January 2011 - National Labor Relations Board

11774 PERSONS SUBPOENAEDthe subpoena. If the issues(s) under investigation involve a compliance matter or possibleviolation of a Board order or court decree enforcing such an order, the Regional Directorshould also notify the Contempt Litigation and Compliance Branch.Application for a subpoena made prior to the hearing (whether by a Board agentor by other parties) should be made to the Regional Director; one made at the hearingshould be made to the administrative law judge or hearing officer, as the case may be,and may be made ex parte. See Sec. 102.31(a), Rules and Regulations, for C Cases andSec. 102.66(c) for R Cases. These rules require only a written application for subpoenas;neither the name of the witness nor the description of the documents need be included.Upon receipt of a request for a subpoena from a private party, the RegionalDirector should grant the application for the requested subpoena. However, the RegionalDirector retains discretion in granting an application from a Board agent.11774 Persons SubpoenaedGenerally, witnesses that the trial attorney expects to use at the hearing should besubpoenaed. However, absent unusual circumstances, an exception should be madewhere the witness has a definite personal interest or stake in the outcome; e.g., a chargingparty, or its agents, or alleged discriminatees.Pursuant to Sec. 102.118 Rules and Regulations, Board agents are prohibited fromtestifying at formal proceedings without authorization from the appropriate agencyofficial.11776 Subpoenas Duces TecumA subpoena duces tecum should seek relevant evidence and should be drafted asnarrowly and specifically as is practicable. The use of the word “all” in the description ofrecords should be avoided wherever possible. For example, the phrase “the corporaterecords showing total purchases” might be substituted for the phrase “all books, records,documents, and other writings that will show total purchases.” Under some circumstances,the subpoena may provide for alternatives in lieu of physical production. In suchinstances the subpoenaed party may furnish a sworn affidavit setting forth the desiredevidence or an admissible summary of that evidence, provided that pertinent records aremade available to the Board agent to ensure accuracy.The subpoena duces tecum should be addressed to the entity with control of therecords sought, whether the entity is a corporation, partnership, or labor organization.Subpoenas directed to a sole proprietorship or individual should be addressed to thatindividual.Where the same person has control and knowledge of the records, the subpoenaduces tecum may be addressed to the entity, attention to that person. Where the agentwho can explain the records is unknown, a subpoena duces tecum should be addressed tothe entity itself and a subpoena ad testificandum should be served on a person who isknown or believed to be familiar with the records.Revised 01/11