Independence Residences Inc, (2012)

Docket Number:29-CA-030566
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Independence Residences, Inc. and Workers United, Service Employees International Union. Case 292013CA201330566

May 18, 2012



On August 24, 2011, Administrative Law Judge Steven Fish issued the attached decision. The Respondent filed exceptions and a supporting brief. The Acting General Counsel and the Charging Party each filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge2019s rulings, findings, and conclusions and to adopt the recommended Order as modified.1

This case follows from an earlier Board decision certifying UNITE as the collective-bargaining representative of the employees involved here and rejecting the argument of the Respondent, Independence Residences, Inc. (IRI), that a New York State statute (New York Labor Law Sec. 211-a) impermissibly interfered with its ability to communicate with employees during the election campaign and was preempted by the National Labor Relations Act. Independence Residences, Inc., 355 NLRB 724 (2010) (finding that State statute did not interfere with election, even assuming preemption). IRI renews its preemption-based argument in this proceeding, but we reject it, because the issue was fully and fairly litigated in the representation case and because IRI has not presented any newly discovered evidence. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).2

Two questions remain: (1) whether the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with Workers United, Service Employees International Union, as the successor to UNITE, the certified bargaining representative; and

(2) if so, whether an affirmative bargaining order is an appropriate remedy for that violation. The judge found that Workers United is the successor to UNITE and that IRI violated the Act as alleged by refusing to recognize

3 In affirming the judge2019s finding that Workers United is the successor to UNITE, we find it unnecessary to rely on the judge2019s discussion of Workers United2019s affiliation with the Service Employees International Union. We note that the judge explicitly held that he would have found that Workers United was not an entirely different labor organization from UNITE even absent the affiliation of Workers United with SEIU. See fn. 42 of the judge2019s opinion.

4 Member Hayes agrees with the Respondent that the unusual circumstances of this prolonged litigation are not meaningfully distinguishable from those in NLRB v. Connecticut Foundry Co., 688 F.2d 871 (2d Cir. 1982), and NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir. 1981). Consistent with the equitable principles articulated by the court in those cases, he would therefore not impose an affirmative bargaining order on the Respondent here, and he dissents from his colleagues2019 decision to do so.

1 We shall modify the judge2019s recommended Order and notice to conform to the Board2019s standard remedial language.

2 Member Hayes dissented in the representation case, but agrees that there are no grounds for relitigating the issues decided there.

and bargain with Workers United. We agree with those findings for the reasons set forth in detail in the judge2019s decision.3 The judge also rejected IRI2019s contention that turnover among unit employees and the passage of time between the election and the Board2019s certification of UNITE render a bargaining order inappropriate. We agree with the judge2019s findings in this regard for the reasons stated in his decision and for the additional reasons discussed below.4

An employer is normally obligated to recognize and bargain with a validly certified union for 1 year, during which the union enjoys a conclusive presumption of majority support. See, e.g., Bryant & Stratton Business Institute v. NLRB, 140 F.3d 169, 186 (2d Cir. 1998):

This presumption promotes stability of the bargaining relationship[] [by] enabling the union to concentrate on obtaining a collective bargaining agreement without worrying about the immediate risk of decertification, and removes any temptation on the employer2019s part to avoid good-faith bargaining in an effort to undermine union support.

Id. (citing Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 7852013787 (1996)). See also Ray Brooks v. NLRB, 348 U.S. 96, 100 (1954) (201cA union should be given ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hot-house results or be turned out.201d). A union2019s initial certification year begins to run only when the employer starts bargaining in good faith. See Bryant & Stratton Business Institute, supra at 1842013185 (citing NLRB v. Star Color Plate Service, 843 F.2d 1507, 1509 (2d Cir. 1988)) (extending the union2019s certification year where the employer failed to bargain in good faith).

We reject IRI2019s contention that a bargaining order is nonetheless inappropriate because of turnover in the bargaining unit. The only circumstances that the Board recognizes as defenses to an employer2019s duty to bargain during the certification year are dissolution of the certi-

fied collective-bargaining representative, radical fluctuation in the size of the bargaining unit within a short period of time, and the expiration of a collective-bargaining agreement lasting less than 1 year. See Bryant & Stratton Business Institute, supra at 186. The Respondent does not allege that any of those 201cunusual circumstances201d exist in this case. Id. Even if (contrary to our law) employee turnover were a circumstance that could rebut the presumption of majority support, the factual record here does not permit such a finding. The election resulted in an overwhelming victory for the Petitioner. See 355 NLRB at 724. IRI produced no evidence of turnover within the unit. Indeed, it offered no evidence whatsoever suggesting that unit employees no longer support Workers United. Although there were more employees in the unit at the time of the hearing than there were at the time of the election, the unit2019s expansion is insufficient to constitute an unusual circumstance. See, e.g., Club Cal-Neva, 231 NLRB 22 (1977) (presumption of majority representation not rebutted where the unit tripled in size and experienced 500 percent turnover); Ocean Systems, Inc., 227 NLRB 1593 (1977) (40-percent expansion of the unit and turnover did not justify refusal to bargain).5

Nor does administrative delay in this case make a bargaining order inappropriate. The Board issued its certification in August 2010, over 7 years after the June 2003 election. During the entire time the case was pending at the Board, a Federal lawsuit challenging New York Labor Law Section 211-a on the basis of Federal preemption was proceeding in the Federal courts.6 In addition, for the more than 2-year period from the end of December 2007 to April 2010, the Board had only two members and lacked the authority to issue decisions. See New


5 The judge found that the bargaining unit consisted of 205 employees at the time of the hearing. The Acting General Counsel contends that there were only about 180, and that other new employees were not in unit positions, while the Respondent contends that there were 234 employees in the unit at the time of the hearing. We find it unnecessary to resolve this dispute, as under any of those scenarios the increase in the size of the unit would not constitute a circumstance justifying a refusal to bargain.

6 The Federal litigation consumed more than 7 years. Before UNITE had filed its petition in the representation case, the Healthcare Association of New York State (HANYS), of which IRI is a member, had sued to enjoin New York from enforcing Sec. 211-a on the ground that it was preempted by the NLRA. After the Board issued its decision in the representation case, the United States District Court for the Northern District of New York held that New York Labor Law Sec. 211-a is preempted by the NLRA and enjoined New York from enforcing the statute. Healthcare Assn. of New York State v. Cuomo, No. 1:03-CV-0413 (NPM) (N.D.N.Y. Sept. 7, 2011). During the course of the litigation, the Supreme Court upheld a preemption challenge to a similar California law. Chamber of Commerce of the United States v. Brown, 554 U.S. 60 (2008).

Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010). Once the Board2019s quorum was restored, this case was promptly decided, on grounds that did not require the Board to decide the preemption issue that remained before the Federal courts.

Although the delay in this case is regrettable, Board bargaining orders issued in similar circumstances have been enforced by reviewing courts. For example, in NLRB v. Star Color Plate Service, the Second Circuit enforced a bargaining order extending the certification year where the Board certified the union more than 5 years after the election. 843 F.2d at 1508. The court held that 201cit is error to refuse to enforce a bargaining order when it is conceded that there has been a Board election, the Union was duly certified, and the Company thereafter refused to bargain in good faith.201d Id. at 1510 (quoting NLRB v. Patent Trader, Inc., 426 F.2d 791, 792 (2d Cir. 1970) (en banc)). See also NLRB v. Synergy Gas Corp., 843 F.2d 1510 (2d Cir. 1988) (enforcement after more than 4-year delay); Glomac Plastics Inc. v. NLRB, 592 F.2d 94 (2d Cir. 1979) (enforcement after...

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