Avante at Boca Ranton, Inc.

AVANTE AT BOCA RATON, INC. 381 Avante´ at Boca Raton, Inc., and Avante´ Terrace at Boca Raton, Inc., Joint Employers and 115 Nursing Home, Hospital & Service Employees Union—Florida affiliated with 1115 District Council, SEIU, AFL–CIO, CLC. Cases 12–CA– 18860 and 12–CA–18893 June 27, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE On October 8, 1998, Administrative Law Judge Kelt- ner W. Locke issued the attached bench decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, cross-exceptions, and supporting briefs. 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 as modified below and to adopt the recommended Order as modified below. The judge found that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the certi- fied Union following the affiliation between its parent organization, 1115 District Council, and the Service Em- ployees International Union (SEIU). The judge found that there was substantial continuity of representation following 1115 District Council’s affiliation with the SEIU. In addition, he found that, while the bargaining unit employees did not receive minimal due process, since they did not receive any notice of the contemplated affiliation or attend the conventions at which affiliation was discussed, this did not justify the Respondent’s re- fusal to bargain with the certified Union. We agree with the judge, for the reasons stated in his decision, that there was substantial continuity of repre- sentation following the affiliation. We also agree, for the reasons set forth below, that the lack of notice to or par- ticipation by the unit employees in the affiliation process was not a basis justifying the Respondent’s refusal to bargain with the Union.1 1 We do not, however, agree with the judge that the unit employees were denied minimal due process. As discussed below, as nonmem- bers, the unit employees were not entitled to participate in the internal union affiliation process. We therefore grant the cross-exceptions filed by the General Counsel and the Charging Party Union on this issue, and disavow the judge’s finding that the affiliation did not satisfy minimal standards of due process. As the judge found, the Union maintained a policy that did not allow employees to become members until after their employer had entered into a collective-bargaining agreement with the Union. This precondition for mem- bership had not occurred regarding the unit employees, and therefore they were not eligible to become members. Because nonmembers do not have a right to participate in internal union matters such as affiliation votes, the unit employees were not included in any respect in the affilia- tion process used by the District Council and the SEIU. In NLRB v. Financial Institution Employees, 475 U.S. 192 (1986), the Supreme Court held that the Board ex- ceeded its authority under the Act by requiring that non- member employees be allowed to vote regarding an af- filiation before it would order the employer to bargain with the affiliated union. The Board since has found, in circumstances similar to those here, that the general lack of participation by nonmembers in affiliation decisions does not justify an employer’s refusal to bargain. See Santa Barbara Humane Society, 302 NLRB 833, 836 (1991); Potters’ Medical Center, 289 NLRB 201, 202 (1988). Consistent with these decisions, we find that the Respondent violated Section 8(a)(5) of the Act as al- leged. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Avante´ at Boca Raton, Inc., and Avante´ Terrace at Boca Raton, Inc., Joint Employ- ers, Boca Raton, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). “(c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” 2. Substitute the following for paragraphs 2(e) and (f). “(e) Within 14 days after service by the Region, post at its facilities in Boca Raton, Florida, copies of the at- tached notice marked ‘Appendix B.’ Copies of the no- tice, on forms provided by the Regional Director for Re- gion 12, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- 334 NLRB No. 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382 tice to all current employees and former employees em- ployed by the Respondent at any time since May 8, 1997. “(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply.” Kevin J. Morris, Esq., for the General Counsel. Clifford H. Nelson Jr., Esq. (Wimberly, Lawson, Steckler, Nel- son & Schneider), of Atlanta, Georgia, for the Respondents. Mark Richard, Esq., of Miami, Florida, and Richard Green- span, Esq., of Elmsford, New York, for the Charging Party. BENCH DECISION AND CERTIFICATION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. I heard this case on August 10 and 11, 1998, in Miami, Florida. After the parties rested, I heard oral argument, and on August 12, 1998, issued a bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules and Regulations, setting forth findings of fact and conclusions of law. In accordance with Section 102.45 of the Rules and Regulations, I certify the accuracy of, and attach as “Appendix A,” the portion of the transcript, pages 327 through 353, containing this decision.1 The remedy, recom- mended Order, and notice provisions are set forth below. CONCLUSIONS OF LAW 1. Avanté at Boca Raton, Incorporated, and Avanté Terrace at Boca Raton, Incorporated are joint employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Local 1115 Florida East, SEIU, AFL–CIO, CLC, a Division of District 1115, SEIU, AFL–CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondents constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time certified nursing assistants, restorative aides, activities assistants, dietary aides, cooks, die- tary porters, maintenance assistants, receptionist and central supply clerk employed by Respondents at their facilities lo- cated at 1130 N.W. 15th Street, Boca Raton, Florida 33486; excluding all other employees, including registered nurses (RNs), licensed practical nurses (LPNs), managers, confiden- tial employees, office clerical employees, guards and supervi- sors as defined in the Act. 4. At all times since April 25, 1997, the Union has been, and is now, the exclusive bargaining representative of all employees in the unit described above in paragraph 3, for purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 1 I order the transcript corrected in accordance with appendix C (omitted from publication) to this decision. 5. Since on or about May 8, 1997, the Respondents have failed and refused to recognize and bargain the Union as the exclusive collective-bargaining representative of the employees in the unit described in paragraph 3 above, and have violated, and continue to violate, Section 8(a)(5) and (1) of the Act. 6. Since on or about May 8, 1997, the Respondents have failed and refused to provide the Union with information, re- quested by the Union, which is relevant to and necessary to the performance of the Union’s duty to represent the employees in the unit described in paragraph 3 above. The Respondents have violated, and continue to violate, Section 8(a)(5) and (1) of the Act. 7. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act, including posting the notice to employees attached as appendix B. Specifically, Respondents must cease and desist from their refusal to recognize the Union as the exclusive representative of its employees in the bargaining unit described herein. It must also recognize the Union as such representative, must provide the Union with the information which the Union requested, and must otherwise bargain with the Union in good faith, as pro- vided in the National Labor Relations Act. Respondents refused to recognize and bargaining with the Union very shortly after the Board certified the Union as the exclusive collective-bargaining representative. The Respon- dents have not, at any time, recognized or bargained with the Union. This refusal not only has precluded bargaining, but also has prevented the Union from representing the employees in other respects. Considering the impact of this refusal on the bargaining process, I conclude that the remedy must ensure that the Union has at least 1 year of good-faith bargaining in which its status as exclusive bargaining representative cannot be ques- tioned. Mar-Jac Poultry, 136 NLRB 785 (1962); Bryant & Stratton Business Institute, 321 NLRB 1007 (1996). On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended2 ORDER The Respondents, Avanté at Boca Raton, Incorporated, and Avanté Terrace at Boca Raton, Incorporated, Joint Employers, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with the Union, Local 1115 Florida East, SEIU, AFL–CIO, CLC, a division of District 1115, SEIU, AFL–CIO, CLC, as the exclusive representative of its employees in the following unit appropriate for collective bargaining: 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. AVANTE AT BOCA RATON, INC. 383 All full-time and regular part-time certified nursing assistants, restorative aides, activities assistants, dietary aides, cooks, die- tary porters, maintenance assistants, receptionist and central supply clerk employed by Respondents at their facilities lo- cated at 1130 N.W. 15th Street, Boca Raton, Florida 33486; excluding all other employees, including registered nurses (RNs), licensed practical nurses (LPNs), managers, confiden- tial employees, office clerical employees, guards and supervi- sors as defined in the Act.3 (b) Failing and refusing to provide information requested by the Union which is necessary for and relevant to the Union’s performance of its duty as the exclusive representative of the employees in the unit described above. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Recognize and bargain with the Union as the exclusive representative of the employees in the unit described above. (b) On request, bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Local 1115 Florida East, SEIU, AFL–CIO, CLC, a Divi- sion of District 1115, SEIU, AFL–CIO, CLC as the designated representative of the employees in the appropriate unit, as if the initial year of certification has been extended for an additional 1 year from the commencement of bargaining pursuant to the Board’s Order in this case and, if an understanding is reached, embody it in a written, signed agreement. (c) Provide the Union with the following information, which the Union requested on about May 8 and June 2, 1997, for em- ployees in the bargaining unit described above: Names, ad- dresses, telephone numbers, marital or dependent status, job title, date of hire, and wage history, and shift and status of em- ployees; the average bargaining unit wage by classification; the starting rate for all classifications; the pay scales and amount of raises uniformly granted; job descriptions; recent job postings; the policy on transfer of position, shift, or unit; a sample of recent work schedules; copies and descriptions of employee benefits programs including the cost to Respondents and to employees; the date health insurance will be renegotiated with the insurance carrier and any proposed changes; the number of employees with health plan coverage and the number enrolled for dependent coverage; a summary, actuarial review, number of retirees, and most recent Form 550 or 5550(c) for the pen- sion plan; copies of the personnel handbook and any other writ- ten work rules or policies; orientation agenda; in-service train- ing plans and sample materials; and tuition reimbursement plans. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. 3 See Avanté at Boca Raton, Inc., 323 NLRB 555 (1997). (e) Post at its facilities in Boca Raton, Florida, and at all other places where notices customarily are posted, copies of the attached notice marked “Appendix B.”4 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondents’ authorized representa- tive, shall be posted by the Respondents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees custom- arily are posted. Reasonable steps shall be taken by the Re- spondents to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. 327 APPENDIX A PROCEEDINGS (Time Noted: 10:56 a.m.) JUDGE LOCKE: On the record. The hearing will be in order. This is a Bench decision in the case of Avante at Boca Raton, Incorporated and Avante Terrace at Boca Raton, Incor- porated, Joint Employers, which I will call the Respondents, and 1115 Nursing Home, Hospital and Service Employees Un- ion—Florida, affiliated with 1115 District Council, SEIU, AFL–CIO, CLC, which I will call the Charging Party or the Union. I conducted the formal hearing in this case on August 10 and 11, 1998, in Miami, Florida, at the same location I am issuing this Bench decision on August 12, 1998, pursuant to Section 102.35 Sub-paragraph 10 and Section 102.45 of the Board’s rules and regulations. I will begin with an overview of the facts. On January 17, 1997, the Board conducted an election at the Respondent’s facilities in a unit consisting of all full-time and regular part-time certified nursing assistants, restorative aides, activities assistants, dietary aides, cooks, dietary porters, main- tenance assistants, receptionists, and central supply clerk with certain specified exclusions. A majority of employees in this unit voted for a Union named 1115 Nursing Home Hospital & Service Employees Union— 328 Florida, which I will refer to as Local 1115—Florida. At that time, this Union was one of about six affiliated with the District Council, identified as 1115 District Council. In March 1997, the District Council affiliated with the Service Employees International Union, AFL–CIO, CLC or SEIU. 4 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384 On April 25th, 1997, after considering the Respondent’s ob- jections, the Board certified Local 1115—Florida as the exclu- sive bargaining representative of the bargaining unit employ- ees. Beginning on May 8th, 1997, the Union demanded that the Respondents recognize and bargain with it, and requested cer- tain information to use in connection with that bargaining. The Respondents refused, contending that the District Coun- cil’s affiliation with the SEIU caused a break in the continuing of the bargaining representative. I find that the Respondent’s refusal to recognize and bargain with the Union, and the Respondent’s refusal to provide the information requested by the Union, violates Sections 8(a)(5) and (1) of the National Labor Relations Act. Before discussing the disputed allegations in this case, I will begin with the Complaint allegations which the Respondents admit. The Complaint alleges, the Respondent admits, and I find, that the charge in Case 12–CA–18860 was filed by the Union on June 23rd, 1997, and that a copy of it was served by first class 329 mail on the Respondent, on June 25th, 1997. The Regional Director for Region 12 for the National Labor Relations Board issued Complaint and Notice of Hearing based upon this charge on July 29, 1997. Respondent further admits, and I find, that the charge in Case 12–CA–18893 was filed by the Union on July 9, 1997, and that a copy was served on Respondent on July 10, 1997. The Regional Director issued an order consolidating cases, consolidated complaint, and notice of hearing on February 26th, 1998, which includes both Case 12–CA–18860 and 12– CA–18893. I will refer to this pleading as the consolidated Complaint or simply as the Complaint. Respondent filed a timely answer to the consolidated Com- plaint and admitted a number of its allegations. Based upon these admissions, I make the following findings. At all material times, Respondents have been Florida corpo- rations with an office and place of business in Boca Raton, Florida, and have been engaged in the business of operating a nursing home and an assisted living facility. During the twelve months preceding issuance of the consoli- dated Complaint, the Respondents, in conducting their business operations described in the Complaint, derived gross revenues in excess of $100,000. Additionally, during the twelve months preceding issuance 330 of the consolidated Complaint, the Respondents, in conducting their business operations, purchased and received at their Boca Raton facility, goods and materials valued in excess of $10,000 directly from points located outside the State of Florida. Respondents admit and I find that at all times material to the Complaint, they have been Employers engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. Paragraph 4 of the consolidated Complaint alleges that at all times material, Louis Manzo occupied the position of Respon- dents’ administrator, is now, and has been at all times material to the Complaint, a supervisor of the Respondents within the meaning of Section 2(11) of the Act, and an agent of Respon- dents within the meaning of Section 2(13) of the Act. The Respondents admit that Louis Manzo was the Adminis- trator of its facilities located at 1139 N.W. 15th Street, Boca Raton, Florida, and exercised supervisory authority under Sec- tion 2(11) of the Act until on or about February 9, 1998, but Respondents state further that Mr. Manzo is no longer Admin- istrator of those facilities. I find that Louis Manzo was the Administrator of Respon- dents’ facilities during the time period admitted by them, and that during this time period, he was a supervisor of the Respon- dents within the meaning of Section 2(11) of the Act, and their agent within the meaning of Section 2(13) of the Act. 331 Although Respondents have denied the Complaint para- graphs which allege that the Union is the exclusive collective bargaining representative of a unit of the Respondents’ em- ployees, I mention these allegations at this time because they provide necessary context for other allegations which Respon- dents have admitted. Specifically, Paragraph 5b of the Complaint alleges that on April 25, 1997, the Union was certified as the exclusive collec- tive bargaining representative of a unit of Respondents’ em- ployees described in Complaint Paragraph 5a. Paragraph 5c alleges that at all times since April 25th, 1997, the Union, by virtue of Section 9(a) of the Act, has been and is the exclusive bargaining representative of the unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Notwithstanding the Respondents’ denials, I take official notice of the certification issued by the Board in Case 12–RC– 8034, reported at 323 NLRB Number 93. That certification described the same collective bargaining unit alleged to be appropriate in Paragraph 5 of the Complaint. It establishes that on January 17, 1997, the Board conducted an election by secret ballot at the Respondent’s facilities, and that a majority of employees in that bargaining 332 unit cast ballots in favor of representation by a Union desig- nated “1115 Nursing Home, Hospital & Service Employees Union—Florida, affiliated with 1115 District Council.” Based upon the Board’s action in Case 12–RC–8034, I find that the General Counsel has proven all allegations raised in Paragraphs 5a, 5b and 5c of the consolidated Complaint. Although the Respondents’ answer denied the allegations in Paragraph 5 of the Complaint, and although the Respondents deny having any duty to bargain with the Union described in the Complaint, they do admit that the Union has requested bar- gaining, as alleged in Paragraph 6 of the Complaint. Specifically, Paragraph 6a of the Complaint alleges that on or about May 8th, 1997 and June 2nd 1997, the Union, by let- ters, requested to meet and bargain with the Respondents. The Respondent admits that by letters on these dates, the Un- ion did request that the Respondents meet and bargain collec- AVANTE AT BOCA RATON, INC. 385 tively. And in accordance with the admission of the Respon- dents and the record as a whole, I so find. Paragraph 6b alleges that since on or about May 8th, 1997, the Respondents have failed and refused to meet and bargain with the Union as the exclusive collective bargaining represen- tative of employees in the collective bargaining unit. In their Answer, the Respondents admit that since on or about May 8th, 1997, they have refused to bargain—to recog- nize and bargain with the Union as the exclusive bargaining 333 representative of the unit. Their Answer further states that this refusal to recognize and bargain is, quoting the Answer verbatim: “In part due to the objectionable conduct surrounding the election, and the impropriety of the certification issued by the Regional Director in Case Number 12-RC-8034, as well as the fact that the entity requesting that bargaining occur was not a continuing representative organization, and proper successor to the entities certified. The Respondents’ have no duty to bargain with this new entity.” However, I note that the consolidated cases before me do not call upon me to decide any issues concerning the alleged con- duct surrounding the election or the propriety of the certifica- tion issued in Case 12–RC–8034. The Board already has resolved such issues which are not before me. The facts established by the Board in Case 12-RC-8034, and reported at 323 NLRB Number 93, are not open to question here. In other words, I accept as beyond dispute that the unit which the Board certified on April 25, 1997 in Case 12–RC– 8034 is an appropriate unit for collective bargaining and that a labor organization named 1115 Nursing Home, Hospital & Service Employees Union—Florida, affiliated with 1115 Dis- trict Council, SEIU, AFL–CIO, CLC was, at the time of the certification, the certified exclusive representative of the 334 employees in the unit. The questions which I must resolve concern, in part, whether the labor organization now demanding recognition and bargain- ing is the same labor organization certified by the Board in Case 12–RC–8034 or whether changes in name and affiliation have changed it in such a manner that the Respondents do not have a bargaining obligation to the entity which now demands bargaining. The three sub-paragraphs of Complaint Paragraph 7 allege that on or about May 8th, 1997 and June 2nd, 1997, the Union requested certain specified information about employees in the bargaining unit, that this information was necessary for and relevant to the Union’s performance of its duty as the exclusive collective bargaining representative and that since on or about May 8th, 1997, the Respondents have failed and refused to furnish the Union with the information requested. In their Answer, the Respondents admit that the Union made the information request alleged in Complaint Paragraph 7a. I so find. The Respondents also admit that since on or about May 8th, 1997, they have refused to furnish the Union with the informa- tion requested. I so find. The Respondents’ Answer does not specifically address the allegation that the requested information is relevant to collec- tive bargaining and necessary for the Union to engage in 335 such bargaining. However, the Respondents deny having any duty or obligation to provide the information. Because the Respondents have admitted that the Union made the information request described in Complaint Paragraph 7a, the determination of whether the information sought is relevant to and necessary for collective bargaining, involves only a legal conclusion. The Union requested information about employees in the bargaining unit, specifically their names, addresses, telephone numbers, marital or dependent status, job titles, basic hire and wage history, and shift and status of employees. The Union also requested the average bargaining unit wage by classification, the starting rate for all classifications, the pay scales, and amounts of raises uniformly granted, job descrip- tions, recent job postings. The Respondents’ policy on transfer of position, shift or unit, a sample of recent work schedules, copies and descriptions of employee benefit programs, including the cost to Respondents and to the employees, the date health insurance will be renego- tiated with the insurance carrier, and any proposed changes, the number of employees with health plan coverage, and the num- ber enrolled for dependent coverage, a summary actuarial re- view, number of retirees, and most recent Form 550 or 5550C for the pension plan. 336 Copies of the personnel handbook, and any other written rules or policies, orientation agenda, in-service training plans and sample materials, and tuition reimbursement plans. I find that the information sought concerns the wages, hours and working conditions of bargaining unit employees and per- tains to mandatory subjects of collective bargaining. Such information is relevant and necessary to the Union in fulfilling its collective bargaining responsibilities. If the Re- spondent had a duty to bargain with the Union, then it clearly had a duty to provide the requested information. Therefore, whether or not Respondents’ refusal to provide this information constituted an unfair labor practice, will de- pend on the resolution of the more general issue of whether Respondent had a duty to recognize and bargain with the Un- ion. Other allegations raised in the Complaint are in dispute. Paragraph 3a alleges that at all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act. The Respondent admits that 1115 Nursing Home, Hospital & Service Employees of Florida, affiliated with 1115 District Council is a labor organization within the meaning of the Act, but the Respondents’ answer then avers that they: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386 “Have no knowledge of whether that organization, as affili- ated with SEIU, is a labor organization. Further, Respondents deny that SEIU is a party to the certification 337 issued by the Regional Director in Case Number 12–RC– 8034.” With respect to the last sentence, Paragraph 3 of the Com- plaint does not allege that the SEIU is a party to the certifica- tion in Case 12–RC–8034, so that matter is not in issue. Rather, the issue presented by Complaint Paragraph 3a con- cerns whether the Union is a labor organization and has re- mained a labor organization after the affiliation. The allegation can be resolved without reaching the core is- sue of the case, whether or not the entity which sent the Re- spondents the May 8, 1997 and June 2, 1997 letters demanding recognition and bargaining was the same entity certified by the Board in Case 12–RC–8034. The evidence clearly establishes that it is a labor organiza- tion. Thus, uncontradicted testimony establishes that it is an organization in which employees participate, and which exists in whole or in part, for the purpose of dealing with Employers concerning grievances, labor disputes, grievances, rates of pay, hours of employment and conditions of work. I find that it is a labor organization within the meaning of Section 2(5) of the Act. As originally pleaded in the consolidated Complaint, Para- graph 3b alleges that on or about April 1, 1997, the Union’s parent organization, 1115 District Council, became affiliated with Service Employees International Union, AFL–CIO, CLC, and 338 that its correct name became 1115 Nursing Home, Hospital & Service Employees Union—Florida, affiliated with 1115 Dis- trict Council, SEIU, AFL–CIO, CLC. The Respondents’ Answer states that they are without knowledge regarding this purported affiliation and, therefore, they denied the allegation. By written motion submitted at the beginning of hearing as General Counsel’s Exhibit 2, the Government sought to delete Paragraph 3b as it appeared in the consolidated Complaint, and substitute a new Paragraph 3b. The General Counsel also added new Sub-paragraphs 3c and 3d. I granted the Government’s motion and allowed the amendment, and will consider these allegations to be denied by the Respondent. As amended, Paragraph 3b alleges as follows. “On or about April 1, 1997, 1115 District Council, the parent organization of the Union, until then known as 1115 Nursing Home, Hospital & Service Employees Union—Florida, affiliated with Service Employees International Union, SEIU, AFL–CIO, CLC, and the name of the Union became 1115 Nursing Home, Hospital & Service Employees Union—Florida, affiliated with 1115 Dis- trict Council, SEIU, AFL–CIO, CLC.” The new Paragraph 3c alleges as follows: “On or about July 9, 1997, the Union changed its name to Local 1115—Florida, SEIU, AFL–CIO, CLC, a division of District 1115, SEIU, 339 AFL–CIO, CLC.” The new Paragraph 3d alleges as follows: “On or about Sep- tember 15, 1997, the Union changed its name to Local 1115— Florida East, SEIU, AFL–CIO, CLC, a division of District 1115, SEIU, AFL–CIO, CLC.” Uncontradicted evidence establishes the facts alleged in Complaint Paragraphs 3b as amended, 3c, and 3d. I find that the Government has proven these allegations. The Government’s amendments also changed the first sen- tence of the Complaint to reflect the new name of the Charging Party. Uncontradicted evidence establishes that the local Union, which was designated 1115 Nursing Home Hospital & Service Employees Union—Florida, affiliated with 1115 District Coun- cil, SEIU, AFL–CIO, split into two local Unions in September 1997. The larger one, Local 1115 Florida East, represents employ- ees working at about 20 facilities on the East Coast of Florida. Its officers were previously officers of Local 1115 Florida, and no new officers were elected when the split took place. The previous Local, Local 1115—Florida, also represented employees working at about seven facilities in Western Florida. Local 1115 Florida West came into existence at the same time as Local 1115 Florida East, and it assumed the function of 340 representing these employees in West Florida. Since the Florida West Local was essentially a new body, it had no officers and Union members elected officers. The Sec- retary-Treasurer of Local 1115—Florida East, Mr. Grossberg Miranda, testified without contradiction, that the split produced no change in officers, representatives, duties, by-laws, or man- ner of functioning for Local 1115—Florida East. Similarly, it did not change the authority of the officers in Local 1115—Florida East, to perform the duties of their offices. Crediting this uncontradicted testimony, I find that to be the case. I conclude that the creation of the new Florida West Local from a small portion of the Florida local, did not change the way the remainder of that Local functioned in any significant way. A possible analogy may be found in the biblical account of the creation of Eve from Adam’s rib. Presumably, this proce- dure had no significant effect on Adam’s identity. Even with one rib less, he was still Adam, although it did change the rib. Here I am concerned only with the status of Adam and I find that it remains the same as before. Moreover, the Complaint alleges that the violations began on about May 8th, 1997, when the Respondents admittedly refused to recognize and bargain with the Union. That was before the split of Local 1115—Florida into two Locals, Florida East and 341 Florida West. Therefore, that later split could not be relevant to either the Government’s theory of the case, or the justification asserted by the Respondents. AVANTE AT BOCA RATON, INC. 387 Stated another way, if any significant change took place, which made the Union which demanded recognition on May 8th, 1997 significantly different from the Union which the Board had certified on April 25, 1997, that change did not con- cern the later split of Local 1115—Florida into two Locals. At this point, embarking upon the discussion of possible changes in the continuity of the Union certified as the bargain- ing representative, it is important to examine the sequence of events carefully, and with attention to procedural principles. The admitted refusal to bargain began on May 8th, 1997, less than three weeks after the Board certified the Union on April 25th, 1997. During the first year after Board certification, a labor organi- zation enjoys an irrebuttable presumption that it continues to have the support of a majority of the employees in the unit it represents. In other words, it does not fall within my authority to ques- tion the Union’s majority status on May 8th, 1997, or even to consider it questionable. The Union conclusively was the col- lective bargaining representative. 342 However, I do have authority to consider the Respondents’ arguments to the extent that the arguments assert that the Union which demanded to bargain on May 8th, 1997, was not the same entity which was certified on April 25, 1997. There appears to be a subtle gray area regarding the extent to which the Board’s April 25, 1997 certification in Case 12–RC– 8034 limits my authority to consider events which took place between the date of the election on January 17, 1997, and April 15th. During that time period, the District 1115 voted to become affiliated with the Service Employees International Union. The Respondents based much of their defense on the asserted ef- fects of this affiliation, which appears to have taken place sometime after the deadline for filing objections to the conduct of the election. I will proceed under the assumption that if the affiliation changed the identify of the Union so greatly that there was a substantial difference between the Union selected by the em- ployees on January 17th and the one which demanded recogni- tion on May 8th, 1997, that difference may be considered by me and by the Board. However, in view of the conclusive pre- sumption that a Union continues to enjoy majority support dur- ing its first year of certification, it does not matter whether or not the affiliation with the SEIU made employees disaffected. 343 I conclusively conclude that a majority still supports the Un- ion, which the employees chose on January 17, 1997. The only change which could affect the Respondents’ bar- gaining obligation would be a change that altered the identify of the Union. In other words, the change would have to be so profound that it made the Union which demanded bargaining a different en- tity from the one which had received the Board certification three weeks earlier, and with that certification, the conclusive presumption of majority status for one year. Law professors might imagine situations which made that possible, and so could science fiction writers. However, I lack that kind of imagination. Apart from the possibility of extra-terrestrials cleverly dis- guised as business agents, I have some difficulty visualizing events causing a change in Union identity so great that it would deprive the Union of its certification year presumption. In determining whether a Union affiliation or merger causes a change sufficient to vitiate an Employer’s bargaining obliga- tion, the Board typically focuses on two areas. One concerns whether there is substantial continuity of rep- resentation both before and after the change. The Board evalu- ates whether there has been a change in Union leadership. Additionally, it looks at whether there’s been a change in the amount of power that the Union leaders possess and exercise. 344 Similarly, the Board considers changes in financial arrange- ments which, of course, may reflect changes in control of the Union. The Board examines whether the Union’s assets have been transferred to some other entity and what changes, if any, have been made in dues paid by the membership. It also evaluates whether the authority to set policy and pri- orities in collective bargaining remains with the same Union leaders who possessed it before. Similarly, a shift in who has power to call a strike, and who possesses authority to settle grievances will be considered. The evidence in this case is uncontradicted. It establishes that by all of these measures, the Union’s affiliation with the Service Employees International Union did not disturb or alter the distribution of power, authority and assets. It also did not alter the day-to-day functioning of the Union and its representation of employees. However, the record does disclose some things that were altered. For example, the affiliation results in the District Council paying a per capita tax to the SEIU. That tax is being phased in over a four-year period, and if the rate is unchanged, will amount to about $6 per member per month. The evidence indicates that before the affiliation, the Union did not pay any per capita taxes for members in Florida. 345 Additionally, the affiliation agreement imposes on the District Council an obligation to spend a certain amount on organizing activities. Union President Sackman described this obligation as being in perpetuity. However, while recognizing that such an obligation limits the freedom and discretion of Union offi- cials to spend that money elsewhere and for other purposes, I find that it is not sufficient to create a substantial break in the continuity of representative. The evidence does not establish that this arrangeme nt results in the unit employees having fewer resources that can be com- mitted to their representational needs than were available for the affiliation. See CPS Chemical Company, Inc., 324 NLRB Number 154, [1018] decided November 7, 1997. In other respects and particularly from the viewpoint of the employees, the affiliation caused little, if any change. In par- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388 ticular, there is no showing that the affiliation fundamentally altered the conduct of the day-to-day affairs of the Local Union organization. See Miller Waste Mills, Inc., doing business as RTP Com- pany, 323 NLRB Number 4, [15] February 20, 1997. The Board has held that an affiliation of a Local Union with an International Union does not, by itself, interrupt the continu- ity of representation. 346 See, for example, Minn-Dak Farmers Cooperative, 311 NLRB 942, a 1993 case, in which the Board, noting that a certi- fied Union enjoys a presumption of continuing majority sup- port, stated that: “The Union’s subsequent affiliation with a national or inter- national organization does not, standing alone, affect the Un- ion’s representative status or terminate the Employer’s duty to bargain with the Union.” 311 NLRB 944. See also Texas Plastics, Inc., 263 NLRB 394. a 1982 case. The Respondent bears the burden of proving that the affilia- tion has produced a break in the continuity of representation. The evidence does not establish that to be the case here. Apart from the question of continuity, the Board also exam- ines whether the Union’s internal affiliation process satisfies at least minimal standards of due process. Some cases refer to this inquiry as the second prong of a two-prong test, the first prong concerning the issue of substan- tial continuity. However, I believe the expression “two-prong” test may be misleading, in that it may suggest that both prongs of the test must be satisfied or that both are of equal moment. That is not the case. During oral argument, counsel for the General Counsel sug- gested that if there is no change in the identity of the 347 Union, then it is not appropriate to consider the due process matter. In other words, the issue of due process becomes important only when affiliation results in a significant change. My review of the cases, including those cited by all sides during oral argument, leads me to believe that the law is not settled on whether or not the Board may apply due process standards to an affiliation vote, which is largely an internal Union matter. In the recent Sullivan Brothers Printers, 317 NLRB 561, a 1995 case, the Board stated in a footnote, “In light of our find- ings here that the Board’s due process requirements have been met in this case, we find it unnecessary to determine whether, in view of the Supreme Court’s opinion in Seattle First, the Board lacks the authority to impose due process requirements.” See 317 NLRB at Page 62, Footnote 2. In the same volume, the Board stated in Paragon Paint Corp., 317 NLRB 747 at 748, also a 1995 case, “Finally, we note that the Judge found the merger election satisfied the Board’s traditional due process criteria. Accordingly, we need not pass on what action the Board would take had the election not satisfied these standards.” In the instant case, I believe the issue cannot be avoided. The bargaining unit employees did not receive any 348 minimal due process. I find that the Union has a policy which denies the unit em- ployees eligibility to become members until their Employer enters into a collective bargaining agreement with the Union. As the Respondent admits, the Respondents have refused to recognize the Union. The bargaining unit employees did not receive any notice re- garding the contemplated affiliation, and did not attend any of the conventions at which Union members discussed these is- sues. Under the Board’s precedents, it does not matter that the Un- ion members approve the affiliation proposal by a voice vote, rather than by secret ballot. Indeed, for due process purposes, it may not even be necessary for the members to have any vote on the affiliation question at all. See, for example, House of the Good Samaritan, 247 NLRB 539, a 1980 case, and Aurelia Osborn Fox Memorial Hospital, 247 NLRB Number 43, [356] also a 1980 case. The Board considers more important the fundamental due process principle that a person receive notice of the proposed action, and the right to be heard about it. Thus, in Miller Waste Mills, Inc. d/b/a RTP Company, 323 NLRB Number 4, [15 (1997)] the Board listed among its due process standards that notice of the election be given to all members, that members have adequate opportunity to discuss the 349 election, and that reasonable precautions to maintain ballot secrecy be taken. With respect to this last requirement, from other Board cases it is clear that a Union does not have to conduct a secret ballot election in the rigorous Board manner to satisfy the due process requirements. If I were to reach the issue of due process, I would conclude that the Union failed to meet even minimal standards of due process with respect to the bargaining unit members. It is true that non members of the Union do not have a right to partici- pate in internal Union matters such as affiliation votes. At the same time, in this case it must be noted that the Union did not give the bargaining unit employees the right to join the Union. Thus, they were all on the outside, not because they choose to be, but in some cases at least, because they had no choice. The unwritten policy excluded them. Moreover, I believe that the right to notice and the right to be heard exists even when the right to vote does not exist. Being heard means more than being able to attend the particular Un- ion meeting or convention. A person can communicate his or her views in a number of ways, ranging from a postcard to E mail, but unless the person receives notice of a proposed action, he or she does not have the opportunity to be heard about it. Although I would conclude that bargaining unit employees AVANTE AT BOCA RATON, INC. 389 350 did not receive minimal due process, I do not believe that I may take that conclusion into account in evaluating this case, or in reaching a decision herein. The Supreme Court’s decision in NLRB versus Food and Commercial Workers Local 1182, 472 US 192 (1986), com- monly referred to as Seattle First National Bank or Sea First, does not decide whether or not the Board totally lacks authority to impose standards on internal Union matters. However, this same case does markedly limit the power of the Board to impose such due process standards in a case such as this one arising in the representation context. Writing for a unanimous Court, Justice Brennan stated in part, as follows. Again, I quote: “Under the Act, dissatisfied employees may petition the Board to hold a representation election, but the Board has no authority to conduct an election unless the effects complained of raise a question of representation. “In any event, dissatisfaction with representation is not a rea- son for requiring the Union to allow nonunion employees to vote on union matters like affiliation. Rather, the act allows Union members to control the shape and direction of their or- ganization, and `non Union employees have no vote in affairs of the Union.’” Citing Allis-Chalmers, 388 US at 191. Justice Brennan continues, stating, “We repeat, 351 dissatisfaction with the decisions union members make, may be tested by a Board-conducted representation election only if it is unclear whether the reorganized Union retains majority sup- port.” 475 US at Pages 205 and 206. The last quoted sentence, the one beginning with the phrase, “We repeat,” speaks with a definite tone of voice, even from a printed page. The Court did not want to leave any doubt about this principle. In fact, Justice Brennan’s opinion goes on to phrase the prin- ciple in a somewhat different, but all the same emphatic way a little later. Again, I quote from the decision. “If the Board finds that af- filiation raises a question of representation undermining the Board’s own election and certification procedures, Amoco Pro- duction Company, 262 NLRB, at 1241, it can refuse to consider the Union’s unfair labor practice charge, and is authorized to conduction a representation election. “However, it may not condone an Employer’s refusal to bar- gain in the absence of a question of representation, and has no authority to prescribe internal procedures for the Union to fol- low in order to invoke the Act’s protection.” 475 US at 207, 208. The present case arose during the Union’s certification year, during which it enjoyed a conclusive presumption of 352 majority status, at a time when a question concerning represen- tation could not be raised and would not be considered by the Board. I have found that the evidence does not establish any break in the continuity of the Union, even though the Union affiliated with an International, and even though the name of the Union was slightly changed. In these circumstances, a question concerning representation cannot be raised. Therefore, in the absence of a question con- cerning representation, I may not take into account my conclu- sion that the bargaining unit employees did not receive any minimal standards of due process. In sum, I find that when the Union requested recognition in bargaining, the Respondents had a duty to recognize and nego- tiate with it. Similarly, when the Union requested information relevant and necessary to mandatory subjects of collective bargaining, the Respondents had a duty to provide that information. By their own admission, Respondents did not recognize and bargain with the Union, and did not provide the requested in- formation. I conclude that the Respondents thereby violated Section 8(a)(5) and (1) of the Act. The remedy will include an order that the Respondents rec- ognize and bargain with the Union, provide the requested in- formation, and post a notice to employees. 353 Upon receipt of the transcript of this proceeding, I will issue a certification of Bench Decision. This certification of Bench Decision will include specific provisions regarding the remedy, order and notice, and will include as an attachment, the tran- script pages reporting the decision I have just given. In accordance with its rules, the Board will then serve copies of this certification upon the parties. The deadline for appeal will begin to run when the parties are served with the certifica- tion and decision. I have been very impressed during this hearing with the pro- fessionalism of counsel, and with how well they cooperated to assure the hearing ran smoothly and efficiently. It has been a please to work with all of you on this case. The hearing is closed. Off the record. (Whereupon, at 11:40 a.m., the hearing in the above-entitled matter was closed.) APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390 To choose not to engage in any of these protected con- certed activities. WE WILL NOT do anything which interferes with these rights. WE WILL NOT fail and refuse to recognize and bargain with the Union, Local 1115 Florida East, SEIU, AFL–CIO, CLC, a Division of District 1115, SEIU, AFL–CIO, CLC, as the exclu- sive representative of our employees in the following appropri- ate unit: All full-time and regular part-time certified nursing assistants, restorative aides, activities assistants, dietary aides, cooks, die- tary porters, maintenance assistants, receptionist and central supply clerk employed by the Employer at its facilities located at 1130 N.W. 15th Street, Boca Raton, Florida 33486; exclud- ing all other employees, including registered nurses (RNs), li- censed practical nurses (LPNs), managers, confidential em- ployees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to provide relevant informa- tion requested by the Union, which is necessary for it to repre- sent our employees in the unit described above. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize the Union as the exclusive collective– bargaining representative of the employees in the unit described above, bargain with the Union in good faith, and, on request, reduce any agreement reached to writing, in accordance with our obligations under Section 8(d) of the National Labor Rela- tions Act. WE WILL provide the Union with the information it re- quested on or about May 8 and June 2, 1997. AVANTÉ AT BOCA RATON, INCORPORATED, AND AVANTÉ TERRACE AT BOCA RATON, INCORPORATED, JOINT EMPLOYERS