January 2011 - National Labor Relations Board

11782.6 SUBPOENA DUCES TECUM ON ALLEGED DISCRIMINATEES AND GENERALCOUNSEL’S WITNESSESa maximum and not a minimum. Absent a showing of prejudice, the subpoenaed partymay be required to file and argue its petition to revoke and, if ordered by theAdministrative Law Judge or hearing officer, produce subpoenaed testimony anddocuments at hearing in less than 5 days from receipt of the subpoena. See PackagingTechniques, Inc., 317 NLRB 1252, 1253–1254 (1995) and NLRB v. Strickland, 220F.Supp. 661, 665–666 (D.C.W. Tenn., 1962), affd. 321 F.2d 811, 813 (6th Cir. 1963).11782.5 Not a Part of the RecordActions and documents in connection with petitions to revoke, including rulings,are not part of the record, unless the aggrieved person specifically requests it.11782.6 Subpoena Duces Tecum on Alleged Discriminatees and General Counsel’sWitnessesWhen counsel for the General Counsel learns of the issuance of a subpoena ducestecum to alleged discriminatees and/or General Counsel’s witnesses in an unfair laborpractice hearing, this issue should be immediately discussed with the Regional Office.Counsel for the General Counsel has standing to file a petition to revoke to:Prevent pretrial discovery of Board affidavits.Protect alleged discriminatees and/or witnesses from intimidation or harassment.Prevent litigation of irrelevant issues.11784 Witness Claims of Privilege Against Self-IncriminationSec. 102.31(c), Rules and Regulations addresses claims of privilege against selfincrimination.The rule provides that whenever a witness at any proceeding before theBoard claims such a privilege, any party may request the Board to issue an ordercompelling testimony. It is necessary for the Board to obtain the U.S. Attorney General’sapproval before issuing an order compelling the witness claiming such privilege to testifyor provide other information.Before seeking a Board order to compel testimony from a witness claiming aprivilege against self-incrimination, the Regional Office should submit a request forclearance, along with supporting reasons, to the Division of Advice. If the issue(s) underinvestigation involve a compliance matter, possible violation of a Board order or courtdecree enforcing such an order, a copy of the request for clearance should also be sent tothe Contempt Litigation and Compliance Branch.A witness who claims the privilege against self-incrimination will not be required,or permitted, to testify or give other information covered by the claim of privilege untilthe Board has issued the requested order.Revised 01/11