January 2011 - National Labor Relations Board

10054 THE INVESTIGATIONconduct. Although such disclosure may be a decisive factor resulting in the chargedparty’s full cooperation, the degree of disclosure should be commensurate with the levelof cooperation anticipated from the charged party. Since the identity of a witness shouldbe protected, the Board agent should, whenever possible, avoid providing details thatwould likely disclose the identity of the witness.Particularly when the case includes pivotal questions of law, the Board agentshould candidly disclose the legal theories under consideration and invite the chargedparty to file a statement of position or memorandum of law regarding such matters,provided it is submitted consistent with the time goals for the case.Board agents should probe the testimony of charged party witnesses to the samedegree as charging party witnesses. Sec. 10054.2.10054.5 Full and Complete Cooperation by Charged Party(a) Cooperation Defined: It is Agency policy that full and complete cooperation,as that term is used in EAJA litigation, from a charged party includes, where relevant,timely providing all material witnesses under its control to a Board agent so that thewitnesses’ statements can be reduced to affidavit form and providing all relevantdocumentary evidence requested by the Board agent. The submission of a position letteror memorandum, or the submission of affidavits not taken by a Board agent, does notconstitute full and complete cooperation. Unless the Board agent is certain that thecharged party will extend full and complete cooperation, the Board agent shoulddocument in a letter to the appropriate charged party representative details of theRegional Office’s request for such cooperation, including a deadline for compliance.(b) Lack of Cooperation: If the charged party fails to provide full and completecooperation, the Regional Office may, depending upon a careful assessment of all thecircumstances:Decide the case on the basis of all evidence obtainedIssue investigative subpoena(s) to obtain relevant and necessaryevidenceIf the charged party is not represented by an attorney, contact andobtain sworn testimony from material witnesses. Sec. 10058.3(c)If the charged party is represented by an attorney, contact and obtainsworn testimony from material witnesses in the limited circumstancesset forth in Secs. 10058.2 and 10058.510054.6 Conditional Position StatementsRevised 01/11