Ralphs Grocery Company

National Labor Relations Board - Board Decisions

Mar 13, 2014

360 N.L.R.B. 529 (N.L.R.B. 2014)

RALPHS GROCERY CO. 529
360 NLRB No. 65
Ralphs Grocery Company and United Food and
Commercial Workers Union, Local No. 135;
United Food and Commercial Workers Union,
Local No. 324; United Food and Commercial
Workers Union, Local No. 770; United Food and
Commercial Workers Union, Local No. 1036;
United Food and Commercial Workers Union,
Local No. 1167; United Food and Commercial
Workers Union, Local No. 1428; United Food
and Commercial Workers Union, Local No.
1442. Cases 31–CA–027160, 31–CA–027475, and
31–CA–027685
March 13, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On October 24, 2012, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
the General Counsel and Charging Party Unions filed
answering briefs, and the Respondent filed a reply brief.
The Charging Party Unions filed cross-exceptions and a
supporting brief, the Respondent filed an answering
brief, and the Charging Party Unions filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions, cross-
exceptions, and briefs, and has decided to affirm the
judge’s rulings, findings, and conclusions, and to adopt
the recommended Order as modified and set forth in full
below. 1
In the particular circumstances of this case, we adopt
Judge Kocol’s decision to admit documents arising from
the criminal indictment of certain of the Respondent’s
officers and managers (the McGowan documents) as
evidence that the Respondent waived its privilege regard-
ing the audit information requested by the Unions. The
Respondent contends that these documents should not
have been admitted because they were not in existence at
the time of the original hearing in this matter in 2007.
As Judge Kocol noted, however, this case, including the
waiver issue, was still pending before the Board when
the McGowan documents were filed in the criminal pro-
ceeding in 2008–2009. Cf. Wal-Mart Stores, Inc., 348
NLRB 833 (2006) (waiver of privilege effective in Board
proceeding where it occurred after the initial hearing but
while the case, including the privilege issue, was still

1 We adopt the judge’s decision to admit the Plea Agreement,
signed by the Respondent in the criminal case against the Respondent,
as an admission of a party-opponent.
pending before the Board). The audit information exist-
ed—and the Unions requested that the Respondent pro-
vide it—prior to the initial hearing in this matter in 2007,
but the Respondent refused to do so based on a privilege
claim that it waived in the criminal proceedings while
this case was an ongoing matter. In addition, the Re-
spondent did not respond to either the Unions’ motion to
reopen and supplement the record or their motion for
reconsideration—both seeking to admit the McGowan
documents as evidence of the Respondent’s waiver of its
asserted privilege—which the Unions filed in late 2010
while the case remained before the Board. The Re-
spondent also failed to respond to the Board’s November
2011 Notice to Show Cause why the motion for recon-
sideration should not be granted, and it did not seek re-
consideration of the Board’s April 2012 Orders granting
that motion and directing the administrative law judge to
hold a reopened hearing on the matters raised in the mo-
tion.
Moreover, in its exceptions, the Respondent did not
separately challenge the judge’s additional findings that
the McGowan documents were admissible as “reliable”
hearsay and that, once admitted, demonstrate that the
Respondent had waived privilege regarding the audit
information. Thus, we do not address those unchal-
lenged findings. Nor do we address the Unions’ cross-
exceptions arguing that the McGowan documents were
admissible on additional grounds.
AMENDED CONCLUSIONS OF LAW
The Respondent violated Section 8(a)(5) and (1) of the
Act by failing to provide the Unions with the following
relevant, requested information:2
(a) Information concerning the contents of its internal
audit of hiring practices during the 2003–2004 lockout.
(b) For each employee who worked under a false name
or social security number during the 2003–2004 lockout,
the employee’s true name and social security number, the
false name and social security number, the dates em-
ployed under a false identity, the positions in which the
employee worked during the lockout, the employee’s
straight-time rates of pay during the lockout, and the
store numbers at which such employment took place.
(c) A description of all documents provided by em-
ployees in response to the September 13 and October 1,
2004 letters from Respondent Vice President Mary M.
Kasper that related to work by employees under false

2 The Board has previously ordered the Respondent to provide the
information described in subpars. (b)–(d). See 355 NLRB 1279 (2010)
(incorporating the order reported at 352 NLRB 128, 129–130 (2008)).
As the Respondent’s compliance with those requirements remains
pending, we include them here. The Respondent, however, is not re-
quired to resupply any information that it has already provided.
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
identities or employee refusals to work under false iden-
tities, complete photocopies of such documents, or a
written proposal denoting a specific time and place for
the inspection and copying of such documents.
(d) The names and titles of all of the Respondent’s
employees or representatives who communicated in writ-
ing with bargaining unit employees concerning the in-
formation requested in the Kasper letters, the dates of all
such communications, and if such communications were
written, a description of the documents in detail, as well
as complete photocopies, or a written proposal denoting
a specific time and place for the inspection and copying
of such documents.
SUPPLEMENTAL ORDER
The National Labor Relations Board orders that the
Respondent, Ralphs Grocery Company, Los Angeles,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Unions by
failing and refusing to provide them with the requested
information described here that is necessary and relevant
to their responsibilities as exclusive collective-bargaining
representatives of Respondent’s employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Unions in a timely manner with the in-
formation requested by them and described here.
(b) Post at its facilities throughout California copies of
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-

3 If this 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 read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 23, 2004.
(c) Within 21 days after service by the Region, file
with the Regional Director of Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to provide the Unions with re-
quested information that is necessary and relevant to
their responsibilities as your exclusive collective-
bargaining representatives.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL timely furnish the Unions with requested,
relevant information concerning the contents of our in-
ternal audit of our hiring practices during the 2003–2004
lockout, and our hiring of bargaining unit employees
under false identities during the lockout.
RALPHS GROCERY COMPANY
Rudy L. Fong Sandoval, Esq., for the General Counsel.
Timothy F. Ryan, Esq. (Morrison & Foerster, LLP), of Los
Angeles, California, for the Respondent.
Laurence D. Steinsapir and Gening Liao, Esqs. (Schwartz,
Steinsapir, Dohrmann, & Sommers, LLP), of Los Angeles,
California, for the Charging Parties.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
concerns events that began after a contract between Ralphs
RALPHS GROCERY CO. 531
Grocery Company (Ralphs) and local unions of the United
Food and Commercial Workers Union (the Unions). The Un-
ions’ contract expired on October 5, 2003. During negotiations
for a new contract, Ralphs locked out its 19,000 bargaining unit
employees for over 4 months during which time Ralphs contin-
ued operating by using temporary replacements for the unit
employees. However, Ralphs also rehired several hundred unit
employees under false names and false social security numbers.
Sometime before September 2004 the U.S. Attorney began an
investigation into Ralphs’ rehiring of the unit employees with
false identities. Thereafter, Ralphs directed a law firm to con-
duct an internal audit/investigation of its hiring practices during
the lockout. On December 15, 2005, a Federal grand jury in-
dicted Ralphs for various counts relating to its rehiring of em-
ployees during the lockout under false names, false W-4s, false
I-9 forms, and false social security numbers (the Corporate
case.) On June 30, 2006, Ralphs entered into a Plea Agreement
with the U.S. Attorney. As part of the Plea Agreement, Ralphs
entered into a document entitled “Limited Waiver of Attorney-
Client Privilege and Protection of Attorney Work Product Doc-
trine” with the U.S. Attorney’s office. On July 26, 2006,
Ralphs pled guilty to certain felony counts, including conceal-
ing material facts in matters within Federal agency jurisdiction,
including the National Labor Relations Board (the NLRB).
Among other things, the Unions requested that Ralphs pro-
vide the audit/investigation information; Ralphs refused to do
so, claiming that it was covered by the attorney-client privilege
and attorney work-product doctrine. This case was originally
heard by Judge Lana Parke on February 27, 2007. The General
Counsel and the Unions contended in that hearing that the au-
dit/investigation information was not covered by either privi-
lege and that in any event Ralphs waived its rights by disclos-
ing the audit/investigation information to the U.S. Attorney as
part of the Plea Agreement pursuant to the terms of the Limited
Waiver. Judge Parke issued her decision on June 14, 2007,
finding that Ralphs violated Section 8(a)(5) by refusing to pro-
vide several items of information to the Unions, including the
audit/investigation material. Judge Parke indicated that the
issues of privilege could be litigated in a compliance proceed-
ing.
A two-member Board issued its decision on February 19,
2008. Ralphs Grocery Co., 352 NLRB 128 (2008). The Board
reversed Judge Parke’s conclusions concerning the au-
dit/investigation information. It stated that there was “no rea-
son why these issues are better suited to resolution at the com-
pliance stage.” The Board concluded that the au-
dit/investigation information was covered by the attorney work-
product doctrine; it found it unnecessary to decide whether that
information was also covered by the attorney-client privilege.
The Board next rejected the argument made by the General
Counsel and Unions that Ralphs waived the privilege under the
terms of the Limited Waiver. This was so, according to the
Board, because “the Limited Waiver document, by its terms,
applies only to ‘material requested or inquired into by the [U.S.
Attorney],’ and there is no evidence that the audit information
was requested or inquired into by the U.S. Attorney.” After
balancing Ralphs’ confidentiality interests against the Unions’
need for the audit/investigation information, the Board found
that Ralphs did not violate the Act by withholding that infor-
mation.
The Board’s decision was enforced. NLRB v. Ralphs Gro-
cery Co., No. 08-71507 (9th Cir. 2009). On August 23, 2010,
the Ninth Circuit vacated its prior order as well as the Board’s
decision in light of the Supreme Court’s decision in New Pro-
cess Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010); the case was
remanded to the Board. On September 28, 2010, while the case
was still before the Board on exceptions, the Unions filed with
the Board a “Motion to Reopen and Supplement the Record”
(motion to reopen). On September 30, 2010, a panel of the full
Board adopted the decision of the earlier two-member Board.
Ralphs Grocery Co., 355 NLRB 1279 (2010). In that decision,
the Board did not address the Unions’ motion to reopen. On
October 8, 2010, the Unions filed “Motions for Reconsideration
and to Reopen the Record” (motion for reconsideration). In
that motion, the Unions argued that the Board erred in issuing
its decision without first ruling on its motion to reopen. On
November 30, 2011, the Board issued a notice to show cause
why the motion for reconsideration should not be granted.1 On
April 3, 2012, the Board issued an Order granting the motion
for reconsideration and indicated that “[T]his matter is remand-
ed to the Regional Director for Region 31 for appropriate ac-
tion.” On April 17, 2012, the Board issued an amended Order
that again granted the motion for reconsideration, ordered the
matter be assigned to an administrative law judge, and that
[T]he administrative law judge designated shall reopen the
hearing on the matters raised in the motions, and prepare a
supplemental decision setting forth findings of fact, conclusions
of law, and a recommended Order.
On August 3, 2012, the Chief Administrative Law Judge is-
sued an order assigning this case to me, and on August 17,
2012, the reopened hearing was held in Los Angeles, Califor-
nia.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Ralphs, and the Unions, I make the
following
FINDINGS OF FACT
I. BACKGROUND
On September 18, 2008, a Federal grand jury indicted Pat-
rick McGowan, Charles Vance, Scott Drew, Randall Kruska,
and Karen Montoya , all officers or managers of Ralphs, on 23
criminal counts arising from Ralphs’ rehiring of the locked out
employees (the McGowan case).

1 In the meantime, on March 3, 2011, the Regional Director deter-
mined that Ralphs had fully complied with the Board’s Order and
closed the case. The Unions appealed that determination but on June
22, 2011, the General Counsel denied that appeal. On July 25, 2011,
the Unions requested that Board review and reverse the General Coun-
sel’s denial of its appeal; that matter is apparently still before the
Board. At the hearing and in their brief, the Unions raised issues con-
cerning whether there has been compliance with the Board’s Order in
this case and request that I “vacate the existing compliance order.” I
conclude that those issues are not before me and I do not resolve them.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In their brief, the Unions argue that documents in the Corpo-
rate case and McGowan case:
[E]stablish that Ralphs waived its attorney-client privilege
over documents relating to its internal investigation through
two occurrences: (1) the USAO requesting, inquiring into, re-
ceiving, and reviewing the documents from Ralphs pertaining
to its internal investigation of the lockout hirings, and (2) the
USAO giving the documents to the McGowan defendants
pursuant to their discovery requests.
At the reopened hearing, the General Counsel relied solely
on the documents attached to the Unions’ motion to reopen to
establish the waiver; no additional evidence was adduced at the
hearing. I received those documents into evidence with the
reservation that I would later determine what portions are not
hearsay, what portions are hearsay but nonetheless were relia-
ble evidence, and what portions are simply inadmissible.
In the sections of this decision that follow, I first give a gen-
eral description of the documents, then I address procedural
objections raised by Ralphs, then I describe the document in
more detail and make specific findings from them, and finally, I
address the issue of the admissibility of the Plea Agreement
(and whether the Board erred in finding no waiver based upon
the pleadings in the Corporate case).
II. THE DOCUMENTS
What follows is a brief description of the six documents at-
tached to the Unions’ motion to reopen and admitted into evi-
dence in this case. All of the documents are pleadings in the
McGowan case and all relate were created after Judge Parke
closed the hearing in this case on February 27, 2007.
Document No. 1 Indictment in the McGowan case. Date
Filed: September 8, 2008
Document No. 2 Declaration of Michael M. Amir In
Support of Defendant Scott Drew’s
Notice of Motion and Motion for an
Extension of Time to File Discovery
Motions. Date Filed: January 12, 2009
Document No. 3 Defendant Scott Drew’s Notice of Mo-
tion and Motion for an Extension of
Time to File Discovery Motions. Date
Filed: January 12, 2009
Document No. 4 Government’s Consolidated Response
to the Motions of Defendants McGow-
an and Drew for Pretrial Discovery.
Date Filed: January 23, 2009
Document No. 5 Government’s Trial Memorandum.
Date Filed: May 21, 2009
Document No. 6 Defendant Scott Drew’s Response to
Evidentiary Arguments Raised in the
Government’s Trial Brief. Date Filed:
May 26, 2009
III. PROCEDURAL ISSUES
A. Section 102.48(d)(1)
Because Ralphs has raised this matter, the first procedural is-
sue I address is whether the documents described above are
“newly discovered” within the meaning of Section 102.48(d)(1)
of the Board’s Rules and Regulations. That rule provides, in
pertinent part:
A party to a proceeding before the Board may, because of ex-
traordinary circumstances, move for . . . reopening of the rec-
ord after the Board decision or order. . . . Only newly discov-
ered 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.
On the one hand, as Ralphs points out the Board has held
that “newly discovered” evidence must be evidence that existed
at the time of the trial. In APL Logistics, Inc., 341 NLRB 994
(2004), the respondent sought to offer testimony of Michelle
Gehm, the union’s election observer, as newly discovered evi-
dence. The Board stated, “Newly discovered evidence is evi-
dence which was in existence at the time of the hearing . . . .”
Id. The Board continued:
To the extent that Gehm’s testimony pertains to facts arising
after the hearing, it does not constitute newly discovered evi-
dence. Machinists Lodge 91 (United Technologies), 298
NLRB 325 fn. 1 (1990), enfd. 934 F.2d 1288 (2d Cir. 1991).
Id. fn. 2. “Newly discovered evidence is evidence which was
in existence at the time of the hearing . . . .” Fitel/Lucent Tech-
nologies, 326 NLRB 46 fn. 1 (1998) (quoting Owen Lee Floor
Service, 250 NLRB 651 fn. 2 (1980). In Allis-Chalmers, Corp.,
286 NLRB 219 fn. 1 (1987), the Board stated:
Following submission of this case to the Board, the Respond-
ent filed a motion to reopen the record to consider a bankrupt-
cy petition, which it filed in the United States Bankruptcy
Court for the Southern District of New York on 29 June 1987.
The Respondent contends that the bankruptcy petition should
be considered as further evidence of its poor financial condi-
tion, which excuses its otherwise unlawful action. The Re-
spondent further argues that even assuming its economic de-
fense is rejected and it is found in violation of the Act, the
bankruptcy petition should be considered in determining
whether the Board should provide for a remedy of monetary
relief. We deny the motion as it proffers evidence concerning
an alleged event that occurred after the close of the hearing K
& E Bus Lines, 255 NLRB 1022 fn. 2 (1981)
I note, however, that none of the cases cited by Ralphs in-
volve an issue of waiver of privilege. As the General Counsel
and the Unions point out, the Board has more specifically ad-
dressed the issue of waiver of privilege in Wal-Mart Stores,
348 NLRB 833 (2006). In that case, the General Counsel had
served a subpoena on Wal-Mart requiring it to produce docu-
ments concerning its “Remedy System.” Wal-Mart filed a
petition to revoke the subpoena, contending that the documents
were protected from disclosure by the attorney-client privilege
and as attorney work product. The judge granted the petition to
revoke and the General Counsel filed exceptions with the Board
concerning that ruling after the judge issued his decision. The
Board indicated:
While the case was pending at the Board on August 26, 2004,
the Respondent filed a motion to supplement the record,
RALPHS GROCERY CO. 533
which advised that, in January 2004, pursuant to a court order
in an unrelated State court proceeding, the Respondent had
produced the Remedy System documents subpoenaed by the
General Counsel.
Id. at 834. The Board continued:
Once waived, the attorney-client privilege is lost in all forums
for proceedings running concurrent with or after the waiver
occurs. See, e.g., Genentech, Inc. v. U.S. International Trade
Commission, 122 F.3d 1409, 1416–1417 (Fed. Cir. 1997)
(waiver in district court proceeding operated as a waiver in
concurrent International Trade Commission proceeding). See
also Centuori v. Experian Information Solutions, Inc., 347
F.2d 727, 729 (D. Ariz. 2004). Here, as stated earlier, the Re-
spondent concedes that the production of the subpoenaed
documents and files in the State court proceeding constituted
a waiver of applicable privileges. It argues, however, that the
waiver can have no effect in this proceeding because it oc-
curred months after the judge here ruled that the documents
were privileged. We disagree. The Respondent’s admitted
waiver in the State court proceeding operates concurrently
here, and not retroactively (as the Respondent argues), be-
cause the judge’s ruling was not final when the waiver took
place. In Board proceedings, a judge’s decision and recom-
mended order do not become final until after the time for the
filing of exceptions expires, provided that no exceptions are
filed. Board’s Rules and Regulations, Section 102.48(a) and
(b). Here, the General Counsel filed timely exceptions to the
judge’s decision, including his evidentiary ruling on this issue,
thereby preserving the issue for Board review. The Respond-
ent’s disclosure took place while the case was pending before
the Board on exceptions. Because litigation of this unfair la-
bor practice case is an ongoing matter, the Respondent’s
waiver of the privilege in the State court proceeding precludes
the Respondent from asserting it in this unfair labor practice
proceeding.
Id. In other words, so long as the issues of attorney-client
privilege or attorney work product are still pending before the
Board disclosure of the underlying documents will serve as a
waiver even if the waiver occurred after the hearing had closed.
In this case, at the time the Unions submitted the motion to
reopen, that matter was still pending before the Board on ex-
ceptions because the earlier two-member decision had been
vacated as a result of New Process Steel, supra, and the Unions
(and Ralphs) had filed exceptions to the judge’s ruling on the
waiver issue.
Ralphs argues:
Wal-Mart Stores, Inc., 348 NLRB [833] No. 46 (2006), stands
for a different proposition, namely that privilege can be
waived at any point. In Wal-Mart, the Board was not consid-
ering any evidence proffered under the Bard’s Rules because
the Respondent “concede[d], for purposes of this proceeding,
that the State court disclosure constitutes a prospective waiver
of the privilege.” In this case, the Charging Parties are trying
to reopen the matter. To do so without running afoul of the
ample authority Ralphs cites here, the Charging Parties must
provide evidence that was in existence at the time of the Feb-
ruary 27, 2007 hearing.
This argument is not persuasive. Both Wal-Mart and this case
involve efforts to reopen the record and submit evidence of
waiver that occurred after the hearing in the unfair labor prac-
tice proceeding had closed. Both involve situations were the
issue was still pending before the Board on exceptions. I con-
clude Wal-Mart is authority for allowing consideration of the
Unions’ evidence of waiver even though that evidence occurred
after the close of the hearing.
B. Section 102.48(d)(2)
Next, I address the issue of whether the Unions’ motion was
filed “promptly” within the meaning of Section 102.48(d)(2).
That rule provides, in pertinent part:
Any motion filed pursuant to this section shall be filed within
28 days . . . after the service of the Board’s decision or order,
except that a motion for leave to adduce additional evidence
shall be filed promptly on discovery of such evidence.
As indicated above, the last document submitted by the Unions
in support of the motion to reopen was filed in the McGowan
case on May 26, 2009. On August 23, 2010, the Ninth Circuit
vacated its earlier order as well as the earlier two-member
Board decision. On September 28, 2010, the Unions filed the
motion. Within days after the Board issued its second decision
in this case without mentioning the Unions’ motion to reopen,
the Unions filed their motion for reconsideration. Under the
unique circumstances of this case, I conclude the Unions acted
“promptly” both after the first Board decision was vacated and
after the second Board decision issued.
IV. WAIVER
I now finally address the issue of whether Ralphs has dis-
closed the material thereby waiving the privileges. In this sec-
tion, I address only whether Ralphs did so in the McGowan
case; the issue of whether it did so in the Corporate case is tied
up in a separate series of issues and motions that I address in
the next section of this decision.
First, I point out that Ralphs does not object to the authen-
ticity of the documents attached to the Unions’ motion: I con-
clude they are authentic. Next, I address evidentiary issues.
The General Counsel argues that the documents are not hearsay
under Rules 807, Residual Exception, Federal Rules of Evi-
dence. I disagree. That rule, among other things, requires that:
[T]he statement is more probative on the point for which it is
offered that any other evidence which the proponent can pro-
cure through reasonable efforts.
Here, the General Counsel and the Unions have not explained
why they could not have obtained more probative evidence
through the cooperation of persons having such evidence or
through use investigative or trial subpoenas. The Unions argue
that the documents are not hearsay under Rule 803(8), the pub-
lic records exception to the hearsay rule. As described above,
the documents involved here are the indictment, letters, and
motions. These are not the type of public records covered by
Rule 803(8) that would allow introduction for the truth of the
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matters asserted therein. Finally, Ralphs argues that some of
the statements in the documents are hearsay within hearsay and
that “[d]ouble hearsay is not admissible.” However, contrary to
this assertion, Rule 805 clearly indicated that hearsay within
hearsay is admissible if each layer falls within an exception to
the hearsay rule. And in any event, in my analysis that follows,
I rely only on the first level of hearsay, that is, statements by
the parties in the McGowan case that indicate a general
knowledge of the content of Ralphs’ internal investigation.
Having resolved the evidentiary issues, I conclude that the
statements in the documents described below are hearsay in
nature.
However, in RJR Communications, Inc., 248 NLRB 920, 921
(1980), the Board stated:
Courts have long recognized that hearsay evidence is admis-
sible before administrative agencies, if rationally probative in
force and if corroborated by something more than the slightest
amount of other evidence. N.L.R.B. v. Imparato Stevedoring
Corporation, 250 F.2d 297 (3d Cir. 1957). The Board jealous-
ly guards its discretion to rely on hearsay testimony in the
proper circumstance. Georgetown Associates, d/b/a
Georgetown Holiday Inn, 235 NLRB 485, fn. 1 (1978). See,
generally, Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978).
See also Midland Hilton & Towers, 324 NLRB 1141 fn. 1
(1997). I assess what follows in light of these cases.
Document 1 is the indictment. filed on September 18, 2008.
Included in the indictment are the following allegations:
Overt Act No. 45: On or about March 23, 2004,
MCGOWAN falsely told lawyers for Ralphs investigating al-
legations of unlawful hiring during the lockout that
MCGOWAN learned of a locked-out employee working at
Store No. 108 in La Jolla, California on October 18, 2003,
and instructed the Zone Manager for Zone 5 to dismiss the
employee.
Overt Act No. 47: On or about May 20, 2004, VANCE
falsely told lawyers for Ralphs investigating allegations of un-
lawful hiring during the lockout that VANCE had not encour-
aged any of his Store Directors to hire locked-out workers
during the lockout; that he was not aware of stress in his zone
swapping locked-out workers who were working under false
identities; and that his wife, who was a locked-out worker,
had not worked at Ralphs stores during the lockout.
Overt Act No. 48: On about October 13, 2004, DREW
falsely told lawyers for Ralphs investigating allegations of un-
lawful hiring during the lockout that DREW had heard ru-
mors that his half-brother, a locked-out worker from Store
No. 745 in Newport Beach, was working in Store No. 705 in
Los Angeles, and that DREW did not know whether his half-
brother worked during the lockout.
Although I am careful not to accept as fact the assertions con-
tained in these allegations, they do tend to show that the Gov-
ernment has learned of the information provided to Ralphs’
lawyers during its internal audit of hiring during the lockout.2 I
infer that it is unlikely that the Government obtained this in-
formation from the defendants named in the criminal indict-
ment; rather, it appears more likely than not that the Govern-
ment obtained this information from Ralphs, especially given
the information that is described below.
Document 2 contains a letter dated November 17, 2008, on
the letterhead of the U.S. Department of Justice, United States
Attorney Central District of California, 1100 Unites States
Courthouse, 312 North Spring Street, Los Angeles, California,
90012, Stephen A. Cazares, Assistant Unites States Attorney,
Major Fraud Section; it appears to bear the signature of Caza-
res. That letter is addressed to counsels for the defendants “Re:
United States v. Patrick McGowan et al., CR 08-1116-PA Dis-
covery Letter #3” The letter indicates:
Dear Counsel:
As part of the government’s rolling production of discovery in
the above-referenced matter, please find a CD titled “US v.
McGowan et al., CR 08-1116-PA,” dated November 17,
2008. The enclosed CD contains 283 written statements gen-
erated in the internal investigation conducted by Ralphs Gro-
cery Company (“Ralphs”) bearing production title “RAL-
PRIV” and page numbers 1-1355. For your convenience, I
have attached an index of the enclosed witness statements
provided to the government by Ralphs’ counsel.
This letter is but one of a number of other letters that appear
to be a comprehensively listing of the information that the U.S.
Attorney has provided to the defendants pursuant to discovery
requests. Clearly, the assertions in the letter that the information
was provided and that it was generated as a result of Ralphs’
internal audit are hearsay statements. But I note that they were
made by the U.S. Attorney’s office, an officer of the court, in
compliance with its legal obligations to provide such infor-
mation. Document 2 in its entirety paints a picture of a com-
prehensive effort to provide information. Importantly, there is
no evidence that any of the defendants responded to the letter in
a manner challenging the assertions made therein. I conclude
that under these circumstances the assertions in the letter con-
cerning the description, production, and source of the infor-
mation being provided are reliable hearsay, and I so find.
Document 3 is a motion filed in U.S. district court by attor-
neys for Defendant Drew. It appears to be a comprehensive
summary of documents that have been provided by the Gov-
ernment in discovery as well as documents that may not have
been produced. That motion contained the following para-
graph:
O. All Documents relating to Ralphs’ Internal Investiga-
tion. The defense has requested all written or recorded state-
ments, transcripts of such statements, reports prepared by
Ralphs, and other documents relating to Ralphs’ internal in-

2 The record in this case describes one, and only one, internal inves-
tigation conducted by Ralphs concerning its hiring practices during the
lockout. I reject any suggestion made by Ralphs in its brief that these
documents may be referring to a similar but different investigation; this
suggestion is not supported by any record evidence, is entirely specula-
tive, and based on the record as a whole, is not credible.
RALPHS GROCERY CO. 535
vestigation of the activities that form the basis of the indict-
ment. (Amir Decl., p.2, Ex. A, pp15-17.) This request also
includes witness statements made to Ralphs during its internal
investigation and any communications between Ralphs and
the government concerning such statements. The government
has produced a substantial number of documents responsive
to these requests. To the extent that additional responsive ma-
terials have not been produced, the defense requests their im-
mediate production.
Again, the statements in this concerning the request and receipt
of information concerning Ralphs’ internal investigation are
hearsay. But I note that the statements were made as part of a
criminal proceeding, the document was filed with the court and
was signed by an attorney as an officer of the court. I regard it
highly unlikely that the defendant would admit to receipt of
internal audit material if this were not true. I consider these
statements to be reliable hearsay. I conclude both that Defend-
ant Drew requested, in discovery, for information concerning
Ralphs’ internal investigation and that the Government had
provided information to Defendant Drew.3
Document 4 is the Government’s 14-page response, filed in
U.S. district court, and signed by Assistant U.S. Attorneys. It
contains the following statement:
16. All Documents Relating to Ralphs’ Internal Investi-
gation
Defendant Drew seeks “all written or recorded statements,
transcripts of such statements, reports prepared by Ralphs,
and other documents relating to Ralphs’ internal investigation
of the activities that form the basis of the indictment.” (Drew
Mot. at 11). The government has produced all such material in
its possession, and insofar as it obtains other such material,
will produce them consistently with its discovery obligations.
For reasons previously stated, I consider the statements con-
tained in the document that the Government had receive infor-
mation from Ralphs concerning its internal investigation and
that it has provided that information to Defendant Drew to be
reliable hearsay, and I so find.
Document 5 is the Government’s trial memorandum filed in
U.S. district court. It contains the following:
A. Privilege Issues
...
2. Attorney-Client Privilege
Other than the statements made by the defendants to Ralphs’
attorneys or investigators during the internal investigation, the
government does not intend to introduce testimony or evi-
dence implicating Ralphs’ attorney-client privilege.
I again conclude that this is reliable hearsay, and I find that the
Government possessed statements made by the defendants to
Ralphs’ attorneys or investigators during Ralphs’ internal in-

3 In its brief, Ralphs argues that the information supplied may have
been nonprivileged portions of its internal investigation. But remember
that Ralphs had taken the position that the entire investigation was
privileged; it did not provide the Unions with any nonprivileged por-
tions. Even at the resumed hearing Ralphs failed to provide, or even
identify, any nonprivileged portions. I therefore reject this argument.
vestigation. Document 5 also includes the following:
8. The Results of the internal investigation
The ultimate results of Ralphs’ internal investigation appear to
be irrelevant. In addition to presenting serious hearsay prob-
lems, and distracting the jury with matters having to do prin-
cipally with the corporate case, it is irrelevant what conclu-
sions that Ralphs’ lawyers may have reached during the inter-
nal investigation relating to the merits of the present charges
against the defendants. Such evidence would also require
lengthy and wasteful discussion of how the general internal
investigation was conducted, and whether the manner in
which it was conducted was flawed. The merits of the charg-
es against the defendant should be decided by the jury without
the influence of what findings may have been reached in the
internal investigation, whether or not those findings support or
undermine the present charges.
I delay analysis of this portion of document 5 until after setting
forth the response described below.
Document 6 is Defendant Drew’s response to document 5. It
states:
8. Ralphs’ Internal Investigation
Ralphs’ internal investigation tends to disprove the govern-
ment’s allegations about the scope of the allegedly illegal ac-
tivity. Ralphs’ investigation found far fewer locked out
workers than did the government and further found that
Drew’s zone was not a problem area. If the evidence is oth-
erwise admissible, there is no reason why it should be exclud-
ed. Any objections to the methodology employed by Ralphs’
counsel go to the weight, not admissibility. Again, the gov-
ernment cannot have it both ways. That is, it cannot introduce
dozens of memoranda that Ralphs’ lawyers drafted reflecting
witness interviews, some of which form the basis for the overt
acts specified in the conspiracy count, and then state that the
investigation is irrelevant. If the investigation is irrelevant,
then the memoranda likewise should be irrelevant.
I conclude that the detailed discussion between the Government
and a defendant in the criminal case about Ralphs’ internal
investigation is very reliable hearsay that both parties have seen
that internal investigation. To conclude otherwise would mean
that the Government and a defendant are discussing the rele-
vance of material to be introduced in a criminal trial that neither
has seen! And the statement in document6 concerning the
overt acts provides some linkage to the overt act themselves
described in above in document 1.
All these statements taken together lead me to conclude that
Ralphs has indeed disclosed the contents of its internal inves-
tigation to the Government and the Government has, in turn,
disclosed the contents to other persons. It follows that Ralphs
has waived any privilege it might have had to withhold
providing the information that the Unions had requested con-
cerning Ralphs’ internal investigation.
Ralphs argues that it has been deprived of the opportunity of
cross-examination concerning the hearsay statement. While
this is true, it is beside the point: this is what happens when
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reliable hearsay is used. Ralphs argues that it has been preju-
diced as a result. I disagree. Ralphs knew for months the con-
tents of the documents. And Ralphs was advised at the hearing
that I would determine whether the documents contained relia-
ble hearsay. It therefore had every opportunity to rebut any
portions of the documents that could be deemed reliable; it
chose not to present any evidence. Similarly, Ralphs complains
that the General Counsel and the Unions could have provided
direct evidence of disclosure of its internal investigation. But
by the same token, so could Ralphs have provided direct evi-
dence of nondisclosure. It could have, for example, called the
attorney involved in litigation with the Government to testify
under oath that Ralphs did not provide that information to the
Government. It did not do so. Under these circumstances, I
deal with the record as it has been developed.
By failing to provide the Unions with the information con-
cerning the contents of its internal audit of hiring practices
during the 2003–2004 lockout, Ralphs violated Section 8(a)(5)
and (1).
V. PLEA AGREEMENT
In the motion to reopen, the Unions also argue that Judge
Parke (and necessarily thereafter the Board, twice) erred in
concluding that the Limited Waiver did not encompass the
internal investigation material. The Limited Waiver, which
was received into evidence, was part of the Plea Agreement
(CP Exh. 2), but the remainder of the Plea Agreement was
placed in the rejected exhibit file. Remember, in reversing
Judge Parke’s determination to allow the compliance process to
sort out the issue of what, if any, portions of the internal inves-
tigation were privileged from disclosure, the Board found that
there was “no evidence that the audit information was requested
or inquired into by the U.S. Attorney.” The Unions argue that
they offered such evidence (CP Exh. 2, the Plea Agreement),
but the judge rejected it. And they then filed exceptions to the
judge’s ruling but the Board erroneously failed to consider that
evidence. The Unions argue:
The Plea Agreement specifically required that Ralphs produce
all documents relating to its internal audit. The Plea Agree-
ment states, in part:
82. As part of its voluntary production under subparagraph 8
1 (k)(i) above, RALPHS will produce to the USAO all docu-
ments, other tangible evidence, and information created, pre-
pared, obtained, or discovered during, in connection with, or
as a result of any and all investigations conducted by or on
behalf of RALPHS, Kroger, or any other Kroger subsidiary or
affiliate into any of the hiring practices, events, acts, policies,
practices, courses of conduct, statements, omissions, falsifica-
tions, concealment, or cover-ups set forth in subparagraph 81
(k)(i)(d) above.
[CP Exh. 2, p. 41, 82.]
The Plea Agreement further specifies that Ralphs will produce
all interview reports, summaries, memoranda, and notes of in-
terviews conducted by any private investigation firm or by
any law firm in connection with, or as a result of any investi-
gations, including any documents or tangible evidence previ-
ously withheld on the basis of attorney-client privilege or
work product protection. (CP Exh. 2, p. 42; T 82(a).) The Plea
Agreement clearly waives any attorney-client privilege re-
garding Ralphs’ internal audit.
In its exceptions, the Charging Parties have argued that the
ALJ’s decision to exclude the Plea Agreement was erroneous.
I first thought that I would simply point out that the Board
may want to address this issue itself, depending on how it dis-
posed my recommendations above. But on September 26,
2012, Ralphs filed a motion to strike the Unions’ posthearing
brief in its entirety because it referred to the Plea Agreement,
and that exhibit is not part of the record in this case. On Octo-
ber 1, 2012, the Unions filed a response to Ralphs’ motion to
strike. The Unions argue that, with only two exceptions, all the
references to the Plea Agreement in their brief were either con-
sistent with references made to that exhibit made by Judge
Parke or the Board, or that were made by the Unions in their
motion to reopen. In the latter regard, the Unions argue that
Ralphs waived any objection to consideration of those portions
of the exhibit because Ralphs did not object to Board’s consid-
eration of those references contained in its motion to reopen
and the Board later granted the motion to reopen. As to the two
exceptions not encompassed by these arguments, the Unions
argue that it is more appropriate to strike those two references
rather than strike its entire brief. That same day the Unions
filed a cross-motion for admission of the Plea Agreement into
the record. The Unions argue that I have been instructed by the
Board to resolve all issues raised in its motion to reopen, and
that the admissibility of the Plea Agreement was raised in that
motion to reopen. Further, the Unions argue that because the
Board granted its motion for reconsideration, the case is before
me as if its exceptions concerning the Plea Agreement are still
an unresolved issue. On October 5, 2012, the General Counsel
filed a response joining the Unions’ opposition to Ralphs’ mo-
tion to strike and joining the Unions’ cross-motion. On Octo-
ber 9, 2012, Ralphs filed a response and opposition to the Un-
ions’ cross-motion. I conclude it is no longer an option for me
to simply pass all these matters back to the Board. I therefore
resolve them.
In its response and opposition to the Unions’ cross-motion to
admit the Plea Agreement, Ralphs argues that the Plea Agree-
ment already has been rejected by the judge and the Board and
for that reason I should also reject it. I disagree. It seems to me
that portions of the Plea Agreement pertain to the issue of
whether or not the U.S. Attorney “requested or inquired into”
the audit information. It seems the better approach is to con-
sider Plea Agreement, especially because the Board’s ruling
rests on an incomplete understanding of that document. Next,
Ralphs argues that the Plea Agreement is inadmissible hearsay.
Again I disagree. Because the Plea Agreement was executed
by an agent of Ralphs in the Corporate case, it is an admission
of a party-opponent and is not hearsay under Rule 801(d)(2).
Turning to the Unions cross-motion, I grant the cross-motion
and receive the Plea Agreement into evidence. I do so because
due process requires that the record contain all relevant material
so that issues can be properly decided. Having received the
Plea Agreement into evidence, I deny Ralphs’ motion to strike.
RALPHS GROCERY CO. 537
Analyzing the record in light of the Plea Agreement, I con-
clude that in the portions that document quoted above in this
section of the decision, the U.S Attorney in fact “requested and
inquired into” the audit information. It follows that under the
terms of the Limited Waiver and the other portions of the Plea
Agreement, Ralphs waived its right to withhold the information
from the Unions.
In sum, I conclude Ralphs waived its privilege under both
the Corporate case and the McGowan case.
CONCLUSION OF LAW
By failing to provide the Unions with the information con-
cerning the contents its internal audit of hiring practices during
the 2003–2004 lockout, Ralphs has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]