[Federal Register Volume 61, Number 98 (Monday, May 20, 1996)]
[Proposed Rules]
[Pages 25158-25160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12464]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Rules Governing Misconduct by Attorneys or Party Representatives
Before the Agency
AGENCY: National Labor Relations Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Labor Relations Board (NLRB) is proposing to
revise its rules governing misconduct by attorneys and party
representatives before the Agency. The proposed changes consolidate the
current misconduct rules applicable to unfair labor practice and
representation proceedings into a single rule, clarify and revise the
current rules to cover such misconduct at any and all stages of any
Agency proceeding, whether or not it occurs during a hearing, and set
forth the procedures for processing allegations of misconduct. In
addition, the proposed changes revise Section 102.21 of the Board's
rules governing the filing of answers to unfair labor practice
complaints to make that section's disciplinary provisions applicable to
non-attorney party representatives as well as attorneys.
DATES: All comments must be received on or before June 19, 1996.
ADDRESSES: All written comments should be sent to Office of the
Executive Secretary, National Labor Relations Board, 1099 14th Street,
NW, Room 11600, Washington, DC 20570. Telephone: (202) 273-1940. The
comments should be filed in eight copies, double spaced, on 8\1/2\ by
11 inch paper and shall be printed or otherwise legibly duplicated.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,
Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: The NLRB's rules governing misconduct by
attorneys and party representatives before the Agency are currently set
forth in two separate sections of the Board's rules and regulations:
Section 102.44 (unfair labor practice proceedings) and 102.66(d)
(representation proceedings). These sections, which are virtually
identical, currently provide that misconduct at a hearing shall be
grounds for summary exclusion from the hearing, and that ``such
misconduct of an aggravated character'' may also be grounds for
suspension or disbarment by the Board from further practice before it
after due notice and hearing.
Applying these rules, the Board in several cases has suspended or
disbarred attorneys or non-attorney party representatives from further
practice before the Agency for engaging in misconduct during the course
of unfair labor practice or representation hearings. See, e.g., Joel
Kieler, 316 NLRB 763 (1995); Sargent Karch, 314 NLRB 482 (1994); In re
An Attorney, 307 NLRB 913 (1992); Kings Harbor Health Care, 239 NLRB
679 (1978); Roy T. Rhodes, 152 NLRB 912 (1965); Herbert J. Nichol, 111
NLRB 447 (1955); and Robert S. Cahoon, 106 NLRB 831 (1953).
As currently written, however, the Board's rules have several
deficiencies. First, they do not specifically cover misconduct that
does not occur during the course of a hearing. As a result, the Board
has been unable to take effective and appropriate disciplinary action
against attorneys or party representatives who are alleged to have
engaged in misconduct in the pre-hearing, investigative and/or
compliance stages of its proceedings. Thus, for example, the Board
recently held that it was without authority under its current rules to
institute disciplinary proceedings against an attorney who allegedly
suborned perjury during the pre-complaint investigation of an unfair
labor practice charge. See H.P. Townsend Mfg. Co., 317 NLRB 1169
(1995). The Board in that case instead transferred the record to the
State Bar Association with a request that it investigate whether
disciplinary action was warranted.
Second, the Board has found that the language in the current rules,
``misconduct of an aggravated character,'' has sometimes caused
confusion about what types of conduct would be subject to suspension or
disbarment. See, e.g., Sargent Karch, supra, 314 NLRB at 486. The
courts often consider both ``aggravating'' and ``mitigating'' factors
in determining the appropriate sanction for attorney misconduct under
the ABA Model Rules of Professional Conduct and the various state rules
of professional conduct. See ABA/BNA Lawyers Manual on Professional
Conduct 101:3101-3102 (1995). However, the phrase ``aggravated''
misconduct is not often used as in the Board's rules. This has raised
questions about whether the Board's rules are intended to cover the
same type of conduct covered by those rules.
Third, the Board's rules fail to set forth the procedures to be
followed in processing allegations of misconduct. Thus, the Board's
current rules fail to advise parties how or where to file allegations
of misconduct or how such allegations will be processed or what their
rights are.
The proposed changes are intended to address each of these
problems. First, the Board is proposing to revise the rules to cover
misconduct at any and all stages of any Agency proceeding, whether or
not it occurs during a hearing. Unlike under the current rules, under
the new rule misconduct by attorneys or party representatives will be
subject to disciplinary sanction even if the misconduct occurs during
the pre-hearing, investigative or compliance stage of the
proceeding.1
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\1\ Misconduct by Agency employees, at any stage of an Agency
proceeding, will be dealt with under internal disciplinary
procedures.
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Second, the Board is proposing to delete the phrase ``aggravated''
misconduct from the rules, and to substitute the phrase ``misconduct
including unprofessional or improper behavior''. By substituting this
language it is not the Board's intent to make any change in the kind of
conduct currently covered by the Board's misconduct rules. Rather, the
Board is simply attempting to make the current rule more understandable
by using language that is more familiar to attorneys and party
representatives who practice before the Board. The Board will
[[Page 25159]]
continue to consider both aggravating and mitigating factors in
determining the appropriate disciplinary sanction.
Third, the Board proposes to set forth the procedures for the
processing of misconduct allegations. Under the proposal, all such
allegations would be investigated by the Associate General Counsel,
Division of Operations-Management or his/her designee (the
Investigating Officer). Following an investigation, the Investigating
Officer would make a recommendation to the General Counsel, who would
make the determination whether to institute disciplinary proceedings
against the attorney or party representative (the respondent). The
General Counsel's determination not to institute such proceedings would
be final and non-reviewable. The procedures also set forth the rights
of the respondent to respond and to request a hearing, and the
procedures for conducting the hearing, where a hearing is found
warranted. Except as otherwise provided, the procedures are similar to
those applied in unfair labor practice proceedings.
The procedures also address the role of the person bringing the
allegations of misconduct or petitioning for disciplinary proceedings
against the respondent. The procedures provide that any such person
shall be permitted to partipate in the disciplinary hearing to a
limited extent by examining and cross-examining witnesses called by the
General Counsel and the respondent, but shall not be a party to the
proceeding or afforded the rights of a party to call witnesses or
introduce evidence, to file exceptions to the administrative law
judge's decision, or to appeal the Board's decision. The Board believes
that this provision strikes a proper balance by providing such
interested persons the opportunity to participate to some extent in the
proceeding while ensuring that the responsibility for prosecuting the
disciplinary complaint will at all times remain with the General
Counsel and that the disciplinary proceeding will not be transformed
into an adversary proceeding between the complaining person and the
respondent.\2\
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\2\ Courts have long held that attorney disciplinary proceedings
are in the nature of an internal investigation concerning the
protection and integrity of the adjudicatory process rather than
adversarial disputes involving the conflicting rights or obligations
of private parties. Accordingly, they have refused to grant party
status or a right to appeal to the complaining person or individual
in such proceedings, even if that person or individual was a party
or party representative in the case where the alleged misconduct
occurred and/or was permitted to participate in the disciplinary
hearing. See Ramos Colon v. U.S. Attorney for the District of Puerto
Rico, 576 F.2d 1 (1st Cir. 1978); Application of Phillips, 510 F.2d
126 (2d Cir. 1975); In re Echeles, 430 F.2d 347 (7th Cir. 1970); and
Mattice v. Meyer, 353 F.2d 316 (8th Cir. 1965). See also Matter of
Doe, 801 F. Supp. 478 (D. N.M. 1992). The Board believes that this
policy is a sound one and is properly applied in Agency disciplinary
proceedings as well.
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Finally, the Board is also proposing to revise Section 102.21 of
its rules and regulations governing the filing of answers to unfair
labor practice complaints. The current rule provides that the answer of
a party represented by counsel shall be signed by at least one attorney
of record; that the attorney's signature constitutes a certificate by
the attorney that he/she has read the answer, there is good ground to
support it to the best of his/her knowledge, information and belief,
and it is not interposed for delay; and that the attorney may be
subjected to appropriate disciplinary action for willful violations of
the rule or if scandalous or indecent matter is inserted.
It is not required under the Board's rules, however, that a party
representative be an attorney. Further, it is not infrequent that a
party will be represented by a non-attorney and that the non-attorney
party representative will sign the answer on behalf of the party.
Accordingly, the Board believes that Section 102.21 should be revised
to make the foregoing provisions of that section applicable to non-
attorney party representatives as well as attorneys.
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the NLRB certifies that these rules will not have a significant
impact on small business entities.
List of Subjects in 29 CFR Part 102
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, the NLRB proposes to amend 29 CFR
Part 102 as follows:
PART 102--RULES AND REGULATIONS
1. The authority citation for 29 CFR part 102 continues to read as
follows:
Authority: Section 6, National Labor Relations Act, as amended
(29 U.S.C. 151, 156). Section 102.117(c) also issued under Section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5
U.S.C. 504(c)(1)).
2. Section 102.21 is revised to read as follows:
Sec. 102.21 Where to file; service upon the parties; form.
An original and four copies of the answer shall be filed with the
Regional Director issuing the complaint. Immediately upon the filing of
his answer, respondent shall serve a copy thereof on the other parties.
An answer of a party represented by counsel or non-attorney
representative shall be signed by at least one such attorney or non-
attorney representative of record in his/her individual name, whose
address shall be stated. A party who is not represented by an attorney
or non-attorney representative shall sign his/her answer and state his/
her address. Except when otherwise specifically provided by rule or
statute, an answer need not be verified or accompanied by affidavit.
The signature of an attorney or non-attorney party representative
constitutes a certificate by him/her that he/she has read the answer;
that to the best of his/her knowledge, information, and belief there is
good ground to support it; and that it is not interposed for delay. If
an answer is not signed or is signed with intent to defeat the purpose
of this section, it may be stricken as sham and false and the action
may proceed as though the answer had not been served. For a willful
violation of this section an attorney or non-attorney party
representative may be subjected to appropriate disciplinary action.
Similar action may be taken if scandalous or indecent matter is
inserted.
Sec. 102.44 [Removed]
3. Section 102.44 is removed.
Sec. 102.66 [Amended]
3a. Paragraph (d) of Sec. 102.66 is removed, and paragraphs (e),
(f), and (g) are redesignated paragraphs (d), (e), and (f),
respectively.
4. The following new Subpart U--Misconduct By Attorneys or Party
Representatives, consisting of new Sec. 102.156, is added to read as
follows:
Subpart U--Misconduct by Attorneys or Party Representatives
Sec. 102.156 Exclusion from hearings; Refusal of witness to answer
questions; Misconduct including unprofessional or improper behavior by
attorneys and party representatives before the Agency; Procedures for
processing misconduct allegations.
(a) Misconduct including unprofessional or improper behavior at any
hearing before an administrative law judge, hearing officer, or the
Board shall be ground for summary exclusion from the hearing.
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(b) The refusal of a witness at any such hearing to answer any
question which has been ruled to be proper shall, in the discretion of
the administrative law judge or hearing officer, be ground for striking
all testimony previously given by such witness on related matters.
(c) Notwithstanding any action taken under paragraph (a) of this
section, misconduct including unprofessional or improper behavior by an
attorney or party representative before the Agency, including but not
limited to such misconduct at any hearing, shall be ground for
appropriate discipline including suspension and/or disbarment from
practice before the Agency and/or other sanctions.
(d) Allegations of misconduct pursuant to paragraph (c) of this
section, except for those involving the conduct of Agency employees,
shall be handled in accordance with the following procedures:
(1) Allegations that an attorney or party representative has
engaged in misconduct may be brought to the attention of the
Investigating Officer by any person. The Investigating Officer, for
purposes of this paragraph, shall be the Associate General Counsel,
Division of Operations-Management, or his/her designee.
(2) The Investigating Officer or his/her designee shall conduct
such investigation as he/she deems appropriate. Following an
investigation, the Investigating Officer shall make a recommendation to
the General Counsel, who shall make the determination whether to
institute disciplinary proceedings against the attorney or party
representative. If the General Counsel determines not to institute
disciplinary proceedings, all interested persons shall be notified of
the determination, which shall be final.
(3) If the General Counsel decides to institute disciplinary
proceedings against the attorney or party representative, the General
Counsel or his/her designee shall serve the Respondent with a complaint
which shall include: a statement of the acts which are claimed to
constitute misconduct including the approximate date and place of such
acts together with a statement of the discipline recommended;
notification of the right to a hearing before an administrative law
judge with respect to any material issues of fact or mitigation; and an
explanation of the method by which a hearing may be requested. Sections
102.24 through 102.51, rules applicable to unfair labor practice
proceedings, shall be applicable to the extent that they are not
contrary to the provisions of this section.
(4) Within 14 days of service of the disciplinary complaint, the
respondent shall respond by admitting or denying the allegations, and
may request a hearing. If no response is filed or no material issue of
fact or relevant to mitigation warranting a hearing is raised, the
matter may be submitted directly to the Board. If no response is filed,
then the allegations shall be deemed admitted.
(5) The hearing shall be conducted at a reasonable time, date, and
place. In setting the hearing date, the administrative law judge shall
give due regard to the respondent's need for time to prepare an
adequate defense and the need of the Agency and the respondent for an
expeditious resolution of the allegations.
(6) The hearing shall be public unless otherwise ordered by the
Board or the administrative law judge.
(7) Any person bringing allegations of misconduct or filing a
petition for disciplinary proceedings against an attorney or party
representative shall be given notice of the scheduled hearing and shall
be afforded the opportunity to examine or cross-examine witnesses
called by the General Counsel and respondent at such hearing. Any such
questioning must be limited to the issues raised in the General
Counsel's complaint. Any such person shall not be a party to the
disciplinary proceeding, however, and shall not be afforded the rights
of a party to call witnesses and introduce evidence at the hearing, to
file exceptions to the administrative law judge's decision, or to
appeal the Board's decision.
(8) The respondent will, upon request, be provided with an
opportunity to read the transcript or listen to a recording of the
hearing.
(9) The General Counsel must establish the alleged misconduct by a
preponderance of the evidence.
(10) At any stage of the proceeding prior to hearing, the
respondent may submit a settlement proposal to the General Counsel, who
may approve the settlement or elect to continue with the proceedings.
Any formal settlement reached between the General Counsel and the
respondent, providing for entry of a Board order, shall be subject to
final approval by the Board. In the event any settlement, formal or
informal, is reached after opening of the hearing, such settlement must
be submitted to the administrative law judge for approval. In the event
the administrative law judge rejects the settlement, either the General
Counsel or the respondent may appeal such ruling to the Board as
provided in Sec. 102.26.
(11) If it is found that the respondent has engaged in misconduct
in violation of paragraph (c) of this section, the Board may issue a
final order imposing such disciplinary sanctions as it deems
appropriate, including suspension and/or disbarment from practice
before the Agency, and/or other sanctions.
(12) Any person found to have engaged in misconduct warranting
disciplinary sanctions under this section may seek judicial review of
the administrative determination.
Dated: Washington, D.C., May 14, 1996.
By direction of the Board.
John J. Toner,
Executive Secretary.
[FR Doc. 96-12464 Filed 5-17-96; 8:45 am]
BILLING CODE 7545-01-P