Canterbury Villa Of Waterford, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1986

282 N.L.R.B. 462 (N.L.R.B. 1986)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canterbury Villa of Waterford , Inc. and New Eng-
land Health Care Employees Union , District
1199, National Union of Hospital and Health
Care Employees , AFL-CIO." Case 39-CA-
1797
16 December 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 June 1986 Administrative Law Judge
Julius Cohn issued the attached supplemental deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and both the General Counsel and
the Charging Party filed briefs, supporting the
judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
In its exceptions, the Respondent contends, inter
alia, that it was denied due process because the
judge refused to allow it "to adduce evidence con-
cerning the organizational and financial impact of
the disaffiliation on the National." The argument
raised by the Respondent does not directly concern
the disaffiliation of the Union (New England Dis-
trict 1199) from the RWDSU but rather relates to
its loss of a connection with a different constituent
district (New York District 1199) within the Na-
tional Union of Hospital and Health Care Employ-
ees (National Union)-a loss that resulted from the
latter District's decisions to remain a separate affili-
ate within the RWDSU and to disaffiliate from the
National Union, to which New England District
1199 continued to belong. The Respondent' s argu-
ment is that questions concerning representation
may arise not only when a labor organization disaf-
filiates from another organization, but also when
the organization with which it is affiliated loses
membership elsewhere. We are unaware of any au-
thority for such a proposition, and thus we would
not rely on evidence of the effects of New York
District 1199's decision to withdraw from the Na-
tional Union, even though that withdrawal is an in-
direct consequence of the National Union's deci-
sion to disaffiliate from the RWDSU.
Y We amend the caption and the references in the Board 's Decision
and Order in 271 NLRB 144 (1984), to reflect the correct names of the
Charging Party and the Respondent.
We also note that the Respondent contends that
the judge erroneously denied it leave to present
certain evidence on the question of the effect of the
disaffiliation on the Union's financial status and that
therefore the judge also erred in rejecting, on the
grounds of lack of evidence, the Respondent's con-
tention that the disaffiliation produced financial in-
stability that would affect the representational in-
terests of unit employees. The contention, even as-
suming its relevancy, is without merit because the
Respondent failed to make a sufficient proffer to
establish that the evidence it sought to adduce
would tend to show that the Union had been ren-
dered financially unstable as a result of the disaffili-
ation.
ORDER
The National Labor Relations Board affirms its
original Decision and Order (271 NLRB 144
(1984)), as modified below:
1. Substitute the following for paragraph 1(a).
"(a) Refusing to bargain with New England
Health Care Employees Union, District 1199, Na-
tional Union of Hospital and Health Care Employ-
ees, AFL-CIO as the exclusive bargaining repre-
sentative of the employees in the bargaining unit."
2. Substitute the following unit description for
the unit description in 2(a).
"All service and maintenance employees, includ-
ing nurses aides, orderlies, therapeutic recreation
directors, inservice aides, housekeepers, housekeep-
ing aides, porters, maintenance men, laundry aides,
cooks, kitchen aides, dish washers, receptionists,
beauticians, and medical records secretaries em-
ployed by Canterbury Villa of Waterford, Inc. at
its Waterford, Connecticut facility, excluding li-
censed practical nurses, registered nurses, business
office employees and supervisors as defined in the
Act."
Thomas W. Meiklejohn, Esq., for the General Counsel.
Roger P. Gilson and Michael J. Solt4 Esq& (Jackson,
Lewis, Schnitzler & Krupman), of White Plains, New
York, for the Respondent.
Miriam L Gafni, Esq. (Freedman & Lorry), of Philadel-
phia, Pennsylvania , for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. On 10 July
1984, the Board granted a motion by the General Coun-
sel for summary judgment in this proceeding, (271
NLRB 144 (1984)) fmding that Respondent had violated
Section 8(a)(1) and (5) of the Act by refusing to bargain
with New England Healthcare Employees Union, Dis-
trict 1199, RWDSU, AFL-CIO (NEHCEU), the certi-
282 NLRB No. 72
CANTERBURY VILLA OF WATERFORD
fled Union . Thereafter the Board sought enforcement-by
the United State Court of Appeals for the Second Cir-
cuit. Respondent then filed a motion for leave to adduce
evidence concerning ' the Charging Party-Union's
changed affiliation . Thereafter, the Board moved the
court to withdraw, without prejudice, its application for
enforcement, having determined that consideration of
Respondent 's contention was warranted . The court on 1
February 1985 granted the Board 's motion to withdraw
its affiliation for enforcement. The Board, after consider-
ation of statements of position by the' parties, issued • its '
order on 21 June 1985 that the record be reopened and a
hearing be ' held before an administrative law judge to
take evidence on the issue raised "by Respondent 's alle-
gation that its bargaining unit employees were not given
an opportunity to vote on the Union's disaffilia-
tion/affilbation." The Board remanded the proceeding to
the Regional Office of Subregion 39 for that purpose. I,
having been designated by the associate chief administra-
tive law judge, conducted a hearing on 19 November
1985 at Hartford, Connecticut, for the purpose of taking
evidence in accordance with the remand. All parties
were given full opportunity to submit evidence relevant
to the Board's Order and remand. Following the close of
hearing, the General Counsel, the Charging Party, and
Respondent submitted briefs. These together with supple-
mental briefs filed by all parties have been duly consid-
ered.
On the entire record of the remanded hearing and
from my observation of the witnesses, I make the follow-
ing
ADDITIONAL FINDINGS OF FACT AND
CONCLUSIONS
1. THE VOTING ISSUE
The stated purpose of the remanded hearing is to take
evidence on the issue arising from an allegation that em-
ployees were 'not afforded the opportunity of voting on a
change in affiliation of NEHCEU. The fact of this issue
is resolved, at this point, in a simple stipulation of the
parties that "no member of the NUHHCE or non-mem-
bers represented by the NUHHCE were given an oppor-
tunity to vote on whether NICJHHCE should disaffiliate
from the RWDSU." 1 However, 9 brief statement of
background facts, all stipulated or uncontradicted, will
bring the issue into clearer focus.
At the time of the representation election conducted
among Respondent 's employees in 1982, there were 11
geographic,districts , of which NEHCEU was one, all af-
filiated with the National. The National itself was estab-
lished in 1973, and its constitution provided that it "be
deemed for all purposes a single indivisible entity of the
Retail, Wholesale & Department Store Union (RWDSU),
AFL-CIO." Further it stated that the National will issue
certificates of affiliation to its districts , and that relation-
ships by districts with the RWDSU will be through the
National., On 1 September 1979 NEHCEU received its
1 National Union of Hospital and Health Care Employees (NUHHCE
or National) is the "National Union" with which NEHCEU is affiliated.
463
"Certificate- of-Affiliation" as a district from the Nation-
al.
Problems concerning the relationship between
RWDSU and the National began in 1982 when RWDSU
amended its constitution to provide that an affiliate could
not secede or disaffiliate without approval of the
RWDSU executive board. This was a right that had
been previously guaranteed by RWDSU to its, affiliates.
Other events occurred, including an attempt by RWDSU
to impose a trusteeship on the National, all of which led
to litigation.
In February 1984 a request by the National for a sepa-
rate charter from AFL-CIO was rejected. However, on
3 May 1984 a settlement agreement, approved by the
U.S. district court; was executed by RWDSU, the Na-
tional, and the New York District 1199. As a result,
RWDSU and the National jointly requested AFL-CIO
to offer an independent charter to the National, which
was granted by the AFL-CIO executive council on 7
May 1984.
Thereafter on 6 June 1984 the executive board of
NUHHCE voted to disaffiliate from RWDSU, effective
1 October. Neither members or nonmembers represented
by NUHHCE voted on this issue of disaffiliation. The
executive board also voted to advise AFL-CIO of its in
tentibn to accept an independent charter from AFL-CIO
effective 1 October. These decisions were implemented
in writing by President Henry Nicholas of the National.
It should be noted, at this point, that New York District
1199, a party to the court settlement , was not included in
these decisions , because it had determined to remain as a
division or affiliate of RWDSU, and disaffiliate from the
National:
Pursuant to a notice to all its districts and areas, dated
13 July 1984, and a mailing on 31 July 1984, the National
conducted a referendum by mail ballot in which mem-
bers voted to approve or disapprove amendments to the
constitution of the National and direct affiliation with
AFL-CIO. Ballots were mailed to all members in good
standing as of 30 .April ,1984, A substantial, number of Re-
spondent's employees in the unit found appropriate were
not in that category and, therefore, did not have an op-
portunity to vote in this referendum. '
The AFL-CIO chartered NUHHCE (National) as of 1
October 1984. On the same date the National, now 'an
AFL-CIO affiliate,, issued a new certificate of affiliation
to District 1199 NE, New England Health Care Employ-
ees Union.
Although these events involving disaffiliation by the
National from RWDSU, and direct affiliation with
AFL-CIO were occurring, the voting issue had to be
considered in the light of the Board's decision in Amoco
Production Co., 262 NLRB 1240 (1982), Local Union No.
4-14, Oil Chemical and, Atomic Workers v. NLRB, 721
F.2d 150 (5th Cir. 1983) (Amoco Iii). In that case, the
Board held that an employer was not required to bargain
with an independent union whose members voted to af-
filiate with Oil Chemical and Atomic Workers Interna-
tional Union, AFL-CIO. The reason therefor was that
nonmembers of the independent were not permitted to
vote. Respondent relied on Amoco IV and cases follow-
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing it, as did the Board in requesting withdrawal of its
petition for enforcement.
However, subsequent to the close of this remanded
hearing, the Supreme Court had occasion to rule on this
voting issue. In NLRB v. Financial Institution Employees;
and Seattle-First National Bank v. Financial Institution
Employees, 475 U.S. 192 (1986), the Court reversed
Amoco IV and its progeny, holding "that the Board ex-
ceeded its authority under the Act in requiring that non-
union employees be allowed to vote for affiliation before
it would order the employer to bargain with the affili-
ated union." The Court relied on statutory policy that
matters of affiliation/disaffiliation are internal union af-
fairs with which the Board is precluded from interfering.
Accordingly Respondent's principal contention, that it be
relieved of its duty to bargain because of nonmembers
not voting, is effectively denied by Seattle-First. Howev-
er, the Court did say that in a situation when the
changes wrought by affiliation are such that a question
of representation is raised , the Board may conduct a rep-
resentative election.
II. THE ORGANIZATION AND STRUCTURE ISSUE
The General Counsel urges dismissal of Respondent's
defense on the narrow ground that the Board's remand is
literally confined to the voting issue. However, the hear-
ing on the remand was conducted pre-Seattle-First when
Amoco IV was still viable. As it is stipulated that a "sub-
stantial" number of the unit employees , members, or non-
members did not vote, the General Counsel was forced
to litigate on the basis that, in the circumstances , voting
was, not even required. Thus the hearing was basically
one involving the structure and organization of Charging
Party Union and the National. In order that the Board
may take full advantage of this record, I believe it should
be discussed.
Prior to Amoco IV, the Board normally applied two
tests to an affiliation situation. First, there had to be due
process safeguards. See Newspapers, Inc., 210 NLRB 8, 9
(1974). However, in considering standards for application
of due process, attention must now be directed to the Se-
attle-First finding regarding unauthorized intrusion in in-
ternal union affairs . In this instance the disaffiliation of
the National from RWDSU was approved by duly elect-
ed officers of the National and delegates from the dis-
tricts, who also incorporated the .required changes by
amendment of the constitution of the National. Perhaps
unique in this case , the disaffiliation was one of the re-
sults of litigation between the National on one side and
both the RWDSU and New York District 1199 on the
other. As noted the litigation was concluded by a settle-
ment agreement providing for the disaffiliation, among
other things, and that agreement was approved by a dis-
trict court, thereby providing judicial guidance for the
process. Finally, on notice to all districts and members, a
referendum by mail ballot was conducted in which the
members approved the direct affiliation to AFL-CIO. I
would conclude that members would thereby be implied-
ly voting approval of the disaffiliation. I find in all these
circumstances that due process was observed under pre-
Amoco IV standards, and certainly would comply with
Seattle-First.
The second test applied by the Board, as stated by the
Court in Sea-First was one of "substantial `continuity' be-
tween the pre-and-post-affiliation union . The focus of
this inquiry was whether the affiliation had substantially
changed the union: The Board considered such factors as
whether union retained local autonomy and local offi-
cers, and continued to follow established procedures."
Applying this test, , it is clear that there was more than
"substantial continuity" between the pre-and-post-disaf-
filiation union. The certified Union in the instant case is
the local, NEHCEU. For all practical purposes, the
entity remained intact after the National disaffiliated
from RWDSU and affiliated directly with AFL-CIO.
Jerome P. Brown, president of NEHCEU, testified with-
out contradiction, that he has been president of the New
England district since 1979, and continues in that posi-
tion. All other officers and staff of the district remained
in the same capacities. There was no change in the
manner in which officers were elected. As was the case
prior to the disaffiliation, representatives of New Eng-
land still serve on the executive board of the National.
The geographical jurisdiction of the New England Dis-
trict is unchanged. In addition, procedures for organizing
employees are the same, as are the methods for negotia-
tion of collective-bargaining agreements and their admin-
istration 'by the districts. Moreover, the RWDSU was
never involved in any of these activities. Thus as far as
the NEHCEU, the certified Union, is concerned, the dis-
affiliation was a cosmetic change. Indeed it appears that
the original affiliation to RWDSU, simply afforded the
National and its districts indirect access to AFL-CIO,
which they now have obtained directly.
Respondent contends that the "continuity" has been
disrupted by disaffiliation and that as a result there has
been a "weakening" of the National and a resulting "fi-
nancial instability." Its conclusion is based on the fact
that New York District 1199, pursuant to the settlement
of the district court litigation, remained affiliated with
RWDSU and in effect, seceded from the National. As a
result the National lost approximately half of its overall
membership, obviously resulting in decreased dues
income to the National. However, to conclude that this
inevitably leads to "financial instability" is speculation.
The settlement agreement provided for proportionate
distribution of funds between New York District 1199
and the National-the latter's pension fund, independent-
ly administered, remains intact. Clearly the loss of per-
haps half of its dues income would cause the National to
run a leaner administration operation. But bigger is not
always better. There is no affirmative evidence that the
smaller National was in any trouble. More important, the
New England District 1199 remained intact and virtually
unaffected.
Respondent argues that a disaffiliation should be "pre-
sumed" to effect significant changes impacting on "the
rank and file's representational interests." I am not aware
of such a presumption. Moreover, Respondent,has not
presented evidence, its burden in this proceeding, of such
affect. Actually, as noted, the evidence has indicated the
reverse. In sum, I find that a "substantial continuity"
does, in fact, exist. Nor has a question concerning repre-
CANTERBURY VILLA OF WATERFORD 465
sentation been raised . The Supreme Court in Seattle-First
has indicated that otherwise an affiliation vote is a purely
internal union affair . See also NLRB v. Insulfab Plastics,
789 F.2d 961 ( 1986).
Accordingly, on the basis of my findings above with
respect to the issues raised by the Board 's Order remand-
ing this proceeding , and particularly in view of the inter-
vening decision of the Supreme Court in Seattle-First, I
recommend that the Board adhere to its original determi-
nation and remedy in this proceeding reported at 271
NLRB 144.
The General Counsel and Charging Party moved at
the remanded hearing that the caption of this proceeding
and the Board 's order in 271 NLRB 144 be amended to
reflect the correct name of the Charging Party. I recom-
mend granting of this motion so that the name of Union
as it appears in the caption , the Board 's Order, and
notice be changed to New England Health Care Em-
ployees Union , District 1199 National Union of Hospital
and Health Care Employees , AFL-CIO. In addition, I
further recommend that name of the employer contained
in the unit description of the Board 's Order be changed
from "Mary Kenny" to the name of its successor, the
Respondent, "Canterbury Villa of Waterford, Inc."2
2 It is noted that the Board has ordered that the provisions of Sec
102.46 of the Board's Rules are applicable to this Supplemental Decision