Robert S. Cahoon

National Labor Relations Board - Board Decisions

Aug 21, 1953

106 N.L.R.B. 831 (N.L.R.B. 1953)

ROBERTS.CAHOON 831
Member Peterson, dissenting:
I dissent from the majority opinion herein solely on the
severance issue. The Employer and the Intervenor appear to
have bargained effectively and harmoniously for 13 years for
an inclusive production and maintenance unit. The pattern-
makers have participated in the bargaining negotiations and
some of them have held office in the Intervenor's organization.
There is no indication that the Petitioner had obtained mem-
bership among them prior to the establishment of the broader
unit. Although the Petitioner is adhering to its traditional
craft jurisdiction and does not seek to represent employees
who do not meet the qualifications of its craft, the considera-
tions previously mentioned lead me to the conclusion that
severance is unwarranted in this case. See my dissenting opin-
ion in W. C. Hamilton and Sons , 104 NLRB 627.
ROBERT S. CAHOON. August 21, 1953
DECISION AND ORDER
On May 14, 1953, Jerold B. Sindler, hearing officer in Cone
Mill Corporation (Tabardrey Plant), Case No. 11-RC-416, a
proceeding to determine representatives for the purposes of
collective bargaining, filed with the National Labor Relations
Board, herein called the Board, a report, in substance that,
during the course of the hearing, an altercation or serious
disturbance, involving counsel representing the parties, had
occurred in the presence of the hearing officer.
Upon consideration of the hearing officer's report, it ap-
peared to the Board that Robert S. Cahoon, an attorney at law,
may have engaged in misconduct of such an aggravated nature
as to constitute grounds for suspension or disbarment from
further practice before the Board, pursuant to Section 102.58
(d) (2) of subpart C of the Board's Rules and Regulations,
Series 6, as amended.'
Thereafter, on June 26, 1953, the Board issued a rule to
show cause directing the Respondent, Robert S. Cahoon, to
show cause in writing, under oath, on or before July 13, 1953,
why he should not be suspended or disbarred by the Board
from further practice before it.
On July 13, 1953, the Respondent filed his "Response to
Rule To Show Cause.`
1 That section provides that "Misconduct of an aggravated character, when engaged in by an
attorney . . shall be ground for suspension or disbarment by the Board from further prac-
tice before it after due notice and hearing." This rule, effective June 3, 1952, appears at
17 F. R. 4982.
2 As our decision herein is based upon the facts admitted to be true by the Respondent in
the return to the show-cause order, we find it unnecessary to hold a formal hearing in this
matter.
106 NLRB No. 138.
83 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts
The relevant facts giving rise to the instant proceeding, as
admitted by the Respondent, are as follows:
The incident in question occurred at approximately 12:45
p. m. on May 8, 1953, during a hearing in a representation
proceeding before Hearing Officer Jerold B. Sindler. The
Respondent was engaged as counsel for Local 295, United
Textile Workers of America, AFL. The Company, Cone Mill
Corporation, was represented by Marion A. Prowell.
The incident in question occurred near the close of the
hearing when the hearing officer inquired of Cahoon whether
he intended to call as additional witnesses two company
representatives, Montgomery and Makin, for whom Cahoon
had obtained subpenas from the hearing officer. In response,
Cahoon stated in substance that he did not plan to call
Montgomery; he further stated that he had learned in earlier
conversation with Prowell that Makin, upon Prowell's advice,
would not respond to the subpena , thus necessitating court
enforcement proceedings for his appearance as a witness, and
that Cahoon intended not to seek enforcement of the subpena.
At this point, Prowell rose from his chair at the counsel
table and stated: "Mr. Cahoon's statement with respect to
whether we would advise Mr. Makin not to come is an un-
adulterated falsehood."3 At the conclusion of his statement,
Prowell sat down. At the time, Prowell and Cahoon were at
adjacent ends of tables spaced about 3 feet apart.
Prowell ' s accusation , according to Cahoon , "delivered as it
was in a heated and insulting manner , produced [ in him] an
immediate and unpremeditated reaction and revulsion. What
then happened was not an intentional thing, but an immediate
reaction."
At this point, Cahoon approached Prowell, grasped Prowell's
necktie, and said to him: "Don't call me a liar." Prowell
partially stood up and struck at Cahoon's hand resting on
Prowell's necktie. Cahoon released the tie; Prowell became
unbalanced; and Prowell and the chair upon which he had been
sitting toppled to the floor. Company representatives sitting
in the hearing room, including a Mr. Mitchell, advanced to-
ward Cahoon. Two union representatives present, Mr. Carroll
and Mr. Jenkins, intervened "to keep them away" from Cahoon.
As a result, a general melee ensued in which Mr. Williams, a
company representative, and Jenkins exchanged blows, Jenkins
receiving a cut and bruised lip, and Williams receiving an
abraised head . " In a matter of seconds ," however , the entire
incident was at an end, and order was restored by the hearing
officer who demanded that the participants explain the incident
on the record.4
SAccordmg to the hearing officer's report, Prowell characterized the falsehood as "abso-
lute" rather than "unadulterated." We think it immaterial whether the statement was char-
acterized as unadulterated or absolute.
4As indicated above, these findings are based upon Cahoon's version of the incident.
ROBERT S.CAHOON 833
In response , Cahoon apologized to the hearing officer for the
occurrence; Cahoon admitted that he "grabbed Mr. Prowell
by the tie "; Cahoon explained that he had made his statement
in good faith and that he had been seriously offended by
Prowell's remark , and that Prowell should apologize . Prowell
declined to apologize , stating that he had made his statement
"in all good faith ." Prowell agreed with Cahoon that the latter
had "caught" Prowell "by the tie ," but Prowell also accused
Cahoon of hitting Prowell on the head , turning his chair over,
and pushing Prowell to the floors Cahoon further stated that
he was "taking the burden" for the disturbance , but warned
Prowell not to repeat " that remark" at any time . The hearing
officer stated that he was not "saying " who was " right" or
"wrong," but he rebuked Cahoon for "ungentlemanly " conduct.
After taking further testimony , the hearing officer shortly
thereafter closed the hearing.
Cahoon continued to participate in the hearing to its conclu-
sion . There was no request made for his exclusion and, in any
event , the hearing was about to conclude at the time the dis-
turbance occurred.
Concluding findings
The crucial issue raised by the Board ' s rule to show cause
is limited to whether Cahoon, during the representation hearing,
assaulted the Company ' s counsel , Prowell , by a seizing of his
person , or by a blow or blows, or by a combination of these
acts. If that is established , clearly the general melee which
ensued resulted from the assault , and is thus attributable to
Cahoon.
Cahoon admits that , during the hearing , he became aroused
by a remark made by Prowell , that he approached Prowell and,
at least, grasped Prowell forcibly by his necktie ; that, as a
result , Prowell struck Cahoon's hand ; that Cahoon simul-
taneously released his grip on Prowell ' s tie ; and that , in doing
so, Prowell lost his balance and fell from his chair to the
floor; and that a general melee followed.
Cahoon denies , as Prowell asserts , that , apart from grabbing
the necktie , he struck or pushed Prowell, or that it was neces-
sary for others to separate Cahoon from Prowell , or that Cahoon
became engaged in any altercation with any other person at
the hearing , as reported by the hearing officer . However, in
view of Cahoon ' s admission that he angrily seized Prowell
and that a general melee ensued , we find it unnecessary to
determine whether Cahoon struck or pushed Prowell or whether
Cahoon was involved in any altercation beyond that admitted
by Cahoon . Although Cahoon was angered by Prowell ' s accusa-
tion that Cahoon had lied and the assault was the result of a
sudden loss of temper rather than a premeditated act, we con-
5 This Cahoon denies in his "Response to Rule To Show Cause."
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that , by forcibly seizing Prowell by his necktie and
thereby causing a general melee involving a serious disturbance
in a statutory hearing before a Board agent , Cahoon engaged in
misconduct of an aggravated character , within the meaning of
Section 102.58 (d) (2) of the Board ' s Rules and Regulations.
Cahoon's misconduct was a breach of decorum , unbecoming to
an attorney and unprofessional in character ; it reflected upon
the dignity of the Board and of its agent who presided at the
hearing ; and it interfered with the Board ' s processes and
impeded the discharge of its functions.
THE REMEDY
Upon the basis of the foregoing, the Board concludes that
Cahoon's misconduct warrants the imposition of disciplinary
action. In determining what disciplinary action to take, we have
considered the following mitigating circumstances that: (1)
Cahoon was provoked by Prowell's accusation;6 and(Z)Cahoon,
recognizing the gravity of his action, immediately apologized to
the hearing officer for his misconduct,' and has repeated that
apology to the Board.
Under all the circumstances, in order to effectuate the pol-
icies of the Act, we shall suspend Cahoon from the privileges of
practicing before this Board or its agents fora period of ninety
(90) days, beginning fifteen (15) days after the date of our order
herein.'
ORDER
The National Labor Relations Board hereby orders that the
Respondent, Robert S. Cahoon, be, andheherebyis, barred and
prohibited from directly or indirectly practicing or appearing
before this Board as counsel, attorney, representative, or agent
(of record or otherwise) or from aiding or assisting any person
in the preparation, prosecution, or defense of any matter or
proceeding before this Board, or before any Regional Office or
agent of this Board, for a period of ninety (90) days, beginning
fifteen (15) days after the date hereof.
6 We regard as inherently provocative the use by counsel of the term "falsehood" to char-
acterize a statement, apparently made in good faith, by opposing counsel
7 As we have noted above, Cahoon did state to Prowell that "he will be well not to repeat
that remark again," implying that were he to do so in that or another hearing, Cahoon intended
to take it seriously. But he did not indicate what, if anything, he intended to do about it were
that to occur. Further, the hearing officer immediately admonished both that each would be
held to observance of the Board's Rules during the course of the hearing.
6Chairman Farmer would bar Respondent, Robert S. Cahoon, from practicing before the
Board for a period up to 1 year.