January 2011 - National Labor Relations Board

11704 SUBPOENAS FOR COMMERCE INFORMATION11702.1 Obtaining Commerce Information from EmployerNormally, commerce information is furnished by the employer involved. Whereappropriate, a Questionnaire on Commerce Information, NLRB Form-5081, is sent to theemployer with the initial letter serving the charge or petition. If the completedquestionnaire is not conclusive, further investigation must be undertaken. As analternative to the Commerce Questionnaire, the Regional Office may, where appropriate,accept a written stipulation of facts establishing Board jurisdiction.11702.2 Examination of Employer RecordsIf an employer fails or refuses to stipulate to commerce facts, or to return aproperly completed questionnaire on commerce, or if the Regional Office has reason toquestion the accuracy of a stipulation or questionnaire, an examination of the relevantrecords of the employer should be undertaken.11702.3 Commerce AffidavitThe Regional Director may wish to procure an affidavit from an official of anemployer certifying the completeness and accuracy of the employer’s records examinedby the Regional Office relative to the question of jurisdiction. The Regional Officeshould obtain such an affidavit where the investigation reveals that an employer’srevenues fall just short of the Board’s jurisdictional standards or where the RegionalDirector finds compelling circumstances. As with other witnesses in appropriatecircumstances, the Board agent should inform the affiant of the criminal penalties underthe United States Code applicable to any one giving false information to the U.S.Government. The affidavit could contain the following statement, which appears onpetitions and charges:Willful false statements herein can be punished by fine andimprisonment. (U.S. Code, Title 18, Section 101)If an employer refuses to provide such an affidavit in an R case and there exists areasonable question as to the issue of the Board’s jurisdiction, the matter should be set forhearing. However, in an unfair labor practice investigation, see Sec. 11704.2.11702.4 Action on Basis of Commerce InvestigationAll determinations on jurisdiction should be based on admissible evidence orstipulated facts, rather than bare admissions.11704 Subpoenas for Commerce Information11704.1 Representation CasesIn representation cases, if reasonable and practical efforts fail to developsufficient evidence to dispose of the question of jurisdiction, production of the relevantRevised 01/11