National Specialties Installations, 191 (2005)

Extract

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National Specialties Installations, 191 (2005)

National Specialties Installations, Inc. and Erin Hardcastle-Mehlhose.  Case 7–CA–46698

January 18, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On August 16, 2004, Administrative Law Judge William N. Cates issued the attached bench decision. The Respondent filed exceptions, a supporting brief, and a motion to reopen the record and receive additional evidence. The General Counsel filed a cross-exception and supporting brief, an answering brief, and an opposition to the RespondentÂ’s motion.1

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judgeÂ’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3

The General Counsel cross-excepted to the judge’s ruling during the hearing that the General Counsel violated the Board’s Jencks rule by failing to produce a July 12, 2003 notice sent to the discriminatees by their bank.  See Board’s Rules and Regulations § 102.118(b)-(d); see also Jencks v. United States, 353 U.S. 657, 667–672 (1957) (holding that a defendant has the right to inspect, for impeachment purposes, prior statements made to government agents by government witnesses).  Although we find merit in the General Counsel’s cross-exception, we do not disturb the judge’s factual findings regarding the July 12 notice.

As a general matter, a written notice from a third-party bank to a witness will not be a “statement made by said witness” under the Board’s rule.  Board’s Rules and Regulations §102.118(d).  Moreover, there is no evidence that the notice in question was “adopted” by the discriminatees in a manner that would bring it within the rule.  Id.; see also Goldberg v. United States, 425 U.S. 94, 110 fn. 19 (1976).  We therefore find that the General Counsel did not violate the Board’s Jencks rule.

Of course, a partyÂ’s failure to produce a document on which it relies has long been recognized as...

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