Joel I. Keiler

National Labor Relations Board - Board Decisions

Mar 15, 1995

316 N.L.R.B. 763 (N.L.R.B. 1995)

763
316 NLRB No. 121
JOEL I. KEILER
1 Sec. 102.44 provides, in relevant part, as follows:
(a) Misconduct at any hearing before an administrative law
judge or before the Board shall be ground for summary exclu-
sion from the hearing.
(b) Such misconduct of an aggravated character, when en-
gaged in by an attorney or other representative of a party, shall
be ground for suspension or disbarment by the Board from fur-
ther practice before it after due notice and hearing.
2 The Board directed Judge Boyce to issue his decision in the un-
fair labor practice proceeding (Case 28–CA–9902) before ruling on
the motion to discipline. On January 29, 1993, Judge Boyce issued
his decision in the unfair labor practice proceeding. On September
24, 1993, the General Counsel, on behalf of the parties, filed a joint
motion requesting withdrawal of the exceptions filed by the Charg-
ing Party and the Respondent and cross-exceptions filed by counsel
for the General Counsel, and advising that the parties had entered
into a collective-bargaining agreement as well as a settlement agree-
ment remedying the unfair labor practices. On October 4, 1993, the
Board granted the joint motion and remanded the proceeding to the
Regional Director for Region 28 for further appropriate action.
3 As noted above, the Board vacated Judge’s Boyce’s order enti-
tled ‘‘Declination to Rule’’ and remanded to the judge for ‘‘prepara-
tion of a decision on the matters raised in the General Counsel’s mo-
tion to discipline.’’
The Board’s remand anticipated issuance of a fully articulated de-
cision by the judge ruling on matters raised in the General Counsel’s
motion to discipline. We deplore Judge Boyce’s failure to follow
what was implicit in the order remanding and his choice to limit
himself to a summary denial of the General Counsel’s motion.
In re: Joel I. Keiler. Case AD–3
March 15, 1995
DECISION AND ORDER
CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
The issue in this case is whether Joel I. Keiler, the
attorney for the respondent at a hearing before Admin-
istrative Law Judge Richard J. Boyce in Barbary Coast
Hotel and Casino, Case 28–CA–9902, et al., engaged
in ‘‘misconduct of an aggravated character’’ warrant-
ing discipline under Section 102.44(b) of the National
Labor Relations Board’s Rules and Regulations.1 For
the reasons set forth below, we find that Keiler com-
mitted such misconduct and that a suspension from
practicing before the Board for a period of 1 year is
warranted. We further find, for the reasons which fol-
low, that Keiler has raised no issues of fact or law that
require the Board to remand this matter for a hearing.
I. BACKGROUND
During the hearing in Barbary Coast, counsel for
the General Counsel filed with Judge Boyce a motion
to discipline respondent’s attorney, Joel I. Keiler, re-
questing that the judge recommend to the Board that
Keiler be disciplined in accord with Section 102.44 of
the Board’s Rules and Regulations. On February 12,
1992, Judge Boyce issued an ‘‘Invitation to Show
Cause’’ why the General Counsel’s motion should not
be granted. On August 6, 1992, after considering state-
ments in opposition filed by Keiler on May 7 and 26,
1992, along with further responses from counsel for
the General Counsel and Keiler, Judge Boyce issued
an order entitled ‘‘Declination to Rule’’ in which he
declined to rule on the motion because, inter alia, (1)
the Rules do not require that the judge rule; (2) the
motion ‘‘raises issues of profound importance to Mr.
Keiler’s career and professional reputation,’’ the eval-
uation of which ‘‘would demand the utmost in thor-
oughness and informed sensitivity,’’ and would ‘‘con-
sume lavish amounts of time’’; (3) the policies of the
Act would be better served by the issuance of a deci-
sion on the merits; and (4) only the Board can impose
the sanctions sought by the General Counsel.
On September 14, 1992, counsel for the General
Counsel filed a ‘‘Motion for Special Permission to Ap-
peal Administrative Law Judge’s Declination to Rule.’’
The motion argued that as the trier of fact the judge
is ‘‘uniquely situated’’ to evaluate the motion with in-
formed sensitivity inasmuch as he presided over the
hearing; and that the judge is in the best position to
understand the nuances as well as the context of the
incidents involved. The General Counsel requested that
the Board reverse the judge and direct him to consider
and rule on the General Counsel’s motion.
On October 15, 1992, after considering opposition
from Keiler, the Board granted the General Counsel’s
motion, vacated the judge’s order, and remanded to
Judge Boyce for the ‘‘preparation of a recommended
decision and order on the matters raised in the General
Counsel’s motion to discipline.’’2
On December 30, 1993, more than a year later,
Judge Boyce ruled on the General Counsel’s motion to
discipline. Providing only a brief chronological account
of the attorney-discipline matter, Judge Boyce, without
providing any rationale or discussion of the issues in-
volved, issued a one-line ruling, to wit: ‘‘I hereby deny
the General Counsel’s motion.’’ Two days later Judge
Boyce retired.3
II. THE GENERAL COUNSEL’S REQUEST FOR
SPECIAL PERMISSION TO APPEAL
On February 15, 1994, counsel for the General
Counsel filed a request for special permission to appeal
Judge Boyce’s ruling, contending that the Board’s
Order implicitly directed the judge to prepare a fully
articulated decision on the General Counsel’s motion
to discipline and that Judge Boyce ignored the Board’s
Order and failed to comply with the requirements of
Section 102.45(a) of the Board’s Rules and Regula-
tions. Accordingly, the General Counsel requests that
the Board grant the special appeal, reverse Judge
Boyce’s ruling, and transfer the matter to the Board for
the purpose of conducting a de novo review of the
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel requests that the Board review this matter
without conducting any further hearing because, in the General
Counsel’s view, a further hearing is unnecessary as Keiler has al-
ready had a full opportunity to respond, an opportunity he took ad-
vantage of by filing ‘‘several comprehensive responses and replies
. . . .’’
5 The administrative law judges named before whom Keiler ap-
peared are: Lowell Goerlich (two hearings), John West, Marvin
Roth, Claude Wolfe, and Gerald Wacknov.
record and issuing a decision on the motion to dis-
cipline.4
In support of his request, the General Counsel relies
on the motion to discipline filed with Judge Boyce on
February 4, 1992. As detailed therein, the General
Counsel’s motion to discipline rests on four basic
grounds:
(1) Ad hominem comments and scurrilous char-
acterizations of counsel for the General Counsel.
(2) Misuse of an affidavit provided to Keiler by
counsel for the General Counsel.
(3) Direction of a racial slur toward counsel for
the General Counsel.
(4) Misrepresentations to the judge and obstruc-
tion and delay of the hearing.
III. KEILER’S RESPONSE TO THE MOTION TO
DISCIPLINE
It is undisputed that Attorney Keiler responded to
the General Counsel’s motion to discipline, both on the
record and in the form of statements in opposition, and
he has done so both before Judge Boyce and after the
General Counsel renewed his motion before the Board.
Before Judge Boyce, Keiler filed an 11-page document
which addresses arguments raised in the motion to dis-
cipline.
Briefly summarized, Keiler argues that none of the
alleged ad hominem comments constitute misconduct
of an aggravated character; that in regard to the alleged
misuse of an affidavit, nothing in the Board’s Rules
and Regulations prohibits use of an affidavit for pur-
poses other than use in cross-examination and that the
Rules do not even require that the affidavit be returned
to the General Counsel; that the alleged ‘‘gross mis-
representation’’ regarding testimony as to the super-
visory status of Betty Bergsund is no misrepresentation
at all; that regarding another ‘‘gross misrepresenta-
tion’’ concerning the General Counsel’s position re-
garding impasse, it is the General Counsel who en-
gaged in the misrepresentation; that he did not make
a racial slur; and that the alleged obstruction of the
hearing involving Employer Representative Gaughan’s
failure to honor a subpoena was an attempt by the
General Counsel to obtain from the administrative law
judge a ruling the General Counsel was unsuccessful
in obtaining from the district court.
Keiler’s response to the General Counsel’s request
for special permission to appeal directs the Board’s at-
tention to six cases he has tried before other adminis-
trative law judges in the past 2 years, none of which
were the occasion for proposed sanctions.5 To the con-
trary, Keiler contends that Judge Goerlich ‘‘suggested
on several occasions that Keiler apply for upcoming
vacancies in the ALJ Division.’’ Keiler further argues
that the Board should affirm the administrative law
judge’s order but that ‘‘if Judge Boyce is to be second
guessed, then Keiler would like a hearing to present
the views of Judges Goerlich, West, Roth, Wolfe, and
Wacknov.’’
On July 26, 1994, the Board issued an order direct-
ing Keiler to show cause why he should not be sus-
pended from practice before the Board for 1 year
based on his conduct before Administrative law Judge
Richard Boyce. The Board’s Order put Keiler on no-
tice that any response ‘‘should set forth all arguments
raised in defense, and the specific evidence supporting
such arguments.’’
On August 29, 1994, Keiler, acting through counsel,
filed a response raising five arguments:
(1) The Fifth Amendment of the Constitution
and Section 102.44 require ‘‘a specification of the
acts of alleged misconduct and a hearing . . . .’’
(2) The notice to show cause fails to specify
which, if any, of the General Counsel’s assertions
the Board believes has merit.
(3) Counsel cannot prepare in the absence of a
specification of the charges against Keiler, par-
ticularly as to which conduct falls under Section
102.44(a) and conduct which is alleged to warrant
sanctions under Section 102.44(b).
(4) After being informed of the specific con-
duct in issue under Section 102.44(b) Keiler is en-
titled to a hearing ‘‘so he will be able to confront
the evidence and witnesses against him . . . .’’
(5) The notice to show cause is procedurally
defective in that the Board granted the General
Counsel’s request for special appeal notwithstand-
ing that the General Counsel only requested that
(a) the matter be transferred to the Board for de
novo review or (b) the matter be assigned and re-
manded to another administrative law judge.
IV. DISCUSSION
Having duly considered the entire record in this pro-
ceeding, we grant the General Counsel’s request for
special permission to appeal, and we transfer this mat-
ter to the Board for de novo review of the record and
issuance of a decision on the motion to discipline. In
the sections of our decision that follow, we will first
set forth the reason why there is no merit in Keiler’s
claim that he is entitled to an oral or trial-type hearing
765JOEL I. KEILER
6 See Eash v. Riggins Trucking, 757 F.2d 557, 570 (3d Cir. 1985);
In re Ming, 469 F.2d 1352, 1355–1356 (7th Cir. 1972).
7 See 4 Stein, Mitchell, and Mezines, Administrative Law (herein-
after Administrative Law) Sec. 42.04[1] (‘‘The application of due
process protections [to Agency disciplinary proceedings] is virtually
uncontested since divesting an attorney, by disbarment or suspen-
sion, of the ability to practice constitutes the ‘deprivation of a valu-
able right.’’’) See also Goldsmith v. Bd. of Tax Appeals, 270 U.S.
117, 123 (1926).
8 See Sec. 102.44(b) and Sec. 102.66(d)(2) (‘‘[M]isconduct of an
aggravated character, when engaged in by an attorney or other rep-
resentative of a party, shall be ground for suspension or disbarment
by the Board from further practice before it after due notice and
hearing.’’).
9 Eash, supra, 757 F.2d at 571.
10 See id. (‘‘In some cases, it may be that the record developed
at the time of the alleged misconduct will, itself, satisfy this need
[for a record on review] as long as the attorney has been afforded
an opportunity to adduce the relevant facts.’’).
11 Administrative Law, supra, note 7, Sec. 42.04[2].
12 See ABA Model Rules for Lawyer Disciplinary Enforcement
(state courts), Rule 11(D)(4), Lawyers Guide for Professional Mis-
conduct (ABA/BNA) 01:609 (‘‘If there are any material issues of
fact raised by the pleadings or if the respondent requests the oppor-
tunity to be heard in mitigation, the [hearing committee] [board]
shall serve a notice of hearing upon disciplinary counsel and the re-
spondent . . . .’’); and American Bar Association Model Federal
Rules of Disciplinary Enforcement (Federal courts), Rule V(D),
Lawyers Guide 01:704 (‘‘Upon the respondent-attorney’s answer to
the order to show cause, if any issue of fact is raised or the respond-
ent-attorney wishes to be heard in mitigation this Court shall set the
matter for prompt hearing . . . .’’). See also Eash v. Riggins Truck-
ing, supra, 757 F.2d at 571 (noting in remanding case that in that
case the attorney by affidavit had disputed the factual predicate on
which the court’s order was based).
13 See Southern Florida Hotel & Motel Assn., 245 NLRB 561 fn.
5 (1979); Maietta Contracting, 265 NLRB 1279 (1982); and Blake
Construction Co., 245 NLRB 630 fn. 1 (1979).
14 In his response to the Notice to Show Cause, Keiler stated: (1)
the Fifth Amendment of the Constitution and Sec. 102.44 require ‘‘a
specification of the acts of alleged misconduct and a hearing’’; (2)
the Notice to Show Cause fails to specify which, if any, of the Gen-
eral Counsel’s assertions the Board believes has merit; (3) counsel
cannot prepare in the absence of a specification of the charges
against Keiler, particularly as to which conduct falls under Sec.
102.44(a) and conduct which is alleged to warrant sanctions under
Sec. 102.44(b); (4) after being informed of the specific conduct in
issue under Sec. 102.44(b) Keiler is entitled to a hearing ‘‘so that
he will be able to confront the evidence and witnesses against him
. . . .’’
in this matter. After reviewing prior instances of mis-
conduct on Keiler’s part, we will proceed to examine
the four main grounds asserted by the General Counsel
as the basis for his motion to discipline.
A. Whether the Board Must Remand for a
Disciplinary Hearing Before Imposing Sanctions
It is well established that the courts must provide
reasonable notice and an opportunity for hearing be-
fore suspending or disbarring an attorney,6 and both
due process7 and the Board’s own Rules8 require that
the Board do so. Such procedural safeguards (1) ensure
that the attorney has an adequate opportunity to ex-
plain his conduct; (2) afford the disciplinary authority
adequate time to evaluate the propriety of the particu-
lar sanction in light of the attorney’s explanation, and
to consider alternatives; and (3) provide a record for
appellate review.9
However, a separate disciplinary hearing is not auto-
matically required if the attorney has been afforded an
opportunity in the underlying proceeding in which the
alleged misconduct occurred to adduce the relevant
facts, and the record from that proceeding is adequate
for review.10 Further, an attorney may waive any right
to a disciplinary hearing, either expressly or implicitly,
by failing to respond.11 The ABA Model Rules con-
cerning attorney discipline indicate that a hearing may
also be dispensed with where the answer or response
to a show cause order fails to raise any material factual
issues and does not request an opportunity to be heard
in mitigation.12
Based on the above, we believe that sanctions, in-
cluding suspension, can be imposed on Keiler without
further hearing because:
(1) Keiler’s alleged misconduct occurred on the
record of the unfair labor practice proceeding.
(2) Keiler has been given and taken advantage
of several opportunities, both on the record at the
unfair labor practice hearing, to explain his con-
duct, and any reasons for mitigation if misconduct
is found, and his explanations are also contained
in the record now before the Board.
(3) Keiler’s defenses as set forth in the record do
not dispute that the alleged conduct occurred, but
only the General Counsel’s interpretation of such
conduct.
Although Keiler has specifically requested a hearing
in his opposition to the General Counsel’s special ap-
peal, he has apparently done so solely to present testi-
mony concerning his good trial manners from several
administrative law judges before whom he has ap-
peared in the last 2 years. Such testimony might argu-
ably be relevant regarding mitigation (i.e., as tending
to show that his conduct in Barbary Coast was isolated
and/or that he generally has a good reputation). As dis-
cussed infra, however, Keiler’s history of misconduct
in Board proceedings is so well documented in other
published Board decisions that his conduct in Barbary
Coast cannot reasonably be viewed as an isolated ex-
ception to a record of otherwise exemplary behavior.13
Finally, Keiler’s response to the Notice to Show
Cause raises no evidentiary or procedural issues that
require a hearing. Thus, responses (1) through (4)14 are
essentially variations on a theme: the Notice to Show
Cause fails to apprise him of the conduct against
which he must defend himself. In the context of the
instant case, Keiler misapprehends the purpose of the
Notice to Show Cause issued by the Board and accept-
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Black’s Law Dictionary (p. 1549) defines a show cause order
as ‘‘an order . . . to appear as directed, and present to the court
such reasons and considerations as one has to offer why it should
not be confirmed, take effect, be executed or as the case may be.’’
16 See sec. VI,B, infra.
17 As set forth above under ‘‘Background,’’ on October 15, 1992,
the Board granted the General Counsel’s initial request for special
permission to appeal the administrative law judge’s order declining
to rule on the General Counsel’s motion to discipline filed before
Judge Boyce while the hearing was in progress.
18 We also note that in 1977 the D.C. court of appeals suspended
Keiler for 30 days based on the ground that he secretly hired his
partner as an arbitrator and portrayed him as having a Florida ad-
dress. In the Matter of Keiler, 380 A.2d 119 (D.C. Court of App.
1977).
19 This case was heard from August 7, 1990, through July 17,
1991, and resulted in a record of more than 3000 pages.
ing Keiler’s logic would stand the Board’s Order on its
head.15
Contrary to his self-serving response to the show
cause order, Keiler has been apprised of the conduct
in issue, not once, but twice: first, when the motion to
discipline was filed before the administrative law judge
in 1992 during the hearing; and second, when it was
renewed before the Board after the administrative law
judge summarily denied the General Counsel’s motion
to discipline on December 31, 1993. More importantly,
Keiler also responded (or had the opportunity to do so)
on the record at the unfair labor practice hearing to the
allegations raised in the General Counsel’s motion.16
Finally, response (5), which alleges that the Notice
to Show Cause is procedurally defective because the
‘‘Board granted the General Counsel’s request for spe-
cial appeal’’ is both frivolous and untrue. Suffice it to
say that, until now, the Board has neither granted the
request for special permission to appeal nor ruled on
the merits thereof.17
In such circumstances, we find that, even if it is
true, as Keiler claims, that he exhibited good trial man-
ners in the recent cases he cites, Keiler has raised no
issues warranting a further hearing in this matter.
B. Prior Misconduct Cases Involving Keiler
Because Attorney Keiler is no stranger to proceed-
ings involving alleged misconduct before the Board,
such proceedings provide an appropriate backdrop
against which to judge the specific allegations involved
in the motion to discipline.
In 1979, the Board expressed its ‘‘strong dis-
approval’’ of Keiler’s ‘‘unprofessional and unseemly
remarks, particularly his comments claiming senility of
the Administrative Law Judge . . . .’’ Southern Flor-
ida Hotel & Motel Assn., 245 NLRB 561 fn. 6 (1979).
Three years later, in Maietta Contracting, 265
NLRB 1279 (1982), the Board considered Keiler’s ar-
gument that Administrative Law Judge George Nor-
man was biased against the respondent and Keiler’s at-
tack on Judge Norman’s competence. Keiler’s brief in
support of respondent’s exceptions contained a litany
of alleged improprieties committed by the administra-
tive law judge and also alleged improper conduct on
the part of the General Counsel.
In denying Keiler’s exceptions, the Board observed:
We have carefully considered the record and
find Respondent’s charges to be entirely without
merit. In fact, we believe that these charges may
be an attempt to distract the Board from Respond-
ent’s own illegal conduct. Moreover, we are by
now all too familiar with Respondent’s attorney
Joel I. Keiler’s groundless accusations against ad-
ministrative law judges. See Southern Florida
Hotel & Motel Association, and its employer-
members, The Estate of Alfred Kaskel d/b/a Car-
illon Hotel; The Estate of Alfred Kaskel d/b/a
Doral Hotel and Country Club; The Estate of Al-
fred Kaskel d/b/a Doral Beach Hotel, 245 NLRB
561, fn. 6 (1979), wherein the Board found that
Keiler made ‘‘unprofessional and unseemly re-
marks’’ which were ‘‘totally inappropriate and
uncalled for’’; and Blake Construction Co., Inc.,
M & S Building Supplies, Inc., 245 NLRB 630,
fn. 1 (1979), in which the Board found Respond-
ent’s ‘‘various contentions regarding the bias and
competency of the Administrative Law Judge’’ to
be without merit. At this point, we are beginning
to grow weary of responding to Keiler’s disingen-
uous cries of ‘‘wolf.’’ Moreover, we find that
Keiler behaved inappropriately and unprofession-
ally throughout the hearing, and that the Adminis-
trative Law Judge’s constant need to reprimand
him unnecessarily prolonged this case. However,
we will not at this time sua sponte institute dis-
ciplinary proceedings against Keiler. We trust
that, in his subsequent appearances before the
Board, it will be unnecessary for us to consider
doing so. [Emphasis added.]18
Against this well-documented background of inap-
propriate and unprofessional conduct, we turn our at-
tention to the specific conduct which forms the basis
for the General Counsel’s motion to discipline in this
proceeding. We consider each allegation in turn.
C. The General Counsel’s Motion to Discipline
1. Ad hominem comments and scurrilous
characterizations of the General Counsel
As set forth in the motion to discipline and estab-
lished by the record, at various times during the Bar-
bary Coast hearing19 Keiler directed the following re-
marks at counsel for the General Counsel, Cornele
Overstreet:
767JOEL I. KEILER
20 See addendum to Supreme Court of Delaware’s decision in
Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34
(Feb. 4, 1994). During depositions in Paramount, one of the attor-
neys engaged in conduct which the Supreme Court of Delaware
characterized as demonstrating ‘‘such an astonishing lack of profes-
sionalism and civility that it is worthy of special note . . . as a les-
son for the future—a lesson of conduct not to be tolerated or re-
peated.’’ Id. at 52. Like the court in Paramount, we find Keiler’s
‘‘unprofessional behavior to be outrageous and unacceptable.’’ 637
A.2d at 52.
21 Johnson v. Trueblood, 476 F.Supp. 90, 96 E.D. Pa. (1979), va-
cated on other grounds 629 F.2d 302 (3d Cir. 1980).
22 U.S. v. De Geratto, 876 F.2d 576 (7th Cir. 1989).
We do not, however, rely on the General Counsel’s allegation that
Keiler referred to a witness as a ‘‘Nazi Moron,’’ an incident which
provides perhaps the only levity, albeit unintentional, to be found in
this otherwise dreary hearing.
This allegation arose in the context of redirect examination by
counsel for the General Counsel of Union Representative Mitch
Streeter. During the course of examining Streeter, the General Coun-
sel reviewed Streeter’s prior testimony regarding ‘‘the union inform-
ing the police about security guards bumping individuals on the
picket line . . . .’’ In explaining how this information was conveyed
to the police, Streeter testified that ‘‘I approached one of the intel-
ligence plain clothes officers from Metro by name of Rance
Reddick.’’ When asked how he knew Reddick was with the police
department, Keiler interposed: ‘‘move to strike: Nazi Moron, Your
Honor.’’
In context, it seems clear that Keiler’s idea of humor is to suggest
that ‘‘intelligence plain clothes officers’’ is an ‘‘oxymoron’’ and that
the word was erroneously transcribed as ‘‘Nazi Moron’’ by the court
reporter. We find that this allegation does not provide a basis for
disciplinary action.
He’s [Overstreet’s] a liar. He lied to the Board.
He’s lied to me. Your Honor, you’ve chastised me
very often for calling this gentleman [Overstreet]
a liar. I’m doing it again. I think that Mr. Over-
street has committed a fraud upon the Court.
Keiler’s attack on Overstreet led to the following
discussion:
MR. KEILER: Well, Your Honor, my contention
is Counsel for the General Counsel is clearly try-
ing to pull the wool over the eyes of the NLRB
and the wool is only—is 45 percent rayon.
JUDGE BOYCE: Well, you’ve tried to make the
point throughout this hearing that sleaze is Mr.
Overstreet’s stock in trade, and I just don’t buy
it.
MR. KEILER: I don’t know about his stock and
trade other than this case. This is the first time
I’ve been involved with Mr. Overstreet. That’s
certainly my contention in this case, yes, Your
Honor.
On another occasion, after the administrative law
judge suggested to counsel for the General Counsel
Overstreet that he sometimes suffered from an ‘‘excess
of courtesy,’’ Keiler remarked, ‘‘When you don’t tell
the truth, you have to do something else.’’ In response,
Judge Boyce told Keiler: ‘‘[T]hat’s a cheap shot, it’s
really unwarranted.’’
At another time Keiler stated: ‘‘Your Honor, you’ve
chastised me very often for calling this gentleman
[Overstreet] a liar. I’m doing it again.’’ Responding to
the General Counsel’s motion to warn Keiler to refrain
from any further misconduct, Keiler stated: ‘‘It is true
that I have called Mr. Overstreet a liar, the record is
replete with it. Clearly I can’t deny it. But clearly truth
is a defense.’’
As detailed above, it is undisputed that Keiler re-
peatedly referred to counsel for the General Counsel
Overstreet as a ‘‘liar’’ even after being ‘‘chastised’’
(Keiler’s word) by the administrative law judge, and
accused Overstreet of having ‘‘committed a fraud upon
the Court.’’ Keiler’s repeated accusations that opposing
counsel is a ‘‘liar,’’ coupled with his admission that he
has been ‘‘chastised’’ by the trial judge for doing so,
obviate any suggestion that Keiler’s accusations were
provoked or represented a one-time response in a mo-
ment of pique. Rather, the more reasonable inference,
and one which we draw, is that Keiler’s conduct was
an intentional and calculated effort to intimidate op-
posing counsel.
Such conduct has been condemned by other tribu-
nals.20 If the judicial process is to function properly,
certain basic ground rules are essential, not the least of
which is that a lawyer should avoid ‘‘unfair or deroga-
tory personal references to opposing counsel.’’21 Re-
peatedly labeling opposing counsel as ‘‘a liar’’ and ac-
cusing him of committing ‘‘a fraud upon the court’’
certainly meets the definition of the term ‘‘deroga-
tory.’’22 Accordingly, we find that Keiler’s misconduct
is ‘‘aggravated’’ and warrants the imposition of sanc-
tions under Section 102.44(b) of the Board’s Rules.
2. Misuse of an affidavit provided to Keiler by
the General Counsel
The alleged inappropriate use of an affidavit oc-
curred the day after Keiler was provided with a copy
of Union Business Representative Julie Pearlman’s
February 2, 1990 affidavit. On December 7, 1990,
Keiler filed with the U.S. district court, where a related
10(j) proceeding was being heard, an amendment to
Respondent’s opposition to petition for injunction. The
business representative’s affidavit was attached to
Keiler’s opposition.
The General Counsel contends that Section
102.118(b)(2) of the Board’s Rules and Regulations
limits affidavits provided by the General Counsel to
use in cross-examination. We note, however, that the
NLRB Casehandling Manual (Part I) Unfair Labor
Practice Proceedings, Section 10394.11, specifically
provides that counsel may retain the affidavit until the
hearing is closed and utilize it ‘‘for legitimate trial pur-
poses.’’ In the circumstances of this case, and because
the 10(j) proceeding is arguably related to the hearing
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 See the Oxford English Dictionary, Second Edition, 1989 (p.
288) and the New Dictionary of American Slang (p. 388) where
‘‘shuckin’ and jivin’’’ is defined as ‘‘fooling,’’ ‘‘fooling around,’’
etc., or as one author used the term: ‘‘For many blacks, ‘shucking’
and jiving’ is a survival technique to avoid and stay out of trouble.’’
Judge Boyce, while acknowledging his lack of expertise, held that
‘‘I am not convinced that Mr. Keiler’s use of that term was in any
way prompted by your [Overstreet’s] being black.’’
24 Counsel for the General Counsel stated on the record that this
allegation was included on specific instructions from the Regional
Director and the Regional attorney.
25 In a motion for a continuance, dated August 6, 1990, and ad-
dressed to Deputy Chief Administrative Law Judge Earldean Rob-
bins, Keiler alluded to a subpoena duces tecum served on a ‘‘non-
existent person.’’
before the Board on the merits, we find that this alle-
gation provides no basis for disciplinary action.
3. Direction of a racial slur toward counsel for the
General Counsel
The alleged racial slur directed toward counsel for
the General Counsel Overstreet, who is black, occurred
in the course of a colloquy before Judge Boyce during
which Keiler believed that counsel for the General
Counsel had made an offer which Keiler had accepted.
When Overstreet disagreed, Keiler stated: ‘‘He made
the offer[.] I took him [up] on it, and now he’s back
tracking. He[’s] shucking and jiving23 as fast as he
can.’’
In response to this allegation, Keiler, professing em-
barrassment to go into the matter, denied that
‘‘shuckin’ and jivin’’’ is a racist remark. He then pro-
ceeded to ‘‘parade out [his] credentials,’’ including
taking a day off to participate in Martin Luther King’s
March on Washington, contributions to the NAACP
Legal Defense Fund, and attendance at NAACP meet-
ings with Deputy Chief Administrative Law Judge
Earldean Robbins.
Whether Keiler’s use of the phrase ‘‘shuckin’ and
jivin’,’’ directed toward a black attorney, rises to the
level of a racial epithet presents a close issue. How-
ever, for the reasons which follow, we do not rely on
this as a ground for disciplinary action.
While Keiler’s testimony may be self-serving, we
note that counsel for the General Counsel Overstreet
did not object to Keiler’s remark, either when it was
made, or after Keiler responded when the motion to
discipline was considered by Judge Boyce.24 On bal-
ance, we do not rely on this allegation.
4. Obstruction and delay of the hearing and
misrepresentations to the administrative law judge
The hearing in Barbary Coast opened on August 7,
1990. During the week before the hearing opened, the
General Counsel sought to serve a subpoena duces
tecum on Michael John Gaughan, respondent’s manag-
ing partner, seeking production of a variety of docu-
ments. A receipt showing service was signed by the re-
spondent’s general manager, Leo Lewis. Respondent
Counsel Keiler filed a petition to revoke. When asked
by Judge Boyce if he was contending that the sub-
poena was never received, Keiler responded: ‘‘No, I’m
contending the subpoena was made out to a person,
G-U-A-G-H-A-N, there is no such person.’’25 When
the judge suggested that Keiler knew the person to
whom the subpoena referred to and that the ‘‘A’’ and
the ‘‘U’’ were transposed, the following colloquy took
place:
KEILER: I might have—I might have to guess,
but why should I have to guess? This doesn’t
sound like the subpoena.
JUDGE BOYCE: Well, that’s—that’s trifling. You
really don’t advance your adversarial thrust by
making that argument . . . .
KEILER: Well, I’m making that argument. I
wish to preserve it for the Court of Appeals.
In the afternoon session, Keiler adhered to his position
and renewed his petition to revoke.
KEILER: I know you’ve made some remarks
concerning my argument this morning, but I
renew them. The name listed in the complaint is
not the name on the subpoena.
JUDGE BOYCE: Well, would you—for the
record—would you elaborate.
KEILER: Yes. There is a name in the com-
plaint—Michael Gaughan.
JUDGE BOYCE: Which is the correct spelling, is
it not?
After taking Keiler through the spelling in the com-
plaint and in the subpoena, Judge Boyce asked:
And you have no idea who that refers to; is that
what you’re telling me?
KEILER: I’m telling you I have no idea who
G-U-A-G-H-A-N this is.
JUDGE BOYCE: Well, I think I’m telling you
that that’s palpably frivolous. It’s an absurd argu-
ment.
It really doesn’t serve you or your client well
to make that kind of argument, Mr. Keiler. We
might as well get that straight right here and now.
Let’s get off this petty, frivolous baloney and start
dealing with substance. It’s really absurd. And I
know this morning you said—well, you wanted to
make your record for some reviewing authority.
I can tell you that none—if you presented that
kind of argument to a certain court, they would
hoot you out; they would totally destroy your
credibility as an advocate. As I say, you disserve
yourself and your client immensely. And you just
don’t do that to yourself and then don’t burden
769JOEL I. KEILER
26 In support of his claim of ‘‘gross misrepresentations’’ to Judge
Boyce, the General Counsel argues that Keiler told the judge that
GCX 86, an exhibit the General Counsel was handing to a witness,
was a ‘‘fraudulent document.’’ Other matters raised as misrepresen-
tations involve a dispute as to whether Keiler claimed that a union
representative had testified that he did not return to the employer’s
premises after an altercation with Employer President Gaughan,
whether Keiler misrepresented to the judge that the General Counsel
had conceded that there was a firm and final offer from the respond-
ent, whether Keiler misrepresented the judge’s view of testimony by
witness Mendoza, and whether Keiler misrepresented a Nevada stat-
ute as providing that ‘‘anything in the newspapers is prima facie ac-
curate’’ whereas the statute actually states that ‘‘printed materials
purporting to be newspapers or periodicals are presumed to be au-
thentic.’’
Continued
this forum with this kind of stuff. We don’t have
time for it.
We agree wholeheartedly with Judge Boyce’s com-
ments. Filing a petition to revoke a subpoena based on
a typographical error goes far beyond the bounds of
fair advocacy. As the judge stated, Keiler’s argument
was ‘‘absurd’’ and ‘‘frivolous.’’ Keiler’s conduct con-
stitutes nothing less than a blatant attempt to obstruct
and delay the unfair labor practice hearing.
Although finally appearing at the hearing and testi-
fying on August 7, 1990, Gaughan produced only a
portion of the documents requested in the subpoena.
Keiler initially offered no specific grounds for revoca-
tion and, as a result, much of the first day of the hear-
ing required dealing with objections raised by Keiler.
Among the matters in dispute was paragraph 15—a
‘‘list’’ of the rates of pay of employees in each of the
respondent’s job classifications on various dates.
The parties appeared to resolve this dispute when
Keiler declared that he was ‘‘never going to be arguing
about it again’’ and stated that the General Counsel
‘‘was going to get exactly what [he] asked for . . . .’’
When the hearing resumed on September 17, 1990,
however, Keiler failed to provide the promised list, in-
formed the judge that no such list existed, and took the
position that the Respondent had ‘‘no duty to make
lists.’’ Keiler provided no explanation for first promis-
ing to provide the list and later denying the existence
of the list.
A second subpoena served on the respondent in No-
vember 1990 requested production of a variety of doc-
uments, including Keiler’s notes from collective-bar-
gaining negotiations with the Union. On December 4,
1990, Judge Boyce denied the respondent’s petition to
revoke ‘‘in toto’’ whereupon Keiler informed the judge
that he ‘‘would comply with the order and it would be
at the earliest convenience.’’ Although Judge Boyce
directed the Respondent to ‘‘comply fully’’ with the
subpoena not later than the close of business on De-
cember 14, 1990, the respondent failed to comply.
When the hearing resumed on January 15, 1991, Keiler
announced: ‘‘I have not complied with the subpoena
[duces tecum].’’ Again, Keiler provided no explanation
for first promising to comply with the subpoena and
later announcing that he has not complied.
Keiler’s tactics forced the General Counsel to apply
to the district court for enforcement, which was grant-
ed March 13, 1991. But it was not until the last day
of the hearing, July 17, 1991, 7 months after Judge
Boyce directed him to comply, that Keiler supplied the
General Counsel with his bargaining notes.
Keiler also prolonged the hearing by refusing to ver-
ify subpoenaed documents, an action that produced the
following observation from Judge Boyce:
I’ve never, uh, I don’t mean to sound like an
old man that has been doing this forever, but in
all my time as a judge I’ve never encountered this
kind of reluctance on the part of a producing
party to at least verify that, ‘‘yes’’ I did produce
these things. It prolongs things pointlessly, in my
view, and it is really regrettable.
. . . .
But I really think that this sort of thing is ob-
structionist. It serves no short o[r] long term pur-
pose.
. . . .
It imposes an economic fee burden on your cli-
ent this is, uh, pointless. I just don’t see any con-
structive purpose at all in this . . . .
In agreement with the trial judge in this case, we
find that Keiler’s conduct ‘‘prolong[ed] things point-
lessly,’’ that ‘‘this sort of thing is obstructionist’’ and
‘‘serves no constructive purpose at all.’’ The Board
does not, of course, suggest that a party served with
a subpoena has no right to move for revocation or to
force the General Counsel to seek enforcement before
the appropriate U.S. district court. However, given
Keiler’s failure to proffer any explanation for his con-
duct, we are constrained to conclude that Keiler was
motivated by nothing more than a desire to obstruct
and delay the hearing.
Keiler’s efforts to obstruct and delay the exercise of
the broad subpoena authority vested in the Board under
Section 11 of the Act are indefensible. A subpoena,
whether designed to secure testimony or the production
of relevant documents, is not a suggestion to appear
and provide requested evidence when mutually con-
venient; neither is it ‘‘an invitation to a game of hare
and hounds, in which the witness must testify only if
cornered at the end of the chase.’’ Hedison Mfg. Co.
v. NLRB, 643 F.2d 32, 34 (1st Cir. 1981), quoting U.S.
v. Bryan, U.S. 323, 331 (1950).
Accordingly, we find that Keiler’s obstruction and
delay of the hearing before Judge Boyce in Barbary
Coast constitutes ‘‘aggravated’’ misconduct and pro-
vides a basis for disciplining him under Section
102.44(b) of the Board’s Rules.26
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because of our findings on the allegations of obstruction and
delay, we find it unnecessary to pass on the alleged misrepresenta-
tions.
27 The Board’s admonition in Maietta followed on the heels of its
earlier condemnation of Keiler’s conduct at the hearing in Southern
Florida Hotel & Motel Assn., supra, 245 NLRB at 561 fn. 6.
V. Summary and Conclusion
In Maietta Contracting, supra, 265 NLRB at 1280,
the Board found that Attorney Keiler ‘‘behaved inap-
propriately and unprofessionally throughout the hear-
ing, and that the Administrative Law Judge’s constant
need to reprimand him unnecessarily prolonged this
case.’’27 Maietta also suggests that Keiler escaped fur-
ther sanctions only because the Board declined sua
sponte to institute disciplinary proceedings against him.
At a minimum, Maietta placed Keiler on notice that he
proceeded at his peril if he engaged in further mis-
conduct.
Prior warnings and admonitions clearly have made
no impression on Keiler and, indeed, have had little,
if any, effect on his behavior before the Board. To the
contrary, Keiler has blatantly ignored prior warnings
and admonitions and chosen to pursue the same course
of unprofessional, inappropriate, and unethical conduct
which has marked his appearance in other cases before
this Agency.
We have found above that at the hearing in Barbary
Coast Keiler engaged in two kinds of ‘‘misconduct of
an aggravated character’’ under Section 102.44(b).
First, Keiler repeatedly and intentionally labeled coun-
sel for the General Counsel a ‘‘liar’’ and accused him
of committing ‘‘a fraud upon the Court.’’ Second,
Keiler engaged in tactics that had no apparent purpose
other than to obstruct and delay the unfair labor prac-
tice hearing. We conclude that such behavior is out-
rageous and totally unacceptable in Board proceedings.
We are no longer willing, as we have in the past, to
limit our expressions of disapproval to a warning or
admonition to refrain from such conduct in the future.
Keiler’s failure to heed prior warnings and admoni-
tions persuades us that the time has come to impose
stronger disciplinary action which, we trust, will drive
home to Keiler a simple and straightforward message:
the Board will no longer tolerate the type of mis-
conduct that marked Keiler’s appearance before the ad-
ministrative law judge in this case.
Lest there be any doubt in Mr. Keiler’s mind about
how seriously the Board takes this matter and how de-
termined we are that conduct of this type will not be
tolerated in Board proceedings, we find, based on the
record as a whole in this case, that Keiler’s ‘‘aggra-
vated misconduct’’ warrants a 1-year suspension from
practice before the Board.
ORDER
It is ordered that, effective immediately, Attorney
Joel I. Keiler is suspended from practice before the
Board for a period of 1 year.