Thursday, March 10, 2005

Update: Newly elected Crown Heights Vaad HaKohol chair Moshe Rubashkin and his checkered past, includes prison time for fraud

5 Comments:

At 5:11 AM, Blogger jewishwhistleblower said...

It took the media to pick up the story bloggers reported close to 7 weeks ago.
see: http://jewishwhistleblower.blogspot.com/2005/01/newly-elected-crown-heights-vaad.html#comments

New material:
1)
http://www.newsday.com/news/printedition/newyork/nyc-nyhasi104170601mar10,0,3004461.story?coll=nyc-nynews-print

Felon picked as leader
No rules prevent convict from heading government-funded Crown Heights group; he won't 'handle checks'
BY GLENN THRUSH
STAFF WRITER
March 10, 2005

Rabbi Moshe Rubashkin, new chairman of the politically wired Crown Heights Jewish Community Council, is famous for inviting his neighbors to a lavish annual Purim party.

But Rubashkin spent his 2003 Purim in the pokey - serving out a 15-month federal plea deal for passing $325,000 in bad checks on behalf of his troubled textile business.

On Jan. 31, 2005 - less than a year after walking out of Fort Dix federal prison in New Jersey - Rubashkin was elected chairman of the council, which receives $1.9 million a year in city and state social services and housing contracts.

While no laws prevent a felon from running a government-funded group, Rubashkin has vowed "not to handle any of the checks" for the council, said a source close to him. Rubashkin, 46, refused to comment through a spokesman.

Rubashkin unseated chairman Chanina Sperlin, garnering about 800 of 1,200 votes in a bitter election that divided many in the Lubavitcher Hasidic community. Women weren't allowed to vote.

The council's leaders often play a role in citywide politics. In 1997, Bruce Teitelbaum, chief of staff to Mayor Rudolph Giuliani, reportedly worked to oust the council's then-chairman Rabbi Joseph Spielman.

Sperlin, who owns a property management company, was a Giuliani supporter who backed ex-Bronx Borough President Fernando Ferrer, a Democrat, for mayor in 2001.

To celebrate his victory, Rubashkin has invited elected officials, including Brooklyn Borough President Marty Markowitz and City Councilwoman Leticia James (D-Crown Heights) to his house for sabbath dinner tomorrow.

Markowitz rejected the offer, citing prior commitments; James accepted but is reconsidering after learning of Rubashkin's criminal past, a spokeswoman said. "She will meet with community leaders and consider her options," her chief of staff, Janella Meeks, said.

In 1999, Rubashkin wrote three checks from his nearly empty bank account to Montex, a Pennsylvania-based textile company. When an associate warned Rubashkin that he needed to cover the checks or face prosecution, he replied, "So, I will go to jail," according to documents released by federal prosecutors in Pennsylvania.

When he passed the checks, he was being investigated for reporting irregularities in payroll taxes, a law enforcement source said on condition of anonymity. He was hit with a $278,194 federal tax lien in 1997, according to city records. It's not clear whether he ever paid it off.

Rubashkin, who was released from prison on Feb. 23, must report to a probation officer for the next four years.

2) Hat tip:
http://failedmessiah.typepad.com/failed_messiahcom/2005/03/and_a_felon_sha.html#more



Older material:
Hat tip to these blogs for the initial story:
http://www.mentalblog.com/2005/01/rubashkin-family-consolidates-power-in.html
and
http://failedmessiah.typepad.com/failed_messiahcom/2005/01/and_a_felon_sha.html

Now to fill in the blanks:

1) Per Federal Bureau of prisons records:
http://inmateloc.bop.gov/locatordocs/home.jsp

Inmate Information for MOSHE RUBASHKIN
Inmate Register Number : 56932-066
Name : MOSHE RUBASHKIN
Age : 46
Race : WHITE
Sex : MALE
Date Released : 2/23/04

2) Per public records I've accessed:
There are few people with the name Moshe Rubashkin in the US. The only Moshe Rubashkin I could find in the US who was 46 years old was Rabbi Moshe Rubashkin of Brooklyn, NY.

3)
Note also that this was not a one time criminal act. There is a history:

"In his motion, Rubashkin claims that this Court improperly considered earlier criminal conduct that resulted in an Accelerated Rehabilitative Disposition (“ARD”) in a Pennsylvania trial court."

4)
Can anyone get copies of these?
1. RUBASHKIN, MOSHE, 6135502, 10/29/2002, JUDGMENT, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
2. RUBASHKIN, MOSHE, 01-CL-2129, JC-00002129-2001-CR, 6/4/2001, JUDGMENT, LEHIGH, PAJGT
3. RUBASHKIN, MOSHE, 000364748, 12/15/2000, JUDGMENT, BRONX COUNTY CLERK LIEN
4. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/15/2000, 23234/00, SUPREME COURT, BRONX COUNTY CLERKS OFFICE
5. COHEN, SHAUL, MECHANICS LIEN, 04/19/1999, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
6. RUBASHKIN, MOSHE, 2722, 10/29/1997, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
7. RUBASHKIN, MOSHE, 20042, 11/15/1995, FEDERAL TAX LIEN, KINGS COUNTY CLERK LIEN
8. RUBASHKIN, MOSHE Y, 1345982, 10/26/1995, JUDGMENT, KINGS COUNTY CLERK LIEN
9. RUBASHKIN, MOSHE Y, JUDGMENTS DOCKET, 10/26/1995, KINGS COUNTY CLERKS OFFICE
10. RUBASHKIN, MOSHE ET. AL., JC-00000065-1995-SL, 2/13/1995, STATE TAX LIEN, LEHIGH, PATXLN
11. RUBASHKIN, MOSHE, 00006197392, 3/4/1993, JUDGMENT, SATISFIED, JUDGMENT - CITY COURT OF NEW YORK - BROOKLYN
12. RUBASHKIN, MOSHE, 00000106390, 12/31/1990, JUDGMENT, SULLIVAN COUNTY CLERK LIEN
13. RUBASHKIN, MOSHE, 00002761490, 12/17/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN
14. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
15. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 12/17/1990, 27614/90, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
16. RUBASHKIN, MOSHE, 00001678787, 3/23/1990, JUDGMENT, KINGS COUNTY CLERK LIEN
17. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/89, SUPREME COURT, NEW YORK COUNTY CLERKS OFFICE
18. RUBASHKIN, MOSHE, JUDGMENTS DOCKET, 03/22/1990, 16987/87, SUPREME COURT, KINGS COUNTY CLERKS OFFICE
19. RUBASHKIN, MOSHE, 00001698789, 3/22/1990, JUDGMENT, NEW YORK COUNTY CLERK LIEN

5)
I believe he has ties to the following:
1. AF SERVICES INC., CORPORATION (PROFIT), 9/9/2002, 9/9/2002, 269607, IOWA SECRETARY OF STATE
2. AF SERVICES INC., CORPORATION (PROFIT), 8/21/2002, 8/21/2002, C0145177, IDAHO SECRETARY OF STATE
3. MONTEX BLEACHERY INC., INCORPORATED BUSINESS, IN GOOD STANDING (ACTIVE), 2720832, PASOS
4. MONTEX TEXTILES LTD., FOREIGN BUSINESS, IN GOOD STANDING (ACTIVE), 1503592, PASOS
5. Inactive - MONTEX TEXTILES LTD, 1101 S 6TH ST, ALLENTOWN,, PA , TEL: 610-437-4679, ABI-NO: 000448043, 10/8/2002
6. MONTEX TEXTILE LTD, PA , May 16, 2003, 120 words, DUNS: 04-513-7411
7. R AND M DIAMOND, 2/9/2001, 81721, KINGS COUNTY, NEW YORK, ASSUMED BUSINESS NAMES (fictitious name)
8. BAHERE KNIT INDUSTRIES LTD, NY , June 03, 1994, 117 words, DUNS: 83-284-7552

6)
The New York Times
September 23, 1983
Sec.B,Pg.3
4 HASIDIM HELD FOLLOWING CLASH WITH POLICE
By LINDSEY GRUSON
Nine police officers were slightly injured yesterday and four people arrested in a melee between the police and Orthodox Jews leaving a synagogue holiday service in Brooklyn, the police said.

A police spokesman, Chief of Patrol Robert Johnston, said the trouble started at 1:45 P.M. when a city bus drove up Kingston Avenue in the Crown Heights section and nearly hit a man and a woman crossing the street. The couple, Hasidic Jews, had attended a service celebrating Succoth in the main synagogue of the Lubavitch movement.

The man, identified as Levy Weingarten, 27 years old, of 7 Balvour Place, threw a rock that broke the bus's rear-view mirror, Chief Johnston said. The driver called the police.

Religious Rule Involved
When officers tried to put Mr. Weingarten into a police car, he resisted. Orthodox Jews do not ride on holidays. Chief Johnston said 300 other worshipers then attacked the officers.

He said that most of the officers injured suffered cuts and scratches during the shoving and kicking that followed. He said that none of the worshipers were hurt.

''It was an attempt by the community to take a prisoner away from the police because putting the person in custody in a car would violate their religious faith,'' Chief Johnston said.

Arrested in addition to Mr. Weingarten were Eric Jacobs, 25, of 1715 Union Street; Moshe Rubashkin, 25, of 435 Crown Street, and Israel Shimtov, 43, of 1594 Carroll Street. Mr. Weingarten was charged with malicious assault and the others with simple assault.

About 250 Hasidim later demonstrated to protest the police action.

7)
The New York Times
December 8, 1983
Sec. B,pg.4

3 Hasidim Indicted

Three Hasidim, including a rabbi, were indicted yesterday on felony assault and riot charges stemming from a melee between a group of Hasidim and the police in the Crown Heights section of Brooklyn on Sept. 22. Nine officers were reported hurt.

The police said the incident began when a bus nearly hit a couple leaving a synagogue after services for Succoth, the Feast of Tabernacles, and a man arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews are not allowed to ride on holy days.

Charged with felonies were Rabbi Israel Shemtov, 43 years old; Eric Jacobs, 25, and Moshe Rubashkin, 25.

The man seized in the rock-throwing, Levi Weingarten, 27, was charged with criminal mischief, a misdemeanor. The police said after the incident that they had offered to walk him to the station house, but that their way was blocked and they put him in the car.

The suspects' lawyer, Ronald M. Kleinberg, said the four were victims of discrimination and assault in the incident.

8)
The New York Times
May 8, 1985
Sec.B,Pg.9
2 Plead Guilty In Hasidic Melee
Two Hasidic Jews have pleaded guilty to misdemeanor charges stemming from a melee between a large group of Hasidim and the police in Brooklyn in September 1983, the Brooklyn District Attorney's office said yesterday.

The police said the incident, in the Crown Heights area, began when a city bus nearly hit a couple leaving a synagogue after Succoth services and a man who was arrested for throwing a rock at the bus resisted being put in a police car because Orthodox Jews do not ride on that holiday.

The men who pleaded guilty, were indicted on felony assault charges in December 1983. As the result of plea agreements, one man, 26-year-old Eric Jacobs, pleaded guilty Monday to obstructing governmental administration, said Linda Sachs, a spokesman for the prosecutor's office. She said that the second man, Moshe Rubashkin, also 26, pleaded guilty Monday to that charge and to riot in the second degree and that both men would be sentenced to three years' probation and 300 hours of community service.

9)
The New York Times
January 4, 2000
Sec.B, Pg.8
Paid Notice: Deaths
...
LIPSHIE-Geraldine. The friends and supporters of Colel ChabadLubavitch mourn the passing of our long-time friend, supporter and past guest of honor Geraldine Lipshie.
...
LIPSHIE-Geraldine. Agriprocessors, Inc. and all its affiliates send condolences to our long-time good friend, Mr. Norman Lipshie. Through whose guidance our companies have attained great heights, on the passing of his noble wife, Geraldine Lipshie. Together with you we will miss Geraldine..who was much more than a friend. May you be comforted amongst the mourners of Zion and Jerusalem. Mr. & Mrs. Avraham A. Rubashkin Mr. & Mrs. Sholom M. Rubashkin Mr. & Mrs. Heshy Rubashkin Mr. & Mrs. Yossi Rubashkin Mr. & Mrs. Moshe Rubashkin
...

10)
FACTORY OWNER CHARGED WITH BANK FRAUD; [SIXTH Edition]
The Morning Call. Morning Call. Allentown, Pa.: Jun 7, 2002. pg. B.3
Text Word Count 146
Abstract (Document Summary)
[Moshe Rubashkin], 43, of Brooklyn, N.Y., wrote checks payable to Montex from an account at First Choice Associates in Brooklyn, an account that he knew did not have the funds to cover the checks, prosecutors allege...

11)
Moshe Rubashkin business dealings:
http://decisions.courts.state.ny.us/nyscomdiv/oct02/604422-01.pdf

12)
UNITED STATES OF AMERICA v. MOSHE RUBASHKIN, Appellant.

No. 02-4180

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

74 Fed. Appx. 192; 2003 U.S. App. LEXIS 18073


July 23, 2003, Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
August 29, 2003, Filed

NOTICE: [**1] RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: On appeal from the United States District Court for the Eastern District of Pennsylvania. (No. 02-CR-333). District Judge: The Honorable Herbert J. Hutton.

United States v. Rubashkin, 2003 U.S. Dist. LEXIS 4435 (E.D. Pa., Mar. 19, 2003)

DISPOSITION: Affirmed.

COUNSEL: For United States of America, Appellee: Bernadette A. McKeon, Office of the United States Attorney, Philadelphia, PA.

For Moshe Rubashkin, Appellant: Nicholas J. Nastasi, Philadelphia, PA.

JUDGES: Before: ALITO, FUENTES, BECKER, Circuit Judges.

OPINIONBY: FUENTES

OPINION: [*193] OPINION OF THE COURT

FUENTES, Circuit Judge.

Defendant Moshe Rubashkin appeals the entry of judgment and the imposition of a 15-month term of incarceration in connection with his plea of guilty to one count of bank fraud. Rubashkin contends that the District Court erred in considering an earlier incident in which Rubashkin was placed in an Accelerated Rehabilitation Disposition ("ARD") program as a result of his violation of the Pennsylvania Workmen's Compensation Law. According to the defendant, his participation in the ARD did not result in a disposition of guilt. In addition, he argues [**2] that the District Court erred in failing to give an explanation for its 15-month sentence. We find that the District Court did not err in considering the events surrounding Rubashkin's ARD for purposes of determining his sentence within the relevant guideline range and that the Court's statement of reasons was appropriate under 18 U.S.C. § 3553. Therefore, we will affirm the judgment of the District Court.

I.

Rubashkin was the owner and president of Montex Textiles Ltd. ("Montex"), a supplier of raw textiles material located in Allentown, PA. In August 1998, Montex opened separate payroll and general expense accounts with First Union National [*194] Bank ("First Union"). Rubashkin and another individual had signatory authority on both of Montex's accounts.

The Government's investigation revealed that between March 25, 1999 and March 30, 1999, Rubashkin attempted to deposit three checks payable to Montex, all drawn from the account of an entity named First Choice Associates, into Montex's First Union accounts. In the aggregate, the three checks totaled approximately $ 325,000. Rubashkin withdrew or used most of the funds which he attempted to deposit. Shortly [**3] thereafter, First Union learned that there were insufficient funds in the account from which the deposited checks were drawn. The fraud resulted in a loss to the bank in excess of $ 300,000.

Prior to the offense conduct in question, Rubashkin was involved in a separate punishable offense in connection with his operation of Montex. Pennsylvania law requires companies to secure worker's compensation insurance for their employees. See 77 Pa. Cons. Stat. Ann. § 501. Nevertheless, when an employee of Montex became injured and attempted to recover disability payments, it became apparent that Rubashkin, in his capacity as president of Montex, had failed to secure the required insurance. On May 4, 2001, Rubashkin was placed in an ARD program for a period of 18 months. Subsequently, he was ordered to pay $ 968 in fines, costs, and restitution.

On June 6, 2002, the defendant was charged in a one-count information with bank fraud in violation of 18 U.S.C. § 1344. Pursuant to a negotiated plea agreement, Rubashkin entered a plea of guilty to the sole count on July 31, 2002. The District Court conducted a sentencing hearing on November 6, 2002. At the hearing, the [**4] District Court accepted the parties' modification of Rubashkin's guideline offense level, which (1) eliminated the two-level enhancement for more than minimal planning, and (2) correspondingly reduced the acceptance of responsibility reduction to two levels, instead of three. The Court also denied the defendant's motion for downward departure. The Court thus determined that Rubashkin's guideline offense level was 12, with a criminal history category of I, reflecting no criminal history points. The criminal history computation was made without regard to Rubashkin's ARD. Therefore, the applicable guideline range for defendant's offense was 10 to 16 months of imprisonment.

At the sentencing hearing, the District Court also inquired into Rubashkin's ARD. See Joint App. at 27a, 39a-40a. When asked if the paragraph in the pre-sentence investigation report ("PSR") relating to his ARD was true, Rubashkin confirmed that it was. Specifically, the Court and the defendant engaged in the following colloquy:

THE COURT: Before you leave, I'd like you to take a moment and turn to page six of the presentence investigation report and read paragraph 31 to yourself. ...
THE COURT: Is [**5] that correct?
THE DEFENDANT: Yes.
THE COURT: Thank you. That's all I wanted to know.

Id. at 39a-40a.

The Court then sentenced the defendant to 15 months of imprisonment and 5 years of supervised release and ordered restitution in the amount of $ 232,936.99.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the entry of judgment and imposition of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to the [*195] extent that Rubashkin's appeal alleges errors of law.

III.

Rubashkin's primary argument on appeal is that the District Court erred in considering his May 2001 ARD in determining his sentence. n1 In doing so, Rubashkin relies heavily on § 4A1.2(f) of the United States Sentencing Guidelines ("USSG"). At the outset, we note that neither the Probation Office, nor the District Court violated § 4A1.2(f) in the computation of his criminal history category. Section 4A1.2 is titled "Definitions and Instructions for Computing Criminal History," and subsection fmerely provides that, "diversion from the judicial process without [**6] a finding of guilt (e. g., deferred prosecution) is not counted [in the computation of criminal history]." USSG § 4A1.2(f). In the present case, both the Probation Office and the District Court recognized that Rubashkin's ARD was a diversionary disposition within the meaning of § 4A1.2(f), and therefore, the defendant was not assessed any criminal history points. In fact, Rubashkin cannot point to any error in the computation of his criminal history category.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 Rubashkin's argument on appeal requires some clarification. He contends that the District Court actually considered his ARD and that the ARD was a factor in the Court's decision to sentence him at the high end of the applicable guideline range. To some extent, this is speculation because, beyond the colloquy above, the District Court did not expressly state what impact the ARD had on its ultimate sentence. We also agree with the Government that there were other factors which could have contributed to the decision to sentence the defendant to 15 months of incarceration. See Appellee's Brief, at 18 n. 6. Nevertheless, the record reflects that the District Court inquired about the ARD and issued its sentence immediately following the colloquy above. Therefore, we accept Rubashkin's argument that his ARD was likely a consideration in the District Court's sentencing decision, and our analysis proceeds from this general presumption. We will not, however, speculate as to whether Rubashkin's ARD was the sole or primary reason for his ultimate sentence.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**7]

The most that can be said of the defendant's ARD is that the District Court may have considered it, in conjunction with other possible relevant factors, in determining where, within the properly calculated guideline range, to sentence Rubashkin. As to this inquiry, § 4A1.2(f) simply does not control. Rather, that inquiry is guided by § 1B1.4 which provides: "in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." USSG § 1B1.4 (emphases added). n2 The commentary to § 1B1.4 expressly contemplates the scenario where a court could consider an unindicted offense when determining where to sentence a defendant within the guideline range: "if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range and may provide a reason for sentencing above the guideline range." USSG [**8] § 1B1.4, commentary. The language of § 1B1.4 makes it clear that "Congress intended that no limitation [*196] would be placed on the information that a court may consider in imposing an appropriate sentence." Id.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 USSG § 1B1.4 explicitly references 18 U.S.C. § 3661 which states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Although district courts may consider a broad range of factors at sentencing, we recognize that the breadth of § 1B1.4 is limited to background information not "otherwise prohibited by law." The commentary to § 1B1.4 expressly references the policy statements in Chapter 5, Part H of the Sentencing Guidelines as providing examples of factors that should not be considered or should only be considered for limited purposes. USSG § 1B1.4, commentary. For instance, [**9] as the Government observes, § 5H1.10 provides that considerations of race, sex, national origin, creed, religion, and socio-economic status are not relevant in the determination of a sentence. We note that none of the policy statements in Chapter 5, Part H suggests, either explicitly or implicitly, that a diversionary disposition should not be considered in sentencing decisions under § 1B1.4.

This Court's precedents support the "considerable leeway" afforded to sentencing courts pursuant to § 1B1.4. See United States v. Baird, 109 F.3d 856, 863 (3d Cir. 1997). In Baird, we addressed the issue of whether conduct underlying dismissed counts was relevant in deciding whether to depart upward from the guidelines range. We held that "conduct underlying dismissed counts--which is conduct that is neither formally charged nor an element of the offense--may be considered at sentencing," so long as the dismissed counts related in some way to the offense conduct. Id. at 864-65. Our decision relied in part on the Supreme Court's decision in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997), where the Court held [**10] that a sentencing court may consider the conduct underlying an acquitted charge pursuant to § 1B1.4, as long as the conduct at issue has been proved by a preponderance of the evidence. Given that § 1B1.4 permits the consideration of conduct underlying dismissed counts and conduct of which a defendant has been acquitted, there is simply no support for Rubashkin's position that the District Court was not permitted to consider his diversionary disposition.

Notwithstanding the District Court's straightforward consideration of his ARD, Rubashkin contends that the Court's sentencing decision was improper in two additional respects. First, Rubashkin argues that by considering his diversionary disposition and sentencing him to the high end of the applicable range, the District Court in effect incorporated his ARD into his criminal history category because the sentence ultimately imposed would have been at the middle of the guidelines range upwardly adjusted for his criminal history. n3 Thus, Rubashkin merely makes the unremarkable observation that his guideline range overlaps with the hypothetical range that would have applied if he was in the next higher criminal history category. This [**11] is beside the point. At any given offense level, a number of the ranges along the criminal history category axis overlap. The relevant inquiry is not whether the ranges overlap, but rather [*197] whether the District Court lawfully exercised its wide latitude in sentencing the defendant within the properly calculated guideline range.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 With an offense level of 12 and a criminal history category of I, the applicable guidelines range was 10 to 16 months. With the same offense level of 12 and a criminal history category of II, Rubashkin's guidelines range would have been 12 to 18 months.

As discussed above, we fail to see the relevance of this argument, and in any event, the Government correctly points out that even if Rubashkin's ARD had actually been considered, it would have resulted in only one criminal history point which would have left the defendant in the same criminal history category I. See USSG § 4A1.1(c).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Lastly, Rubashkin contends that the District Court erred in failing to state its reasons for [**12] imposing a 15-month term of incarceration. We disagree. 18 U.S.C. § 3553 requires a district court to state the reasons for its sentence when (1) the sentence departs from the applicable guideline range; or (2) the sentence is within the guideline range and that sentence exceeds 24 months. It follows that when the applicable guideline range is less than 24 months and the sentence ultimately imposed is within the applicable range, the court is not required to state its reasons. See United States v. Graham, 72 F.3d 352, 360 (3d Cir. 1995) (Nygaard, J., concurring).

For these reasons, we hold that the District Court did not err by inquiring into or considering Rubashkin's diversionary disposition when determining where, within the properly calculated guideline range, to sentence the defendant. Furthermore, we find that the District Court was not required to state the reasons for its sentence because the applicable guideline range was less than 24 months, and the sentence ultimately imposed was within that range.

IV.

For the reasons set forth above, we will affirm the judgment of the District Court.

 
At 11:23 AM, Anonymous Anonymous said...

Lest any reader wonder where this loshon hora came from, Chanina Sperlin helped plant this story through a personality from Williamsburgh who delights in talking to the press about treife.

 
At 9:00 PM, Anonymous Anonymous said...

It must be one of the "Isaac"s. Isaac Weinberger or Isaac Abraham. Isaac Abraham does not like Chanina very much so it must be the former. Chanina is some sore loser. He has been trying to sell this story for 6 weeks to anyone who would listen. I am not sure how he figures that he is helping his beloved community in Crown Heights with this.

 
At 9:38 AM, Blogger jewishwhistleblower said...

A hat tip to Shmarya:

"In a sharply-worded decision, both Rabbi Moshe Rubashkin and his father Aaron (of Postville fame) were found guilty by the National Labor Relations Board of repetitively collecting union dues from their employees of Cherry Hill Textiles, Inc. and then refusing to turn over those dues to the union."

see:
http://failedmessiah.typepad.com/failed_messiahcom/2005/03/aaron_moshe_rub.html#more

and

http://failedmessiah.typepad.com/failed_messiahcom/files/aaron_and_moshe_rubashkin_fraud_nlrb_judges_decision.pdf

 
At 9:46 AM, Blogger jewishwhistleblower said...

http://www.nlrb.gov/nlrb/shared_files/decisions/318/318-40.txt

CHERRY HILL TEXTILES

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
318 NLRB No. 40



Cherry Hill Textiles, Inc. and United Production Workers Union, Local
17-18. Case 29-CA-17848

AUGUST 17, 1995

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN

The issue presented to the Board in this case\1\ is whether the
judge correctly found that the Respondent's attorney, Stuart Bochner,
engaged in willful delay of Board proceedings within the meaning of
Section 102.21 of the Board's Rules and Regulations and engaged in
misconduct ``of an aggravated character,'' within the meaning of Section
102.44 of the Board's Rules, and recommended that Bochner be suspended
from practice before the Board for a period of 6 months. By letter dated
June 2, 1995, Attorney Bochner timely filed a request for a hearing on
this matter.
---------------------------------------------------------------------------
\1\On May 25, 1995, Administrative Law Judge Eleanor MacDonald
issued the attached decision. The General Counsel filed limited
exceptions and the Respondent filed cross-exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
---------------------------------------------------------------------------
The Board has considered the decision and the record in light of the
exceptions\2\ and has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended Order, except with respect
to contested matters relating to Attorney Bochner's conduct;\3\ and in
accord with the Order and Bochner's timely request, to remand the
attorney misconduct issue for a hearing.
---------------------------------------------------------------------------
\2\We deny the Respondent's motion to strike the General Counsel's
limited exceptions. We note that there are no exceptions to the judge's
findings that the Respondent violated Sec. 8(a)(5) by failing to remit
to the Union dues that have been deducted from the employees' wages
pursuant to valid checkoff authorizations.
\3\We do not pass on the judge's findings, conclusions, and
recommended discipline with respect to Attorney Bochner. All arguments
raised by the parties' exceptions on the attorney misconduct issue,
including the General Counsel's contentions concerning the length of the
proposed suspension, may be pursued at the hearing.
---------------------------------------------------------------------------

ORDER

The National Labor Relations Board adopts the recommended order of
the administrative law judge as modified below and orders that the
Respondent, Cherry Hill Textiles, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall take the action set
forth in the Order as modified.
It is further ordered that this proceeding is remanded to the
Regional Director for Region 29 to schedule a hearing before an
administrative law judge to determine the matters discussed above. The
judge shall hear and receive testimony and evidence, and prepare and
serve on the parties a decision containing credibility resolutions,
findings of fact, conclusions of law, and recommendations to the Board.
Following service of such decision on the parties, the provisions of
Section 102.46 of the Board's Rules and Regulations shall apply.
---------------------------------------------------------------------------

---------------------------------------------------------------------------
David Pollack, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollack P.C.), of South Orange, New
Jersey, for the Respondent.


DECISION

Statement of the Case

Eleanor MacDonald, Administrative Law Judge. This case was tried in
Brooklyn, New York, on December 22, 1994. The record was held open to
permit the Respondent the opportunity to request a further hearing date
in order to present a witness. In the absence of a request from the
Respondent to call a witness, the record was closed on January 12, 1995.
The complaint alleges that Respondent, in violation of Section 8(a)(1)
and (5) of the Act, has discontinued remitting to Local 17-18 dues that
it has deducted from the wages of its employees pursuant to valid
checkoff authorizations. The Respondent denies that it has engaged in
any violations of the Act.
On the entire record, including my observation of the demeanor of
the witnesses, and after considering the brief filed by the General
Counsel on February 15, 1995, I make the following

Findings of Fact

i. jurisdiction

Respondent Cherry Hill Textiles, Inc., a New York corporation, with
its principal place of business and another facility in Brooklyn, New
York, is engaged in the dyeing and finishing of textiles. Respondent
annually purchases textile dyes valued in excess of $50,000 directly
from firms located outside the State of New York. Respondent admits, and
I find, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that Local 17-18 is a labor
organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. The Facts

Respondent admits that Moshe Rubashkin and Aaron Rubashkin are
officers and supervisors of Respondent within the meaning of Section
2(11) of the Act, and are agents of Respondent acting on its behalf.
Respondent admits that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:

All employees, excluding all office clerical employees,
professional employees, foremen, managers, guards and
supervisors as defined in the Act.

Respondent admits that Local 17-18 is the exclusive representative
of the unit employees for the purposes of collective bargaining. It is
alleged in the complaint, and there is no dispute, that Respondent and
Local 17-18 are parties to a collective-bargaining agreement effective
from May 1, 1990, to April 31, 1993.\1\ Article 3 of that agreement
contains a provision requiring Respondent to remit directly to Local 17-
18 the dues and fees it has deducted from the wages of employees
pursuant to their written authorizations for such deductions. The dues
are to be remitted no later than the fifth day of each month.
---------------------------------------------------------------------------
\1\For purposes of this decision, I will treat the contract as
having a term through April 30, 1993. The complaint tracks the date on
the contract, which does indeed state ``April 31.''
---------------------------------------------------------------------------
Douglas Isaacson, the president of Local 17-18, testified that on
February 16, 1993, he sent a letter to Sarah, Respondent's bookkeeper,
advising her that Respondent was in arrears in the remittance of union
dues for November and December 1992 and January 1993, and requesting
that Respondent remit the sums due immediately. Isaacson testified that
he had dealt with Sarah in the past concerning such matters. Not having
received any response to his letter, Isaacson called Respondent and
spoke to Sarah who said she would check the matter. Isaacson did not
hear from Sarah and on March 15, he sent another letter to Respondent
requesting immediate remittance of the dues for November and December
1992 and January and February 1993.\2\ No response being forthcoming to
this second letter, Isaacson telephoned Respondent and spoke to Sarah;
again she said that she would check the matter, and again Isaacson did
not hear from Sarah. On April 21, 1993, Isaacson sent a third letter
requesting immediate payment of dues deducted for November and December
1992 and January, February, and March 1993. Following the April 21
letter, the Union received from Respondent the dues it had deducted from
its employees' wages for the month of November 1992. On May 13, 1993,
Isaacson sent a fourth letter to Respondent requesting immediate
remittance of the dues for December 1992, and January, February, March,
and April 1993. A fifth letter dated June 9, 1993, from Isaacson to
Sarah requested the immediate remittance of dues for December 1992
through May 1993.
---------------------------------------------------------------------------
\2\Isaacson's correspondence to Respondent was addressed to Cherry
Hill Textiles Company at a post office box in Brooklyn, New York, and
headed to the attention of ``Sarah/ Bookkeeper.'' Sarah's last name does
not appear in the instant record.
---------------------------------------------------------------------------
After the June 9 letter was sent, Respondent remitted to the Union
two checks for the dues deducted for January and February 1993,
respectively. The check for the February dues was returned for
insufficient funds on July 9, 1993; it was redeposited and again
returned for insufficient funds on July 30, 1993.
During his largely fruitless attempts to secure the remittance of
dues deducted from the unit employees' wages, Isaacson spoke to
Respondent's attorney, Burt Horowitz.\3\ The two agreed to meet with
Moshe and Aaron Rubashkin and set a date for July 22, 1993. Although
Isaacson and Horowitz appeared for the meeting, the Rubashkins did not
come. Before he left the meeting, Horowitz told Isaacson that he would
look into the matter of the arrears in payments to the Union.
Thereafter, Isaacson sent a letter dated July 28, 1993, to Aaron
Rubashkin voicing his disappointment at the Rubashkins' failure to
appear for the meeting and setting forth Respondent's failure to remit
dues. In August 1993, Isaacson and Horowitz agreed on another meeting
date. The meeting took place in September 1993, at the Company's
premises. Isaacson and Horowitz appeared and then Al Fisher arrived.
Fisher is a person with whom Isaacson had dealt in the past concerning
grievances at the Company. Isaacson told Fisher that Respondent had
failed to remit dues to the Union, but Fisher said that he had no
authority to pay money on behalf of Respondent. Then Horowitz told
Fisher to inform Moshe Rubashkin that the Company was in arrears and
Horowitz agreed to do so.
---------------------------------------------------------------------------
\3\Burt Horowitz is a member of the same firm as Stuart Bochner,
Esq., who appeared for Respondent in the instant proceeding.
---------------------------------------------------------------------------
Around November 10, 1993, the Union received dues for October 1993.
On November 22, 1993, the Union filed a charge which was served on
Respondent on November 23, alleging that Respondent had failed to remit
dues for April through September 1993. The complaint alleges that since
May 23, 1993, and continuously to date, Respondent has periodically
deducted dues and fees from its employees' wages pursuant to valid
checkoff authorizations but has refused to remit the dues and fees to
the Union. Counsel for Respondent stated on the record that Respondent
admits that it has deducted the dues from its employees' wages.
Respondent does not dispute that the unit employees have executed valid
checkoff authorizations which ``direct my employer to deduct from my
wages and pay over to the Union on notice from the Union such amounts .
. . during the effective period of this authorization.'' The checkoff
authorizations provide that they may be revoked on the anniversary date
or on the termination date of the collective-bargaining agreement
whichever occurs sooner. Respondent does not contend that any employees
have revoked their checkoff authorizations.
Isaacson testified that on February 2, 1994, a negotiating session
was scheduled to be conducted at the Respondent's premises. Isaacson
himself did not attend, but during the meeting the two union agents who
were present at the meeting telephoned him and stated that Burt Horowitz
was there and had drawn up an agreement. Isaacson gave them permission
to sign the agreement. The agreement is a handwritten document that
states

Cherry Hill Textiles and Local 17-18, UPW hereby agree that the
collective bargaining agreement dated May 1, 1990-April 31, 1993
shall be extended, retroactively from May 1, 1993 until May 1,
1994 without any modifications thereto.

According to Isaacson, the
agreement is signed by two union
agents and bears the signature
of Moshe Rubashkin for Cherry
Hill Textiles.\4\
---------------------------------------------------------------------------
\4\I admitted the document, G.C. Exh. 12, on the basis that it is a
business record of the Union: however, I ruled that Isaacson's testimony
did not establish who had drawn the document.
---------------------------------------------------------------------------
The complaint does not allege the existence of this document
extending the collective-bargaining agreement, and counsel for
Respondent stated on the record that he had no notice of any extension
of the contract.\5\ Counsel requested that I give him an opportunity to
present a defense based on this document at a later date. Counsel
stated, ``I have a right to show this to my client and say to him, is
this your signature?'' Attorney Bochner further stated on the record,
``I was not aware of the documents . . . .'' He also declared on the
record, ``I'm going to tell you unequivocally that no such copy of this
document exists in any of our Cherry Hill files.'' As stated above, the
instant record was held open so that counsel for Respondent could
investigate the February 2, 1994 document and request another hearing
date in order to present witnesses concerning the authenticity of the
document. On January 6, 1995, counsel for Respondent wrote to me
stating, in relevant part,
---------------------------------------------------------------------------
\5\At the close of the hearing, General Counsel amended the
complaint to allege that successor agreements were entered into by
Respondent and the Union.

I have shown a copy of [the document] to Burt Horowitz of my
office. He has indicated to me that the document is not in
his handwriting and that prior to my showing it to him he
had never seen it before. . . . Mr. Moshe Rubashkin has
indicated to me the signature looks like it is his but has
---------------------------------------------------------------------------
no recollection of signing the document.

Manifestly, all of the
information sought to be
conveyed by counsel's letter is
hearsay and I shall disregard
it. As I indicated above,
counsel did not request a
further hearing date to present
witnesses, and the record was
closed. As the record stands,
therefore, the document is in
evidence and Isaacson's
testimony identifies it as being
signed by Moshe Rubashkin and
two union agents.
In August 1994, Respondent and the Union executed another
memorandum extending the collective-bargaining agreement for 3 years
effective May 1, 1994.\6\ This document was prepared and forwarded to
the Union by Burt Horowitz.
---------------------------------------------------------------------------
\6\Wage reopeners were provided on February 1, 1995, and February 1,
1996. Otherwise, all other terms and conditions remained unchanged.
---------------------------------------------------------------------------
Isaacson testified that in October or November 1994, the Union
received dues payments from Respondent for wages paid in September and
October 1994.

B. Discussion and Conclusions

Respondent argues that no unfair labor practice can be found
because all of the events which occurred during the life of the
contract, up to April 30, 1993, predated the 10(b) period commencing on
May 23, 1993. Further, Respondent urges, all the allegations which are
within the 10(b) period occurred after the expiration of the contract.
Respondent maintains that section 302 of the Labor Management Relations
Act (LMRA) prohibits the transmission of dues to the union in the
absence of a valid contract, although the law does not prohibit the
deduction of dues from the employees' wages if there are valid checkoff
authorizations. Thus, Respondent concludes, the dues were lawfully
deducted and they were lawfully withheld from the Union.
Section 302(a) prohibits an employer from paying money to a
representative of its employees, except, inter alia, as stated in
section 302(c)(4), ``with respect to money deducted from the wages of
employees in payment of membership dues. . . . Provided, That the
employer has received from each employee . . . a written assignment
which shall not be irrevocable for a period of more than one year, or
beyond the termination date of the applicable collective agreement,
whichever occurs sooner.'' Section 8(a)(3) of the Act permits employers
and unions to provide for union-security clauses in their agreements. It
is not an unfair labor practice for an employer, upon the termination of
a contract containing a union-security clause, to discontinue checking
off union dues. Robbins Door & Sash Co., 260 NLRB 659 (1982).
In the instant case, however, the Respondent did not discontinue
deducting dues from the wages of its employees. Rather, Respondent
admits that for each month after April 30, 1993, it deducted dues
pursuant to unrevoked dues-checkoff authorizations which had been
executed by its employees. Where an employer continues to deduct dues
pursuant to an expired collective-bargaining agreement, it is a
violation of the Act to fail to remit the withheld sums to the union.
Williamhouse-Regency of Delaware, 297 NLRB 199 (1989), affd. 915 F.2d
631, 636 (11th Cir. 1990). No case has been cited to me, nor has
research disclosed any case, holding that it is a violation of section
302 to remit such validly deducted dues to a union after the expiration
of the contract.
As noted above, the 10(b) period extends to May 23, 1993, and the
complaint alleges that since that date Respondent has failed to remit
the dues which have been checked off. In early July 1993, Respondent
remitted to the Union dues for the months of January and February 1993,
although the check for February was not honored. Further, in August,
Respondent's Attorney Horowitz informed Fisher, Respondent's
representative for discussing grievances, that the Company was in
arrears. General Counsel argues that the remittance of dues and the
acknowledgment by Horowitz during the 10(b) period reaffirmed the past
obligations of Respondent to make the payments and gave rise to a new
10(b) period.
Each month after the expiration of the collective-bargaining
agreement that the Respondent withheld dues and failed to remit them to
the Union constituted a new unfair labor practice under the holding of
Williamhouse-Regency of Delaware, supra. I further find that each month
that the Respondent withheld dues from its employees' wages constituted
a reaffirmation of its duty to remit the sums to the Union. The
Respondent had no justification for withholding the dues except to
comply with the proviso of section 302(c)(4) that it may deduct money
from the wages of employees in payment of membership dues and then remit
that money to a representative of its employees. By continuing to deduct
the money, Respondent reaffirmed to the employees and to the Union its
obligation to remit all sums deducted from employees' wages.\7\ Indeed,
by making payments of dues to the Union in July 1993, for money due for
January and February 1993, Respondent reaffirmed its obligation to remit
all payments from January 1993, forward. The fact that it continued to
deduct dues and never ceased doing so combined with the fact that it
made partial payment within the 10(b) period is conduct inconsistent
with its position that it is not required to remit sums to the Union.
This finding is within the contemplation of the Board's rationale in
Chemung Contracting Corp., 291 NLRB 773, 774 (1988). Because of
Respondent's continual withholding of dues, there was no ``unequivocal
repudiation'' of its obligation to remit all deducted sums to the Union.
Cf., Chemung, at 775. There is no need to look at a contract that
expired outside the 10(b) period to establish the obligation to remit
the sums: each month that Respondent deducted dues from its employees'
wages, it reaffirmed its obligation to remit the money to the Union. I
find that Respondent violated Section 8(a)(5) and (1) of the Act by
failing to remit to the Union the dues which it has deducted from the
wages of its employees pursuant to valid checkoff authorizations.
---------------------------------------------------------------------------
\7\See Snellco Construction, 292 NLRB 320, 326 (1989).
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iii. conduct of stuart bochner, esq.

On January 6, 1995, counsel for the General Counsel filed and
served a motion which requested, in part, that I strike portions of
Respondent's answer and impose sanctions against Stuart Bochner, Esq.,
counsel for Respondent. Attorney Bochner did not respond to the motion
to impose sanctions upon him. The instant hearing has concluded and the
case has been fully litigated: in these circumstances, it is not
expedient to strike the answer. I shall deal only with the issue of
sanctions.
The General Counsel urges several grounds for the imposition of
sanctions upon Respondent's counsel. First, General Counsel cites
Bochner's repeated statements at the instant hearing conducted on
December 22, 1994, that he was unaware of General Counsel's Exhibit 12,
the February 2, 1994 extension of the collective-bargaining agreement.
As detailed above, Bochner stated that he had no notice of any extension
of the contract and that no such document existed in his files. Bochner
requested and received extra time to investigate the authenticity of the
document and to show it to his client. In fact, as urged in General
Counsel's motion and supported by attachments to that motion, Bochner
has been in possession of General Counsel's Exhibit 12 since at least
July 1994. On July 11, 1994, Bochner was served with a first amended
complaint in Civil Action No. 94 Civ. 0020, a proceeding brought by the
trustees of the Union's welfare fund against Cherry Hill Textiles which
was pending before the Honorable Eugene H. Nickerson in the eastern
district of New York. The existence of General Counsel's Exhibit 12 was
alleged in the complaint and a copy of the document was attached to the
complaint. On November 7, 1994, about 6 weeks before the instant
hearing, a notice of motion for default judgment was served on Bochner
in the civil action, and once again General Counsel's Exhibit 12 was
annexed to the papers. There is no doubt that Bochner himself was served
with the plaintiff's documents because he served, respectively, an
answer on August 2, 1994, and an affirmation on November 22, 1994. It is
therefore clear from the record that when Bochner stated at the instant
hearing that he was unaware of General Counsel's Exhibit 12 and that it
did not exist in his files, he was misleading me for the purpose of
being granted further time to investigate the authenticity of General
Counsel's Exhibit 12 in order to delay the instant hearing.
The General Counsel further cites Respondent's denial in its answer
of certain allegations of the complaint as an example of Respondent's
attempt to delay the instant proceedings.\8\ Section 102.21 of the
Board's Rules and Regulations states in part:
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\8\Although General Counsel cites a number of instances of this
conduct, I shall only deal with the two examples which are fully
established in the instant record.

The signature of an attorney constitutes a certificate by him
that he has read the answer; that to the best of his knowledge,
information, and belief there is good ground to support it; and
that it is not interposed for delay. . . . For a willful
violation of this rule an attorney may be subjected to
---------------------------------------------------------------------------
appropriate disciplinary action.

On June 15, 1994, Bochner signed Respondent's answer to the
complaint denying, inter alia, as alleged in paragraph 7, the
composition of the appropriate unit, and as alleged in paragraph 11 that
Respondent has deducted dues from the wages of its employees and failed
to remit the sums to the Union. Because the answer signed by Bochner
placed the allegations in issue, counsel for the General Counsel
prepared and served upon Respondent a subpoena requesting records
relevant to these allegations. Respondent does not dispute service of
the subpoena and Respondent did not file a petition to revoke the
subpoena. Nevertheless, Respondent did not comply with the subpoena and
Bochner simply stated at the hearing, ``We did not comply and will not
comply.'' When counsel for the General Counsel moved to strike certain
portions of Respondent's answer at the instant hearing, Bochner stated
on the record that on Respondent's behalf he would admit paragraph 7 of
the complaint. I note that the Board's decision in Cherry Hill Textiles,
309 NLRB 268 (1992), specifically found the existence of the 1990-1993
collective-bargaining agreement at issue herein and specifically found
the appropriate unit as alleged in the instant complaint. Later in the
hearing, Bochner stated on the record that, ``We don't deny we deducted
the dues. This is not an issue.'' Thus, it is apparent that Bochner
signed an answer denying allegations of the complaint which were not at
issue and which Bochner knew were accurate. The conclusion is
inescapable that Bochner's denials were for the sole purpose of delaying
the instant proceedings.
Section 102.44 provides that misconduct at any hearing before an
administrative law judge or before the Board ``of an aggravated
character, when engaged in by an attorney . . . shall be ground for
suspension or disbarment by the board from further practice before it
after due notice and hearing.'' Here, Bochner denied allegations of the
complaint as to which he had knowledge and information that they were
true. Yet Bochner signed an answer denying those allegations in the
absence of any good ground to support it and the answer had the
predictable result of putting the General Counsel to the expense of time
to prepare and serve a detailed subpoena. Further, Bochner failed to
comply with the subpoena without offering any reason for his action nor
for his failure to file a petition to revoke the subpoena. This surely
constitutes a willful violation of the Rule stated in Section 102.21,
quoted above. Further, Bochner misrepresented his knowledge concerning
General Counsel's Exhibit 12, and sought and received time to
investigate the authenticity of the document, informing the
administrative law judge on the record that he was not aware of the
document and stating ``Unequivocally that no such copy of this document
exists in any of our Cherry Hill files.'' This misrepresentation was for
the sole purpose of delaying the instant hearing. Moreover, wholly apart
from the purpose to achieve delay, Bochner's misrepresentation, an
outright lie, made on the record to an administrative law judge, is an
egregious violation of his duty as an officer of the court or tribunal
before which he appears. The orderly administration of justice depends
on the ability of the presiding public official, in whatever forum, to
rely without question on the word of an attorney or representative
appearing in that forum. This proposition is so obvious as to require no
further explanation. Misrepresentations made by an attorney to an
administrative law judge surely fall into the category of ``misconduct
of an aggravated character'' within the contemplation of the Rule stated
in Section 102.44. I shall recommend that Attorney Bochner shall within
a period of 14 days have an opportunity to request a hearing and to show
cause why he should not be suspended from practice before the Board.
Based on the Board's discussion in in Joel I. Keiler, 316 NLRB 763
(1995), and based on the fact that Bochner has previously been warned by
the Board in Advance Waste Systems, 306 NLRB 1020 (1992), I shall
recommend that Bochner be suspended for a period of 6 months.

Conclusion of Law

By failing to remit to United Production Workers Union, Local 17-18,
the dues which it has deducted from the wages of its employees pursuant
to valid checkoff authorizations, Respondent has violated Section
8(a)c(5) and (1) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the policies
of the Act.
Respondent must remit to the Union all dues it has deducted from
the wages of its employees with interest computed pursuant to New
Horizons for the Retarded, 283 NLRB 1173 (1987). The months for which
dues have been deducted but not remitted to the Union shall be
determined in the compliance stage of this proceeding.
Because the Respondent has a proclivity for violating the Act and
has previously been found to have engaged in the identical conduct found
herein in Cherry Hill Textiles, supra, I find it necessary to issue a
broad order requiring the Respondent to cease and desist from infringing
in any other manner on rights guaranteed employees by Section 7 of the
Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusion of law and on the entire
record, I issue the following recommended\9\
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\9\If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
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ORDER

The Respondent, Cherry Hill Textiles, Brooklyn, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to remit to United Production Workers Union, Local 17-
18, the dues it has deducted from the wages of its employees pursuant to
valid checkoff authorizations.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Remit to the Union all dues as specified in the remedy section
of this decision.
(b) Preserve and, on request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of withheld dues due under the
terms of this Order.
(c) Post at its facilities in Brooklyn, New York, copies of the
attached notice, in English and Spanish, marked ``Appendix.''\10\ Copies
of the notice, on forms provided by the Regional Director for Region 29,
after being signed by the Respondent's authorized representative, shall
be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
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\10\If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ``Posted by Order of the
National Labor Relations Board'' shall read ``Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.''
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(d) Notify the Regional Director in writing within 20 days from the
date of this Order what steps the Respondent has taken to comply.
It is further ordered that Stuart Bochner, Esq. shall, within 14
days from the issuance of this decision, have an opportunity to request
a hearing and to show cause why he should not be suspended from practice
before the National Labor Relations Board for a period of 6 months.


APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations
Board has found that we violated
the National Labor Relations Act
and has ordered us to post and
abide by this notice.

We will not fail to remit dues we have deducted from your wages
pursuant to valid checkoff authorizations to United Production Workers
Union, Local 17-18.
We will not in any other manner interfere with, restrain, or coerce
you in the exercise of the rights guaranteed you by Section 7 of the
Act.
We will pay to the Union the dues which we have deducted from your
wages, with interest.

Cherry Hill Textiles, Inc.

 

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