NLRB - Guidelines Concerning Appropriate Contacts with Represented Persons

All parties and witnesses to Board proceedings are entitled to be represented by an individual of their choice. Although the interpretation of ethics rules vary from jurisdiction to jurisdiction, ABA Model Rule 4.2 and state and federal ethics codes generally prohibit attorneys from communicating directly with persons represented by an attorney without the consent of such attorney.¹ The Unfair Labor Practice Casehandling Manual Revisions Committee in consultation with Operations, Advice, and Special Litigation is working to identify and address Rule 4.2 ethics issues that arise during ULP case investigations in order to assure that Board agents do not violate ethics rules. We plan to provide a comprehensive directive on these issues in the near future. In the meantime, to safeguard Board attorneys from ethics violations, all Board agents, including field examiners as well as attorneys, should abide by the following guidelines (which include contacting Special Litigation in specified circumstances) before interviewing:

(1) current supervisors or agents,

(2) former supervisors or agents, and

(3) third-party witnesses.

In some cases parties and witnesses choose to be represented by non-attorneys. Because the obligations of Rule 4.2 do not apply to dealings with non-attorney representatives, the guidelines differ depending on whether the representative is an attorney or a non-attorney.

I. Supervisors or Other Agents of Parties Represented by Attorneys

The following policies apply to contacts by Board agents with supervisors or other agents of a party² that is represented by an attorney.

A. Current Supervisors/Agents: Where the Region has been advised that a party is represented by an attorney, a Board agent--whether an attorney or field examiner--must contact and obtain consent from the party's attorney before initiating contact with or interviewing a current supervisor or agent. If the party's attorney refuses to consent to the interview being conducted without his/her presence and refuses to attend, the Board agent should not proceed with the interview.

If the Region concludes that the Charging Party or its attorney has interfered with, unduly delayed or impeded the investigation, including the Board agent's interview, the Region may:

Dismiss all or part of the charge for lack of cooperation;
Decide the case on the basis of the evidence otherwise obtained; or
In limited circumstances, such as when the rights of others may be dependent upon the testimony or evidence from a charging party, issue an investigative subpoena for necessary documents or for an interview under oath with notice to the attorney.

If the Region concludes that the Charged Party or its attorney has interfered with, unduly delayed or impeded the investigation, including the Board agent's interview, the Region may:

Decide the case on the basis of the evidence otherwise obtained; or
Issue an investigative subpoena for necessary documents or for an interview under oath with notice to the attorney.

B. Uncertain Supervisory/Agency Status: In cases where the individual's supervisory or agency status is uncertain, a Board agent should inquire about the individual's status prior to conducting a substantive interview and proceed as follows:

If it becomes clear that the individual is a supervisor or an agent of a party, the Board agent should not proceed with the interview without the consent of the party's attorney.
If it remains unclear whether the individual is a supervisor or an agent of a party, the Board agent should interrupt the interview and consult with the Region.
If the Region concludes that the individual is a supervisor or agent of a party, the Board agent should not resume the interview without the consent of the party's attorney.
If, on the other hand, it becomes clear either through the preliminary interview or through consultations with the Region that the individual is not a supervisor or agent of a party, the Board agent may conduct the substantive interview of the witness without informing or obtaining consent from the party's attorney.

C. Former Supervisors/Agents: Because jurisdictions have differing approaches with respect to ex parte communications with former supervisors or agents of a represented party, the Region must contact Special Litigation before interviewing former supervisors or agents of a represented party without consent of the party's attorney.

D. Current Supervisors/Agents Who Come Forward Voluntarily: If current supervisors or agents of a represented party come forward voluntarily and indicate that they do not wish to have the party's attorney present, the Region must contact Special Litigation before interviewing or taking a statement from such a witness.

II. Supervisors or Other Agents of Parties Not Represented by Attorneys

The following policies apply to contacts by Board agents with supervisors or agents of a party that is either not represented or is represented by a non-attorney.

A. Current Supervisors/Agents: Where the party is not represented by an attorney and cooperation is being extended to the Region in its investigation, the party's representative should be contacted and afforded the opportunity to make available for interview any current supervisor or other agent of the party. This policy will normally apply in circumstances where:

The Region is receiving cooperation from the party and its representative;
The party and such representative make the individual to be interviewed available with reasonable promptness so as not to delay the investigation; and
During the interview the party and such representative do not interfere with, hamper, or impede the Board agent's investigation.

B. Current Supervisors/Agents Who Come Forward Voluntarily: Where the party is not represented by an attorney, Board agents are also free to interview and obtain testimony from current supervisors or agents who come forward voluntarily and indicate that they do not wish to have the party or its representative present, without informing the party or its representative.

C. Uncertain Supervisory/Agency Status: Where the party is not represented by an attorney, and a witness' supervisory or agency status is uncertain, a Board agent should inquire about the individual's status prior to conducting a substantive interview and proceed as follows:

If it becomes clear that the individual is a supervisor or an agent of a party, the Board agent should not proceed with the interview without affording the party's representative the opportunity to be present if such party is cooperating.
If it remains unclear whether the individual is a supervisor or an agent of a party, the Board agent should interrupt the interview and consult with the Region.
If the Region concludes that the individual is a supervisor or agent of a party and the party is cooperating, the Board agent should not resume the interview without affording the party's representative the opportunity to be present.
If, on the other hand, it becomes clear either through the preliminary interview or through consultations with the Region that the individual is not a supervisor or agent of a party, the Board agent may conduct the substantive interview of the witness without informing the party or its non-attorney representative.

D. Party Not Cooperating: If the party not represented by an attorney is not cooperating in the investigation (for example, by failing to make the individual to be interviewed available with reasonable promptness or by interfering with, hampering, or impeding the Board agent's investigation during the interview), the Board agent may contact and obtain sworn testimony from supervisors or other agents without informing the party or its representative.

E. Former Supervisors/Agents of Parties: Board agents may initiate contact with former supervisors or agents of parties not represented by an attorney and obtain testimony from such individuals without informing the party or its representative.

III. Third-Party Witnesses

Witnesses who are not supervisors or agents of a party are third-party witnesses. Following notice to the Region that a third-party witness is represented in the proceeding before the Agency, Board agents should follow the procedures described below.

A. Witness Represented by Non-Party Attorney: Where the Region has notice that a third-party witness is represented by an attorney who does not represent a party, Board agents must contact and obtain consent from the attorney before contacting or interviewing the witness. If the attorney refuses to consent, the Board agent should not proceed to either contact or interview the witness, absent issuance of an investigative subpoena to the witness with notice to the attorney.

B. Witness Represented by Non-Party Representative: Where a third-party witness is represented by an individual who is not an attorney and who does not represent a party, such representative should be afforded the opportunity to be present for the interview so long as the representative's presence does not unduly delay or hamper the interview. If the presence of the representative unduly delays or hampers the interview, the Board agent may attempt to continue the interview without the representative or may terminate the interview. In addition, if necessary to obtain the witness' testimony, the Region may issue an investigative subpoena to the witness. In that event, the Region has discretion to decide, considering all the circumstances, whether to give notice to the representative and/or allow the representative to be present at the interview.

C. Third Party Witness and Party Attorney/Representative: Consistent with long-standing Board policy, the attorney or other representative of a party to the case will not normally be allowed to be present at an interview of a witness who is not a supervisor or agent of that party. If, however, it is asserted that an attorney of a party to a case also represents a third-party witness as an individual, the Region, in its discretion, may take a statement from the witness only with the attorney present. In the event the Region declines to proceed with the interview of the witness in the presence of counsel, counsel should be advised that he or she may submit documentary evidence or a statement that, if timely received, will be considered. If the Region has questions about the application of this policy in a particular case, it should consult with Special Litigation.

If it is asserted that a non-attorney representative of a party also represents a third-party witness as an individual, the Region may decide in its discretion whether or not to conduct the interview in the presence of such non-attorney representative. Alternatively, the Region may issue an investigative subpoena to the witness without notice to the non-attorney representative.

This Guideline memorandum is to be made the subject of a Regional Office training session and such a session should be conducted annually thereafter.

If you have any questions about the application of these policies, please contact Special Litigation.

R.A.S.

cc: NLRBU
Release to the Public

MEMORANDUM OM 02-36

¹ On February 5, 2002, the ABA House of Delegates approved revisions to the ABA's Model Ethics Rules, including M.R. 4.2 and its Comments. While these changes may have implications for the Agency if they are adopted by the states, they have not yet been adopted by any state. Further, even if revised M.R. 4.2 is adopted by some or all jurisdictions, it will present the same range of interpretative issues as those versions of Rule 4.2 that are now in effect. The instant guidelines are intended to safeguard Board attorneys from ethics violations regardless of the version of Rule 4.2 that governs a particular attorney's conduct.

² A "party" to a "ULP" proceeding is the Charging Party, the Charged Party or a Party-in-Interest.

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