did not unlawfully require discharged employee to sign a release, as a condition to settling a grievance, that prohibited the employee from filing any future charges arising out of “[his] total employment and [his] discharge,” as the most sensible interpretation of this phrase, in the context of the release and the surrounding circumstances, was that it only prohibited claims that related to his pre-discharge employment); and Clark Distribution Systems, Inc., 336 NLRB 747, 748–749 (2001) (employer violated Section 8(a)(1) by conditioning acceptance of its severance package on a requirement that employees “will not … voluntarily appear as a witness, voluntarily provide documents or information, or otherwise assist in the prosecution of any claims … against the company,” as this language was broad enough to include charges filed by or concerning other employees).

With respect to whether the waiver and release language is sufficient to bar charges involving past conduct, compare Septix Waste, Inc., 346 NLRB 494 (2006) (dismissing 8(a)(1) charges filed by the union, as a prior settlement waived all such claims that “could have been made” as of that date and the new charges were all based on facts in existence at that time), with Quality Roofing Supply Company, 357 NLRB 789 (2011) (distinguishing Septix and finding that the release did not waive the union's right to file a charge regarding conduct that occurred before the settlement, as the conduct was different from any alleged in the settled charges and the release did not contain similar language waiving any charges that “could have been” raised at the time of the settlement.)

§9–650 Non-disparagement and Confidentiality Provisions

In McClaren Macomb, 372 NLRB No. 58 (2023), the Board overruled prior decisions and held that an employer may not offer employees severance and grievance settlement agreements that broadly prohibit them from making statements that could disparage or harm the image of the employer and prohibit them from disclosing the terms of the agreement. The Board held that such provisions unlawfully interfere with employee rights under Section 7 of the Act, and that an employer therefore violates Section 8(a)(1) of the Act by offering agreements to employees that contained such provisions.

See also Texas Transeastern, 16–CA–280275, unpub. Board order issued Dec. 8, 2022 (2022 WL 21829070, 2022 NLRB LEXIS 557). The complaint in that case alleged that the employer unlawfully prohibited employees from discussing wages in the workplace and discharged an employee for doing so. The Board rejected the settlement because, among other things, it did not provide for notice posting or a reinstatement remedy and included a broad confidentiality provision, and thus provided no mechanism for informing the employees of their statutory rights.

§9–660 Taxability

Backpay is generally taxable as income in the year it is received. See Tortillas Don Chavas, LLC, 361 NLRB 101, 104 (2014) (requiring respondents to compensate employees for the adverse income tax consequences of receiving lump-sum backpay awards in a calendar year other than the year in which the income would have been earned absent the violation).

A number of circuit courts have held that awards of both back and front pay under Title VII, ADEA, and ERISA are “wages” subject to statutory withholding of income and FICA taxes. See Noel v. New York State Office of Mental Health, 697 F.3d 209, 213 n. 4 (2d Cir. 2012), and cases cited there.

§9–700 Grievance/Arbitration Settlements

As discussed in §3–740, Deferral to Grievance Arbitration, the Board applies the same deferral principles to grievance/arbitration settlements as it does to arbitral awards.

§9–800 Setting Aside Settlement Agreements

Informal and non-Board settlements may be set aside if their provisions are breached, postsettlement unfair labor practices are committed, or the settlement is so ambiguous that there was no meeting of the minds.

Noncompliance with Settlement. Section 101.9(e)(2) of the Board's Statements of Procedure 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. This includes the authority to set aside only part of a settlement. Geodis Logistics, LLC, 372 NLRB No. 128 (2023).

It is also well established that a Regional Director has the authority to reinstate a withdrawn charge following noncompliance with a non-Board settlement agreement, notwithstanding Section 10(b) of the Act, provided the original charge was timely filed. See Sterling Nursing Home, 316 NLRB 413, 416–417 (1995); and Norris Concrete Materials, 282 NLRB 289, 291 (1986). See also Starbucks Corp., 12–CA–295949, unpub. Board order issued June 26, 2023 (2023 WL 5953883, 2023 NLRB LEXIS 294), at 1 n. 3; and Electrical Workers Local 611, 28-CA-273757, unpub. Board order issued June 6, 2022 (2022 WL 2063166, 2022 NLRB LEXIS 226), at 1 n. 3.

The Regional Director's action in setting aside the settlement and reactivating the case is reviewable by the judge and the Board in the proceeding on the new complaint. For cases upholding the Regional Director's action, see Sidhal Industries, LLP, 356 NLRB 422 (2010) (Regional Director set aside settlement and reissued complaint pursuant to the settlement's default language, where the employer complied with the 8(a)(3) remedial provisions of the settlement, but not the 8(a)(5) provisions); Nations Rent, Inc., 339 NLRB 830, 831 (2003) (employer reinstated and made whole the employee, but continued to maintain an overbroad rule and failed to notify the employee in writing that his discipline had been expunged); and Postal Workers Local 735, 340 NLRB 1363, 1364–1365 (2003) (respondent union's president published a post-settlement column, either during or immediately after the notice-posting period, which condemned the charging party and lauded the steward whose conduct led to the original charge). But see Courier Journal, 342 NLRB 1148, 1149–1150 (2004) (union's failure to protest closure of the original case on compliance pursuant to a settlement agreement precluded an unfair labor practice complaint predicated on the company's failure to furnish certain information not provided at the time of compliance).

For a case finding an abuse of discretion, see East Brunswick European Wax Center, LLC v. NLRB, 23 F.4th 238 (3d Cir. 2022) (denying enforcement of the Board's default judgment where the Regional Director reissued the complaint and the Board granted the General Counsel's motion for default judgement because the employer emailed the notice to employees instead of texting it as required by settlement, which the court found was a “hyper-technical and relatively insignificant violation” of the settlement).

Where a settlement has been set aside, a full remedy should normally be issued on request for the alleged presettlement conduct, less any amounts already paid pursuant to the settlement. See Sidhal Industries, above, at n. 2. But see Totilleria La Poblanita, 357 NLRB 191, 194 (2011). In that case, the General Counsel's motion for default judgment specifically requested only that the respondent be ordered to pay the unpaid balance of the backpay amount provided in the settlement. Although the motion also generally requested “that the Board grant such further and other relief as may be appropriate,” the Board concluded that the GC was not seeking remedies beyond those specified in the settlement and therefore limited its remedial order accordingly. See also Midwestern Video Personnel, Inc., 363 NLRB No. 120, slip op. at 2–3 (2016); and Frontline Security Services, Inc., 367 NLRB No. 130, slip op. at 3–4 (2019).

If the General Counsel fails to prove non-compliance, the agreement should be reinstated and the applicable allegations dismissed. Geodis Logistics, above.

New Unfair Labor Practices. Subsequent or continuing unfair labor practices will ordinarily justify setting aside a settlement agreement. Quickway Transportation, Inc., 372 NLRB No. 127, slip op. at 21 (2023) (Region properly vacated and set aside two informal settlements when respondent committed additional violations shortly after entering into the settlements), enfd. 117 F.4th 789 (6th Cir. 2024). See also ConAgra Foods, Inc., 365 NLRB No. 102, slip op. at 2–3 (2017); Scripps Memorial Hospital Encinitas, 347 NLRB 52, 53 (2006); and YMCA of the Pikes Peak Region, Inc., 291 NLRB 998, 1010, 1012 (1988), enfd. 914 F.2d 1442, 1449–1450 (10th Cir. 1990).

However, new unfair labor practices will not warrant setting aside a settlement if they are “isolated” or “insubstantial.” See Diamond Electric Mfg. Corp., 346 NLRB 857, 862–863 (2006) (finding a single post-settlement 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 the settlement. See Doubletree Guest Suites Santa Monica, 347 NLRB 782, 782–783 (2006) (setting aside an informal settlement because the “WE WILL NOT” provision of the notice at issue was ambiguous and neither of the interpretations advanced by the parties resolved the ambiguity); and IATSE, Local 659, 197 NLRB 1187 (1972) (setting aside informal settlement where the circumstances indicated that there was no meeting of the minds when the settlement was executed regarding the formula that would be used by the Regional Director to determine the backpay amount), enfd. mem. 477 F.2d 450 (D.C. Cir. 1973).

Compare Jam Productions, Ltd., 367 NLRB No. 30 (2018) (finding that an informal settlement's silence regarding whether the terminated employees were entitled to seniority on the on-call list indicated that the parties specifically agreed not to include such a requirement; that the settlement was therefore not ambiguous; and that the judge therefore erred in setting aside the agreement because there was no meeting of the minds); and Inter-Lakes Engineering Co., 217 NLRB 148 (1975) (declining to set aside settlement because of the parties' dispute over its meaning, as the settlement's meaning was clear on its face). See also McDonald's USA, LLC, 368 NLRB No. 134, slip op. at 10 n. 37 (2019) (rejecting the ALJ's finding that there was no meeting of the minds between the General Counsel and respondent McDonald's based on their apparently conflicting statements at the hearing, as their subsequent statements and briefs to the ALJ and the Board demonstrated “a coherent and consistent understanding of their obligations under the settlement agreements”), petition for rev. denied sub nom. Fast Food Workers Committee & Service Employees Int'l Union v. NLRB, 31 F.4th 807 (D.C. Cir. 2022).

§9–900 Default Judgment for Noncompliance with Settlement

As indicated in §9-800 above, informal settlements often include provisions for issuance of a default judgment if the respondent fails to comply with the settlement's terms. However, the provisions typically require the Regional Director to give the respondent at least 14 days' notice of such noncompliance before filing the motion for default judgment. See, e.g., Nursing Center at University Village, 367 NLRB No. 43 (2018). Further, the Board has held that it is a denial of due process to issue a default judgment for noncompliance with a settlement without giving the respondent prior notice and an opportunity to be heard regarding the alleged noncompliance. See ConAgra Foods, above, slip op. at 3.

If the respondent's response raises a genuine issue of material fact regarding the alleged noncompliance, the parties are entitled to a hearing on the disputed issue(s) before an ALJ. Star Garden Enterprise, 373 NLRB No. 76 (2024) (denying the General Counsel's motion for default judgment based on respondent's alleged noncompliance with a settlement, where a genuine issue of material fact existed over whether respondent reopened its business operations as required in the settlement); and Indy Core, 373 NLRB No. 70 (2024) (same, where factual dispute existed over whether respondent's response to information requests complied with the settlement agreement).

However, if the respondent's response fails to raise any such material factual issue, it is appropriate to rule on the General Counsel's motion for default judgment without a hearing. American Backflow & Fire Prevention, 373 NLRB No. 71 (2024) (granting GC's motion for default judgment where settlement agreement required respondent to recognize and bargain with the union and respondent admittedly withdrew recognition from it without proffering any factual basis for lawfully doing so). See also Bristol Manor Health Care Center, 360 NLRB 38 (2013) (respondent's contention that certain requested information had been provided to the union as required by the settlement did not raise a material factual issue because respondent did not directly deny that certain other information had still not been provided); and Rogan Bros. Sanitation, Inc., 357 NLRB 1655 (2011) (respondent's contention that its general manager lacked authority to enter into the settlement and was coerced into signing it by the Board agent did not raise a material factual issue because the respondent had ratified the agreement by its subsequent conduct and the Board agent's alleged statements simply informed the manager of the Board's processes and the possible consequences of refusing to settle).

Of course, a hearing is also unnecessary if the parties stipulate to the material facts. See Outokumpu Stainless USA, LLC, 365 NLRB No. 127 (2017) (affirming the ALJ's finding, based on a stipulated record, that the respondent employer breached an informal Board settlement by posting, next to the Board's remedial notice, a side letter that undermined the effectiveness of the notice, and that a default judgment was therefore warranted pursuant to the noncompliance provisions of the settlement)., enfd. 773 F. Appx. 531 (11th Cir. 2019).

§9–1000 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 court-enforceable order in the case and the decision has no preclusive effect on the parties.” Caterpillar, Inc., 332 NLRB 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.

§9–1100 Role of Settlement Judge

The role of a settlement judge is established and defined by Section 102.35(b) of the Board's Rules:

Upon the request of any party or of the Administrative Law Judge assigned to hear a case, or upon the Chief Judge, Deputy Chief Judge or Associate Chief Judge's own motion, the Chief Judge, Deputy Chief Judge or an Associate Chief Judge may assign a Judge other than the trial judge to conduct settlement negotiations. In exercising this 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. However, no such assignment will 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. Where feasible, settlement conferences will 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 must not unduly delay the hearing.

(4) All discussions between the parties and the settlement judge will be confidential. The settlement judge must 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 will 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.

(5) No decision of a 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 is 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,” a settlement judge was assigned to be the trial judge in the absence of any objections in *Kingsbridge Heights Rehabilitation and Care Center, 353 NLRB 631, 633 n. 5 (2008).

Note that the settlement judge has no authority to rule on a motion to approve a settlement over objections. Such a motion should be made to the trial judge.

CHAPTER 10. MOTIONS AND SPECIAL APPEALS

Motions and requests for special permission to appeal ALJ rulings are addressed in Sections 102.24 through 102.26 of the Board rules, respectively. Section 102.24(a) describes where to file motions made before, during, and after the hearing but before transfer of the case to the Board. Section 102.24(b) addresses motions for summary judgment or dismissal. And Section 102.24(c) states that the party filing a motion may file a reply to an opposition to the motion within 7 days of receipt of the opposition; however, further responses are not permitted absent special circumstances warranting leave to do so.

Section 102.25 addresses prehearing motions and motions made after opening of the hearing that are ruled on by the administrative law judge designated to conduct the hearing.

Section 102.26 addresses motions and related rulings and orders that will be made part of the record and requests to the Board for special permission to appeal a ruling by the judge.

As discussed below, specific types of motions are addressed in more detail in other sections of the rules or in Board decisions.

§10–100 Motions In Limine

Judges have authority to rule on motions in limine seeking to limit the issues or evidence to be litigated or presented at a hearing. See, e.g., Trader Joe's East, 02–CA–306679, unpub. Board order issued June 24, 2024 (2024 WL 3160636) (ALJ did not abuse his discretion in denying respondent's motion in limine seeking to exclude the restoration remedy sought by the General Counsel); TNT Logistics, 346 NLRB 1301 n. 1 (2006) (ALJ properly granted the GC's prehearing motion in limine to strike seven of the respondent's eight affirmative defenses as they were not relevant to the complaint allegations), enfd. 246 F. Appx. 220 (4th Cir. 2007); Farm Fresh Company, Target One, 361 NLRB 848 n. 1 (2014) (ALJ did not abuse his discretion by granting the GC's motion in limine to exclude certain direct questions about the alleged discriminatees' immigration status); Operating Engineers Local 18 (Nerone & Sons), 8–CD–135243, unpub. Board order issued July 12, 2016 (2016 WL 3743256) (ALJ did not abuse his discretion by granting the charging party employer's prehearing motion in limine to bar the respondent union from relitigating in the 8(b)(4)(ii)(D) unfair labor practice proceeding threshold issues that had been addressed by the Board in the prior related 10(k) jurisdictional work-assignment proceedings); VNS Federal Services, LLC, 9–CA–262035, unpub. Board order issued June 21, 2021 (2021 WL 2582176, 2021 NLRB LEXIS 244) (ALJ did not abuse his discretion by granting Acting GC's motion in limine to exclude evidence related to issues properly raised in a compliance proceeding rather than the unfair labor practice proceeding); and Cargill, Inc., 7–CA–270555, unpub. Board order issued April 20, 2021 (2021 WL 1814988, 2021 NLRB LEXIS 142) (ALJ did not abuse his discretion by granting in part motions in limine filed by the Acting GC and the charging party union to exclude certain evidence pursuant to the parol evidence rule).

See also Voith Industrial Services, 363 NLRB No. 109, slip op. at 1 n. 2 (2016) (ALJ granted GC's motion in limine to prevent litigation of the respondent employer's successorship status and duty to bargain, issues that had been previously litigated and decided by a different ALJ in a case that was pending before the Board on exceptions). For a discussion of relying on ALJ decisions that are pending before the Board on exceptions, see §13–300, below.

§10–200 Motions for Decision Based on Stipulated Record

Under section 102.35(a)(9) of the Board's Rules, a record may be stipulated directly to the Board for decision, provided the parties consent and waive a hearing and decision by the judge. Alternatively, under the same section, the parties may agree to waive a hearing and stipulate facts to the judge for issuance of a decision. In that event, the judge should make sure the stipulation is complete enough to support a decision on all relevant issues.

If the stipulated record is sufficient, the judge may approve it even over the objection of the charging party. However, the charging party should be given an opportunity to make an offer of proof regarding the contrary evidence or additional material facts it would introduce at a hearing. See Hobby Lobby Stores, Inc., 363 NLRB No. 195, slip op. at 1 n. 2 (2016) (rejecting the charging party's argument that the judge improperly approved the joint motion of the General Counsel and the respondent to resolve the case on a stipulated record, as the stipulation included sufficient evidence to evaluate the complaint, and the additional evidence that the charging party sought to introduce exceeded the scope of the GC's theory), reaffirmed 367 NLRB No. 78, slip op. at 1 n. 1 (2019). See also Borg-Warner Corp., 113 NLRB 152, 154 (1955), rev. denied 231 F.2d 237 (7th Cir. 1956).

The Board has long held that a stipulation of fact is conclusive, precluding withdrawal or further dispute by a party to the stipulation after it has been accepted. See T-Mobile USA, Inc., 363 NLRB 1638, 1650 n. 7 (2016) (denying respondent's motion to supplement stipulations with declarations and other submissions), and Woodland Clinic, 331 NLRB 735, 741 (2000), citing Kroger Co., Houston Div., 211 NLRB 363, 364 (1974). See also Academy of Art College, 241 NLRB 454, 454–455 (1979) (rejecting respondent's contention that it was “manifestly unjust” to assert discretionary jurisdiction over it based on stipulations of fact that had been entered into the hearing record), enfd. sub. nom. Stephens Institute v. NLRB, 620 F.2d 720, 725 (9th Cir. 1980).

Similarly, where the parties have stipulated to the issues for resolution, only those issues should be considered. Dynamic Nursing Services, Inc., 369 NLRB No. 49, slip op. at 3 n. 2 (2020) (declining for this reason to consider the respondent's argument that the complaint allegation should be dismissed pursuant to the Board's postarbitral deferral standard).

For a discussion of how courts have addressed requests to withdraw from stipulations, see U.S. v. Kanu, 695 F.3d 74 (D.C. Cir. 2012). See also Graham, 6 Handbook of Fed. Evid. §801:26 (10th ed. Nov. 2024 Update).

§10–300 Motions for Summary Judgment or Default Judgment

Section 102.24(a) of the Board's Rules provides that all prehearing motions for default judgment, summary judgment, or dismissal must be filed with the Board. Section 102.24(b) further provides that all motions for summary judgment or dismissal must be filed with the Board no later than 28 days before the scheduled hearing. If no hearing is scheduled, or the hearing is scheduled less than 28 days after the date for filing an answer, the motion must be filed with the Board “promptly.”

Therefore, if a motion for default judgment, summary judgment, or dismissal is filed with the assigned administrative law judge or the judge's division prior to the hearing, it should be transferred to the Board. See, e.g., Starbucks Corp., 03–CA–296757, unpub. Board order issued March 23, 2023 (2023 WL 5828722, 2023 NLRB LEXIS 134), at 1 n. 2 (motion for summary judgment); and Starbucks Corp., 01-CA-302321, unpub. Board order issued April 13, 2023 (2023 WL 5828719, 2023 NLRB LEXIS 169), at 1 n. 3 (motion to dismiss). See also Mexican Radio Corp., 372 NLRB No. 77, slip op. at 1 n. 6 (2023) (motion for partial summary judgment in compliance proceeding). The Board will rule on any procedural and substantive issues raised by the motion. See Starbucks Corp., 02–CA–303077, unpub. Board order issued April 13, 2023 (2023 WL 5954027, 2023 NLRB LEXIS 168) (“As [Respondent's motion to dismiss] was filed prior to the opening of the hearing, the Board is the proper entity to rule on it.”). See also Pfanstiehl, Inc., 13–CA–247694, unpub. Board order issued July 26, 2022 (2022 WL 2981151, 2022 NLRB LEXIS 314), at 1 and n. 1 (denying respondent's motion to dismiss because it was untimely filed 27 days before the hearing, without prejudice to respondent's right to renew its dismissal argument before the ALJ); William Beaumont Hospital, 07–CA–244615, unpub. Board order issued Aug. 27, 2020 (2020 WL 5824488, 2020 NLRB LEXIS 438) (denying respondent's motion to dismiss because it was untimely filed 17 days before the hearing); and American Federation for Children, 28–CA–246878, unpub. Board order issued March 2, 2021 (2021 WL 450670, 2021 NLRB LEXIS 83), at 1 n. 2 (accepting respondent's motion to dismiss or for summary judgment as timely filed, notwithstanding the Acting General Counsel's argument that the motion should be rejected because it was filed with the Division of Judges rather than the Board and there were now less than 28 days prior to the hearing, “in light of the fact that no party has shown that it was prejudiced by the Respondent's procedural error”).

Motions for default judgment, summary judgment, or dismissal at the hearing must be made in writing to the ALJ or stated orally on the record. Sec. 102.24(a). The judge has authority under Section 102.35(a)(8) of the Board's Rules to rule on such motions at the hearing even if the moving party could have but failed to file the motion with the Board at least 28 days prior to the hearing. See Calyer Architectural Woodworking Corp., 338 NLRB 315 n. 1 (2002).

Summary judgment is warranted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See, e.g., Brooklyn 181 Hospitality, LLC, 373 NLRB No. 125 (2024) (granting General Counsel's motion); Amazon.Com Services, LLC, 373 NLRB No. 40 (2024) (granting GC's motion and denying respondent's cross-motion); Mercedes-Benz U.S. International, Inc., 365 NLRB No. 67, slip op. at 1 (2017) (denying GC's motion); and Leukemia and Lymphoma Society, 363 NLRB 1084 (2016) (denying respondent's motion). See also Southwest Key Programs, Inc., 28–CA–298718, unpub. Board order issued Dec. 22, 2023 (2023 WL 888952, 2023 NLRB LEXIS 605) (denying respondent's motion to dismiss complaint as time barred under Sec. 10(b)).

It is not necessary for the party opposing summary judgment to submit affidavits or other evidence establishing a factual dispute. Section 102.24(b) of the Board's Rules states:

Neither the opposition nor the response must be supported by affidavits or other documentary evidence showing that there is a genuine issue for hearing. The Board in its discretion may deny the motion where the motion itself fails to establish the absence of a genuine issue, or where the opposing party's pleadings, opposition and/or response indicate on their face that a genuine issue may exist.

See also Leukemia and Lymphoma Society, 363 NLRB at 1084 n. 1.

§10–400 Motions to Dismiss

As indicated above, the same procedural rules in Sections 102.24(a) and (b) governing motions for summary or default judgment also apply to motions to dismiss the complaint.

In ruling on a motion to dismiss at the hearing based on the pleadings, the judge should follow the same standard the Board uses in ruling on prehearing motions to dismiss; 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 n. 7 (2000). See also §3–220, Adequacy of Complaint, above.

Where the motion to dismiss is filed at the close of the General Counsel's case, the judge should evaluate whether the GC had “satisf[ied] his duty to establish a prima facie case by presenting evidence sufficient to demonstrate the occurrence of an unfair labor practice.” Yale University, 330 NLRB 246, 247 (1999) (affirming the judge's dismissal of the 8(a)(3) discrimination allegations at the close of the General Counsel's case in chief as the GC had failed to make a prima facie showing that the alleged discriminatees' conduct was protected, an essential element of the case against the employer). See also Central Telephone Company of Texas, 343 NLRB 987, 998, Appendix B (2004) (upholding the judge's bench decision granting the respondent's motion to dismiss the complaint after the General Counsel rested); and St. Mary's Nursing Home, 342 NLRB 979, 980 n. 6 (2004) (finding that the judge erroneously ruled from the bench that the General Counsel had failed to establish animus in a discrimination case).

The judge should also consider whether the General Counsel is seeking to pursue a new theory of violation that has not previously been considered by the Board. See Fry's Food Stores, 358 NLRB 704, 705 (2012), reaffd. 362 NLRB 292 (2015) (discussing the Board's earlier Oct. 18, 2010 unpublished ruling granting the General Counsel's special appeal of the judge's order granting the respondent union's motion to dismiss), vacated and remanded 851 F.3d 21 (D.C. Cir. 2017).

When granting a motion to dismiss, 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 (2000).

See also the cases cited in §3–740 above, addressing motions to defer to arbitration, which are also essentially motions to dismiss.

Regarding amendments to the complaint while a motion to dismiss is pending, see Starbucks Corp., Case 10–CA–291616, unpub. Board order issued Nov. 9, 2022 (2022 WL 16851736, 2022 NLRB LEXIS 512), discussed in §3–310, above.

§10–500 Motions 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. The judge is authorized to rule on such a procedural motion under Section 102.35(a)(8) of the Board's Rules.

Section 102.35(a)(8) does not set forth any standards for ruling on such contested motions. Thus, ALJs appear to have considerable discretion. See, e.g., New Otani Hotel & Garden, 325 NLRB 928, 946 (1998) (denying the charging party union's motion to reopen the record, filed 9 months after the hearing ended and while the ALJ decision was in the final stages of preparation, to present evidence of certain events 1-2 months earlier that the union argued tended to show the alleged discriminatees had been disparately treated).

However, the provisions in Section 102.48(c) [formerly 102.48(d)] of the Board's Rules, which are applied by the Board in ruling on motions to reopen, may provide guidance. See, e.g., Lockheed Martin Tactical Aircraft Systems, 331 NLRB 1407 n. 1, 1413 (2000) (ALJ cited the rule in denying respondent's motion to reopen the hearing to introduce portions of the transcript from an ancillary 10(j) injunction proceeding in federal court); and Apex Investigation & Security Co., 302 NLRB 815 n. 1, 816 n. 1 (1991) (ALJ cited the rule in denying respondent's motion to reopen the hearing to receive certain evidence respondent claimed supported its position that the union did not represent a majority of the employees). Section 102.48(c) states in relevant part:

(1) … A motion to reopen the record must state briefly the additional evidence sought to be adduced, why it was not presented previously, and that, if adduced and credited, it would require a different result. Only newly discovered evidence, evidence which has become available only since the close of the hearing, or evidence which the Board believes should have been taken at the hearing will be taken at any further hearing.

(2) … [A] motion to reopen the record must be filed promptly on discovery of the evidence to be adduced.

To qualify as newly discovered or previously unavailable under 102.48(c)(1), the evidence must have existed at the time of the hearing. ILWU Local 4, 367 NLRB No. 64, slip op. at 5–6 (2019), enf. denied and remanded on other grounds 978 F.3d 625 (9th Cir. 2020); Circus Circus Las Vegas, 366 NLRB No. 110, slip opinion at 1 n. 1 (2018), enf. denied and remanded on other grounds 961 F.3d 469 (D.C. Cir. 2020); Security Walls, Inc., 365 NLRB No. 99, slip op. at 7 and n. 17 (2017), rev. denied 921 F.3d 1053 (11th Cir. 2019); Ford Store San Leandro,349 NLRB 116 n. 1 (2007); and Fitel/Lucent Technologies, Inc., 326 NLRB 46 n. 1 (1998); and cases cited there. See also Coreslab Structures (Tulsa) Inc., 372 NLRB No. 31, slip op. at 1, n. 1 (2022) (denying respondent's motion to reopen the record to receive a post-hearing statement by its witness), enfd. denied in part on other grounds 94 F.4th 969 (10th Cir. 2024).

The movant must also show that it was “excusably ignorant” of the newly discovered or previously unavailable evidence and “acted with reasonable diligence to uncover and introduce the evidence.” Circus Circus Las Vegas, above (denying the respondent's motion to reopen to introduce certain work-order records, as they were routinely created and maintained electronically and respondent was certainly aware of their existence). See also Fitel/Lucent Technologies, above (finding that the respondent's mere assertion that the evidence was not found before the hearing despite a diligent search of its records fell short of the requisite showing); and Walden Security, Inc., 366 NLRB No. 44, slip op. at 1 n. 2 (2018) (denying the respondent's motion to reopen as the evidence respondent sought to introduce was apparently in its possession at the time it agreed to submit the case to the judge on a stipulated record).

The movant must also demonstrate that the evidence would require a different result. Security Walls, Inc., above; Fitel/Lucent Technologies, above; and County Waste of Ulster, 354 NLRB 392 (2009), reaffd. 355 NLRB 413 (2010).

Finally, under 102.48(c)(2), the motion to reopen must be filed “promptly.” See, e.g., Labor Ready, Inc., 330 NLRB 1024 (2000) (motion to reopen following issuance of Board's decision was not filed “promptly” where it was not filed until 3 months after the evidence was subpoenaed); and Michigan State Employees Assoc., 364 NLRB No. 65, slip op. at 1 (2016) (motion to reopen following issuance of ALJ's decision was not filed “promptly” where the motion was not filed until 2 1/2 months after the evidence was obtained through discovery in a state court proceeding). See also Purple Communications, Inc., 28–CA–179794, unpub. Board order issued Feb. 24, 2021 (2021 WL 738732, 2021 NLRB LEXIS 68) (denying respondent's motion to modify remedy in Board's decision as it was essentially a motion to reopen to admit evidence of certain events; the events had occurred 1–3 years before the motion was filed; and respondent failed to explain why the evidence was not presented previously or promptly upon discovery).

Note that, while Section 102.35(a)(8) is somewhat unclear, it appears that ALJs have the discretion to reopen the record sua sponte at least in some circumstances, such as to revisit and reconsider an evidentiary ruling. See Local 3, Electrical Workers, 257 NLRB 1358,1362 n. 11 (1981) (judge reopened the record sua sponte to reconsider one of his evidentiary rulings and, after receiving additional testimony, reversed that evidentiary ruling).

For a case where the Board held that reopening the record sua sponte was an abuse of discretion, see New York Paving, Inc., 370 NLRB No. 44, slip op. at 1 n. 2 (2020), enfd. per curiam 2021 WL 6102199, 2021 U.S. App. LEXIS 36626 (D.C. Cir. Dec. 10, 2021). In that case, the ALJ reopened the record sua sponte to add the collective-bargaining agreement between the charging party union and the respondent, which had been included in the record in two previous cases involving the parties and which the judge believed was necessary to complete the record and evaluate certain representations in the General Counsel's posthearing brief. On exceptions, the Board found that the judge's ruling “abused her discretion,” but affirmed, based on the other record evidence, her conclusion that the respondent violated the Act.

For a discussion of the authority and discretion of federal courts to reopen the record on their own motion, see Keith v. Volpe, 858 F.2d 467, 478–479 (9th Cir. 1988), (reopening the record sua sponte to receive additional evidence is “unusual” but “within the discretion of the trial court” where the evidence is “both important as a matter of preventing injustice and reasonably …available.”).

See also §16–201, below (discussing the authority of ALJs to take judicial notice).

§10–600 Interlocutory Special Appeals from Judges' Rulings

Section 102.26 of the Board's Rules permits a party to file a request to the Board for “special permission to appeal” ALJ rulings or orders on motions. The request must be filed “in writing promptly and within such time as not to delay the proceeding.” See Starbucks Corp., 373 NLRB No. 87 (2024) (denying respondent's special appeal from ALJ's ruling granting the General Counsel's request to present just-and-proper evidence during the unfair labor practice hearing where respondent did not file the request for 7 weeks after the ruling); Alivio Medical Center, Inc., 13–CA–300158, unpub. Board order issued September 30, 2024 (2024 WL 4357867) (denying respondent's special appeal from ALJ's ruling revoking subpoenas where respondent waited approximately 5 months to file its appeal request); Amazon.com Services, LLC, 29–CA–277198, unpub. Board order issued June 15, 2022 (2022 WL 2191112, 2022 NLRB LEXIS 242) (denying respondent's special appeal from ALJ's ruling to hear the case by videoconference where respondent waited 9 days to file its appeal request and then did so 20 minutes before the close of business just one business day before the hearing was to commence). and Hampton Roads Shipping Assoc., 5–CA–176015, unpub. Board order issued March 13, 2018 (2018 WL 1325100, 2018 NLRB LEXIS 787) (denying the General Counsel's special appeal from certain ALJ subpoena and evidentiary rulings during the first several days of hearing, without prejudice to raising the same arguments on exceptions, as the appeal was not filed with the Board until 2 months later, during a recess in the hearing). Compare Texas Transeastern, 16–CA–280275, unpub. Board order issued Dec. 8, 2022 (2022 WL 21829070, 2022 NLRB LEXIS 557), at 1 n. 2 (finding that the GC's special appeal from the ALJ's order accepting a non-Board settlement was not untimely under the rule, notwithstanding that it was filed 43 days after the ruling, in the absence of any showing of prejudice). The request and any responses must also be served on the parties and the judge.

A judge is not required to grant a recess in the hearing pending a special appeal and may continue with and close the hearing without waiting for the Board to rule. See, e.g., Custom Excavating, Inc., 228 NLRB 285, 286 (1977). See also Cargill, Inc., 7–CA–270555, unpub. Board order issued April 20, 2021 (2021 WL 1814988, 2021 NLRB LEXIS 142) (leaving “to the discretion of the judge” the respondent's request to postpone the hearing pending the Board's ruling on the respondent's special appeal of the judge's ruling granting in part motions in limine filed by the Acting General Counsel and the union). However, if 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 specific resumption date and resume the hearing on that date if the special appeal is not filed within a certain period of time (no less than one week).

If the Board grants the request for special permission to appeal and upholds or reverses the ALJ's ruling, that Board's order normally establishes “the law of the case, which governs the future course of proceedings.” Teamsters Local 75 (Schreiber Foods), 349 NLRB 77, 80 (2007), enfd. in part and remanded in part 522 F.3d 423 (D.C. Cir. 2008).

CHAPTER 11. SEQUESTRATION OF WITNESSES

§11–100 In General

Federal Rule of Evidence 615(a) requires a judge, “at a party's request,” to “order witnesses excluded from the courtroom so that they cannot hear other witnesses' testimony,” subject to certain exceptions. The judge may also do so sua sponte. In addition, under FRE 615(b), the judge “may” (1) “prohibit disclosure of trial testimony” to excluded witnesses, and (2) “prohibit witnesses from accessing trial testimony.”

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 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, 237 NLRB 1306, 1307 (1979). See also Greyhound Lines, 319 NLRB 554 (1995) (setting forth a model sequestration order).

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, 237 NLRB at 1306–1307. Specific situations addressed by the Board and courts are discussed in the sections below.

§11–200 Scope of Sequestration Order

The model sequestration order in the Board's 1995 Greyhound Lines decision is set forth in §1–300, above. As indicated there, it is appropriate for an ALJ, not only to exclude potential witnesses from the courtroom during the hearing, but also to bar potential witnesses from discussing their testimony with each other until the hearing is concluded. It is also appropriate to instruct counsel not to inform potential witnesses of testimony by other witnesses (except those for the other side) either by showing them transcripts or otherwise.

Consistent with the 2023 amendment to FRE 615(b), the ALJ may also prohibit excluded witnesses from accessing hearing testimony (at least of witnesses for the same side) in any other manner. As stated in the Advisory Committee Notes, “the rule gives the court discretion to determine what requirements, if any, are appropriate in a particular case to protect against the risk that witnesses excluded from the courtroom will obtain trial testimony.” For example, a court could prohibit witnesses from monitoring trials that are being streamed or have been posted online. Goode and Wellborn, Courtroom Handbook on Federal Evidence, Rule 615 (April 2024 Update). The Board has not yet addressed the limits of an ALJ's discretion in fashioning such an order.

As discussed in the next section, an ALJ may also properly impose certain limits on witnesses conferring with counsel during recesses in their testimony.

§11–210 Conferring with Counsel

Nonparty witnesses. The trial judge has discretion, pursuant to a sequestration order, to instruct nonparty witnesses not to discuss their testimony with anyone, including the parties' counsel, during recesses in the witnesses' testimony. Geders v. U.S., 425 U.S. 80, 87–88, (1976).

Party witnesses. The judge likewise has discretion to instruct party witnesses not to confer with counsel during a short recess between direct and cross-examinations. Perry v. Leeke, 488 U.S. 272, 283–284 (1989). See also United Chrome Products, 288 NLRB 1176 n. 1 (1988), where the Board rejected the respondent's contention that the judge improperly directed its general manager not to discuss his testimony with respondent's counsel during a 10-minute recess. The Board noted that the recess occurred during the General Counsel's direct examination of the general manager as a hostile witness; the judge stated that the general manager could talk with respondent's counsel during the recess about anything except “what he testified and how to change it”; and the judge also stated that the general manager could be prepared for questioning by respondent's counsel on completion of the GC's direct examination.

However, in Geders, above, the Court held that the trial judge deprived the criminal defendant of this Sixth Amendment right to the assistance of counsel by prohibiting him from consulting with his counsel about anything during a 17-hour overnight recess after the conclusion of his direct testimony. The Court reasoned that it is common practice for an accused to discuss matters other than testimony with counsel during a long recess, including trial tactics and strategy and information relevant to the case.

The Fifth Circuit subsequently reached a similar conclusion in a civil case, based on the Fifth Amendment right to due process. The court held that the trial judge erred in barring the defendant corporation's president and sole shareholder from having any discussions with the corporation's counsel from the time his testimony commenced until it was completed, which effectively barred him from talking to counsel for 7 days, including during several overnight recesses. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1117 (5th Cir. 1980).

Opposing counsel “may cross-examine a defendant as to the extent of any ‘coaching’ during a recess, subject, of course, to the control of the court.” Geders, 425 U.S. at 89. Such questioning may properly include “whether [the defendant] met with his attorney and whether his testimony was discussed at those meetings.” U.S. v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994) (prosecutor in jury trial did not violate the attorney-client privilege by asking the defendant on cross-examination whether he had met with his attorney and whether his testimony was discussed at those meetings, and by then exposing a subtle difference in the witness's testimony before and after a recess during direct examination to raise an inference of coaching, as the prosecutor's questions did not reach the substance of the legal advice given to the defendant).

Pursuant to the crime/fraud exception to the attorney-client privilege, the questioning may also include the substance of the conversations with counsel where there is reason to believe the witness was coached to testify falsely. See U.S. v. Townsley, 843 F.2d 1070, 1086 (8th Cir. 1988) (crime or fraud exception applied where lawyer actively coached witnesses to present a uniform, knowingly untruthful story). See also Smithfield Packing Co., 344 NLRB 1, 14 and n. 60 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006), discussed in §8–420, above (crime/fraud exception applied to otherwise privileged communications regarding the preparation of false affidavits).

§11–300 Requests to Separate Witnesses

As indicated above, if a request is made, the judge is required to order witnesses excluded. FRE 615(a) and Unga Painting, 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 n. 1 (1979) (finding no prejudice where the judge in a pre-Unga Painting hearing denied a request because the large number of witnesses and severe spatial limitations rendered separation impossible), enfd. in relevant part 607 F.2d 1213 (8th Cir. 1979).

No time is specified for making the request to separate witnesses. See FRE 615. See also AEI2, 343 NLRB at 433 n. 4, and authorities cited there. But see Alpert's, Inc., 267 NLRB 159 n. 1 (1983) (upholding the judge's denial of a 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 the judge's own motion, i.e., even if not requested. FRE 615(a).

Finally, the judge also has discretion to order that witnesses be excluded before opening statements so that they do not hear counsel's summaries of what the trial evidence will show. See U.S. v. Baca, 447 F.Supp.3d 1232, 1237–1238 (D. N.M. 2020), and cases cited there.

§11–400 Who Should and Should Not Be Separated

All potential witnesses should be excluded from the trial. Unga Painting, 237 NLRB at 1307; and Greyhound, 319 NLRB at 554. However, as discussed below, both FRE 615 and the Board recognize several exceptions. Because of the presumption of automatic sequestration upon request of a party, the party opposing sequestration has the burden of demonstrating why the pertinent exception applies. See Ashworth et al., 33A Fed. Proc., L. Ed. §80:47 (Nov. 2023 Update); and 4 Weinstein's Federal Evidence §615.04[5] (2021), citing, e.g., Opus 3 Ltd. v. Heritage Park, 91 F.3d 625, 628 (4th Cir. 1996); and U.S. v. Jackson, 60 F.3d 128, 135 (2d Cir. 1995).

Party who is a natural person. See FRE 615(a)(1) (“a party who is a natural person”) and Greyhound, above (“natural persons who are parties”). But see alleged discriminatees who are charging parties, below.

Officer or employee of a non-natural party who is designated as its representative by its attorney. The Board has historically read this exception as limiting a corporate respondent to its attorney and one other representative. Unga Painting, 237 NLRB at 1308 n. 16. As amended in 2023, FRE 615 also makes clear that the exception is limited to one designated representative per entity. See FRE 615(a)(2) (“one officer or employee of a party that is not a natural person if that officer or employee has been designated as the party's representative by its attorney”). However, the Advisory Committee Notes on the 2023 amendment state,

The rule does not prohibit the court from exercising discretion to allow an entity-party to swap one representative for another as the trial progresses, so long as only one witness-representative is exempt at any one time. If an entity seeks to have more than one witness-representative protected from exclusion, it needs to show under subdivision (a)(3) that the witness is essential to presenting the party's claim or defense.

With respect to who may be a party representative, see Opus 3 Ltd. v. Heritage Park, 91 F.3d at 630, where 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.

Person essential to a party's presentation. See FRE 615(a)(3) (“any person whose presence a party shows to be essential to presenting the party's claim or defense”); and Greyhound, above (“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 at 135. See also Opus 3 Ltd. v. Heritage Park, 91 F.3d at 628 (the burden is on the party asserting that the witness's presence is essential); and Tasty Baking Co. v. NLRB, 254 F.3d 114, 123 (D.C. Cir. 2001) (“the ALJ retains considerable discretion in determining which witnesses are ‘essential’ within the meaning of the rule”).

For guidance on whether a person is “essential,” see U.S. ex rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275,1296–1297 (10th Cir. 2010) (district court acted within its discretion in allowing witness to remain in courtroom throughout the trial as an “essential” person, given that he was, inter alia, “the person most knowledgeable about the history and complex factual details of the matters at issue, and with whom counsel needed to confer during trial”); and Oliver B. Cannon & Son, Inc. v. Fidelity & Casualty Co. of New York, 519 F.Supp. 668, 678–679 (D. Del. 1981) (“What must be shown is that a witness has such specialized expertise or intimate knowledge of the facts of the case that a party's attorney could not effectively function without the presence and aid of the witness or that the witness would be unable to present essential testimony without hearing the trial testimony of other witnesses.”)

The Advisory Committee Notes on the 2023 amendment to FRE 615 state that nothing therein prohibits a court “from exempting from exclusion multiple witnesses if they are found essential under (a)(3).”

Alleged discriminatees. The Board has adopted a special rule for alleged discriminatees, regardless of whether they are also charging parties in the case. They are exempted from exclusion except “during that portion of the hearing 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 case-in-chief or on rebuttal.” Unga Painting, 237 NLRB at 1307. See also Greyhound, above.

However, the judge retains some discretion in applying this rule. Thus, in Unga Painting, the Board stated that the judge may decline to follow the rule if the judge believes “there are special circumstances warranting the unrestricted presence of discriminatees or total exclusion when not testifying.” 237 NLRB at 1307. 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.” Id. at n. 14.

Alleged discriminatees designated essential representative. Consistent with the Board's footnote in Unga Painting, above, judges have permitted a discriminatee who was designated as an essential representative by the General Counsel or charging party to remain in the hearing room after testifying. See Impact Industries, 285 NLRB 5, 6 (1987), remanded on other grounds 847 F.2d 379 (7th Cir. 1988); and Weis Markets, Inc., 325 NLRB 871, 872 (1998), modified in part 265 F.3d 239 (4th Cir. 2001). In the latter case the Fourth Circuit on appeal expressed disapproval of what it termed the judge's “departure from Board precedent,” but rejected the respondent's contention that it was prejudiced by the judge's ruling. 265 F.3d at 245–246.

Counsel who is also a witness. In Napleton Cadillac of Libertyville, 13–CA–187272, unpub. Board order issued Jan. 29, 2018 (2018 WL 620366, 2018 NLRB LEXIS 47), the Board held that the trial judge did not abuse his discretion by applying the sequestration order to one of the respondent's two co-counsel (Hendricks) who would be called by respondent as a witness. The respondent subsequently challenged the sequestration ruling again before the court of appeals, but the court found it unnecessary to address the merits of the challenge because, even assuming it was valid, respondent had failed to show prejudice. The court noted that respondent acknowledged Hendricks was not lead counsel and that it “failed to offer anything concrete or to explain what Hendricks would have done” that the lead counsel or another attorney could not have handled. Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 50 (D.C. Cir. 2020), enfg. 367 NLRB No. 6 (2018).

Rebuttal witnesses. The Board's decisions in Unga Painting and Greyhound do not recognize a blanket exception for rebuttal witnesses. Thus, unless otherwise exempted from a sequestration order, any witnesses that a party anticipates may be called in rebuttal should be excluded. See, e.g., U.S. v. Ell, 718 F.2d 291, 293 (9th Cir. 1983) (district court erred by denying the defendant's request to exclude government witnesses after they testified in the case-in-chief and by later permitting them to testify as rebuttal witnesses); and U.S. v. Baca, 447 F.Supp.3d 1232, 1238 (D.N.M. 2020) (citing Ell as support for applying sequestration orders equally to direct and rebuttal witnesses).

However, “[i]t is often difficult to know in advance who may be called to rebut evidence which has not yet been presented.” U.S. v. Bramlet, 820 F.2d 851, 855 (7th Cir. 1987). And judges retain discretion to consider this and other relevant circumstances in determining whether to allow rebuttal witnesses to testify notwithstanding that they heard the testimony of other witnesses for the same side and were not exempted from the sequestration order. See, for example, Servomation, Inc., 235 NLRB 975, JD. n. 1 (1978), where the ALJ permitted a General Counsel rebuttal witness to testify, even though he had remained in the hearing during a portion of the hearing, given that the GC had not intended to call him but found it necessary to do so on rebuttal. See also Conair Corp., 261 NLRB 1189, 1230 n. 157 (1982) (ALJ permitted GC rebuttal witness to testify, even though he had been present in the hearing room during the GC's case, as the GC represented that he was being called to rebut specific allegations made against him during the respondent's case), enf. denied in part 721 F.2d 1355 (D.C. Cir. 1983), overruled on other grounds Gourmet Foods, 270 NLRB 578 (1984).

§11–500 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) (the 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, 319 NLRB at 554.

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 sequestration 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 n. 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 the trial court “clearly acted within its discretion in concluding that [the witness] 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 n. 2 (2004) (Board rejected the 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 §6–600, et seq. regarding attorney misconduct, 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 the attorney for 6 months after his second violation).

CHAPTER 12. THE HEARING RECORD

§12–100 Public hearings

Section 102.34 of the Board's Rules provides that hearings “will be public unless otherwise ordered by the Board or the Administrative Law Judge.” Similarly, Section 101.10(a) of the Board's Statements of Procedure provides that “except in extraordinary situations the hearing is open to the public.”

§12–200 Opening a Hearing by Telephone or Mail

A judge may open a hearing by telephone or by mail in the interests of saving time and expenses for all concerned. As discussed in §9–320, above, this is typically done to consider and address objections to a respondent's proposed settlement. See, e.g., Operating Engineers Local 181 (Marathon Petroleum Co.), 9–CB–155016, unpub. Board order issued April 14, 2017 (2017 WL 1374032, 2017 NLRB LEXIS 171).

A similar procedure is also used in lengthy hearings at a distant location involving the production of voluminous subpoenaed documents. See, e.g., *Station Casinos, LLC, 358 NLRB 1556, 1563 and JD. n. 11 (2012). The hearing is opened by telephone, and the judge rules on disputed issues raised in the petition to revoke the subpoena during the recorded conference call. The judge then travels to the hearing site when the parties are ready to resume. The Board has rejected a subpoenaed respondent's argument that employing such a procedure violates the Board's policy against pretrial discovery. See Quickway Transportation, 09-CA-251857, unpub. Board order issued Oct. 19, 2021 (2021 WL 4893957, 2021 NLRB LEXIS 432) and discussion at §7–200 and §8–230, above.

§12–300 Taking Testimony by Telephone

In Westside Painting, Inc., 328 NLRB 796, 796–797 (1999), the Board held that, “under Section 102.30 of the Board's Rules, witnesses in Board unfair labor practice proceedings may not testify by telephone.” The Board emphasized that telephonic testimony does not permit the judge to observe the demeanor of the witness, impairs a party's right of cross-examination, and makes it impossible as a practical matter to ensure the witness is not reading from documents or being influenced by someone while testifying. See also Morrison Healthcare, 369 NLRB No. 76, slip op. at 2 (2020) (holding that preelection hearings likewise should not be held by telephone when witness testimony will be taken because, although no credibility determinations are made in such hearings, “the potential impairment of cross-examination, or the inability to detect whether testimony is being guided by documents or coached by another individual, remain salient … concerns.”).

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 unfair labor practice hearing—albeit a short one with simple issues—was conducted by telephone. See also Morrison Healthcare, above, slip op. at 2 n. 4 (“Nothing in our decision should be read as limiting the ability of parties to agree to a telephonic hearing, provided that ‘compelling circumstances’ exist.”)

§12–400 Taking Testimony by Videoconference

This section addresses whether and when it is appropriate to permit an individual witness to testify remotely by videoconference. For a discussion of the propriety of conducting an entire hearing remotely by videoconference, see §12–500, Holding Remote Hearings by Videoconference, below.

Section 102.35(c) of the Board's Rules, which was adopted effective Sept. 29, 2017 (82 FR 43695), states:

Upon a showing of good cause based on compelling circumstances, and under appropriate safeguards, the taking of video testimony by contemporaneous transmission from a different location may be permitted.

“Good cause based on compelling circumstances”. The standard for allowing testimony by videoconference is not further defined or explained in the Rule or the Federal Register notice announcing it. However, it is identical to the standard set forth in FRCP 43. The 1996 Advisory Committee Notes to FRCP 43 state:

Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial. The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend the trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that other—and perhaps more important—witnesses might not be available at that time. Other possible justifications for remote transmission must be approached cautiously.

For a Board case denying a motion to take testimony by videoconference under Section 102.35(c), see Tesla, Inc., 32–CA–197020, unpub. Board order issued July 16, 2018 (2018 WL 3436889, 2018 NLRB LEXIS 264). In that case, the General Counsel filed a motion to take the testimony of an alleged discriminatee by videoconference from the Agency's regional office in Buffalo, New York, where he lived, on the ground that traveling to the hearing in Oakland, California would impose a “significant financial burden” on him. The respondent opposed the motion and the ALJ denied it, finding that the costs of travel were not “so compelling as to override the need for in-person testimony of an alleged discriminatee.” The GC thereafter filed a special appeal, arguing that the discriminatee was the only witness who could testify about certain alleged one-on-one conversations between him and a supervisor, and the Agency's budget constraints prevented the GC from subpoenaing him and paying his travel costs. The Board, however, denied the appeal because the GC had “failed to establish that the judge abused her discretion.”

Compare DH Long Point Mgt. LLC, 369 NLRB No. 18, slip op. at 5 n. 9 (2020), enfd. per curiam 858 F. Appx. 366 (D.C. Cir. 2021). In that case, the ALJ granted the General Counsel's motion, over the respondent's objection, to allow a corroborating witness to testify at the Los Angeles hearing by videoconference from the Board's regional office in Philadelphia. The ALJ found that the GC's motion set forth “good cause based on compelling circumstances” under Sec. 102.35(c); specifically, that the witness might be unable to travel to the hearing due to the time this would take him away from his job as a line cook; he would most likely be precluded from testifying if he was not allowed to do so by videoconference; videoconferencing was the only certain means of securing his testimony; and his corroborating testimony was necessary to prove the complaint allegations. The ALJ also found that the motion set forth the conditions in place to protect the integrity of the testimony and the appropriate safeguards that would be implemented as required by 102.35 (c)(1) and (2). The Respondent filed exceptions, but the Board affirmed the ALJ's rulings. See also the Board decisions discussed in §12–500, below (finding that the COVID-19 pandemic constituted “compelling circumstances” warranting a remote unfair labor practice hearing).

There is no indication in the Federal Register notice accompanying Section 102.35(c) that the new rule was intended to change the Board's prior policy or practice with respect to videoconferencing. Board decisions prior to the new rule may therefore also provide useful guidance. See, for example, the following Board decisions that issued within a year or two before 102.35(c) was adopted: MPE, Inc., 9–CA–084228, unpub. Board order dated Jan. 29, 2015 (2015 WL 400660, 2015 NLRB LEXIS 47) (reversing the judge and ruling that the General Counsel should be permitted, notwithstanding the respondent's opposition, to take the testimony of the alleged discriminatee by videoconference because he was incarcerated in federal prison several hundred miles from the hearing site and was not scheduled to be released for over a year); Oncor Electric Delivery Co., 364 NLRB 677, 684 (2016) (affirming the judge's ruling granting the General Counsel's motion, over the respondent's objection, to allow a former employee of the respondent to testify regarding certain background facts by videoconference from the NLRB Regional Office in Denver rather than testify in person at the hearing in Fort Worth), vacated and remanded in part on other grounds 887 F.3d 488 (D.C. Cir. 2018); and EF International Language Schools, Inc., 363 NLRB 199 n. 1 (2015) (affirming the judge's ruling in the 8(a)(3) discharge case that the respondent was not denied due process by permitting the General Counsel to take the testimony of a corroborating witness who resided in Madrid, Spain by videoconference from the U.S. Embassy there), enfd. 673 F. Appx. 1 (D.C. Cir. 2017).

For court cases permitting videoconferencing under FRCP 43, see Ever Win International Corp. v. Prong, Inc., 2017 WL 1654063, 2017 U.S. Dist. LEXIS 84560 (C.D. Cal. Jan. 6, 2017) (finding that one witness's “overseas residency” and another's “East Coast residency” presented “good faith compelling circumstances” to grant the defendant's request to permit both witnesses to testify by videoconference); FTC v. Swedish Match North America, Inc., 197 F.R.D. 1 (D.D.C. 2000) (granting the plaintiff's motion to permit a witness in Oklahoma to testify by videoconference to avoid the “serious inconvenience” of traveling “across the continent”); Sprint Nextel Corp. v. Yoak, 2014 WL 6796074, 2014 U.S. Dist. LEXIS 166881 (E.D. Mo. Dec. 2, 2014) (granting the plaintiff's motion to permit a witness to testify by videoconference in order to “spare the witness the serious inconvenience in traveling from Seattle a second time”; the witness had previously traveled to St. Louis to testify, but was unable to do so because of defendant's motions to delay and continue the hearing); Virtual Architecture, Ltd. V. Rick, 2012 WL 388507, 2012 U.S. Dist. LEXIS 15118 (S.D.N.Y. Feb. 7, 2012) (granting the plaintiff's motion to permit a witness in Seychelles to testify by videoconference given the long distance and flight time and the witness's assertion that it would be “virtually impossible” for him to obtain a visa in time to testify in person); and Medina v. Angrignon, 2024 WL 108669, 2024 US. Dist. LEXIS 5499, slip op. at *3 (W.D.N.Y. Jan. 10, 2024) (granting plaintiff's motion to testify by videoconference from the Dominican Republic as there was no dispute the plaintiff could not legally reenter the U.S.).

But compare Rodriguez v. SGLC, Inc., 2012 WL 3704922, 2012 U.S. Dist. LEXIS 120862 (E.D. Cal. Aug. 24, 2012) (denying the plaintiffs' motion to permit them to testify from Mexico by videoconferencing, as they had shown only that it would be inconvenient for them to attend the trial, not that they could not have obtained a visa or could not afford to attend); SEC v. Yang, 2014 WL 1303457, 2014 U.S. Dist. LEXIS 42580 (N.D. Ill. March 30, 2014) (denying the defendants' motion to take testimony of witnesses in China by videoconference in the absence of a showing that they could not obtain a visa or that travel was prohibitively expensive for them), affd. 795 F.3d 674 (7th Cir. 2015); Sille v. Parball Corp., 2011 WL 2680560, 2011 U.S. Dist. LEXIS 158765 (D. Nev. July 8, 2011) (denying the plaintiff's “blanket” motion to take testimony of virtually all of its witnesses in Norway and New York by videoconference, given the lateness of the motion and the absence of any unexpected circumstances); and Wilson v. U.S. 2023 WL 2795866, 2023 U.S. Dist. LEXIS 64487 (D. Nev. April 5, 2023) (denying plaintiff's motion to allow an expert witness to testify remotely because of his “extensive scheduling conflicts that only allow him to testify on certain days in very limited time slots,” as the hearing had been scheduled for 6 months and the motion was not filed until the week of trial).

During the COVID–19 pandemic, several district courts found the public health risk attendant with travel, as well as quarantine requirements in various locations, to constitute “good cause in compelling circumstances” under FRCP 43, justifying individual witness testimony being heard by videoconference. See, e.g., Shenzen Synergy Digital Co. v. Mingtel, Inc., 2021 WL 6072565, 2021 U.S. Dist. LEXIS 244996 (E.D. Tex. Dec. 23, 2021); and In re RFC & ResCap Liquidating Trust Action, 444 F.Supp.3d 967, 971–972 (D. Minn. 2020). See also the additional cases cited in §12–500, below, where courts ordered the entire hearing to be held remotely during the pandemic. But cf. Arrastia-Cardoso v. U.S., 2020 WL 7238459, 2020 U.S. Dist. LEXIS 231150 (M.D. Fla. Dec. 9, 2020) (denying defendant/petitioner's motion, filed 2 days before the hearing was scheduled to begin in Ft. Meyers, to allow two Miami witnesses to testify remotely, as the petitioner expressed only “general COVID-19 concerns—without any details” and the court had taken various precautions over the past several months to prevent infection, including taking temperature checks of every person at the front door of the building; requiring a face mask or shield and social distancing in every public area; providing hand sanitizer almost everywhere in the courthouse; outfitting the courtroom with plexiglass barriers and providing extra plexiglass barriers that could be moved around the courtroom on request as needed; and making gloves and disposable microphone covers available to prevent cross-contamination) and Nautica Entertainment, LLC v. Allied Debt Collection of Virginia, LLC, 2020 WL 10356124, 2020 U.S. Dist. LEXIS 257190 (D. Wyo. Oct. 16, 2020) (denying witness's motion to testify remotely “because of a general apprehension surrounding the COVID–19 Pandemic,” where she “did not provide a reasonable showing that she is high risk or has specific extenuating circumstances surrounding the ongoing COVID-19 Pandemic; “[f]ear of contracting the virus does not rise to the level needed to show ‘good cause’ to be excused from testifying in open Court”).

If all parties agree to videoconferencing a witness's testimony, the 1996 Advisory Committee Notes to FRCP 43 state that “good cause and compelling circumstances may be established with relative ease.” The judge “is not bound by a stipulation, however, and can insist on live testimony,” considering, “among other factors, … the apparent importance of the testimony in the full context of the trial.”

For examples where ALJs have approved taking testimony by videoconference in the absence of any objection, see Spurlino Materials, LLC, 357 NLRB 1510 (2011) (by agreement of all parties, the ALJ held the last day of hearing, which followed a 3-week recess and was relatively short, by video), enfd. 805 F.3d 1131 (D.C. Cir. 2015); SRC Painting, 357 NLRB 27 (2011) (ALJ conducted the entire hearing, which lasted less than 1 hour, by video where neither the General Counsel nor the charging party objected and the respondent did not respond to the judge's notice to show cause or appear at the hearing); and *M.V.M., Inc., 352 NLRB 1165 n.1 (2008) (the testimony of one witness was taken by video without objection where the original testimony of the witness had erroneously not been transcribed), enfd. 2010 WL 1255942 (D.C. Cir. 2010).

“Appropriate safeguards.” Section 102.35(c)(2) states that appropriate safeguards “must ensure that the [ALJ] has the ability to assess the witness's credibility and the parties have a meaningful opportunity to examine and cross-examine the witness.” The safeguards must also include “at a minimum” measures ensuring that:

• - party representatives have the opportunity to be present at the remote location;

• - the judge, participants, and the reporter are able to hear the testimony and observe the witness;

• - the camera view is adjustable to provide a close-up view of counsel and the witness and a panoramic view of the room;

• - exhibits used in the witness's examination are exchanged in advance of the examination; and

• - video technology assistance is available to assist with technical difficulties that arise during the examination.

ALJs may also impose additional safeguards.

Application for videoconferencing testimony. Section 102.35(c)(1) states that applications to take testimony by videoconference must be in writing, be simultaneously served on all parties, and set forth:

• - the compelling circumstances for such testimony;

• - the witness's name and address;

• - the location where the video testimony will be held;

• - the matter concerning which the witness is expected to testify;

• - the conditions in place to protect the integrity of the testimony;

• - the transmission safeguards; and

• - the electronic address from which the testimony will be transmitted.

§12–500 Holding Remote Hearings by Videoconference

During the 2020 COVID-19 pandemic, the Board held that ALJs also have the discretionary authority to order an entire hearing to be held by videoconference with all participants and witnesses appearing remotely from separate locations. The Board held that ALJs have such discretion pursuant to their general authority to “regulate the course of the hearing” under Section 102.35(a)(6) of the Board's rules. It further held that, while Sec. 102.35(c) is not controlling with respect to remote hearings, the same framework is properly applied, i.e., a judge may order a remote hearing upon a showing of “good cause based on compelling circumstances and under appropriate safeguards.” Applying that framework, the Board found that the COVID-19 pandemic constituted good cause based on compelling circumstances to conduct remote hearings, as postponing a case until an in-person hearing was feasible could result in an indefinite delay. See William Beaumont Hospital, 370 NLRB No. 9 (Aug. 13, 2020) (judge did not abuse his discretion in denying employer's motion requesting an in-person hearing); and XPO Cartage, LLC, 370 NLRB No. 10 (Aug. 20, 2020) (judge did not abuse her discretion in ordering a remote hearing via the Zoom for Government video-conferencing platform, notwithstanding that both the employer and the union appealed the order).

The Board also rejected various procedural and technical objections or concerns raised about holding remote video hearings. The Board held that the safeguards listed in 102.35(c)(2) do not apply in all respects to a hearing conducted entirely by videoconference. William Beaumont, slip op. at 2, citing the Board's representation-case decision in Morrison Healthcare, 369 NLRB No. 76, slip op. at 1 n. 2 (2020). The Board also found that the stated prehearing concerns were speculative at that point, and that the objecting parties had failed to show that advances in current videoconferencing technology would not be able to address many, if not all, of their concerns. William Beaumont, slip op. at 2; and XPO Cartage, slip op. at 1–2.

Finally, the Board stated,

Certainly, [the trial judge] has the discretion to determine whether the case is too complex; cumbersome; or witness-, document-, and fact-heavy to be heard remotely. And to the extent [any party] has a concrete, not speculative, concern that cannot be ameliorated by the videoconferencing technology, or other pretrial accommodations or stipulations among the parties, [any party] may raise it to [the trial judge] in the first instance, or on exceptions to the Board pursuant to Section 102.46 of the Rules and Regulations, in the event [the party] receives an adverse ruling.

William Beaumont, slip op. at 2; and XPO Cartage, slip op. at 2.

The Board in subsequent cases repeatedly found that ALJs properly exercised their discretion in ordering remote hearings via Zoom over the objection of a party. See, e.g., Sparks Restaurant, 2–CA–142626, unpub. Board order issued May 14, 2021 (2021 WL 1966555, 2021 NLRB LEXIS 202); New York Paving, Inc., 29–CA–254799, unpub. Order issued Oct. 8, 2020 (2020 WL 6032640, 2020 NLRB LEXIS 502); Oxarc, Inc., 19–CA–230472, unpub. Board order issued Sept. 23, 2020 (2020 WL 5735979, 2020 NLRB LEXIS 467); Pipefitters Local 675 (RPS Mechanical, Inc.), 20–CB–251372, unpub. Board order issued Sept. 4, 2020 (2020 WL 5353969, 2020 NLRB LEXIS 451); and Boeing Co., 10-CA-204795, unpub. Board order issued Aug. 31, 2020 (2020 WL 5204848, 2020 NLRB LEXIS 444).

The Board also repeatedly found that ALJs acted within their discretion in ordering, or not ordering, certain procedures to be followed in the remote hearings. See, e.g., New York Presbyterian Hudson Valley Hospital, 372 NLRB No. 15, slip op. at 1 n. 2 (2022) (judge acted within his discretion by instructing respondent's witness to turn off the respondent's virtual background to ensure that the witness testified without interruption or influence by observing him in his surroundings), enfd. 2023 WL 8715731, 2023 U.S. App. LEXIS 33411 (2d Cir. 2023); Amazon.com Services, LLC, 29–CA–277198, unpub. Board order issued June 15, 2022 (2022 WL 2191112, 2022 NLRB LEXIS 242) (judge did not abuse her discretion by failing to provide for party representatives to be present at the remote location from which each witness would testify); Pain Relief Centers, 371 NLRB No. 70, slip op. at 1 n. 2 (2022) (judge did not abuse his discretion by having a Headquarters, Board-side attorney act as a “courtroom deputy,” as the attorney did so only to assist the judge and parties with technical aspects of the remote hearing, such as operating breakout and waiting rooms, screen-sharing exhibits, and troubleshooting technological issues, and was recused from working on the case after the hearing), enfd. 2023 WL 5380323, 2023 U.S. App. LEXIS 22068 (4th Cir. 2023); and Oxarc, Inc., above (rejecting the respondent's objection to the judge's procedural request to upload documents so they could be viewed by other parties prior to the Zoom hearing, as the respondent failed to object to this procedure in response to the judge's prehearing order or at the parties' prehearing conference, and also failed to ask the judge for an alternative method for uploading documents, such as to a private folder).

However, the Board indicated that, once the Agency resumed in-person operations, ALJs could choose to hold in-person or partially in-person hearings as long as they conducted any such hearings in compliance with the Board's rules and regulations and health and safety protocols. Pizza Piazza, Inc., 6-CA-279445, unpub. Board order issued March 14, 2022 (2022 WL 789275, 2022 NLRB LEXIS 84); and Phillips 66 Co., 15-CA-263723, unpub. Board order issued March 14, 2022) (2022 WL 789280, 2022 NLRB LEXIS 70). Accordingly, the Board subsequently found that it was not an abuse of discretion for a judge to direct the General Counsel to secure a location that would allow the hearing to be held in-person in compliance with such protocols. See 3 Corners, LLC, 28–CA-273948, unpub. Board order issued July 5, 2022 (2022 WL 2467405, 2022 NLRB LEXIS 275).

Since the end of the federal COVID-19 Public Health Emergency in May 2023, the Board has also made clear that certain other circumstances are not sufficiently compelling to justify directing a remote hearing over a respondent's objection. For example, in Hudson Institute of Process Research, 373 NLRB No. 11 (2024), the Region scheduled a video hearing because witnesses were scattered all over the country and an in-person hearing would cause unnecessary expense and inconvenience. The respondent objected and filed a motion to hold the hearing in person. The ALJ granted the motion, finding that expense and inconvenience alone were not sufficient compelling circumstances for a full video hearing. The General Counsel thereafter filed a special appeal, but the Board found that the GC failed to show that the judge's ruling was an abuse of discretion.

Similarly, in Amazon.com Services LLC, 12–CA–308502, unpub. Board order issued May 7, 2024 (2024 WL 2049869), the Region scheduled a video hearing primarily because the charging party/discriminatee had moved from Florida, where the alleged violation occurred, to New York. The respondent objected and filed a motion to hold the hearing in person in Florida. The ALJ denied the motion, but the Board subsequently granted the respondent's special appeal. The Board found that “the judge abused his discretion in denying the Respondent's motion in the absence of good cause based on compelling circumstances justifying holding a hearing via videoconference over a party's objection.”

§12–600 Tape Recorders in Hearing

The use of a tape recorder by parties to record the hearing 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 n. 1 (1968) (permission to use tape recorder denied), enfd. in part 417 F.2d 176 (4th Cir. 1969). Although the reviewing court in Marriott found no prejudice from the trial examiner's ruling in that case, the court indicated that a recorder should be permitted to the extent that it does not interfere with or slow down the hearing. 417 F.2d at 178. Nevertheless, the Board subsequently upheld a trial examiner's discretion to deny a respondent's request to use a tape recorder in Daisy's Originals, Inc., 187 NLRB 251 n. 1 (1970). The respondent's counsel requested permission to use the tape recorder “to implement our taking of notes and to help us prepare our defense,” arguing that the recorder would not conflict with the official reporting service “except insofar as … there is an error in the transcript.” The trial examiner denied the request on the ground he would not be able to police its use. The Board found that this ruling was not an abuse of discretion, noting that “the Trial Examiner, the General Counsel, and the Charging Party are equally 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.

§12–700 Television Cameras in Courtroom

The Board's policy is that its hearings 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 hearing. Although the letter stated that the policy may be reviewed later, there has been no change to date.

Such restrictions are constitutional. See Davis, et al., 33 Fed. Proc., L. Ed. §77:242 (March 2024 Update) (discussing the reasons for such restrictions and listing court decisions upholding them).

§12–800 The Hearing Transcript

The Board utilizes court reporting services to audiotape and prepare and certify an official transcript of its hearings. Such official transcripts are generally “deemed prima facie a correct statement of the testimony taken and the proceedings had.” 28 U.S.C. Sec. 753(b) (addressing the use of reporters in federal court proceedings). Thus, the judge should attempt to make sure, to the extent possible, that the hearing testimony is adequately recorded (e.g., that a witness's testimony is audible) and transcribed by the reporting service.

If a transcription error occurs, corrections may be made pursuant to a stipulation or motion filed with the judge. See, for example, Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB 95 n. 2 (1994). In that case, the Board rejected the General Counsel's attempt, for the first time on exceptions to the judge's decision, to supply the surname of an additional discriminatee whose name was inaudibly described in the transcript. The Board stated that “the burden was on the General Counsel, not the court reporter, to identify the discriminatees,” and indicated that the GC should have filed a posthearing motion or proposed stipulation to clarify the matter. See also NLRB Casehandling Manual (Part 1), Sec. 10412.

If a party files a motion, or the judge believes there has been a material transcription error, the parties should be notified and provided an opportunity to state their positions. The judge should not unilaterally correct the transcript except for obvious typographical errors. Serv-Air, Inc., 161 NLRB 382 n. 1 (1966), enfd. 395 F.2d 557 (10th Cir. 1968); and W. B. Jones Lumber Co., 114 NLRB 415 n. 1 (1955), enfd. 245 F.2d 388 (9th Cir. 1957).

With respect to the timing of a motion to correct the transcript, it is obviously preferable that the motion be filed before the due date for filing posthearing briefs, particularly if the asserted transcription error is significant. However, the Board's rules do not specifically require that motions to correct the transcript be filed before the due date for filing briefs. See Pacific Green Trucking, Inc., 368 NLRB No. 14, slip op. at 3, JD. n. 2 (2019) (granting the General Counsel's motion to correct, notwithstanding the respondent's objection that it was filed 5 days after the due date for filing briefs, as the Board had no “hard and fast rule” requiring that a motion to correct be filed before the due date for filing briefs; the parties had agreed to an expedited briefing schedule; the identified transcript errors were minor; and the respondent did not dispute the accuracy of the proposed corrections or contend that it would have to revise its brief if they were approved).

Where disputes arise over the accuracy of the transcript, the judge may request the reporting service to review the audiotape and provide a revised transcript if the original was incorrect. See, e.g., Metro One Loss Prevention Services Group, 356 NLRB 89, 95 n. 7 (2010). Motions requesting that the ALJ direct the reporting service to provide one or more of the parties with a copy of the audiotape to determine the accuracy of the transcript have generally been denied. See, e.g., Dickens, Inc., 355 NLRB 255, 259 n. 1 (2010) (ALJ denied respondent's motion for an order directing the reporting service to furnish it with copies of the audio files from which the transcript was typed to determine if corrections were warranted). See also Machinists District Lodge 160, 373 NLRB No. 39 (2024), where the Board denied the respondent union's request to remand the case and direct the reporting service to provide the tape backup to the parties, as the errors were “inadvertent and harmless” and did not impede the Board's ability to decide the case or justify delaying the proceeding. However, if the ALJ finds that good cause has been demonstrated and grants such a motion, the reporting service should be directed to provide a copy of the recording to all parties, not just the party requesting it. The judge, who must make the ultimate determination with respect to such disputes, should also receive and review a copy of the recording.

Where an accurate transcription of testimony cannot be determined (for example because the audiotape has been lost), reopening the hearing to retake the testimony may be necessary, absent an agreement or stipulation otherwise. See, e.g., Kentucky River Medical Center, 340 NLRB 536, 549 n. 21 (2003) (witnesses were recalled to repeat lost portions of their prior testimony); and Lucky Stores, Inc., 245 NLRB 647, JD. n. 1 (1979) (parties stipulated to the substance of the lost testimony and waived the right to further examination or cross-examination).

§12–900 Exhibits

Incorporating by Reference. In Beverly Health & Rehabilitation Services, 335 NLRB 635, 639 n. 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.

Similarly, the Board also appears to disfavor allowing a party to “incorporate by reference” portions of other records into a pleading. Superior Industries Intern., 295 NLRB 320, 322 n. 8 (1989) (granting motion to strike portions of respondent's answer that generically incorporated “all the documents, transcripts and exhibits” in certain related Board and federal court proceedings).

Redacting Private Information. Sensitive personally identifiable information (SPII) should not be submitted by the parties into the public record. The Agency's public website defines SPII as an individual's name in combination with one or more of the following:

• Date and/or place of birth

• Social Security number

• Mother's maiden name

• Driver's license number / passport number / other government-issued unique ID number

• Financial account number

• Credit or debit card number

• Biometric data

See https://apps.nlrb.gov/myAccount/#/FileCaseDocument/TermsConditions

If a party submits an exhibit that contains irrelevant SPII, the judge should direct that the SPII be redacted. If the SPII is relevant to the issues in the case, or irrelevant SPII was included in documents filed or admitted into the hearing record, the judge should take steps to protect against public disclosure of the SPII. See, e.g., Kansas City Cement Masons Pension Fund v. Lan-Tel Communications Services, Inc., 2018 WL 2207984, 2018 U.S. Dist. LEXIS 237405 (W.D. Mo. March 7, 2018) (court temporarily sealed summary judgment documents containing personally identifiable information that had been filed by the parties and directed counsel to file properly redacted versions of the documents to substitute for the sealed versions); and Doe v. U.S., 210 F.Supp.3d 1169 (W.D. Mo. 2017) (court sealed unredacted deposition transcripts containing SPII that the FTC had inadvertently attached as exhibits to its preliminary injunction brief). See also §8–600, Protective Orders, above.

Rejected Exhibits. Rejected exhibits should be placed in a separate rejected exhibits file so that they may be reviewed by the Board in the event a party challenges the judge's rulings on exceptions to the judge's decision. See Omaha World-Herald, 357 NLRB 1870, 1872 n. 13 (2011) (judge erred in not placing rejected exhibits in a rejected exhibits file). But see Bethlehem Temple Learning Center, Inc., 330 NLRB 1177, 1182 (judge declined to include rejected prehearing witness affidavits in a rejected exhibits file as the portions bearing on credibility had already been read into the record). It is improper, however, for a party's posthearing brief to cite rejected exhibits as if they were received into evidence rather than rejected. Pain Relief Centers, P.A., 371 NLRB No. 70, slip op. at 6 n. 2 (2022), enfd. 2023 WL 5380323, 2023 U.S. App. LEXIS 22068 (4th Cir. 2023).

CHAPTER 13. BOARD PRECEDENT AND RELITIGATION OF ISSUES

§13–100 Board Precedent

Administrative law judges must follow and apply Board precedent, notwithstanding contrary decisions by courts of appeals, unless and until the Board precedent is overruled by the Supreme Court or the Board itself. See, e.g., Western Cab Co., 365 NLRB No. 78, slip op. at 1 n. 4 (2017); and Pathmark Stores, Inc., 342 NLRB 378 n. 1 (2004). See also D.L. Baker, Inc., 351 NLRB 515, 529 n. 42 (2007) (summarizing the reasons for the Board's nonacquiescence policy).

Judges are 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, n. 3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992). See also Planned Building Services, Inc., 347 NLRB 670 n. 2 (2006), overruled on other grounds Pressroom Cleaners, 361 NLRB 643 (2014); and Stark Electric, Inc., 327 NLRB 518 n. 1 (1999) (judge properly relied, at least in part, on findings in prior Board decisions involving the same respondent to find animus), and §13–600, Relitigation of Issues, below.