Kings Harbor Health Care

National Labor Relations Board - Board Decisions

Dec 8, 1978

239 N.L.R.B. 679 (N.L.R.B. 1978)

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