M. Lowenstein & Sons

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lyman Printing and Finishing Company, a Division of M. Lowenstein & Sons and Machine Printers and Engravers Association of the United States. Case I1-CA-4077 June 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On April 13, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment on the ground that there are no unresolved issues requiring an evidential hearing, and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended. The Trial Examiner recom- mended that the Respondent cease and desist from such unfair labor practices and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed a reply brief.' Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Ex- aminer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Lyman Printing and Finishing Company, a Division of M Lowenstein & Sons, Lyman, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. material The Respondent has since filed such a request with the Board We hereby affirm the findings of the Trial Examiner in these matters and deny the request of the Respondent, for the other reasons set forth in Appendix A of the Trial Examiner's Decision U S v Morgan, 313 U S 409, 422, Davis v Braswell Motor Freight Lines, Inc , 363 F 2d 600 (C A 5) We have made an independent review of the Supplemental Decision and Cer- tification of Results of Election in Case I 1-RC-2837, and conclude that the Regional Director's rulings on the objections were correct We do not adopt the finding that the Hearing Officer issued a report on December 3, 1968 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a motion of counsel for the General Counsel for summary judgment, based on an ad- mitted refusal by the Respondent to bargain with the certified Charging Union on the ground that the unit found appropriate by the Board is inap- propriate and "contrary to the statutes, Board precedents, and industry practice." Therefore, the Respondent contends, the Union was not properly certified as the collective-bargaining representative. The Representation Proceeding' Upon petition filed on October 30, 1968, under Section 9(c) of the National Labor Relations Act (29 U.S.C.A. 159(c)) by Machine Printers and En- gravers Association of the United States, herein called the Union , a hearing involving the represen- tation of employees of Lyman Printing and Finish- ing Company , a Division of M. Lowenstein & Sons, herein called the Respondent , was held before a Hearing Officer of the Board on November 21, 22, and 27, 1968. Thereafter, on December 3, 1968, the Hearing Officer issued his report on such hear- ing, and on December 12, 1968 , the Regional Director for Region 1 1 issued an order transferring the case to the Board. The Union then represented some employees of the Respondent in two separate bargaining units, one in the Respondent's engraving department on a departmental basis and the other a craft unit of machine printers in the print department or print room . It sought an election among the employees of the Respondent 's color department and also among the unrepresented employees in the print room, with the apparent intent of adding such employees i The Charging Party limited its response in its reply brief to a request for damages as a part of the remedy herein We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Sec 8 ( a)(5), and therefore deny the said request 2 The Trial Examiner attached to his Decision as Appendix A his Opinion Revoking Subpoenas Duces Tecum and Denying Applications To Take Depositions and To Require Interrogatories One of the grounds for his ac- tion therein was that the Respondent has not requested the General Coun- sel or the Chairman of the Board for consent to the production of the Administrative or official notice is taken of the record in the represen- tation proceeding, Case I 1-RC-2837, as the term "record" is defined in Sec 102 68 and 102 69(f) of the National Labor Relations Board 's Rules and Regulations and Statements of Procedure, Series 8, as amended See LTV Electroiy %tems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), cert denied 393 U S 843, Golden Age Beverage Company, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), Intertype Company v Penel- lo, 269 F Supp 573 (D C Va , 1967), Intertype Company v NLRB , 401 F 2d 41 (C A 4, 1968), cert denied 393 U S 1049 (1969), Follett Cor- poration, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the National Labor Relations Act, as amended 183 NLRB No. 105 LYMAN PRINTING & FINISHING CO. to the existing unit in the print room . The Respon- dent contended that such a unit was not ap- propriate for collective bargaining. On July 14, 1969, the Board issued its Decision and Direction of Election in which, after discussing the evidence and the various contentions , it con- cluded that a departmental unit consisting of em- ployees in the print room could be appropriate, if the unrepresented employees in the print room chose to become part of such a unit. The Board therefore directed that a self-determination election be held in a voting group consisting substantially of the unrepresented nonsupervisory employees in the print room, provided that the Union was willing to represent such employees and made an adequate showing of interest therein. The Board further said that if a majority of that group voted for the Union, the Regional Director would certify that result and the Union could then bargain for them as a part of the Union's bargaining unit of print room employees. With respect to the employees in the color department sought by the Union, the Board found that they would not con- stitute an appropriate unit, either alone or as part of a unit of print room employees. On August 4, 1969, Respondent filed its motion for reconsideration, rehearing, and stay of scheduled election, after which, on August 5, 1969, the Union filed its opposition to the Respondent's motion. By telegraphic order dated August 11, 1969, the Board denied Respondent's motion, stat- ing that "it contains nothing not previously con- sidered by the Board...." On August 13, 1969, an election by secret ballot was conducted under the supervision and direction of the Regional Director in the stated voting group to determine the question of representation. Upon conclusion of the balloting the parties were furnished a tally of ballots which showed that of ap- proximately 156 eligible voters, 112 cast ballots for the Union, 36 cast ballots against the Union, and 1 ballot was challenged. The challenged ballot was not sufficient to affect the results of the election. On August 20, 1969, Respondent filed timely ob- jections to the election and to conduct affecting the results of the election , alleging, in substance, the following: 1 That employees were threatened and coerced by representatives or members of the Union in such a manner as to make a reasona- ble choice in the election impossible. 2. That by threatening employees before and after the election , conditions as required by the Board for such election were not possi- ble. 3. The Board did not consider all evidence, improperly applied the law regarding the ap- propriateness of the unit, and thereby allowed an election to be held in an illegal unit. In conclusion the Respondent respectfully requested that the objections be investigated and 1049 sustained , and that a hearing be held on the above allegations. On September 18, 1969, the Regional Director issued a Supplemental Decision and Certification of Results of Election . In this decision the Regional Director stated that an investigation of the Respon- dent 's objections had been conducted , during which all parties were afforded opportunity to sub- mit and present evidence bearing on the issues. After discussion of the evidence , the Regional Director concluded in his decision that the Respon- dent had raised no substantial or material issues of fact or law which would warrant setting aside the election. Consequently, the Regional Director over- ruled the Respondent 's objections in their entirety and certified that the Union may bargain for the employees in the voting unit as part of the group of employees which the Union currently represented. Thereafter on October 13, 1969, the Respondent timely filed with the Board in Washington, D.C , its request for review of the Regional Director's Sup- plemental Decision and Certification of Results of Election, in which Respondent requested that the election be set aside. On October 20, 1969, the Union filed its opposition to Respondent's request for review. On November 4, 1969, the Board by telegraphic order denied the Respondent's request for review for the reason that "it raises no substantial issues warranting review...." The Unfair Labor Practice Case On November 19, 1969, the Union filed the in- stant unfair labor practice charge alleging that since the certification the Respondent had refused and continues to refuse to bargain with the Union. On December 23, 1969, the Regional Director is- sued a complaint and notice of hearing alleging that the Respondent had committed unfair labor prac- tices in violation of Section 8(a)( I) and (5) and Section 2(6) and (7) of the Act by refusing to meet and negotiate with the Union as the bargaining representative of the employees in the certified unit, though requested to do so since the certifica- tion. On January 8, 1970, the Respondent filed its answer to the complaint in which it admitted cer- tain allegations of the complaint and denied others. The Respondent admitted that the Union requested, and the Respondent refused, to meet and negotiate on behalf of the involved employees. In defense the Respondent asserted that the elec- tion unit was not appropriate and that its objections to the election had been improperly overruled. Consequently, the Respondent denied the commis- sion of unfair labor practices, and requested a hear- ing before a Trial Examiner. On January 26, 1970, counsel for the General Counsel filed a Motion for Summary Judgment, stating as grounds therefor that under the applica- ble Rules and Regulations and decisions by the 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board the pleadings and attached exhibits detailing the facts heretofore described establish that the General Counsel is entitled to judgment as a matter of law. On January 26, 1970, 1 issued an Order To Show Cause on the General Counsel's motion, returnable February 9, 1970, subsequently ex- tended at the request of the Respondent to Februa- ry 23, 1970. Under date of February 20, 1970, Respondent filed its Response to the Order To Show Cause accompanied by (1) application for subpenas duces tecum, (2) application to take depositions, and (3) motion to be granted leave to require certain persons to answer interrogatories. On the same date counsel for the General Counsel filed a response and memorandum brief. No other responses have been received. On February 26, 1970, counsel for the General Counsel filed an opposition to the Respondent's ap- plications and motion, and on the same day I issued a telegraphic order denying the Respondent's requests. In accordance with the terms of the order, written opinion explaining the basis of the order is attached hereto as Appendix A. Ruling on Motion for Summary Judgment Counsel for the General Counsel contends that all issues in dispute were decided by the Board in the representation case and that he is therefore en- titled to summary judgment as a matter of law. The Respondent opposes summary judgment on statutory and constitutional grounds and asserts that due process requires that a full hearing be held on all issues, including the issues raised in the representation proceeding. In addition the Respon- dent requests that before any judgment is rendered on the motion for summary judgment, that it be permitted to develop all material issues through discovery procedures, including the production by Board members and the Regional Director, pur- suant to subpenas duces tecum, of certain documen- tary material in the Board's files, and further by the use of interrogatories and depositions, directed, inter alia, to Board members and the Regional Director. It is in connection with the latter request that the Respondent filed the applications and mo- tion for subpenas, depositions, and interrogatories 2 Krieger-Ragsdale & Company , Inc , 159 NLRB 490, enfd 379 F 2d 517 (C A 7), cert denied 389 U S 1041 See Pittsburgh Plate Glass Company v N L R B , 313 U S 146, 162, NLRB Rules and Regulations, Sees 102 67(f) and 102 69(c) ' O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A 5, 1961) See N L R B v Air Control Products of St Petersburg, Inc , 335 F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a hearing is a senseless and useless formality " See also N L R B v Bata Shoe Com- pany, Inc , 377 F 2d 821, 826 (C A 4, 1967), cert denied 389 U S 917 there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to deter- mination of whether NLRB election results are to be accepted for referred to above and which are disposed of in Ap- pendix A. The basic position of the Respondent is that the Board's unit determination was incorrect in the representation case and, additionally, that a hearing should have been held on its objections to the elec- tion. These were issues which were considered and decided by the Board in the representation proceeding. It is established Board policy, in absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation be- fore a Trial Examiner in a unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.2 This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless sub- stantial and material issues are raised.3 Respondent does not claim to present any newly discovered or previously unavailable evidence. No special circum- stances are apparent. Ordinarily this would dispose of the matter. How- ever, the Respondent has raised several contentions which require disposition. Constitutionality of the Board's Procedures The Respondent 's first contention, as stated in its response to the Order To Show Cause, is that the Board 's summary judgment procedure and Board Rule 102.67(f) are unconstitutional. Rule 102.67( f) forbids relitigation in any related sub- sequent unfair labor practice proceeding of any issue which was or could have been raised in the representation proceeding . I cannot sustain this contention of the Respondent. In the first place , I do not believe it appropriate for me , as a Trial Examiner of the Board , to declare procedures and rules established by the Board to be unconstitutional. I must assume the constitutionali- ty of the Board 's summary judgment procedures and of Rule 102 .67(f).4 No court has held the Board 's summary judgment procedures or Rule 102 .67(f) to be unconstitu- tional . Indeed, Board orders based on summary judgments have been enforced by most of the purposes of certification " ' In the case of Rite-Form Corset Company, Inc , 75 NLRB 174, 176, where the contention was made to the Board that a portion of the Act was unconstitutional , the Board said As an administrative agency of the Federal Government , it is inap- propriate for the Board to pass upon questions regarding the constitu- tionality of Congressional enactments Such questions will be left to the courts In the absence of any court decision to the contrary, the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States, as alleged by the petitioner The Trial Examiner must accord similar recognition to the Board's Rules and decisions LYMAN PRINTING & FINISHING CO. United States courts of appeals.5 I am cited to no case in which a court has refused enforcement of a Board order on the ground that the Board may not use summary judgment procedure. On the contrary, whenever the issue has been raised the courts have uniformly upheld the Board's procedure.' On this state of authority, it must be found that the Board is authorized to utilize summary judgment procedure in cases where there are no substantial or material issues requiring an evidential hearing. It has been further held that Board Rule 102.67(f) is reasonable. In the case of N.L.R.B. v. Mar Salle, Inc., 425 F.2d 566, 572, enfg. 173 NLRB 429, the Court of Appeals for the District of Columbia said of the rule: This Board rule against relitigation of issues is eminently reasonable.... It was there- fore not a denial of due process to refuse to hold a hearing in the unfair labor practice proceeding, absent a showing of new or previously unavailable evidence. In several other summary judgment cases the courts, while refusing enforcement of Board orders (generally on the ground that, in the court's view, objections to the election raised substantial and material issues requiring hearing), specifically upheld or assumed the authority of the Board to issue summary judgments.' The Determinations in the Representation Case In its response to the Order To Show Cause the Respondent attacks the Board decision in the representation case as arbitrary and capricious. s See, for example , the following cases, all decided within the last 4 years N L R B v Rexall Chemical Co , 370 F 2d 363 (C A 3, 1967 ), Baumritter Corporation v N.L R.B , 386 F 2d 117 (C A 1, 1967), N L R B v Union Carbide Caribe, Inc , 423 F 2d 231 (C A 1, 1970), Polymers, Inc v NLRB , 414 F 2d 999 (C A 2, 1969), cert denied 396 U S 1010, NLRB v Olson Bodies, Inc, 420 F 2d 1187 (C A 2,1970), NLRB v The Puritan Sportswear Corp , 385 F 2d 142 (C A 3, 1967), N L R.B v Certified Testing Laboratories, Inc, 387 F 2d 285 (C A 3, 1967), N L.R B v New Enterprise Stone and Lime Co , 413 F 2d 117 (CA 3, 1969), N L R B v Carolina Natural Gas Corp , 386 F 2d 571 (C A 4, 1967), LTV Electrosystems , Inc v N L R B, 388 F 2d 683 (C A 4, 1968 ), N L R B v Aerovox Corp , 390 F 2d 653 ( C A 4, 1968), N L R B v Rish Equipment Co , 401 F 2d 597 (C A 4, 1968), N L R B v Union Brothers , 403 F 2d 883 (C A 4, 1968), N L R B v Aerovox Corp, 409 F 2d 1004 (C A 4, 1969), N L R B v Hevi-Duty Electric Company, 410 F 2d 757 (C A 4, 1969), N L R B v Newport Mining Corporation, 417 F 2d 625 (C A 4, 1969), Neuhoff Brothers, Packers, Inc v. N L R B , 362 F 2d 611 (C A 5, 1966), cert . denied 386 U S , 956 , Southwestern Portland Cement Co v N.L R B , 407 F 2d 131 (C A 5, 1969), cert denied 396 U S 820, N L R B v Capitan Drilling Company, 408 F 2d 676 (C A 5, 1969 ), River- side Press, Inc. v NLRB , 415 F 2d 281 (C A 5, 1969 ), cert denied 397 U S 912 , N L.R B v Golden Age Beverage Company, 415 F 2d 26 (C A 5, 1969), N L R B v Crest Leather Manufacturing Corporation , 414 F 2d 421 (C A. 5, 1969 ), Pepperell Manufacturing Company v N.L R B , 403 F 2d 520 (C A 5 , 1968), cert denied 395 U S 922 ( 1969), NLRB v. Singleton Packing Co , 418 F 2d 275 (C A 5, 1969 ), Frito-Lay, Inc v N.L.R B., 422 F 2d 169 (C A 5, 1970 ), Amax Aluminum Extrusion Products, Inc v . N.L R B , 421 F 2d 394 (C A 5, 1970), N L R B v. Ten- nessee Packers, Inc., 379 F 2d 172 (C A. 6, 1967), cert. denied 389 U.S 958, N L .R.B v Brush-Moore Newspapers , Inc, 413 F 2d 809 (C A 6, 1969), cert denied 396 U S 1002 , N L R B v Dean Foods Company, Inc, 1051 Thus, the Respondent asserts that the Board ignored or refused to accept certain testimony by company executives and departed from recognized precedent in determining the appropriate unit, and further that the Decision and Direction of Election contained numerous discrepancies, inconsistencies, and distortions of the record. This action of the Board, the Respondent says, is of so serious a na- ture as to raise material issues of genuine fact; namely, "has the Board's conduct in this case been arbitrary and capricious?" (Response to Order To Show Cause, p. land "Why was such testimony ignored9" (Resp se to Order To Show Cause, p. 14.) In support of this position the Respondent has summarized and analyzed certain of the Board's findings and evidence in the representation record. In addition the Respondent filed the applications for subpenas, depositions, and interrogatories referred to previously. The Respondent has made no offer of any specific new evidence to be added to the represen- tation record. Its essential position is that record was not properly evaluated by the Board. This is not a contention which I am free to consider. The Board has made a disposition of the representation issues, which is final at this stage of the proceeding. Under existing authority such disposition may be reexamined only by the Board or by a court of ap- peals in an action to enforce or review a Board order under Section 10 of the Act. I therefore respectfully refer the Respondent to that procedure. Other contentions of the Respondent raised in its response to the Order To Show Cause, none of 421 F 2d 664 (C A 6, 1970), N L.R B v National Survey Service, Inc, 361 F 2d 199 (C A. 7, 1966 ), Macomb Pottery Company v N L R.B, 376 F 2d 450 (C A 7, 1967 ), N L R B v Krieger-Ragsdale & Company, 379 F 2d 517 (C.A 7, 1967 ), cert denied 389 U S 1041, Follett Corporation v NLRB , 397 F 2d 91 (C A 7. 1968 ), N L R B v Hollywood Brands, Inc, 398 F 2d 294 (C A 7, 1968), N.L.R B v Montgomery Ward & Co, incor- porated, 399 F 2d 409 (C A 7, 1968 ), N L.R B v Red Bird Foods, Inc , 399 F 2d 600 (C A 7, 1968 ), State Farm Mutual Automobile Insurance Company v N.L R B ., 411 F 2d 356 (C A 7, 1969), cert . denied 396 U S 832, State Farm Mutual Automobile Insurance Co v. N.L R B, 413 F 2d 947 (C.A 7, 1969), cert denied 396 U S. 958 , N L R.B v Wacho Mfg Co, 421 F 2d 848 (C A. 7, 1970 ), N L R B v. Aircraft Engineering Corp [Seib Mfg. Co 1, 419 F 2d 1303 (C A 8, 1970 ), N.L R B v E-Z Davies Chevrolet, 395 F 2d 191 (C A 9, 1968), N L.R.B v Continental Nut Co , 395 F.2d 830 (C A 9, 1968); N L R B . v. Red-More Corp., 418 F.2d 490 (C A 9, 1969 ), Cap Santa Vue, inc v N L R.B , 424 F 2d 883 (C A D.C ), Campbell, et al., d/bla Valley Manor Convalescent Center v N L.R.B , 424 F 2d 883 (C A D C., 1970); N.L R B v. Mar Salle, Inc., 425 F 2d 566 (C A D C , 1970), Amalgamated Clothing Workers [Winfield Mfg. Co.) v N.L.R.B , 424 F.2d 818 (C A D.C., 1970) "See, for example, the following cases cited in fns 5 or 7 Union Carbide Carihe, Inc , Baumritter Corp , Certified Testing Laboratories, Inc , Puritan Sportswear Corp , Carolina Natural Cos Corp , LTV Electrosystems, Inc , AerovoxCorp , (both cases) Union Brothers, Clement-Blythe Companies, Caption Drilling Co, Crest Leather Mfg Corp, Frito-Lay, Inc, Amalga- mated Clothing Workers (Winfield Mfg Co ), Brush-Moore Newspapers, Inc, E-Z Davies Chevrolet, Red-More Corp , Mar Salle, Inc , Follett Corp 7 See, for example, N L R B v Chelsea Clock Company, 41 1 F 2d 189 (C A I , 1969), N L R B v Ortronix, Inc , 380 F 2d 737 (C A 5, 1967), N L R B v Clement-Blythe Companies, 415 F 2d 78 (C A 4, 1969), Na. tional Cash Register Company v N L R B, 415 F 2d 1012 (C A 5, 1969) 1052 DECISIONS OF NATIONAL which are found to be sustained, are disposed of in the opinion attached as Appendix A. It is found that all material outstanding issues raised by the pleadings have been resolved by the Board. It is further found that the Respondent has not established the existence of any controverted matter cognizable by the Trial Examiner and requiring an evidential hearing. On such a state of the record the Motion for Summary Judgment is in order and is granted. Upon the basis of the record before me I make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation engaged in the manufacture, printing, and finishi 'of textile fabrics at a plant in Lyman, South Caro tna. During the past 12 months, whi h period isis representative of all times material herein, Respon- dent received raw materials valued in excess of $50,000 at its Lyman, South Carolina, plant directly from points outside the State of South Carolina. During the same period of time, Respon- dent manufactured, sold, and shipped finished products valued in excess of $50,000 directly to points outside the State of South Carolina Respondent is an employer in commerce within the meaning of the Act.8 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. Ill. THE UNFAIR LABOR PRACTICES The Regional Director, on behalf of the Board, having certified on September 16, 1969, that it ap- peared from the tally of ballots that the Union had been designated by Respondent's employees in the categories described below, and the Regional Director having further certified that the Union may bargain for the employees in such categories as part of the group of employees which the Union currently represents, it is now found that at all times since September 18, 1969, by virtue of Sec- tion 9(a) of the Act, the Union has been the exclu- sive representative of all the employees in said categories with respect to rates of pay, wages, hours The findings in this paragraph are from the Board 's Decision and Direction of Election The findings in the two preceding paragraphs are from pars 2 and 3 of the complaint , which the answer admits However, the answer denies allegations in par 4 of the complaint to the effect that the Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act The basis for, or the significance of, the denial of par 4 of the complaint is not disclosed The question is not discussed in the Respon- dent's Response to the Order To Show Cause on the Motion for Summary LABOR RELATIONS BOARD of employment, and other terms and conditions of employment. All employees of the Printing Department, or Print Room , of the Employer's plant at Lyman, South Carolina, excluding journeymen and apprentice machine printers, office clerical employees, professional and technical em- ployees, all other employees, guards, and su- pervisors as defined in the Act. Though requested by the Union on or about November 12, 1969, to negotiate a collective-bar- gaining agreement for those employees, the Respondent declines to recognize the Union as their collective-bargaining representative, thereby refusing to bargain collectively in violation of Sec- tion 8(a)(5) of the Act, and interfering with, restraining, and coercing employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respon- dent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative of the employees involved.' B. Lyman Printing and Finishing Company, a Division of M. Lowenstein & Sons, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Machine Printers and Engravers Association of the United States as the exclusive collective-bargaining representative of the following employees All employees of the Printing Department, or Print Room, of the Employer's plant at Lyman, South Carolina, excluding journeymen and apprentice machine printers, office clerical employees, professional and technical em- ployees, all other employees, guards, and su- pervisors as defined in the Act. (b) Interfering with the efforts of the Union to negotiate for or represent employees as collective- bargaining representative. Judgment This may suggest that the point is no longer pressed In any event, the Board 's determination concerning it is the law of the case at this puncture Hence the finding ' The purpose of this provision is to insure that the employees will be ac- corded the services of their selected bargaining agent for the period pro- vided by law See Mar-Jac Poultry Company, Inc , 136 NLRB 785, Com- merce Co , d/bla Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5, 1964), cert denied 379 U S 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965) LYMAN PRINTING & FINISHING CO. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Machine Printers and Engravers Association of the United States as the exclusive representative of all employees in the categories described above, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and embody in a signed agreement any un- derstanding reached. (b) Post at its place of business in Lyman, South Carolina, copies of the attached notice marked "Appendix B."10 Copies of said notice, on forms provided by the Regional Director for Region 11, being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region II, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith." APPENDIX A Opinion Revoking Subpenas Duces Tecum and Denying Applications To Take Depositions and To Require Interrogatories Along with its response to the Order To Show Cause on the Motion for Summary Judgment, the Respondent has filed three documents, (1) applica- tion for subpenas duces tecum, (2) application to take depositions, and (3) motion to be granted leave to require certain persons to answer written interrogatories. On February 26, 1967, counsel for the General Counsel filed an opposition to the Respondent's ap- plications and motion, with an alternative request to revoke the subpenas if issued. On the same day I '" In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 1053 issued a telegraphic order denying Respondent's applications and motion, and stating that a written opinion would be contained in the Trial Examiner's Decision disposing of the Motion for Summary Judgment. The Subpenas Duces Tecum In its response to the Order To Show Cause the Respondent frankly avows that the various requests involve discovery. The subpenas duces tecum requested are directed to Frank W. McCulloch, Gerald A Brown, Sam Zagoria, and Reed Johnston. They require the production, for the Respondent's inspection and copy- ing, any and all affidavits, memoranda, cor- respondence, investigation reports or other documents used by the above-named persons during the related representation proceedings in this case. Since the issuance of subpenas is mandatory under Section 11 of the National Labor Relations Act, subject to revocation thereafter, the subpenas are to be deemed issued, and the question is whether they should be revoked. Frank W. McCulloch is the Chairman of the Na- tional Labor Relations Board, and Gerald A. Brown a member of the Board. Sam Zagoria is a former member of the Board whose term expired on December 16, 1969. Reed Johnston is the Board's Regional Director for Region 11. The three Board members constituted the panel which issued the Decision and Direction of Election of July 14, 1969. The Regional Director issued the Supplemen- tal Decision and Certification of Results of Election dated September 18, 1969. The ground stated by the Respondent for the application is that, Such subpoenas are necessary in order to as- sure to the Respondent its constitutional right to demonstrate and develop any and all genuine issues of material fact which will necessitate a denial of General Counsel's Mo- tion for Summary Judgment and the granting of a full hearing on whether the Respondent has violated the Act as charged. Assuming its existence , the material described constitutes part of the Board 's official records, and is not automatically securable unless it is part of the representation case record (see fn. 1, TXD), or matter available for public inspection under the provisions of the Administrative Procedure Act. Neither exception is applicable here. Section 102.118 of the Board's Rules and Regu- lations and Statements of Procedure, Series 8, as amended, inter alia , prohibits Board personnel, in- cluding Board Members and Regional Directors, from producing any records of the Board, . . . whether in answer to a subpena, sub- poena duces tecum, or otherwise, without the written consent of the Board or the chairman 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Board if the official or document is sub- ject to the supervision or control of the Board; or the general counsel if the official or docu- ment is subject to the supervision or control of the general counsel. No showing is made- that the Respondent has requested the General Counsel or the Chairman of the Board for consent to the production of the material. Absence of such a request is sufficient ground for denying compulsory production of matter of this character, for upon proper showing consent may be given. Touhy v. Ragen, 340 U.S. 462 (1951); N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725 (C.A. 2, 1954); Davis v. Braswell, 363 F.2d 600 (C.A. 5, 1966); Harvey Aluminum (Inc.) v. N.L.R.B., 335 F.2d 749 (C.A. 9, 1964); North American Rockwell Corporation v. N.L R.B , 389 F.2d 866 (C.A. 10, 1968). In addition, the Respondent has not demon- strated the materiality or essentiality of the material sought. The statement in the application that the subpenas are necessary to develop any material fac-' tual issues requiring the denial of the Motion for Summary Judgment and the granting of a hearing, is too general in nature to warrant compulsory production of the documents. Treating the sub- penas as issued, they are now revoked. Follett Corp., 164 NLRB 378. In any event, material of this character is "con- fidential and privileged against disclosure," unless a hearing is shown to be required. The burden is on the Respondent to make such a showing, and not having done so, the subpenas are to be quashed. In- tertype Company v. N.L.R.B., 401 F.2d 41, 45 (C.A. 4), cert. denied 393 U.S. 1049. See also N.L.R.B. v. Truck Drivers and Helpers, Local Union 282, Teamsters, 70 LRRM 2793 (C.A 2, 1969, order on motion). The discovery considerations ad- vanced by the Respondent are discussed infra. The Application To Take Depositions and the Motion To Require Interrogatories In the application for depositions the Respondent requests the depositions of Board Chairman Mc- Culloch and Members Brown and Zagoria and of the Respondent's general manager, J. F. Magarahan . The interrogatories are directed to the same Board Members and to the Regional Director. The basis asserted for requesting the depositions of the Board Members is that, It is expected that [they ] would testify as to the reasons that they arbitrarily and capri- ciously ignored certain facts in ti-le record and substantially departed from established Board precedent by their finding that a single -depart- ment, unit of printing department employees is appropriate. With respect to the deposition of Mr. Magarahan, the application avers that, It is expected that this witness would testify as to the instances in which the Board Panel ignored and/or distorted his testimony in reaching the above -mentioned Decision and Direction of Election. The basis asserted for the interrogatories is ... so that the Respondent may be allowed to exercise its constitutional right to discover and develop any and all genuine issues of material fact which will necessitate a denial of the General Counsel's Motion for Summary Judgment and the granting of a full trial on the issue of whether the Respondent has violated the Act as charged. The request for depositions and interrogatories must be denied. (1) Section 102.118 of the Board's Rules, inter alia, prohibits a Board Member or a Regional Director from testifying in any proceeding with respect to "any information, facts, or other matter coming to his knowledge in his official capacity ... without the written consent of the Board or the chairman of the Board ...." I consider this provi- sion of the rule to be applicable to depositions and interrogatories. Here again the Respondent makes no showing that it has requested consent for the Board officials to testify. As with demands for the production of Board records, a request for and a denial of consent is a prerequisite to consideration of the substantive merit of the application for depositions and interrogatories. The failure to make such request thus requires denial of the application in this respect. (2) Furthermore, the depositions and interroga- tories are unnecessary for the establishment of the Respondent's purpose-if the purpose be assumed to have merit. For if, as the Respondent says, the Board "arbitrarily and capriciously ignored certain facts in the record" or "departed from established Board precedent," the Board's decision and the record will demonstrate it. (3) In addition, it is apparent from its statements of purpose that what the Respondent proposes with respect to the depositions and interrogatories directed to the Board officials is, at least in part, to cross-examine them in order to probe the mental processes by which they reached their conclusions. This the Respondent may not do. What the Supreme Court said in the Morgan cases concern- ing adjudicative action by the Secretary of Agricul- ture in that proceeding is applicable to the Board officials here: ". . . it was not the function of the court to probe the mental processes of the Secreta- ry in reaching his conclusions if he gave the hearing which the law required." (Morgan v. U.S., 304 U.S. 1, 18 (1938).) In a later opinion, involving another phase of the case, the Supreme Court specifically held that it was improper for the district court to authorize the taking of the deposition of the Secre- tary concerning the manner in which he reached his conclusions in the case. The Court said that "the short of the business is that the Secretary should LYMAN PRINTING & FINISHING CO. never have been subjected to this examination... . Just as a judge cannot be subjected to such a scru- tiny ... so the integrity of the administrative process must be equally respected." (Morgan v. U.S., 313 U.S. 409, 422 (1941).) See also Davis v Braswell Motor Freight Lines, Inc., 363 F.2d 600, 604 (C.A. 5, 1966), where the court of appeals, quoting the opinion in the 1941 Morgan case, or- dered the quashing of a subpena commanding a Re- gional Director of the Board to testify and to produce certain documents in a civil suit in a U.S. district court, because, "The subpoena here at- tempts to examine the processes and reasoning of the Board and the General Counsel's office in reaching their conclusions prior to their official publication." We turn now to the discovery considerations ad- vanced by the Respondent. Discovery I. It will be well at the outset to define the precise question presented, which is the right to discovery in NLRB proceedings before the Board, not the right to discovery in NLRB cases before the courts. For discovery may be applicable in judicial situa- tions involving the NLRA which are subject to the discovery provisions of the Federal Rules of Civil Procedure, as distinguished from proceedings be- fore the Board-which are administrative in nature. Among these judicial proceedings are contempt ac- tions involving alleged disobedience of court decrees involving Board orders (see, for example, Olson Rug Company v. N.L.R.B., 291 F 2d 655 (C.A. 7, 1961); N.L.R.B. v. Schill Steel Products, Inc., 408 F.2d 803 (C.A. 5, 1969); N.L.R.B. v. Truck Drivers and Helpers Local Union 282, IBT, 70 LRRM 2793 (C A. 2, order on motion Feb. 18, 1969); cf. Schauffler v. Local 1291 ILA, 189 F.Supp. 737 (1960)), and injunctive proceed- ings (see, for example, Sperandeo v. Milk Drivers Local 537, 334 F.2d 381 (C.A. 10, 1964); Fusco v. Kaase, 205 F.Supp. 459 (D.C. Ohio, 1962); Meter v. Minnesota Mining and Manufacturing Company, 273 F.Supp. 659 (D.C. Minn., 1967)). Those cases are therefore not-authorities on the issue here. For almost two decades the Board has con- sistently held that the discovery provisions of the Federal Rules of Civil Procedure are not applicable to proceedings before the Board.a a/ See, for example, Del E Webb Construction Company, 95 NLRB 377, Miami Coca-Cola Bottling Company, 108 NLRB 456, fn 2, Balti- more Steam Packet Company, 120 NLRB 1521, 1522, Chambers Man- ufacturing Corp , 124 NLRB 721, 722, Sealtest Southern Dairies, 126 NLRB 1223, fn 3, Plumbers and Steamfitters Union Local 100, 128 NLRB 398, 400, Edwards Trucking Company, 129 NLRB 385, fn I, Krieger-Ragsdale & Company, Inc , 159 NLRB 490, 495, W H Sack- ett, d/bla Sackett Transportation, 169 NLRB 346 1055 This view has been sustained by various courts of appeals. Thus, in 1951, in the case of N.L.R.B. v. Globe Wireless, Ltd, 193 F.2d 748, 75 1, in uphold- ing a Trial Examiner's refusal of subpenas for tak- ing the depositions of complaining witnesses prior to hearing, the Court of Appeals for the Ninth Cir- cuit said, "There is no provision in the [National Labor Relations] Act authorizing the use of the discovery procedure." The Ninth Circuit has also ruled that without such authorizing legislation, a Federal administrative agency may not establish discovery procedures. Federal Maritime Commis- sion v. Anglo-Canadian Shipping Co., 335 F 2d 255 (C.A. 9, 1964). Similarly, other courts of appeals have held that the discovery provisions of the Federal Rules are not applicable to the National Labor Relations Act. See, for example, Texas Industries, Inc. v. N.L.R.B., 336 F.2d 128, 132-133 (C.A. 5, 1964) ("... Board's rules do not permit general prehearing discovery of such statements [of witnesses] .... The validity of these rules on their face has been upheld...."); Movie Star, Inc., 361 F.2d 346, 352 (C.A. 5, 1966) (contention that respondents were denied due process by refusal of pretrial discovery is "without merit"); Raser Tanning Company v. N.L R.B, 276 F.2d 80, 83 (C.A. 6, 1960) ("Ad- ministrative hearings of the Labor Board are governed by the Administrative Procedure Act rather than the Federal Rules of Civil Procedure"); N.L.R.B. v. Vapor Blast Mfg. Co., 287 F.2d 402,407 (C.A. 7, 1961) (Sec. 10(b) of the Act ". . . does not require the Board to adopt the entire discovery procedure contemplated by the Federal Rules of Civil Procedure"). It has also been said that the Federal Rules are inapplicable to administrative proceedings.' However, some of the court decisions cited above, and several other court decisions, suggest that the Board has authority to establish discovery procedures Indeed, the Fifth Circuit has held that Sections 102.30 and 102.35 of the Board's Rules authorize discovery through the use of pretrial depositions of the General Counsel's witnesses. N.L.R.B. v. Safway Steel Scaffolds Company, 383 F.2d 273 (C.A. 5); N L.R.B. v. Miami Coca-Cola Bottling Company, 403 F.2d 994 (C.A. 5, 1968). In those cases the court found error, not prejudicial, in statements by a Trial Examiner and a Regional Director, respectively, made in the course of refus- b/ Montgomery, Discovery in Federal Administrative Proceedings, 16 Stanford L R 1035, fn 11 ( 1935) "The Administrative Procedure Act does not provide for discovery, and the Federal Rules of Civil Procedure do not apply to administrative proceedings " c/ Among these decisions are Storkline Corp v N L R B 330 F 2d 14 (C A 5, 1964), Texas Industries, Inc , supra, Winn-Dixie Storer, Inc v N I. R B , 413 F 2d 1008 (C A 5, 1969), Trojan Freight Lanes, Inc v N L R B, 356 F 2d 947 (C A 6, 1966), Vapor Blast Mfg Co, supra, Elec- tromec Design Co v N L R B , 409 F 2d 631 (C A 9, 1969), North Amer- ican Rockwell Corporation v N L R B, 389 F 2d 866 (C A 10, 1968) Other cases to the same effect, cited by the Respondent, are discussed in- fra 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ing to authorize pretrial depositions, to the effect that there was no provision for discovery in Board procedure.' In the relatively recent Electromec Design case, supra, the Ninth Circuit, citing the Saf- way decision and Board Rule 102 30, stated that it was within the discretion of the Trial Examiner whether to permit depositions to be taken prior to hearing. The court said that, Since there is no specific provision in the National Labor Relations Act for discovery procedure, N.L.R.B v. Globe Wireless Ltd., 193 F 2d 748, 751 (9 Cir. 1951), it is the responsibility of the Board to formulate its own rules as to when discovery is available to a party, N L.R.B. v. Vapor Blast Mfg Co., 287 F.2d 402, 407 (7 Cir. 1961). There is no apparent suggestion in the opinion to the effect that the Electromec decision represents a modification of the Globe Wireless and Federal Maritime cases.' IL The sum of the foregoing authorities appears to be the following: (I) the discovery provisions of the d/ The Board has held that its procedures make no provision for dis- covery depositions Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294 296 e/ It has been recommended that discovery should be made applicable to Federal Administrative proceedings In 1955 a task force of the Hoover Commission (Commission on Organization of the Executive Branch of the Government) made a recommendation to the effect that the Administrative Procedure Act be amended to permit discovery in conformance with the Federal Rules (Task Force Report on Legal Services and Procedure, March 1955, p 197 ) in 1962 the Adminis- trative Conference of the United States recommended that each agency adopt discovery rules "to the extend and in the manner appropriate for its proceedings " (Final Report, Administrative Conference, De- cember 15, 1962, Recommendation No 30) Five administrative agen- cies have enacted discovery rules, or rules permitting the taking of pretrial depositions for discovery purposes the Federal Trade Com- mission (16 C F R 3 33), the Federal Communications Commission (47 C F R 1315), the Federal Maritime Commission (46 C F R 502)- the latter under statutory authority enacted following the Anglo-Ca- nadian decision of the Ninth Circuit, 81 Stat 544, 46 U S C 826- Federal Aviation Agency (14 C F R 13 53), and the Bureau of Land Management , Department of Interior (43 C F R 1850 0) The Interstate Commerce Commission is considering adoption of discovery rules (Consultant's Report, Administrative Conference of the United States, Committee on Compliance and Enforcement Proceedings, Discovery in Agency Adjudication, January 1970 (pp 2 and 24) ) In California discov- ery is authorized by statute in state administrative proceedings Cahforma Government Crxle, 11507 1 hough the Federal Rules of Civil Procedure authorize extensive discovery, the Federal Rules of Criminal Procedure do not The Jencks Act (18 U S C 3500) permits the securing of statements of government witnesses in criminal cases after they have testified, to the ex- tent related to the witness' testimony Sec 16 of the Federal Rules of Criminal Procedure does not further authorize the discovery or inspection of statements by government witnesses or prospective government wit- nesses, or ( with limited exception) authorize discovery or inspection of "reports, memoranda, or other internal government documents made by government agents in connection with investigation or prosecution of the case " fhe above facts are noted as a matter of information only 1 express no opinion on what the policy or law should he I address myself only to ascer- taining what they are Federal Rules of Civil Procedure are not applicable to administrative proceedings before the Board, (2) the Board's Rules do not permit discovery in the sense of the Federal Rules; (3) the Board's action in denying discovery is subject to review only to the extent due process is involved, (4) the courts ap- pear to be divided on the question as to whether the Board has established, or has authority to establish, discovery procedures. We turn now to authorities cited by the Respon- dent in support of the proposition that it is entitled to discovery, "in order to give it the opportunity to raise and develop all material issues ... for the pur- pose of developing and amplifying the record." (Response to Order To Show Cause, p. 16 ) These authorities are Rule 56(c) of the Federal Rules of Civil Procedure and a number of court decisions. With respect to Rule 56(c), the Respondent points out that the rule requires the issuance of a summary judgment "forthwith, if the pleadings, depositions, answers to interrogatories, and admis- sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." (Emphasis supplied.) The Respondent urges that it follows from this that depositions and interrogatories should be available in NLRB summary judgment procedure. In my view, Rule 56(c) neither requires nor authorizes the use of depositions and interrogatories in NLRB summary judgment proceedings for the purpose of securing discovery. In the first place the Board's summary judgment procedure is not founded in the Federal Rules of Civil Procedure, but in the Board's rules and deci- sions. Krieger-Ragsdale & Company, Inc., 159 NLRB 490, 495, enfd. 379 F 2d 517 (C.A. 7, 1967), cert denied 389 U.S. 1041 (1968). In the second place, the portion of Rule 56(c) quoted above does not purport to prescribe the conditions under which depositions and answers to interrogatories may be secured. It is rather a direction to consider such material when it is in the record. See Moore's Federal Practice 56.02(b), and 1963 note of Advisory Committee on Rules of Civil Procedure referred to in Moore's 56.01(12) at pp 2020-2 1. 1 do not apprehend that the Board's prac- tice is to the contrary If depositions allowable under Section 102.30 or consented to under Sec- tion 102.118 of the Board's Rules, or answers to in- terrogatories similarly secured, are in the record of a Board summary judgment proceeding, it is to be assumed that they will be considered by the Board. It is therefore concluded that Federal Rule 56(c) does not provide authority for discovery in NLRB proceedings. The decisions referred to by the Respondent as supporting its demand for discovery are the follow- ing: N.L.R B. v. Southern Materials Co , Inc., 345 F.2d 240, 244 (C.A. 4, 1965), Firestone Synthetic Frito Company v. N. L. R. B., 330 F2d 458, 465 (C A. 4, 1967); American Boiler Manufacturers As- sociation v N.L.R.B, 366 F.2d 823 (C.A. 8, 1966); LYMAN PRINTING & FINISHING CO. Frito Company v. N.L.R.B., 1330 F2d 458, 465 (C.A. 9, 1964); Associated Home Builders of the Greater East Bay, Inc. v. N.L.R.B , 352 F.2d 745 (C.A. 9, 1965). I do not interpret those decisions as requiring the establishment of discovery procedures by the Board In the Southern Materials case the court said the following: The brief filed in behalf of the Board does not reveal the Board's position with respect of the refusal to allow pre-hearing discovery. In view of our disposal of the other questions, it becomes unnecessary that we pass upon this issue except to observe that the Board, acting in a quasi judicial capacity as it does, should freely permit discovery procedure in order that the rights of all parties may be properly pro- tected. In the Firestone case , in rejecting an argument of the Board to the effect that the burden was on the respondent there to call other employee witnesses to corroborate the Respondent's version of a disputed conversation, the court said (p. 214): We think otherwise . Firestone had attempted unsuccessfully to use discovery procedures, in- cluding interrogatories, to learn the names of Board witnesses . If the Labor Board may some- times have sufficient reasons for delimiting discovery in order to protect employees from company reprisal, it must accept the burden of producing more evidence than might otherwise be necessary. It is basically unfair for Labor Board counsel to argue to this court that the Company should have produced witnesses whose names were unknown to the Company because of a policy decision of the Board See N.L.R.B. v. Southern Materials Co., 345 F.2d 240, 244 (4th Cir. 1965). In addition, in connection with a finding of the Board as to an instance of alleged company threats in the Firestone case, which were not included in the complaint, the court said (p. 215): We said in N.L R.B. v. Threads, Inc., 308 F.2d 1, 9 (4th Cir. 1962), "evidence without a sup- porting allegation cannot serve as the basis of a determination of an unfair labor practice." Even so, we are reluctant to inject procedural technicalities into administrative proceedings. There would be less occasion for our doing so if trial examiners would permit, within protec- tive limitations, reasonable discovery procedures. The language of the Southern Materials opinion ap- pears to be advisory in character, rather than moni- tory-a conclusion which the language from Firestone, though somewhat more admonitional, seems to reinforce The court is, of course, the best authority as to how its opinions are to be construed, but I do not interpret them as holding that the Board must establish discovery in unfair labor prac- tice proceedings before the Board. Thus I note that in a Fourth Circuit case sub- 1057 sequent to the Southern Materials and Firestone cases, in which the court could have ruled that discovery is required, it did not do so. This is the case of LTV Electrosystems cited in footnote 1, TXD. There the Board, reversing the Trial Ex- aminer, denied the respondent's requests for inclu- sion in the record of material similar to that sought in the subpenas here. The issue was presented to the court on cross-petitions for review and enforce- ment of the Board's order. See, for example, the Board's brief to the court in the LTV case, p. 2, fn. 2, and p. 28, fn 16, discussing the point. However, the court's opinion does not refer to the issue. It would thus appear that the Southern Materials and Firestone Synthetic cases are not to be con- strued as requiring the Board to establish discovery. At most they would seem to indicate, contrary to the Globe Wireless and other cases, that the Board is authorized to establish discovery procedures and in the court's opinion should do so However, as we have seen, the Board has not done so, and with all respect to the court, I am compelled to observe that I have no authority to do it for them.' The other cases cited by the Respondent (Frito, American Boiler, and Home Builders ) are inapplica- ble and are not authority respecting discovery. Frito is the basic case, the other two cite Frito as authority in similar circumstances, and follow it. Section 101.10 of the Board 's Rules, consistent with a similar provision in Section 10(b) of the NLRA, provides, in part, that in unfair labor prac- tice hearings before the Board, The rules of evidence applicable in the district courts of the United States under the Rules of Civil Procedure adopted by the Supreme Court are, so far as practicable, controlling. In Frito the Ninth Circuit Court said in reference to that provision of the Board's Rules: The Federal Rules of Civil Procedure are not rules of evidence, but of procedure pursuant to which evidence may be taken. The provision noted must be taken to mean that the procedure to be followed in hearings before the Board shall be controlled as far as practica- ble by the Federal Rules of Civil Procedure. This language, however, had nothing to do with discovery. The issue to which the court's statement was directed was whether the Board has authority to decide material unpleaded issues not sponsored by the General Counsel, where evidence on the matter was admitted without objection. In holding that the Board had such authority, the court f/ A Trial Examiner is required to follow the Board's precedents and policies until overruled by the Board or the Supreme Court (Prudential Insurance Coinpanr of Anierica, 119 NLRB 768, Ranca, Inc , 109 NLRB 998, Lenz Cnmpanv, 153 NLRB 1399), even though there may be contrary authority in the court of appeals (Iona Beef Pacers, Inc, 144 NLRB 615, Teamsters Local 390 (U & ME Transfer), 119 N LRB 852, Novak LogLoig Company, 119 N LRB 1573 S(herrer and Davisson Logging Company, 119 NLRB 1587) 1058 LYMAN PRINTING & FINISHING CO. referred, inter alia, to Rule 15(b) of the Federal Rules That rule provides, in part, that, "When is- sues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings," and the complaint may be amended to conform to the evidence in such respect. In that connection the court noted Section 101 10 of the Board 's Rules quoted above. With Frito as authority, the Respondent says that, there being no showing that discovery is clearly impracticable here, it should be permitted. This contention, no doubt inadvertently, over- looks the fact that the Ninth Circuit is the court which held that there is no provision in the Na- tional Labor Relations Act authorizing discovery. The language in the Frito opinion must be in- terpreted in that context It seems clear to me that a holding that it is practicable for the National Labor Relations Board to follow a provision of the Federal Rules authorizing findings on unpleaded but litigated issues, is not authority for the proposi- tion that it is equally practicable to follow such rules in respect to discovery. To adopt the Respon- dent's view requires an assumption that the Ninth Circuit in the Frito case was consciously overrul- ing its prior decision in Globe Wireless, Ltd. sub silencio I find nothing in the case to warrant such an assumption. Since the American Boiler and the Home Builders cases involve substantially the same issue as Frito, I do not interpret them as constitut- ing authority on the issue of discovery. It thus appears that discovery is inapplicable in the instant situation, and the Respondent's request therefor must consequently be denied. But even if it be assumed , for the purposes of discussion , that unfair labor practice proceedings before the NLRB are subject to the discovery provisions of Federal Rules of Civil Procedure, it is by no means clear that the Respondent's requests should be granted . For, under Rule 26 of the Federal Rules , deponents in discovery proceedings may not be examined regarding privileged matter. See also N.L.R.B. v. Truck Drivers and Helpers, Local Union 282, Teamsters , 70 LRRM 2793 (C.A. 2, 1969 , order on motion). In the light of the purpose of the Respondent's requests and the nature of the material and infor- mation sought , the matter seems clearly privileged under the principles of the Intertype and Morgan cases. While Federal Rule 26(b) states, in sum, that testimony inadmissible at the trial may be secured if it appears " reasonably calculated to lead to the discovery of admissible evidence," it cannot be said that the testimony sought by the Respondent here is of such character. In addition, Rules 30 and 31 of the Federal Rules of Civil Procedure vest in the judge authority to order that depositions and interrogatories not be taken, or taken only under certain conditions, or that the scope of examination be limited as to sub- ject matter. In my view, in the light of the circumstances of the case, depositions and interrogatories should not be ordered to be taken, even if discovery is deemed applicable. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Machine Printers and Engravers Associa- tion of the United States as the exclusive col- lective-bargaining representative of all the fol- lowing employees- All employees of the Printing Department, or Print Room, of our plant at Lyman, South Carolina, excluding journeymen and apprentice machine printers, office cleri- cal employees, professional employees, and technical employees, all other em- ployees, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representa- tive. WE WILL bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of the employees in the categories listed above and, if an understanding is reached, we will sign a contract with the Union. LYMAN PRINTING AND FINISHING COMPANY, A DIVISION OF M. LOWENSTEIN & SONS (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211.