Supreme Airport Shuttle, LLC

National Labor Relations Board - Board DecisionsFeb 7, 2017

365 NLRB No. 27 (N.L.R.B. 2017)

365 NLRB No. 27 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Supreme Airport Shuttle LLC and Shuttle Drivers Association of BWI. Case 05–RC–187864 February 7, 2017 ORDER BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN The Employer’s Appeal from the November 18, 2016 Order of the Regional Director Denying Employer’s Mo- tion to Require Petitioner’s Counsel to Withdraw is granted in part. In brief, the Employer on November 17, 2016, filed a motion with the Regional Director, requesting that he issue an order pursuant to Section 102.177 of the Board’s Rules and Regulations requiring the Petitioner’s counsel to withdraw from his representation of the Petitioner. The motion was based on the contention that Petitioner’s counsel, because he had previously represented the Em- ployer in another matter, suffered from a disqualifying conflict of interest in light of Rule 1.9 of the Maryland Lawyers’ Rules of Professional Conduct, as applicable here by virtue of Section 102.177(a) of the Board’s Rules and Regulations.1 On November 18, 2016, the Regional Director denied the Employer’s motion, after determin- ing that he lacked the authority under Section 102.177 to grant the relief sought. The Employer has appealed, urg- ing the Board to direct the General Counsel to initiate an investigation of the Employer’s allegations, pursuant to Section 102.177. After careful consideration, the Board has determined that the Regional Director, pursuant to the authority del- egated by the Board to Regional Directors with respect to representation proceedings and subject to the Board’s review, has the authority to decide whether the relief sought by the Employer is warranted, independent of the disciplinary procedure established by Section 102.177, which is administered by the Board’s General Counsel. The Board’s decisions make clear that, in an unfair la- bor practice proceeding, an administrative law judge, subject to the Board’s review, has the authority to dis- qualify a party’s counsel based on an impermissible con- 1 Sec. 102.177(a) provides that “[a]ny attorney or other representa- tive appearing or practicing before the Agency shall conform to the standards of ethical and professional conduct required of practitioners before the courts, and the Agency will be guided by those standards in interpreting and applying the provisions of this section.” Sec. 6 of the National Labor Relations Act authorizes the Board to make “such rules and regulations as may be necessary to carry out the provisions of this Act.” 29 U.S.C. §156. flict of interest. See Mack Trucks, 277 NLRB 711, 711 fn. 1, 719–723 (1985). See also National Labor Rela- tions Board, Division of Judges, Bench Book Sec. 6-202 (Nov. 2016) (ALJ Wedekind, ed.). Although the issue here seems to present a question of first impression, there is no sound reason for taking a different approach in rep- resentation proceedings. The Board has an institutional interest in policing and preserving the integrity of its own proceedings, regardless of their nature. That interest is also reflected in Section 102.177(b) of the Board’s Rules and Regulations, which provides that “[m]isconduct by any person at any hearing before an administrative law judge, hearing officer, or the Board shall be grounds for summary exclusion from the hear- ing.” The disciplinary procedure established by Section 102.177 contemplates an investigation by the investigat- ing officer and a determination by the General Counsel whether to institute formal proceedings against the attor- ney.2 However, the relief sought by the Employer here, disqualification of the Petitioner’s attorney, is not a form of discipline. It therefore makes no sense to follow that procedure—which might entail a hearing before an ad- ministrative law judge, followed by both Board and judi- cial review—particularly given the inevitable and unde- sirable delay that such a separate proceeding would mean for the processing of the representation petition here. See generally NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (observing that “the Board must adopt poli- cies and promulgate rules and regulations in order that employees’ votes may be recorded accurately, efficiently and speedily”). As explained, the Regional Director has the authority to rule on the Employer’s motion and, if warranted, to grant the relief requested, subject to the Board’s review. The Board accordingly reverses the Regional Director’s ruling and orders him to reconsider the Employer’s mo- tion and conduct any investigation he deems necessary in order to decide the motion, including, but not limited to, the solicitation of affidavits or the opening of an ancil- lary hearing. The Regional Director may examine Rule 1.9 of the Maryland Attorneys’ Rules of Professional Conduct, as well as the essentially identical standard reflected in Rule 1.9 of the American Bar Association’s Model Rules of Professional Conduct. The Regional Director should be sensitive to the concern expressed by the Supreme Court and other federal appellate courts about the “tactical use of disqualification motions to har- 2 The ruling of a judge or Regional Director on a disqualification motion, of course, neither requires nor precludes the institution of sepa- rate disciplinary proceedings under Sec. 102.177. Disqualification and discipline (such as suspension or disbarment from future practice be- fore the Board) are separate matters, separately determined. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 ass opposing counsel,” which has led them to subject such motions to “particularly strict judicial scrutiny.” Shurance v. Planning Control International, Inc., 839 F.2d 1347, 1349 (9th Cir. 1988), citing Richardson- Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985). The Board expresses no view on the merits of the Em- ployer’s motion. Dated, Washington, D.C. February 7, 2017 ______________________________________ Philip A. Miscimarra, Acting Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD