Kings Harbor Health Care

KINGS HARBOR HEALTH CARE Albert Schwartzberg and Samuel Lefkowitz d/b/a Kings Harbor Health Care (Formerly Waring Pavil- ion) and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Employees In- ternational Union, AFL-CIO and Local 106, affili- ated with International Production Service and Sales Employees Union. Case 2-CA-13922 December 8, 1978 SUPPLEMENTAL DECISION AND ORDER On December 30, 1976, the Board issued an un- published Decision and Order in the above-entitled case, approving the settlement stipulation entered into between Respondent, Albert Schwartzberg and Samuel Lefkowitz, d/b/a Kings Harbor Health Care (formerly Waring Pavilion), Local 106, affiliated with International Production Service and Sales Employ- ees Union, the Party to the Contract, and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO.' In its Decision, the Board expressly not- ed that its approval of the settlement stipulation did not preclude further proceedings concerning the General Counsel's allegations of misconduct by Re- spondent and its agents. On January 3, 1977, the Board issued an Order 2 in which it directed that Ad- ministrative Law Judge Paul Bisgyer, after providing for submission of statements of position by the par- ties, make findings of fact with respect to the General Counsel's allegations of misconduct and recommend to the Board whether such findings would warrant further proceedings pursuant to Section 102.44 of the Board's Rules and Regulations. On January 19, 1977, Administrative Law Judge Bisgyer issued an Order To Submit Statements of Position. Each of the par- ties subsequently responded; none requested a fur- ther hearing.' Thereafter, on June 10, 1977, Adminis- trative Law Judge Bisgyer issued a Supplemental Decision, Findings of Fact and Recommendation in On various dates between February 4 and Mas 19, 1976. a hearing vas held in the above-entitled proceeding before Administratise Lasu Judge Paul Bisgyer. At the hearing on May 19, 1976, Administratie Lass Judge Bisgyer approved the settlement stipulation on the record and adjourned the hearing indefinitely On June 14. 1976. the General Counsel filed an appeal from the Administrative Law Judge's approval of the settlement stipulation. 2 Not published in bound volumes of Board Decisions Then Chairman Murphy noted her disagreement The joint statement of position of Respondent and Attolrnes Horowitz stated (p. 36): Any further investigation or proceeding is unjustified and unwarranted because all the relevant evidence and testimony on the issue, has al- ready been presented, dissected and exhaustively anal]zed through di- rect and cross examination at the hearing. Judge Bisgyer presently has before him all the evidence existent and needed in order to make com- plete and substantive findings of fact. . . Accordingly. his findings of fact should be dispositive of the issues. which he found that Respondent's attorney, Burton Horowitz, had knowingly introduced a fabricated document into evidence and had attempted to induce a witness to give false testimony in the underlying unfair labor practice hearing. He recommended that the Board proceed in accordance with the require- ments of Section 102.44 to determine what discipli- nary action, if any, was necessary to remedy the abuse of its processes and the subversion of its pro- ceedings. On July), 7, 1977, Horowitz, by counsel, submitted a motion for leave to reopen the record for the purpose of placing into the record evidence which allegedly would undermine the findings of fact made by Ad- ministrative Law Judge Bisgyer. On January 5, 1978, the National Labcr Relations Board issued an order directing that Administrative Law Judge Bisyger, within 60 days, reopen the record in this Proceeding to admit into evidence further testimony bearing on the allegations of misconduct under Section 102.44 against Attorney Horowitz. By letter of January 13, 1978, counsel for the Gen- eral Counsel in Region 2 requested that the Board postpone indefinitely any further hearing in this case on the grounds that certain of the matters involved in this proceeding were under investigation by the U.S. Attorney's office for the Southern District of New York and that a reopening of the hearing here within 60 days might have an adverse impact on the U.S. Attorney's investigation. By order dated February 17, 1978. the Board granted the request of the coun- sel for the General Counsel. By letter dated July 18, 1978, Horowitz, through his attorneys, informed us that the above-mentioned investigation had led to his indictment and that on June 12, 1978, he had entered a plea of guilty to one count of subornation of perjury. As a consequence, the letter stated, he was transmitting to us a formal relinquishment of his right to appear and practice before the Board. Horowitz also requested that the record be closed because any further proceedings were moot in view of his resignation. Taking official notice of the above-mentioned criminal proceedings,4 we find that the felony to which Horowitz pleaded guilty constitutes miscon- duct of an aggravated character within the meaning of Section 102.44 of the Board's Rules and Regula- tions. We therefore rescind our Order of January 5, 1978, directing Administrative Law Judge Bisgyer to 4 United States v. Horowitz. DKT. No 78 Crim 00166(1) K ID l)(SDN Y.. filed August 11, 1978) (Judgment and Probation (Comnutment Order) A certified copy of this order and a copy ,f Horovltz' indictment hase been received into the record. 679 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD reopen the record. As we further believe Horowitz' serious misconduct warrants the loss of his privilege to appear and practice before the Board, and as his relinquishment effectively accepts these conditions, we shall order his disbarment from practicing before this Board. ORDER We hereby rescind the Board's Order of January 5, 1978, to reopen the record herein. WE HEREBY disbar Burton R. Horowitz from ap- pearing and practicing before the National Labor Relations Board. 680