January 2011 - National Labor Relations Board

10396 OFFERS OF PROOFoppose a reasonable period of time for such review. If counsel for the respondent desires,respondent may be permitted to retain the affidavits until the hearing is closed providedthat they are retained for legitimate trial purposes. Unless, of course, the affidavits havebeen offered in evidence, affidavits may not be retained by respondent after the close ofthe hearing for purposes of drafting a posthearing brief, inasmuch as the discussion in thebrief must be based on record evidence.Since Sec. 102.118(b), Rules and Regulations limits the production of witnessstatements for the purpose of cross-examination, any other use is not permitted.Examples of prohibited practices include:Copying statements without permissionRetaining statements after the close of hearingDisclosing statements to anyone not directly involved in respondent’scross-examinationThe Division of Operations-Management should also be advised if the RegionalOffice becomes aware of any use of witness statements for other than cross-examination.10394.10 Statements Produced and Entered in RecordCounsel for the General Counsel may introduce all relevant portions of astatement if respondent attempts to impeach the witness by examination on only a portionof the statement. See, e.g., J. P. Stevens & Co., 239 NLRB 738, 750 fn. 29 (1978). Anovel or unusual situation involving the production of statements should be submitted tothe Division of Advice.10396 Offers of ProofEvidence excluded by the Administrative Law Judge that counsel for the GeneralCounsel considers competent, relevant and necessary to the proof of the case should bepreserved by an offer of proof. The offer may cause the ALJ to reconsider or reverse theadverse ruling. Moreover, the offer of proof is a necessary prerequisite to take exceptionsto a ruling excluding the evidence and preserves the opportunity for a remand to acceptthe evidence if necessary.The offer, in essence, is a detailed recitation of facts to which the witness wouldtestify if permitted. Offers that set forth the evidence in summary fashion or that merelyrecite conclusions are insufficient.An offer of proof may take the form of specific questions to and answers by thewitness, if permitted by the ALJ, or may be an oral statement by counsel on the record ora written statement to be included in the record. “Questions and answers” effectivelypresent an offer of proof while preserving the witness’ credibility. (See Rule 103(b) ofthe Federal Rules of Evidence and also Chapter 13, Sec. 13-112 of the ALJ’s BenchRevised 01/11