Uzi Einy

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1178 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 134
1178
In Re: Uzi Einy. Case 2–AD–59
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 26, 2007, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. He issued an
erratum on October 31, 2007. The Respondent filed ex-
ceptions, a supporting brief, and an answering brief to
the General Counsel’s cross-exceptions. The General
Counsel filed an answering brief, cross-exceptions, and a
reply to the Respondent’s answering brief on cross-
exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Uzi Einy, is suspended from
practicing before or appearing on behalf of a party before
the Board for a period of 6 months from the entry of this
Order.
Maria Balzano, Esq., for the General Counsel.
Uzi Einy, pro se, Respondent.1
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On June
3—7, 2002, a hearing on Cases 2–CA–33940, 2–CA–34059,
and 2–CA–34587 was held in New York, New York, before
Administrative Law Judge Eleanor MacDonald of the National
Labor Relations Board (the Board). Respondent, Uzi Einy,
who had a substantial ownership interest in the affiliated busi-
ness entities named as respondents in those cases, appeared at
the hearing representing himself, Sharon Realty, LLC, Dan

1 Some of the Respondent’s exceptions imply that the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
1 Erin Costello of New York, New York, who had not previously
participated in this matter, filed a brief on behalf of Respondent.
Company, and Dan Company, LLC.2 In her decision in those
cases, which the Board has upheld, Judge MacDonald found
that the Respondents are each single employers and together are
joint employers and that they had committed certain unfair
labor practices. The judge also recommended that the Board
warn and reprimand Einy for his conduct during the hearing.
On August 26, 2005, the Board issued its decision in those
cases, 675 West End Owners Corp., 345 NLRB 324 (2005). It
upheld the judge’s rulings, findings, and conclusions concern-
ing the Respondents’ employer status, the unfair labor prac-
tices, and that the Respondents’ argument that the Board in its
earlier representation case did not properly certify the Union
was meritless. The Board also agreed with the judge’s recom-
mendation that the Respondents pay the litigation costs ex-
pended by the Union and the General Counsel as a result of
Einy’s willful violations of the judge’s instructions regarding
subpoenas. However, it declined to adopt the judge’s recom-
mendation that Einy be warned and reprimanded for his con-
duct during the hearing because it did not comport with Section
102.177(b) of the Board’s Rules and Regulations and, instead,
transmitted the recommendation to the investigating officer, the
Associate General Counsel, Division of Operations-
Management, pursuant to Section 102.177(e). Special Counsel
Elizabeth Bach was designated to conduct the investigation of
the misconduct allegations against Einy. By letter, dated Janu-
ary 25, 2006, Einy was notified of the misconduct allegations
against him and given an opportunity to respond.
On October 25, 2006, a complaint and notice of right to hear-
ing was issued by the Associate General Counsel. It alleges
that the answer Einy filed to the complaint in Cases 2–CA–
33940, 2–CA–34059, and 2–CA–34587, in which he had de-
nied all of the allegations of the complaint, as well as receipt of
the complaint, “was not filed in good faith and was interposed
for the purpose of delay of the proceeding.” It alleges that dur-
ing the hearing before Judge MacDonald on June 3—7, 2002,
Einy “disrupted and delayed the hearing by interrupting the
judge, talking from the counsel table, and interfering with direct
and cross-examination of witnesses with comments and inter-
ruptions.” It also alleged that Einy’s conduct failed to conform
to the standards of ethical conduct required of practitioners
appearing before the courts (which apply to persons appearing
or practicing before Board), that he engaged in misconduct of
an aggravated character, and that he should be suspended from
appearing or practicing before the Board for a period of 2 years.
Einy filed a timely answer in which he denied that he had en-
gaged in any misconduct.
Pursuant to Respondent’s request, a hearing in this matter
was scheduled for April 26, 2007, in New York. However,
during telephone conference calls I held with Respondent and
counsel for the General Counsel, the parties agreed that they
would waive a hearing and rely on the transcript and exhibits in
the underlying unfair labor practices case as the record in this
matter. Accordingly, by Order dated April 25, 2007, the hear-
ing was canceled and the parties were given until May 15,
2007, to designate the portions of the transcript and the exhibits

2 During the course of the hearing, Einy also stated that he was rep-
resenting Shlomo Einy.
UZI EINY 1179
on which they would rely. Counsel for the General Counsel
had already made designations in a letter to Respondent, dated
April 20, 2007 (GC Exh. 2), and subsequently identified Gen-
eral Counsel Exhibits 7(a)—(d), which had been admitted in
the underlying proceeding. Respondent has not objected to
admission of the formal papers (GC Exh. 1) or the General
Counsel’s other exhibits (GC Exhs. 2—7) and they are admit-
ted to the record.
Respondent has designated the entire transcript and a number
of exhibits from the underlying proceeding, as well as docu-
ments from other representation and unfair labor practice cases.
Counsel for the General Counsel has filed a motion to exclude
certain of those exhibits as not relevant, to which Respondent
has filed a response. I find that counsel for the General Coun-
sel did not waive her right to object to these exhibits on the
grounds of relevance, as Respondent contends. I grant the mo-
tion and deny admission of Respondent Exhibits 29, 31, 32, 35,
39, 42, 43, 44, 45, 46, 47, and 49 which were not admitted in
the underlying proceeding, and Respondent Exhibits 6, which is
a letter relating to a representation matter, 11, 65, 68, and 69—
74, which are transcript excerpts and exhibits from hearings
other than the underlying proceeding. These exhibits are de-
nied admission as not relevant to any issue in this proceeding.
Respondent also seeks to have admitted to the record copies
of letters exchanged between himself and Special Counsel
Bach, dated October 3 and November 13, 2006, respectively,
which are identified as Respondent Exhibits 75(a) and (b).
Counsel for the General Counsel objects to their admission on
the grounds that they are part of correspondence dealing exclu-
sively with settlement discussions, that they are inadmissible
under Rule 408 of the Federal Rules of Evidence, and that they
are not otherwise relevant. Respondent contends they are ad-
missible under FRE 408 and 106. Both of the letters relate
solely to Respondent’s “questions regarding the settlement.”
FRE 408 states in relevant part, “evidence of conduct or state-
ments made in compromise negotiations is likewise not admis-
sible.” The letters do not come within any exception to the
prohibition contained in the rule. The letters are not admissible
under FRE 106 which deals with admission of the remainder of
or related writings or recorded statements. Counsel for the
General Counsel’s objection to admission of Respondent Ex-
hibits 75(a) and (b) is sustained. Respondent’s other exhibits
are admitted to the record.
I have given the briefs submitted on behalf of the parties due
consideration. Significant portions of Respondent’s brief are
devoted to an attempt to relitigate procedural and evidentiary
issues arising in the underlying proceeding and to accusations
of bias and misconduct on the part of the administrative law
judge during the hearing. The Board has already ruled on the
exceptions filed by Einy and the other Respondents in its deci-
sion in 675 West End Owners Corp., supra, which cannot be
collaterally attacked here. The Board also considered Respon-
dents’ contentions that the judge’s rulings, findings, and con-
clusions demonstrated bias and prejudice, that they were not
afforded a full opportunity to be heard, and that the judge
should have recused herself, and found them without merit. I
have given those portions of the brief no consideration except
insofar as they assert that Einy’s conduct at the hearing was in
reaction to or caused by rulings or comments by the judge. On
the entire record, I make the following
FINDINGS OF FACT
A. Respondent’s Answers in the Underlying Proceeding
The first issue raised in the complaint in this proceeding is
whether the answers filed by Einy to the complaint and
amended complaint in the underlying proceeding were filed in
good faith and not interposed for the purpose of delay.
A consolidated complaint was issued in Cases 2–CA–33940
and 2–CA–34059 and served on the named Respondents on
April 17, 2002.3 On May 17, Region 2 received an answer to
the complaint in the form of a letter, dated April 25, signed by
Einy, in which he stated that he was out of the country, denied
that he had received or seen the complaint, and denied “all of
the allegations in the charges and in the complaint.” A cover
memorandum, dated May 16, stated that Einy had mailed the
letter to Region 2 and other parties from St. Maarten, N.A. on
April 26. By letter, dated and faxed to Einy on May 31, coun-
sel for the General Counsel Judith M. Anderson informed Re-
spondents that she intended to amend the complaint at the hear-
ing by consolidating those cases with Cases 2–CA–34587 and
adding an additional allegation. At the opening of the hearing
on June 3, Einy submitted an amended answer to the amended
complaint in which he denied being served with the amended
complaint or having seen it and denied “all allegations in the
charges and in the complaint.”
Einy appeared at the hearing in 675 West End Owners Corp.,
supra, on June 3—7 and represented himself, as a named re-
spondent, as well as the Respondents listed above.4 At the
hearing, Einy made motions, offered exhibits into evidence,
called and examined witnesses, cross-examined the General
Counsel’s witnesses, conducted voir dire, raised objections, and
made arguments to the judge on behalf of Respondents. In her
decision, Judge MacDonald stated that “it was clear that Uzi
Einy spoke for all of the entities and that he made the decisions
concerning the conduct of the instant case.” (JD, p. 9)
Section 102.20 of the Board’s Rules and Regulations re-
quires that a respondent in an unfair labor practice proceeding
file an answer to the complaint within 14 days of the date of
service. In that answer, “the respondent shall specifically ad-
mit, deny, or explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in which case the
respondent shall so state, such statement operating as a denial.”
Section 102.22 authorizes the Regional Director filing the com-
plaint to extend the time within which the answer must be filed
upon a showing of proper cause. Section 102.23 permits a
respondent to amend his answer at any time prior to the hearing
and, thereafter, upon motion granted by the administrative law
judge or the Board.
Einy did not file a motion requesting that the Regional Di-
rector extend the Respondents’ time to answer the complaint in
the underlying cases. As noted, his answers to the complaint

3 All dates are in 2002 unless otherwise indicated.
4 In a prior representation proceeding involving these Respondents,
Case 2–RC–22120, Einy entered an appearance on behalf of himself,
Sharon Realty, and Dan Company, LLC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
and the amended complaint denied all of the allegations. Many
of the allegations concerned facts that had already been stipu-
lated by him or litigated and resolved against him in other cases
in which he had participated and others involved service of
documents, some of which he had previously acknowledged
receiving. This necessitated that counsel for the General Coun-
sel present evidence to establish these allegations and service of
documents at the hearing. The complaint allegations included:
the affiliation of the various entities named as respondents as a
single-integrated business enterprise and single employer, the
ownership of various buildings, the amount of gross revenues
received by them annually, their status as an employer engaged
in commerce within the meaning of the Act, the appropriate
bargaining unit, the conduct of an election and Board certifica-
tion of Stationary Engineers, Firemen, Maintenance and Build-
ing Service Union, Local 670, as the exclusive collective-
bargaining representative of the unit, and the agency and super-
visory status of Einy and others. See the judge’s decision in an
unfair labor practices case, 675 West End Owners Corp., supra,
and the various decisions, orders, and the certification of repre-
sentative in 675 West End Owners Corp., supra, Case 2–RC–
22120. The letters that Einy sent to Region 2 on August 29,
September 25, October 26, and November 8, 2001 (GC Exhs.
7(a)-(d)), responding to charges in the underlying Cases (2–
CA–33940 and 2–CA–34059), establish that he had in fact been
served with copies of those charges.
In this matter, Respondent continues to assert that he was not
served with the complaint in the underlying cases and that he
submitted a general denial to avoid being in default. In her
decision, Judge MacDonald found that the Respondents had a
practice of refusing to claim certified mail deliveries of docu-
ments from the Board’s Regional Office, including those ad-
dressed to 700 West End Avenue, which Einy acknowledged
was a correct address. I accept as true Einy’s assertion that he
was out of the country when the complaint in the underlying
proceeding was issued and served, and that he had not seen it
when he filed his answer, dated April 25, in which he denied all
of the allegations. However, this also establishes that he had
knowledge of the existence of the complaint for nearly 6 weeks
prior to the commencement of the hearing on June 3. Under the
Board’s Rules, it was incumbent upon Einy to ascertain what
was being alleged in the complaint and to make a good-faith
effort to respond to it.5 However, he failed to take any action to
amend his answer to admit the allegations referred to above
which had been established in the earlier proceedings in which

5 Sec. 102.21 of the Board’s Rules and Regulations provides in per-
tinent part: “An answer of a party represented by counsel or non-
attorney representative shall be signed by at least one such attorney or
non-attorney representative of record in his/her individual name, whose
address shall be stated. . . . The signature of the attorney or non-
attorney party representative constitutes a certificate by him/her that
he/she has read the answer; that to the best of his/her belief there is
good ground to support it; and that it is not interposed for delay. . . . For
a willful violation of this section an attorney or non-attorney party
representative may be subjected to appropriate disciplinary action.”
[Emphasis added.]
he had admittedly participated.6 When counsel for the General
Counsel amended the complaint at the commencement of the
hearing on June 3, Einy amended his answer only to the extent
that he denied all of the new allegations of the amended com-
plaint. During the hearing, Judge MacDonald pointed out to
Einy that his blanket denial of all of the complaint allegations
included matters which had already been decided and cautioned
him to reconsider his position but he failed to do so. On the last
day of the hearing, after a significant amount of time had al-
ready been spent establishing it, Einy suggested that he might
be willing to stipulate to the facts establishing the Board’s ju-
risdiction, but only for that case.
I find that counsel for the General Counsel has established
that Einy willfully submitted answers in the underlying cases in
which he refused to admit factual allegations that he knew had
previously been established in previous Board proceedings in
which he had participated. She has also established that Einy
falsely represented that he had not been properly served with
the complaints and other documents relating to those cases. I
find that Einy has failed to establish that he had any reasonable
basis for denying those factual allegations or that proper service
had been effected. As a result, counsel for the General Counsel
had to present evidence to prove those factual allegations and to
establish that effective service had been made upon the Re-
spondents. This unduly prolonged the hearing and wasted the
time and resources of the Board and the Charging Party. The
Board has expressed strong disapproval of such conduct. E.g.,
Nursing Center at Vineland, 318 NLRB 337, 338 fn. 7 (1995);
Graham-Windham Services, 312 NLRB 1199 fn. 2 (1993).
B. Einy’s Conduct During the Hearing
The complaint also alleges that during the hearing in the un-
derlying proceeding Einy “disrupted and delayed the hearing by
interrupting the judge, talking from the counsel table, and inter-
fering with direct and cross-examination of witnesses with
comments and interruptions.” Prior to the scheduled hearing in
this matter, counsel for the General Counsel provided a list of
pages of the transcript in the underlying proceeding in which
the alleged misconduct occurred. She asserts that the following
constitute instances of misconduct:
At page 23, Administrative Law Judge has to instruct
Einy to be quiet. The transcript fails to establish this.
Einy stated that his English was not good and requested
that a translator be provided. The judge denied his re-
quest. The transcript shows that the judge later interjected
the word “quiet” into a statement she was making about an
exhibit. It is not clear to whom, if anyone, the judge was
speaking.
At pages 51–53, Einy interrupts the Administrative
Law Judge The transcript shows that counsel for the Gen-
eral Counsel was introducing an exhibit to establish that
the Respondents were a single, integrated business enter-
prise, one of the allegations that had been established in a

6 In his brief, Respondent suggests that the Region or the General
Counsel should have put him on notice that the answer he filed was
unsatisfactory. Given his practice of failing to accept deliveries of mail
from the Region, the futility of such an effort is readily apparent.
UZI EINY 1181
previous Board proceeding but denied by Einy in his an-
swer. As counsel attempted to do this, Einy interjected
objections and argument, often interrupting counsel and
the judge. I find this conduct was discourteous showed a
disregard for courtroom decorum expected of practitioners
before the Board.
At page 81, counsel for General Counsel notes that
Einy has been trying to talk with one of her witnesses and
that Einy repeatedly continues to talk after the judge told
him he cannot. The transcript shows that counsel for the
General Counsel stated that Einy had attempted to talk to
one of her witnesses between sessions and that she did not
want him to do so. Einy asked to respond and the judge
denied him permission, stating, “this has nothing to do
with you.” Einy responded that it did involve him and that
it was improper for counsel to not let him talk to the wit-
ness. From all that appears, counsel for the General Coun-
sel was not complaining about Einy’s contact with the
witness, which she stated “was not the problem.” The
problem was that the witness wanted to leave, that counsel
did not want to call him at that time, and that she wanted
the judge to instruct the witness that he had to stay or re-
turn the following day. I find no misconduct on the part of
Einy here.
At page 119, Administrative Law Judge refers to inter-
ruptions by Einy, he continues to interrupt General Coun-
sel’s examination, and Administrative Law Judge tells
Einy to stop interfering. The transcript shows (p. 113) that
the judge noted on the record that, after a 5-minute break,
Einy failed to return to the courtroom and that no one at
the Respondent’s counsel table knew where he was. After
waiting at least 5 more minutes, the judge resumed the
hearing without him. The transcript (p. 118) shows that
Einy raised an objection to a question to a witness by
counsel the General Counsel because he did not know the
time period involved. The judge informed Einy if he had
not returned 15 minutes late from a 5-minute break he
would have heard the time period stated in the question
and told him to listen carefully. The judge also told Einy
that returning late would not be tolerated and that he
should be on time and listen. Einy responded, “I have
other matters, you know Your Honor.” The next question
directed the witness’s attention to “a couple of months af-
ter you started working.” At page 119, Einy interrupted
while it was being translated by an interpreter to object
that he “wanted to know for what period.” The judge
pointed out that the time was stated in the question and
that he should “be quiet and listen.” After a question as to
whether the witness had “ever” had a conversation with a
named individual was answered by the witness, Einy again
objected that he wanted to know “for what period.” The
judge cautioned Einy to stop interfering with the testi-
mony. I find that, under the circumstances, Einy’s objec-
tions were baseless, that his conduct was disruptive, and
that it showed a complete disregard for courtroom deco-
rum expected of practitioners before the Board, not to
mention common courtesy.
At pages 121–123, Einy interrupts General Counsel’s
examination, ALJ tells him to stop interfering. The tran-
script shows that an employee witness was being asked to
testify about a conversation he had with Einy which ap-
parently had been recorded. Einy’s objection was based
on his contention that the conversation was “not exactly
what he is saying here.” When the judge overruled his ob-
jection as improper, Einy argued that he believed it was a
proper objection. When counsel questioned asked the wit-
ness about another conversation with a named individual,
Einy interjected that he wanted “to know for what purpose
she is asking these questions.” When the judge told him
that counsel was not required to give him an explanation,
Einy argued that the conversation had nothing to do with
the case. When the judge told him she had found the ques-
tion was not objectionable, Einy responded rhetorically,
“And if I ask on my turn she will not stop me and cancel
me, and you will not sustain.” Einy contends he had a
right to raise his objections, that the judge prevented him
from stating the basis for the objections, and that the judge
thwarted his attempt to make his defense. I find that the
record shows that the basis for the objections was that
Einy, who was a party to the conversation in question, dis-
puted what the witness was saying as not exactly what
Einy remembered it to be. As the judge noted, that was
not a proper basis for an objection. This involved the
presentation of the General Counsel’s case, not the Re-
spondents’ defense. Einy was attempting to interfere with
the presentation of the witness’s testimony by providing
his own version of the conversation. I find that Einy’s ob-
jections were improper and his comment to the effect that
the judge would rule differently if counsel for the General
Counsel raised objections was inappropriate and insulting.
At pages 130–132, Einy interrupts GC’s examination,
ALJ tells him to wait and listen, Einy continues to ask
questions, ALJ tells him he is not listening and she can
hear him talking during the questions. During the wit-
ness’s testimony about a conversation with Einy, Einy in-
terrupted with a question that was answered by an attorney
for the Respondents. When counsel for the General Coun-
sel objected to Einy’s interruptions, he responded that he
does not hear well. The judge stated for the record that he
was not listening to the questions as she could hear him
talking while the questions are being asked. Einy contin-
ued to assert that he could not hear and the judge cau-
tioned him to stop talking and listen. Einy contends that
he asked to have the witness’s answer repeated because he
did not hear it. However, the judge who was observing
him noted for the record that he was busy talking and not
listening to the testimony. I find that the transcript shows
Einy’s lack of courtroom decorum and his propensity to
speak out whenever he felt like it regardless of the fact that
it was disruptive and the result of his lack of attention to
the proceedings.
At page 140, Einy interrupts General Counsel’s ex-
amination to ask what the witness said, Administrative
Law Judge tells him that he was talking during the ques-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
tioning and tells him to pay attention. Einy argues with
the ALJ and continues to ask questions. During testimony
by the witness about a matter he had previously testified
took place “towards the end of September or the beginning
of October,” counsel asked where it had taken place. Einy
interrupted to ask that he be given the date. The judge told
him he had been talking when the date was mentioned and
that he had to pay attention. Einy denied that he had been
talking responded, “She said after September. When? Be-
tween September and October That is what I have. I want
to know.” Einy contends that there was a recess of the
hearing between when the date was mentioned and when
he asked for clarification of the date. I find that the tran-
script shows Einy’s lack of courtroom decorum and his
propensity to speak out whenever he felt like it regardless
of the fact that it was disruptive and the result of his lack
of attention to the proceedings.
At pages 143–144, Einy interrupts GC’s examination
asking for specific information in CG’s questions. Admin-
istrative Law Judge tells Einy he has to stop doing that.
Counsel for the General Counsel asked the witness if he
had a conversation with Einy. Einy interjected, “When.
I’d really like to know,” and asked for the year and month.
The judge told him to stop interrupting counsel’s question-
ing. Einy contends that this did not constitute misconduct
because he was asking for a time frame. I find that the
transcript shows that Einy made an inappropriate interrup-
tion of counsel for the General Counsel’s questioning of
the witness. He may well have had a legitimate objection,
if the witness had begun to describe the conversation
without a proper foundation as to the time (and location),
but his interjection demanding that information was pre-
mature, as counsel’s next question demonstrated, and was
disruptive. Counsel was entitled to present her evidence in
the manner she chose, free from Einy’s continued interrup-
tions.
At page 147, Einy interrupts and Administrative Law
Judge tells him his comments are not helpful and to listen
to the testimony. The witness testified that he got full-time
work “in November or 2000.” Einy interjected, “Your
Honor, we jumped from 1999 to 2000. I just want to
know. We were talking about 1999.” The judge told him
his comments were “not helpful.” Einy contends that he
was asking for clarification because the witness skipped
from October 1999 to November 2000. I find the interjec-
tion was inappropriate. It was not stated as an objection or
request for clarification, but as a challenge to the witness.
At pages 185–187, Einy interrupts Administrative Law
Judge. Continues talking after Administrative Law Judge
tells him “that’s enough.” Administrative Law Judge ad-
monishes him for not following her instructions. Adminis-
trative Law Judge again notes that Einy is talking in back-
ground or while others are talking, and describes his con-
duct as “misbehavior.” After counsel for the General
Counsel made a statement concerning her belief that sanc-
tions should be instituted against Einy for his conduct in
his dealings with the Board, Einy asked to respond and al-
though the transcript is not clear apparently stated that the
Region used witnesses who “lie.” The judge told Einy
“that’s enough” but he continued to talk. The judge told
Einy that if he did not follow her instructions she world
eject him from the courtroom and told him to “behave ac-
cording to the rules.” The judge also cautioned Einy that
she did not want any talking in the background as it was
distracting. At that point, new additional representatives
made appearances on behalf of the Respondents during
which Einy, according to the judge, talked so loud that it
was difficult to hear what other people were saying. Einy
responded that he was talking “very quietly.” The judge
told Einy that she could hear him talking and that it was
misbehavior. Einy contends his talking involved an at-
tempt to clarify which parties were represented by the new
individuals. I have no reason to doubt that, as noted for
the record by the judge, Einy continued to ignore the
judge’s instructions about not disrupting the proceedings
by talking in a loud and distractive manner. This demon-
strated a lack of courtroom decorum which disrupted and
delayed the proceedings
At page 211, Einy interrupts the General Counsel to
make argument during cross-examination. He’s told by
the Administrative Law Judge that he cannot do it. Con-
tinues to argue. While cross-examining a witness, Einy
said that he wanted to read a portion of a transcript that
was in evidence in order to “clarify that line.” The judge
told him it was the time to cross-examine the witness and
that if he wanted to argue about the transcript to do it in
his brief. I find no evidence of misconduct here.
At page 222, Einy interrupts General Counsel’s voir
dire and tries to testify for a witness. Einy showed the
witness he was cross-examining an employment applica-
tion form and asked him if had been asked to fill it out.
The witness answered that he had been asked by Einy to
fill out the form more than once but had not done so. On
voir dire, counsel for the General Counsel asked the wit-
ness when he was given the form. Before he could an-
swer, Einy interjected, “But I ask him March and he say
yes.” The transcript shows that the witness did not say
that the form was given to him in March. I find that Einy
improperly interrupted the questioning of a witness by
counsel for the General Counsel but it does not appear that
he was trying to testify for the witness.
At pages 251, 252, 259-261, 271, Einy argues with
Administrative Law Judge. I find no evidence of any ar-
gument or misconduct on page 251. On page 252, during
cross-examination of a General Counsel witness, Einy
asked a question that obviously sought an inadmissible
hearsay answer. The judge told him she would not allow
the question. Einy stated, “I mean you let—when she
asked on direct to answer what he is saying, why don’t
you—.” The judge had already made her ruling. Einy’s
subsequent comment implying that the judge was treating
the parties differently was inappropriate and insulting. At
pages 259–261, Einy attempted to introduce an exhibit
into evidence. The judge sustained counsel for the Gen-
UZI EINY 1183
eral Counsel’s objection on the grounds that the exhibit
was not a complete document. Einy repeatedly argued
that the document should be admitted notwithstanding the
judge’s ruling. At one point he told the judge, “But I want
to put on the record—and I don’t want you to stop me
from putting on the record that on that document there is a
certain thing that he testified about.” In his brief, Einy
contends that he was simply asking that the exhibit be put
in the rejected exhibit file. I find unpersuasive this after-
the-fact attempt to revise his comments. I find his conduct
demonstrated a lack of courtroom decorum and disrupted
and delayed the hearing.
At pages 349–352, Einy arrives late, interrupts cross-
examination. Administrative Law Judge says there is too
much noise from the counsel table and she cannot hear
questions and answers. Administrative Law Judge tells
Einy to listen to the witness and notes that Einy is not pay-
ing attention and does not know what is going on. Admin-
istrative Law Judge tells Einy to stop talking and pay at-
tention. Einy appears not to pay attention and asks “what
happened?” Counsel for the General Counsel complained
about talking at the counsel table but it is not clear who
was involved. Einy who had arrived in the courtroom late
interjected a request for a document being discussed by the
witness and the judge noted that Einy already had it. After
counsel asked a witness about a letter he received but be-
fore it was identified, Einy interjected that he wanted to
know the exact date. As counsel asked the witness to
identify the exhibit, the judge noted that there was too
much noise at the counsel table and she could not hear the
witness. Einy responded that he just wanted to know what
happened. The judge told him he should have been there
on time and that he better listen to the witness. Einy re-
sponded, “I came yesterday, I can’t come everyday and I
just wanted to find out what happened here.” The judge
again told him to listen, to stop talking, and pay attention.
As counsel asked additional questions, Einy interjected an
inquiry as to whether an exhibit had been admitted and
was told by the judge that it had not been offered. I find
that the transcript shows that Einy arrived late for the hear-
ing and disrupted and delayed the hearing as he attempted
to find out what occurred while he was not there as well as
things that happened after he arrived but to which he was
not paying attention. He also implied that, although he
represented some of the parties, he could not be at the
hearing all the time. Einy contends that last part of the
cited transcript lines somehow shows that the judge
“taunted Einy for his inability to hear and understand Eng-
lish. On the contrary, it shows that despite the disruption
and delay previously caused by Einy inattention, the judge
went out of her way to repeat the testimony which Einy
claimed he had not heard
At page 363, Administrative Law Judge notes that
Einy is not paying attention and is talking over the judge
as she gave counsel instructions. After counsel for the
General Counsel asked a leading question, the judge cau-
tioned her and she withdrew the question. At that point,
Einy interjected, “Asked and answered.” The judge
pointed out to him that she had already ruled on the ques-
tion and that he had not been paying attention. Einy re-
sponded that he did not hear well and the judge noted,
“No, you were talking over me while I was giving counsel
an instruction. Don’t talk while I am talking.” Einy con-
tends he was making a permissible objection. I find that
the transcript shows that Einy interrupted and delayed the
hearing by raising an objection that had already been dis-
posed of by the judge because of his failure to pay atten-
tion to what was going on.
At pages 373–375, Einy interrupts the Administrative
Law Judge after being told his question is inappropriate.
Einy says “I want to ask him” and continues to ask after
repeatedly being told he cannot. After the judge explained
to Einy that his question was inappropriate because the
bargaining unit had already been certified and that on
cross-examination his questions are limited to areas cov-
ered by the direct testimony of the witness. Einy asked
additional questions relating to the representation case and
the judge cautioned him that the subject was not appropri-
ate and that other questions misstated the direct testimony
of the witness. The transcript shows that after being told
that his questions were not pertinent or did not relate to di-
rect testimony Einy ignored the judge’s ruling persisted in
asking such questions, because “I want to ask him [these
questions].” I find his conduct demonstrated a lack of
courtroom decorum and disrupted and delayed the hearing.
At page 416, Administrative Law Judge admonishes
Einy to stop talking. While on the witness stand Einy ap-
parently asked, through the interpreter, that he be given a
copy of an exhibit that was being distributed by counsel
for the General Counsel. The judge told Einy to stop talk-
ing. I find that the transcript shows no misconduct here.
At page 432, Einy appears to not be paying attention.
The Administrative Law Judge admonishes him for not lis-
tening. Counsel for the General Counsel discussed some
housekeeping details about some hearing transcripts from
prior cases that were in the courtroom. Einy said that he
might want to refer to the transcripts in cross-examining
witnesses. The judge told him that if he had been listening
he would know that they would be available. I find no
misconduct involved here.
At pages 455–456, Einy disregards the judge’s instruc-
tions not to continue. He responds “I want to continue
and continues after the judge again tells him he can’t.
Administrative Law Judge noted that Einy doesn’t listen,
doesn’t pay attention. While Einy was cross-examining a
witness, counsel for the General Counsel objected to a
question and the judge overruled the objection. Before the
witness could answer, Einy began asking a new question.
The judge cautioned him not to do that and the question
had to be repeated because the witness did not remember
it. The judge noted that Einy lost the question and answer
because he was not paying attention. I find that Einy’s
lack of attention resulted in a minor delay of the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
At pages 472–473, Administrative Law Judge tells
Einy that he may want to reconsider his position and ad-
mit some portions of the complaint not in dispute. She
admonishes him to stop his attempts to delay the hearing.
This does not involve conduct by Einy apart from what the
judge discusses in her comments.
At page 506, Einy has two cell phones on and a phone
continues to ring causing disruption. Einy’s cell phone
rings two separate times while the hearing is on the record.
Einy contends that it is a frivolous allegation because “he
is not the first one to forget to turn a cell phone off in a
courtroom.” While I don’t doubt that there was nothing
malicious in Einy’s failure to shut off his cell phones and
that it was not intended to interrupt the hearing, this inci-
dent is further evidence of the inattention and lack of
courtroom decorum that Einy demonstrated throughout the
hearing.
At page 529, Einy wants the General Counsel to ex-
plain why she is calling a witness. Administrative Law
Judge warns him he is not following procedure. Warns
him again about not following her instructions and inter-
fering with General Counsel’s presentation of her case.
Einy interrupts the General Counsel’s examination of a
witness to ask why she is calling him. The judge tells him
counsel does not have to tell him and directs him to follow
her instructions and to not interfere with the presentation
of the General Counsel’s case. I find the transcript shows
that Einy interrupted the proceedings to request an expla-
nation of why a witness had been called, something he was
previously told by the judge he could not do, causing a
brief delay.
At pages 533–535, Einy is told to be quiet. Adminis-
trative Law Judge tells him he cannot talk so loud she
cannot hear. Einy continues to talk to the witness in a dif-
ferent language. The judge tells him he cannot communi-
cate with a witness on the stand testifying and character-
izes it as “misbehavior.” Einy continues conferring at
counsel table and is told again to be quiet. During ques-
tioning by counsel for the General Counsel of an associate
of Einy, at the counsel table, Einy spoke so loudly that it is
noted on the transcript. The judge told Einy to be quiet as
he was so loud she could not hear what was going on.
Counsel for the General Counsel pointed out that Einy was
speaking to the witness on the witness stand. The judge
told Einy such communication was misbehavior and could
lead to his exclusion from the hearing room. As counsel
continued her examination, the judge told Einy to be quiet
and he responded that he was speaking to someone at the
counsel table. I find the transcript shows that Einy dis-
rupted and delayed the hearing by attempting to communi-
cate with a witness on the witness stand and by talking so
loudly during the hearing that the judge had to admonish
him to be quiet.
At page 539, Administrative Law Judge repeatedly
tells Einy he cannot speak at that time and he continues to
speak. Administrative Law Judge tells him to be quiet and
let the questioning continue and that Einy is interfering
with General Counsel’s examination of the witness by cut-
ting her off. During a discussion concerning what the
judge characterized as improper objections by Einy, she
told him to sit and be quiet unless he had a proper objec-
tion. Einy continued to argue with the judge. The tran-
script shows that Einy raised an objection when no ques-
tion was pending and that the judge told Einy that she had
repeatedly warned him that he had to stop interfering with
the presentation of testimony with improper objections. I
find the transcript shows that Einy’s refusal to obey the
judge’s instructions and continued arguing after she had
ruled demonstrated a lack of courtroom decorum and dis-
rupted and delayed the hearing.
At pages 551–552, interrupts and argues with the Ad-
ministrative Law Judge. Continues talking after being told
to be quiet. Einy raised an objection to a question to a
witness by the counsel for the General Counsel. The judge
explained that permission to do so had been given pursu-
ant to the Federal Rules of Evidence (FRE 611(c)). Einy
continued speaking and arguing with the judge after she
had ruled and complained that she had not explained this
to him and he was not a lawyer. When the judge told him
she did not have to explain the law to him. Einy told her
“you need to explain.” I find the transcript shows that
Einy’s inappropriate questioning of the judge about her
rulings and his continued arguing after she had ruled dem-
onstrated a lack of courtroom decorum and disrupted and
delayed the hearing.
At page 561, Einy’s conferring during General Coun-
sel’s examination of a witness. The transcript at page 561,
line 15–16, indicates: “(Mr. Einy conferring) (Pause).”
There is no indication that this involved any disruption or
delay of the hearing.
At pages 568–569, Einy conferring during General
Counsel’s examination and then complains that he cannot
hear. Administrative Law Judge notes that it is because
he was busy talking and she heard conversation from
counsel table. The transcript indicates that Einy is confer-
ring at the counsel table loud enough to be heard. Einy
complains that he cannot hear what counsel for the Gen-
eral Counsel is saying and asks to have it repeated. The
judge notes that he was talking and that she could hear
Einy talking. Einy contends that it is not unusual for there
to be noise when so many representatives are conferring. I
find the transcript shows that Einy’s loud talking at the
counsel table while counsel for the General Counsel was
examining a witness demonstrated a lack of courtroom de-
corum and disrupted and delayed the hearing.
At pages 579–580, Einy makes a speech and is told he
cannot do so at that time. Administrative Law Judge tells
him to be quiet, listen to her ruling, and do not disturb the
proceedings. After counsel for the General Counsel of-
fered an exhibit, Einy objected and stated his reasons.
Counsel for the General Counsel responded and the judge
UZI EINY 1185
denied Einy’s request to argue further and sustained his
objection. I find no misconduct here.
At pages 586–587, Administrative Law Judge tells
Einy to wait but he continues talking. Counsel for the
General Counsel raised a question about upon whom ser-
vice should be made in the case. Einy asked to respond
and the judge told him to wait. Einy continued to speak
expressing his desire to be heard before the judge ruled
and continued to talk after she again told him to wait. The
judge decided to take up the matter at some other time. I
find the transcript shows another example of Einy’s lack
of courtroom decorum and repeated failure to listen to the
judge and follow her instructions.
At page 600, Administrative Law Judge notes that Einy
is gesturing to the witness to show him what he wants to
testify. Counsel for the General Counsel objected to
Einy’s leading question during direct examination of his
own witness. The judge sustained the objection and also
noted on the record that Einy was gesturing to the witness
to show him what he wanted the witness to testify. Einy
denied this and the judge stated, “I was watching you ges-
ture to him.” Einy contends that he gestures a lot when he
talks and that he was gesturing because he was asking
about a part on a fax machine and he did not know what
the part was called. I find the transcript fails to establish
misconduct here. Neither the judge nor counsel for the
General Counsel seemed to feel the gesture was significant
and there is no evidence Einy made any more such ges-
tures after being cautioned by the judge.
At pages 622–624, Einy states that he is talking on be-
half of Shlomo Einy. This does not appear to involve an
allegation of misconduct but is evidence that Einy acted as
a representative of parties other than himself during the
hearing.
At page 647, Einy continues talking while Administra-
tive Law Judge is giving information about the use of prior
transcripts. The judge asks if he wants to hear, or to talk.
Einy attempted to put into evidence the transcript of a
prior Board proceeding. As the judge described what he
had to do to get relevant portions into the record, Einy
twice interrupted her. I find this again demonstrated
Einy’s lack of courtroom decorum.
At page 694, Einy asks to have an exhibit marked but
is not letting reporter mark it. The judge tells him he has
to stop talking and listen to what is happening. I find it
difficult to understand what was happening but it does not
appear to constitute misconduct on Einy’s part.
At page 735, Einy tries to answer when the judge is
questioning the witness. The judge asked the witness to
clarify something in his testimony. Before the witness
could respond, Einy interrupted, accused the judge of try-
ing to confuse the witness, and said that he had already an-
swered the question. The judge clearly had the right and
obligation to ask questions she felt necessary to clarify the
testimony of the witness. It was entirely inappropriate for
Einy to attempt to interfere and to suggest an answer to the
witness. I find the transcript establishes gross misconduct
on the part of Einy here.
At pages 744–745, Einy continues to question the wit-
ness regarding subjects the judge had repeatedly told him
he could not ask about. Einy asked the witness a question
about a matter involved in a prior unfair labor practice
case and the judge sustained the objection raised by coun-
sel for the General Counsel. I find no misconduct here.
At pages 813–814, Einy interrupts questioning by GC.
Testifies for the witness and twice asks questions during
GC’s cross-examination. Tries to clarify the witness’ tes-
timony. During cross-examination by counsel for the Gen-
eral Counsel, Einy interrupted her questioning with an ar-
gumentative remark, he attempted to change one of her
questions, and he interrupted the witness’s answer. I find
the transcript demonstrates Einy’s lack of courtroom deco-
rum and that his conduct disrupted the hearing.
At page 824, the judge tells Einy to be quiet during
GC’s objection. She notes that she cannot hear because
people are talking during the witness’s testimony. Coun-
sel for the General Counsel objected that a question was
beyond her redirect and Einy responded that the witness
had testified to it. The judge stated that while the witness
was testifying and people were talking, she could not hear.
I find no misconduct by Einy here.
At pages 842–845, Einy testifies about the circum-
stances surrounding his answer to the complaint and
amendment to the complaint. States for the first time that
he is ready to stipulate to jurisdiction. This does not ap-
pear to involve an allegation of misconduct at the hearing
but bears on the allegations that Einy acted in bad faith in
submitting his answers.
At page 857, Einy gives hand signals to the person
questioning him. Counsel for the General Counsel stated
that she wanted the record to reflect that Einy was giving
hand signals to the person questioning him. The judge did
not comment or indicate that this in fact had occurred. I
find no misconduct here.
At pages 878–879, Einy testifies about his receipt of
the complaint and his answer to the complaint. This does
not appear to involve an allegation of misconduct at the
hearing but bears on the allegations that Einy acted in bad
faith in submitting his answers.
At pages 886–887, Einy interrupts the Administrative
Law Judge and ignores her instructions to wait. As the
judge discussed the date for post-hearing briefs, Einy in-
terrupted her to ask if he could make a closing statement.
The judge told him to “wait” and he interrupted her again
to ask about a stipulation. He interrupted her two more
times despite her instructions that he “wait.” I find the
transcript demonstrates Einy’s lack of courtroom decorum
and that his conduct disrupted the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
At page 893, Einy admits jurisdiction. This does not
appear to involve an allegation of misconduct at the hear-
ing but bears on the allegations that Einy acted in bad faith
in submitting his answers.
Based on the foregoing, I find that throughout the hearing in
the underlying cases Einy repeatedly acted in an unprofessional
manner which disrupted and delayed the proceedings and
wasted the time and resources of the Board. While some of the
earlier instances of Einy’s misconduct may have resulted from
his unfamiliarity with the standards of courtroom decorum
expected of practitioners before the Board, I find that his con-
tinuing failure to comply with instructions by the judge and
repeated acts of misconduct after being cautioned by the judge
evidenced a willful disregard of those standards.
In his brief, Einy again asserts that as a nonattorney, who
was a named party in the underlying proceeding, he was not
subject to the standards of ethical and professional conduct
imposed by Section 102.77 of the Board’s Rules and Regula-
tions. I have already denied Einy’s motion to dismiss this pro-
ceeding based on this argument because the language in Section
102.177(a), “any attorney or other representative appearing or
practicing before the Agency shall conform to the standards of
ethical and professional conduct required of practitioners before
the courts,” (emphasis added) is broad enough to encompass an
individual representing himself in a unfair labor practice pro-
ceeding and because it is unreasonable to believe that a nonat-
torney appearing before the Board need not conform to any
standards of conduct. Section 102.177(d) states
Misconduct by an attorney or other representative at any
stage of any Agency proceeding, including but not limited to
misconduct at a hearing, shall be grounds for discipline. Such
misconduct of an aggravated character shall be grounds for
suspension and/or disbarment from practice before the
Agency and/or other sanctions. [Emphasis added.]
The record clearly demonstrates that throughout the underlying
proceeding Einy acted as a representative not only of himself
but of other named respondents in filing answers and participat-
ing in the hearing.
I also find no merit in his argument that Section 102.77(a) is
unconstitutionally vague and did not put him on notice of what
constitutes misconduct. That section specifically references the
standards of ethical and professional conduct required of practi-
tioners before the courts. Throughout the underlying proceed-
ing Einy displayed familiarity with the judicial process and the
record shows that he has participated in other matters before the
Board.
I find that Einy’s misconduct at the hearing in the underlying
proceeding violated the following rules of professional conduct
applicable to representatives appearing before the Board:
Lawyer’s Code of Professional Responsibility, State of New
York
DR 1–102 Misconduct
A. A lawyer shall not:
5. Engage in conduct that is prejudicial to the administration
of justice.
DR 7–102 Representing a Client
A. In the representation of a client, a lawyer shall not:
2. Knowingly advance a claim or defense that is unwarranted
under existing law, . . . .
3. Knowingly make a false statement of law or fact.
DR 7–106 Trial Conduct
C. In appearing as a lawyer before a tribunal, a lawyer shall
not:
6. Engage in undignified or discourteous conduct which is
degrading to a tribunal.
ABA Model Rules of Professional Conduct
Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal
of existing law.
Rule 3.3 Candor Toward the Tribunal
(A) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.
Rule 3.5 Impartiality and Decorum of the Tribunal
A lawyer shall not:
(D) engage in conduct intended to disrupt a tribunal.
As found above, Einy filed answers to the complaints in the
underlying proceeding which denied factual allegations he
knew to be true and had been established in previous Board
proceedings in which he had participated and denied service of
documents he had in fact received. During the hearing, he re-
peatedly engaged in disruptive, unprofessional, and discourte-
ous conduct, including talking loudly at the counsel table and
failing to pay attention to the proceedings; interrupting testi-
mony of witnesses; interrupting opposing counsel, the inter-
preter, and the judge; arguing after the judge had made rulings;
failing to follow the judge’s instructions; and attempting to
communicate with a witness who was testifying.
CONCLUSION OF LAW
By engaging in the conduct described above, Respondent
failed to conform to the standards of ethical and professional
conduct required of practitioners before the courts and engaged
in misconduct of an aggravated character that is grounds for
suspension and/or disbarment from practice before the Board as
described in Section 102.177(a) and (d) of the Board’s Rules
and Regulations.
Remedy
I find the Respondent’s misconduct in the underlying pro-
ceeding to be similar to that of the nonattorney party represen-
tative disciplined by the Board in David M. Kelsey, 349 NLRB
327 (2007). Accordingly, I shall recommend a similar sanction
UZI EINY 1187
of a 6-month suspension, rather than the 2-year suspension
requested by the General Counsel.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7

7 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 pur-
poses.
ORDER
In order to preserve and protect orderly administration of the
National Labor Relations Act and to effectuate its policy:
Uzi Einy is suspended from appearing or practicing before
the Board for a period of 6 months from the date this decision is
adopted by the Board.