Free Reply - District Court of California - California

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PATRICK J. CULLEN (240207) ROBERT N. MACKAY (192423) NEIL A. WARHEIT (133218) WILLIAM M. PATE, JR. (45734) National Labor Relations Board, Region 21 888 South Figueroa Street, 9th Floor Los Angeles, CA 90017-5449 Telephone: (213) 894-7016 Facsimile: (213) 894-2778 E-mail: [email protected] Attorneys for the NLRB UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NATIONAL LABOR RELATIONS BOARD, Applicant, v. BCI COCA-COLA BOTTLING COMPANY, Respondent.

Case No.: 08 CV 0055 WQH NLS Exhibits to Reply to Opposition to Application for Order Requiring Compliance with Administrative Subpoena Duces Tecum Date: February 21, 2008 Time: 10:30 a.m. Judge: Hon. Nita L. Stormes Courtroom: F

To the Honorable Nita L. Stormes:

Attached are five exhibits in support of the NLRB's Reply to Opposition to Application for Order Requiring Compliance with Administrative Subpoena Duces Tecum, filed concurrently herewith. The table below lists each exhibit by exhibit number, and includes the page number of each exhibit. A brief description of each exhibit is also included. 08 CV 0055 WQH NLS

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Exhibit No.

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Description

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NLRB Casehandling Manual § 10352 et seq.

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NLRB Casehandling Manual Introduction

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Declaration of Regional Attorney William M. Pate, Jr. Letter dated January 23, 2008, from Regional Attorney William M. Pate, Jr. to Warren L. Nelson, Esq. Declaration of Regional Director James F. Small

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Dated at Los Angeles, California, this 12th day of February, 2008. Respectfully submitted, National Labor Relations Board William M. Pate, Jr. Neil A. Warheit Robert N. MacKay Patrick J. Cullen s/ Patrick J. Cullen ______________________ Patrick J. Cullen Attorneys for Applicant National Labor Relations Board E-mail: [email protected]

By:

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Case 3:08-cv-00055-WQH-NLS 10352

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DEPOSITIONS IN LIEU OF TRIAL TESTIMONY

Where feasible, the settlement judge may require that the parties or their representatives attend the settlement conference in person, since such a meeting provides the best opportunity to engage in a fruitful discussion. In addition, the alleged discriminatees should be encouraged to attend the conference. When only the representative of a party is present, the party, or an agent with full authority to settle, should be available by telephone. When personal attendance at a meeting is not feasible, the discussion could be conducted by conference call. The Regional Office representative should be familiar with the facts and legal theory, as well as the settlement position of the charging party and the Regional Director. When discussing the facts, the Regional Office's representative needs to be prepared to discuss the nature of the evidence on specific violations, but should not reveal the names of possible witnesses. Sec. 10128 and especially 10128.3. Any settlement agreed upon is still subject to the approval of the Regional Director. If the Regional Director approves a unilateral settlement, the normal appeal procedure is available to an objecting party.

10352 Depositions in Lieu of Trial Testimony 10352.1 Depositions; General The Federal Rules of Civil Procedure providing for various types of compulsory pretrial discovery are not applicable to Board proceedings. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236­237 fn. 16 (1978). Therefore, depositions may not be used merely for purposes of pretrial discovery. They may be taken only for good cause shown after issuance of complaint. See Sec. 102.30, Rules and Regulations, for the general requirements and procedures to be followed. 10352.2 "Good Cause" "Good cause" may arise from a variety of circumstances. It relates generally, however, to situations where the witness will not be available to testify at the hearing. The lack of availability may be due to serious illness of the witness or other extraordinary circumstances. However, where it is anticipated that the testimony of the witness may conflict with other evidence or testimony, the use of depositions should be discouraged. A better alternative would be, where practicable, to request an adjournment of a portion of the hearing to a time and place at which the witness can testify. 10352.3 Application for Deposition Sec. 102.30(a), Rules and Regulations, provides any party may make application for deposition to the Regional Director before hearing or, if the hearing has opened, to the Administrative Law Judge. An order granting the application will be served on the parties if, in the discretion of the Regional Director or Administrative Law Judge, good cause has been shown.

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ROLE AND CONDUCT OF TRIAL ATTORNEY

10352.4 Order and Notice of Deposition The order and notice of deposition should set forth the name of the witness whose deposition is to be taken, the date, hour, and place of deposition, and the "officer" before whom the "witness" will testify. Normally the "officer" will be counsel for the General Counsel, who will fully participate in the deposition. All parties should be served with the order. 10352.5 Taking of Deposition Sec. 102.30(b), Rules and Regulations, provides that the deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place of deposition, including any Board agent authorized to administer oaths. Sec. 102.30(c) provides that at the time and place specified, the officer should permit the witness to be examined and cross-examined under oath. Sec. 102.30(c), Rules and Regulations, provides that all objections to questions or evidence shall be deemed waived unless made during the examination. The officer shall not have the power to rule on any objections, but shall note them on the record. 10352.6 Reporter and Transcript of Testimony The party seeking the deposition must arrange and pay for the reporter. An original and two copies of the transcript of the testimony should be delivered to the Regional Director for prehearing depositions, or to the Administrative Law Judge during and subsequent to hearing. The transcript must be signed by the witness, unless counsel by stipulation waive such signature. 10352.7 Introduction into Evidence When a party wishes to introduce a deposition into evidence, the transcript should be marked for identification and offered into evidence as an exhibit. If counsel for the General Counsel wishes to object to the introduction of all or a portion of the transcript, the attorney should present the objections with supporting legal argument. The Administrative Law Judge will rule on the admissibility of the deposition or any part thereof. Errors or irregularities in the transcript will be deemed to be waived, in the absence of a prompt motion to suppress part or all of a deposition.

10380­10409 THE HEARING
10380 Role and Conduct of Trial Attorney The trial attorney is an advocate who prosecutes the case as set forth in the complaint on behalf of the General Counsel. The trial attorney represents the public's interests by presenting evidence and arguments in support of the complaint with honesty and integrity. In order to maximize the potential for success, the trial attorney should be guided by the recommendations and suggested practices set forth in the memoranda of

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INTRODUCTION
PREFACE I am pleased to introduce this revised edition of the National Labor Relations Board Casehandling Manual for Unfair Labor Practice Proceedings. Last revised in June 1989, this comprehensive revision is more accessible and useful, increasing its value as a resource for the Agency and the public. This edition incorporates straightforward language to clarify instruction concerning ULP case processing; expands the scope of guidance in many areas and reorganizes the material to facilitate its use. In addition, several new sections address existing casehandling procedures and recent developments and update existing sections to reflect current case law and General Counsel policies. I anticipate that the guidelines set forth in this revision will enhance the quality of casehandling and assist the Agency in its mission to fairly and efficiently process and resolve unfair labor practice cases. This revised manual was prepared by a field committee composed of Richard Ahearn, Regional Director in Region 9; Michael C. Joyce, Assistant to the Regional Director in Region 6; Rik Lineback, Regional Attorney in Region 25; and Mark Carissimi, Deputy Regional Attorney in Region 8. Ellen Farrell, Deputy Associate General Counsel, Division of Advice made a significant contribution to the Manual in several areas. Individuals in Special Litigation Branch, Contempt Litigation and Compliance Branch and Regional Offices also played important roles in this project. As Chairman of the Committee Richard Ahearn deserves special recognition for his leadership and coordination of the Committee's work. Christina Stadtlander, Assistant Office Manager, Region 9, rendered invaluable assistance to the Committee in preparing this revision. Assistant General Counsel Nelson Levin coordinated this substantial project for the Division of Operations-Management. In closing, I wish to thank all the individuals who contributed to revising this Manual.

Arthur Rosenfeld General Counsel September 2003

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PURPOSE OF THE MANUAL The Casehandling Manual is intended to provide procedural and operational guidance for the Agency's Regional Directors and their staffs when making decisions as to unfair labor practice and representation matters under the National Labor Relations Act. The Manual consists of three volumes: Part One--Unfair Labor Practice Proceedings; Part Two--Representation Proceedings; and Part Three--Compliance Proceedings. This Manual has been prepared by the General Counsel for use by Agency personnel, pursuant to authority under Section 3(d) of the Act and as delegated by the Board. The Manual has been neither reviewed nor approved by the Board. As to matters on which the Board has issued rulings, the Manual seeks to accurately describe and interpret Board law; while the Manual can thus be regarded as reflecting Board policies as of the date of its preparation, in the event of conflict, it is the Board's decisional law, not the Manual, that is controlling. Similarly, while the Manual reflects casehandling policies of the General Counsel as of the date of its preparation, such policies may be revised or amended from time-to-time. The Manual is not a form of binding authority, and the procedures and policies set forth in the Manual do not constitute rulings or directives of the General Counsel or the Board. The Manual is also not intended to be a compendium of either substantive or procedural law, nor can it be a substitute for a knowledge of the law. Although it is expected that the Agency's Regional Directors and their staffs will follow the Manual's guidelines in the handling of cases, it is also expected that in their exercise of professional judgment and discretion, there will be situations in which they will adapt these guidelines to circumstances. Thus, the guidelines are not intended to be and should not be viewed as binding procedural rules. Rather, they provide a framework for the application of the Board's decisional law and rules to the facts of the particular situations presented to the Regional Directors and their staffs, consistent with the purposes and policies of the Act.

MANUAL FORM This Manual is available in printed form from the U.S. Government Printing Office and in electronic form at the Agency's web site (http://www.nlrb.gov/). (Agency employees also have access to the Manual on an Agency electronic Bulletin Board.)

MODIFICATIONS TO THE MANUAL Modifications to the Manual will be announced by General Counsel memoranda. These memoranda are available to the public through the Agency's publication "Weekly Summary of NLRB Cases." At the time of announcement, the electronic versions of the Manual maintained on the Agency's web site (http://www.nlrb.gov/) and internal Bulletin

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Board will be revised in accord with the modifications. All memoranda announcing modifications will be retained indefinitely at the website and Bulletin Board UPDATE PAGE. Printed versions of the Manual available in Agency libraries will be kept current. Printed compilations of modifications will be prepared annually. Printed copies of the Manual distributed following its original publication date will contain the original Manual as well as all annual compilations.

INSTRUCTIONS The Casehandling Manual consists of three volumes: Part One--Unfair Labor Practice Proceedings; Part Two--Representation Proceedings; and Part Three-- Compliance Proceedings. The Compliance Manual was revised in 1993. The Representation Casehandling Manual was revised in 1999. This Unfair Labor Practice Casehandling Manual revision was issued in 2002. This revision has updated the Common to All Cases Sections 117000­11886, which appear in both the Unfair Labor Practice Casehandling Manual and the Representation Casehandling Manual. Accordingly, the Common to All Cases portion of the Representation Casehandling Manual must be replaced with the version contained in this revision.

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