Independence Residences Inc

National Labor Relations Board - Board Decisions

May 18, 2012

358 N.L.R.B. 362 (N.L.R.B. 2012)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 42
362
Independence Residences, Inc. and Workers United,
Service Employees International Union. Case
29–CA–030566
May 18, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On August 24, 2011, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Acting Gen-
eral Counsel and the Charging Party each filed an an-
swering brief.
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 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified1 and set
forth in full below.
This case follows from an earlier Board decision certi-
fying UNITE as the collective-bargaining representative
of the employees involved here and rejecting the argu-
ment of the Respondent, Independence Residences, Inc.
(IRI), that a New York State statute (New York Labor
Law Sec. 211-a) impermissibly interfered with its ability
to communicate with employees during the election
campaign and was preempted by the National Labor Re-
lations Act. Independence Residences, Inc., 355 NLRB
724 (2010) (finding that State statute did not interfere
with election, even assuming preemption). IRI renews
its preemption-based argument in this proceeding, but we
reject it, because the issue was fully and fairly litigated in
the representation case and because IRI has not presented
any newly discovered evidence. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).2
Two questions remain: (1) whether the Respondent vi-
olated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with Workers United,
Service Employees International Union, as the successor
to UNITE, the certified bargaining representative; and
(2) if so, whether an affirmative bargaining order is an
appropriate remedy for that violation. The judge found
that Workers United is the successor to UNITE and that
IRI violated the Act as alleged by refusing to recognize
and bargain with Workers United. We agree with those
findings for the reasons set forth in detail in the judge’s

1 We shall modify the judge’s recommended Order and notice to
conform to the Board’s standard remedial language.
2 Member Hayes dissented in the representation case, but agrees that
there are no grounds for relitigating the issues decided there.
decision.3 The judge also rejected IRI’s contention that
turnover among unit employees and the passage of time
between the election and the Board’s certification of
UNITE render a bargaining order inappropriate. We
agree with the judge’s findings in this regard for the rea-
sons stated in his decision and for the additional reasons
discussed below.4
An employer is normally obligated to recognize and
bargain with a validly certified union for 1 year, during
which the union enjoys a conclusive presumption of ma-
jority support. See, e.g., Bryant & Stratton Business
Institute v. NLRB, 140 F.3d 169, 186 (2d Cir. 1998):

This presumption promotes stability of the bargaining
relationship[] [by] enabling the union to concentrate on
obtaining a collective bargaining agreement without
worrying about the immediate risk of decertification,
and removes any temptation on the employer’s part to
avoid good-faith bargaining in an effort to undermine
union support.

Id. (citing Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 785–787 (1996)). See also Ray Brooks v. NLRB,
348 U.S. 96, 100 (1954) (“A union should be given am-
ple time for carrying out its mandate on behalf of its
members, and should not be under exigent pressure to
produce hot-house results or be turned out.”). A union’s
initial certification year begins to run only when the em-
ployer starts bargaining in good faith. See Bryant &
Stratton Business Institute, supra at 184–185 (citing
NLRB v. Star Color Plate Service, 843 F.2d 1507, 1509
(2d Cir. 1988)) (extending the union’s certification year
where the employer failed to bargain in good faith).
We reject IRI’s contention that a bargaining order is
nonetheless inappropriate because of turnover in the bar-
gaining unit. The only circumstances that the Board rec-
ognizes as defenses to an employer’s duty to bargain
during the certification year are dissolution of the certi-
fied collective-bargaining representative, radical fluctua-
tion in the size of the bargaining unit within a short peri-

3 In affirming the judge’s finding that Workers United is the succes-
sor to UNITE, we find it unnecessary to rely on the judge’s discussion
of Workers United’s affiliation with the Service Employees Interna-
tional Union. We note that the judge explicitly held that he would have
found that Workers United was not an entirely different labor organiza-
tion from UNITE even absent the affiliation of Workers United with
SEIU. See fn. 42 of the judge’s opinion.
4 Member Hayes agrees with the Respondent that the unusual cir-
cumstances of this prolonged litigation are not meaningfully distin-
guishable from those in NLRB v. Connecticut Foundry Co., 688 F.2d
871 (2d Cir. 1982), and NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d
Cir. 1981). Consistent with the equitable principles articulated by the
court in those cases, he would therefore not impose an affirmative
bargaining order on the Respondent here, and he dissents from his
colleagues’ decision to do so.
INDEPENDENCE RESIDENCES, INC.

363
od of time, and the expiration of a collective-bargaining
agreement lasting less than 1 year. See Bryant & Strat-
ton Business Institute, supra at 186. The Respondent
does not allege that any of those “unusual circumstances”
exist in this case. Id. Even if (contrary to our law) em-
ployee turnover were a circumstance that could rebut the
presumption of majority support, the factual record here
does not permit such a finding. The election resulted in
an overwhelming victory for the Petitioner. See 355
NLRB at 724. IRI produced no evidence of turnover
within the unit. Indeed, it offered no evidence whatsoev-
er suggesting that unit employees no longer support
Workers United. Although there were more employees
in the unit at the time of the hearing than there were at
the time of the election, the unit’s expansion is insuffi-
cient to constitute an unusual circumstance. See, e.g.,
Club Cal-Neva, 231 NLRB 22 (1977) (presumption of
majority representation not rebutted where the unit tri-
pled in size and experienced 500 percent turnover);
Ocean Systems, Inc., 227 NLRB 1593 (1977) (40-percent
expansion of the unit and turnover did not justify refusal
to bargain).5
Nor does administrative delay in this case make a bar-
gaining order inappropriate. The Board issued its certifi-
cation in August 2010, over 7 years after the June 2003
election. During the entire time the case was pending at
the Board, a Federal lawsuit challenging New York La-
bor Law Section 211-a on the basis of Federal preemp-
tion was proceeding in the Federal courts.6 In addition,
for the more than 2-year period from the end of Decem-
ber 2007 to April 2010, the Board had only two members
and lacked the authority to issue decisions. See New
Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).
Once the Board’s quorum was restored, this case was

5 The judge found that the bargaining unit consisted of 205 employ-
ees at the time of the hearing. The Acting General Counsel contends
that there were only about 180, and that other new employees were not
in unit positions, while the Respondent contends that there were 234
employees in the unit at the time of the hearing. We find it unnecessary
to resolve this dispute, as under any of those scenarios the increase in
the size of the unit would not constitute a circumstance justifying a
refusal to bargain.
6 The Federal litigation consumed more than 7 years. Before UNITE
had filed its petition in the representation case, the Healthcare Associa-
tion of New York State (HANYS), of which IRI is a member, had sued
to enjoin New York from enforcing Sec. 211-a on the ground that it
was preempted by the NLRA. After the Board issued its decision in the
representation case, the United States District Court for the Northern
District of New York held that New York Labor Law Sec. 211-a is
preempted by the NLRA and enjoined New York from enforcing the
statute. Healthcare Assn. of New York State v. Cuomo, No. 1:03-CV-
0413 (NPM) (N.D.N.Y. Sept. 7, 2011). During the course of the litiga-
tion, the Supreme Court upheld a preemption challenge to a similar
California law. Chamber of Commerce of the United States v. Brown,
554 U.S. 60 (2008).
promptly decided, on grounds that did not require the
Board to decide the preemption issue that remained be-
fore the Federal courts.
Although the delay in this case is regrettable, Board
bargaining orders issued in similar circumstances have
been enforced by reviewing courts. For example, in
NLRB v. Star Color Plate Service, the Second Circuit
enforced a bargaining order extending the certification
year where the Board certified the union more than 5
years after the election. 843 F.2d at 1508. The court
held that “it is error to refuse to enforce a bargaining
order when it is conceded that there has been a Board
election, the Union was duly certified, and the Company
thereafter refused to bargain in good faith.” Id. at 1510
(quoting NLRB v. Patent Trader, Inc., 426 F.2d 791, 792
(2d Cir. 1970) (en banc)). See also NLRB v. Synergy Gas
Corp., 843 F.2d 1510 (2d Cir. 1988) (enforcement after
more than 4-year delay); Glomac Plastics Inc. v. NLRB,
592 F.2d 94 (2d Cir. 1979) (enforcement after finding of
bad-faith bargaining despite 4-1/2-year administrative
delay). Cf. NLRB v. Katz, 369 U.S. 736, 748 fn. 16
(1962) (“Inordinate delay in any case is regrettable, but
Congress has introduced no time limitation into the Act
except that in § 10(b).”).
Reviewing courts have, on occasion, relied in part on
Board delay in denying enforcement of bargaining orders
in initial certification cases, but those cases involved
longer delays and aggravating circumstances not present
here. For example, in NLRB v. Long Island College
Hospital, 20 F.3d 76, 83 (2d Cir. 1994), the Second Cir-
cuit denied enforcement of the Board’s bargaining order
citing “unique circumstances,” including 14 years of ad-
ministrative delay, extraordinary Board and employee
turnover, confusion in the law regarding appropriate bar-
gaining units in health care institutions, and the fact that
a majority of current unit employees did not vote in the
election. Id.7 In another case, the Seventh Circuit, in
addition to citing an unexplained 9-year delay, found no
reason to believe that the union retained the support of a
majority of the bargaining unit—out of the 70 to 80 unit
employees at the time of the election, only 10 remained
when the Board petitioned the court for enforcement.
Moreover, the company’s ownership and management
had changed and the plants were being relocated. NLRB
v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992).
The Board and courts are rightly concerned with ad-
ministrative delay in Board certification proceedings,
especially when it is coupled with other bases for ques-
tioning the continuing viability of the certified union’s

7 For the purposes of this decision, we do not rely on the Board’s de-
cision in Long Island College Hospital, 310 NLRB 689, 698 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

364
majority support. Acknowledging this concern, we nev-
ertheless find that requiring IRI to bargain with the Un-
ion best effectuates the policies of the Act. First, the
facts here present no good reason to doubt the certified
union’s continuing majority support. Workers United’s
predecessor was voted in by a large majority, there is no
evidence of employee turnover within the unit, and there
is no evidence that IRI’s current unit employees do not
want Workers United to bargain on their behalf. Second,
a bargaining order is the proper remedy because only a
bargaining order protects against an employer’s “incen-
tive to disregard its duty to bargain in the hope that over
a period of time a union will lose its majority status.”
See NLRB v. Patent Trader, Inc., supra at 792. IRI has
already demonstrated its lack of respect for employee
free choice during the election campaign by unlawfully
interrogating employees, soliciting grievances with the
implied promise to remedy them, threatening to end its
focus group program, and granting and timing its wage
increases in order to influence employees’ support for the
Petitioner. Independence Residences, Inc., 355 NLRB
724, 726 (2010). Permitting IRI to avoid its bargaining
obligation because of the Board’s delay would further
infringe on the employees’ free choice to select their
bargaining representative.
For all the foregoing reasons, we adopt the judge’s
recommendations and we shall order IRI to recognize
and, on request, bargain with Workers United as the rep-
resentative of the unit employees for a period of at least 1
year, commencing when IRI begins to comply with the
terms of our Order.
ORDER
The National Labor Relations Board orders that the
Respondent, Independence Residences, Inc.,
Woodhaven, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively with Workers United, Services Employees In-
ternational Union (the Union) as the exclusive collective-
bargaining representative of its employees in the bargain-
ing unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time Relief employees in
the classifications of Direct Care Workers, Residential
Habilitation Specialists, Day Habilitation Workers,
Medical Care Workers and Maintenance, employed by
the Employer at and out of its office located at 93-22
Jamaica Avenue, Woodhaven, New York and the fol-
lowing 11 facilities: Park Lane South Residence in
Richmond Hill, Florence Kalil Gutman Residence in
Sunnyside, Metropolitan Towers Residence I in Kew
Gardens, Metropolitan Residence II in Kew Gardens,
Judita M. Prelog Residence in South Ozone Park, Jack-
son Heights Residence in Woodside, Dr. Betty Bird
Residence in Woodhaven, Forest Hills Residence in
Forest Hills, 101st Avenue Residence in Ozone Park,
77th Street Residence in Woodhaven and East 21st
Street Residence in Brooklyn, excluding all office cler-
ical and administrative employees, technical employ-
ees, professional and managerial employees, guards
and supervisors as defined in Section 2(11) of the Act.

(b) Furnish to the Union in a timely manner all infor-
mation that was requested on November 30, 2010.
(c) Within 14 days after service by the Region, post at
its Woodhaven, New York facility and at all of its other
locations and facilities in Brooklyn and Queens which
make up the appropriate unit described above, copies of
the attached notice marked “Appendix.”8 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respond-

8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INDEPENDENCE RESIDENCES, INC.

365
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at the above facilities at any time
since November 30, 2010.
(d) Notify the Regional Director for Region 29 in writ-
ing within 21 days from the date of this Order what steps
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the certification of the
Union issued by the Board on August 27, 2010, is ex-
tended for a period of 1 year commencing from the date
on which the Respondent begins to comply with the
terms of this Order.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Workers United, Service Employees International
Union (the Union) as the exclusive collective-bargaining
representative of our employees in the bargaining unit.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time Relief employees in
the classifications of Direct Care Workers, Residential
Habilitation Specialists, Day Habilitation Workers,
Medical Care Workers and Maintenance, employed by
us at and out of our office located at 93-22 Jamaica
Avenue, Woodhaven, New York and the following 11
facilities: Park Lane South Residence in Richmond
Hill, Florence Kalil Gutman Residence in Sunnyside,
Metropolitan Towers Residence I in Kew Gardens,
Metropolitan Residence II in Kew Gardens, Judita M.
Prelog Residence in South Ozone Park, Jackson
Heights Residence in Woodside, Dr. Betty Bird Resi-
dence in Woodhaven, Forest Hills Residence in Forest
Hills, 101st Avenue Residence in Ozone Park, 77th
Street Residence in Woodhaven and East 21st Street
Residence in Brooklyn, excluding all office clerical and
administrative employees, technical employees, profes-
sional and managerial employees, guards and supervi-
sors as defined in Section 2(11) of the National Labor
Relations Act.

WE WILL furnish to the Union in a timely manner the
information that was requested by the Union on Novem-
ber 30, 2010.

INDEPENDENCE RESIDENCES, INC.

Emily Cabrera, Esq., for the General Counsel.
Louis P. DiLorenzo, Esq. (Bond Schoeneck & King PLLC), of
New York, New York, for the Respondent.
Ira Katz, Esq., of New York, New York, for the Charging Par-
ty.
DECISION
STEVEN FISH, Administrative Law Judge. Pursuant to charges
filed by Workers United, Service Employees International Un-
ion (Workers United) in Case 29–CA–026042 and 29–CA–
030566, the Regional Director for Region 29 issued a com-
plaint and notice of hearing on February 28, 2011, alleging that
Independence Residences, Inc. (Respondent or the Employer)
violated Section 8(a)(1) and (5) of the Act by refusing to recog-
nize and bargain with Workers United, alleged to be the succes-
sor labor organization to UNITE, AFL–CIO, CLC (UNITE),
which union had been certified to represent Respondent’s em-
ployees, by refusing to supply relevant information to Workers
United and by making several changes in conditions of em-
ployment of its employees without notifying or bargaining with
UNITE.
On March 29, 2011, Respondent filed a motion to dismiss
the complaint allegations relating to the charge filed in Case
29–CA–026042, which was filed on December 30, 2003, on the
grounds of laches. Thereafter, on April 26, 2011, General
Counsel filed an opposition to Respondent’s motion to dismiss.
On May 19, 2011, the Board issued an Order denying Re-
spondent’s motion to dismiss the complaint allegations relating
to Case 29–CA–026042.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

366
The trial, respect to the instant complaint, was held before
me on May 23, 2011, in Brooklyn, New York. At the start of
the hearing, General Counsel moved to sever Case 29–CA–
026042 from the complaint and to withdraw allegations 17–25
from the complaint based on a “conditional settlement” reached
by the parties. I granted General Counsel’s motion, which left
the complaint allegations relating to Case 29–CA–030566 for
disposition.
Briefs have been filed by the parties and have been carefully
considered. Based on the entire record,1 including my observa-
tion of the demeanor of the witnesses, I, hereby, issue the fol-
lowing recommended.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with its principal place of busi-
ness located at 93-22 Jamaica Avenue in Woodhaven, New
York, and 13 residential facilities located throughout Kings,
Queens, and Bronx Counties in New York City, where it has
been engaged in training, housing and related activities for
developmentally disabled adults.
During the past 12 months, which period is representative of
its operations in general, Respondent derived gross revenues in
excess of $250,000 and purchased and received at its New York
State facilities supplies and materials valued in excess of
$10,000 directly from points located outside the State of New
York.
It is admitted, and I so find, that at all material times, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I so find, that UNITE and Workers
United are and have been labor organizations within the mean-
ing of Section 2(5) of the Act.
II. PRIOR RELATED CASE
Independence Residences, Inc., 355 NLRB 724 (2010), Case
29–RC–010030
On April 24, 2004, Union of Needletrades Industrial and
Textile Employees (UNITE), AFL–CIO (UNITE or Petitioner)
filed a petition seeking to represent certain employees em-
ployed by Respondent. On May 9, 2003, the Regional Director
for Region 29 approved a Stipulated Election Agreement exe-
cuted by the parties, providing for an election to be conducted
among employees in the following unit:

All full-time and regular part-time and Relief employees in
the classifications of Direct Care Workers, Residential Habili-
tation Specialists, Day Habilitation Workers, Medical Care
Workers and Maintenance, employed by the Employer at and
out of its office located at 93-22 Jamaica Avenue,
Woodhaven, New York, and its facilities listed in Appendix
A,2 excluding all office clerical and administrative employees,

1 Pursuant to agreement of all parties, the record was left open for
the submission of R. Exh. 7 and CP Exh. 3. These documents were
submitted subsequent to the close of the hearing and are received in
evidence.
technical employees, professional and managerial employees,
guards and supervisors as defined in Section 2(11) of the Act.

_________________________________________
2 They are as follows:

PARK LANE SOUTH RESIDENCE
101-08 Park Lane South
Richmond Hill, New York 11418

METROPOLITAN TOWERS RESIDENCE
119-40 Metropolitan Avenue–Apt. #C1
Kew Gardens, New York 11415

JUDITA M. PRELOG RESIDENCE
130-33 130th Street
South Ozone Park, New York 11420

DR. BETTY BIRD RESIDENCE
93-31 85th Road
Woodhaven, New York 11421

101st AVENUE RESIDENCE
103-12 101st Avenue
Ozone Park, New York 11417

EAST 21ST STREET RESIDENCE
804 East 21st Street
Brooklyn, NY 1210

FLORENECE KALIL GUTMAN
RESIDENCE/SUNNYSIDE
50-28 39th Place
Sunnyside, New York 11104

METROPOLITAN TOWERS RESIDENCE 1L
119-40 Metropolitan Avenue–Apt. #C3
Kew Gardens, New York 11415

JACKSON HEIGHTS RESIDNECE/WOODSIDE 69th
33-23 69th Street
Woodside, New York 11377

FOREST HILLS RESIDENCE
108-14 Metropolitan Avenue–Apt. #2L
Forest Hills, New York 11415

77th STREET RESIDENCE
90-10 77th Street
Woodhaven, New York 11421-2805

Subsequently, a mail ballot election was conducted between
June 2 and 16, 2003. The tally of ballots issued on June 17,
2003, shows 68 votes for and 32 against the Petitioner, with 7
challenged ballots, an insufficient number to affect the results.
Thereafter, on June 24, 2003, Respondent filed timely objec-
tions to conduct affecting the conduct of the election.
On August 4, 2003, the Regional Director issued a report on
objections and notice of hearing, in which he directed a hearing
on certain of the Employer’s objections and recommended that
one objection be overruled.
UNITE also filed unfair labor practice charges in Cases 29–
CA–025657, 29–CA–025697, and 29–CA–025720 on various
dates between June 13 and July 17, 2003, alleging that Re-
spondent violated various sections of the Act.
INDEPENDENCE RESIDENCES, INC.

367
On September 30, 2003, the Regional Director issued an or-
der consolidating cases, consolidated complaint, report on ob-
jections and notice of hearing, in which he consolidated the
representation case with the unfair labor practice charges al-
leged in said complaint, which alleged that Respondent violated
Section 8(a)(3) and (1) of the Act in various respects.
The trial with respect to the issues raised by the pleadings
was held before me over the course of 9 days between Novem-
ber 18 and December 12, 2003. At the close of the trial, I sev-
ered the representation and unfair labor practices cases in order
to expedite the processing of the representation matter.
On June 7, 2004, I issued a Recommended Decision on Ob-
jections in Case 29–RC–010030. The employer’s objections
centered on its assertion that Section 211–a of New York Labor
Law, which was in effect at the time of the election, was pre-
empted by Federal labor law and that its existence at the time
warranted setting aside the election.
I recommended overruling the Employer’s objections. I as-
sumed, without deciding, that the New York labor law in ques-
tion was pre-empted and found, however, that the Employer
had not established that its campaign was substantially inhibit-
ed by the existence of the law. Rather, I concluded that the
Employer conducted a vigorous and aggressive antiunion cam-
paign, notwithstanding the alleged constraints of the New York
labor law, and that the Employer had not met its burden of
proving that the law had an objectionable impact on the free
choice of employees in the election.
On September 30, 2004, I issued a decision on the unfair la-
bor practices that were litigated at the same time as the repre-
sentation case, but then were severed by me at the hearing. I
found that Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees about union activities, so-
liciting grievances with an implied promise to remedy them,
threatening to end its focus group program if employees chose
union representation and granting and timing the implementa-
tion of wage increases to influence employees’ support for the
Petitioner. I also found that Respondent violated Section 8(a)(3)
and (1) of the Act by eliminating the regular part-time position
of and reducing the hours of employee Mary Lynch because of
her union activities and support.
Further, I recommended dismissal of complaint allegations
that asserted that Respondent violated Section 8(a)(1) and (3) of
the Act by terminating the employment of three other employ-
ees.2
No exceptions were filed to my recommended Decision by
any party. Consequently, the Board adopted the decision in an
unpublished order on December 16, 2004.
Respondent did file exceptions in the representation case.
The Board issued its decision on August 27, 2010 (355 NLRB
724), wherein it affirmed my decision and certified UNITE as
the collective-bargaining representative of Respondent’s em-
ployees in the stipulated unit.
Members Schaumber and Hayes dissented, relying on the
Supreme Court’s decision Chamber of Commerce v. Brown,
554 U.S. 60 (2008), wherein a similar California statute was
held to be preempted by Federal law. Chairman Liebman issued

2 Independence Residences, JD(NY)–43–04 (Sept. 30, 2004).
a concurring opinion noting that the case has languished at the
Board for over 7 years—an unconscionably long time—as a
still unresolved challenge to New York State Labor Law Sec-
tion 211-a has worked its way through the federal judicial sys-
tem.” Id. at 17.3
Chairman Liebman also relied on the unfair labor practices
committed by Respondent to support her conclusion that the
election should not be set aside. She observed as follows:

Here, the Employer insists that it was chilled by New
York’s law from conducting the anti-union campaign it
wanted to mount. But the Employer was not chilled by the
National Labor Relations Act. It committed unfair labor
practices during the election period, trying to coerce em-
ployees. On factual grounds, then, it is hard to credit and
endorse the Employer’s claim—even apart from the un-
fairness of setting aside an election at the urging of a party
that itself tried to destroy employee free choice.
The Board’s proper focus is on the voters in this elec-
tion case: employees. Nothing in the evidence persuades
me that the New York law prevented employees from
freely choosing whether or not they wished union repre-
sentation. They knew just where the Employer stood—so
opposed to the Union that it was willing to violated federal
law—and voted two to one for the Union even so. Viewed
pragmatically, and with the basic goals of federal labor
law in mind, the resolution of this case is simple. [Id. at
17.]
III. UNITE
UNITE was created in 1995 by the merger of the Interna-
tional Ladies Garment Workers’ Union (ILGWU) and the
Amalgamated Clothing and Textile Workers’ Union. UNITE’s
constitution defines the international union’s jurisdiction. It
states as follows:

Section 4 Jurisdiction

The jurisdiction of UNITE includes all workers employed in
the countries of North America and the Caribbean Basin by
firms engaged in the production and distribution of textiles,
clothing, apparel and related products; by commercial laun-
dries, distribution centers and retail stores; and workers in
other trades, occupations and industries.

UNITE’s members were organized into various local unions,
which in turn, were, for the most part, affiliated with joint
boards. The joint boards consisted of various local unions
throughout the United States and Canada. UNITE, at the time
of the election at Respondent, had 21 joint boards, 16 located in
the United States, and 5 in Canada. UNITE had a few locals,
who were direct affiliates and were not members of any joint
boards. Joint boards are headed by a manager and also consist-

3 What Chairman Liebman was referring to was that notwithstanding
the Supreme Court’s decision in Brown, which was issued in 2008, the
Federal Court litigation attacking the New York statute, which is simi-
lar to, but not identical to the California statue considered in Brown,
was still not decided. Healthcare Assn. of New York State v. Pataki, 388
F.Supp.2d 6 (N.D. New York) (Pataki I); 471 F.3d 87 (2d Cir. 2006)
(Pataki II).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

368
ed of elected officers and delegates, who were generally offic-
ers or officials of the local unions. Joint boards also employed
business agents and, at times, organizers.
The joint boards were organized by industry and/or by geog-
raphy and were responsible for negotiation of contracts,4 in-
volvement in grievances, including making the final decision
on whether to proceed to arbitration on a particular grievance,
and deciding on whether dues should be raised. Joint board
officials consulted with representatives of the locals concerning
all of these matters.
One of UNITE’s joint boards was named the Disability Ser-
vices and Allied Workers Joint Board (DSAW). It was located
at 275 Seventh Avenue on the 14th Floor, and its co-managers
were Richard Rumelt and Robert Jordan. It consisted of six
local unions. They were: Local 41, located in Ellenville, New
York; Local 62-32, located in New York, New York; Local
189, located in Kingston, New York; Local 32J, located in
Stamford, Connecticut; Local 919, located in Yonkers, New
York; and Local 1904 located in Queens, New York.
Rumelt had previously been an official of Local 8422 and
Local 10 of UNITE, which were locals that represented gar-
ment workers. It was decided sometime in the early to mid
2000s that these locals would be merged into the New York
Metropolitan Joint Board. At that time, Rumelt started the
DSAW and began to organize employers that employed work-
ers in the MRDD5 industry.
Over the next several years, DSAW under Rumelt’s leader-
ship organized four or five employers, who performed MRDD
services, and as noted, consisted of the six locals described
above.6
UNITE’s constitution provided for a general executive board
(GEB) and an executive board. The GEB consisted of the inter-
national president, secretary-treasurer, 2 executive vice presi-
dents and 25 vice presidents. The Executive Board was made
up of the international president, secretary-treasurer and two
vice presidents. The GEB included: Bruce Rayner, UNITE’s
international president; Edgar Romney, secretary-treasurer; and
its two international executive vice presidents, William Lee and
Mark Fleishman. The GEB also consisted of UNITE’s vice
presidents: Noel Beasley, Ernest Bennett, Harold Bock, Gary
Bonadonna, Clayola Brown, May Chen, Susan Cowell, Angelo
de Costa, Alexandra Dagg, Lynne Fox, John Gillis, Jean Har-
vey, Robert Jordan, Christine Kerber, Wilfredo Larancuent,
Joseph Lombardo, David Melman, Gail Meyer, Warren Pep-
icelli, Harris Raynor, Richard Rumelt, Lynne Talbott, and
Christina Vasquez.7
Romney and Chen were managers of the New York Metro-
politan Joint Board, which was located at UNITE’s headquar-

4 Generally, collective-bargaining agreements are signed by the
manager or other representative of the joint board.
5 MRDD stands for mental retardation and developmental disabili-
ties.
6 The record is uncertain as to whether all of these locals represented
employers involved in MRDD functions. The record does reflect that
Local 919 did represent MRDD workers.
7 These 25 vice presidents were also officers of various local and
joint boards.
ters at 275 Seventh Avenue, New York, New York.8 That joint
board consisted of 5 local unions, who, in turn, employed 14
business agents.9
The officers of UNITE, detailed above, were elected at
UNITE’s convention, which consisted of local unions and joint
board delegates. These delegates elected the International’s
officers. The officers met three times a year as an executive
board. The top international officers comprise an executive
committee, which may act for the executive board between
executive board meetings.
Membership in UNITE can be obtained if the individual is
actively attached to an occupation or industry within the juris-
diction of UNITE.
In order to run for local union office or as a delegate to a
convention, an individual must be a member in good standing
for at least a year. To run for international office, an individual
must be a delegate to the quadrennial conventional and be a
member in good standing for UNITE for at least 2 years.
Article 22 of the UNITE Constitution provided for a dues
minimum of $21.20 per month or $5.30 per week. An affiliate
joint board can set aside higher dues, which must be approved
by a majority vote of members (affiliate) or delegates members
or executive members (joint board).
The constitution also detailed that the minimum dues would
be increased by 50 cents for weekly dues or $2 for monthly
dues once a year from 2003–2005. Starting in 2007, minimum
increases will be determined via a formula based up the overall
increase in member’s wage increases.
Article 16 of the UNITE Constitution provides that members
or officers can be expelled, removed or disciplined for various
reasons, including working as a strikebreaker. Members have
the right to file charge with the secretary of the appropriate
body. Article 17 provides for hearing procedures for the dispo-
sition of such charges.
According to article 20 of the UNITE Constitution, all local
unions, which are part of a joint board, must submit all disputes
to the joint board. The chief executive of the joint board or
directly affiliated local must request the international presi-
dent’s authority for strikes in excess of 7 working days.
The constitution further requires that there shall be a general
convention every 4 years, that the GEB meet three times a year
and that affiliates hold periodic meeting with their member-
ships.
The grievance procedure was generally set forth in each in-
dividual affiliate contract, which, as noted above, was normally
negotiated by and signed by joint board officials. Individual
grievances would generally start with a shop steward, and if he
or she cannot resolve it, a business agent would become in-
volved. If the business agent could not resolve the matter, it
would be turned over the joint board manager or official. The
joint board manager, in consultation with other union repre-

8 As noted above, the DSAW was also located at the same address.
9 Robert Stalosky, Richard Guido, Maximo Reyes, Rosemary Lyons,
Sarah Martinez, Joseph Dellcopini, Joseph Longo, David Johnson,
Evans Hurtimu, Joana Schrum, Emily Lee, Ferdinand New, Marcello
Cornell, Manny Rodriguez, and Rodrigo Cornell.
INDEPENDENCE RESIDENCES, INC.

369
sentatives, made the decision on whether to proceed to arbitra-
tion.
UNITE owned the building at 275 Seventh Avenue, New
York, New York, where it housed its general offices, plus sev-
eral joint boards and locals, including the DSAW. UNITE also
owned the Amalgamated Bank. UNITE also was involved with
the following benefit funds: UNITE National Retirement Fund,
UNITE National Health Fund and the UNITE Staff Retirement
Fund.10
IV. UNITE’S ORGANIZATION OF RESPONDENT’S EMPLOYEES
As related above, an organizing campaign was commenced
by UNITE among Respondent’s employees in the spring of
2003. The record is not entirely clear as to precisely which
entity of UNITE, the individuals, who organized Respondent’s
employees, belonged.
In this regard, Respondent introduced a number of docu-
ments from that organizing campaign in 2003. They were is-
sued by an entity named “UNITE Disability Services Council
(DSC), AFL–CIO. These documents also referred to a website
for the DSC, www.unitedsc.org. One of the documents indenti-
fies Wilma Neal as the director of DSC, as does a business card
given by Neal to Raymond DeNatale, Respondent’s executive
director, during the course of the campaign. The business card
also indentifies Neal as the director of UNITE DSC and lists a
phone number of 212–265–7000 and a fax number, 212–489–
6598.
General Counsel presented two witnesses, Romney and
Richard Guido, a business agent for UNITE. Romney testified
that he had heard of the DSC and believed that it was part of
the DSAW and under the direction of Rumelt. Romney also
testified that he had heard of the name, Wilma Neal, but that he
was unaware that she was president or director of the DSC
under Rumelt. Guido was aware of the DSAW that was man-
aged by Rumelt and that this joint board was organizing
MRDD employers, but was not aware of an entity called DSC.
Romney further testified that sometime in 2004, he had a
conversation with Rumelt at the UNITE offices.11 Rumelt in-
formed Romney that he was trying to get his joint board to
grow and to organize other disability facilities. Rumelt added
that there had been an organizing campaign conducted at Re-
spondent and that the organizing was done by organizers from
the International. Rumelt also told Romney that there had been
an election at the facility, and it had still not been resolved.
Romney also elaborated on that testimony by stating that
Rumelt’s joint board (DSAW) had only one organizer on its
staff, so the International sent in organizers for the campaign,
which was not an unusual occurrence within UNITE.
Testimony was adduced in the prior hearing held before me
concerning UNITE’s organizing campaign. I found as follows:

UNITE began its organizing campaign in early April
2003. From April 16 to 22 UNITE conducted what was re-
ferred to by its coordinator of organizing Allison Duwe as

10 The funds were jointly administered by trustees of the funds, con-
sisting of UNITE officers and representatives of employers.
11 I note that both of the joint boards were located at the same ad-
dress.
a “blitz,” which consisted of 11 organizers making home
visits at times unannounced, to the homes of employees of
IRI. These visits sometimes lasted as long as a few hours,
and at times were conducted by more than one organizer at
a time. Duwe alone visited 35–50 different IRI employees
during the “blitz,” and of those, some were visited as
many as five times. All of these visits were conducted by
paid, professional organizers who had received training
from the union or affiliated entities such as the AFL–CIO.
After April 22, 2003, three organizers, including Duwe
worked on the campaign and continued its practice of
household visits. A day or two before the mail ballots were
sent out, June 2, 2003 one additional organizer returned to
the campaign for a few days.

Additionally, UNITE’s directory lists Wilma Neal as a na-
tional organizing official with a title of “MRDD Director.” This
listing gives Neal’s phone and fax numbers, which were the
same numbers that appeared on the business card, indentifying
Neal as Director of the DSC. The UNITE’s directory does not
mention the DSC, but does, as related above, include the
DSAW mentioning Rumelt and Jordan as co-managers. There
is also no reference to the DSC in the portion of the directory
that refers to the DSAW.
The documents submitted by Respondent, which do refer to
the DSC, include the following:

UNITE! DSC
Disability Service Council

The UNITE Disability Services Council (DSC)

Welcome to the UNITE Disability Services Council! Our
council is made up of over one thousand direct care and pro-
fessional employees across New York State who care for the
mentally retarded and developmentally disabled (MRDD).
We are committed to building a movement for MRDD work-
ers statewide to improve wages, win respect [and] dignity on
the job, and maintain the quality of care we are accustomed to
providing.

If you are a UNITE member or an MRDD worker who is in-
terested in organizing at your workplace, please explore the
information on this site and feel free to contact us with any
questions or comments.

Wages

UNITE fights for better funding for the agencies they repre-
sent by using this political power at the state level, where the
decisions on funding are made. We get our political power
through our membership, representing over 250,000 workers
across the country, and through our Political Action Commit-
tee, which lobbies aggressively for better wages in the MRDD
industry.

Case Studies

“I’ve been working at ARC for five years. Before the union,
the agency would lose good employees because they didn’t
pay us what we were worth. We were able to fight to get bet-
ter pay and make the improvements we needed so we could
really care for the consumers. I’m pleased that our consumers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

370
know that the staff [they] see today will be with them tomor-
row too.”
−Carl Washington, Day Treatment

“Before we went union, our raises were 1–2% depending on
your evaluation. We won our union and negotiated our con-
tract. In the first year, our raise was anywhere from 7–18%
depending on seniority. Because we have a union contract, we
will continue to build on the raise every year. The union
worked with us, the politicians, and the agency to get more
money from the state. The union held us win the raises we
know we deserve.”
−Jim Lynch, Residential Specialist12

Quality Care

UNITE recognizes that one of the biggest problems facing the
MRDD industry is low staff levels and high turnover. It takes
the right kind of person to do such a demanding job for the
wages that are available, and oftentimes there just aren’t
enough of these people. UNITE [is] fighting to raise wages
and improve conditions in the industry to held cut down on
turnover and give the consumers some stability in the work-
force that cares for them.

UNITE also believes that it is the MRDD workers themselves
who can best address issues [of] care, and work with man-
agement to solve them. We fight for workers’ frights to be
more involved in these issues and their solutions.

“We are constantly short staffed at my house. I finally got fed
up. I was tired of hearing excuses and not seeing any results. I
realized the only way we were going to solve the problem was
if staff took matters into their own hands. I was skeptical, but
through the union we drew up a petition and the whole staff
signed it. In the petition, we demanded that management re-
spond immediately to the shortage of staff in the house, be-
cause it was not only taking its toll on us, but on the consum-
ers as well. We presented the petition to the executive director
of the agency, and within two weeks there was a new employ-
ee hired at the house who was medically certified and had a
CDL.

I realized after this experience that having a union was the
only way to get our issued heard and resolve. Individually,
management did not take our concerns seriously, but when we
stood together as our union, they did. I really believe that be-
ing members of UNITE had helped us improve the quality of
care we provide to the consumers because for the first time,
we, as direct care workers, can take our own steps towards
solving the problems that affect consumers every day.”
−Bob Hildenbrand, Reed House13

12 The document also contained pictures of two individuals, purport-
edly Washington and Lynch. It also contained pictures, purportedly
showing its members lobbying in the New York State Capitol.
13 The document also contained a picture of Hildenbrand.
Lobby Day

UNITE DSC members have lobbied every year for better
wages for MRDD direct care staff and better funding for
MRDD agencies. The UNITE DSC has worked for years to
provide a strong voice in Albany for caregivers for the disa-
bled, and to bring respect and professionalism to this difficult
and important work.

This year, the DSC brought its members to Albany to lobby
for its “Agenda 2003 for Caregivers for the Disabled.” The
members lobbied their legislators [for] the four main points of
the Agenda after weeks of preparation and trainings around
the state.

Here you can read the Agenda and see some pictures from the
event. If you would like to participate in future lobby days,
contact the DSC at 212-265-7000 ext. 503.

UNITE! Agenda 2003 for Caregivers for he Disabled
UNITE represents 90,000 active and retired members
throughout New York State—in the apparel and textile indus-
tries, industrial laundries and light manufacturing. And we al-
so represent over 1,500 caregivers for the disabled.

These workers, employed by non-profit agencies funded by
New York State, do some of the hardest jobs in the world:
taking care of mentally retarded adults who can’t care for
themselves. The intense demands of their jobs are often com-
pounded by low wages, prohibitively expensive healthcare
benefits and lack of respect on the job. As a result of these dif-
ficult conditions, turnover is very high—on average, 30-50%
a year! And the clients suffer when their caregivers are forced
to find new work.

At the facilities UNITE represents, we have been able to
combat this problem and stabilize employment rates by work-
ing for fairer wages and benefits and respect on the job. That
means better working conditions, better care for clients and
stronger agencies.

Voice on the Job

UNITE members have a say in how their jobs are done. And
why shouldn’t they? They spend hours and hours a day caring
for consumers, and understand those consumers’ needs.
Through having a union, UNITE members have the right to
negotiate with management over their working conditions,
and to protect those conditions in a contract. They also have
access to grievance procedure, which gives workers the right
to a fair trial before an impartial judge: they are disciplined.

“I’ve workers with the disabled for the past 8 years. Having a
union at New Horizons has helped those of us who live and
work with the consumers to have a say in how care is provid-
ed. There is a real union difference. Union workers sit on
committees with real power. We have a grievance procedure
that helps us when management is wrong. Most importantly,
we have the right to negotiate and vote on important changes
before they take place. At New Horizons, management doesn’t
INDEPENDENCE RESIDENCES, INC.

371
have the final say. We can speak up without fear. For us, the
union is an important part of our agency.”
−Rebecca Roy, Direct Care Worker14

Based on the above evidence, the precise status of the DSC
is unclear, and it is uncertain whether the DSC was part of or
under the auspices of Rumelt or the DSAW or of the Interna-
tional. I find it most likely that the DSC was simply a name
created by Neal, the International’s “MRDD Director” and an
organizing official of the International to utilize in organizing
campaigns for MRDD facilities. I also conclude that the organ-
izing conducted at Respondent’s facilities was conducted by
Neal and other International representatives, such as Allison
Duwe, but it coordinated with Rumelt of the DSAW. I further
find, consistent with Romney’s testimony, that had Respondent
not filed objections to the election and agreed to bargain with
UNITE, that Rumelt and the DSAW Joint Board would have
been assigned the servicing of the shop by UNITE and the ne-
gotiation of the contract with Respondent.
V. THE MERGER OF UNITE AND HERE
In July 2004, UNITE merged with the Hotel Employees Res-
taurant Employees Union (HERE). The merged unions’ name
was UNITE HERE. The merged unions’ headquarters was
UNITE’s former headquarters at 275 Seventh Avenue, New
York, New York.
After the merger, all of UNITE’s former joint boards became
joint boards under UNITE HERE. The manager and local staff
of these joint boards remained the same. HERE also had its
joint boards, which also retained the same HERE officials in
the new merged UNITE HERE joint boards.
Sometime in 2006, the DSAW merged with a former HERE,
Local 37 and formed the Airport and Racetrack Allied Workers
Joint Board (ARAW). ARAW had many more members and
shops than DSAW.15 Thus, the name of the merged joint boards
was changed, the “disability services” portion of the prior
UNITE joint board was removed and the merged joint board
became known as ARAW. However, Rumelt retained his title
as co-manager of the merged joint board along with Stephen
Papageorge, who had been a former HERE vice president and
who had also been the president of Local 37 of HERE.
All of the DSAW’s locals initially were included in the
merged joint board of ARAW. They included the local or locals
that represented disability employees. The record is unclear as
to how many of DSAW’s locals represented MRDD workers. It
is clear that Local 919, located in Yonkers, New York, repre-
sented such employees, which included at least one contract
with an employer named Richmond. No evidence was adduced
that any of the other locals in DSAW16 represented disability
workers although Romney’s testimony suggests that at least
some of these locals did represent such employees.

14 These documents also contain a picture of Rebecca Roy, as well as
pictures of DSC members meeting with legislators during UNITE DSC
Lobby Day.
15 According to Romney, ARAW had about 25 contracts and DSAW
had 4–5 contracts with disability employers.
16 Locals 41, 62–32, 189, 32J, and 1904.
The record is also uncertain as to which locals from the
DSAW Joint Board were still in existence when the joint board
merged into ARAW in 2006. The record does reflect, however,
that by 2009, three of these locals were still in ARAW.17 Of the
other three locals, Local 62-32 had been transferred into
UNITE HERE’s New York Metropolitan Joint Board, managed
by Romney, Local 32J had been transferred to the UNITE
HERE New England Joint Board and Local 41, located in El-
lenville, did not appear in the 2009 UNITE HERE directory,
suggesting that this local was no longer in existence by 2009.
After the merger, UNITE HERE had two co-presidents,
Bruce Raynor, former president of UNITE, and John Wilhelm,
former president of HERE. The Executive Board of UNITE
HERE consisted of the former vice presidents of UNITE and of
HERE, who all became international vice presidents of UNITE
HERE, plus the two co-presidents, and the executive vice pres-
ident of UNITE HERE.18
All former officers of affiliates of UNITE and HERE contin-
ued to serve in their same capacities with UNITE HERE. Rich-
ard Guido testified that the same business agents that worked
with him under UNITE continued to work as business agents
for the New York Metropolitan UNITE HERE Joint Board.
The dues structure did not change after the merger and the
minimum amounts of dues were still determined by convention.
The local unions and joint boards had the authority to increase
dues as they had under UNITE. However, prior to the merger,
HERE had a lower dues structure than UNITE, particularly
since HERE represented workers in stadiums and arenas, who
worked part time and seasonally. There were some efforts to
increase dues for some former HERE affiliates to bring their
dues up to the former UNITE’s dues levels. Thus, there were
some increases in dues for former HERE affiliates under the
merged UNITE HERE Union. Some former UNITE affiliates
also increased their dues for several reasons during the time of
the merged union.
After the merger, the collective bargaining and grievance ar-
bitration process remained the same and was carried by the
prior officials and representatives of both former UNITE and
HERE while under the merged UNITE HERE Union.
Upon the merger of the two unions, UNITE’s National Re-
tirement Fund merged with Here’s National Retirement Fund.
However, all of the union trustees of the former UNITE Re-
tirement Fund became union trustees of the merged UNITE
HERE Retirement Fund along with former trustees from the
former HERE Retirement Fund.
UNITE’s former headquarters, which had been owned by
UNITE at 275 Seventh Avenue, became the property of the
merged union. Similarly, the Amalgamated Bank, which was
also owned by UNITE prior to the merger, became joint proper-
ty of UNITE HERE.

17 Locals 189, 919, and 1904.
18 The executive vice presidents of UNITE HERE were all former
officials of UNITE and HERE and with the copresidents and the Cana-
dian directors constituted the executive committee of UNITE HERE.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

372
VI. THE DISAFFILIATION FROM UNITE HERE
As a result of disputes that arose between the former officers
of UNITE and the former officers of HERE over various issues,
the joint boards of UNITE HERE held disaffiliation votes on
whether or not to disaffiliate from UNITE HERE. All but two
of the former UNITE joint boards voted to disaffiliate from
UNITE HERE. The only two original UNITE joint boards that
voted not to disaffiliate from UNITE HERE were the New
England Joint Board and ARAW, which, as detailed above, was
a merged joint board consisting of DSAW and Local 37 of
HERE. At the time of disaffiliation, which occurred in early
2009, ARAW had five locals. All of these locals also voted not
to disaffiliate.19 This included Local 919, which, as noted
above, was a local that included disability employees and had
been part of DSAW. Locals 189 and 1904 were also part of
DSAW, but the record is uncertain to whether these locals in-
cluded representation of disability employees. Local 37 was a
former HERE local. The record is silent about Local 117, ex-
cept that it was not a former UNITE local. Rumelt and Pa-
pageorge remained with UNITE HERE and with ARAW.
The New England Joint Board, which, as noted, voted not to
disaffiliate and to remain with UNITE HERE, had a member-
ship of 8750 members in 2009 and 7224 members in 2010. As
noted above, DSAW had six locals prior to the merger. By
2009, only three were still affiliated with ARAW. They were
the three locals that voted not to disaffiliate, Locals 189, 919,
and 1904. Local 189 reported to the Department of Labor 560
members for 2009, Local 919 reported 417 members for 2010
and 328 members for 2009, and Local 1904 reported 661 mem-
bers for 2010 and 555 for 2009.
Of the other former members of DSAW, Local 32J moved to
the New England Joint Board, which as already discussed, vot-
ed not to disaffiliate, but whose numbers were already counted
in assessing the loss of UNITE’s memberships. Local 62–32
did vote to disaffiliate from UNITE HERE and was part of the
New York Metropolitan Joint Board. The sixth former DSAW
local, Local 41, was apparently either out of existence or had
merged with another local or another union. The record is in-
complete on this issue.
VII. WORKERS UNITED
After the vast majority of the former UNITE joint boards
voted to disaffiliate from UNITE HERE, these factions held a
convention on March 21, 2009, and voted to form Workers
United. It was made up solely of joint boards and local unions
that had constituted UNITE. Like UNITE, Workers United was
to have an executive board, general executive board and an
executive committee with the same officers. The joint boards
and locals of Workers United were all former UNITE boards or
locals or part of merged or joint boards, which had been previ-
ously associated with UNITE.
Edgar Romney was initially elected president of Workers
United. By July 2009, Bruce Raynor, the former president of
UNITE, became president of Workers United, and Romney
became secretary-treasurer of Workers United, a position that
he had held at UNITE. Mark Fleishman, who had been an ex-

19 Locals 37, 117, 189, 919, and 1904.
ecutive vice president at UNITE also joined Workers United in
July 2009, along with Raynor in the position of vice president.
Noel Beasley and Lynne Fox, who were vice presidents at
UNITE, became executive vice presidents of Workers United.
Alexandra Dagg, who had been vice president and a representa-
tive of the UNITE Canadian Office, Ontario Council with
UNITE, became secretary-treasurer and Canadian director and
an Executive Committee member at Workers United. The rec-
ord does not reflect what position Dagg held after Bruce Ray-
nor became president of Workers United in July 2009 and
Romney became secretary-treasurer.
UNITE also had 21 vice presidents and other General Execu-
tive Board members.20
Of these 21 vice presidents, six of them left UNITE HERE
prior to the disaffiliation as they did not appear in the UNITE
HERE Directory for 2009. They were Cowell, de Costa Jor-
dan,21 Lee, Lombardo, and Talbott.
Of the remaining 15 former vice presidents of UNITE, 12 of
them became vice presidents of GEB members of Workers
United.22 The remaining three former UNITE vice presidents,
Rumelt, Warren Pepicelli of the New England Joint Board and
Ernest Bennett, who had been UNITE’s director of organizing,
all remained with UNITE HERE and did not join Workers
United.
Workers United’s GEB also consisted of six individuals,
who were not members of UNITE’s GEB.23 Of these six Work-
ers United board members, one, William Towne, had previous-
ly been a UNITE officer, but not a GEB member.24 Rykunyk,
Luebbert and Aristes were all prior member of UNITE HERE’s
GEB.25
Gerken had been the manager of the Rocky Mountain Joint
Board while at UNITE HERE although not a GEB member.
When she joined Workers United, she had the same position26

20 William Lee, executive vice president and 20 vice presidents: Ern-
est Bennett, Harold Bock, Gary Bonadonna, Clayola Brown, May
Chen, Susan Cowell, Angelo de Costa, John Gillis, Jean Harvey, Rob-
ert Jordan, Christine Kerber, Wilfredo Larancuent, Joseph Lombardo,
David Melman, Gail Meyer, Warren Pepicelli, Harris Raynor, Richard
Rumelt, Lynne Talbott, and Christina Vasquez.
21 Jordan, as noted above, had been the comanager with Rumelt of
the DSAW. In fact, the record does not even establish whether Jordan
was ever employed by UNITE HERE or by ARAW since it does not
establish when or why he left UNITE or UNITE HERE.
22 Bonadonna, Bock, Brown, Chen, Gillis, Harvey, Kerber, Larancu-
ent, Melman, Harris Raynor, Meyer, and Vasquez.
23 William Towne, Jane Rykunyk, Tim Luebbert, Lino Aristes, Kate
Gerken, and Sandi Eckland.
24 He had been a manager and secretary-treasurer of the Amalgamat-
ed Northeast Regional Joint Board at UNITE. Towne was also a vice
president and member of the GEB of UNITE HERE.
25 Rykunyk was also vice president of the Minnesota State Council.
Luebbert was the vice president of Local 74 and Aristes was vice-
president of Counsil de Quebec. By the time that they became GEB
board members of Workers United, Luebbert and Rykunyk had become
vice presidents of the Chicago and Mid-West Regional Joint Boards
and Aristes had become vice president of the Union des Travailleura
Industriels et de Service (UTIS) in Montreal, Quebec.
26 The Rocky Mountain Joint Board, which had previously been a
HERE joint board, voted to disaffiliate from UNITE HERE.
INDEPENDENCE RESIDENCES, INC.

373
and became a GEB member of Workers United. Eckland was
the president of Local 50, located in Anaheim, California, at
UNITE HERE although not a board member. At Workers Unit-
ed, she did become a GEB member as a vice president of Local
50 in Anaheim, California, which presumably also voted to
disaffiliate from UNITE HERE.
Wilma Neal, who, as noted above, identified herself as direc-
tor of UNITE Disability Council, but was also the MRDD di-
rector in the organizing department for UNITE. Her name does
not appear in the UNITE HERE directory for 2009 or the
Workers United directory. The record does not reflect whether
she ever was employed in any capacity by UNITE HERE or
whether she had any dealings with DSAW after the organizing
campaign at Respondent concluded prior to the merger. Indeed,
the record does not disclose when or why she terminated her
employment at UNITE.
Article 18 of the Workers United Constitution details a
“benchmark” minimum dues of $31.40 for monthly dues and
$7.85 for weekly dues. It also provides that the GEB shall de-
velop policies for affiliate dues systems. Starting in July 2011,
the constitution provides that all members’ dues will be in-
creased pursuant to a formula based upon members’ average
wage increases across the industry. No affiliate can set higher
dues except by a majority vote of delegates at a general or spe-
cial meeting.
Workers United also had virtually the same membership re-
quirements and eligibility for local or international officers,
amendments or repeal of constitutional provisions, complaint
procedures, strike authorizations, approvals, and convention
and meeting requirements as UNITE.
Further, Workers United had the same collective-bargaining
structure as well as grievance and arbitration structure as
UNITE, as well as UNITE HERE.
As a result of the disaffiliation vote, litigation ensued be-
tween UNITE HERE and Workers United involving numerous
issues, including the disposition of UNITE HERE’s assets.
Sometime in 2010, the parties reached a settlement agreement
with respect to the issues in dispute. As a result of this agree-
ment, Workers United obtained ownership of the Amalgamated
Bank while UNITE HERE retained ownership of UNITE’s
former headquarters at 275 Seventh Avenue, New York, New
York. Workers United is now located at 49 West 27th Street,
New York, New York.
As noted above, when UNITE and HERE merged, UNITE’s
Retirement Fund merged with HERE’s Retirement Fund alt-
hough the former trustees from UNITE continued as trustees in
the merged fund. Despite the disaffiliation, the merged retire-
ment funds remained in existence except that the trustees, who
were formerly UNITE employees, are Workers United employ-
ees and claims are processed the same way through the joint
boards, who are, as related above, now primarily affiliated with
Workers United.
Prior to the execution of this settlement stipulation, Workers
United had signed an affiliation agreement with the Service
Employees International Union (SEIU), dated March 22, 2009.
The merger had virtually no affect on the structure or opera-
tions of Workers United. All property and assets of Workers
United, including the Amalgamated Bank, continued to be
owned by Workers United. Workers United did agree to pay to
the SEIU a per capita tax on each of its members.
The settlement stipulation between UNITE HERE and
Workers United includes the following language:

SEIU shall have exclusive jurisdiction for organizing workers
in healthcare property services and the public sector, includ-
ing without limitation, home care workers, child care workers,
and Mental Retardation/Developmental Disabilities workers.
VIII. WORKERS UNITED REQUESTS INFORMATION
AND BARGAINING
Subsequent to the Board decision certifying UNITE as the
collective-bargaining representative of Respondent’s employ-
ees, Romney received a telephone call from UNITE’s presi-
dent, Raynor, as well as from Workers United’s counsel, Ira
Katz, notifying Romney that Workers United wanted Romney’s
joint board, the New York Metropolitan Joint Board, to be as-
signed to Respondent’s shop in order to negotiate a collective-
bargaining agreement.
There is no evidence that either Romney or anyone else as-
sociated with this joint board had any experience negotiating
contracts covering employees engaged in the MRDD industry.
Consequently, on November 30, 2010, Katz, on behalf of
Workers United, sent a letter to Frederick Braid, counsel for
Respondent, which reads as follows:

Frederick Braid
Holland & Knight
31 West 52nd Street
New York, NY 10019

Re: Independence Residences

Dear Mr. Braid:

As you are aware, the Board certified UNITE as the bargain-
ing representative for its Direct Care Workers, Residential
Habilitation Specialists, Day Habilitation Workers, Medical
Care Workers and Maintenance employees at Independence
Residence’s various facilities. Worker United is UNITE’s
successor union. On behalf of Workers United, I am request-
ing that Independence Residences negotiate a collective bar-
gaining agreement covering this unit. Please provide me with
available dates.

In order to prepare for that bargaining, I would appreciate
your providing me with the following information concerning
unit employees:

1. A complete seniority list showing name, social security
number, job title, hire date, pay rate, job classification, and the
amount and date of last three pay increases.

2. A complete home address, phone numbers (cell and resi-
dence) and email address for each employee.

3. A copy of your employee handbook and any other docu-
ments concerning employment related policies, i.e. attend-
ance, substance abuse, rules, personnel policies, etc.

4. A copy of all employee benefit programs, including sum-
mary plan descriptions, for all benefits included but not lim-
ited to medical, life, disability, retirement and other fringe
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

374
benefits available to employees, including the employer and
employee cost for each, if any.

5. Copies of all current job descriptions.

6. Copies of all disciplinary (including attendance) notices,
warnings or records of disciplinary personnel actions for the
last year.

7. A copy of any company wage or salary plan, including
merit pay plans.

8. A copy of all reports of occupational injuries and illnesses,
including copies of the OSHA 200 logs for the past five years.

9. A copy of all job accident reports for the last five years.

10. A copy of all workers’ compensation claims, along with a
copy of any document showing any resolution of such claims,
whether by settlement or litigation, for the last five years.

Thank you very much.

Very truly yours

Ira Jay Katz
Associate General Counsel

Cc: Edgar Romney

On December 21, 2010, Respondent replied to the above let-
ter by its new counsel, Louis DiLorenzo. It reads as follows:27

December 21, 2010

VIA FACSIMILE AND OVERNIGHT MAIL

Mr. Ira J. Katz
Associate General Counsel
Workers United
49 West 27th Street, 3rd Floor
New York, NY 10001

Re: Independence Residences, Inc.

In response to your letter to Fred Braid dated November 30,
2010, please be advised that we now represent Independence
Residences, Inc. (“IRI”) with respect to this matter.

IRI believes that the split decision from the NLRB upon
which the certification is based is inconsistent with estab-
lished law and the core principles of the National Labor Rela-
tions Act. In addition, it would be inappropriate to recognize
Workers United because Workers United is not the labor or-
ganization that filed the representation petition, and only
about twelve percent of our current workforce participated in
the disputed election back in 2003.
To recognize Workers United as the exclusive bargaining rep-
resentative under these circumstances would violate the rights

27 I note that the letter from Workers United was on Workers Unit-
ed/SEIU Affiliate letterhead and listed Workers United’s address at 49
West 27th St., New York, New York, which was not UNITE’s previous
address at the time of the election.
of our employees, which IRI will not do. We therefore re-
spectfully decline to provide the requested information and
respectfully decline to bargain.

Very truly yours,
Louis P. DiLorenzo

Apparently, as a result of this response from Respondent,
there was some communication between UNITE HERE and
Workers United. This resulted in a letter being sent by Thomas
Snyder, chief of staff of UNITE HERE, to Respondent dis-
claiming interest in representing Respondent’s employees and
recognizing Workers United, SEIU as a successor to UNITE
for the purposes of representing Respondent’s employees. The
letter was dated January 20, 2011, and the parties stipulated that
the disclaimer was based on the language in the settlement
agreement between UNITE HERE and Workers United.28
Although the letter was dated January 12, 2011, it was not
received by Respondent at or around that time.
On May 20, 2011, Snyder sent another letter to Respondent
referring to the original letter sent on January 20, 2011, which
was attached. Both of these letters are set forth below:

UNITEHERE!
1775 K Street, NW, Suite 620
Washington, DC 20006
TEL (202) 393–4373
FAX (202) 223–6213
WWW.UNITEHERE.ORG

January 12, 2011

Executive Director Raymond DeNatale
Independence Residences, Inc.
93-22 Jamaica Ave. 2nd Floor,
Woodhaven, NY 11421

Re: Disclaimer of Interest

Dear Mr. Natale:

UNITE HERE disclaims any interest in representing the em-
ployees of Independence Residences, Inc. UNITE HERE rec-
ognizes Workers United, SEIU as the successor of UNITE for
the purposes of representing the employees of Independence
Residences, Inc. and any related matters pertaining to Nation-
al Labor Relations Board Case No. 29–RC–10030 and/or
Case No. 29–CA–25657.

Sincerely,

Thomas Snyder, Chief of Staff
–––––––––––––––––––––––––––––––––––––––––––––––––

UNITEHERE!
1775 K Street, NW, Suite 620
Washington, DC 20006
TEL (202) 393–4373
FAX (202) 223–6213
WWW.UNITEHERE.ORG

28 As noted above, the agreement provided that SEIU shall have ex-
clusive jurisdiction for organizing Mental Retardation/Developmental
Disabilities workers.
INDEPENDENCE RESIDENCES, INC.

375
May 20, 2011

Raymond DeNatale
Independence Residences
93-22 Jamaica Ave. 2nd Floor,
Woodhaven, NY 11421

Dear Mr. Denatale:

Kindly see the attached letter which was originally mailed to
you on January 12, 2011. Again, UNITE HERE disclaims in-
terest in representing employees at Independence Residences.

Sincerely,

Thomas Snyder
Chief of Staff and VP

cc. Subash Viswanathan

As detailed above, the certificated unit consisted of 11 facili-
ties of Respondent. It is undisputed that since the election, two
of the facilities involved, Metropolitan Towers Residence I and
Metropolitan Towers Residence II, have been combined and
merged into New Metro Residence in Richmond Hill.
While the complaint alleges the appropriate unit to include
the 11 facilities and the Board’s certification refers to appendix
A, which also lists 11 facilities, General Counsel asserts that
the certified unit should now include 10 facilities since the two
former Metro residences have been combined into one facility,
known as New Metro Residence in Richmond Hill. Respondent
does not dispute this contention, but does contend that the other
changes in the unit since the certification render a bargaining
order inappropriate.
In this regard, Clifford Emmerich, Respondent’s director of
human resources, testified that since the election, Respondent
has added four new day programs29 and three new residential
facilities.30
Emmerich estimated that as of the date of the hearing, Re-
spondent employed 234 employees covered by the unit descrip-
tion, including these additional facilities. However, when
pressed on cross-examination, it appears that Emmerich’s esti-
mate was inflated. Thus, according to Emmerich, Respondent
employed 24 employees at the four new day programs, 3 at the
Rosario apartments, 14 at the Eastchester Residence, and 13 at
Radisch Residence. That comes to 54 additional new employ-
ees at these facilities, and when added to the 151 employees in
the unit at the time of the election adds up to 205 employees.
General Counsel does not seek to expand the certification to
include these new locations and asserts that the parties during
bargaining could decide to include these facilities or another
Board proceeding could assess whether these locations should
be included in the unit.

29 120th Street Hab and Afterschool Program in Richmond Hill, New
York, Bronx Day Hab, Debart Day Hab in Woodhaven, New York, and
Long Island Day Hab in Old Bethpage, New York.
30 Eastchester Road in the Bronx, Elaine and David Radisch Resi-
dence in Ozone Park, New York, and Rosario Apartment Residence in
Woodside, New York.
IX. ANALYSIS
A. Continuity of Labor Organization
Once a union is certified by the Board, a union enjoys a pre-
sumption of continuing majority support, and the employer has
a corresponding continuing obligation to recognize and bargain
with the union. Minn-Dak Farmers Cooperative, 311 NLRB
942, 949 (1993); Burger Pits, Inc., 273 NLRB 1001 (1984).
Subsequent affiliation with a national or international organiza-
tion or a different local union does not, standing alone, affect
the union’s representative status or terminate the employer’s
duty to bargain with the union. Minn-Dak Cooperative, supra;
Toyota of Berkeley, 306 NLRB 893, 899 (1992). This is be-
cause “the basic purpose of the National Labor Relations Act is
to preserve industrial peace,” NLRB v. Financial Institution
Employees (Seattle First National Bank), 475 U.S. 192, 208
(1986), and “the industrial stability sought by the Act would be
disrupted if every union organizational adjustment were to
result in displacement of the employee bargaining relation-
ship.” Id. at 202–203.
The Board had traditionally applied a two-pronged test to de-
termine whether an employer is obligated to recognize or bar-
gain with a merged or disaffiliated union. The prongs were
whether the merger vote occurred under circumstances satisfy-
ing due process and whether there was substantial continuity
between the pre- and post-merger union. Toyota of Berkeley,
supra at 899; Minn-Dak Cooperative, supra at 945.
In Raymond F. Kravis Center for the Performing Arts, 351
NLRB 143, 145–147 (2007), enfd. 550 F.3d 1183 (D.C. Cir.
2008), in response to the Supreme Court’s Seattle First deci-
sion, the Board abandoned the first prong described above, and
announced that it would no longer inquire into “due process”
issues with regard to union affiliation or merger votes. 351
NLRB at 147.
However, the Board made clear in Raymond Kravis that the
other prong of its test regarding union affiliations’ substantial
continuity between the pre- and post-merged unions remains in
tact. Id. This standard is defined as follows: “An employer’s
duty to recognize the union does not continue when the organi-
zational changes are so dramatic that the post-affiliation union
lacks substantial continuity with the pre-affiliation union.” Id at
147; Seattle First, supra, 475 U.S. at 209 fn. 13.
The definition of how “dramatic” the changes need to be in
order to justify a finding that substantial continuity has not been
maintained after a merger has also been delineated by the
Board. “To prevail, the respondent must demonstrate that the
affiliation resulted in changes that were sufficiently dramatic to
alter the identity of the association, and, thus, the substitution of
an entirely different union as the employees’ representative.”
CPS Chemical Co., 324 NLRB 1018, 1020 (1997); Western
Commercial Transport, 288 NLRB 214, 217–218 (1988).
The Board in Raymond Kravis also reaffirmed its long-
standing rule in assessing this issue. The burden is on the party
seeking to avoid its bargaining obligation. Id. at 147 fn. 30;
Deposit Telephone Co., 349 NLRB 214, 221 (2007); CPS
Chemical, supra, 324 NLRB 1018 fn. 7.
I conclude that Respondent has fallen far short of meeting its
burden of establishing that the changes resulting from the mer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

376
ger of UNITE into UNITE HERE and the subsequent disaffilia-
tion from UNITE HERE resulting in the formation of Workers
United were “sufficiently dramatic to alter the identity of the
union and the substitution of an entirely different union as the
employees’ representative.” CPS Chemical, supra. Cf. Western
Commercial Transport, supra.
Indeed, to the contrary, the record overwhelmingly demon-
strates that in the areas that the Board considers significant in
assessing continuity, there have been little or no changes, and
that Workers United is virtually the same labor organization as
UNITE, despite the merger with UNITE HERE and subsequent
disaffiliation from UNITE HERE by most of UNITE’s joint
boards.
In making its continuity determination, the Board, supported
by the Courts, compares the pre- and post-merger entities in
light of a number of factors, including structure, administration,
officers, assets, membership, autonomy, bylaws, size and juris-
diction. May Dept. Stores v. NLRB, 897 F.2d 221, 228 (7th Cir.
1990); NLRB v. Insulfab Plastics, 789 F.2d 961, 966 (1st Cir.
1986).
An examination of these factors here confirms my conclu-
sion, set forth above, that Workers United is virtually the same
labor organization as UNITE.
Thus, upon the formation of Workers United, individuals
from the former UNITE entities became members of Workers
United without having to pay any initiation fees or transfer fees.
Raymond Kravis, supra, 351 NLRB at 148; Mike Basil Chevro-
let, 331 NLRB 1044, 1045 (2000); CPS Chemical, supra, 324
NLRB at 1021; Sullivan Bros. Printers, 317 NLRB 561, 564
(1995), enfd. 99 F.3d 1217 (1st Cir. 1996).
The dues structure with regard to minimum dues and proce-
dure for changes are similar in both the constitutions of UNITE
and Workers United. Although there were increases in dues for
Workers United members, these increases are small and are not
evidence of discontinuity. Raymond Kravis, supra at 148 fn. 37;
Mike Basil Chevrolet, supra, 331 NLRB at 1045; CPS Chemi-
cal, supra at 1022. Central Washington Hospital, 303 NLRB
404, 405 fn. 8 (1991).
Further, although Workers United by virtue of its subsequent
affiliation with the SEIU is obligated to pay a per capita tax to
the SEIU, that change from the practice under UNITE is far
from sufficient to establish discontinuity. Avante at Boca Ra-
ton, Inc., 334 NLRB 331, 387 (2001); May Dept. Stores, 239
NLRB 661, 666 (1988), enfd. 897 F.2d 221 (7th Cir. 1990).
A significant factor in assessing continuity is “continued
leadership responsibilities by existing union officials.” Western
Commercial Transport, supra, 288 NLRB at 217. The Board
has frequently relied on similarity of union officers and repre-
sentatives in the pre- and post-merger labor organization to
support a finding of continuity of representation. Raymond
Kravis, supra, 351 NLRB 148; Deposit Telephone, supra, 349
NLRB at 222; CPS Chemical, supra, 324 NLRB at 1022; Minn-
Dak Cooperative, supra, 311 NLRB at 947; May Dept. Stores,
supra, 289 NLRB at 666; Newspapers, Inc., 210 NLRB 8, 9 fn.
2 (1974); Climax Molybdenum Co., 146 NLRB 508, 509
(1964).
Here, of the 29 former UNITE officers, 19 continued to work
as union officers for Workers United, including President Bruce
Raynor and Secretary-Treasurer Edgar Romney. Six former
UNITE officers left the union before the 2009 split.31 Thus,
only three former UNITE officers serving UNITE HERE did
not move to Workers United.32
Further, a substantial majority of officers and board members
of Workers United were former UNITE officers and board
members. UNITE HERE, at the time of the disaffiliation, had
21 joint boards. All, but two of them, disaffiliated from UNITE
HERE and became affiliated with Workers United. Therefore,
the factor of continuity of leadership, here, strongly supports a
finding of continuity.
The constitutions of UNITE and Workers United are quite
similar and provide for similar governing structures. These
similarities include membership requirements, eligibility for
local offices or international office, procedure for elections of
international officers, procedure for bringing charges against
union members or officials, procedure for repeal of portions of
the constitution, requirements for frequently of conventions,
GEB meetings, and membership meetings. These similarities in
structure and membership rights are further evidence of conti-
nuity of the two labor organizations. Western Commercial
Transport, supra; Mike Basil Chevrolet, supra, 331 NLRB at
1045; Sullivan Bros. Printers, supra, 317 NLRB at 564; May
Dept. Stores, supra, 289 NLRB at 666.
The evidence also discloses that the procedures, policies and
constitutional provisions dealing with day-to-day issues of rep-
resentation, such as grievance handling, arbitration decisions,
contract negotiations, contract ratification and strike authoriza-
tion are similar or identical vis a vis UNITE and Workers Unit-
ed. These similarities lend further support to a conclusion of
continuity between the labor organizations. Raymond Kravis,
supra, 351 NLRB at 148; Deposit Telephone, supra 349 NLRB
at 222; Avante at Boca Raton, supra, 334 NLRB at 387; Mike
Basil Chevrolet, supra, 331 NLRB at 1045; Sullivan Bros.
Printers, supra, 317 NLRB at 564; Minn-Dak Cooperative,
supra, 311 NLRB at 947; Central Washington Hospital, supra,
303 NLRB at 409.
The most valuable asset of UNITE, its ownership of the
Amalgamated Bank, has been retained by Workers United as a
result of the disaffiliation and negotiations with UNITE HERE.
These discussions did result in the loss by Workers United of
the former UNITE’s headquarters at 275 Seventh Avenue,
which was retained by UNITE HERE. However, this loss of
assets is not particularly significant since it has little effect on
the certified unit. Workers United has simply moved its head-
quarters to another address located in the same borough in New
York City. Further, upon UNITE’s merger with UNITE HERE,
UNITE’s Retirement Fund was merged with the UNITE
HERE’s Retirement Fund. However, the former trustees of
UNITE’s Retirement Fund became trustees of the UNITE
HERE Retirement Fund. After the disaffiliation, this retirement
fund merged, but the former UNITE trustees, who were trustees
at the merged fund, retained their positions as trustees although

31 Susan Cowell, Angelo de Costa, Robert Jordan, William Lee, Jo-
seph Lombardo, and Lynne Talbott.
32 Richard Rumelt, Warren Pepicelli, and Organizing Director Ernest
Bennett.
INDEPENDENCE RESIDENCES, INC.

377
they became Workers United employees. Claims are processed
through the various joint boards as they had been under UNITE
and UNITE HERE. As noted above, the vast majority of joint
boards from UNITE HERE, which were UNITE joint boards,
are now affiliated with Workers United. Most importantly, no
evidence was adduced by Respondent that Respondent’s em-
ployees, should Respondent sign a contract with Workers Unit-
ed providing for coverage of its employees by the merged re-
tirement fund, will in any way be disadvantaged or their bene-
fits be reduced. In such circumstances, the Board gives little
weight to the merger of funds or assets, absent evidence that the
assets involved would not be available to employees, and, ac-
cordingly, it had not been shown that such workers had fewer
resources, which would be committed to their representational
needs by the new organization than were available under the
prior labor organization. Deposit Telephone, supra, 349 NLRB
at 223; CPS Chemical, supra, 324 NLRB at 1024; Sullivan
Bros. Printers, supra, 317 NLRB at 565; Sullivan Bros. Print-
ers v. NLRB, 99 F.3d at 1229.
Respondent does not, and in fact, cannot contest the substan-
tial evidence of continuity, detailed above, but does raise two
somewhat related arguments, that such evidence is not determi-
native of Respondent’s bargaining obligation based on the cir-
cumstances here.
Respondent asserts that since Section 9(a) of the Act creates
a mandatory obligation on an employer to deal exclusively with
the bargaining representative, whom the employees have cho-
sen, said employer does not violate its bargaining obligation
where confusion exists as to which union is the recognized or
certified representative. Newell Porcelain Co., 307 NLRB 877,
878 (1992), enfd. 986 F.2d 70 (4th Cir. 1993). It further con-
tends that confusion results when the certified representative
delegates its representational responsibilities, which it cannot
lawfully do. Goad Co., 332 NLRB 677 fn. 1, 680 (2001). Final-
ly, Respondent argues that General Counsel as the party assert-
ing that a 9(a) relationship exists has the burden of proving the
existence of that relationship and has not done so here. Conti-
nental Linen Services Inc., JD–53–10 (September 15, 2010).
Respondent notes that UNITE was the certified representa-
tive and then “ceased to exist” when it merged with UNITE
HERE in 2004. Further, Respondent states that ARAW, the
joint board that would have had responsibility for representing
Respondent’s employees, rejected the option of affiliating with
Workers United and remained affiliated with UNITE HERE.
Since UNITE HERE has disclaimed interest in representing
Respondent’s employees, Respondent contends that it was con-
fused about who the proper representative of its employees
was, and that since UNITE as the certified union cannot dele-
gate its responsibilities, Respondent was under no duty to bar-
gain with Workers United. Goad, supra; Continental Linen,
supra.
I cannot agree with Respondent’s analysis of the facts here
and conclude that the precedent that it cites in support of its
contentions is inapposite.
I find, contrary to Respondent, that there was no confusion
here concerning the representative of Respondent’s employees,
and there was no attempt to transfer representational responsi-
bilities and that Respondent had no right to refuse to recognize
and bargain with Workers United.
Unlike the cases cited by Respondent,33 Workers United re-
quested bargaining with Respondent, not on the basis of any
transfer of representational responsibilities, but on the basis that
it is the successor union to UNITE, the certified representative
of Respondent’s employees. Therefore, the issue is as framed
by General Counsel whether or not Workers United is the suc-
cessor union to UNITE, which is not a 9(a) issue, but, as de-
tailed above, must be analyzed under continuity standards.
Thus, as also related above, Respondent has the burden of proof
as the party seeking to avoid its bargaining obligation. Ray-
mond Kravis, supra, 351 NLRB at 147 fn. 10; Deposit Tele-
phone, supra, 349 NLRB at 221; CPS Chemical, supra, 324
NLRB at 1018.
Newell Porcelain, Goad, and Continental Linen are not to
the contrary. Both Goad and Newell Porcelain involved at-
tempts by one local union to transfer representational rights to
another or a local to transfer such rights to an international.
Further, Newell Porcelain recognized the principle that the
local involved there could have lawfully affiliated with the
international, but found in that case that the union created con-
fusion in the employer’s mind that the international was at-
tempting to supplant the local as the lawful representative. No
such facts are present here.
Continental Linen is of course a decision of an administra-
tive law judge, which has not been affirmed by the Board,34 so
it has minimal precedential value. In any event, although the
case does involve a dispute over representational rights result-
ing from the disaffiliation of UNITE from UNITE HERE, the
similarity to the instant case stops there.
In that case, the employer, unlike Respondent here, was pre-
sented with conflicting claims for representation of its employ-
ees from Workers United on the basis that Workers United was
the successor union to the Regional Chicago and Midwest Joint
Board, which disaffiliated from UNITE HERE, and from the
local union, which did not disaffiliate from UNITE HERE,35
and was continuing to assert its representative status. Thus, the
issue in Continental Linen was whether Local 151 or the joint
board and its alleged successor, Workers United, was the 9(a)
representative. In those circumstances, the judge concluded that
the record was confusing as to whom the representative was,
and he concluded that the General Counsel had not met its bur-
den of proving that the joint board had been the exclusive rep-
resentative of the employer’s employees.
Here, there is no conflict between Workers United and
UNITE HERE as to representational status or who the repre-
sentative of Respondent’s employees is, since UNITE HERE
has disclaimed interest representing Respondent’s employees.
Therefore, Continental Linen is inapposite even if it were a
Board decision.

33 Newell Porcelain, supra; Goad, supra; Continental Linen, supra.
34 The case was withdrawn after the judge’s decision.
35 The local union (Local 151) had been the bargaining representa-
tive of the employer for many years prior to its merger with UNITE.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

378
Accordingly, I reject Respondent’s 9(a) defense and con-
clude that the relevant issue is the continuity of representation
between UNITE and Workers United.36
Respondent argues in this regard that the relevant considera-
tion in assessing continuity of representation is continuity of
representation in the affected bargaining unit. Chas. S. Winner,
Inc., 289 NLRB 62, 69 (1988); Western Commercial Transport,
288 NLRB 214, 215 (1988); Garlock Equipment Co., 288
NLRB 247, 248 (1988).
It further argues that DSAW, the joint board that organized
Respondent’s employees would have been assigned to bargain
with Respondent if bargaining had commenced and if a contract
had been reached would have been assigned to administer that
agreement. Therefore, according to Respondent since DSAW
became ARAW, and ARAW did not disaffiliate from UNITE
HERE, and in fact is still in existence, it cannot be considered
that Workers United is the successor union to UNITE vis a vis
Respondent’s employees.
Respondent further contends that during the organizing cam-
paign, DSAW stressed its experience in representing employers
that employed MRDD employees as well as the Disability
Council’s lobbying for better wages for MRDD staff. It also
notes that Workers United has no officials or representatives
that represent MRDD employees and no lobbyists dedicated to
obtaining better wages for MRDD employees. Finally, Re-
spondent emphasizes that all of the officials from UNITE or
UNITE HERE, who dealt with or would have dealt directly
with Respondent’s employees, such as Neal, Jordan, Rumelt,
and Papageorge, have no affiliation whatsoever with Workers
United.
In sum, Respondent asserts that due to the “substitution of a
MRDD-focused joint board with which the IRI employees
would have been affiliated for a garment-based joint board,
which they now would be affiliated, it is undeniable that these
changes have substantially altered the identity of the union that
the IRI employees elected to represent them.”
I do not agree.
The problem with Respondent’s arguments is that it ignores
a significant fact that differentiates this case from the precedent
that it cited.37 That is that UNITE, the international union, was
the certified representative and not the DSAW or the Disability
Council. While Respondent is correct that UNITE would have
assigned DSAW to service Respondent’s employees, that did
not happen because Respondent was still contesting the elec-
tion. Therefore, there was no representation of Respondent’s
employees by DSAW, UNITE or any other entity. It is, there-
fore, inappropriate to speculate about how the representation of

36 Respondent contends that when it was organized, the Disability
Council of UNITE as well as DSAW was involved. Therefore, since
DSAW would have been assigned to service Respondent’s facilities
after the certification, and ARAW (which included DSAW) did not
disaffiliate from UNITE HERE, Respondent argues that UNITE HERE
is the 9(a) representative. I reject this contention, as noted above, since
UNITE HERE does not so assert. However, I will consider Respond-
ent’s contentions vis a vis DSAW insofar as it relates to the continuity
issue, discussed below.
37 Chas. S. Winner, supra; Western Commercial Transport, supra;
and Garlock Equipment, supra.
Respondent’s employees would have been effectuated or which
officials of UNITE would have been involved with Respond-
ent’s employees.
Therefore, the precedent cited by Respondent is clearly dis-
tinguishable since in each of these cases the local union was the
recognized representative and the questions were whether that
local had lost their autonomy by virtue of being affiliated with
an international union or a different local union so that the
“fundamental character” of the local was altered as a result of
the affiliation. Western Commercial Transport, supra at 218;
Garlock Equipment, supra at 248; Chas. S. Winner, supra at 69.
Here, since there has been no local representation to analyze,
the continuity analysis must be centered on UNITE, the certi-
fied labor organization, and not DSAW, which was not on the
ballot at the election.
UNITE as the certified labor organization has the right to se-
lect a local or a joint board to act as its agent to service Re-
spondent’s employees, and it can do so in any manner it choos-
es, changing them at will without consequence to its own status
as exclusive representative of unit employees. Mountain Valley
Care, 346 NLRB 281, 282–283, 288 (2006); Nevada Security
Innovations, 341 NLRB 953, 955 (2004); Vermont Marble Co.,
301 NLRB 103, 103 fn. 2 (1991) (local union’s merger did not
create a question concerning representation since international
was bargaining representative and mergers affected no change
in the identity of the bargaining representative).
Thus, while UNITE could have and would have selected
DSAW to act as its agent in servicing Respondent’s employees,
it did not ever do so since the results of the election were still in
dispute. Seven years later, Workers United as the successor to
UNITE has the right to select a joint board to service Respond-
ent’s employees, and it has selected the New York Metropoli-
tan Joint Board. Workers United would have the right to make
that selection even if ARAW had voted to disaffiliate from
UNITE HERE and had jointed Workers United. Mountain Val-
ley, supra.
Respondent’s contentions that DSAW allegedly “organized”
Respondent’s employees is incorrect since, in fact, it was
UNITE representatives and officers, who organized Respond-
ent, headed by Neal, UNITE’s director of MRDD organizing.
Respondent’s reliance on Rumelt’s alleged role in organizing is
misplaced since there was no evidence that he had any direct
role in organizing Respondent’s employees. Indeed, there is no
evidence in the record that Rumelt ever had any contact with
employees of Respondent or Respondent itself during the or-
ganizing campaign. Therefore, neither Rumelt’s failure to be-
come employed by Workers United nor his decision to remain
as an employee of UNITE HERE, nor ARAW’s decision to
remain with UNITE HERE can be construed as affecting conti-
nuity of representation for Respondent’s employees.
Similarly, no evidence was adduced that either Papageorge
or Jordan ever had any role in organizing Respondent’s em-
ployees, or, indeed, any contact with Respondent’s employees
or Respondent’s officials at any time. Therefore, their failure to
become officials of Workers United has no significance in as-
sessing the identity of the labor organization representing Re-
spondent’s employees.
INDEPENDENCE RESIDENCES, INC.

379
Neal did presumably have contact with Respondent’s em-
ployees during the organizing as well as with Respondent’s
officials and also signed campaign documents on behalf of
UNITE. However, contrary to Respondent, her absence as an
employee of Workers United is insufficient to establish discon-
tinuity of representation. Notably, as detailed above, she was an
official of UNITE and not DSAW, and there is no evidence that
she ever became associated with or was employed by ARAW
or UNITE HERE. Thus, it appears that she left that employ of
UNITE at some point between 2004 and 2009. It is not unex-
pected that after 7 years, there will be some turnover in union
officials, and the fact that one UNITE representative, who was
involved in organizing Respondent’s employees, is not associ-
ated with Workers United is far from sufficient to establish that
this organizational change was so dramatic that Workers United
lacked substantial continuity with UNITE. Kravis v. NLRB,
supra, 550 F.3d at 1190; Sullivan Bros. Printers, supra, 317
NLRB at 562.
Respondent’s reliance on the campaign literature issued by
UNITE is also misplaced, and is also far from sufficient to meet
Respondent’s burden of establishing changes sufficiently dra-
matic to alter the identity of UNITE and, thus, the substitution
of an entirely different union as the representative of Respond-
ent’s employees. CPS Chemical, supra, 324 NLRB at 1020.
As I have set forth above, Respondent argues essentially that
since UNITE at the time of the organizing of Respondent’s
employees through DSAW represented MRDD facilities and
that it emphasized that fact in its campaign literature, Workers
United is a substantially different labor organization from
UNITE because it did not represent any MRDD facilities and
did not employ anyone with experience in representing MRDD
employees. I do not find that the absence of any Workers Unit-
ed officials with experience in representing MRDD shops, or,
indeed, any evidence that any entity affiliated with Workers
United represented MRDD facilities is sufficient in itself to
establish a “substitution of an entirely different union as em-
ployees’ representative.” CPS Chemical, supra, 324 NLRB at
1020.
Significantly, in this regard, Workers United has become af-
filiated with the SEIU. When Workers United and UNITE
HERE settled their dispute over the disaffiliation of UNITE
HERE, UNITE HERE agreed that SEIU shall have exclusive
jurisdiction for organizing MRDD workers. Indeed, it was a
result of this agreement that UNITE HERE disclaimed interest
in, representing Respondent’s employees. This agreement sup-
ports the conclusion that I draw that in fact, the SEIU did have
substantial experience in organizing and representing MRDD
employees.
This conclusion is fortified by several Board and administra-
tive law judges’ decisions. Green Valley Manor, 353 NLRB
905, 909 (2009) (Local 2000 of SEIU organized nursing home
that employed employees caring for residents with physical and
mental disabilities); NHS Human Services Inc. of Alleghany &
Westmoreland, JD–28–11 (May 12, 2011) (Local 668 of the
SEIU represented employer engaged in operation of human
service organization providing community-based mental health
and intellectual developmental disability services to adults and
children in Pennsylvania); Voca Corp. of West Virginia, JD–
60–02 (August 9, 2002) (District 1199, SEIU represented em-
ployees of employer for 10 years that provided residential care
services to mentally retarded individuals at several facilities in
West Virginia).
Further, an examination of the United States Department of
Labor website reveals that several SEIU locals have current
collective-bargaining agreements with entities that employ
MRDD employees.38
Additionally, an examination of various SEIU websites re-
veals further evidence of the SEIU’s representation of MRDD
workers as well as SEIU locals lobbying for additional funds
for the industry. For example, www.seiu.org details that in June
2011, Local 503 was certified by the State Employment Rela-
tions Board in Oregon to represent 7500 workers, who provide
support for adults and developmental disabilities. Also,
www.huntingtonnews.net reports on an SEIU news release that
Becky Williams was elected on August 19, 2008 as president of
SEIU, District 1199, which has 35,000 members and represents
employees in various health care industries, including MRDD
facilities in West Virginia, Kentucky, and Ohio. A job’s adver-
tisement appearing in www.seiu.org for a field organizer posi-
tion with SEIU, District 1199 WKO (West Virginia, Kentucky
and Ohio) also reflects that SEIU, District 1199 represents em-
ployees at MRDD facilities. The SEIU, District 1199 website
also contained an arbitration award involving the union and the
State of Ohio concerning MRDD workers represented by Dis-
trict 1199 at several developmental centers (2004 NAC 149).
Additionally, SEIU, Local 721 reports on its website39 that
this local, located in California, engaged in lobbying with the
mental health committee to bring new funds into the mental
health system by helping to pass the Mental Health Service
Act-Proposition 63 and is now lobbying to reject Proposition
1E, which would strip funds from the Act’s revenues.
Local 200, SEIU on its website40 reports that it is a local that
represents employees employed at human services agencies
throughout New York State in the MRDD mental health and
foster care industries. It also lists five offices located in various
cities in New York State and names several human services
agencies, where it represents employees. An examination of the
websites for these employers confirms that they service MRDD
clients.41
I note in this connection that the Board has frequently relied
on websites to make findings and conclusions. J. Picini Floor-
ing, 356 NLRB 11, 13 fn. 7 (2010) (Board relies on surveys
reported in cited websites, demonstrating that large percentages
of employers used electronic distribution to communicate with
its employees); Carpenters Local 1506 (Eliason & Knuth of
Arizona, Inc.), 355 NLRB 797, 807 fn. 33 (2010) (Board cites
several websites in support of its assertion that banners are

38 Contracts between State of California and Local 1000 SEIU and
between Local 1199 SEIU and the State of Connecticut.
39 www.seiu721.org
40 www.seiu200united.org
41 Cayuga Home for Children, www.cayugahome.org; CWI (Com-
munity Work & Independence), www.cwinc.org; Vanderheyden Hall,
www.vanderheydenhall.org; Berkshire Farm Center and Services for
Youth, www.berkshirefarm.org; New Horizons Resources,
www.nhrny.org; Dutchess ARC, http://dutchess-arc.org.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

380
common forms of public expression); Cibao Meat Products,
348 NLRB 47, 55 (2006) (reliance on website to establish that
discriminatee in backpay hearing would get 17 miles per gallon
driving his vehicle).
Accordingly, based on the foregoing, I conclude that various
SEIU locals have experience in representing MRDD employ-
ees, have contracts with employers in the MRDD industry and
engage in lobbying with respect to MRDD issues. Therefore,
since Workers United is now affiliated with the SEIU, the
above finding minimizes the significance of Respondent’s reli-
ance on the absence of any evidence that any Workers United
officials or entities had experience in representing MRDD em-
ployees and facilities. Thus, Respondent’s argument that Work-
ers United is a substantially different organization than UNITE
has even less cogency due to Workers United’s affiliation with
the SEIU.42
Accordingly, based upon the foregoing analysis and authori-
ties, I conclude that Respondent has fallen far short of meeting
its burden of proof of a lack of continuity between UNITE and
Workers United.
B. The Alleged Refusal to Bargain
Having found that Respondent has not met its burden of
proving discontinuity, there can be little question that it has
violated the Act by refusing to recognize and bargain with
Workers United and by failing to supply admittedly relevant
information to Workers United.43
Respondent argues, however, that where a company’s work-
force has changed substantially since the election, there is no
way of knowing if, as in this case, the union enjoys the majority
support. Therefore, equity weighs against issuing a bargaining
order. NLRB v. Connecticut Foundry Co., 688 F.2d 871, 881
(2d Cir. 1982); NLRB v. Nixon Gear, Inc., 649 F.2d 906, 914
(2d Cir. 1981); National Posters, Inc. v. NLRB, 885 F.2d 175,
180 (4th Cir. 1989).
In this regard, Respondent notes that since the election, Re-
spondent has added several new facilities and a substantial
increase in the number of eligible voters. Respondent also as-
serts that 87 percent of the current employees in the unit did not
have the opportunity to vote and to elect any representative.
Therefore, it argues that because of this dramatic change in
Respondent’s work force, equity requires that a bargaining
order not be issued.
Once more, I cannot agree with Respondent’s contention. It
is true that since the election, Respondent has added three new
facilities and four new day programs. However, General Coun-
sel had not sought to expand the certification to include the new

42 As I have related above, I have concluded that even absent Work-
ers United’s affiliation with the SEIU that Respondent has failed to
prove that Workers United was an “entirely different” labor organiza-
tion than UNITE. CPS Chemical, supra. My findings with respect to
Workers United’s affiliation with the SEIU serves only to reinforce that
conclusion.
43 Respondent concedes that the information requested by Workers
United is relevant to the Union’s representational responsibilities.
facilities, so these changes are irrelevant to the propriety of a
bargaining order.44
Respondent’s assertion in its brief that “87% of the current
employees in the proposed bargaining unit did not have the
opportunity to elect any representative” is not supported by any
record evidence. Respondent adduced no evidence of turnover
and no other evidence of how many employees, who voted in
the election, are still employed. However, even if that assertion
was substantiated, it would not be a valid defense to the imposi-
tion of a bargaining order.
It is clear that neither expansion of the unit nor extensive
employee turnover warrants denial of a bargaining order, where
there has been a certification. This is because, absent unusual
circumstances, which do not include turnover or unit expan-
sion, a union’s majority status is irrebuttably presumed to ex-
ist45 throughout the 1-year period following the union’s certifi-
cation. The 1-year period does not begin until the date the em-
ployer begins to bargain with the union. Action Automotive
Inc., 284 NLRB 251, 251 fn. 1 (1987).
These principles are applicable even where, as here, there
has been an extensive delay since the election or the certifica-
tion. Long Island College Hospital, 310 NLRB 689, 698 (1993)
(13-year delay from election, plus turnover, does not warrant
denial of bargaining order).
The cases cited by Respondent in support of its assertion are
clearly distinguishable and are in part supportive of the issu-
ance of a bargaining order here. NLRB v. Connecticut Foundry,
supra, and NLRB v. Nixon Gear, supra, are clearly inapposite
since they both do not deal specifically with whether a bargain-
ing order is appropriate. Rather, both cases involve situations
where the court refused to enforce Board orders because the
Board had erroneously, in the court’s view, failed to permit the
employers the opportunity to have a hearing on their objections
to the election. The court, then, in deciding whether to remand
to the Board for a hearing, applied equity principles. In so do-
ing, the opinions did rely in part on the assertion, cited by Re-
spondent here, that “the labor force at the Company has un-
doubtedly changed since the election, and there is no way of
knowing at this time if the Union enjoys a majority of support.”
Nixon Gear, supra, 649 F.2d at 914, quoted in Connecticut
Foundry, supra, 688 F.2d at 881. However, these statements by
the curts are only part of their reasons for not remanding the
cases to the Board.46 The primary equitable consideration for
the courts’ decisions was the fact that the Board has erroneous-
ly declined to afford the employers the right to hearings on their
objections. The courts relied on the assertions by the employers

44 The evidence submitted indicates that 54 employees are included
in the new day programs and the new facilities.
45 This is because replacement employees are presumed to support
the union in the same ratio as those replaced. National Posters v.
NLRB, supra, 885 F.2d at 181.
46 I would also note that these factors cited by the Court are contrary
to longstanding Board precedent supported by the Federal courts, in-
cluding the Supreme Court, as detailed above, that a union enjoys an
irrebuttable presumption of majority status for 1 year following a certi-
fication. Brooks v. NLRB, 348 U.S. 96, 164; 75 S.Ct. 176, 181–182
(1954); NLRB v. Star Color Plate Service, 843 F.2d 1507, 1509 (2d Cir.
1988).
INDEPENDENCE RESIDENCES, INC.

381
that the delay caused by the Board in not affording them hear-
ings had decreased the possibility of the employers’ prevailing
at a hearing because witnesses’ memories fade and some key
witnesses may be unavailable. Nixon Gear, supra, 649 F.2d at
906; Connecticut Foundry, supra, 688 F.2d at 881 (Court finds
that “the NLRB’s failure to order hearings on the issues we
have specified renders the Company’s burden on those issues
much more difficult if not insurmountable.”). Id. Further, both
cases also relied in part on the closeness of the elections.
National Posters, supra, the third case cited by Respondent,
while citing Connecticut Foundry and other cases that refused
to enforce bargaining orders based on traditional equity princi-
ples, did not in fact apply those principles. To the contrary, the
Fourth Circuit Court opinion expressly declined to conclude as
the employer there had argued that the employee turnover and
delay entitled it to a hearing to present evidence of turnover.
Rather, the court applied longstanding precedent, cited above,
that turnover does not raise a question concerning representa-
tion and that replacement employees are presumed to support
the unit in the same ratio as those replaced. 885 F.2d at 181,
citing Universal Security Instruments, Inc. v. NLRB, 649 F.2d
247, 255 (4th Cir. 1981); NLRB v. 1199, National Union of
Hospital & Health Care Employees, 829 F.2d 318, 323 (4th
Cir. 1987). The court, therefore, denied the employer’s request
for a hearing to present evidence of turnover and enforced the
Board’s request for a bargaining order. 885 F.2d at 181.
Further, Connecticut Foundry and Nixon Gear have both
been distinguished on this basis by both the Board47 and the
Second Circuit itself. NLRB v. Star Color Plate Service, supra,
843 F.2d at 1509–1510. These cases reaffirm the longstanding
Board and Court precedent that turnover and delay do not justi-
fy denial of a bargaining order, where there has been a certifi-
cation and the 1-year period has not expired. The exceptional
circumstances found in Connecticut Foundry and Nixon Gear,
which motivated the courts there to deny bargaining orders in
part due to turnover and delay, are not present here.
Respondent has not been denied a hearing in this case. It was
granted and had a hearing in 2003 to litigate its assertion that
the New York labor law impacted on the election and in 2011,
in order to litigate its further assertions concerning the continui-
ty of the certified labor organization. Further, unlike the cases
cited by Respondent, the election here was not close.48
Accordingly, I conclude that Respondent’s contention that
equitable principles, i.e., delay,49 turnover and unit expansion,
require denial of a bargaining order is without merit.

47 Long Island College Hospital, supra, 310 NLRB 689 fn. 2.
48 Sixty-eight votes were cast for the Union and 32 against it.
49 I am cognizant of Chairman Liebman’s own observation in her
concurring opinion in Independence Residence, supra, 355 NLRB at
741, that the case has languished at the Board for “over seven years–an
unconscionably long time.” However, in fairness to the Board, I do note
that there is some justification for the delay. The issue of whether the
New York labor law was preempted was a central issue to the case. A
similar California law was being considered by the Federal courts, and
ultimately, the Supreme Court in Brown, supra, found that law
preempted in 2008. However, the New York law, which is similar to,
but not identical with the California law, was also subject to litigation
in federal court, and is still pending in district court. Further, for a
I, therefore, conclude that Respondent has violated Section
8(a)(1) and (5) of the Act by refusing to recognize and bargain
with Workers United and refusing to supply relevant infor-
mation to the Union.
CONCLUSIONS OF LAW
1. The Respondent, Independence Residences, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and has been a healthcare institu-
tion within the meaning of Section 2(14) of the Act.
2. Workers United Service Employees International Union
(Workers United) is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all material times, herein, Workers United has been the
successor to UNITE, AFL–CIO, CLC (UNITE) and has been
the exclusive collective-bargaining representative of the follow-
ing appropriate collective-bargaining unit:

All full-time and regular part-time Relief employees in the
classifications of Direct Care Workers, Residential Habilita-
tion Specialists, Day Habilitation Workers, Medical Care
Workers and Maintenance, employed by the Employer at and
out of its office located at 93-22 Jamaica Avenue,
Woodhaven, New York and the following 11 facilities: Park
Lane South Residence in Richmond Hill, Florence Kalil
Gutman Residence in Sunnyside, Metropolitan Towers Resi-
dence I in Kew Gardens, Metropolitan Residence II in Kew
Gardens, Judita M. Prelog Residence in South Ozone Park,
Jackson Heights Residence in Woodside, Dr. Betty Bird Res-
idence in Woodhaven, Forest Hills Residence in Forest Hills,
101st Avenue Residence in Ozone Park, 77th Street Residence
in Woodhaven and East 21st Street Residence in Brooklyn,
excluding all office clerical and administrative employees,
technical employees, professional and managerial employees,
guards and supervisors as defined in Section 2(11) of the Act.

4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with Workers United as the
exclusive representative of the employees in the unit described
and by refusing to supply relevant information to the Union.
5. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative actions
designed to effectuate the policies of the Act.
I shall recommend that the Respondent be ordered to bargain
collectively with Workers United as the exclusive collective-

substantial period of time during the 6 years that the Board was consid-
ering the case, it had only two members.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

382
bargaining representative of the employees in the certified ap-
propriate collective-bargaining unit, set forth above. Inasmuch
as Workers United has not yet enjoyed its certification year, I
shall recommend that the initial certification year be extended
as it had not expired. Deposit Telephone, supra, 349 NLRB at
226; Long Island College Hospital, supra, 310 NLRB at 699.
[Recommended Order omitted from publication.]
.