Roy T. Rhodes

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roy T. Rhodes and John H. Doesburg. May 26,196.5' DECISION AND ORDER On November 3, 1964, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in misconduct of an aggravated character at a hear- ing before a Trial Examiner and before the National Labor Relations Board,' and recommending that the Respondents be suspended from practice before the Board as counsel or other representatives, or from aiding or assisting any party in any matter ptnding before the Board or before its Regional Offices, for a period of 6 months. The Trial Examiner's Decision is attached. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire rec- ord in this matter, including the Trial Examiner's Decision and the Respondents' exceptions and brief, and hereby adopts the findings, conclusions,2 and recommendations of the Trial Examiner. ORDER The National Labor Relations Board hereby orders that the Respondents, Roy T. Rhodes and John H. Doesburg, be, and they 'Section 102.44 ( a) and ( b) of the Board's Rules and Regulations , Series 8, as amended, provides. (a) Misconduct at any hearing before a trial examiner or before the Board shall be ground for summary exclusion from the hearing (b) Such misconduct of an aggravated character , when engaged in by an attorney or other representative of a party, shall be ground for suspension or disbarment by the Board from further practice before it after due notice and hearing 2 The Respondents , at a Board hearing, obtained possession of a file belonging to the General Counsel , had photostatic copies made of the file and its contents , and introduced two of the photostats into evidence at the hearing . The Respondents contend that, as the photostats were prepared outside of the hearing room , and their only conduct with reference to this file which occurred before the Trial Examiner was the introduction of documents which were admissible in evidence , they had engaged in no misconduct before a Trial Examiner within the meaning of Section 102 .44 of the Board's Rules. We find no merit in this contention . This Respondents ' entire course of misconduct, which followed the removal of the file from the hearing room, was intimately connected with the hearing then in progress before Trial Examiner Frey, and was thus clearly encom- passed within the Board 's Rules. Moreover , even if the Board's Rules were applicable only to misconduct which occurs at a hearing in the physical presence of a Trial Examiner, the Respondents ' Introduction of the photostated documents clearly occurred at a hear- ing in the physical presence of a Trial Examiner . The fact that the documents were admissible does not excuse the Respondents ' conduct in converting to their own use documents which they knew belonged to other counsel in a Board proceeding , without the permission or even the knowledge of such counsel. 152 NLRB No. 101. ROY T. RHODES 913 hereby are, suspended from practice before the Board, as counsel or other representatives, for a period of 6 months from the date of this Order. MIEMBER ZAcotmIA took no part in the consideration of the above Deci- sion and Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On April 3, 1964, the Board, by Order, directed that a hearing be held before a Trial Examiner for the purpose of receiving evidence concerning alleged misconduct of Attorneys Roy T. Rhodes and John H. Doesburg, the Respondents herein, with respect to their use of certain confidential papers of the United States Government which had come into the possession of the Respondents. The Board further ordered that the Trial Examiner issue a decision containing findings of fact, conclusions of law, and recommendations with respect to the evidence adduced at the hearing. A copy of the Board's Order is attached and marked "Appendix A." Upon due notice a hearing, in accordance with the Board Order, was held before Trial Examiner Charles W. Schneider at Tallahassee, Florida, on June 9, 1964. The Respondents appeared pio se. Pursuant to authorization of the Board contained in its order directing hearing, appearances of counsel were entered on behalf of the Board to assist me to obtain a full and complete record.1 All parties participated fully in the hearing, and were afforded opportunity to present and to meet relevant and material evidence Oral argument was held upon the record. On July 9 and 10, 1964, Respondents Rhodes and Doesburg, respectively, each filed a memorandum with me in the nature of a brief. These have been considered. Upon the basis of the admitted facts, the entire record in the case, and my obser- vation of the witnesses, I make the following: FINDINGS OF FACT The Respondents Respondent John H. Doesburg, a resident of Chicago, Illinois, and a member of the Illinois bar and the bars of other courts, was admitted to the practice of law in 1934. Respondent Roy T. Rhodes, a resident of Tallahassee, Florida, and a member of the Florida bar, was admitted to practice in 1950. Both Doesburg and Rhodes are expe- rienced practitioners before the Board; Doesburg since 1936. So far as the record discloses, the conduct of neither Respondent has heretofore been called into question in connection with the practice of the profession. Initiation of the Proceeding The proceeding was initiated by the request of Attorney Richard L. DeProspero, an attorney in the Tampa, Florida, Regional Office of the Board, on behalf of the General Counsel, for disciplinary action against the Respondents for improper con- duct, namely, the asserted appropriation of a case file of the General Counsel during the course of a hearing before a Trial Examiner of the Board. Attorney J. R. Gold- thwaite, Jr., joined in the request. The facts are as follows. The Rose Printing Company Hearing On August 13, 14, and 15, 1963, a hearing was held in Tallahassee, Florida, in the case of Rose Printing Company, Inc. (subsequently reported at 146 NLRB 638), involving an unfair labor practice charge and complaint to the effect that Rose Print- ing Company had refused to bargain with Tallahassee Typographical Union No. 660, affiliated with the International Typographical Union, AFL-CIO. In that proceeding Respondents Doesburg and Rhodes were counsel for Rose Printing Company. The General Counsel was represented by Attorney DeProspero, the Typographical Union by Attorney Goldthwaite. 1 Attorney J R. Goldthwaite , Jr, of Atlanta, Georgia, appeared as a witness , but slid not enter an appearance as counsel. 789-730-G G-vol 152-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel's File Among the General Counsel 's papers at the beginning of the Rose Printing Co. hearing, were some six or seven brown manila folders or files containing various material associated with the case . So far as the record discloses the General Counsel was the only person at either counsel table using files of such distinctive brown color. Among the General Counsel 's folders was one which bore, on a white label on its tab in penciled script, the words "Additional Material for Examination ." Above this title were several partially obliterated typewritten words which apparently originally read "CARNLEY (reinstatement) "-suggesting that the folder had previously been used in some other connection . The term "reinstatement" is one familiar to persons engaged in practice before the Board. This file contained a number of letters and other documents related to the Rose Printing Company case, supra . Among these was the original of a letter dated May 18, 1963, from Charles N Parris, president of Union 660 at the time of the events then involved , to Field Examiner Robert L. Lochner, Region 12, Tampa, Florida. This document was on the letterhead of Union 660 and had reference to the union's unfair labor practice charges previously filed Enclosed with and referred to in the letter was evidence of the union 's representation at Rose Printing Company, along with copies of correspondence , mainly intraunion, relating to the case. In addition to the above material and a number of miscellaneous documents, the file contained several pages of notes , some typewritten some handwritten , relating to the contract negotiations between Rose Printing Company and the union which had given rise to the unfair labor practice charges. A portion of this material was on plain paper ; some was on the letterhead of the International union bearing the name of W. Russell Waterson , an international representative of the union and a union spokesman in the contract negotiations . Though there was nothing in the file to indicate authorship of the notes , they were in fact Waterson's. Finally the file contained two letters more particularly described hereinafter. The First Day; Finding and Photostating of the File The Rose Printing Company hearing was held in the courtroom of the United States Courthouse building in Tallahassee, Florida-a typical Federal courtroom. Counsel were seated at two tables, each approximately 30 x 50 inches, separated by about 15 feet, and located in front of the bench. Respondents Doesburg and Rhodes accompanied by Charles Rosenberg, president of Rose Printing Company and a spokesman for the employers in the negotiations, sat at the table to the left of the bench, Messrs. DeProspero and Goldthwaite with Union Representative Waterson at the table to the right. The files and other papers of counsel and the parties were spread out on their respective tables The Respondents' table contained the files of three persons, Messrs. Doesburg, Rhodes, and Rosenberg During a recess on the morning of the first day of the hearing, counsel examined a number of proposed General Counsel exhibits, 20 to 30 in number, and stipulated to their admission in evidence In this connection Attorney DeProspero came to the table of Attorneys Doesburg and Rhodes carrying a file containing the proposed exhibits, after some discussion at Respondents' table counsel retired to the office of the clerk of court across the hall, where the examination was completed and agree- ment arrived at concerning admission of the material. Following the introduction of these exhibits, counsel for the General Counsel called as his first witness Local Union President Parris, who testified without interruption- save for recesses-until 5 p in., at which time the hearing was adjourned until 9.30 a.m. the next day, Wednesday. During the luncheon recess the courtroom was locked. During the course of the afternoon of the first day of the hearing, Rhodes became aware that the brown folder was on the Respondents' table. From time to time during the; rest of the afternoon it was shuffled back and forth across the table between counsel, but without examination I accept the testimony of the Respondents to the effect that, though they were in retrospect conscious of the strangeness of the file, they were not aware that it did not belong to someone associated with their cause. At the end of that day's session Rhodes and Doesburg collected their files from their counsel table, placed them in their briefcases, and left the courthouse. Doesburg left with Charles Rosenberg, Rhodes went directly to his office. Before separating the three agreed to meet later for dinner When Rhodes reached his office he opened his briefcase and took out his papers for review in preparation for the next day's proceedings. At this point he found and read the brown file of the General Counsel. The Respondents contend that one of the letters in the file-that from Union President Parris to Union Representative Waterson-was found to be inconsistent with the facts outlined by the General ROY T. RHODES 915 Counsel in his opening statement at the beginning of the hearing. In addition, another apparent letter in the file-from Union President Parris to President Rosen- berg of Rose Printing Company and dated April 22, 1963-appeared pertinent, according to the Respondents . In fact this item was a draft of a letter which Charles Parris had prepared but had never actually sent . The document bore a handwritten note in the upper left hand corner : "7/6/63 This was not mailed-R.W." 2 Copies of these two documents are attached and marked "Appendixes B and C." When Doesburg and Rosenberg returned , Rhodes told them of his discovery. The Respondents' testimony is that after examination they decided to make photostatic copies of the entire file and its contents , including the folder, and to use the two letters in the cross-examination of Union President Parris on the following day and put them in evidence . Rhodes testified that during the course of the evening the: entire file was examined .3 The Second Day; Submission of the Letters in Evidence The hearing resumed the next morning , Wednesday, at 9:30 a.m. with Doesburg cross-examining Union President Parris. During this examination , being of the view that the witness was not responding to the questions consistently with statements in the two letters, Respondent Doesburg offered photostatic copies of the letters into evidence. They were admitted without objection . This occurred prior to the noon recess. During the luncheon recess-though having no objection to the letters , which he considered as supportive of his position-General Counsel's Attorney DeProspero expressed puzzlement to Union Counsel Goldthwaite as to how the Respondents had come into possession of copies of the letters . Upon returning to the courtroom Attorney DeProspero searched through his papers for the brown file, and now found it missing. He then examined the copies of the letters in evidence and found that they bore markings which he recognized as having been made by himself. When Doesburg returned from lunch DeProspero asked him how he had come into possession of the exhibits . Doesburg responded that it was none of DeProspero's business . Either in that conversation or in another a few minutes later, DeProspero told Doesburg that the material had obviously come from his file, which was missing. Doesburg again declined to state how the exhibits had come into his possession , saying that he was not "going to look a gift horse in the mouth." Doesburg then accused DeProspero of suppressing evidence , taking improper legal positions , and engaging in unethical conduct. DeProspero asked if Doesburg knew where the file was. Does- burg did not give him an answer. When Trial Examiner Frey returned from lunch DeProspero related the events to him, and said that in his opinion the exhibits had come from his file. Trial Examiner Frey called a conference of counsel at the bench, off the record , and asked Doesburg whether he knew where the file was . Doesburg did not answer . Rhodes then spoke up and said that he had the file in his office, that he had found it among his papers on the previous day, that he did not know whose file it was, and that he had had its contents photostated. Trial Examiner Frey directed Rhodes to produce the file immediately. In a short period of time the file, along with multiple copies of the photostats, were brought from Rhodes' office. Trial Examiner Frey examined the file and then directed that it be returned to the General Counsel, along with all the photostatic copies. Rhodes stated that on examination of the file in his office he had found material which he thought relevant to the case, that he had discussed it with Doesburg, and that it had been decided to photostat the material. Rhodes and Doesburg denied knowing whose file it was. After hearing the statements of counsel, Trial Examiner Frey said that it was not clear that the file had been deliberately taken from the General Counsel's possession. However, he expressed the opinion that the action of Rhodes in retaining the file 2 That President Rosenberg had not received such a letter the Respondents were of course aware. 8 Thus Rhodes testified that, I went through all [the documents in the file] that evening within a period of time. As best I can recall we went through them at Barbara Wilson's house [secre- tary of Rose Printing Company ]. [ Emphasis supplied .] ( Rhodes, Tr. 128.) However, Doesburg's testimony is that he read only two or three letters in the file: I never reviewed the file, I took the two or three letters that were interesting and important but as far as the rest of the stuff was concerned, I never did go in and study what they were. ( Id. 174 ; cf. footnote 7, infra.) 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in photostating its contents was unethical, and that proper professional ethics would have required bringing the matter to the attention of the Trial Examiner upon discovery of the nature of the material. The Motion for Exclusion of the Respondents; the Board's Order Directing Hearing No further action was requested by the General Counsel at that time. However, on the following day, after the taking of evidence had been concluded, the General Counsel's attorney moved for summary exclusion of the Respondents from the hear- ing on the ground that their actions in connection with use of the file constituted misconduct. DeProspero also asserted that the Respondents had taken the file. The hearing being substantially completed at that point, Trial Examiner Frey denied the General Counsel's motion for exclusion. In his findings concerning the incident, both on the record and in his later Decision, Trial Examiner Frey made no finding as to whether or not Respondents had engaged in misconduct before the Trial Examiner. However, in his Decision he stated that in retaining the file and in reproducing its contents after gaining possession of it in the courtroom and examining it, Respondent Rhodes ". . . engaged in improper conduct which amounted to a breach of the ethics which should prevail between attorneys as members of the legal profession, and also constituted a breach of the common decency which should prevail between gentle- men, and that both attorneys ... acted improperly in this same respect in using papers from that file in support of [Rose Printing Company's] defense." Trial Examiner Frey referred to the Board for determination the question whether this conduct amounted to misconduct before the Board of such character as to warrant suspension or disbarment. Following the issuance of Trial Examiner Frey's Decision, counsel for the Union, Attorney Goldthwaite, filed a memorandum with the Board in which he urged the Board to "use its maximum authority and power to express its disapproval of the Respondents' conduct." Contemporaneously with its later Decision in the case the Board directed the hear- ing on the instant issues. Discussion The Board Rule Respecting Misconduct The Board rule concerning disciplinary action for misconduct in Board proceedings is contained in Section 102.44(a) and (b) of the Board's Rules and Regulations, Series 8, as amended. The provision is as follows- (a) Misconduct at any hearing before a trial examiner or before the Board shall be ground for summary exclusion from the hearing. (b) Such misconduct of an aggravated character, when engaged in by an attorney or other representative of a party, shall be ground for suspension or disbarment by the Board from further practice before it after due notice and hearing. The discipline of exclusion from the hearing is of course no longer applicable in this proceeding. That the conduct involved occurred at a hearing before a Trial Exami- ner is clear, and there is no contrary contention. The sole issue therefore is whether the Respondents' actions constituted misconduct of an aggravated character, and if so whether the Respondents should be suspended or disbarred from further practice before the Board, or disciplined by lesser measures.4 4 Though subsection (b) of the rule specifies only suspension or disbarment as possible action, I do not interpret the specification as confining the Board to those alternatives Subsection (b) provides that the misconduct "shall be ground" for suspension or dis- barment This subsection was enacted by the Board as a consequence of a decision of the District of Columbia District Court holding that no legal authority existed for a Board Order suspending an attorney from practice before the Board in the absence of a Board rule authorizing such action (Camp v. Herzog, 104 F. Supp. 134 (1952)) At that time the Board's only rule conceining discipline for improper conduct in Board proceedings consisted of a provision that "Contemptuous conduct at any hearing befoie a Trial Examiner or before the Board shall be ground for exclusion from the hearing," and that refusal of a witness to answer a proper question was ground for striking the witness' testimony on related matters (Section 102 44, Rules and Regulations, National Labor Relations Board, Series 6, as amended, effective March 1, 1951.) The present rule was enacted effective June 3, 1952, 17 F R 4982, Series 6, as amended In the light of this history I construe Rule 102 44(b) of the Board's Rules and Regulations to be a statement of maximum and not exclusive discipline ROY T. RHODES 917 Confidentiality of Board Records Documents in the Board's files pertaining to the investigation or disposition of charges or petitions during the nonpublic investigative stages of proceedings, and all matters of evidence obtained in the course of investigation which have not been offered in evidence or made a part of an official record by stipulation are confidential, and are not available for public inspection unless permitted by the Board, the Chair- man, the General Counsel, or a Regional Directoi. (Section 102.117(b) of the Board's Rules and Regulations.) This is not to say that material evidence required for defense may not be secured by a party merely because it is in the possession of the agency. As the rule indicates, permission may be granted for the use of such matter upon application. If applica- tion is denied, the legitimacy of the retusal may be tested by subpena, first before the Trial Examiner and the Board, and then in the courts. Subpenas are obtainable by a party as a matter of right. (National Labor Relations Act, as amended, Section 11 (1) and (2), Section 102.31 of the Board's Rules and Regulations ) These procedures thus make self-help unnecessary to secure the production of essential evidence in the possession of any party, including the Board and the General Counsel. The Ethical Principles Involved The ethical standards governing the obligations of a lawyer toward his client, the court, and his adversaries are thus stated in the Canons of Professional Ethics of the American Bar Association. Canon 15. HOW FAR A LAWYER MAY GO IN SUPPORTING A CLIENT'S CAUSE. . The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exer- tion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client. Webster's New Collegiate Dictionary, 1959, contains the following definition of chicane: "Chicane and chicanery imply petty or paltry trickery, especially in legal proceedings." Canon 22. CANDOR AND FAIRNESS. The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness. These obligations have been the subject of comment by the courts. We are fully cognizant of the duties owed to his client by the attorney. He is bound to use every legitimate means and maneuver to protect the interests of his clients, and to obtain for them a fair trial. He should be zealous in his advocacy of his clients' rights. On the other hand, he has a duty to the Court of which he is an officer. He is bound to be respectful and courteous. He owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes. [Kentucky State Bar Ass'n v. Lewis, - Ky. -, 282 S.W. 2d 321, 324.] The lawyer's life must be one of fidelity and stern integrity. [Id ] An attorney owes his first duty to the Court. He assumed his obligations toward it before he ever had a client. His oath requires him to be absolutely honest even though his clients' interests may seem to require a contrary course. The lawyers cannot serve two masters; and the one they have undertaken to serve primarily is the Court. '[In re Integration of the Nebraska State Bar Associ- ation, 133 Neb. 283, 275 N.W. 265, 268; Nebraska Bar v. Niklaus, 149 Neb. 859, 33 N.W. 2d 145.] An attorney is an officer of the Court and it is his duty to call to the attention of the Court any matter which the Court is entitled to know. [DeBlanc v. DeBlanc, - La. App. -, 18 So. 2d 619, 621.] 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Sharp practice, whereby one counsel seeks and obtains an unfair advantage, should not be tolerated in the lower courts .... [Corson v. Corson, 160 Va 552, 169 S.E. 567, 568-69.] an attorney must at all times exercise the utmost good faith both to his client and in his dealings with opposing counsel as well as to the Court. [McCar- rell v. State, ex rel Morrison, 88 Ariz. 395, 357 P. 2nd 139, 143-144.] Conduct of an attorney in the performance of his duties as such is especially subject to the supervision of the courts in which he exercises that profession, and professional misconduct renders him subject to suspension or disbarment by the court, according to the degree of moral turpitude evinced by such misconduct. This professional misconduct may consist . . . in attempting by any means to practice a fraud or impose on or deceive ... the adverse party or his counsel. [7 Corpus Juris Secundum 741-742 ] Contentions The General Counsel suggests that Respondents Doesburg and Rhodes be disbarred from practice before the Board-though not necessarily permanently. As we have seen , Attorney Goldthwaite has asked the Board to exert its full disciplinary power against the Respondents. The General Counsel affirmatively contends that the Respondents deliberately took the file from the courtroom with knowledge of its ownership. This the Respond- ents deny. I find that the evidence does not sustain this contention of the General Counsel. There is no substantial evidence to rebut the testimony of Respondent Rhodes that he took the file from the courtroom among his other papers without knowledge either as to its ownership or contents. I recognize that so far as the evi- dence discloses the General Counsel was the only person in the hearing room using files of so distinctive a brown color, and that the testimony of the Respondents indi- cates an awareness on the part of each of them that an unfamiliar file was on their table. However, it is still quite possible that each believed the file to belong to the defense. It is not implausible that the file was inadvertently left on the Respondents' table during the examination of General Counsel's exhibits in the morning, and that it was gathered up among Rhodes' papers at the end of the day without his knowing it. This leaves for resolution the propriety of the Respondents' conduct after becoming aware of their possession of the file. The Respondents vigorously defend their course of action. They contend that their conduct was in pursuance of their obligation to their client and to the Board to put into evidence material facts which they assert were wrongfully withheld by Union President Parris as a witness, and by the General Counsel's representative, Attorney DeProspero-to the extent of perjury by Parris and subornation by DeProspero.° This, Respondents say was their only purpose; they did not intend to retain the file, and they anticipated that as soon as the letters were offered in evidence, the owner would identify himself and the material would be returned to him 6 The file was photostated, it is said, because of concern that unless the evidence were preserved it would be destroyed by its owner. Doesburg's testimony is that he believed the file to 6Thus, during opening discussion in the instant hearing, Doesburg referred to " . . the perjury engaged in by Counsel for the General Counsel by permitting his principal witness to perjure himself on the stand . . . " (Rhodes, Tr, 12 During his cross- examination of Attorney DeProspero, Doesburg stated that " . . DeProspero . permitted his principal witness [Parris] to commit perjury and never stopped him " And again • ". .. you knew that he was committing perjury right on the stand . . . ? (Id 72 )" 8 Thus the testimony of Doesburg: ". . . the moment those exhibits were introduced we felt the man that owned it would disclose himself, when he did we would return it " (Rhodes, Tr 159 ) And the testimony of Rhodes, I think the substance of what we felt although we hadn't labored that position, if somebody claimed it during that portion of the in- troduction, we would give it to them and if they didn't we were going to give it to the Clerk [of the Federal Court] " (Id 110, see also 144-146, 148 ) Doesburg testified that Rhodes' suggestion that the file be turned over to the clerk if not claimed, was "facetious." (Id 159 ) Rhodes' testimony did not appear to be facetious. The transcript in the Rose Printing Company case, supra, indicates that Rhodes made the same statement to Trial Examiner Frey (Rose, Tr 457 ) ROY T. RHODES 919 belong to the witness Parris, and not to the General Counsel .? He sought, he testified, to preserve the file for the Trial Examiner and Attorney DeProspero.8 In his testimony Doesburg expressed himself as "stunned" when Attorney DePros- pero claimed ownership of the file. He testified that ". . . the one person I was sure the file did not belong to was Mr. DeProspero ." (Rhodes , Tr. 174), "It was incon- ceivable that Mr. DeProspero would have this file and then take the position he did." (Ibid.) 9 Rhodes ultimately conceded , however, that he knew that the file belonged either to the Union or to the Government. In any event , the Respondents' further testimony reveals that ownership of the file was not a determinative factor in their actions : their course would seemingly have been the same whoever the owner was.'0 We turn now to a discussion of the contentions. The Asserted Misconduct of Attorney DeProspero and Witness Parris At the outset it must be observed that the ethics of the Respondents ' conduct must stand or fall on its own merit-it cannot be sustained on the basis that others engaged in wrongful acts. If Attorney DeProspero concealed evidence and the witness, Parris, committed perjury suborned by DeProspero , disciplinary and criminal proceedings were and are available for the punishment of such conduct . And whether the evi- dence was material and merited submission is unaffected by whether the actions of Attorney DeProspero or the witness, Parris, were proper or improper. If the Respondents were entitled to handle the problem as they did, it is immaterial how ethical or unethical the opposition was However, in view of the fact that the matter has been affirmatively raised as a defense, and since it bears on the good faith of the Respondents , the merit of their charges requires evaluation. Understanding of the Respondents' position requires consideration of the issues in the Rose Printing Company case, supra. That proceeding involved a refusal-to -bargain charge against Rose Printing Com- pany, a member of Franklin Printing Association , a multiemployer group of com- ' In the Rose Printing Company case, supra, Doesburg informed Trial Examiner Fiey that he thought that the file belonged to International Representative Waterson (Rose, Tr. 459 ) His explanation in the instant hearing for the difference is that "at first" he thought it to be Waterson ' s, "but after we went through the file I thought it was Parris ' " [ Emphasis supplied .] ( Rhodes, Tr. 156 ) Cf. footnote 3, supra. Thus Doesburg testified ( Rhodes, Tr. 151) : . . . the one thing that both Rhodes and myself were concerned about was the file getting in somebody ' s hands that it could be destroyed prior to the time it would be placed in the hands of the Government At that time I had not the remotest idea that the Government had seen the file, and I was sure Mr. DeProspero had never seen the file ; in order to protect it for the Trial Examiner and Mr DeProspero I felt this must not get in the hands where it could be destroyed , this must be a document that must be gone into by the Government in this proceeding " [ See also Id 110, 130 ] e On the other hand Rhodes ' testimony indicates his belief on reading the letters that DeProspero was aware of the information and was concealing it Thus, be testified that DeProspero , " . . tried to take both positions [ as to the nature of the bargaining] at the time when he had the information that violated one of them " ( Rhodes, Tr 124-125 ) Rhodes further testified, Q. And . . . you thought this letter , Respondent's Exhibit No 1 proved that Mr. De- Prospero knew that his argument regarding the Association bargaining you say was sham and was withholding of knowledge and information? A That was my opinion , yes [Id 125 ] 10 Thus the testimony of Rhodes • "I didn't care who the file belonged to " (Rhodes, Tr 109.) And again* " . . it didn 't matter . . whether it was General Counsel's file . . . or Mr Parris ' or Goldthwaite [ s] (Id 139-140) Doesburg 's testimony is to the same effect: Q . . . Do you mean when you come into the possession of something that you know is not yours you are not concerned as a lawyer as to what course of action you could take , your only concern is what the contents of the material is, you are not concerned with who it belongs to" A You bet your life . ( Id 178 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mercial printers in Tallahassee, Florida, which represents and bargains collectively for its members. The resulting contracts, though negotiated collectively, are with the individual members rather than with the Association. On December 6, 1962, during negotiations for renewal of a contract between the Union and the members of the Association, the parties reached a stalemate, mainly over terms of primary interest to Rose Printing Company. Over the protests of the Union-which insisted that there was no impasse and that agreement was still pos- sible with further bargaining-the Association declined to meet further, and the negotiations were adjourned without date. However, 2 weeks later, on December 20, 1962, at the instance of members of the Association other than Rose Printing Com- pany, negotiations were resumed between those employers and the Union and agree- ment was reached the same day. Rose Printing Company did not participate in the December 20 negotiations, and refused to meet with the Union on subsequent union request for further sessions. The company's position was that, an impasse having been reached between it and the Union, the company was under no obligation to resume meetings unless the Union submitted acceptable demands The complaint ultimately issued against Rose Printing Company charged a refusal to bargain in Rose's declination to meet with the Union and by certain unilateral action which Rose took in changing terms and conditions of employment. The com- plaint alleged that Rose iefused to bargain both in the Associationwide unit and individually. The Respondents' accusations of misconduct in the present proceeding are based initially on the fact that in his opening statement in the Rose Printing Company case General Counsel Attorney DeProspero stated as a theory that Rose Printing Company withdrew from the negotiations at an impermissible time, and refused to sign the agreement reached with the remainder of the Association group on December 20 This on the familiar principle that an employer who has bound himself to collective bargaining on a multiemployer basis is obligated to accept a contract negotiated by the collective representative. See Jeffries Banknote Co., 281 F. 2d 893 (C.A. 9) and cases there cited. The transcript of hearing in the Rose Punting Company case discloses that in his opening statement the General Counsel declared that although the appropriate bar- gaining unit was initially multiemployer, the single-employer unit may have become appropriate after December 6, and that Rose Printing Company had refused to bar- gain in both units. Consistently with that view and with the allegations of the com- plaint the General Counsel asserted the propriety of the single-employer unit as an alternative theory.11 iiThus the transcript of the Rose Printing Company hearing (p 13) shows the follow- ing statements by the General Counsel: Dir. DFPnosPERO 1Ir Trial Examiner, to the extent that General Counsel has put forward alternative units and alternative positions in the complaint, secondly we are not foreclosed from doing that at the outset and we submit that the evidence will show that quite probably the unit did become a single employer unit, did be- conic appropriate at a point of time at which Respondent alleges an impasse in negotiations occurred. And again (p 14) : 11Ir DFPRosPFRO: Paragraph 8, fir Trial Examiner, alleges that the Union on these various dates requested and is requesting Respondent to bargain collectively in either the multi-employer unit or single employer unit, and that respondent has refused to to bargain in either unit And again (pp 16, 17) : -Air. DEPRosPFRO. Mr Trial Examiner, General Counsel contends that primaiily, or contends that at all material times the multi-employer unit was an appropriate unit and at all material time alleged in the complaint, the Union was seeking for bargain- ing in the multi-employer unit which was this historical unit TRIAL EXAMINER, That is the effect of paragraph 8' Mr DFPROSpsRO I mention this is is primary contention of General Counsel. As an alternative position, we try to allege in the complaint as an alternative position, Mr Trial Examiner, we believe that the evidence possibly may show, and that is the reason we drafted the complaint so as to meet the possibilities of the evidence in this case, that the evidence may show that at some point in time during negotiations, that the single employer unit at that point became appropriate, and that at that the union made demands and requests for bargaining in the single employer unit. [Emphasis supplied ] ROY T. RHODES 921 At the same time the General Counsel asserted the willingness of the Union at all times during the negotiations to bargain with Rose Printing Company either in the associationwide unit or individually.12 Respondents recognized the General Coun- sel's alternative theories, deemed them improper, and sought to have the individual unit allegation stricken from the complaint. (Rose Printing Company, Tr. 12-15.) It is thus seen that, contrary to the assumption of the Respondents, the General Counsel (with the knowledge of the Respondents) presented alternative theories of the case, and did not contend that the refusal to bargain was bottomed exclusively in the refusal of Rose Printing Company to accept a contract negotiated by the Asso- ciation as Rose's representative. It is further significant, for reasons which will become apparent, that the General Counsel indicated the Union's willingness to bar- gain with Rose individually. The two letters which the Respondents found in the General Counsel's file and submitted in evidence were material, according to the Respondents, for the following statements contained in them: The letter of the witness Parris to International Union Representative Waterson made reference to "individual" negotiations with the other members of the Association. Thus it contained the following two paragraphs: On December 20, 1962, three of the five members 13 of the Association indi- cated that they were ready to negotiate with the Union individually and requested a letter from the Union .... In negotiating individually with Harold Brown, proprietor of Dixie Printing Co., who is chairman of the Benjamin Franklin Association, I expressed the willingness of the Union to continue negotiations with the Association, any indi- vidual member, or with Rose Printing Co. at any time. The Union's expression of willingness quoted in the last of these paragraphs paral- lels the General Counsel's similar declaration in his opening statement. The letter of Parris to Charles Rosenberg, president of Rose Printing Company (the letter which was drafted but never actually sent) contains a statement to the effect that the Union had agreed to the subcontracting of work by Rose and was sure that dis- cussion could produce acceptable contract language in that regard. The relevance of this letter is discussed later. With these letters as background, the Respondents say that the evidence establishes that: (1) The General Counsel was in the possession of evidence, in the form of these letters, revealing-contrary to the General Counsel's opening statement-that after December 6 the Union in fact bargained on an individual basis, and not on a multiemployer basis; and (2) Witness Parris committed perjury or suppressed truth, which Attorney DeProspero suborned, in that (a) Parris testified that in the Decem- ber 20 negotiations he was dealing with the Association, whereas the December 24 letter to Union Representative Waterson refers to individual negotiations; (b) when asked whether he had ever stated that on December 20 he was dealing with the employers on an individual basis, Parris was equivocal and evasive until the copy of the letter to Waterson was shown to him; and (c) Parris testified falsely in denying that the Union had reached agreement with Rose Printing Company on subcontract- ing, whereas the draft letter from him to Rose Printing Company states that the Union and Rose had reached agreement on that matter. We have seen that the General Counsel took alternative positions with respect to the nature of the bargaining and the propriety of the units. The letter of witness Parris to International Representative Waterson thus does not contradict the Gen- eral Counsel's opening statement or his declared theory of the case, and it does not appear probable that experienced counsel would consider that it did. = Further statement by the General Counsel: Mr. DEPROSPERO:... The Union at all times up to this point [December 6, 1962] and thereafter was willing to bargain with the respondent either through the association unit and through the association representatives, and the Union was likewise willing, ready and able to bargain with respondent as an individual em- ployer. [Rose, Tr. 20.] "These three members and Rose apparently constituted the active membership of the Association at that time. A fifth member, Bulkley-Newman Printing Company, had gone out of business and did not participate in the 1962 negotiations. (Rose, Tr. 43.) 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Nature of the Negotiations Whether the December 20 negotiations with the employers other than Rose Print- ing Company should be characterized as multiemployer or individual is largely a matter of legal conclusion.14 But whatever the conclusion,-the facts were known to the Respondents. Thus, among the exhibits introduced by the General Counsel by agreement at the beginning of the Rose Printing Company hearing were copies of the letters given by the Union to each of the members of the Association at the December 20, 1962, meeting (at the request of those members) stating the Union's willingness to nego- tiate at any time either with the Association or the individual employer. (General Counsel's Exhibit's Nos. 20, 21, and 22, Rose, Tr. 35.) Neither this state of mind, nor the fact of the December 20, 1962, negotiations and their nature, could ha-. been a matter of surprise to the Respondents at the time of the Rose Printing Com- pany hearing in August 1963. We turn now to the question of Union President Parris' asserted perjury and concealment of evidence in connection with the nature of the negotiations. Parris was first questioned about the nature of the December 20 negotiations on direct examination the first day of hearing. He was asked by the General Counsel whether there was any discussion at that meeting as to whether the negotiations were with the Association or with the individual employers. He responded that to the best of his recollection there was no discussion on that subject (Rose, Tr. 121). Attempts by the General Counsel to ascertain from the witness whether the Union was attempting to deal individually with the employers at that time, and whether the witness considered the negotiations to be a continuance of the prior joint or group negotiations, were objected to by Doesburg, and the objections were sustained.15 These were the only questions asked of witness Parris on that subject on the first day of the Rose hearing. Review of the Rose transcript discloses no testimony on the first day contrary to any statement contained in the two letters. Doesburg's testi- mony to the effect that the file when shown to him disclosed that witness Parris was committing perjury is therefore mistaken.16 Consequently Respondents' photo- stating of the file could not have been motivated by their belief as to its inconsistency with the testimony of Parris. We turn then to the question whether there is reason in Charles Parris' later tes- timony to conclude that he perjured himself or sought to suppress the truth. 14 After detailed analysis of the evidence, Trial Examiner Frey in the Rose Printing Company case, supra, ultimately found that the parties reached an impasse on Decem- ber 6, that the Union then abandoned multiemployer bargaining through the Association and substituted joint bargaining with the employers other than Rose Printing Company, and thereafter bargained individually with Rose Printing Company. (Rose Printing Company, Inc., 146 NLRB 638, Trial Examiner's Decision). Viewed prospectively, how- ever, this conclusion was not the only possible one. It was arguable that the employers at the December 20 negotiations represented the Association. 16 Parris testified as follows: Q. (By Mr. DeProspero) Mr. Parris, at the outset of your discussions on Decem- ber 20 with all the member-employers of the Association except Rose Printing Com- pany, was there any discussion as to whether you were proceeding to negotiate with the association or with the individual employers? A. No. To the best of my recollection, there was no discussion on that subject. Q. Was the Union attempting to deal individually with the employers at that time? Mr. DOaSBURG: Objection. That is a matter of fact. TRIAL EXAMINER: Objection sustained. [Rose Tr. 120-121.] Q. When you negotiated on December 20, did you consider or did the Union regard that they were continuing with the joint or group negotiations taking place previously? Mr. DoiSnuRO: Objection. He has to tell what he did and what his thinking was is not material. [Id. 121.] TRIAL EXAMINER: Sustained. [Ibid.] 16 Mr. Doesburg testified that, "The file when it was shown to me disclosed to me the testimony of Charles Parris had been slanted, it had been cached [coached?] in my opinion, the man was perjuring himself." [Rhodes, Tr. 150.] ROY T. RHODES 923 On the second day of the Rose hearing, during the cross-examination of Charles Parris, Doesburg asked a series of questions designed to establish whether the wit- ness considered the December 20 negotiations to be on an individual or a collective basis; inquiries which, we have seen, Doesburg had successfully excluded on direct examination. The response of the witness, in sum, was that as far as he knew the December 20 negotiations were with the association group; that he had never been told otherwise.17 He further explained that he had not given the matter particular thought, and that the question had not been discussed by the participants.18 At this juncture Doesburg asked Parris whether he had ever told anybody that he was not dealing with any part of the Association but only with individual firms. (Id. 259-160 ) Parris responded that he had no recollection of saying that, nor, upon further inquiry, that he had written a letter concerning it. However, pre- sented with a copy of his December 24, 1962, letter to Waterson, Parris readily acknowledged authorship. These exchanges reveal differences between counsel and the witness as to the meaning of words or interpretation of action. However, they do not reflect perjury or concealment by Parris. At worst they reveal a momentary failure of recollection, promptly corrected upon the production of the letter. Whether There Was Agreement Concerning Subcontracting With respect to the Respondents' charge that Parris testified falsely in denying that the Union had reached agreement with Rose Printing Company on subcontracting- the record discloses no testimony on the first day of the hearing contrary to any statement in the letters. The second day's transcript reflects differences between counsel and the witness in the use of words. The facts are as follows The draft letter from Parris to Charles Rosenberg, dated April 22, 1963, contained the following paragraph, inter alia: We have already agreed to your subcontracting of work, and we feel sure that by discussion we can arrive at language for this clause that will satisfy us both and will not require you to investigate the working conditions of the plant doing the subcontracting. 34 Parris testified as follows: Q Was there any bargaining with the association subsequent to that day? [December 6, 1962 ] A. You are asking me a matter of opinion, aren't you? Q I will get your opinion, that's what I want. A. My opinion there was. Q On what date was the subsequent meeting? A On December 20 Q That was you think, you say that that was an association multiple employer bargaining group meeting, is that correct 7 A. As far as I know, I was never told otherwise. [Rose, Tr. 223 ] se Parris testified as follows: Q Did you have any discussion as to whether or not you were dealing with these men individually and behind the back of the association? • • • • s s r A. No, there was no discussion of anything of that nature. Q. Wasn't there any discussion of this letter, this document that you referred to when you said, "Dear sir, the official position of the union is that we are ready at any time to negotiate with the Benjamin Franklin Association or you individually. Now you get together " Didn't anybody say, "are we dealing individually or are we dealing collectively?" A. My recollection serves that when I distributed the documents, I Inquired if this was satisfactory and 111r. Tapeis speaking for all the employers present stated that it was. Q Let me ask you, who did you think you were dealing with? A. As a matter of fact, I had not given it a great deal of thought as to whether I was officially dealing with the association or whether I was not There had been no discussion on the matter, as far as I was concerned, it didn't particularly natter. Q I believe your testimony yesterday and your testimony earlier this morning you said that it was your impression that you were dealing with the multi-employer bargaining group, isn't that your testimony" A I testified I had not received any information otherwise. [Rose, Tr. 246-248 1 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under cross-examination by Respondent Doesburg on the second day, Parris testi- fied that the Union had not reached agreement with Rose Printing Company on sub- contracting on April 22, 1963.19 Asked whether he had written a letter containing the above-quoted paragraph , Parris had no immediate recollection of it.20 When the document was produced , however, he admitted writing it-disputing only that it constituted a "letter," since he had not sent it. The subcontracting of work was a matter of interest primarily to Rose Printing Company. The Rose record reveals that prior to the breakdown of negotiations on December 6, 1962, the Union indicated its willingness to consent to the subcontract- ing of work However, the Union insisted upon certain limiting language which Rose would not accept.21 Efforts to resolve the disagreement at the December 6 meeting weie unsuccessful . It is to this difference that the paragraph in the draft letter was addressed . It is thus seen that Parris ' testimony is not only not inconsist- ent with the letter, but in fact was the precise truth. The Union had agreed to sub- contracting but had not reached agreement with Rose on the terms of the clause. This, of course, the Respondents knew. Their use of the April 1963 draft letter for the apparent purpose of establishing something different is thus difficult to under- stand. From these facts the following findings flow and are hereby made: (1) The Gen- eral Counsel did not take a legal position contrary to what he knew to be the facts, or conceal evidence ; and (2 ) there is no basis to conclude that the witness Parris committed perjury or sought to suppress evidence. It is consequently found that the accusations against Attorney DeProspero and the witness Parris asserted by the Respondents in defense of their conduct are with- out foundation. However, it is apparent that the Respondents considered the letters of bearing, since they used them And indeed to some extent they were relevant-though nowhere to the degree sought to be attached . Conceding this relevancy, we turn then to the question of the extent of the duty of the attorney to the client , the tri- bunal, and the profession in the securing and use of evidence. The Propriety of the Respondents' Conduct The attorney owes a duty to his client to defend him vigorously and to attempt by all ethical means to secure all material evidence supporting the client's clause. But as we have seen from the authorities cited above, this advocacy must be carried out with honesty, candor, and fairness , and devoid of unfair advantage or underhanded measures. The duty to render effective representation is accompanied by a correl- ative obligation to exercise good faith in dealing with opposing counsel, to respect the rules of the tribunal, and to call to the tribunal 's attention any matter affecting the controversy which it is entitled to know. Above all, the attorney is obligated to observe the highest standards of ethical and personal conduct. He must respect the confidentiality of his adversary's personal files. His efforts on behalf of his client must reflect regard for the rights of others and an appreciation of the responsibili- ties of the profession . The ethics of the law are not those of the marketplace The courtroom is not a jungle ruled by force or stealth, but a place where justice is sought to be achieved by civilized men employing decent methods . Advocacy is but a means to a just end and if its standards are not above reproach it is not likely to produce a desirable result. When this is forgotten the whole system fails. ""We had not reached agreement on subcontracting with the Rose Printing Company on December 6 [1962, or on April 22, 19631 . . . to the best of my iecollection." [Rose, Tr. 265 1 9 Parris testified as follows: Q. Did you write such a letter or did you not' A. My recollection is that I did not I believe if I can refresh my memory by examining the letter, I could better answer the question . [ Rose, Tr. 266 ] n Rose proposed a clause giving the employers the right to subcontract work, pro- vided that prior notice was given to the Union (Rose record General Counsel Exhibit No 17.) The Union's proposal was that if subcontracting became necessary, the employers should give prior notice to the Union , and establish to the Union's satisfaction that the plant of the subcontractor operated under conditions at least equal to those provided by the bargaining agreement ( Rose record General Counsel Exhibit No. 16 ) In the December 20, 1962, negotiations the employers accepted the Union ' s proposal. (Rose , Tr 111-1 20, General Counsel Exhibits Nos. 23, 24, and 32.) ROY T. RHODES 9'25 When an attorney inadvertently comes into the possession of papers of other par- ties to a proceeding , it is his duty to return them to the owner promptly and in good faith. If he is unable to establish ownership he should deliver the material to the presiding officer for disposition. These would seem to be elementary principles. As we have seen , this does not mean that an attorney may not seek disclosure of material evidence merely because it is in his adversary's file. Ethical means are available to secure its presentation. In the instant case the proper course of action would have been for the Respond- ents to return the material at the first opportunity to the person thought to be the owner, or if there was doubt, to deliver it to the Trial Examiner . The file was obvi- ously that of a party to the case ; the identification "Additional Material for Exami- nation" is lawyers ' language, with which the Respondents could not fail to be famil- iar. The partially obliterated tab and the letter to the Board's field examiner were indications that this might be an official Government file which under the Board's Rules and Regulations they were not entitled to use or possess without permission of process. I consider it implausible that experienced practitioners of the Respondents' caliber would not have considered this possibility . In such a circumstance lack of positive knowledge of ownership is not a defense . As attorneys the Respondents were under a responsibility to attempt to ascertain the fact and to return the mate- rial promptly to its owner, whose identity simple inquiry would have disclosed. In any event , as Respondent Rhodes finally conceded , he knew that the file belonged either to the Union or to the Government . Respondent Doesburg could have known no less. The assertion that the Respondents believed that the owner would disclose him- self as soon as the documents were admitted into evidence , and the file then promptly returned , finds a minimum of support in the facts. We have seen that the Respond- ents were not concerned about who owned the file. And according to the testimony of Rhodes they had made no real decision as to what disposition to make of it after it had served its purpose . The Respondents ' actions do not suggest a readiness to return the file. At no time did they take any initiative in that direction-even after the letters had been introduced into evidence and their use of the file supposedly concluded . Indeed, the General Counsel 's first inquiries as to the material were met with evasion. Thus when Attorney DeProspero approached Respondent Doesburg and inquired as to how he had come into possession of the exhibits , Respondent Doesburg responded that it was none of Attorney DeProspero 's business ; when asked by Attor- ney DeProspero whether he knew where the file was , Respondent Doesburg did not reply. It was not until Trial Examiner Frey directly questioned the Respondents that their possession of the file was acknowledged.22 In addition it is to be noted that the file was not in the courtroom at that time, but in Respondent Rhodes' office . Doesburg's testimony is that it was not brought into court that morning. (Rhodes, Tr. 171. ) The facts thus do not suggest that the Respondents were prepared to return the file to its owner the moment he identified himself. Nor are the Respondents' actions altogether consistent with their assertion that their intent was solely to put the documents into evidence . Their testimony is to the effect that the only documents they found material were the letters ultimately offered 23 However, they nevertheless photostated the entire contents of the file in 22 Mr. Doesburg's explanation for the apparent inconsistency between the above action, and the asserted readiness to return the file and determination to preserve it for DeProspero, was in sum that by this time he was irritated by DeProspero 's handling of the case. The Rose transcript does not disclose any controversy between Doesburg and DeProspero on the morning of the second day of hearing of such acerbity as to produce this overnight change of view. That morning was devoted entirely to Doesburg's cross -examination of Parris. During the Rhodes hearing Doesburg frankly stated his dis- like for DeProspero on a number of occasions Thus, the testimony of Respondent Rhodes: Q. . . . was there any other material in the [file ] that you had intended to introduce into evidence . . . ? A. None whatsoever as far as I can recall . In fact , I couldn't tell you another item that was in the file. [Rhodes , Tr. 132.] And the testimony of Respondent Doesburg: I never reviewed the file, I took the two or three letters that were interesting and important but as far as the rest of the stuff was concerned , I never did go in and study what they were [Id. 174 1 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD multiple copies-and even the folder itself. This action is most consistent with a purpose to retain copies of everything in the file, in the event that any of it should: be useful at some future time. It therefore seems unlikely that in photostating and retaining the file the Respondents were animated by desire to preserve the evidence for the Board and the General Counsel. I am impelled to conclude that the actions of the Respondents constituted miscon- duct of an aggravated character before a Trial Examiner and the Board within the meaning of Section 102.44 of the Board's Rules and Regulations. The observation of Trial Examiner Frey appears apt: The Respondents' conduct "amounted to a breach of the ethics which should prevail between attorneys as members of the legal profession, and also constituted a breach of the common decency which should pre- vail between gentlemen. . . ." However, the conduct constituted more than violation of ethical concepts vis-a-vis the Respondents' adversaries. It was also a circumvention of the rules of the Board. As we have seen, Board files of this nature are confidential unless secured with per- mission of the agency or through appropriate process. The Respondents were aware of the possibility that this might be the General Counsel's file; use of the file under such circumstances constituted a direct affront to the Board. FINAL CONCLUSIONS From the foregoing I conclude that the circumstances were such as to put experi- enced practitioners before the Board, such as the Respondents, on notice that the file might be a trial file of the General Counsel and thus confidential Government prop- erty. In any event, the Respondents were aware that the file was that of a party to the case and contained private documents relating to the litigation. The file did not contain evidence tending to establish that the witness Charles Parris was testifying falsely with the knowledge of the General Counsel's attorney, or that either was con- cealing evidence. The Respondents' accusations of misconduct against Attorney DeProspero and witness Parris are without foundation. The Respondents as mem- bers of the bar were under a duty to seek to ascertain the owner of the file and to return it to him; if they were in doubt to deliver it to the Trial Examiner for disposi- tion, and resorting to available legal procedures to secure the production of any documents which they considered material evidence. No adequate reason is advanced for the Respondents' course of action. There were no mitigating circumstances warranting the Respondents' use or retention of the file. The conduct of the Respondents in connection with the use of the General Coun- sel's file constituted misconduct of an aggravated character before a Trial Examiner and the Board such as to warrant suspension or disbarment from further practice before the Board within the meaning of Section 102.44 of the Board's Rules and Regulations. THE REMEDY The final question is the remedy to be applied. It has been seen that so far as the record reveals neither Respondent has heretofore been the object of disciplinary pro- ceedings, and I assume their good reputations. This is in their favor and I give it substantial weight. Respondents are seasoned attorneys who should be familiar with the obligations of their office; they are not tyros misled by the zeal of inexperience Even at this late date, after adequate opportunity for reflection, they continue to insist upon the cor- rectness of their conduct 24 This was thus not mere impulsive action taken in the heat of advocacy and regretted upon reconsideration. Rather it is indicative of ethical standards in need of improvement. In these circumstances I deem mere repri- mand inadequate. 24 As a witness, Rhodes stated several times that If the situation recurred he would pursue the same course of conduct [Rhodes, Tr 134-135, and 140 1 In oral argu- ment at the conclusion of the hearing he indicated that proceeding through the Trial Examiner might have been a "more wise" course of action Doesburg's testimony was that if he had not "been through this proceeding" he "would do as before"; but having been through it, he would now have the material photostated and notarized, turn it over to the Trial Examiner, and ask that the notarized documents be submitted in evidence [Id 155-156.1 These positions do not suggest any modification of the ethical standards reflected In the Respondents' conduct They indicate little more than it recognition of the incon- venience which has resulted ROY T. RHODES 927 On the other hand I consider the remedy suggested by the General Counsel- disbarment from practice before the Board-as too severe. To deprive an attorney with no previous disciplinary record of his right to practice before a bar perma- nently or for an indefinite period should be done only for reasons indicating total unfitness to practice further before that tribunal. In my opinion temporary suspension from practice before the Board for a period of 6 months is an appropriate remedy, in the expectation that at the end of that period the Respondents will have arrived at a surer understanding of the obligations of members of the bar to respect the privacy of the files of the Board and of their fellow attorneys. I will so recommend. RECOMMENDED ORDER It is recommended that Roy T. Rhodes and John H. Doesburg be suspended from practice before the Board as counsel or other representatives, or from aiding or assisting any party in any matter pending before the Board or before its Regional Offices, for a period of 6 months. APPENDIX A UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD In the Matter of Roy T. RHODES and JOHN H. DOESBURG, Respondents ORDER DIRECTING HEARING On August 13, 14, and 15, 1963, a hearing was held in the matter of Rose Printing Company, Inc., Cases Nos. 12-CA-2639 and 12-CA-2688, before Trial Examiner Eugene F. Frey. On the last day of the hearing, the General Counsel moved for the exclusion of attorneys Roy T. Rhodes and John H. Doesburg, who were representing the respondent company in that proceeding, from further participation in the pro- ceeding because of alleged misconduct at the hearing, contending that the attorneys had taken a file of the General Counsel containing confidential papers of the United States Government relating to the Board's investigation of the cases, had caused photostatic copies of the papers to be made, and had then introduced certain of them in evidence as part of the Respondent's defense. In his Decision issued on October 7, 1963,1 the Trial Examiner referred the matter to the Board for consideration and determination as to whether this action constituted misconduct before the Board under Section 102.44(a) and (b) of the Board's Rules and Regulations, Series 8, as amended. In his brief in support of exceptions, the General Counsel agreed with the Trial Examiner's findings, conclusions, and recom- mendation with respect to the matter, and requested that the Board issue an appro- priate order pursuant to Section 102.44(b). By memorandum filed December 2, 1963, the Charging Party 2 urged the Board "to use its maximum authority and power to express its disapproval of the conduct involved in this case ..." The Board, having duly considered the matter, finds it desirable to have record testimony on the issues involved and to hold a hearing under Section 102.44(b) of its Rules and Regulations. Therefore, IT IS HEREBY ORDERED that a hearing be held before a different Trial Exam- iner to be designated by the Chief Trial Examiner for the purpose of receiving evi- dence with respect to the alleged misconduct of attorneys Roy T. Rhodes and John H. Doesburg at the hearing held in Rose Printing Company, Inc., Cases Nos. 12-CA- 2639 and 12-CA-2688.3 IT IS FURTHER ORDERED that the matter be, and it hereby is, referred to the Regional Director for the Twelfth Region for the purpose of arranging for such hearing upon due notice, and that the said Regional Director, or his designated agent be, and he hereby is, authorized to appear on behalf of the Board to assist the Trial Examiner to obtain a full and complete record. I On the same date the cases were transferred to the Board 2 Tallahassee Typographical Union No. 660, affiliated with the International Typographi- cal Union, AFL-CIO. sThe Decision and Oider in Rose Piiiitiiig Company, Inc, 146 NLRB 638, issued this same date 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that, upon the conclusion of the hearing, the Trial Examiner shall prepare and serve upon the parties a Decision containing findings of fact, conclusions of law, and recommendations with respect to the evidence adduced pursuant to the provisions of this Order, and that, following service of such Decision upon Roy T. Rhodes and John H. Doesburg, the Respondents in this proceeding, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable to the Respondents and the Regional Director or his designated agent. Dated Washington, D.C., April 3, 1964. By direction of the Board: (S) Ogden W. Fields, OGDEN W. FIELDS, APPENDIX B Executive Secretary. TALLAHASSEE TYPOGRAPHICAL UNION Number Six Hundred and Sixty Since 1906 Tallahassee, Florida December 24, 1962. Mr. W. Russell Waterson, Representative International Typographical Union 625 West Paterson Lakeland, Florida Dear Russ, As per our telephone conversation today, the following is a summary of progress in our contract negotiations on News and Job contracts to date. Both contracts expired on August 31, 1962. News: On December 16, at a special meeting, the Union voted to accept the Talla- hassee Democrat publisher's offer of a two-year approved contract with a scale increase of 6 cents per hour beginning November 1, 1962 and an additional 5 cents per hour beginning September 1, 1963. Contract to expire August 31, 1964. This is essentially the old contract with no other improvements except minor changes in language as specified by the ITU contract department. Contracts will be signed as soon as they can be printed. Job At the Union's last meeting with the Benjamin Franklin Association, repre- senting five commercial shops, no progress was made. The Union proposed a con- tract including the four clauses which I enclose and have marked "Exhibit A." The Association offered no counter-proposal, but rejected the Union's proposal, and the meeting was adjourned at the call of the federal or state mediator. The Union at no time intimated that an impasse had been reached. At a special meeting on December 9, 1962 the Union voted unanimously to ask for permission to take a strike vote against the commercial proprietors represented by the Benjamin Franklin Association. President Brown has been asked for this permission. On December 17, 1962 Rose Printing Co. published a notice, a copy of which I enclose labeled "Exhibit B." The following day our members employed at Rose received letters, a copy of which I enclose labeled "Exhibit C." On December 20, 1962, three of the five members of the Association indicated that they were ready to negotiate with the Union individually and requested a letter from the Union, a copy of which I enclose labeled "Exhibit D." The Union's scale committee met with the three proprietors and they offered sub- stantially the same contract as the Daily Democrat, with the addition of the four clauses labeled "Exhibit A." The Scale Committee agreed to recommend that the Union accept this offer and the proprietors indicated they would put the increases into effect immediately. The tentative contract will be submitted to ITU Contract Department for approval, and as approved will be put to the vote of the Union. Three other small plants have indicated they will approve the contract as tenta- tively negotiated, leaving Rose Printing Co. the only company which has not agreed to the proposal. Rose Printing Co. presently employs 23 journeyman members of our Union and 2 apprentices. The six other shops tentatively agreeing to the con- tract proposal employ 21 journeyman members and 2 apprentices. In negotiating individually with Harold Brown, proprietor of Dixie Printing Co., who is chairman of the Benjamin Franklin Association, I expressed the willingness of the Union to continue negotiations with the Association, any individual member, or with Rose Printing Co. at any time. JOHN F. CUNEO COMPANY I believe this summarizes our contract negotiations to date. Fraternally yours, APPENDIX C April 22, 1963. Mr. Charles Rosenberg, President Rose Printing Co., Inc. P.O. Box 2275 Tallahassee, Florida Dear Mr. Rosenberg: I am delighted to read your statement to the press of last Thursday that you are willing to negotiate with Tallahassee Typographical Union in an effort to settle our contract differences. Our union is most willing and eager to do so and we are ready to meet with you at any time you will suggest. In a sincere effort to obtain a contract settlement, Tallahassee Typographical Union presents herewith a written proposal which we believe can serve as a basis for negotiations. Our proposal consists of the same contract to which we and the other job shops in Tallahassee and the Tallahassee Democrat have agreed, with the additional deletion of the reproduction or "bogus" clause. Regarding the union foreman clause, we are prepared to alter our position on this matter also, but this would require changes in other sections of the contract and we reserve the right to discuss the matter with you or your representatives. We have already stipulated that you may use customer-furnished type, and I feel sure we can also reach agreement on customer-furnished tape if we can discuss certain safeguards which the union would like to have in this matter. We have already agreed to your sub-contracting of work, and we feel sure that by discussion we can arrive at language for this clause that will satisfy us both and will not require you to investigate the, working conditions of the plant doing the sub-contracting. These are all the points that you enumerated in your statement and it is our feeling that we are so close together on these matters that one good-faith bargaining session could resolve them all. We urge you most strongly to meet with us for this purpose. As you know, our union has voted to strike your plant for the sole reason that you have consistently refused to meet or bargain with us for the past four months. We feel very strongly that a strike at this time would be most unfortunate in the inconvenience it would cause our state Legislature as well as being so utterly unnec- essary when a simple bargaining session might resolve all our differences. In the event that you continue to refuse to meet with our union, then we feel that we have no further recourse but to carry out the strike. I therefore urge you most sincerely to consider this proposal in the true spirit of collective bargaining in which it is presented. Yours truly, Charles N. Parris, President. cc: Roy Rhodes, Attorney Federal mediator State mediator President of the Senate Speaker of the House John F. Cuneo Company and International Brotherhood of Book- binders, AFL-CIO. Cases Nos. 13-CA-6002 and 13-CA-6174. May 26,1965 DECISION AND ORDER On December 23, 1964, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and 152 NLRB No. 93. 788-780-66-vol. 162 -- W► 929 (S) Charles N. Parris CHARLES N. PARRIS, President.