January 2011 - National Labor Relations Board

11824 SUBPOENA OF AGENCY DOCUMENTS AND PERSONNEL11824 Subpoena of Agency Documents and PersonnelSec. 102.118, Rules and Regulations sets forth Agency procedures with respect torequests for the production of documents, other than those required under FOIA, and thetestimony of Agency personnel. Sec. 102.118 provides that Board agents shall notproduce any Agency documents or testify with respect to information coming to theirattention in their official capacity in any court or Board hearing, whether in response to asubpoena or otherwise, without the written consent of the Board, its Chairman or theGeneral Counsel, whoever has supervision of the Board agents or control of thedocuments.11824.1 Delegation of General Counsel AuthorityAs set forth below and in detail in GC Memos 98-9, 98-7, and 94-14, the GeneralCounsel has delegated the authority to permit Board agent testimony and disclosure ofdocuments under Sec. 102.118, Rules and Regulations. In considering such requests, theappropriate General Counsel memoranda should be carefully reviewed to insureconsistency with General Counsel policies and that appropriate written records aremaintained. A summary of the delegation of Sec. 102.118 authority is set forth below.(a) Regional Director Authority: Regional Directors may consider and decidewhether or not to approve requests for authorization under Sec. 102.118 in the followingcircumstances, in the name of the General Counsel:When compliance officers testify at compliance proceedingsWhen a party to a representation case alleges that Board agent conduct hasinterfered with the conduct of an election and Board agent testimonyregarding the issues is necessary to develop a complete recordWhen Board agent testimony is necessary to authenticate the signature ofa deceased or unavailable witness for whom the agent prepared anaffidavit or to establish that the General Counsel made a good faith effortto locate the unavailable witnessWhen Board agent testimony is necessary to establish that a respondenthas failed to perform an affirmative act pursuant to a court enforced BoardOrder orWhen a request for access to Regional Office files unaccompanied by asubpoena is made by an official of a Federal, State, or local Governmentagency in connection with law enforcement activities(b) Specific Regional Director Authority to Deny: In circumstances other thanthose set forth above, Sec. 102.118 requests from outside parties or counsel for nonpublicfile documents or Board agent testimony, unaccompanied by a subpoena, normallyshould be denied by the Regional Director in the name of the General Counsel.Revised 01/11