Independence Residences Inc

National Labor Relations Board - Administrative Judge Opinions

Aug 24, 2011

29-CA-030566 (N.L.R.B. Aug. 24, 2011)

JD(NY)–27–11
Woodhaven, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
INDEPENDENCE RESIDENCES, INC.
and Case No. 29-CA-30566

WORKERS UNITED, SERVICE EMPLOYEES
INTERNATIONAL UNION
Emily Cabrera, Esq., Brooklyn, NY, for the
General Counsel.
Louis P. DiLorenzo, Esq., (Bond Schoeneck & King PLLC),
New York, NY, for the Respondent.
Ira Katz, Esq., New York, NY, for the Charging Party.
DECISION
Steven Fish, Administrative Law Judge: Pursuant to charges filed by Workers United,
Service Employees International Union (Workers United) in Case Nos. 29-CA-26042 and 29-
CA-30566, the Director for Region 29 issued a complaint 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 recognize and bargain with Workers United,
alleged to be the successor labor organization to UNITE, AFL-CIO, CLC (UNITE), which union
had been certified to represent Respondent’s employees, by refusing to supply relevant
information to Workers United and by making several changes in conditions of employment 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 No. 29-CA-26042, 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
Respondent’s Motion to Dismiss the complaint allegations relating to Case No. 29-CA-26042.
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 No. 29-
CA-26042 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 No. 29-CA-30566 for disposition.
Briefs have been filed by the parties and have been carefully considered. Based upon
the entire record,1 including my observation of the demeanor of the witnesses, I, hereby, issue

1 Pursuant to agreement of all parties, the record was left open for the submission of
Respondent’s Exhibit 7 and Charging Party’s Exhibit 3. These documents were submitted
Continued
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
2
the following recommended:
Findings of Fact
I. Jurisdiction and Labor Organization
Respondent is a corporation with its principal place of business 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, Respondent 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 meaning of Section 2(5) of the Act.
II. Prior Related Case
Independence Residences, Inc., 355 NLRB #153 (2010), Case No. 29-RC-10030
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 employed
by Respondent. On May 9, 2003, the Director for Region 29 approved a Stipulated Election
Agreement executed 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 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 its
facilities listed in Appendix A,2 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.
2They are as follows:
PARK LANE SOUTH RESIDENCE
101-08 Park Lane South
Richmond Hill, New York 11418
_________________________
subsequent to the close of the hearing and are received in evidence.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
3
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 June 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 objections to conduct affecting the
conduct of the election.
On August 4, 2003, the 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 Case No. 29-CA-25657, 25697 and
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
4
25720 on various dates between June 13 and July 17, 2003, alleging that Respondent violated
various sections of the Act.
On September 30, 2003, the Director issued an Order Consolidating Cases,
Consolidated Complaint, Report on Objections and Notice of Hearing, in which he consolidated
the representation case with the unfair labor practice charges alleged in said complaint, which
alleged that Respondent violated Sections 8(a)(1) and (3) 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 nine days between November 18 and December 12, 2003. At the close of the trial, I
severed 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 Objections in Case No. 29-RC-
10030. 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 assumed, without deciding, that
the New York labor law in question was pre-empted and found, however, that the Employer had
not established that its campaign was substantially inhibited by the existence of the law. Rather,
I concluded that the Employer conducted a vigorous and aggressive anti-union campaign,
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 labor practices that were
litigated at the same time as the representation 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, soliciting 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 implementation of wage increases to influence employees’ support for
the Petitioner. I also found that Respondent violated Section 8(a)(1) and (3) 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 employees.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 #153), wherein it affirmed my decision and certified UNITE as
the collective bargaining representative of Respondent’s employees in the stipulated unit.
Member Schaumer 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

2 Independence Residences, JD(NY)-43-04 (Sept. 30, 2004).
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
5
held to be pre-empted by federal law. Chairman Liebman issued a concurring opinion noting
that the case has languished at the Board for over seven years—an unconscionably long time—
as a still unresolved challenge to New York State Labor Law Section 211-a has worked its way
through the federal judicial system.” Id at p. 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 employees. On factual grounds,
then, it is hard to credit and endorse the Employer’s claim—even
apart from the unfairness 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 election
case: employees. Nothing in the evidence persuades me that the
New York law prevented employees from freely choosing whether
or not they wished union representation. 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 International 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 laundries,
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

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 similar 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 (2nd Cir. 2006) (Pataki II).
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
6
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 consisted of elected officers and delegates, who were generally officers
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 geography and were responsible
for negotiation of contracts,4 involvement 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 Services 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 6 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 garment 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 workers in the
MRDD5 industry.
Over the next several years, DSAW under Rumelt’s leadership organized four or five
employers, who performed MRDD services, and as noted, consisted of the 6 locals described
above.6
UNITE’s constitution provided for a General Executive Board (GEB) and an Executive
Board. The GEB consisted of the international president, secretary-treasurer, two executive
vice-presidents and twenty-five 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 Harvey, Robert Jordan, Christine Kerber, Wilfredo Larancuent,
Joseph Lombardo, David Melman, Gail Meyer, Warren Pepicelli, Harris Raynor, Richard
Rumelt, Lynne Talbott and Christina Vasquez.7
Romney and Chen were managers of the New York Metropolitan Joint Board, which was

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 disabilities.
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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
7
located at UNITE’s headquarters 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 jurisdiction 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 two 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 for
weekly dues or $2.00 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 disposition 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 president’s authority for strikes in excess of
seven working days.
The constitution further requires that there shall be a general convention every four
years, that the GEB meet three times a year and that affiliates hold periodic meeting with their
memberships.
The grievance procedure was generally set forth in each individual 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 involved. 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

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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
8
consultation with other union representatives, made the decision on whether to proceed to
arbitration.
UNITE owned the building at 275 Seventh Avenue, New York, New York, where it
housed its general offices, plus several 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 documents from that organizing
campaign in 2003. They were issued 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 indentifies 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 managed 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 informed 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 Respondent 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 of
2003. From April 16 to April 22 UNITE conducted what was
referred to by its coordinator of organizing Allison Duwe as a

10 The funds were jointly administered by trustees of the funds, consisting of UNITE officers
and representatives of employers.
11 I note that both of the joint boards were located at the same address.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
9
“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 national 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 professional
employees across New York State who care for the mentally
retarded and developmentally disabled (MRDD). We are
committed to building a movement for MRDD workers 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 interested
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 represent 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 Committee, which lobbies
aggressively for better wages in the MRDD industry.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
10
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 better pay and
make the improvements we needed so we could really care for the
consumers. I’m pleased that our consumers know that the staff
[they] see today will be with them tomorrow 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 contract. 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 workforce that cares for them.
UNITE also believes that it is the MRDD workers themselves who
can best address issues [of] care, and work with management 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 respond immediately to
the shortage of staff in the house, because it was not only taking
its toll on us, but on the consumers as well. We presented the
petition to the executive director of the agency, and within two
weeks there was a new employee hired at the house who was
medically certified and had a CDL.

12 The document also contained pictures of two individuals, purportedly Washington and
Lynch. It also contained pictures, purportedly showing its members lobbying in the NY State
Capitol.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
11
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 being
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
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 disabled, 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 industries, industrial
laundries and light manufacturing. And we also 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 compounded by low
wages, prohibitively expensive healthcare benefits and lack of
respect on the job. As a result of these difficult 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 working 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

13 The document also contained a picture of Hildenbrand.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
12
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 provided. 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 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 upon 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
International. 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 organizing 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 negotiation of the contract with Respondent.
V. The Merger of UNITE and HERE
In July 2004, UNITE merged with the Hotel Employees Restaurant 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

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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
13
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, represented 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.
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 Ellenville, 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-president of
UNITE HERE.18
All former officers of affiliates of UNITE and HERE continued to serve in their same
capacities with UNITE HERE. Richard 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.

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.
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 co-presidents and the Canadian directors constituted the Executive
Committee of UNITE HERE.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
14
After the merger, the collective bargaining and grievance arbitration 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 Retirement Fund merged with
Here’s National Retirement Fund. However, all of the union trustees of the former UNITE
Retirement 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 property of UNITE HERE.
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 included representation of
disability employees. Local 37 was a former HERE local. The record is silent about Local 117,
except that it was not a former UNITE local. Rumelt and Papageorge 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 membership of 8,750 members in 2009 and 7,224 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
members 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, voted 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 incomplete 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,

19 Locals 37, 117, 189, 919 and 1904.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
15
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 previously 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 executive 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
representative of the UNITE Canadian Office, Ontario Council with UNITE, became secretary-
treasurer and Canadian director and an Executive Committee member at Workers United. The
record does not reflect what position Dagg held after Bruce Raynor became president of
Workers United in July 2009 and Romney became secretary-treasurer.
UNITE also had 21 vice-presidents and other General Executive 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
Jordan,21 Lee, Lombardo and Talbott.
Of the remaining fifteen former vice-presidents of UNITE, twelve of them became vice-
presidents of GEB members of Workers United.22 The reaming 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 Workers United board members, one, William Towne, had
previously been a UNITE officer, but not a GEB member.24 Rykunyk, Luebbert and Aristes were
all prior member of UNITE HERE’s GEB.25

20 William Lee, executive vice-president and 20 vice-presidents: Ernest Bennett, Harold
Bock, Gary Bonadonna, Clayola Brown, May Chen, Susan Cowell, Angelo de Costa, John Gillis,
Jean Harvey, Robert 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 co-manager 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, Larancuent, 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 Amalgamated 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-
Continued
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
16
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
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 United, 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 director of UNITE Disability
Council, but was also the MRDD director 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 develop
policies for affiliate dues systems. Starting in July 2011, the constitution provides that all
members' dues will be increased 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 special meeting.
Workers United also had virtually the same membership requirements 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 between 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 agreement, 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 although the former trustees from UNITE continued as trustees in
the merged fund. Despite the disaffiliation, the merged retirement funds remained in existence
except that the trustees, who were formerly UNITE employees, are Workers United employees
and claims are processed the same way through the joint boards, who are, as related above,
_________________________
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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
17
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 operations 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, including
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 employees, Romney received a telephone call from UNITE’s
president, 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
assigned to Respondent’s shop in order to negotiate a collective bargaining agreement.
There is no evidence that either Romney or anyone else associated 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 bargaining
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 requesting that Independence Residences
negotiate a collective bargaining 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:
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
18
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 residence)
and email address for each employee.
3. A copy of your employee handbook and any other documents
concerning employment related policies, i.e. attendance,
substance abuse, rules, personnel policies, etc.
4. A copy of all employee benefit programs, including summary
plan descriptions, for all benefits included but not limited to
medical, life, disability, retirement and other fringe 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 letter by its new counsel,
Louis DiLorenzo. It reads as follows:27

27 I note that the letter from Workers United was on Workers United/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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
19
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 established law and the
core principles of the National Labor Relations Act. In addition, it
would be inappropriate to recognize Workers United because
Workers United is not the labor organization 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
representative under these circumstances would violate the rights
of our employees, which IRI will not do. We therefore respectfully
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 disclaiming 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:

28 As noted above, the agreement provided that SEIU shall have exclusive jurisdiction for
organizing Mental Retardation/Developmental Disabilities workers.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
20
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
employees of Independence Residences, Inc. UNITE HERE
recognizes 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 National
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
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 interest in
representing employees at Independence Residences.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
21
Sincerely,
Thomas Snyder
Chief of Staff and VP
cc. Subash Viswanathan
As detailed above, the certificated unit consisted of eleven facilities 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, Respondent employed 234
employees covered by the unit description, including these additional facilities. However, when
pressed on cross-examination, it appears that Emmerich’s estimate 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 employees 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.
IX. Analysis
A. Continuity of Labor Organization
Once a union is certified by the Board, a union enjoys a presumption 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 organization
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

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 Residence in Ozone Park, New
York and Rosario Apartment Residence in Woodside, New York.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
22
of Berkeley, 306 NLRB 893, 899 (1992). This is because “the basic purpose of the National
Labor Relations Act is to preserve industrial peace,” NLRB v. Financial Institution Employees
(Seattle First National Bank), 475 US 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 relationship.” Id at 202-203.
The Board had traditionally applied a two-pronged test to determine whether an
employer is obligated to recognize or bargain with a merged or disaffiliated union. The prongs
were whether the merger vote occurred under circumstances satisfying 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 (DC Cir. 2008) in response to the Supreme Court’s Seattle First decision,
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 organizational 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 merger of UNITE into UNITE HERE and the subsequent
disaffiliation 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 demonstrates 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, by-laws, size and jurisdiction. May Dept. Stores v.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
23
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 conclusion, 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 Chevrolet, 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 procedure 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
Chemical, 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 Raton 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 1214, 217 (1988).
The Board has frequently relied upon similarity of union officers and representatives 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

31 Susan Cowell, Angelo de Costa, Robert Jordan, William Lee, Joseph Lombardo and
Lynne Talbott.
32 Richard Rumelt, Warren Pepicelli and Organizing Director Ernest Bennett.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
24
constitution, requirements for frequently of conventions, GEB meetings and membership
meetings. These similarities in structure and membership rights are further evidence of
continuity 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 representation, such as grievance handling, arbitration
decisions, contract negotiations, contract ratification and strike authorization are similar or
identical vis a vis UNITE and Workers United. 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 headquarters 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 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 employees, should Respondent sign a contract with Workers
United providing for coverage of its employees by the merged retirement fund, will in any way
be disadvantaged or their benefits 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, accordingly, 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. Printers v. NLRB, 99 F.3d at 1229.
Respondent does not, and in fact, cannot contest the substantial evidence of continuity,
detailed above, but does raise two somewhat related arguments, that such evidence is not
determinative of Respondent’s bargaining obligation based on the circumstances 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
chosen, 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 contends that confusion results when the
certified representative delegates its representational responsibilities, which it cannot lawfully
do. Goad Co., 332 NLRB 677 fn.1 and at 680 (2001). Finally, Respondent argues that General
Counsel as the party asserting that a Section 9(a) relationship exists has the burden of proving
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
25
the existence of that relationship and has not done so here. Continental Linen Services Inc., JD-
53-10 (September 15, 2010).
Respondent notes that UNITE was the certified representative 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 confused about who the proper representative of its employees was, and that since
UNITE as the certified union cannot delegate its responsibilities, Respondent was under no duty
to bargain 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 responsibilities and that Respondent had no right to refuse to recognize and
bargain with Workers United.
Unlike the cases cited by Respondent,33 Workers United requested 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 successor union to UNITE, which is not a 9(a) issue, but, as detailed 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. Raymond Kravis, supra,
351 NLRB at 147 fn. 10; Deposit Telephone, 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 attempts 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 confusion in the employer’s mind that
the international was attempting to supplant the local as the lawful representative. No such facts
are present here.
Continental Linen is of course a decision of an administrative 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 resulting 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 presented with conflicting
claims for representation of its employees 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

33 Newell Porcelain, supra; Goad, supra; Continental Linen, supra.
34 The case was withdrawn after the judge’s decision.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
26
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 burden of proving that the joint board had been the exclusive representative of the
employer’s employees.
Here, there is no conflict between Workers United and UNITE HERE as to
representational status or who the representative 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.
Accordingly, I reject Respondent’s 9(a) defense and conclude that the relevant issue is
the continuity of representation between UNITE and Workers United.36
Respondent argues in this regard that the relevant consideration 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 campaign, 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, Respondent 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 the 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.”

35 The local union (Local 151) had been the bargaining representative of the employer for
many years prior to its merger with UNITE.
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 Respondent’s contentions vis a vis DSAW insofar as it relates to the continuity issue,
discussed below.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
27
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 election.
Therefore, there was no representation of Respondent’s employees by DSAW, UNITE or any
other entity. It is, therefore, inappropriate to speculate about how the representation of
Respondent’s employees would have been effectuated or which officials of UNITE would have
been involved with Respondent’s employees.
Therefore, the precedent cited by Respondent is clearly distinguishable 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 Winner, supra at 69. Here, since there has been no local representation to analyze, the
continuity analysis must be centered on UNITE, the certified labor organization, and not DSAW,
which was not on the ballot at the election.
UNITE as the certified labor organization has the right to select a local or a joint board to
act as its agent to service Respondent’s employees, and it can do so in any manner it chooses,
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 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 Respondent’s employees, and it has selected the New York
Metropolitan 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
Valley, supra.
Respondent’s contentions that DSAW allegedly “organized” Respondent’s employees is
incorrect since, in fact, it was UNITE representatives and officers, who organized Respondent,
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 organizing
campaign. Therefore, neither Rumelt’s failure to become 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 continuity of representation for Respondent’s
employees.

37 Chas Winner, supra, Western Commercial Transport, supra and Garlock Equipment,
supra.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
28
Similarly, no evidence was adduced that either Papageorge or Jordan ever had any role
in organizing Respondent’s employees, 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 assessing the identity of the labor organization representing
Respondent’s employees.
Neal did presumably have contact with Respondent’s employees 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 discontinuity 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 unexpected that after seven 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 associated 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
dramatic to alter the identity of UNITE and, thus, the substitution of an entirely different union as
the representative of Respondent’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 United 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 employees’
representative.” CPS Chemical, supra, 324 NLRB at 1020.
Significantly, in this regard, Workers United has become affiliated 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 supports 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 administrative 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 employees of employer for 10 years that provided residential care
services to mentally retarded individuals at several facilities in West Virginia).
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
29
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 reveals 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 Relations 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 advertisement
appearing in www.seiu.org for a field organizer position with SEIU, District 1199 WKO (West
Virginia, Kentucky and Ohio) also reflects that SEIU, District 1199 represents employees 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 District 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 Flooring, 356 NLRB #9 (Oct. 22, 2010) slip op p. 3 fn. 7
(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 #159 (August 27, 2010) slip op p. 11 fn. 33
(Board cites several websites in support of its assertion that banners are 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 employees, have contracts with employers in the MRDD
industry and engage in lobbying with respect to MRDD issues. Therefore, since Workers United

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 (Community 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.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
30
is now affiliated with the SEIU, the above finding minimizes the significance of Respondent’s
reliance on the absence of any evidence that any Workers United officials or entities had
experience in representing MRDD employees and facilities. Thus, Respondent’s argument that
Workers 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 authorities, 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 workforce 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 (2nd Cir. 1982); NLRB v. Nixon Gear, Inc., 649
F.2d 906, 914 (2nd Cir. 1981); National Posters, Inc. v. NLRB, 885 F.2d 175, 180 (4th Cir. 1989).
In this regard, Respondent notes that since the election, Respondent has added several
new facilities and a substantial increase in the number of eligible voters. Respondent also
asserts that 87% 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 workforce, 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 Counsel had not sought to expand the certification to include the new 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 imposition 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 expansion, a union’s majority

42 As I have related above, I have concluded that even absent Workers United’s affiliation
with the SEIU that Respondent has failed to prove that Workers United was an “entirely
different” labor organization 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.
44 The evidence submitted indicates that 54 employees are included in the new day
programs and the new facilities.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
31
status is irrebuttably presumed to exist45 throughout the one-year period following the union’s
certification. The one-year period does not begin until the date the employer begins to bargain
with the union. Action Automotive Inc., 284 NLRB 251 fn. 1 (1987).
These principles are applicable even where, as here, there has been an extensive delay
since the election or the certification. 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 issuance 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 bargaining 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 doing, the opinions did rely in part on the assertion, cited by
Respondent here, that “the labor force at the Company has undoubtedly 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 Courts 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 erroneously declined to afford the employers the right to hearings on their
objections. The Courts relied on the assertions by the employers that the delay caused by the
Board in not affording them hearings 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
principles, 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
representation 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 and 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.

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, including the Supreme Court, as detailed above, that
a union enjoys an irrebuttable presumption of majority status for one year following a
certification. 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 (2nd Cir. 1988).
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
32
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 justify denial of a bargaining order, where there has
been a certification and the one-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 continuity 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.
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
information 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
institution 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
following appropriate collective bargaining unit:
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

47 Long Island College Hospital, supra, 310 NLRB 689 fn. 2.
48 68 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 17, 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
substantial period of time during the 6 years that the Board was considering the case, it had
only two members.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
33
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
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 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 order 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 bargaining representative of the employees in the certified
appropriate 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.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended50
ORDER
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, on request, bargaining
collectively with Workers United Services Employees International Union as the
exclusive collective bargaining representative of its employees in the following

50 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
34
certified, appropriate collective bargaining unit:
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
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
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 clerical and administrative employees, technical
employees, professional and managerial employees, guards and
supervisors as defined in Section 2(11) of the Act.
(b). Refusing to provide information requested by Workers United, which
is necessary and relevant to Workers United’s performance of its duty as the
exclusive representative of its employees in the unit described above.
(c). In any like to related manner interfering with, restraining 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 in good faith with the Union as
the exclusive collective bargaining representative of its employees in the certified
unit found appropriate respecting rates of pay, hours of work, or other terms and
conditions of employment and, if an understanding is reached, embody it in a
written and signed agreement. The Union’s certification year shall extend one
year from the date that such good faith bargaining begins.
(b). We will promptly furnish to Workers United all bargaining information
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 comprise the appropriate unit described above, copies of the
attached notice marked “Appendix.”51 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper

51 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–27–11
5
10
15
20
25
30
35
40
45
50
35
notices, notices shall be distributed electronically, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since November 30, 2010.
(d). Notify the Regional Director for Region 29 in writing within 21 days
from the date of this Order what steps the Respondent has taken to comply.
Dated, Washington, D.C., August 24, 2011.
____________________
Steven Fish,
Administrative Law Judge
JD(NY)–27–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
WE WILL NOT fail or refuse to recognize and, on request, bargain collectively with Workers United Service
Employees International Union as the exclusive collective bargaining representative of our employees in the following
certified, appropriate collective bargaining unit:
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
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
Residence in Woodhaven, Forest Hills Residence in Forest Hills, 101
st
Avenue
Residence in Ozone Park, 77
th
Street Residence in Woodhaven and East 21
st
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.
WE WILL NOT refuse to provide information requested by Workers United, which is necessary and relevant
to Workers United’s performance of its duty as the exclusive bargaining representative of our employees in the unit
described above.
WE WILL NOT in any like to related manner interfere with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good faith with Workers United as the exclusive collective
bargaining representative of our employees in the certified unit found appropriate respecting rates of pay, hours of
work, or other terms and conditions of employment and, if an understanding is reached, embody it in a written and
signed agreement.
WE WILL promptly furnish to Workers United all bargaining information that was requested on November
30, 2010.
Independence Residences, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
Two MetroTech Center, Jay Street and Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.