MISCONDUCT BY ATTORNEYS OR PARTY REPRESENTATIVES BEFORE THE NATIONAL LABOR RELATIONS BOARD (NLRB)
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NLRB Attorney Misconduct Proceedings
MISCONDUCT BY ATTORNEYS OR PARTY REPRESENTATIVES
BEFORE THE NATIONAL LABOR RELATIONS BOARD (NLRB)
Section 102.177 of the Board’s Rules and Regulations controls the conduct of attorneys
and party representatives/non‐attorneys before the NLRB. 29 C.F.R. § 102.177. That Section is
entitled: “Exclusion from hearings; Refusal of witness to answer questions; Misconduct by
attorneys and party representatives before the Agency; Procedures for processing misconduct
allegations.” The Section was last revised in 1997. The Board’s original rule was enacted in
1959.
I. Potential Sanctions for Misconduct
The standards of ethical and professional conduct required of practitioners before the
courts also are required to appear and practice before the NLRB, whether an individual is an
attorney or not. In prior cases, the Agency has applied the rules of professional conduct of the
state where the hearing with alleged misconduct took place.
Misconduct by any person at a hearing before an Administrative Law Judge (ALJ) is
“grounds for exclusion” from the hearing. An ALJ, Hearing Officer, and the Board also have
authority to “admonish” or “reprimand” any person who engages in misconduct at a hearing,
but only after “due notice.” Misconduct of an “aggravated character” is grounds for
“suspension and/or disbarment from practice before the Agency and/or other sanctions.”
II. NLRB Procedure for Handling Allegations of Misconduct of an “Aggravated Character”
For misconduct of an aggravated character, a formal proceeding applies. Any person
may submit an allegation to the “Investigating Officer” of NLRB headquarters in Washington
D.C. The Investigating Officer is the Associate General Counsel in the NLRB’s Division of
Operations‐Management, which oversees all NLRB regional offices where hearings are
conducted.
The Investigating Officer conducts an investigation of the misconduct allegations, using
the same statutory investigatory powers the Board has. See 29 U.S.C. § 161. This includes the
power to subpoena witnesses to testify and obtain documentary or other evidence. At the
conclusion of the investigation, the Investigating Officer makes a recommendation to the
NLRB’s General Counsel, who determines whether the evidence warrants the initiation of
disciplinary proceedings against the attorney or party representative. If the General Counsel
determines disciplinary proceedings are not warranted, the decision is final. If the General
Counsel institutes disciplinary proceedings, a complaint issues after the Respondent is notified
of the allegations in writing and afforded a reasonable opportunity to respond. The Complaint
must include the following:
1NLRB Attorney Misconduct Proceedings
1. A statement of the acts which are claimed to constitute the
misconduct, including the approximate date and place of such
acts together with a statement of the discipline
recommended;
2. Notification of the right to a hearing before an Administrative
Law Judge with respect to any material issues of fact or
mitigation; and
3. An explanation of the method by which a hearing may be
requested.
Thereafter, the Board’s regular rules for conducting a hearing apply, including that any hearing
on the disciplinary complaint is public. The person who initially brought the misconduct
allegations to the Board receives notice of the disciplinary hearing, but is not a party and cannot
examine witnesses or introduce evidence.
A party found to have engaged in misconduct by an Administrative Law Judge and the
Board may seek judicial review of the administrative determination.
Exclusion from a hearing, admonishments, and reprimands are not subject to the
Board’s formal disciplinary proceedings.
III. Recent Board Decisions Pursuant to Section 102.177
Mail Contractors of America, 347 NLRB 1158 (2006)
The Board held, 2‐1, that an Administrative Law Judge improperly issued an “admonishment” to
an attorney without due notice.
In the ALJ’s decision in the underlying unfair labor practice proceeding, the Judge issued a
“Notice of Potential Admonishment, Reprimand or Summary Exclusion” to the Respondent’s
attorney. In it, the ALJ described the attorney’s conduct in detail and concluded that…”in its
entirety, [the] conduct was not of a professional level expected in appearances before a court.”
The specific examples of misconduct included questioning a witness in an intimidating fashion;
misstatement of facts as to who the proper collective bargaining representative was; speaking
too loudly and making exaggerated gestures; inappropriate remarks and comments, including
laughing and chuckling in response to a ruling and improper responses to objections; ignoring
the Judge’s instructions not to call witnesses by their first names and that only one counsel per
witness voice objections; prolonging the proceedings by repeatedly asking questions covered
by prior rulings and having to be directed to continue examining witnesses; and continuing to
argue after rulings on routine matters. In the Notice, the Judge indicated that, if the attorney
repeated such conduct at future Board proceedings, the attorney would be subject to
admonishment, reprimand, or exclusion from the hearing.
2NLRB Attorney Misconduct Proceedings
The Board majority agreed with the attorney on appeal that the Judge’s “Notice of
Admonishment” itself constituted an admonishment. In that regard, the majority noted the
potential negative impact that the Notice of Admonishment could have on the attorney’s
reputation and business. Because it was not disputed that the Judge included the Notice in his
decision without previously notifying the attorney of the misconduct allegations, the Board
concluded that “due notice” was not provided for the admonishment, as required by the
Board’s Rule. The Board found that the attorney had no opportunity to contest the Judge’s
assertions or to modify his behavior during the hearing. Accordingly, it struck the Notice of
Potential Admonishment.
The Board’s dissenting member concluded that the “Notice of Admonishment” itself
constituted the “due notice” required under the Board’s regulation and was not an
admonishment standing alone.
The Earthgrains Company, 351 NLRB 733 (2007)
The Board referred to the Investigating Officer allegations of misconduct by Respondent’s
counsel that were detailed by the Administrative Law Judge in the “Credibility” and “Attorney
Misconduct” sections of his decision in an unfair labor practice trial. In doing so, the Board
specifically disavowed the Judge’s granting of a request by the attorney for the NLRB General
Counsel to recommend that the Board sanction the attorney. The Board noted that allegations
of misconduct were not to be submitted to the Board in the first instance. In addition, the
Board indicated a preference for ALJs not to address misconduct allegations in their decisions,
but instead submit the misconduct allegations directly to the Investigating Officer.
In the underlying decision, the ALJ described the attorney’s misconduct as preparing a
statement for a witness without asking what the witness knew, while knowing that the witness
would sign anything that had been prepared because a client representative had coerced the
witness into doing so. The Judge also noted that the attorney’s conduct at the hearing was
“disruptive and abrasive, bordering on contemptuous,” resulting in the ALJ having to caution
the attorney not to continue the behavior.
3NLRB Attorney Misconduct Proceedings
In Re Kirk Caraway, 347 NLRB 884 (2006) and In re James Simpson, 347 NLRB 883 (2006)
In these cases, the Board entered orders pursuant to formal settlement agreements of
misconduct complaints issued by the NLRB General Counsel following a Regional Director’s
submission of misconduct allegations to the Investigating Officer. The Board orders resulted in
the admonishment of one attorney and a reprimand of the other.
To support the admonishment order, the parties stipulated to certain facts of misconduct,
which the attorney engaged in having not complied with applicable rules concerning disclosure
of confidential information and conflict of interests, and having failed to obtain a valid written
or oral waiver of conflict of interests from his clients. The misconduct included the attorney,
while representing an employer in NLRB proceedings, obtaining signed representation
agreements from nine employees of the employer, after the employer presented the
employees with the representation agreements. In addition, the attorney did not meet with
eight of the nine employee clients until almost two weeks after the representation agreements
were signed. The attorney never met with one additional employee client. When meeting with
the employee clients, the attorney interrogated them regarding union representation matters,
including asking them if they wished to be represented by a union, in the presence of their
employer. The formal settlement also provided that the NLRB General Counsel would report
the misconduct to the applicable state’s Board of Professional Responsibility. The attorney
agreed to strictly follow the applicable state’s Rules of Professional Conduct 1.7, Conflict of
Interest—General Rule; 1.8, Conflict of Interest—Prohibited Transactions; and 5.4, Professional
Independence of a Lawyer.
To support the reprimand order, the parties also stipulated to certain facts of misconduct,
which again the attorney engaged in having not complied with applicable rules concerning
disclosure of confidential information and conflict of interests, and having failed to obtain a
valid written or oral waiver of conflict of interests from his clients. The misconduct included
that the attorney, while representing the same employer in NLRB proceedings, met with a
group of the employer’s employees and provided legal advice without having complied with
applicable rules concerning disclosure of potential conflicts of interest; obtained signed
statements from employees that were subsequently submitted to the Board without adequate
factual investigation; and procured and paid for the services of the attorney who was
admonished to represent the employees before the Board, without complying with applicable
rules concerning the disclosure of a potential conflict of interest. The settlement also provided
that the NLRB General Counsel would report the misconduct to the applicable state’s Board of
Professional Responsibility. The attorney agreed to strictly follow the applicable state’s Rules of
Professional Conduct 3.3, Candor Toward the Tribunal; 4.3, Dealing with an Unrepresented
Person; and 1.3, Diligence.
4NLRB Attorney Misconduct Proceedings
In re Uzi Einy, 352 NLRB 1178 (2008) (two‐member Board decision/non‐precedential)
In agreement with the Administrative Law Judge, the Board suspended the Respondent from
practicing before or appearing on behalf of a party before the Board for 6 months. Respondent
had appeared pro se at the underlying unfair labor practice hearing representing a business in
which he had a substantial ownership interest.
The ALJ determined that the representative had submitted answers in the underlying unfair
labor practice hearing in which he refused to admit factual allegations that the representative
knew had been established in prior Board proceedings in which he participated. This resulted
in the government having to present evidence to prove those allegations, wasting time and
resources. The Judge also found that the representative acted in an unprofessional manner
during the hearing, causing disruption and delay. The unprofessional conduct included talking
loudly at the counsel table and failing to pay attention to the proceedings; interrupting
testimony of witnesses; interrupting opposing counsel, the interpreter, and the judge; arguing
after the judge had made rulings; failing to follow the judge's instructions; and attempting to
communicate with a witness who was testifying. The Judge concluded that the representative
violated the following rules of professional responsibility in the applicable state: 1‐102,
Misconduct; 7‐102, Representing a Client; and 7‐106, Trial Conduct. The ALJ also cited to ABA
Model Rules of Professional Conduct 3.1, Meritorious Claims and Contentions; 3.3, Candor
Toward the Tribunal, and Rule 3.5, Impartiality and Decorum of the Tribunal.
In the underlying proceeding, 675 West End Owners Corp., 345 NLRB 324 (2005), the Board also
upheld the Judge’s recommendation that the Respondent pay the litigation costs expended by
the Union, as the Charging Party, and the government as a result of the same representative’s
willful violation of the ALJ’s instructions regarding subpoenas. However, the Board again
refused to adopt an ALJ recommendation that the Board warn the representative about his
misconduct, instead referring the misconduct to the Investigating Officer. That referral led to
the subsequent Board decision detailed above.
In Re David M. Kelsey, 349 NLRB 327 (2007)
The Board entered a default judgment against Respondent, leading to a 6‐month suspension
from practicing before the Board. The complaint alleged that Respondent, a corporate director
of the employer, engaged in misconduct while acting as the employer’s representative during a
Board unfair labor practice proceeding. The misconduct alleged in the complaint involved
dishonesty, fraud, deceit or misrepresentation during his testimony both as to the reason he
was not licensed to practice law and as to whether the employer had produced certain
subpoenaed documents. The representative also was disrespectful towards witnesses, the
interpreter, counsel for the General Counsel, and the administrative law judge. He repeatedly
asked witnesses irrelevant questions and cumulative questions despite being cautioned not to
do so. In addition, he denied a supervisory allegation in the unfair labor practice complaint
without a nonfrivolous basis in fact or law to do so.
5NLRB Attorney Misconduct Proceedings
In Re Charles Murphy, 338 NLRB 769 (2002)
The Board entered an order pursuant to a formal settlement agreement which suspended the
Respondent from appearing as a representative for any party for a 1‐year period. Respondent
was the vice president of a union. He was alleged in a misconduct complaint to have struck an
individual in the face while acting as an observer for the union during an NLRB‐conducted
election. The individual he struck was the decertification petitioner who sought the election in
order to remove the union as the employees’ collective bargaining representative.
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