January 2011 - National Labor Relations Board

10054 THE INVESTIGATIONInformation relative to the identity of the affiant, the employer and the union ifappropriateJob informationBackground informationChronological account of the eventsOther evidence, i.e., alleged disparate treatment, facts concerning disputedsupervisory status of individuals, etc.Charging party’s response to charged party’s expected defensesBackpay and/or remedy informationThe investigative checklists for 8(a)(1),(3), and (5) and 8(b)(1)(A) allegations, attached toGC Memo 08-06, provide useful guidance for Board agents.During the course of the interview, the Board agent should probe the testimony ofthe witness as to statements which appear to be unreliable, improbable or contrived andseek documentation which would support or refute assertions made by the affiant. Indeed,all relevant and available documents should be obtained from the affiant during theinterview. If necessary, specific arrangements should be made for submission of suchdocuments immediately following the interview.With respect to all aspects of the investigation, the Board agent should considerwhether proffered evidence may be privileged. The Regional Office should direct anyquestions regarding possible privileges to Special Ethics Counsel.The Board agent should also review with the affiant the identity of otherwitnesses, the degree of anticipated cooperation from them, when and where to reach theadditional witnesses and other information which may be helpful to develop an approachto achieve cooperation of the witnesses. Such information should not be contained in theaffidavit but rather memorialized in a file memorandum.(b) Backpay and Other Remedy Information: During the initial investigation,unless the case is clearly nonmeritorious, the Board agent should inquire of each allegeddiscriminatee concerning interim earnings and search for work and should place thisinformation in the file for use in settlement or compliance efforts. Care should be takento avoid creating the impression that requesting this information indicates the RegionalOffice already considers the charge meritorious. It is appropriate to explain to the allegeddiscriminatees that the Agency collects such information to be prepared for potentialsettlement discussions in the event the charge is found to have merit. The followinginformation should be obtained routinely during the initial investigation and generallyshould be included in the initial affidavit, or on a separate form (see OM Memo 08-54,Attachments C and D), in all cases in which backpay may be a remedy:Revised 01/11