Nancy Watson-Tansey

National Labor Relations Board - Board Decisions

Feb 2, 1994

313 N.L.R.B. 628 (N.L.R.B. 1994)

628
313 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the Matter of Nancy Watson-Tansey. Case
AD–4
February 2, 1994
ORDER VACATING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On March 30, 1992, the Board issued a Decision
and Order in Toyota of Berkeley, 306 NLRB 893, in
which, in addition to its unfair labor practice findings,
the Board found that former NLRB Attorney Nancy
Watson-Tansey had committed a technical violation of
Section 102.119 of the Board’s Rules and Regulations
by assisting Respondent Toyota’s counsel of record in
the case. See 306 NLRB at 895.
Thereafter, on May 14, 1992, the Charging Party
Union filed a Motion for Reconsideration of the
Board’s finding, alleging that additional evidence
would show that Watson-Tansey had actually made an
inquiry to officials in the Board’s Regional Office in
1989 as to whether she could represent the Respondent
in the unfair labor practice proceeding. The Union con-
tended that this evidence established that Watson-
Tansey was aware of the potential conflict when she
assisted Respondent’s counsel, and that her violation of
Section 102.119, however technical, was willful.
Pursuant to the Union’s motion for reconsideration,
the Board subsequently agreed to receive further evi-
dence in the matter and, on February 2, 1993, issued
a Supplemental Notice to Show Cause requesting that
Watson-Tansey show cause why, based on this evi-
dence and/or her failure to previously disclose such
evidence, the Board should not reconsider its prior
finding that her violation of Section 102.119 was
merely technical, and should not proceed without the
taking of further evidence or a hearing to impose sanc-
tions on her for her conduct, up to and including sus-
pension from practice before the Agency.
Having now considered Watson-Tansey’s response
to the supplemental notice, however, and having recon-
sidered the relevant facts and argument as set forth in
her response to the original notice to show cause and
in the Union’s statements of position on the matter, we
find that the Board’s previous finding that Watson-
Tansey violated Section 102.119 was in error. The un-
disputed evidence as presented in Watson-Tansey’s
testimony at the unfair labor practice hearing and in
her responses to the Board’s notices to show cause es-
tablishes that she at no time participated in, or had any
knowledge of, the unfair labor practice case during her
employment with the Agency. Nor is there any dispute
that she never made a formal appearance at the unfair
labor practice hearing or communicated with any
Board agent about the case on behalf of the Respond-
ent. Given these circumstances, where there is both an
absence of actual knowledge of or participation in the
case during her Agency employment and an absence of
any subsequent actions on her part amounting to an ac-
tual appearance before, or communication with, the
Agency concerning the case, we find, contrary to our
earlier decision, that Watson-Tansey’s assistance to the
Respondent did not violate Section 102.119 either
‘‘technically’’ or otherwise.
Nor, in our view, does the additional evidence re-
ceived regarding Watson-Tansey’s failure to mention
her prior inquiry to the Region warrant any discipline
against her. We note in this regard that the transcript
of the unfair labor practice hearing indicates that the
Union’s counsel actually made an offer of proof at the
hearing, rejected by the administrative law judge on
relevance grounds, regarding Watson-Tansey’s pre-
vious inquiry to the Region and the Region’s response.
In these circumstances, where the inquiry and response
were apparently known to all parties, and an offer of
proof regarding the same actually appeared on the pub-
lic record, we cannot find that her own failure to men-
tion or discuss them in her response to the Board’s
original notice to show cause warrants discipline—par-
ticularly since her position, supported by the undis-
puted evidence, has always been that she complied
with the advice given her by the Region and did not
in fact ‘‘represent’’ the Respondent at the hearing. Ac-
cordingly,
IT IS ORDERED that the Board’s finding in Toyota of
Berkeley, 306 NLRB at 895, that Nancy Watson-
Tansey violated Section 102.119 of the Board’s Rules
and Regulations by assisting Respondent’s counsel of
record in the case is vacated.