Independence Residences Inc

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.] .