Avante at Boca Ranton, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2001

334 N.L.R.B. 381 (N.L.R.B. 2001)

AVANTE AT BOCA RATON, INC. 381
Avante´ at Boca Raton, Inc., and Avante´ Terrace at
Boca Raton, Inc., Joint Employers and 115
Nursing Home, Hospital & Service Employees
Union—Florida affiliated with 1115 District
Council, SEIU, AFL–CIO, CLC. Cases 12–CA–
18860 and 12–CA–18893
June 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On October 8, 1998, Administrative Law Judge Kelt-
ner W. Locke issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, cross-exceptions, and supporting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order as
modified below.
The judge found that the Respondent violated Section
8(a)(5) of the Act by refusing to bargain with the certi-
fied Union following the affiliation between its parent
organization, 1115 District Council, and the Service Em-
ployees International Union (SEIU). The judge found
that there was substantial continuity of representation
following 1115 District Council’s affiliation with the
SEIU. In addition, he found that, while the bargaining
unit employees did not receive minimal due process,
since they did not receive any notice of the contemplated
affiliation or attend the conventions at which affiliation
was discussed, this did not justify the Respondent’s re-
fusal to bargain with the certified Union.
We agree with the judge, for the reasons stated in his
decision, that there was substantial continuity of repre-
sentation following the affiliation. We also agree, for the
reasons set forth below, that the lack of notice to or par-
ticipation by the unit employees in the affiliation process
was not a basis justifying the Respondent’s refusal to
bargain with the Union.1

1 We do not, however, agree with the judge that the unit employees
were denied minimal due process. As discussed below, as nonmem-
bers, the unit employees were not entitled to participate in the internal
union affiliation process. We therefore grant the cross-exceptions filed
by the General Counsel and the Charging Party Union on this issue, and
disavow the judge’s finding that the affiliation did not satisfy minimal
standards of due process.
As the judge found, the Union maintained a policy that
did not allow employees to become members until after
their employer had entered into a collective-bargaining
agreement with the Union. This precondition for mem-
bership had not occurred regarding the unit employees,
and therefore they were not eligible to become members.
Because nonmembers do not have a right to participate in
internal union matters such as affiliation votes, the unit
employees were not included in any respect in the affilia-
tion process used by the District Council and the SEIU.
In NLRB v. Financial Institution Employees, 475 U.S.
192 (1986), the Supreme Court held that the Board ex-
ceeded its authority under the Act by requiring that non-
member employees be allowed to vote regarding an af-
filiation before it would order the employer to bargain
with the affiliated union. The Board since has found, in
circumstances similar to those here, that the general lack
of participation by nonmembers in affiliation decisions
does not justify an employer’s refusal to bargain. See
Santa Barbara Humane Society, 302 NLRB 833, 836
(1991); Potters’ Medical Center, 289 NLRB 201, 202
(1988). Consistent with these decisions, we find that the
Respondent violated Section 8(a)(5) of the Act as al-
leged.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Avante´ at Boca Raton, Inc.,
and Avante´ Terrace at Boca Raton, Inc., Joint Employ-
ers, Boca Raton, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(c).
“(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the following for paragraphs 2(e) and (f).
“(e) Within 14 days after service by the Region, post at
its facilities in Boca Raton, Florida, copies of the at-
tached notice marked ‘Appendix B.’ Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 12, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
334 NLRB No. 56
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 8, 1997.
“(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.”

Kevin J. Morris, Esq., for the General Counsel.
Clifford H. Nelson Jr., Esq. (Wimberly, Lawson, Steckler, Nel-
son & Schneider), of Atlanta, Georgia, for the Respondents.
Mark Richard, Esq., of Miami, Florida, and Richard Green-
span, Esq., of Elmsford, New York, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on August 10 and 11, 1998, in Miami, Florida. After
the parties rested, I heard oral argument, and on August 12,
1998, issued a bench decision pursuant to Section 102.35(a)(1)
of the Board’s Rules and Regulations, setting forth findings of
fact and conclusions of law. In accordance with Section 102.45
of the Rules and Regulations, I certify the accuracy of, and
attach as “Appendix A,” the portion of the transcript, pages 327
through 353, containing this decision.1 The remedy, recom-
mended Order, and notice provisions are set forth below.
CONCLUSIONS OF LAW
1. Avanté at Boca Raton, Incorporated, and Avanté Terrace
at Boca Raton, Incorporated are joint employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, Local 1115 Florida East, SEIU, AFL–CIO,
CLC, a Division of District 1115, SEIU, AFL–CIO, CLC, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The following employees of the Respondents constitute a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All full-time and regular part-time certified nursing assistants,
restorative aides, activities assistants, dietary aides, cooks, die-
tary porters, maintenance assistants, receptionist and central
supply clerk employed by Respondents at their facilities lo-
cated at 1130 N.W. 15th Street, Boca Raton, Florida 33486;
excluding all other employees, including registered nurses
(RNs), licensed practical nurses (LPNs), managers, confiden-
tial employees, office clerical employees, guards and supervi-
sors as defined in the Act.

4. At all times since April 25, 1997, the Union has been, and
is now, the exclusive bargaining representative of all employees
in the unit described above in paragraph 3, for purposes of col-
lective bargaining within the meaning of Section 9(a) of the
Act.

1 I order the transcript corrected in accordance with appendix C
(omitted from publication) to this decision.
5. Since on or about May 8, 1997, the Respondents have
failed and refused to recognize and bargain the Union as the
exclusive collective-bargaining representative of the employees
in the unit described in paragraph 3 above, and have violated,
and continue to violate, Section 8(a)(5) and (1) of the Act.
6. Since on or about May 8, 1997, the Respondents have
failed and refused to provide the Union with information, re-
quested by the Union, which is relevant to and necessary to the
performance of the Union’s duty to represent the employees in
the unit described in paragraph 3 above. The Respondents have
violated, and continue to violate, Section 8(a)(5) and (1) of the
Act.
7. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice
to employees attached as appendix B.
Specifically, Respondents must cease and desist from their
refusal to recognize the Union as the exclusive representative of
its employees in the bargaining unit described herein. It must
also recognize the Union as such representative, must provide
the Union with the information which the Union requested, and
must otherwise bargain with the Union in good faith, as pro-
vided in the National Labor Relations Act.
Respondents refused to recognize and bargaining with the
Union very shortly after the Board certified the Union as the
exclusive collective-bargaining representative. The Respon-
dents have not, at any time, recognized or bargained with the
Union. This refusal not only has precluded bargaining, but also
has prevented the Union from representing the employees in
other respects. Considering the impact of this refusal on the
bargaining process, I conclude that the remedy must ensure that
the Union has at least 1 year of good-faith bargaining in which
its status as exclusive bargaining representative cannot be ques-
tioned. Mar-Jac Poultry, 136 NLRB 785 (1962); Bryant &
Stratton Business Institute, 321 NLRB 1007 (1996).
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended2
ORDER
The Respondents, Avanté at Boca Raton, Incorporated, and
Avanté Terrace at Boca Raton, Incorporated, Joint Employers,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union, Local
1115 Florida East, SEIU, AFL–CIO, CLC, a division of District
1115, SEIU, AFL–CIO, CLC, as the exclusive representative of
its employees in the following unit appropriate for collective
bargaining:
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
AVANTE AT BOCA RATON, INC. 383

All full-time and regular part-time certified nursing assistants,
restorative aides, activities assistants, dietary aides, cooks, die-
tary porters, maintenance assistants, receptionist and central
supply clerk employed by Respondents at their facilities lo-
cated at 1130 N.W. 15th Street, Boca Raton, Florida 33486;
excluding all other employees, including registered nurses
(RNs), licensed practical nurses (LPNs), managers, confiden-
tial employees, office clerical employees, guards and supervi-
sors as defined in the Act.3

(b) Failing and refusing to provide information requested by
the Union which is necessary for and relevant to the Union’s
performance of its duty as the exclusive representative of the
employees in the unit described above.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and bargain with the Union as the exclusive
representative of the employees in the unit described above.
(b) On request, bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment
with Local 1115 Florida East, SEIU, AFL–CIO, CLC, a Divi-
sion of District 1115, SEIU, AFL–CIO, CLC as the designated
representative of the employees in the appropriate unit, as if the
initial year of certification has been extended for an additional
1 year from the commencement of bargaining pursuant to the
Board’s Order in this case and, if an understanding is reached,
embody it in a written, signed agreement.
(c) Provide the Union with the following information, which
the Union requested on about May 8 and June 2, 1997, for em-
ployees in the bargaining unit described above: Names, ad-
dresses, telephone numbers, marital or dependent status, job
title, date of hire, and wage history, and shift and status of em-
ployees; the average bargaining unit wage by classification; the
starting rate for all classifications; the pay scales and amount of
raises uniformly granted; job descriptions; recent job postings;
the policy on transfer of position, shift, or unit; a sample of
recent work schedules; copies and descriptions of employee
benefits programs including the cost to Respondents and to
employees; the date health insurance will be renegotiated with
the insurance carrier and any proposed changes; the number of
employees with health plan coverage and the number enrolled
for dependent coverage; a summary, actuarial review, number
of retirees, and most recent Form 550 or 5550(c) for the pen-
sion plan; copies of the personnel handbook and any other writ-
ten work rules or policies; orientation agenda; in-service train-
ing plans and sample materials; and tuition reimbursement
plans.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.

3 See Avanté at Boca Raton, Inc., 323 NLRB 555 (1997).
(e) Post at its facilities in Boca Raton, Florida, and at all
other places where notices customarily are posted, copies of the
attached notice marked “Appendix B.”4 Copies of the notice,
on forms provided by the Regional Director for Region 12,
after being signed by the Respondents’ authorized representa-
tive, shall be posted by the Respondents immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees custom-
arily are posted. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
327
APPENDIX A
PROCEEDINGS
(Time Noted: 10:56 a.m.)
JUDGE LOCKE: On the record.
The hearing will be in order.
This is a Bench decision in the case of Avante at Boca
Raton, Incorporated and Avante Terrace at Boca Raton, Incor-
porated, Joint Employers, which I will call the Respondents,
and 1115 Nursing Home, Hospital and Service Employees Un-
ion—Florida, affiliated with 1115 District Council, SEIU,
AFL–CIO, CLC, which I will call the Charging Party or the
Union.
I conducted the formal hearing in this case on August 10 and
11, 1998, in Miami, Florida, at the same location I am issuing
this Bench decision on August 12, 1998, pursuant to Section
102.35 Sub-paragraph 10 and Section 102.45 of the Board’s
rules and regulations.
I will begin with an overview of the facts.
On January 17, 1997, the Board conducted an election at the
Respondent’s facilities in a unit consisting of all full-time and
regular part-time certified nursing assistants, restorative aides,
activities assistants, dietary aides, cooks, dietary porters, main-
tenance assistants, receptionists, and central supply clerk with
certain specified exclusions.
A majority of employees in this unit voted for a Union
named 1115 Nursing Home Hospital & Service Employees
Union—
328
Florida, which I will refer to as Local 1115—Florida.
At that time, this Union was one of about six affiliated with
the District Council, identified as 1115 District Council. In
March 1997, the District Council affiliated with the Service
Employees International Union, AFL–CIO, CLC or SEIU.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
On April 25th, 1997, after considering the Respondent’s ob-
jections, the Board certified Local 1115—Florida as the exclu-
sive bargaining representative of the bargaining unit employ-
ees.
Beginning on May 8th, 1997, the Union demanded that the
Respondents recognize and bargain with it, and requested cer-
tain information to use in connection with that bargaining.
The Respondents refused, contending that the District Coun-
cil’s affiliation with the SEIU caused a break in the continuing
of the bargaining representative.
I find that the Respondent’s refusal to recognize and bargain
with the Union, and the Respondent’s refusal to provide the
information requested by the Union, violates Sections 8(a)(5)
and (1) of the National Labor Relations Act.
Before discussing the disputed allegations in this case, I will
begin with the Complaint allegations which the Respondents
admit.
The Complaint alleges, the Respondent admits, and I find,
that the charge in Case 12–CA–18860 was filed by the Union
on June 23rd, 1997, and that a copy of it was served by first
class
329
mail on the Respondent, on June 25th, 1997.
The Regional Director for Region 12 for the National Labor
Relations Board issued Complaint and Notice of Hearing based
upon this charge on July 29, 1997.
Respondent further admits, and I find, that the charge in
Case 12–CA–18893 was filed by the Union on July 9, 1997,
and that a copy was served on Respondent on July 10, 1997.
The Regional Director issued an order consolidating cases,
consolidated complaint, and notice of hearing on February
26th, 1998, which includes both Case 12–CA–18860 and 12–
CA–18893.
I will refer to this pleading as the consolidated Complaint or
simply as the Complaint.
Respondent filed a timely answer to the consolidated Com-
plaint and admitted a number of its allegations. Based upon
these admissions, I make the following findings.
At all material times, Respondents have been Florida corpo-
rations with an office and place of business in Boca Raton,
Florida, and have been engaged in the business of operating a
nursing home and an assisted living facility.
During the twelve months preceding issuance of the consoli-
dated Complaint, the Respondents, in conducting their business
operations described in the Complaint, derived gross revenues
in excess of $100,000.
Additionally, during the twelve months preceding issuance
330
of the consolidated Complaint, the Respondents, in conducting
their business operations, purchased and received at their Boca
Raton facility, goods and materials valued in excess of $10,000
directly from points located outside the State of Florida.
Respondents admit and I find that at all times material to the
Complaint, they have been Employers engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
Paragraph 4 of the consolidated Complaint alleges that at all
times material, Louis Manzo occupied the position of Respon-
dents’ administrator, is now, and has been at all times material
to the Complaint, a supervisor of the Respondents within the
meaning of Section 2(11) of the Act, and an agent of Respon-
dents within the meaning of Section 2(13) of the Act.
The Respondents admit that Louis Manzo was the Adminis-
trator of its facilities located at 1139 N.W. 15th Street, Boca
Raton, Florida, and exercised supervisory authority under Sec-
tion 2(11) of the Act until on or about February 9, 1998, but
Respondents state further that Mr. Manzo is no longer Admin-
istrator of those facilities.
I find that Louis Manzo was the Administrator of Respon-
dents’ facilities during the time period admitted by them, and
that during this time period, he was a supervisor of the Respon-
dents within the meaning of Section 2(11) of the Act, and their
agent within the meaning of Section 2(13) of the Act.
331
Although Respondents have denied the Complaint para-
graphs which allege that the Union is the exclusive collective
bargaining representative of a unit of the Respondents’ em-
ployees, I mention these allegations at this time because they
provide necessary context for other allegations which Respon-
dents have admitted.
Specifically, Paragraph 5b of the Complaint alleges that on
April 25, 1997, the Union was certified as the exclusive collec-
tive bargaining representative of a unit of Respondents’ em-
ployees described in Complaint Paragraph 5a.
Paragraph 5c alleges that at all times since April 25th, 1997,
the Union, by virtue of Section 9(a) of the Act, has been and is
the exclusive bargaining representative of the unit for the pur-
poses of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment.
Notwithstanding the Respondents’ denials, I take official
notice of the certification issued by the Board in Case 12–RC–
8034, reported at 323 NLRB Number 93.
That certification described the same collective bargaining
unit alleged to be appropriate in Paragraph 5 of the Complaint.
It establishes that on January 17, 1997, the Board conducted
an election by secret ballot at the Respondent’s facilities, and
that a majority of employees in that bargaining
332
unit cast ballots in favor of representation by a Union desig-
nated “1115 Nursing Home, Hospital & Service Employees
Union—Florida, affiliated with 1115 District Council.”
Based upon the Board’s action in Case 12–RC–8034, I find
that the General Counsel has proven all allegations raised in
Paragraphs 5a, 5b and 5c of the consolidated Complaint.
Although the Respondents’ answer denied the allegations in
Paragraph 5 of the Complaint, and although the Respondents
deny having any duty to bargain with the Union described in
the Complaint, they do admit that the Union has requested bar-
gaining, as alleged in Paragraph 6 of the Complaint.
Specifically, Paragraph 6a of the Complaint alleges that on
or about May 8th, 1997 and June 2nd 1997, the Union, by let-
ters, requested to meet and bargain with the Respondents.
The Respondent admits that by letters on these dates, the Un-
ion did request that the Respondents meet and bargain collec-
AVANTE AT BOCA RATON, INC. 385
tively. And in accordance with the admission of the Respon-
dents and the record as a whole, I so find.
Paragraph 6b alleges that since on or about May 8th, 1997,
the Respondents have failed and refused to meet and bargain
with the Union as the exclusive collective bargaining represen-
tative of employees in the collective bargaining unit.
In their Answer, the Respondents admit that since on or
about May 8th, 1997, they have refused to bargain—to recog-
nize and bargain with the Union as the exclusive bargaining
333
representative of the unit.
Their Answer further states that this refusal to recognize and
bargain is, quoting the Answer verbatim:
“In part due to the objectionable conduct surrounding the
election, and the impropriety of the certification issued by the
Regional Director in Case Number 12-RC-8034, as well as the
fact that the entity requesting that bargaining occur was not a
continuing representative organization, and proper successor to
the entities certified. The Respondents’ have no duty to bargain
with this new entity.”
However, I note that the consolidated cases before me do not
call upon me to decide any issues concerning the alleged con-
duct surrounding the election or the propriety of the certifica-
tion issued in Case 12–RC–8034.
The Board already has resolved such issues which are not
before me. The facts established by the Board in Case
12-RC-8034, and reported at 323 NLRB Number 93, are not
open to question here.
In other words, I accept as beyond dispute that the unit
which the Board certified on April 25, 1997 in Case 12–RC–
8034 is an appropriate unit for collective bargaining and that a
labor organization named 1115 Nursing Home, Hospital &
Service Employees Union—Florida, affiliated with 1115 Dis-
trict Council, SEIU, AFL–CIO, CLC was, at the time of the
certification, the certified exclusive representative of the
334
employees in the unit.
The questions which I must resolve concern, in part, whether
the labor organization now demanding recognition and bargain-
ing is the same labor organization certified by the Board in
Case 12–RC–8034 or whether changes in name and affiliation
have changed it in such a manner that the Respondents do not
have a bargaining obligation to the entity which now demands
bargaining.
The three sub-paragraphs of Complaint Paragraph 7 allege
that on or about May 8th, 1997 and June 2nd, 1997, the Union
requested certain specified information about employees in the
bargaining unit, that this information was necessary for and
relevant to the Union’s performance of its duty as the exclusive
collective bargaining representative and that since on or about
May 8th, 1997, the Respondents have failed and refused to
furnish the Union with the information requested.
In their Answer, the Respondents admit that the Union made
the information request alleged in Complaint Paragraph 7a. I
so find.
The Respondents also admit that since on or about May 8th,
1997, they have refused to furnish the Union with the informa-
tion requested. I so find.
The Respondents’ Answer does not specifically address the
allegation that the requested information is relevant to collec-
tive bargaining and necessary for the Union to engage in
335
such bargaining. However, the Respondents deny having any
duty or obligation to provide the information.
Because the Respondents have admitted that the Union made
the information request described in Complaint Paragraph 7a,
the determination of whether the information sought is relevant
to and necessary for collective bargaining, involves only a legal
conclusion.
The Union requested information about employees in the
bargaining unit, specifically their names, addresses, telephone
numbers, marital or dependent status, job titles, basic hire and
wage history, and shift and status of employees.
The Union also requested the average bargaining unit wage
by classification, the starting rate for all classifications, the pay
scales, and amounts of raises uniformly granted, job descrip-
tions, recent job postings.
The Respondents’ policy on transfer of position, shift or unit,
a sample of recent work schedules, copies and descriptions of
employee benefit programs, including the cost to Respondents
and to the employees, the date health insurance will be renego-
tiated with the insurance carrier, and any proposed changes, the
number of employees with health plan coverage, and the num-
ber enrolled for dependent coverage, a summary actuarial re-
view, number of retirees, and most recent Form 550 or 5550C
for the pension plan.
336
Copies of the personnel handbook, and any other written
rules or policies, orientation agenda, in-service training plans
and sample materials, and tuition reimbursement plans.
I find that the information sought concerns the wages, hours
and working conditions of bargaining unit employees and per-
tains to mandatory subjects of collective bargaining.
Such information is relevant and necessary to the Union in
fulfilling its collective bargaining responsibilities. If the Re-
spondent had a duty to bargain with the Union, then it clearly
had a duty to provide the requested information.
Therefore, whether or not Respondents’ refusal to provide
this information constituted an unfair labor practice, will de-
pend on the resolution of the more general issue of whether
Respondent had a duty to recognize and bargain with the Un-
ion.
Other allegations raised in the Complaint are in dispute.
Paragraph 3a alleges that at all material times, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
The Respondent admits that 1115 Nursing Home, Hospital &
Service Employees of Florida, affiliated with 1115 District
Council is a labor organization within the meaning of the Act,
but the Respondents’ answer then avers that they:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
“Have no knowledge of whether that organization, as affili-
ated with SEIU, is a labor organization. Further, Respondents
deny that SEIU is a party to the certification
337
issued by the Regional Director in Case Number 12–RC–
8034.”
With respect to the last sentence, Paragraph 3 of the Com-
plaint does not allege that the SEIU is a party to the certifica-
tion in Case 12–RC–8034, so that matter is not in issue.
Rather, the issue presented by Complaint Paragraph 3a con-
cerns whether the Union is a labor organization and has re-
mained a labor organization after the affiliation.
The allegation can be resolved without reaching the core is-
sue of the case, whether or not the entity which sent the Re-
spondents the May 8, 1997 and June 2, 1997 letters demanding
recognition and bargaining was the same entity certified by the
Board in Case 12–RC–8034.
The evidence clearly establishes that it is a labor organiza-
tion. Thus, uncontradicted testimony establishes that it is an
organization in which employees participate, and which exists
in whole or in part, for the purpose of dealing with Employers
concerning grievances, labor disputes, grievances, rates of pay,
hours of employment and conditions of work.
I find that it is a labor organization within the meaning of
Section 2(5) of the Act.
As originally pleaded in the consolidated Complaint, Para-
graph 3b alleges that on or about April 1, 1997, the Union’s
parent organization, 1115 District Council, became affiliated
with Service Employees International Union, AFL–CIO, CLC,
and
338
that its correct name became 1115 Nursing Home, Hospital &
Service Employees Union—Florida, affiliated with 1115 Dis-
trict Council, SEIU, AFL–CIO, CLC.
The Respondents’ Answer states that they are without
knowledge regarding this purported affiliation and, therefore,
they denied the allegation.
By written motion submitted at the beginning of hearing as
General Counsel’s Exhibit 2, the Government sought to delete
Paragraph 3b as it appeared in the consolidated Complaint, and
substitute a new Paragraph 3b.
The General Counsel also added new Sub-paragraphs 3c and
3d. I granted the Government’s motion and allowed the
amendment, and will consider these allegations to be denied by
the Respondent.
As amended, Paragraph 3b alleges as follows. “On or about
April 1, 1997, 1115 District Council, the parent organization of
the Union, until then known as 1115 Nursing Home, Hospital
& Service Employees Union—Florida, affiliated with Service
Employees International Union, SEIU, AFL–CIO, CLC, and
the name of the Union became 1115 Nursing Home, Hospital &
Service Employees Union—Florida, affiliated with 1115 Dis-
trict Council, SEIU, AFL–CIO, CLC.”
The new Paragraph 3c alleges as follows: “On or about July
9, 1997, the Union changed its name to Local 1115—Florida,
SEIU, AFL–CIO, CLC, a division of District 1115, SEIU,
339
AFL–CIO, CLC.”
The new Paragraph 3d alleges as follows: “On or about Sep-
tember 15, 1997, the Union changed its name to Local 1115—
Florida East, SEIU, AFL–CIO, CLC, a division of District
1115, SEIU, AFL–CIO, CLC.”
Uncontradicted evidence establishes the facts alleged in
Complaint Paragraphs 3b as amended, 3c, and 3d. I find that
the Government has proven these allegations.
The Government’s amendments also changed the first sen-
tence of the Complaint to reflect the new name of the Charging
Party.
Uncontradicted evidence establishes that the local Union,
which was designated 1115 Nursing Home Hospital & Service
Employees Union—Florida, affiliated with 1115 District Coun-
cil, SEIU, AFL–CIO, split into two local Unions in September
1997.
The larger one, Local 1115 Florida East, represents employ-
ees working at about 20 facilities on the East Coast of Florida.
Its officers were previously officers of Local 1115 Florida, and
no new officers were elected when the split took place.
The previous Local, Local 1115—Florida, also represented
employees working at about seven facilities in Western Florida.
Local 1115 Florida West came into existence at the same time
as Local 1115 Florida East, and it assumed the function of
340
representing these employees in West Florida.
Since the Florida West Local was essentially a new body, it
had no officers and Union members elected officers. The Sec-
retary-Treasurer of Local 1115—Florida East, Mr. Grossberg
Miranda, testified without contradiction, that the split produced
no change in officers, representatives, duties, by-laws, or man-
ner of functioning for Local 1115—Florida East.
Similarly, it did not change the authority of the officers in
Local 1115—Florida East, to perform the duties of their offices.
Crediting this uncontradicted testimony, I find that to be the
case.
I conclude that the creation of the new Florida West Local
from a small portion of the Florida local, did not change the
way the remainder of that Local functioned in any significant
way.
A possible analogy may be found in the biblical account of
the creation of Eve from Adam’s rib. Presumably, this proce-
dure had no significant effect on Adam’s identity. Even with
one rib less, he was still Adam, although it did change the rib.
Here I am concerned only with the status of Adam and I find
that it remains the same as before.
Moreover, the Complaint alleges that the violations began on
about May 8th, 1997, when the Respondents admittedly refused
to recognize and bargain with the Union. That was before the
split of Local 1115—Florida into two Locals, Florida East and
341
Florida West.
Therefore, that later split could not be relevant to either the
Government’s theory of the case, or the justification asserted by
the Respondents.
AVANTE AT BOCA RATON, INC. 387
Stated another way, if any significant change took place,
which made the Union which demanded recognition on May
8th, 1997 significantly different from the Union which the
Board had certified on April 25, 1997, that change did not con-
cern the later split of Local 1115—Florida into two Locals.
At this point, embarking upon the discussion of possible
changes in the continuity of the Union certified as the bargain-
ing representative, it is important to examine the sequence of
events carefully, and with attention to procedural principles.
The admitted refusal to bargain began on May 8th, 1997, less
than three weeks after the Board certified the Union on April
25th, 1997.
During the first year after Board certification, a labor organi-
zation enjoys an irrebuttable presumption that it continues to
have the support of a majority of the employees in the unit it
represents.
In other words, it does not fall within my authority to ques-
tion the Union’s majority status on May 8th, 1997, or even to
consider it questionable. The Union conclusively was the col-
lective bargaining representative.
342
However, I do have authority to consider the Respondents’
arguments to the extent that the arguments assert that the Union
which demanded to bargain on May 8th, 1997, was not the
same entity which was certified on April 25, 1997.
There appears to be a subtle gray area regarding the extent to
which the Board’s April 25, 1997 certification in Case 12–RC–
8034 limits my authority to consider events which took place
between the date of the election on January 17, 1997, and April
15th.
During that time period, the District 1115 voted to become
affiliated with the Service Employees International Union. The
Respondents based much of their defense on the asserted ef-
fects of this affiliation, which appears to have taken place
sometime after the deadline for filing objections to the conduct
of the election.
I will proceed under the assumption that if the affiliation
changed the identify of the Union so greatly that there was a
substantial difference between the Union selected by the em-
ployees on January 17th and the one which demanded recogni-
tion on May 8th, 1997, that difference may be considered by
me and by the Board. However, in view of the conclusive pre-
sumption that a Union continues to enjoy majority support dur-
ing its first year of certification, it does not matter whether or
not the affiliation with the SEIU made employees disaffected.
343
I conclusively conclude that a majority still supports the Un-
ion, which the employees chose on January 17, 1997.
The only change which could affect the Respondents’ bar-
gaining obligation would be a change that altered the identify
of the Union.
In other words, the change would have to be so profound that
it made the Union which demanded bargaining a different en-
tity from the one which had received the Board certification
three weeks earlier, and with that certification, the conclusive
presumption of majority status for one year.
Law professors might imagine situations which made that
possible, and so could science fiction writers. However, I lack
that kind of imagination.
Apart from the possibility of extra-terrestrials cleverly dis-
guised as business agents, I have some difficulty visualizing
events causing a change in Union identity so great that it would
deprive the Union of its certification year presumption.
In determining whether a Union affiliation or merger causes
a change sufficient to vitiate an Employer’s bargaining obliga-
tion, the Board typically focuses on two areas.
One concerns whether there is substantial continuity of rep-
resentation both before and after the change. The Board evalu-
ates whether there has been a change in Union leadership.
Additionally, it looks at whether there’s been a change in the
amount of power that the Union leaders possess and exercise.
344
Similarly, the Board considers changes in financial arrange-
ments which, of course, may reflect changes in control of the
Union.
The Board examines whether the Union’s assets have been
transferred to some other entity and what changes, if any, have
been made in dues paid by the membership.
It also evaluates whether the authority to set policy and pri-
orities in collective bargaining remains with the same Union
leaders who possessed it before.
Similarly, a shift in who has power to call a strike, and who
possesses authority to settle grievances will be considered.
The evidence in this case is uncontradicted. It establishes
that by all of these measures, the Union’s affiliation with the
Service Employees International Union did not disturb or alter
the distribution of power, authority and assets.
It also did not alter the day-to-day functioning of the Union
and its representation of employees. However, the record does
disclose some things that were altered.
For example, the affiliation results in the District Council
paying a per capita tax to the SEIU. That tax is being phased in
over a four-year period, and if the rate is unchanged, will
amount to about $6 per member per month.
The evidence indicates that before the affiliation, the Union
did not pay any per capita taxes for members in Florida.
345
Additionally, the affiliation agreement imposes on the District
Council an obligation to spend a certain amount on organizing
activities. Union President Sackman described this obligation
as being in perpetuity. However, while recognizing that such
an obligation limits the freedom and discretion of Union offi-
cials to spend that money elsewhere and for other purposes, I
find that it is not sufficient to create a substantial break in the
continuity of representative.
The evidence does not establish that this arrangeme nt results
in the unit employees having fewer resources that can be com-
mitted to their representational needs than were available for
the affiliation.
See CPS Chemical Company, Inc., 324 NLRB Number 154,
[1018] decided November 7, 1997.
In other respects and particularly from the viewpoint of the
employees, the affiliation caused little, if any change. In par-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
ticular, there is no showing that the affiliation fundamentally
altered the conduct of the day-to-day affairs of the Local Union
organization.
See Miller Waste Mills, Inc., doing business as RTP Com-
pany, 323 NLRB Number 4, [15] February 20, 1997.
The Board has held that an affiliation of a Local Union with
an International Union does not, by itself, interrupt the continu-
ity of representation.
346
See, for example, Minn-Dak Farmers Cooperative, 311
NLRB 942, a 1993 case, in which the Board, noting that a certi-
fied Union enjoys a presumption of continuing majority sup-
port, stated that:
“The Union’s subsequent affiliation with a national or inter-
national organization does not, standing alone, affect the Un-
ion’s representative status or terminate the Employer’s duty to
bargain with the Union.” 311 NLRB 944.
See also Texas Plastics, Inc., 263 NLRB 394. a 1982 case.
The Respondent bears the burden of proving that the affilia-
tion has produced a break in the continuity of representation.
The evidence does not establish that to be the case here.
Apart from the question of continuity, the Board also exam-
ines whether the Union’s internal affiliation process satisfies at
least minimal standards of due process.
Some cases refer to this inquiry as the second prong of a
two-prong test, the first prong concerning the issue of substan-
tial continuity.
However, I believe the expression “two-prong” test may be
misleading, in that it may suggest that both prongs of the test
must be satisfied or that both are of equal moment. That is not
the case.
During oral argument, counsel for the General Counsel sug-
gested that if there is no change in the identity of the
347
Union, then it is not appropriate to consider the due process
matter.
In other words, the issue of due process becomes important
only when affiliation results in a significant change.
My review of the cases, including those cited by all sides
during oral argument, leads me to believe that the law is not
settled on whether or not the Board may apply due process
standards to an affiliation vote, which is largely an internal
Union matter.
In the recent Sullivan Brothers Printers, 317 NLRB 561, a
1995 case, the Board stated in a footnote, “In light of our find-
ings here that the Board’s due process requirements have been
met in this case, we find it unnecessary to determine whether,
in view of the Supreme Court’s opinion in Seattle First, the
Board lacks the authority to impose due process requirements.”
See 317 NLRB at Page 62, Footnote 2.
In the same volume, the Board stated in Paragon Paint
Corp., 317 NLRB 747 at 748, also a 1995 case, “Finally, we
note that the Judge found the merger election satisfied the
Board’s traditional due process criteria. Accordingly, we need
not pass on what action the Board would take had the election
not satisfied these standards.”
In the instant case, I believe the issue cannot be avoided.
The bargaining unit employees did not receive any
348
minimal due process.
I find that the Union has a policy which denies the unit em-
ployees eligibility to become members until their Employer
enters into a collective bargaining agreement with the Union.
As the Respondent admits, the Respondents have refused to
recognize the Union.
The bargaining unit employees did not receive any notice re-
garding the contemplated affiliation, and did not attend any of
the conventions at which Union members discussed these is-
sues.
Under the Board’s precedents, it does not matter that the Un-
ion members approve the affiliation proposal by a voice vote,
rather than by secret ballot. Indeed, for due process purposes, it
may not even be necessary for the members to have any vote on
the affiliation question at all.
See, for example, House of the Good Samaritan, 247 NLRB
539, a 1980 case, and Aurelia Osborn Fox Memorial Hospital,
247 NLRB Number 43, [356] also a 1980 case.
The Board considers more important the fundamental due
process principle that a person receive notice of the proposed
action, and the right to be heard about it.
Thus, in Miller Waste Mills, Inc. d/b/a RTP Company, 323
NLRB Number 4, [15 (1997)] the Board listed among its due
process standards that notice of the election be given to all
members, that members have adequate opportunity to discuss
the
349
election, and that reasonable precautions to maintain ballot
secrecy be taken.
With respect to this last requirement, from other Board cases
it is clear that a Union does not have to conduct a secret ballot
election in the rigorous Board manner to satisfy the due process
requirements.
If I were to reach the issue of due process, I would conclude
that the Union failed to meet even minimal standards of due
process with respect to the bargaining unit members. It is true
that non members of the Union do not have a right to partici-
pate in internal Union matters such as affiliation votes.
At the same time, in this case it must be noted that the Union
did not give the bargaining unit employees the right to join the
Union. Thus, they were all on the outside, not because they
choose to be, but in some cases at least, because they had no
choice. The unwritten policy excluded them.
Moreover, I believe that the right to notice and the right to be
heard exists even when the right to vote does not exist. Being
heard means more than being able to attend the particular Un-
ion meeting or convention.
A person can communicate his or her views in a number of
ways, ranging from a postcard to E mail, but unless the person
receives notice of a proposed action, he or she does not have
the opportunity to be heard about it.
Although I would conclude that bargaining unit employees
AVANTE AT BOCA RATON, INC. 389
350
did not receive minimal due process, I do not believe that I may
take that conclusion into account in evaluating this case, or in
reaching a decision herein.
The Supreme Court’s decision in NLRB versus Food and
Commercial Workers Local 1182, 472 US 192 (1986), com-
monly referred to as Seattle First National Bank or Sea First,
does not decide whether or not the Board totally lacks authority
to impose standards on internal Union matters.
However, this same case does markedly limit the power of
the Board to impose such due process standards in a case such
as this one arising in the representation context.
Writing for a unanimous Court, Justice Brennan stated in
part, as follows. Again, I quote:
“Under the Act, dissatisfied employees may petition the
Board to hold a representation election, but the Board has no
authority to conduct an election unless the effects complained
of raise a question of representation.
“In any event, dissatisfaction with representation is not a rea-
son for requiring the Union to allow nonunion employees to
vote on union matters like affiliation. Rather, the act allows
Union members to control the shape and direction of their or-
ganization, and `non Union employees have no vote in affairs
of the Union.’”
Citing Allis-Chalmers, 388 US at 191.
Justice Brennan continues, stating, “We repeat,
351
dissatisfaction with the decisions union members make, may be
tested by a Board-conducted representation election only if it is
unclear whether the reorganized Union retains majority sup-
port.”
475 US at Pages 205 and 206.
The last quoted sentence, the one beginning with the phrase,
“We repeat,” speaks with a definite tone of voice, even from a
printed page. The Court did not want to leave any doubt about
this principle.
In fact, Justice Brennan’s opinion goes on to phrase the prin-
ciple in a somewhat different, but all the same emphatic way a
little later.
Again, I quote from the decision. “If the Board finds that af-
filiation raises a question of representation undermining the
Board’s own election and certification procedures, Amoco Pro-
duction Company, 262 NLRB, at 1241, it can refuse to consider
the Union’s unfair labor practice charge, and is authorized to
conduction a representation election.
“However, it may not condone an Employer’s refusal to bar-
gain in the absence of a question of representation, and has no
authority to prescribe internal procedures for the Union to fol-
low in order to invoke the Act’s protection.”
475 US at 207, 208.
The present case arose during the Union’s certification year,
during which it enjoyed a conclusive presumption of
352
majority status, at a time when a question concerning represen-
tation could not be raised and would not be considered by the
Board.
I have found that the evidence does not establish any break
in the continuity of the Union, even though the Union affiliated
with an International, and even though the name of the Union
was slightly changed.
In these circumstances, a question concerning representation
cannot be raised. Therefore, in the absence of a question con-
cerning representation, I may not take into account my conclu-
sion that the bargaining unit employees did not receive any
minimal standards of due process.
In sum, I find that when the Union requested recognition in
bargaining, the Respondents had a duty to recognize and nego-
tiate with it.
Similarly, when the Union requested information relevant
and necessary to mandatory subjects of collective bargaining,
the Respondents had a duty to provide that information.
By their own admission, Respondents did not recognize and
bargain with the Union, and did not provide the requested in-
formation. I conclude that the Respondents thereby violated
Section 8(a)(5) and (1) of the Act.
The remedy will include an order that the Respondents rec-
ognize and bargain with the Union, provide the requested in-
formation, and post a notice to employees.
353
Upon receipt of the transcript of this proceeding, I will issue
a certification of Bench Decision. This certification of Bench
Decision will include specific provisions regarding the remedy,
order and notice, and will include as an attachment, the tran-
script pages reporting the decision I have just given.
In accordance with its rules, the Board will then serve copies
of this certification upon the parties. The deadline for appeal
will begin to run when the parties are served with the certifica-
tion and decision.
I have been very impressed during this hearing with the pro-
fessionalism of counsel, and with how well they cooperated to
assure the hearing ran smoothly and efficiently.
It has been a please to work with all of you on this case.
The hearing is closed.
Off the record.
(Whereupon, at 11:40 a.m., the hearing in the
above-entitled matter was closed.)
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT do anything which interferes with these
rights.
WE WILL NOT fail and refuse to recognize and bargain with
the Union, Local 1115 Florida East, SEIU, AFL–CIO, CLC, a
Division of District 1115, SEIU, AFL–CIO, CLC, as the exclu-
sive representative of our employees in the following appropri-
ate unit:

All full-time and regular part-time certified nursing assistants,
restorative aides, activities assistants, dietary aides, cooks, die-
tary porters, maintenance assistants, receptionist and central
supply clerk employed by the Employer at its facilities located
at 1130 N.W. 15th Street, Boca Raton, Florida 33486; exclud-
ing all other employees, including registered nurses (RNs), li-
censed practical nurses (LPNs), managers, confidential em-
ployees, office clerical employees, guards and supervisors as
defined in the Act.

WE WILL NOT fail and refuse to provide relevant informa-
tion requested by the Union, which is necessary for it to repre-
sent our employees in the unit described above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL recognize the Union as the exclusive collective–
bargaining representative of the employees in the unit described
above, bargain with the Union in good faith, and, on request,
reduce any agreement reached to writing, in accordance with
our obligations under Section 8(d) of the National Labor Rela-
tions Act.
WE WILL provide the Union with the information it re-
quested on or about May 8 and June 2, 1997.
AVANTÉ AT BOCA RATON,
INCORPORATED, AND AVANTÉ
TERRACE AT BOCA RATON,
INCORPORATED, JOINT EMPLOYERS