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NLRB regional director authorized to take steps to protect integrity of Board processes

February 9th, 2017  |  Ron Miller

Answering a question of first impression in representation proceedings, the NLRB granted in part an employer’s appeal from an order of a regional director denying its motion to require union counsel to withdraw because of a conflict of interest. The employer’s motion was based on its contention that because union counsel had previously represented it in another matter, counsel suffered from a disqualifying conflict of interest under the Maryland Lawyers’ Rules of Professional Conduct. The regional director denied the employer’s motion, after determining that he lacked the authority under Section 102.177 of the Board’s Rules and Regulations to grant the relief sought.

No so, said the Board in Supreme Airport Shuttle LLC. The employer appealed, urging the Board to direct the General Counsel to initiate an investigation of its allegations. The Board determined that the regional director, pursuant to the authority delegated 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 was warranted, independent of the disciplinary procedure established by Section 102.177, which is administered by the Board’s General Counsel.

In an unfair labor practice proceeding, an administrative law judge, subject to the Board’s review, has the authority to disqualify a party’s counsel based on an impermissible conflict of interest. The Board found no sound reason for taking a different approach here. Accordingly, the Board concluded that it has an institutional interest in policing and preserving the integrity of its own proceedings, regardless of their nature. As a result, the Board reversed the regional director’s ruling and ordered him to reconsider the employer’s motion and conduct any investigation deemed necessary in order to decide the motion.

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