Basha's Inc.

BASHAS’, INC. 352 NLRB No. 82 661 Bashas’, Inc. and United Food and Commercial Workers Union, Local 99 and United Food and Commercial Workers International. Cases 28– CA–21435, 28–CA–21501, 28–CA–21590, 28– CA–21592, 28–CA–21639, 28–CA–21639, 28– CA–21640, 28–CA–21646, 28–CA–21676, 28– CA–21739, 28–CA–21785, and 28–CA–21803 May 30, 2008 ORDER1 BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN The General Counsel’s Request for Special Permission to Appeal from Administrative Law Judge William Schmidt’s ruling that the General Counsel must furnish the Respondent’s counsel with the names of witnesses whom the General Counsel intends to call at the hearing is granted, and the judge’s ruling is reversed. By ordering the General Counsel to provide a list of witnesses in advance of their testimony, the judge has, in effect, established a procedure for discovery. Board pro- ceedings do not provide for such procedures, and parties to such proceedings do not possess rights to pretrial dis- covery. The Board has held that: it is well settled that parties to judicial or quasi-judicial proceedings are not entitled to discovery as a matter of a constitutional right. Starr v. Commissioner of Internal Revenue, 226 F.2d 721, 722 (7th Cir. 1955), cert. de- nied 350 U.S. 993 (1956). Furthermore, the Adminis- trative Procedure Act does not confer a right to discov- ery in federal administrative proceedings. Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir. en banc 1974), cert. denied 421 U.S. 980 (1975). Moreover, the Na- tional Labor Relations Act does not specifically author- ize or require the Board to adopt discovery procedures. NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 858 (2d Cir. 1970), cert. denied 402 U.S. 915 (1971); NLRB v. Globe Wireless, Ltd., 193 F.2d 748, 751 (9th Cir. 1951).2 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 Kentucky River Medical Center, 352 NLRB 194, 199 (2008). In this proceeding, the General Counsel has voluntarily agreed to provide advance notice of the dates on which current employees or managers of the Respondent, who are under subpoena, will be called. Where appropriate, voluntary agreements of this character can aid in the effi- cient administration of the Act. However, no provision of the Act or the Board’s Rules and Regulations author- izes an administrative law judge to require the General Counsel to provide a witness list.3 Rather, the Board’s Rules generally prohibit the imposition of such require- ments. See Sunshine Piping, Inc., 351 NLRB 1372, 1402 (2007) (there was “no requirement for counsel for the General Counsel to inform Respondent of the identity of this witness or any other witness prior to the witness tes- tifying in a Board proceeding”); and see generally Sec- tion 102.117 and 102.118 of the Board’s Rules and Regulations. Nor is there any indication that the Re- spondent has demonstrated a need for advance notice of the General Counsel’s witnesses that cannot be met by alternate measures such as granting a continuance, where appropriate, after the General Counsel’s witnesses have testified. See Medicine Bow Coal Co., 217 NLRB 931, 932–933 (1975). See also Interlake, Inc., 218 NLRB 1043, 1048–1049 (1975).4 We find, then, that the judge abused his discretion by ordering the production of a witness list, by conditioning testimony of the General Counsel’s witnesses on their having been included on the list, by informing the Gen- eral Counsel that in calling witnesses he could not devi- ate from the order of the witnesses as they were listed, and by any further requirements or penalties imposed on the General Counsel relating to the requirement that the names of witnesses be disclosed. Accordingly, we re- verse the judge’s rulings. 3 Of course, the judge’s order would require advance disclosure of any witness, including Union agents, nonemployees, and former em- ployees of the Respondent. 4 Accordingly, we need not reach the issue of whether an order re- quiring advance disclosure of witnesses would be appropriate if such a showing were made. Also not at issue here is the authority of the judge to regulate the course of the hearing by, among other things, ruling on requests that the testimony of witnesses be scheduled, where appropri- ate, so as to minimize the burden on the witness, his or her employer, or any party.