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,
Hartford Head Start Agency, Inc. and Local 517M, Service Employees
International
April 30, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On November 12, 2008, Administrative Law Judge John H. West issued the attached decision. The Respondent filed exceptions with supporting arguments, and the General Counsel filed an answering brief.
The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and brief, and has decided to affirm the judge’s rulings,[2] findings,[3] and conclusions, and to adopt the amended remedy and recommended Order as modified.[4]
Amended Remedy
We shall delete paragraph (e) from the of the remedy section of the judge’s decision.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge, as modified below, and orders that the
Respondent, Hartford Head Start, Inc.,
1. Delete paragraph 2(e) and reletter the subsequent paragraphs.
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, 
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not, without providing prior notice and a meaningful opportunity to bargain with Local 517M, Service Employee International Union (the Union), implement our proposal to reduce your work schedules from 12 months to 10 months and pay you 10 months’ wages over a12-month period, and we will not unilaterally change your health insurance prescription plan.
We will not be dilatory in responding to the information request from the Union for the existing contract between us and the city of Detroit regarding prekindergarten services, and we will not fail and refuse to furnish the Union with requested information relating to our claim of a $100,000 increase in health insurance costs, when the contract and information on health insurance costs are necessary and relevant to the Union’s performance of its role as your exclusive collective-bargaining representative.
We will not
bypass the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will rescind the changes in terms and conditions of employment described above, and restore the status quo ante.
We will make you whole for any loss of earnings and other benefits suffered as a result of the discrimination against you, in the manner set forth in the remedy section of the judge’s decision.
We will on
request, bargain with the
All full-time and regular part-time center administrators, teachers, assistant teachers, family service workers, special needs assistants, cooks, drivers, typists, secretary-receptionist, learning specialists, and parent aides employed by us at our various facilities in the Detroit Metropolitan area; but excluding the Director, Assistant Director, coordinators, assistant coordinators, accounting clerk, secretary-receptionist (Executive Director), confidential employees, and guards and supervisors as defined in the Act.
We will furnish
the
Hartford Head Start Agency, Inc.
Jennifer Y. Brazeal, Esq., for the General Counsel.
Jason
Harcourt Harrison, Esq. (The Harrison Law Firm), of
Howard F.
Gordon, Esq., of
DECISION
Statement of the Case
John H. West, Administrative Law Judge. This case was tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the counsel for the General Counsel4 and Respondent, I make the following
Findings of Fact
i. jurisdiction
At the outset of
the trial herein, the General Counsel and Respondent entered into the following
stipulations:
At all material times, Respondent, a non-profit corporation,
with an office and facility located at
. . . .
During the calendar year of 2007, Respondent, a non-profit
corporation, with offices located at
Respondent
admits and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the
ii. alleged unfair labor practices
On September 6,
2005, the
By letter dated
March 20, 2006 (GC Exh. 29), Respondent advised Virginia Saleem, the managing director
of the department of human services in Detroit, that Respondent terminated the project
manager and appointed an interim project manager, Alfredine Wiley (subject to
Saleem’s approval); and that a search committee would be looking to retain a
permanent project director.
William Tucker,
who is a member service organizer for the Service Employee International Union,
testified that he negotiates contracts and handles grievances and interventions;
that the Union represents employees at all of the Respondent’s 13 facilities;
that he was the lead negotiator for the Union in negotiations with Respondent
for a collective-bargaining agreement; that at the time of the trial herein the
parties still did not have their first collective-bargaining agreement; that he
was replaced as chief negotiator in February 2008; that the other members of
the Union’s bargaining team were Jacqueline Conley, Sonja Rogers, Phyllis
Edwards, Marion Keyes, Cheryl Williams, Wanda Piper, and Donna White; that in
2007 Respondent was represented at negotiations by Lawyer Jason Harrison, who
was its lead negotiator, Wiley, Deborah Thomas, Gloria Lewis, and Olive Grosse
at one session; that at first bargaining sessions were held two or three times
a month; that when they were not meeting on a regular basis the Union had to
file an unfair labor practice charge (on January 22, 2007) with the Board
against Respondent to get back to the negotiating table; that on March 12, 2007,
Region 7 of the Board issued a complaint in Case 7–CA–50111 against Respondent
alleging that since about October 24, 2006, Respondent has failed and refused
to meet with the Union for the purpose of collective bargaining concerning the
unit (GC Exh. 14) (that matter was settled); that after that complaint was
issued Respondent and the Union met more frequently; that during negotiations
the parties did not exchange proposals but rather the Union submitted its
proposals to Respondent and Respondent “went off our proposals” (Tr. 160); that
General Counsel’s Exhibit 16 demonstrates how Respondent’s attorney, Harrison, “redlined”
or made changes to the Union’s proposal by, inter alia, making entries in the
margin of the Union’s proposal and using a red dash line to indicate what the
note referred to; that during 2007 Respondent and the Union did reach tentative
agreements on particular sections of the Union’s proposal; that the parties initialed
tentative agreement sections, sometime writing the date; that while he was
chief negotiator Respondent never provided the Union with a written proposal
different than what is illustrated in General Counsel’s Exhibit 16; that in
April 2007 the parties were negotiating mostly noneconomic issues such as
evaluations, and worktime since it is his practice to get the noneconomic
issues out of the way before dealing with the economic issues; that while he was
chief negotiator the employees in the unit worked 12 months and they were paid
for 12 months; and that General Counsel’s Exhibit 3, which is a “draft” of a
memorandum, was emailed to him by Harrison in May 2007. General Counsel’s
Exhibit 35 reads as follows:
Management met with the leadership Of Seiu Local 517m On Friday May 11, 2007; a summary of the Agency Budget Reduction Plan was requested. A summary of the Plan is as follows:
Budget Reduction Plan
2006/2007
The Agency Reduction Plan for the 2006/2007 program year consists of a reduction of all employee hours from forty to thirty-six hours per week. This reduction will begin Friday June 22, 2007 through Friday October 26, 2007.
Budget Reduction Plan
2007/2008
The Agency Reduction Plan for the 2007/2008 program year consists of a conversion from a 12 to 10 month grant budget. The Agency administrative staff will remain 12 month employees as required by the Agency’s Grantee. The Agency center staff: center administrators, teachers, assistant teachers, family service workers, and special need assistants will become 10 month employees.
. . . .
All Ten Month Employees:
The definition of a full-time employee is . . . .
The definition of a part-time employee is . . . .
The current work schedule for Agency employees is defined in the current Personnel Policy and Procedures as follows:
Monday–Thursday
7:00–4:00
7:30–4:30
8:00–5:00
Friday all staff 8:00–12:00
For the 2006/2007 Budget Reduction Plan, all employees will work on Monday through Thursday for the period stated above in the Budget Reduction Plan.
For both Plans, all health, dental and disability benefits will remain unchanged.
For the 2007/2008 program year, all center staff can receive unemployment benefits during the two month layoff.
For both plans, all staff will receive all holidays in accordance with the current personnel policy and procedures.
2006/2007 current salary scale (See Exhibit A)
2007/2008 center staff salary budget (10 month) (See Exhibit B)
[GC Exh. 3 has “Nov. 1–10 month” handwritten on the line after “2007/2008” and an asterisk before that line and the line beginning “2006/2007.”]
. . . .
The Hartford Head Start Agency, Inc., management met with the Board of Directors on Tuesday May 8, 2007 for approval of the above Budget Reduction Plans. The Plans were approved.
The Hartford Head Start Agency, Inc. management and board chairperson met with the policy committee on Thursday May 10, 2007 for approval of the above Budget Reduction Plans. The Plans were approved.
The Hartford Head Start Agency, Inc. management and board chairperson met with the Hartford Head Start Agency, Inc. employees on Friday May 18, 2007 to give a summary of the plans. [The unnecessary use of the upper case for the first letter of every word in the original was not used here.]
Tucker further testified that he did meet
with management on May 11, 2007, at a bargaining session and he did request a
summary of the agency budget plan; that Rogers, Keyes, Edwards, Conley, and
White were also there for the Union and Harrison and Wiley were there for the Respondent;
that while he requested the document from Respondent, he never received the
budget reduction plan; that Respondent operates on a fiscal year from November
1 to October 31; that before he received General Counsel’s Exhibit 3 by e-mail,
management notified him at a bargaining session in the beginning of May 2007
that it intended on changing the number of months that bargaining unit
employees worked; that prior to May 8 and 10, 2007, respectively, no one in
management told him that they were meeting with the board of directors and the policy
committee regarding approval of the budget reduction plans; that prior to May
18, 2007, no one in management told him that they intended to inform employees
about the budget reduction plans; that the contents of General Counsel’s
Exhibit 3 were never discussed in a bargaining session but, as indicated above,
management notified him at a bargaining session in the beginning of May 2007
that it intended on changing the number of months that bargaining unit
employees worked from 12 months to 10 months; that in basically every
bargaining session after it was first brought up sometime after May 8, 2007,
there was some general discussion about the bargaining unit becoming 10-month
employees but he always said, “Let’s get back to bargaining,” he did not really
want to talk about it; that he first heard about Respondent’s 10-month proposal
in the latter part of May 2007; that when the 10-month proposal was first brought up, Conley, Rogers,
Edwards, Piper, and Keyes were at the bargaining session, along with
Respondent’s representatives, Harrison and Wiley; that Wiley was the first to
bring up the 10-month proposal, saying, “Would you all like to go 10 months
compared to 12 months, and draw unemployment” (Tr. 186); that when Wiley made
this statement the union representatives present said that they would discuss
it; that Rogers asked Wiley during this session if the employees worked 10
months, would they be able to draw unemployment and Wiley said employees would
be able to draw unemployment; that Wiley indicated that employees would be off
during the summer months; that the Union did not agree that employee work
schedules would change from 12 months to 10 months that day, and no tentative agreements
were reached at this bargaining session in May 2007 regarding the 12- to
10-month issue; that between May and September 2007 about three bargaining sessions
were held each month and at every bargaining session the 10 months as opposed
to 12 months was discussed but he always brought the discussions back to what
they were at the table for at that time, namely noneconomic issues like evaluations,
the number of union stewards for Respondent’s 13 facilities, and how much time
union stewards would get off to deal with union issues; that between May and
December 2007 Respondent did not present any proposals to the Union regarding
changing the months that employees worked from 12 months to 10 months; that
from May through September 2007 the Union and Respondent did not agree to
anything with respect to employees working 10 months out of the year; and that
from May through September 2007 Respondent and the Union reached some tentative
agreements regarding noneconomic issues.
On
cross-examination, Tucker testified that he has not engaged in collective
bargaining with any other Head Start in the city of Detroit; that he recognized
the first three pages of Respondent’s Exhibit 1; that he also recognized a
sheet included in Respondent’s Exhibit 1 headed “Friday May 25, 2007, Union Meeting”
with 11 signatures, including his own (also including those of Edwards, Piper,
Rogers, and Conley); and that he recognized the page in Respondent’s Exhibit 1
which he signed and which reads as follows:
mr. william
tucker
i william tucker
received the
____________________
sign
november 27,
2007
Tucker further testified on
cross-examination that he recognized that page of Respondent’s Exhibit 1 which
has four boxes showing the example (1) a $36,000 salary in “11/2/2006”; (2) the
conversion of that salary by dividing the $36,000 by 12 months to get a monthly
salary of $3000; (3) the further conversion of that salary into 10 months or
$3000 multiplied by 10 equals an annual salary of $30,000 for 2007/2008; and
(4) the conversion of the 2007/2008 annual salary of $30,000 divided by 12
months equals $2500 a month6; that
the parties did not get past that in that they did not go any further into this
document; that he did receive the salary scale for 10-month employees, as
indicated by his signature dated November 27, 2007, but he did not look at it;
that he would not acknowledge that Respondent’s Exhibit 1 was the Respondent
requesting the Union to bargain over wages, to change employees from 12 months
to 10 months since “[t]he subject of wages didn’t never [sic] come up” (Tr.
240); that a wage change is a mandatory subject of bargaining; that he never
received notice from Respondent that it wanted to bargain over wages in May
2007; that he received Respondent’s Exhibit 1 and he knew that it involved a
reduction in pay; that he first realized that wages were something that
Respondent was attempting to bargain over when Thomas said that she under
budgeted the insurance and that Respondent was going from 12 months to 10
months and Respondent was going to piggyback off the employees; that “yes” (Tr.
242) the parties did engage in bargaining relevant to the 12-month to 10-month
change between May and October 2007; that his initials on page six of
Respondent’s Exhibit 9 regarding “ARTICLE 5: EMPLOYMENT REQUIREMENT AND CLASSIFICATION”
indicate that he tentatively approved article 57;
that, with respect to the “Budget
Reduction Plan 2006/2007” entry on page 1 of General Counsel’s Exhibit 3, between
January 2007 and February 2008 the Union did not agree to a reduction of wages
or reduction of time from 40 to 36 hours; that he did not receive exhibits A
and B referred to in General Counsel’s Exhibit 3, and “we never did agree to
nothing [sic]” (Tr. 302) regarding the 12 months to 10 months; that in May
2007, about the time he received General Counsel’s Exhibit 3, he was notified,
possibly by union stewards or someone else, that Respondent had a full staff
meeting on the 10-month plus unemployment plan; that on page three of General
Counsel’s Exhibit 3 it is indicated that Respondent met with its employees on
“May 18, 2007 To Give A Summary Of The Plans”; that he thought he was notified
after that meeting occurred; that he believed that he received General Counsel’s
Exhibit 3 on the date on the document, May 21, 2007, which obviously was after
the staff meeting; that the Union never made a counter proposal to Respondent’s
12- to 10-month plan since he never saw Respondent’s proposal; that General
Counsel’s Exhibit 3 is not a proposal in that as indicated on its first page it
is a “draft”; that from May 21, 2007, until he was replaced as chief union negotiator
in February 2008 he believed that Respondent was going to stay at 12 months
because Respondent never presented a proposal at the bargaining table and
General Counsel’s Exhibit 3 was nothing but a draft; that Harrison told him
that Respondent’s contracts with the city of Detroit were for 1-year terms, he
understood that wages were paid from the contract, but he was never informed
that wages would start November 1, 2007, for the new fiscal year; that he did
not call a mediator in because “[w]e never discussed no issue of wages so why
should I call a mediator in” (Tr. 312); that when Harrison told him in October
2007 that he, Harrison, was going to Respondent’s board, he, Tucker, did not
believe that Harrison was telling him that this was the last best offer; and
that he was never informed that Respondent had healthcare in place that would
automatically renew for a new one year renewal in December 2007.
On redirect,
Tucker testified that on page 6 of Respondent’s Exhibit 9 he did not know who
made the marks under where the “52” is crossed out in paragraphs 3 and 4 of
that article; and that General Counsel’s Exhibit 38 are the proposals that the
parties were bargaining over at the bargaining table.8
On rebuttal,
Tucker testified that the first three pages of Respondent’s Exhibit 1, which is
basically the same, in terms of content, as General Counsel’s Exhibit 3, is not
a written proposal on wages from Respondent because it is designated at the top
of the first page as “Draft” and it is not a proposal.9
Conley, who has
worked for Respondent since 1998 and who is a center administrator/head teacher,
testified that she has participated in bargaining sessions for a
collective-bargaining agreement with Respondent; that she is a bargaining
committee member, she is the Union’s note taker at bargaining sessions, and
steward; that during bargaining sessions Lewis attended as interim program
director after February 1, 2008, Thomas attended as the fiscal officer, Wiley
attended as interim program director from January through October 2007, Grosse,
who was Respondent’s program director from October 2007 to mid-January 2008,
attended one bargaining session; and that in 2007 she, White, Rogers, Keyes,
Piper, Edwards, Williams, and Tucker were on the union bargaining team.
Conley testified
that on May 18, 2007, Respondent held a full staff meeting for all the staff
employed by Respondent, including administrative staff and members of the
involved bargaining unit, at Respondent’s New Genesis center; that board
members and members of management also attended this meeting; that Wiley was
the Respondent’s spokesperson at this meeting; that the meeting involved a
workshop and another topic discussed was “[t]he possibility that the agency
would be reducing our time for work—our work schedules from 12 months to 10
months; that Wiley and Board Director Allen brought up the work schedules; that
employees were given a copy of a draft that indicated the proposed reduction
plan and it included the employees’ wages; that Wiley said that Respondent
would be changing over for the 2007/2008 program year from 12 months to 10
months and the employees’ salaries would be perhaps prorated; that at the time
bargaining unit members worked 12 months; that she understood her position to
be included in the proposal; that July and August were mentioned as the months
certain employees would not work; that Piper asked Wiley if the plan went into
effect, would employees be able to collect unemployment (for the 2 months they
did not work) and Wiley answered yes; and that prior to this meeting Respondent
had not said anything during bargaining sessions about reducing the months
employees worked; that at the April 20, 2007 bargaining session she made a note
about someone mentioning that there might be a 12-percent administrative cut,
budget cut, and then the parties went back to the noneconomic issues they were
discussing.
Piper, who was
hired by Respondent in July 1995, is an assistant teacher II, and a union
bargaining team member, testified that in May 2007 Respondent held a full staff
meeting at the New Genesis center; that Thomas and Wiley attended this meeting;
that Respondent’s board chairperson, Allen, was also present; that she and other
bargaining unit members attended this meeting; that the purpose of the meeting
was not announced before the meeting was held; that at the meeting Wiley said
that employees’ work schedules would be changed from 12 months to 10 months;
that she asked Wiley that if it went to 10 months, would the employees receive
unemployment and Wiley said that the employees would receive unemployment; and
that prior to the full staff meeting management had not said anything to the
Union’s bargaining team at a bargaining session about changing the months the
employees worked.
Rogers, who was
hired by Respondent in 1990 and is a center administrator, testified that she
is a union steward, is on the bargaining team, and has attended every
bargaining session; that she attended Respondent’s full staff meeting in May
2007; that Wiley, Lewis, Thomas, and Allen attended for management; that Wiley
told the employees in attendance that as of November 1, 2007, through June 2008
Respondent’s employees were going to go from 12 months to 10 months; that
before this she had always worked 12 months and she was paid for 12 months;
that somebody asked about unemployment and Wiley said that employees would be
off for 2 months and they would draw unemployment during the 2 months they were
off; that somebody even asked about a stretch of pay, management said that
there was not going to be a stretch of pay, and if the employee wanted their
pay stretched, they would have to do it on their own because the employees were
going to collect unemployment10; that
someone asked about hourly pay and Wiley said that the employees’ hourly rate
would not be affected; that Thomas said the Respondent could not stretch the
employees’ pay because they were giving the employees unemployment, and
stretching their pay was something the employee
could do on their own through their credit union or their bank; that prior to
this announcement during this full staff meeting management has not said
anything at any of the bargaining sessions about reducing the months that
employees would work from 12-month
program to a 10-month program; and that there were also a workshop that day.
Edwards, who was
hired by Respondent in January 1987, who is a center administrator/teacher, and
who is a union steward on the union bargaining team, testified that she attended
Respondent’s full-staff meeting on May 18, 2007, at the New Genesis center,
which is a school; that management was represented at this meeting by Wiley,
Allen, Lewis, Thomas, and others; that Wiley was management’s spokesperson at
this meeting; that the purpose of this staff meeting was not announced in
advance of the meeting; that Wiley told the employees that they were going to
go from 12 to 10 months, they would keep the same hourly wages, they were going
to get unemployment for the 2 months they were off, and it would affect
bargaining unit employees; that bargaining unit employees had been working 12
months and they were paid for 12 months; that Piper asked Wiley if she was sure
that employees were going to receive their regular pay for 10 months and get
unemployment and Wiley said that was correct; and that prior to this May 18,
2007 full-staff meeting management had not said anything about reducing work
schedules in bargaining sessions.
Edwards
testified that she did not recall the issue of reducing the months employees
worked being discussed in bargaining sessions from May throughout the summer of
2007.
Conley testified
that she received General Counsel’s Exhibit 3 at the May 25, 2007 bargaining session;
that, with respect to page three of General Counsel’s Exhibit 3, she was not
told by management prior to May 8, 2007, that they were meeting with the board
of directors on May 8, 2007, to approve the budget reduction plan; that she was
not told by management that they and the board chairperson were going to meet
with the policy committee on May 10, 2007, for approval of the budget reduction
plans; that she, Tucker, Rogers, Williams, Edwards, Keyes, and Piper were
present at the May 25, 2007 bargaining session along with Wiley, Harrison, and
Thomas; that Thomas distributed General Counsel’s Exhibit 3; that management
told them at this session that “due to budget cuts that they anticipated, there
might be a change in our work schedule, and they talked about the issues that
are on the draft [GC Exh. 3]” (Tr.
388 with emphasis added); that Thomas told the union bargaining team that
Respondent would be looking to change the employees’ working schedule from 12
months to 10 months, and this change would take effect on November 1, 200711; that at this bargaining session she
and other people on the union bargaining team indicated that they were opposed
to the plan; that they were told that all employees, except secretaries, the
family service workers and some contractual workers would be effected by the
plan; and that representatives from the city of Detroit were not present at the
May 25, 2007 bargaining session.
Piper testified
that the first time that the issue of reducing the months that employees worked
was discussed in a bargaining session in May 2007 after the above-described
full staff meeting; that Harrison, Wiley, and possibly Thomas attended this
bargaining session for Respondent, and she, Tucker, Keyes, White, Rogers, and
Edwards attended this session for the Union; that General Counsel’s Exhibit 3
was given to the Union’s bargaining team at this bargaining session but it was
not discussed at this bargaining session; that she read General Counsel’s
Exhibit 3 after this bargaining session; that, with respect to page three of
General Counsel’s Exhibit 3, she was not told by management prior to May 8,
2007, that they were meeting with the board of directors on May 8, 2007, to
approve the budget reduction plan; that she was not told by management that
they and the board chairperson were
going to meet with the policy committee on May 10, 2007, for approval of the budget
reduction plans; and that Respondent and the Union did not come to agreement at
the May 25, 2007 bargaining session regarding bargaining unit employees’
schedules being reduced from 12 to 12 months.
Conley testified
that between May 26 and September 2007 approximately eight bargaining sessions
were held, noneconomic topics were discussed at these sessions, she did not
recall that any tentative agreements were reached during these sessions, and
nothing was said by management about reducing the months that employees worked.
Piper testified
that between May 26 and September 2007 approximately two bargaining sessions a
month were held and during some months the parties did not meet; that she did
not attend all of these sessions because she was in school; that noneconomic
topics were discussed at the sessions she attended but the Union and Respondent
did not reach any tentative agreements; that during this period reducing the
months that employees worked from 12 to 10 “was discussed but it wasn’t bargained
on” (Tr. 484); that during this period Tucker asked Respondent for the contract
that Respondent had with the city of Detroit and Harrison said that he would
get the information but the information was not given to Tucker during this
period; and that the contract was not provided to the Union until April 2008.
On
cross-examination, Piper testified that the request for a copy of the contract
between Respondent and the city of Detroit came in the context of a discussion
of Respondent’s budget by the Union’s bargaining team and management; that
staffing for classrooms came up during bargaining because the staff was
overworked; that for the last 2 years for the months of June, July, and August
the attendance in her classroom stayed basically the same; and that in the last
3 year for these months in her half-day class she noted attendance drops but
basically in the full-day class the attendance stays the same.
Conley testified
that General Counsel’s Exhibit 37 is her notes of the July 27, 2007 bargaining
session which do not refer to anything with respect to a reduction in the
months that employees work.
Virginia
Burns-Saleem, who is the director of child development at the city of Detroit
Department of Human Services, Child Development Division, testified that her
department handles head start services; that for the past 13 years she has
worked with Respondent; that the city of Detroit provides funds to Respondent,
which is a grant through the Federal Government; that annually Respondent
submits a refunding package (application) to the city of Detroit, which package
contains a budget; that the refunding (the money comes from the Federal Government
to the city of Detroit and then the city of Detroit funds, as here pertinent,
Respondent, hence the term refunded or the second step in the funding process)
application has to be submitted to the Federal Government by August 11 of each
year; that the package contains information regarding the number of classrooms,
the number of sites, the number of staff, etc.; that in the last 3 years the city
of Detroit has lost some funding and the Respondent has lost some funding12; that each of the city of Detroit’s
delegate agencies, i.e., Respondent, receives funding on a per child basis;
that there are seven delegate agencies in the city of Detroit which number has
remained static in the last 3 years; that a delegate’s per child funding can
change from year-to-year; that the school year for 2007/2008 started in September
2007 and ended in June 2008; that the contract goes from November 1, 2007, to
October 31, 2008; that the delegate is informed prior to the commencement of
the school year that their budget has been approved; that the budgetary process
for the 2007/2008 fiscal year for Respondent begins in April 2007; that the city
of Detroit would give final approval to Respondent’s program budget in July or
August 2007 for the 2007/2008 fiscal year; that the budget submitted to the city
of Detroit has to be approved by the delegate’s board of directors and its policy
committee (required by the city of Detroit and by the Federal head start law),
which approval must occur before the city of Detroit approved Respondent’s
submission in July–August 2007; that Respondent pays its wages from its program
budget; that the city of Detroit is the program grantee and it sets the salary
scales of the employees at Respondent; that the salary scale is not a specific
amount but rather it is a range; that Federal law requires that the grantee
develop a salary schedule; that for the school year 2007/2008 Respondent
operates a 10-month program and not a 12-month program; that before the
2007/2008 school year Respondent was a 12-month program; that the salary scale
that the city of Detroit provides to a delegate with a 10-month program is a
lower scale than the one which would be provided to a delegate with a 12-month
program; that the Federal Government has some input into these salary scales;
that the enrollment for 2007/2008 had dropped by over 100 compared to June
2007; and that would represent a loss of funding for the 2007/2008 year as
compared with June 2007.
On
cross-examination, Saleem testified that Respondent submits an application to
her department which includes general accounting budget information (GABI),
i.e., the number of children, teachers, and sites; that an accountant in her
department reviews Respondent’s submission; that the GABI submitted by
Respondent specifies how many months the employees will work; that the city of
Detroit approves a budget based on what is submitted by the delegate; and that a budget for the fiscal year
2007/2008 is approved based on a GABI that is typically submitted to the city
of Detroit in July 2007. Saleem then gave the following testimony:
Q. By Ms. Brazeal:
Ms. Burns-Saleem, do you recall the GABI that
A. Not off the top of my head, no.
Q. Do you recall what number or how many months
A. I don’t recall.
Q. You don’t recall?
A. No. [Tr. 714.]
Saleem further testified on
cross-examination that when the city of
Tucker testified
that during the bargaining sessions in October 2007 the topic of the number of
months that employees worked out of the year came up; that at one of the bargaining
sessions in October 2007 Harrison, Lewis, and Thomas were present for
Respondent and he, Conley, Rogers, Edwards, Keyes, and Piper were present for
the Union; that during this October 2007 bargaining session Harrison basically
said that there was nothing the Union could do about it, the switch from 12
months to 10 months for bargaining unit employees was going to happen anyway,
they put it into play, he had to take it to the board, and the board was going
to implement it anyway; that he told Harrison that Respondent could not change
unit employees to 10 months because of labor laws and it would be a unilateral
move; that Harrison indicated during this bargaining session that unit
employees would be working for 10 months, their pay would be spread out over 12
months, and bargaining unit employees would not be able to receive unemployment
compensation; that he then told Harrison that if Respondent did that he,
Tucker, would file charges; that during this bargaining session Fiscal Officer
Thomas had some papers to show Tucker and the union bargaining committee how it
would work, and Thomas said that Respondent, “didn’t budget enough for insurance.
. . . something like $100,000 . . . and
they had to find some kind of way to make up that money” (Tr. 196 and 197);
that he told Thomas, “[Y]ou all is not going to piggyback off my members” (Tr.
197); that Thomas did not specify what type of insurance but she did say that
Respondent had to make this change; and that management kept
telling us this was coming from the
Department of Human Service, so I kept asking for documents from the Department
of Human Service. I asked for the health care piece to how much it cost, what
they over-budgeted, and I kept asking for this document from the Department of
Human Service to say that they’re going to take it to 10 months. [Tr. 198.]
Also, Tucker testified that at this
bargaining session he asked for documentation regarding Thomas’ claim that
insurance had increased $100,000 and something from the Department of Human
Services in Detroit which has a contract with Respondent that the number of
months that employees have to work needs to be reduced to 10 months, Harrison
told him that he would provide the information, but he never received this information
from Harrison; that at this October 2007 bargaining session and numerous times
before he requested a copy of the contract between Respondent and the
Department of Human Services; that Harrison told him that he would get a copy
of the contract for him but while he was chief negotiator for the Union
Harrison did not give him a copy of the contract; that during this bargaining
session in October 2007 the Union and Respondent did not agree that the
employees’ schedule would be reduced from 12 months to 10 months or that the
pay of bargaining unit employees would be spread over 12 months based on 10
months worth of wages; and that while he was chief negotiator there was never a
tentative agreement reached regarding the months that employees worked or the
wages that employees were to receive on a yearly basis.
On redirect,
Tucker testified that when during a bargaining session in October 2007 Harrison
said that Respondent was going to change the months employees worked from 12 to
10, employees could not receive unemployment compensation dur-ing the months
they were off, and Respondent was going to do this and there was nothing that
the Union could do about it, he told Harrison that Respondent could not make
these unilateral changes without the parties bargaining; that Harrison did not
say that he wanted to bargain, “the subject of bargaining never came up” (Tr.
340); that he did keep the Union’s attorney, Howard Gordon, apprised about the
status of the negotiations; that no one in management directly told him when
Respondent was going to implement the wage change; and that after October 2007
the parties held bargaining sessions and the topics covered were noneconomic
mostly.
Conley testified
that she, Tucker, Harrison,
Piper testified
that at bargaining sessions toward the end of 2007 the issue of employees
working 10 months came up but it did not come up often; that then Interim
Program Director Lewis told the union bargaining team during this period that “we
would be going to 10 months, but we would not receive unemployment” (Tr. 490);
that Harrison made comments to the effect that employees will be converted from
12-month employees to 10-month employees and 10-month wages would be spread
over 12 months and the Union could do nothing about it; that she said that
Wiley at the full staff meeting in May 2007 told employees that they would get
unemployment; that while the reduction of the number of months that employees
worked was discussed, it was never agreed upon; that the Union and Respondent
did not agree on the day it was discussed that unit wages would be spread out
so that 10 months worth of wages would be paid over 12 months; that Tucker
requested a copy of the contract between Respondent and the city of Detroit;
and that Harrison said that he would get it.
Rogers, who
testified that she attended every bargaining session, testified that after the
full staff meeting in May 2007 when Respondent announced its plan to go from a
12-month program to a 10-month program this matter was not brought up at a bargaining
session until October or November 2007; that she attended bargaining sessions
between May and October 2007 and the issue of the reduction of the number of
months the employees worked did not come up until October 2007; that at an October
2007 bargaining session a member of the management team said that Respondent
was still going from 12 months to 10 months, the employees’ hourly wages would
be changed in that it would go down, and the employees were no longer going to
get the unemployment and their 10 months pay would be spread out over 12
months; that she asked management why and management said that “[t]he insurance
. . . went up $100,000 so they were not going to be able to give us that unemployment”
(Tr. 555); that while she could not remember who on he management team made these
statements, she was sure Harrison and Lewis attended this session but she was
not sure if Thomas was there; that she, Tucker, Conley, Piper, and Edwards were
there on the union team but she was not sure if Keyes or White were there; that
in responding to management’s statements, Tucker said that they were in he
middle of trying to get a contract finished and management could not make any
changes and if management made these changes, he was going to file charges
(said more than once); that Tucker asked for all the documents pertaining to
how the operations of Respondent is run; that Harrison said that they would
give him all of the information that he needed; that management kept saying
that they wanted to make the changes on November 1 and Tucker kept reminding
them that they could not change any wages or anything; and that at this
bargaining session the Union did not enter into any tentative agreement
whatsoever regarding the reduction of the number of months that employees
worked or spreading 12 months wages over 10 months.
Edwards
testified that about two bargaining sessions were held in October 2007; that
during the October 2007 bargaining sessions Harrison said that management was
going to change employees’ work schedule on November 1, 2007 (she thought) from
12 to 10 months and management had to spread the pay out so that employees
would be paid 10 months of wages over 12 months; that management was
represented at this meeting by Harrison, Lewis, and Thomas; that Tucker asked
Harrison for proof from DHS or the city of Detroit, Tucker wanted to see the
official documents on changing the wages; that Harrison asked Lewis to make
sure that the union bargaining team had the documents at the next meeting; that
when Harrison said that management was going to change the wages Tucker told
him that management could not do that would be a unilateral change and the Union
would file charges; and that Tucker did not say that he wanted to bargain about
wages.
With respect to
bargaining sessions in November 2007, Tucker testified that one was held on
November 27, 2007; that he was present at this session, along with Conley,
Piper, Rogers, and possibly Keyes; that Respondent was represented at this
session by Harrison, Lewis, and Thomas; that while the months that employees
worked was discussed at this session, the parties never agreed to anything on
that subject; that when Harrison, at this session, said that he was going to
implement the 12- to 10-month change, he read the riot act to Harrison and he,
Tucker, telephoned Harrison the next day and read the labor law to him on the
telephone; that what Harrison said at the bargaining session was that Respondent
was putting the 10-month schedule in place, the wages would be spread over 12
months, and there was nothing the Union could do about it because it was going
forward; that Harrison did not say at that time when the change would become
effective; that he told Harrison that putting the 10-month schedule in place
and spreading the wages over 12 months is something the Union did not agree to
and there would be a labor charge; that the members of the union bargaining
committee were upset and they said they would not accept it; that during the
November 27, 2007 bargaining session he again asked for Respondent’s contract
with the Department of Human Services and information regarding Respondent’s
claim about the cost of insurance increasing $100,000; that he never received
this information while he was chief negotiator; that when he telephoned Harrison
on November 28, 2007, and read to Harrison over the telephone the labor law
regarding unilateral changes Harrison did not respond; and that during this
telephone conversation with Harrison he did not agree with Harrison that
bargaining unit employees’ work schedules would be reduced from 12 to 10 months
and they would receive 10 months wages spread over 12 months.
Conley testified
that she could not recall attending a bargaining session in November 2007; and
that while she was at the bargaining table at some unspecified time Harrison
said the 12-month to 10-month wage change was going to happen and there was
nothing the
Piper testified
that she attended one of the two bargaining session in November 2007; that she,
along with Tucker, Keyes, Rogers, Edwards, Lewis, Thomas, and Harrison attended
this session; and that she did not believe that the number of months that
employees worked was discussed at this November 2007 bargaining session; and
that there may have been another session in November 2007 that she did not
attend.
Rogers testified
that at a November 2007 bargaining session management (Harrison, Lewis, and
Thomas) presented the union bargaining team (her, Tucker, Conley, Keyes, Edwards,
and maybe Piper) with a diagram (in R. Exh. 1) of how the conversion would go
from 12 months to 10 months when they changed it over; that management took
$36,000 and showed how they were going to stretch it so that it could be paid
over 12 months; that this meeting was very heated and the Union and management
did not enter into any tentative agreement regarding spreading bargaining unit
employees’ 10-month wages over 12 months; that she worked for Respondent for 18
years and she was appalled that the Respondent would reduce her hourly rate and
then stretch it out over 12 months when there was a union and management was supposed
to bargain; that at the session she asked the representatives of management “what
gave them the right, knowing that . . . [the employees] had a union, . . . to
not bargain fairly” (Tr. 561); that, as set forth, her hourly rate went down
from $23 an hour down to $18; that management’s stated justification was the
$100,000 health care issue; that she asked management what did the health care
issue have to do with management changing the employees’ hourly rate; and that
Lewis said that family service workers, who are in the bargaining unit, would
continue as 12-month workers.
Edwards
testified that a bargaining session was held on November 27, 2007; that she,
Tucker, Conley, Piper, Rogers, and Keyes attended this session for the Union;
that management was represented by Harrison, Lewis, and Thomas at this session;
that Tucker requested official documents from DHS and Thomas presented a
conversion pay scale (see the unnumbered page in R. Exh. 1 titled “HARTFORD
HEAD START AGENCY, INC., TEN MONTH SALARY CALCULATION, NOVEMBER 1, 2007”),
which she said is what DHS had sent; that the conversion chart was something
that Thomas just made up in the computer; that when Tucker received the chart
he said this is not what I am talking about, I’m talking about an official
document not something that you all just made up on your computer; that management
said that the reason the employees were going to have to take a cut in salary
was because management had to pay for health insurance; that at this bargaining
session the Union and Respondent did not reach a tentative agreement regarding
either the months that employees worked or to spread 10 months worth of wages
over 12 months; that at no time prior to November 2007 had the employer and
union reached a tentative agreement regarding either the number of months that
employees would work or to stretch 10 months wages over 12 months; and that no
agreement was reached on these two subjects because
Well, we never really discussed it that much. And when Jason [Harrison] and Deborah Thomas always came to the bargaining team if they mentioned it, it was already—they were saying like it was already in place. [Tr. 612.]
Edwards further testified that Harrison
told the union bargaining team, “[W]e’re [(management)] going to change the
wages and there’s nothing you all can do about it” (id.); and that
Conley testified
that on or about January 18, 2008, she and other bargaining unit members
attended a full staff meeting; that Grosse and other coordinators were there;
that Grosse introduced two representatives from the new insurance company,
Employee Health Insurance Management, Inc. (EHIM); that the employees were told
at this meeting that the new prescription drug plan would take effect February
1, 2008; that before this she had the Blue Care Network prescription drug plan
through Respondent; that at this meeting she was given a small booklet summarizing
the benefits (GC Exh. 39), and a handout explaining what the new company, EHIM,
would cover (GC Exh. 6); that on February 1, 2008, her prescription drug plan
changed; that prior to the January 18, 2008 staff meeting management had never
told the Union’s bargaining team during any bargaining session that it was
going to change the prescription drug plan for bargaining unit employees; that
she did not recall anything ever being said about Respondent’s prescription
drug plan for bargaining unit employees and no proposals were exchanged prior
to January 18 or February 1, 2008, between Respondent and the Union regarding
prescription drug plan for bargaining unit employees; that prior to February 1,
2008, the Union did not agree that the prescription drug plan for bargaining
unit employees should be changed; and that General Counsel’s Exhibit 19(b) is
the sign in sheets for the January 18, 2008 staff meeting and she signed on
page 13 of this exhibit.
Piper testified
that she attended a full staff meeting in January or February 2008 regarding a
health care insurance change; that Grosse represented management and there were
representatives from the insurance company present; that other bargaining unit
members attended this meeting; that Grosse told the employees that their
insurance would changed over to this new health care carrier; that prior to
this unit employees had Blue Care Network and they were switched to EHIM the
following month; that she remembered employees asking whether copays would stay
the same but she did not remember anyone in management responding to the
question; that she remembered receiving a small packet (GC Exh. 6), during this
meeting but she did not remember seeing General Counsel’s Exhibit 39; that
before this full staff meeting health care had not been a topic of negotiations
between Respondent and the Union during bargaining sessions and management had
not said that health care insurance would change for bargaining unit employees;
and that at no time since January 2008 had management rescinded the EHIM health
care coverage plan.
Rogers testified
that she attended Respondent’s full staff meeting on January 18, 2008; that in
the past the Respondent had Blue Care Network coverage for prescription drugs;
that presently Respondent uses EHIM for the employees’ prescription drug
coverage; that she was told of this change at the January 18, 2008 full staff
meeting Respondent held; that the new program director, Grosse, presided at
this meeting; that Grosse said that with the $100,000 insurance increase, Respondent,
to save money, was switching the prescription drug coverage to another company;
that Grosse said that Respondent already suffered a loss of $100,000 and that
was causing Respondent to change the prescription drug coverage to another
company; that General Counsel’s Exhibit 6 is the EHIM coverage document that
was handed out at this meeting; that she did not recall receiving any other
documents; that before this full staff meeting, the topic of health care
coverage had never been negotiated during bargaining sessions; that the full
staff meeting was the first time she heard that health care prescription drug
coverage changed; that before this full staff meeting the Union and Respondent
had not entered into any agreements regarding health care coverage; and that
employees still have EHIM coverage.
Edwards
testified that she attended Respondent’s staff meeting on January 18, 2008;
that management was represented at the meeting by Grosse, Thomas, and Lewis;
that the topic of the meeting was not announced before the meeting was held;
that Grosse told them that Respondent was going to change their prescription
drug insurance effective February 1, 2008, from Blue Care Network to EHIM; that
EHIM’s representatives gave a presentation, passed out one handout (GC Exh. 6),
and told the employees that they would be getting generics instead of brand
names; that she did not recall receiving anything else at this meeting; that
health care coverage was previously mentioned at a bargaining session when
management talked about a $100,000 increase in health care insurance in
justifying the pay reduction, and Tucker asked for the documentation in support
of this assertion; that management said that Respondent was going to have to
decrease the employees’ pay because the insurance was going to go up; that
before January 18 the Union and Respondent had not exchanged any proposals
regarding health care; and that she first received notice that prescription
drug coverage would change for bargaining unit employees on January 18, 2008.
General Counsel’s
Exhibits 40 and 41 were received pursuant to a stipulation entered into by counsel
for the General Counsel and Respondent. The former is the Blue Care Network member
handbook and the latter is the prescription plan agreement between Respondent
and EHIM.
Tucker testified
that he was replaced as chief negotiator in February 2008; that he was present
for the February 5, 2008, bargaining session along with Conley, Edwards,
Rogers, Piper, Harrison, Lewis, and Thomas; and that at this meeting he was
pretty sure that Thomas gave him General Counsel’s Exhibit 7 which reads as
follows:
HHAS AND
SEIU
BARGAINING
FEBRUARY 5, 2008
WAGES
BACKGROUND
July, 2007: HHSA requests approval of 10 month employee plan from SEIU
November, 2007: HHSA informs SEIU 12 month payroll scale will be used; SEIU disapproves
November, 2007 through February, 2008: HHSA incurs $33K deficit
DIAGRAM
PLAN A PLAN B (NOT POSSIBLE)
10 month salary 10 month salary
Employee receives
over 12 months Employee receives over
10
months
OTHER TERMS Why
not possible:
IN care
costs
HHSA
currently running
a
deficit for payroll
HHSA
obligation to City
to
honor Budget that
includes
10 month
salaries
(over 12 months)
Tucker testified that at the February 5,
2008 bargaining session when Harrison, Lewis, and Thomas brought up working 10
months instead of 12 months, Harrison said that General Counsel’s Exhibit 7 was
the plan that Respondent was going with; that he told Harrison that the Union
would not because the Union never agreed to anything like what was presented in
General Counsel’s Exhibit 7; that at this meeting the Union was effectively presented
with one option, namely plan A; that the Union did not agree to plan A as
presented on General Counsel’s Exhibit 7; that during the time he was chief
negotiator the health care coverage was not negotiated in that it was never a
topic of negotiations; that February 5, 2008, was the last negotiating session
he attended; that he was aware of a Head Start program in Grand Rapids,
Michigan (whose employees were represented by the Union), which have 10-month
employees in their labor contract; that Respondent (a) never presented him with
an official tentative agreement to initial on 10 months work with pay spread
over 12 months and this issue never went beyond discussion; (b) never declared
an impasse at the bargaining table over this issue; (c) never requested a
mediator be brought in to help negotiate this issue; and (d) never gave the
Union official notice of Respondent’s intent to make the change on any specific
date or that Respondent needed to make the change on a specific date; that he
was told a couple of times during negotiations that Respondent was going to
make this change and there was nothing the Union could do about it; that
Harrison did say that there was an immediate need for action due to a sudden
change in funding and Respondent needed to make this 12- to 10-month schedule
change when Respondent indicated that it under budgeted for the insurance, they
needed to make up that money, and this was how they were making it up; that at
the time he told Respondent that it was not going to piggyback off unit employees’
back; and that there was never a proposal out there regarding the 12- to
10-month schedule change in that it was just general discussion.
On redirect,
Tucker testified that during the time he was chief negotiator the Union never
agreed that the months that employees worked could be reduced from 12 to 10, or
that 10 months wages could be spread over 12 months; that the parties held
bargaining sessions after October 2007 and he attended them up until the time
he was replaced as chief negotiator in February 2008; that while at the
bargaining table, Respondent never gave him (1) a copy of Federal Regulation
1305.8 (R. Exh. 6); (2) any attendance figures; (3) any dollar figures surrounding
attendance; (4) any total population of student figures; (5) the costs of
property; (6) any formal notice of Respondent’s intent to change wages; and (7)
the date or an amount that Respondent intended to change the wages; that from
May to November 2007 he requested a copy of the contract Respondent had with
the city of Detroit; that if Respondent actually proposed to the Union 10
months plus unemployment, which it did not, he would have had to have the membership
vote on such a proposal before the Union could accept it and he could not make
that decision himself; that Respondent never made such a proposal and he did
not take any such proposal, which was not made, to the membership for a vote;
and that Harrison did not discuss with him at the bargaining table the funding
source of wages or the source of the money for funding for wages as it pertains
to Respondent. On recross, Tucker testified that he did receive information on
10-month employees from Respondent in writing.
Conley testified
that the next bargaining session after the one in October 2007 was on February
5, 2008; that she, Lewis, Tucker, Harrison, Edwards, Rogers, and Piper were present
for the February 5, 2008 bargaining session; that she first saw General Counsel’s
Exhibit 7, described above, at this bargaining session; that the bargaining
team was told that Respondent would be changing the program year from 12 to 10
months and the 10 months wages would be spread over 12 months; that management
was told that the employees were not accepting this; that there was no
agreement on this proposal; that the Union’s bargaining team was told that the
wage reductions would go into effect with the employees’ next paycheck; and
that the union bargaining team told the Respondent that it could not do that.
On cross-examination, Conley testified that average daily attendance was
occasionally brought up by management at the bargaining table relevant to
funding. On redirect, Conley testified that while she was on the bargaining
team the Union and Respondent never reached a tentative agreement regarding
reducing the months that bargaining unit employees worked or that 10 months
wages should be spread over 12 months, which issue the Union never had the
opportunity to bargain.
Rogers testified
that she attended a bargaining session in February 2008 along with Tucker,
Conley (described in the Tr. 571 as Donley), Piper, Edwards, Harrison, and Lewis;
that management told the union bargaining team that Respondent was going to
reduce the employees’ months and instead of getting unemployment Respondent was
going to stretch the pay over 12 months; that at the February 5, 2008
bargaining session Thomas gave her a copy of
the above-described General Counsel’s Exhibit 7; that the union
bargaining team told management that the Union was not in agreement with any of
what was in General Counsel’s Exhibit 7; and that the Union and Respondent did
not reach any tentative agreement at this bargaining session with respect to
either reducing the number of months that bargaining unit employees worked or
spreading 10 months worth of wages over 12 months.
Edwards
testified that she attended the February 5, 2008 bargaining session; that
Thomas passed out a copy of what has been received in this proceeding as
General Counsel’s Exhibit 7 to the union bargaining team; that Harrison said
that there was one plan (A) since (B) was described as “NOT POSSIBLE”; that the
management representatives said that the employees would not receive
unemployment because Respondent did not have the money to pay into unemployment
and Respondent had $100,000 in insurance it had to pay; that she told
management representatives that the employees were not going to take this
because it was a Federal and State law that you get unemployment; that Harrison
said that there was no other choice; and that no one in management said exactly
when the changes in employee pay were going to take place.
Rogers testified
that after February 2008 she attended bargaining sessions and the Union and
Respondent did not enter into any tentative agreements at these sessions
regarding reducing the number of months that employees worked from 12 to 10
months; that at no time while she served on the union bargaining team did the
Union and Respondent reached any tentative agreement regarding reducing the
number of months that employees worked; that the reduction from 12 to 10 months
and the stretching of pay over 12 months was done without the Union; and that
she told Harrison at a meeting
they were not bargaining fairly. How they
changed things without including the union. And I remember very well attorney
Harrison saying, “We have an agency to run.” “We do not have the time to bargain with you or”—Let
me see, how did you say it, You said, “We have an agency to run, and we’re not
going to always have time to sit down with the union and bargain over matters
that are going on with this agency. We have an agency to run.” I remember that
so well because I remember saying, “We have a union.” And that’s part of the
union is for the agency to bargain with us on everything. You have to take the
time out to share these things with us. But you [Harrison] said we [management]
didn’t have to do that. You didn’t have time. [Tr. 575 and 576.]
On about March
2, 2008, according to the testimony of Conley, she received General Counsel’s
Exhibit 5 which is on Respondent’s letterhead and which reads as follows:
February 11, 2008
To: Hartford Head Start Staff
RE: Hartford Head Start Agency, Inc. (HHSA), 10
Month
Employees/Payroll
Dear employee:
Thank you for all of the hard work you do for the children of the Hartford Head Start program.
I am writing this letter to inform you that HHSA is beginning the ten (10) month salary discussed with employees in May, 2007, by Chairman Allen, Program Director Alfredine Wiley and Ms. Deborah Thomas, Fiscal Officer. The ten (10) month payroll will be paid until the end of HHSA’s Fiscal year on October 31, 2008.
Employees will not be allowed to collect unemployment compensation because the HHSA is paying a $100,000.00 increase for all HHSA Employees’ Health Care benefits.
Please email Ms. Thomas at dthomas@hartforeheadstart.org or alewis@hartfordhead-start.org with questions or concerns. Thank you in this regard.
Sincerely,
Gloria Lewis
Interim Project Manager
Cc: Charles Allen, Chairman
Vonetta Nimocks, Policy Committee
Chair
Jason H. Harrison, Counsel to HHSA
Conley testified that her pay was reduced
in the paycheck she received on February 29, 2008; that her hourly rate in the
February 29, 2008 paycheck was $15 while her hourly rate before that was $19;
that from the February 29, 2008 paycheck to the time she testified at the trial
herein her wages had not changed; that she believed that management had the
authority to set wages; and that throughout her employment she had never received
any document from the city of Detroit or the Department of Human Services
regarding her wages. On redirect, Conley testified that nowhere in the February
11, 2008 above-described letter does she see any reference to average daily
attendance.
Piper testified
that her pay changed in February 2008 in that her salary was reduced by about
$4 an hour; that she did receive a letter (GC Exh. 5) from management about her
pay reduction after her pay had been reduced; and that before her pay reduction
her pay was $15.67 an hour and after the pay reduction her pay was $12.30 an
hour.
Rogers testified
that she received General Counsel’s Exhibit 5 with her pay on February 28,
2008; that this letter from Respondent does not make any reference to average
daily attendance but rather states “[e]mployees will not be allowed to collect
unemployment compensation because the HHSA is paying a $100,000.00 increase for
all HHSA Employees’ Health Care benefits”; that with this reduction in her pay
she went from earning $22.71 an hour (GC Exh. 8) to $18.92 an hour (GC Exh. 9),
which is a 16.68-percent reduction; that from the end of February 2008 to the
time she testified at the trial herein her hourly rate had not changed; that
before her pay reduction in February 2008 she brought home $1400 every 2 weeks
and after her pay reduction she brought home $1190 every 2 weeks; and that
family service workers, who are in the bargaining unit, were not reduced from
12 to 10 months with stretched pay; that administrative personnel were not
changed from 12-month to 10-month schedules with spread pay (GC Exh. 3); that
some of the administrative staff are in the bargaining unit; that she did not
receive advance warning as to exactly when the change in pay was going to occur
so she did not have enough money in the bank to cover normal payments taken out
of her account; and that as a bargaining team member she has never seen or
received a written proposal from management in terms of making these wage
reductions and spread pay formulas before her pay was reduced.
Edwards
testified that when she received her paycheck on February 29, 2008, she noticed
that her pay had changed; that about 3 days later she received a letter in the
mail (GC Exh. 5) which indicated that her pay had changed; that there is no
reference in the letter to average daily attendance but the letter does
indicate “[e]mployees will not be allowed to collect unemployment compensation
because the HHSA is paying a $100,000.00 increase for all HHSA Employees’ Health
Care benefits”; and that, with this change, her hourly wages went from $19.80
to $16.50.
Saleem testified
that in February 2008 she became aware that Respondent changed the wages of
some employees when she received anonymous phone calls. Then she gave the
following testimony:
Q. Did anyone from Hartford Head Start management notify you in about February 2008 that they were going to change the wages of employees that worked there?
A. There was discussion that there were changes because I informed then that I had been receiving anonymous calls regarding the changes.
Judge West: So this is after the fact, then?
The Witness: Yes.
Q. By Ms. Brazeal: It was after the fact. Did you direct Hartford Head Start to make changes to employees’ wages in February 2008?
A. No.
Q. No? Do you have knowledge of anyone in your department directing Hartford Head Start to change wages of employees?
A. I don’t have that knowledge. [Tr. 715 and 716.]
Saleem testified further on
cross-examination that there is a 10-month salary schedule and there is a
12-month salary schedule; that with respect to those delegates utilizing a
10-month salary scale, she is not aware of any who are spreading the 10-month
salary payments over 12 months; that she is aware that since February 2008 Respondent
has been on a spread pay schedule where the 10 months is spread over 12 months;
that she does not know of any other delegate that does this; that she learned
about Respondent spreading 10 months of pay over 12 months from anonymous
telephone calls and the sharing of the information she received in anonymous
calls; that she learned about spreading 10 months of pay over 12 months from
anonymous calls and then she verified it with Respondent; and that the February
2008 wage change at Respondent did not come to her first for her approval.
Saleem then gave the following testimony:
Q. . . . . Did Hartford Head Start seek your prior approval before making the wage scale change in February 2008 or did they act on their own?
A. There was some discussion regarding the 10–12 month change. Yes, there was discussion. There was information submitted. There was information reviewed.
Q. Did
Mr. Harrison: What budget change?
Mr. Gordon: Mid—the mid-budget change.
Mr. Harrison: In what month, your Honor?
Mr. Gordon: February 2008.
Mr. Harrison: Thank you, Judge.
Q. By Mr. Gordon: Did they have to seek your approval and did you give that review and approval in February 2008 prior to making the change? I’m not asking about discussions. Did you have to sign off on that change before it was made?
A. No. No. [Tr. 722 and 723.]
On redirect Saleem testified Respondent
would have been approved for the 10-month program for the 2007/2008 year when
their refunding package was compiled from April until the end of July 2007;
that the final approval from the city of Detroit of Respondent’s 10-month
program application for the 2007/2008 year would have come in August 2007 for
the submission of the refunding package; that she would agree that the approval
of Respondent’s 10-month program would have occurred in August 2007 and not in
February 2008; and that if Respondent’s 10-month program was approved in August
2007, Respondent would not have had to come back to her in February 2008 for
another approval.
Saleem
subsequently gave the following testimony:
Judge West: Was a 10-month program for [the] specified employees approved in August ‘07?
Mr. Harrison: Yes.
The Witness: It was?
Mr. Harrison: Yes. [Tr. 725.]
On recross, Saleem gave the following
testimony:
Q. By Mr. Gordon: You just responded to Mr. Harrison that the ‘07/’08 budget would have been approved sometime in August of ‘07. And that a 10-month provision was part of that in August of ‘07, is that correct?
A. Correct.
Q. Was a spread pay where the 10-months pay would be spread over 12 months, was that part of that August ‘07 provision that was approved?
A. I don’t recall that. [Tr. 727.]
And on redirect
Saleem testified that Detroit Public Schools is a delegate and the Detroit
Public Schools do not have spread pay to her knowledge.
General Counsel’s
Exhibit 20 is the job description or qualifications, duties, and required tasks
for a project director. When called as a 611(c) witness by counsel for the General
Counsel Lewis testified that project director is synonymous with program director;
that General Counsel’s Exhibit 18, Respondent’s organizational chart, reflects
the positions held and the organizational hierarchy of Respondent at the time
of the trial herein; that she is and she is listed on the chart as interim program
director from “1/08—Present”; that she reports to the board of directors, the policy
committee, and the city of Detroit; that the supervisor of the employees in the
involved unit report to her; that General Counsel’s Exhibit 20 accurately describes
the duties that she is required to perform as interim program director13; that the fiscal officer is
responsible for fiscal management; that on June 5, 2008, she, as interim program
director, signed the 2007 Federal corporate tax return for fiscal year November
1, 2006, to October 31, 2007 (GC Exh. 17); that General Counsel’s Exhibits 26,
27, and 28 are May and June 2008 employee applications for vacation approval
that she signed on the approved by line; that as a result of her signing these
three applications, the employees’ vacation requests were approved; that she
has the authority to approve or deny vacation requests including those of
bargaining unit employees; that she has recommended employees for hire but the
parent policy committee can reject the recommendation; that she has disciplined
employees, including bargaining unit employees, in her capacity as interim
program director; that as interim program director she has conducted staff
meetings attended by bargaining unit employees; and that Grosse was a program director
at Respondent, and Grosse’s duties and responsibilities are the same as hers.14
In response to
questions of Respondent’s counsel, Lewis testified that she has worked for
Respondent since September 1997; that before becoming interim program director
she was a social services coordinator; that Respondent is funded through the city
of Detroit by what is called a refunding package; that she cannot personally
approve a program budget, which includes wages and health care, in that the city
of Detroit approves the program budget; that the budget is put together by all
of Respondent’s coordinators and Respondent’s fiscal officer and it needs to be
approved by the parent policy committee, which is a part of the contract with
the city of Detroit, is required by the Head Start performance standards, and
is a Federal mandate; that the budget and the refunding package as a whole is
one package; that after the parent policy committee approves the plan, it is
taken to Respondent’s board of directors, along with the refunding package for
approval; that the package is then submitted to the city of Detroit; that the
package is resubmitted to the city of Detroit three times; that after the city
of Detroit, the package is submitted to Region 5 of the United States Department
of Human Resources; that attendance is directly related to funding in that 45
CFR § 1305.8 (R. Exh. 6) of the Federal Head Start regulations indicates “you
always have to be at 85 percent, which means they allow 15 percent for
erroneous things that could happen, [b]ut you have to be at 85” (Tr. 110)15; that if Respondent does not comply
with the 85 percent requirement it would be “defunded” (Tr. 114); that she does
not have the authority to recommend a budget to the Board that violated this regulation; and that she did not believe
that she recommended a refunding package and program budget that was in
violation of this Federal regulation for the fiscal year 2007 to 2008.
On further
examination by counsel for the General Counsel, Lewis testified that as interim
program director she has the responsibility to administer the provisions that
are in the budget as approved; that she has held the position of interim
program director since February 2008, and since then she has administered or followed
the budget that had been approved; that she oversees the fiscal officer, who
makes sure that the budget is complied with; and that it is a part of her
responsibility to make sure that bargaining unit employees are paid pursuant to
the budget that has been approved for 2007/2008 according to the salary scale
that Respondent gets from the city of Detroit. On further examination by
Respondent’s counsel, Lewis testified that the salary scale from the city of
After Lewis
testified, the parties entered into the following stipulations:
We’ve stipulated that Olive Grosse held the position of program director from about October of ‘07 until about the end of January of ‘08.
We’ve also stipulated that Alfredine Wiley held the position of interim program director from about June ‘06 until about the end of September ‘07.
It’s also stipulated that Gloria Lewis has held the title of program director since February 2008.
We also have entered into a stipulation that Grosse, Lewis and Alfredine Wiley, at the times that hey have been program director, have had the authority to suspend, assign work, reward work, discipline, schedule and/or grant time off, direct work, and evaluate the work of bargaining unit employees. [Tr. 121.][16]
When called as a
611(c) witness by counsel for the General Counsel, Deborah Thomas testified
that she began her employment with Respondent in 1994 as Respondent’s fiscal officer,
a position she currently holds; that her position as fiscal officer is also
referred to as accountant; that General Counsel’s Exhibit 30 is her job
description (titled qualifications, and required tasks for an accountant)17; that she has performed the duties described
in General Counsel’s Exhibit 30; that from 1994 to the time of the trial herein
her job duties are accurately reflected in General Counsel’s Exhibit 30; that
she has the authority to effectively recommend that an employee be disciplined18; that she reports to the program director;
that she attended collective-bargaining sessions with the Union during
2007/2008; that she was on the Respondent’s bargaining team as the fiscal officer;
that she assisted in drafting the proposals that Respondent presented to the
Union during the collective-bargaining sessions in 2007 and 2008; and that as fiscal
officer she signed two employment contracts between Respondent and the
employees who are in the bargaining unit (GC Exhs. 10 and 15) as a witness to
the signatures thereon.19
When called by
Respondent Thomas testified that as financial officer of Respondent she is in
part responsible for putting together a budget for Respondent, which budget
contains information on wages; that she did this for the fiscal year 2007/2008;
that the budget is submitted to Respondent’s board of directors, Respondent’s
parent committee, and the city of
Detroit for approval ; that the city of Detroit approved Respondent’s
program budget for 2007/2008 in August 2007; that she does not arbitrarily set
the wages for employees since Respondent gets a wage scale from the city of
Detroit; that she was a member of Respondent’s negotiating team; that the subject
of wages came up in negotiations with the Union in November 2007; that
Respondent’s first staff meeting where wages were discussed was in May 2007 at
the New Genesis center; that Respondent receives its program funding from the city
of Detroit; that Respondent submits a budget as part of its proposed contract
to the city of Detroit; that the city of Detroit has the authority to approve
or disapprove that budget; that it has not been her experience that the city of
Detroit has disapproved items in Respondent’s budget; that there have been
situations where funding was not reimbursed to Respondent, namely the 2005/2006
fiscal year, in that Respondent lost funding for 187 children; that Respondent
had its funding decreased in 2007/200820;
that for fiscal year 2007/2008 she helped prepare a 10-month budget program;
that this was the first time she prepared
budget for a 10-month program, and it was a 12-month in the prior fiscal
year; that the change to a 10-month program was precipitated by enrollment and
funding from the city of Detroit; that there was a reduction in funding from
the city of Detroit of approximately $200,000 for 2007/2008; that Respondent’s
Exhibit 1 is a memorandum that Respondent drafted to union members about
Respondent’s staff meeting in May 2007 regarding converting the program from 12
months to 10 months because of the reduction in funding; and that “[y]es” (Tr.
742) this became part of bargaining from May 2007 on.
On
cross-examination, Thomas testified that she, Harrison, and Wiley participated
in drafting the memorandum which is part of Respondent’s Exhibit 1; that the
Union did not participate in drafting the first three pages of Respondent’s
Exhibit 1; that on the first page of Respondent’s Exhibit 1 where it indicates “Budget
Reduction Plan 2007/2008” the employees described therein who will become
10-month employees are members of the involved bargaining unit; that Respondent
prepared a budget proposal and sent it to the city of Detroit in April 2007,
which budget proposal was a 10-month program; that it was decided by those who
worked on the budget to submit a proposal with a 10-month plan because Respondent
was not able to sustain a 12-month program based on the funding; that those who
participated in preparing the budget included herself, the administrative
staff, the program director, and a parent who sits on our budget committee; that
administrative staff includes the content area, a health coordinator, and nutrition;
that while the Union and Respondent talked about the budget, the preparation of
the 2007/2008 budget was not discussed at any bargaining session; that the city
of Detroit approved Respondent’s 2007/2008 budget in August 2007, which budget
included a 10-month program for bargaining unit employees; that with respect to
the third page of the memorandum included in Respondent’s Exhibit 1, she did
not specifically tell anyone on the Union’s bargaining team that management and
a board chairperson met with the policy committee on May 10, 2007, for approval
of the budget reduction plan; that she did not give anyone advance notice that
management was going to meet with the board of directors on May 8, 2007, for
their approval of the budget reduction plan; that as of November 1, 2007, the
involved employees’ salaries were a 10-month program according to Respondent’s
grant contract but the salaries were not converted until February 2008; that
Respondent had to convert the salaries because Respondent was in noncompliance
with the city contract of 10 months; that Respondent had to convert at some
point in fiscal year 2007/2008, the fiscal year began November 1, 2007, and
that was when Respondent was supposed to convert to a 10-month program; that
the employees’ wages did not change in November 2007 because Respondent was “still
bargaining with the bargaining unit and we thought that we would come to some
agreement by November 1st through our bargaining process. But that didn’t take
place” (Tr. 751); that management wanted “a signed contract completing what
salaries or whatever our negotiations were” (id.); that as of August 2007 the city
of Detroit approved a budget and funded for only a 10-month program; that there
was a written proposal submitted to the Union’s bargaining team from Respondent
with respect to wages; that at the November 2007 bargaining session Respondent
gave a copy of its budget to the Union’s bargaining team; that after August
2007 when the budget was approved by the city of Detroit that designated unit
employees as 10-month employees, there was no opportunity to convert back to a
12-month program for those employees; that the bargaining unit employees’
prescription drug coverage insurance changed on February 1, 2008, from Blue
Care Network to EHIM; that she thought that prior to this change, the issue
regarding changing bargaining unit employees’ prescription drug coverage insurance
was discussed at the bargaining table; that she believed that there was a
written proposal from Respondent to the Union to change the prescription drug
coverage insurance before this change occurred; that such a proposal could have
been presented by Respondent’s to the Union when Respondent’s previous program director,
Grosse, attended some of the bargaining sessions, but she, Thomas, was not
sure; that in February 2008 Respondent changed the wages of some of the
bargaining unit employees; that the wages of family service workers, who are in
the bargaining unit, were not altered in February 2008 in that they remained
12-month employees21; that
she did not notify anyone at the city of Detroit in February 2008 before some
bargaining unit members’ wages were changed; that the city of Detroit had “marked
us out of compliance for not converting the salaries at November 1. We should—and
that was—so they were notified. They monitor our program” (Tr. 762); that she
did not know why family service workers’ wages were not changed in February
2008; that the budget submitted to the city of Detroit in April 2007 had a
10-month budget but the submission to the city of Detroit did not allow for the
spreading of the pay of the 10-month employees over a 12-month period; that
10-month employees’ pay is spread over 12 months; and that, to her knowledge,
management never obtained voluntary written approval from individual employees
permitting the spreading of their pay.
On redirect,
Thomas testified that normally three drafts were submitted to the city of
Detroit, namely the first in April 2007, the second in late May, and the third
in late June or early July; that Respondent did not submit a final proposal
until around July 2007; that “yes,” “yes,” “yes” (Tr. 768) bargaining was going
on relevant to wages between May and July 2007; that she could not personally
file a budget with the city of Detroit but rather under Federal Regulations
Respondent needs approval from Respondent’s board of directors, the program director,
and policy committee; and that “yes” (Tr. 770) Respondent’s proposal regarding
wages is in Respondent’s Exhibit 1 under exhibit A,22 which was given to the Union “I know”
(id.) in November 2007. Thomas then gave the following testimony in response to
questions asked by Respondent’s counsel:
Q. Was it given anytime before then? I see May dates.
A. I believe—yeah, I believe it was May too. It was a couple—we had to give that to them a couple times.
Q. So it would be fair to say that this information at
least some of this information was given to the
A. Yes.
Q. And correct me if I’m wrong, that was before a final
budget proposal was submitted to the City of
A. Oh, yes.
Q. And that budget proposal contained a proposal that also
contained wages and how wages would be paid that you submitted to the City of
A. Yes. [Tr. 770 and 771.]
Thomas further testified on redirect that
she played no role in authorizing a health care prescription change in February
2008; and that this change occurred because “[i]ncreased cost in the health
care prescription under our plan” (id.) and “[w]e were looking to kind of
reduce our costs because we were having issues with the health care increases”
(id.). Thomas then gave the following testimony on redirect:
Q. Would it be fair to say that a contract renewal occurred in February of 2008? An automatic renewal?
A. In December. It was in December ‘07.
Q. And that just happened because that was part of the contract that was in place for health care for Hartford Head Start?
A. Yes.
Q. It wasn’t because you or anyone else at Hartford Head Start decided to instantly make a change in the December of 2007 for health care?
A. No. [Tr. 771 and 772.]
Thomas further testified on redirect as
follows:
Q. By Mr. Harrison: You were asked the question, Ms. Thomas, regarding your involvement with spread-pay relevant to 2007/2008 fiscal year.
A. Uh-huh.
Q. Was spread pay approved by the City of
A. Yes, we did receive approval. Yes. [Tr. 775.][23]
On recross,
Thomas testified that all three of Respondent’s budget proposals submitted to
the city of Detroit in the spring and summer of 2007 provided for a 10-month
program; that there were some discussions regarding wages in bargaining
sessions; that she could not say that there were no tentative agreements
reached between the union and employer regarding wages between May and July of
2007; and that there were tentative agreements “[i]t could have been wages. I
don’t know—remember.” (Tr.
776.)
When called as a
611(c) witness by counsel for the General Counsel, Wiley testified that she is
a member of Respondent’s board of directors; that she began her employment with
Respondent in March 2006 as interim program director and she held that position
until mid-200724; that General Counsel’s
Exhibit 20 accurately describes the job duties of a program director and as
program director she performed the duties stated in the second paragraph on
page one of the exhibit.
In response to
questions of Respondent’s counsel, Wiley testified that Respondent’s Exhibit 7
is a letter dated August 16, 2006, she, as Respondent’s interim program director,
sent to Saleem in the city Department of Human Services in Detroit about
Respondent’s reduction; that this letter was written “[b]ecause the City of Detroit
prepares our budget, gives us out allotment for funds to use. We have to check
with them about our funding” (Tr. 145); that the subject of this letter is
funding; that within the confines of General Counsel’s Exhibit 20 she does not
have the authority to craft and implement a budget as the interim program
director, without any approvals; that she needed approvals from Respondent’s board
of directors and the city of Detroit; that Respondent’s Exhibit 7 reads, in
part, “. . . for the 2006—2007 [the agency’s
budget] was reduced by approximately $2,000,000 and our enrollment reduced by
one hundred eighty seven (187) children”; that as interim program director she
did not have the authority to go out and seek funding from any other source
other than the city of Detroit; and that while she was the interim program director
the $2 million was not refunded by the city of Detroit.
When called by
Respondent, Wiley testified that currently she is a board member of Respondent
and a prior interim program director; that she was interim program director
and, therefore, Respondent’s chief administrator officer from March 2006 to
October 2007; that as interim program director she was involved in the filing
of program budgets with the city of Detroit; that she oversaw the process and
worked with staff, the fiscal officer, and the board of directors in putting
the budget together; that during this period she was also on Respondent’s
bargaining team and she attended bargaining sessions, missing a few; that she
never received a response to Respondent’s Exhibit 7, which is her August 16,
2006 letter to Saleem as described above; and that Respondent had not recovered
from the shortfall described in the letter by the time she left her job.25
On
cross-examination, Wiley gave the following testimony:
Q. [By Ms. Brazeal] . . . my question was is that isn’t it true then the budget proposal that was submitted in April 2007, it provided for a 10-month program for bargaining unit employees?
A. I’m really going to have to say—
Q. Do you know?
A. I’m not sure.
Q. You’re not sure?
A. I’m really not sure. [Tr. 789.]
Wiley further testified that she could
not recall whether at the time when the budget proposal was drafted the Union
and Respondent were holding bargaining sessions; that she did not remember going
to union meetings in March and April 2007; that the last (third) draft of Respondent’s
budget for 2007/2008 was submitted in June 2007 and the union meetings had just
started; that she could remember Harrison bringing information to the Union,
namely the budget, information about our deficit, information about the
10-month program, and she did remember that being discussed at the union
meeting; and that the Union’s bargaining team was not part of the drafting of
the budget in April 2007.
General Counsel’s
Exhibits 34 and 35 were received pursuant to a stipulation between Respondent
and the General Counsel. The former is Respondent’s payroll register dated
February 15, 2008, and the latter is the payroll register for February 29,
2008.
Howard Gordon,
who is a staff attorney with the Union, testified that in February 2008 he
replaced Tucker as chief negotiator for the Union in negotiations for a
collective-bargaining agreement with Respondent; that he has attended three
bargaining sessions with Respondent’s representatives, namely April 15, 24, and
29, 2008; that he does not consider a subject a proposal until it is in writing
and he told Tucker to take this approach; that he was not aware that there was
any proposal on reducing the number of months the involved employees worked
from 12 to 10; that he knew that there was a dialogue on that but there was no
bargaining since there was no written proposal; that without bargaining, there
could not be any tentative agreement regarding a reduction of the number of hours
that the involved employees worked; that Tucker would have discussed any
reduction in the employees’ pay with him before Tucker entered into a tentative
agreement; that he first saw General Counsel’s Exhibit 5 sometime between the
date on the letter, February 11, 2008, and the first bargaining session in
April 2008; that, to his knowledge, before he saw General Counsel’s Exhibit 5
no one in management provided the Union with written notice that management
intended to implement a reduction in the months the employees worked, spread
their 10 months pay over 12 months, and deny them unemployment; that these
issues had never reached bargaining since they were never put in writing; and
that after he received notice that the employees’ pay was reduced, he filed an
unfair labor practice charge with the Board on March 6, 2008.
With respect to
the April 15, 2008 bargaining session, Gordon testified that he, Conley,
Rogers, Piper, and maybe Keyes attended for the Union, and Harrison, Lewis, and
maybe Thomas attended for management; that during this session Harrison said
regarding article 5 that it is the subject of litigation; that there was a
mention of “$97,000.00 . . . deficit due to health care. But if—through the litigation process, if they’re
ordered to pay, then they’ll pay” (Tr. 640); that Harrison said during this
session that there will never be another 12-month employee again; that management
said that there would be a $300,000 cost if the employees went on unemployment;
that regarding the 12- to 10-month issue, there was no discussion about a tentative
agreement; that the parties did tentatively agree to a few things on April 15,
2008, but nothing regarding the 12- to 10-month issue; that the parties began a
review of what had been tentatively agreed to (TA’d) and what had not been TA’d;
that prior to this meeting Harrison sent him a summary of what Harrison
believed to be the status of different articles or where the parties stood in
the bargaining of certain articles of the proposed agreement; that he questioned
some of Harrison’s summary and they discussed these matters at this session;
that there was some agreement and some disagreement as to whether certain articles
(or portions thereof) had been TA’d or not; and that the parties disagreed
regarding whether the 12- to 10-month issue had been TA’d, it was said that
this was the subject of litigation, and he disagreed that the Union had TA’d on
he 12- to 10-month issue. With respect to whether management believed that the
Q. Okay. Let me just ask more directly, did Mr. Harrison or anyone else in management say that there was a TA regarding reducing the months that employees worked from 12 to 10 months?
A. I believe that he thought there is, yes.
Q. Did he say he thinks there is? Do you recall?
A. I don’t know if he—I don’t know—I think he did.
Q. Okay. Okay.
Judge West: What was actually said with respect to whether or not there was a TA—
The Witnes: I think he thought that there was a TA and in reviewing our documents, I didn’t believe there was.
Q. By Ms. Brazeal: Okay.
A. Because there were things—the TAs reflect significantly different information, the union’ copy versus the employer’s. And you have to remember that I wasn’t the chief spokesperson TA’ing that issue.
Q. That would have TA’d that issue?
A. That would have TA’d that issue. It was Mr. Tucker. And I’m looking—I had conversations with Mr. Tucker and I looked at that and then I had clarifying discussions with him after that bargaining meeting to make sure that my understanding of what had happened and what had not happened in his view was clear. And Mr. Harrison made his position clear to me also. And I think at that point there was a disagreement but that was what was the subject of litigation and we were kind of done with that. [Tr. 646 and 647; emphasis added.]
Gordon further testified that as
indicated by his initials and the date “4/15/08” there were some topics that
the parties were able to agree on during this session; that he requested information
from Respondent on either April 15 or 24, 2008, or at both bargaining sessions;
and that he verbally requested at least the contract and he thought a seniority
list.
Gordon testified
that in late April 2008 Harrison sent him a copy of what Harrison believed to
be the common agreements, the status of bargaining, and those proposals up to
that particular time (GC Exh. 13); that at the outset of bargaining he informed
Harrison that he was not interested in using the “redline” copy26 approach because he found it very confusing;
that Harrison sent him a redline copy (GC Exh. 13), anyway; that there was a
question as to exactly which proposed provisions had been TA’d [“we had TAs
with his initials on it that he didn’t have. He had information written on his
TA copy that we didn’t have” (Tr. 651)], and Harrison’s submission was his
attempt to resolve this question; that with respect to article 5, he did not
have a clear understanding of what the boxes in the margin contain other than
that they are Harrison’s thoughts; that bargaining contracts with the redline
approach creates confusion; that the comments in the boxes are Harrison’s
thoughts; and that there are no initials signifying approval of a TA on this
copy.
On cross-examination,
Gordon testified that the first page of General Counsel’s Exhibit 13 includes
the following from
As noted above,
Respondent provided a copy of the contract between it and the city of
Gordon testified
that at the April 29, 2008 bargaining session Harrison provided him with the
then current DHS contract (for 2007–2008) and a seniority list; that he
believed that the contract he received is the same as the contract between
Respondent and the city of Detroit; that this contract was management’s main
justification for why management could not bargain wages; that the contract was
relevant to the Union’s duty as exclusive collective-bargaining representative;
that from January 31, 2008, when he was made the chief negotiator until he
testified at the trial herein the Union and Respondent never agreed to anything
with respect to the number of months that employees worked or anything
regarding employees’ wages because no proposals were ever made on wages and the
parties had not gotten to that point yet; that, to his knowledge, the prescription
drug plan which Respondent put into effect on February 1, 2008, is still in
effect; that during the time he has been chief negotiator no representative
from the city of Detroit has come to a bargaining session and he was not aware
or this occurring prior to the time he became chief negotiator; that he first
saw General Counsel’s Exhibit 7 (the above-described Respondent’s February 5,
2008 memorandum on wages) after he was ordered by the executive director of the
local on January 31, 2008, to take over the bargaining; and that during the bargaining
sessions he attended, the content of General Counsel’s Exhibit 7 were not
discussed in that Harrison said that this was the subject of litigation.
Respondent’s
Exhibit 2 is a letter dated June 23, 2008, from Respondent to the deputy mayor
of the city of
Analysis
Paragraphs
16(a), 17, and 18 of the complaint collectively allege that in about October
2007 and on about November 27, 2007, the Charging Union orally requested that
Respondent furnish it with the existing contract between the Respondent and the
city of Detroit regarding providing prekindergarten services for the city of
Detroit; that this information is necessary for, and relevant to, the Charging
Union’s performance of its role as the exclusive collective-bargaining
representative of the unit; and that Respondent was dilatory in responding to
the information request by failing to provide the requested information until
about April 29, 2008.
On brief, counsel
for the General Counsel contends that Tucker requested a copy of the 2007/2008
contract Respondent had with the city of Detroit on numerous occasions in
October and November 2007; that Respondent did not give a copy of the contract
to the Union until late April 2008, which was many months after it was
requested and 2 months after Respondent implemented the unlawful wage reduction;
that employers are obligated to provide information that is potentially
relevant and that would be useful to the union in discharging its collective-bargaining
responsibilities; that the test for relevance is a liberal discovery-type
standard; that information pertaining to wages is presumptively relevant, and
should be provided, Pfitzer, Inc.,
268 NLRB 916, 919 (1984), enfd. 763 F.2d 887 (7th Cir. 1985); that the Board
has found that employers are required to provide information to a union, where
the union needs the information to evaluate the employer’s proposal during
collective bargaining, E. I. Dupont, Co.,
276 NLRB 335 (1985); that by providing the information several months after the
Union requested the information, and only after the Respondent implemented the
wage change, Respondent was dilatory and it violated its obligation to provide
the information, Woodland Clinic, 331
NLRB 735 (2001); and that the contract was necessary for the Union to evaluate
Respondent’s wage proposals.
Respondent on
brief argues that “[n]one of the Petitioner’s witnesses presented proofs of
written requests made to Respondent regarding the contract with the city of
First, there is
no requirement that a request for information be in writing, and Respondent
does not cites any precedent for this assertion. The request for information
can be verbal. Second, neither Respondent’s witnesses nor its chief negotiator,
Harrison—who is also its
legal representative in this proceeding, even attempted to refute the testimony
of the Union’s witnesses that the requests were made. Third, Respondent does
not even attempt to explain why this information was not provided to the
Paragraphs
16(b), 17, and 19 of the complaint collectively allege that on about November
27, 2007, the Charging Union orally requested that Respondent furnish it with
information relating to Respondent’s claim of a $100,000 increase in health
insurance costs; that this information is necessary for, and relevant to, the
Charging Union’s performance of its role as the exclusive collective-bargaining
representative of the unit; and that Respondent has failed and refused to
furnish the Charging Union the requested information.
On brief, counsel
for the General Counsel contends that during the October and November 2007
bargaining sessions Tucker orally requested that Respondent furnish it with
information relating to Respondent’s claim of a $100,000 increase in health
care costs, and Respondent never furnished the Union with this information;
that the health care cost information is presumptively relevant to the Union’s
collective-bargaining responsibilities, namely the Union’s responsibility to
bargain about the wage reduction that Respondent wanted to impose on the
employees; and that the health care information was necessary for the Union to
evaluate Respondent’s wage proposal.
Respondent on
brief argues, as indicated above with respect to the contract, that there were
no written requests, and testimony alone is insufficient to meet the burden;
and that “[f]urthermore the Respondent presented testimony demonstrating its contract with its health-care provider
automatically renewed in December 2007, not due to any action by Respondent or
its agents.”28 (Emphasis added.)
As noted above
(a) there is no requirement that a request for information be in writing, and
Respondent does not cites any precedent for this assertion (the request for
information can be verbal); and (b) neither Respondent’s witnesses nor Harrison
even attempted to refute the testimony of the Union’s witnesses that the
requests for documentation regarding the $100,000 were made. What
Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims . . . . If . . . . an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.
As pointed out on page 921 of The Developing Labor Law (5th ed. 2006),
Disclosure of relevant information is integral to the bargaining process. It encourages mutual respect between the negotiators and makes the American collective bargaining system, which so heavily relies on cooperation and open exchange, a viable approach to fashioning “a generalized code” establishing “a system of industrial self-government.”545 As the Fourth Circuit noted, unions cannot be expected to represent employees in an effective manner where they do not possess information that “is necessary to the proper discharge of their duties of the bargaining agent.”546
________________
545 Steelworkers v.
Warrior and Gulf Navigation Co., 363
546 NLRB v. Whitin
Machine Works, 217 F.2d 593, 594, 35 LRRM 2215 (4th Cir. 1954), cert. denied,
349 U.S. 905, 35 LRRM 2730 (1955).
Counsel for the General Counsel correctly
points out on brief that (a) health care cost information is presumptively relevant
to the Union’s collective-bargaining responsibilities, and (b) here the health
care information was also necessary for the Union to evaluate Respondent’s wage
and schedule proposal, using health care costs as a justification, to
drastically reduce the employees’ wages. Respondent violated the Act as alleged
in paragraphs 16(b), 17, and 19 of the complaint.
Paragraphs 12,
13, 14, and 15 of the complaint collectively allege that on about February 14,
2008, Respondent unilaterally implemented changes to its unit employees’ health
insurance prescription plan without prior notice to the Charging Union and
without affording the Charging Union a meaningful opportunity to bargain with
respect to this conduct and the effects of this conduct on the unit; and that
this subject relates to terms and conditions of employment of the unit and is a
mandatory subject for the purposes of collective bargaining.
On brief, counsel
for the General Counsel contends that Respondent implemented a change in the
unit employees’ prescription health care coverage without first notifying the
Union and providing it with an opportunity to bargain about the change; that
health insurance for current employees is a mandatory subject of bargaining, Allied Chemical & Alkali Workers Local 1
v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971); and that the
implementation of this unilateral change from Blue Care Network to EHIM in the
midst of collective bargaining violated the Act.
Respondent on
brief argues that “. . . IT DID NOT UNILATERALLY CHANGE THE HEALTHCARE BENE-FITS
OF UNIT EMPLOYEES.” (R. Br. 6.)30
A unilateral
change in the unit employee’s prescription drug coverage occurred in February
2008. That unilateral change occurred without prior notice to the Union and
without Respondent providing the
Paragraph 20 of
the complaint alleges that on or about February 29, 2008, Respondent bypassed
the Charging Union by announcing to unit employees that they would not be
eligible for unemployment compensation as a result of its implementation of its
proposal to reduce the work schedules of unit employees from 12 months to 10
months, and pay unit employees 10 months’ wages over a 12-month period.
On brief, counsel
for the General Counsel contends that on February 29, 2008, Respondent notified
employees by letter that they would not be eligible for unemployment compensation;
that this notification occurred without prior notice to the Union; and that
Respondent violated the Act by notifying employees of Respondent’s unilateral
changes without the agreement and consent of the Union, Detroit Edison Co., 310 NLRB 564 (1993).
Respondent on
brief does not specifically address this allegation.
Not only is the
bypassing of the Union in the situation at hand evidence of bad faith, but the
refusal of Harrison to accord the Union its rightful role as collective-bargaining
representative of the involved employees was intended to undermine the Union’s
authority among the employees whose interests the Union represents. The
frustration of at least one employee on the
they [the representatives of management]
were not bargaining fairly. How they changed things without including the
union. And I remember very well attorney Harrison saying, “We have an agency to
run.” “We do not have the time to bargain with you or”—Let me see, how did you
say it, You said “We have an agency to run, and we’re not going to always have
time to sit down with the union and bargain over matters that are going on with
this agency. We have an agency to run.” I remember that so well because I
remember saying “We have a union.” And that’s part of the union is for the
agency to bargain with us on everything. You have to take the time out to share
these things with us. But you [Harrison] said we [management] didn’t have to do
that. You didn’t have time. [Tr. 575 and 576.]
These are but a few examples of
Paragraphs 10,
11, 12, and 14 of the complaint collectively allege that in about October 2007,
the Charging Party (the Union) requested that Respondent bargain collectively
about Respondent’s proposal to reduce the work schedules of unit employees from
12 months to 10 months, and to pay unit employees 10 months’ wages over a
12-month period, which subjects relate to terms and conditions of employment of
the unit and are mandatory subjects for the purposes of collective bargaining;
that Respondent has failed and refused to bargain collectively and in good
faith about its proposal; and that on about February 14, 2008, Respondent
implemented its above-described October 2007 proposal.
On brief, counsel
for the General Counsel contends that the Board has held that an employer
violates Section 8(a)(1) and (5) of the Act by altering the status quo
regarding mandatory subjects of bargaining during collective bargaining absent
the parties reaching impasse, Daily News
of Los Angeles, 315 NLRB 1236 (1994); that wage issues are mandatory
subjects of bargaining, NLRB v. Katz,
369 U.S. 736 (1962); that work schedules are mandatory subjects of bargaining, Raven Government Services, 331 NLRB 651
(2000); that impasse occurs whenever negotiations reach that point at which the
parties have exhausted the prospects of concluding an agreement and further
discussions would be fruitless, Grosvenor
Report, 336 NLRB 613, 617 (2001); that here the parties had not reached
impasse regarding wages and work schedules in that when Respondent implemented
wage and work schedule reductions the parties had not begun to negotiate
economic terms such as wages, they had not even exchanged written proposals
regarding work schedules or wages, and therefore the parties could not have
exhausted the prospects of concluding an agreement on these issues; that, with
respect to Respondent’s apparent argument that economic exigencies compelled
prompt action, the Board has held that even in those circumstances employers
must provide the union with adequate notice and an opportunity to bargain about
the change, RBE Enterprise of S.D., Inc.,
320 NLRB 80, 82 (1995), and Bottom Line
Enterprises, 302 NLRB 373 (1991); that the Board has limited the
circumstances that would qualify as sufficient exigencies as those that are
extraordinary events that are unforeseen and have a major economic effect,
requiring the employer to take immediate action, Hankins Lumber Co., 316 NLRB 837, 838 (1995), and Angelica Healthcare Services, 284 NLRB
844, 852–853 (1995); that when the economic exigencies are not unforeseen, the
Board holds that the exigencies do not permit employers to implement unilateral
changes, Harmon Auto Glass, 352 NLRB 152
(2008); that while Respondent argued that the 2007/2008 contract with the city
of Detroit, which allegedly contains the 10-month program provision, was an
exigent circumstance that permitted Respondent to unilaterally implement
reduced work schedules and wages, Respondent failed to move that the 2007/2008
contract be admitted into evidence and, therefore, all testimony regarding the
contract is hearsay; that even if the 2007/2008 contract does contain a
10-month program provision, this would not be an economic exigency in that it
was not unforeseen since Respondent presented the 2007/2008 budget to the city
of Detroit before it notified the Union of any reduction in work schedules;
that here Respondent created its own exigent circumstances and it was clearly
foreseeable that Respondent would need to change the employees’ wages and
months that they worked to conform to the approved budget; that Respondent
claimed that the $100,000 increase in health care insurance, not the purported
limitations in the contract, was the reason why it reduced the months and wages
that employees worked; that the increase in health care insurance costs was the
only reason relied upon by Respondent in its letter to bargaining unit
employees included with their first radically reduced paychecks and received on
February 29, 2008; that in view of the fact that Respondent maintained family
service workers as 12-month employees despite the alleged 10-month limitation
in the contract it had with the city of Detroit, it follows that Respondent was
not mandated by the city of Detroit to change the months and wages of
bargaining unit employees; that Respondent’s use of discretion in this regard
indicates that the contract was not an economic exigency that left it with no
other choice but to change the months that certain bargaining unit employees
worked and their wages; that assuming arguendo that the alleged 10-month
provision qualified as a sufficient economic exigency, Respondent still had a
duty to provide the Union with an opportunity to bargain before implementing
the work schedule and wage reduction; that Respondent has continually refused
to bargain with the Union regarding this issue since October 2007; and that
Respondent’s reliance on 45 CFR § 1305.8 is misplaced in that these regulations,
which deal primarily with the action a head start program must undertake when
dealing with student absenteeism, are irrelevant to the issues in this case.
Respondent on
brief argues that it presented a wage proposal to the Union on May 11, 2007;
that Respondent’s witnesses and exhibits demonstrate exigent circumstances were
present when the Respondent changed wages; that the decrease in funding that Respondent
experienced before the 2007/2008 contract constitutes an exigent circumstance
since it was an extraordinary event which was an unforeseen occurrence, Angelica Health Services, 284 NLRB 844,
852–853 (1997); that “[t]he NLRB’s claim the Respondent did not meet its duty
to bargain is false and is directly contradicted by the . . . testimony . . . .
[that] Wiley facilitated an agency-wide meeting to discuss potential changes to
the Respondent’s Program . . . .”31; that “bargaining
regarding Respondent’s wage proposal negotiations began in May, 2007 and continued
through December 2007 (See Petitioner’s complaint, Averment 10 & 11)”
(emphasis in original)32; that
the memorandum given to the Union in May 2007 explained Respondent’s proposed
conversion of its program from 12 to 10 months33;
that Thomas testified that Respondent’s grant from the city of Detroit was not
approved until August 2007 after the Union and Respondent had negotiated for
three months34; that in NLRB v. Katz, 369 U.S. 763 (1962), the
Court held that an employer can enact unilateral changes to wages when (1) the
union is given notice of the wage changes and an opportunity to respond, and
(2) the wage change implemented by the employer is not significantly different
than the wage proposal implemented; and that
[t]he testimony by Ms. Thomas
demonstrates the union was given notice of the Respondent’s proposed wage
changes in May 2007, and the union was also given
an opportunity to respond throughout the next three months until August, 2007, when the Respondent, pursuant to its
contractually agreed to budget processes, received approval from the City of
Detroit for its 2007 - 2008 budget, including wages (See also Winn-Dixie v. NLRB, 567 F.2d 1343, 97
L.R.R.M. 2866 (BNA)(1978)). [R. Br. 6, with emphasis added.]
It appears that
Respondent’s attorney on brief concedes that after August 2007 the Union was
not given an opportunity to respond to what Respondent indicated it was going
to do with respect to wages and schedules, at least to the extent these subjects
were provided for in the contract Respondent entered into with the city of
In Pleasantville Nursing Home, 335 NLRB
961, 962 (2001), the Board indicated as follows:
The general rule is that when parties are engaged in
negotiations for a new agreement an employer’s obligation to refrain from
unilateral changes encompasses a duty to refrain from implementation unless and
until an overall impasse has been reached in bargaining for the agreement as a
whole. Bottom Line Enterprises, 302
NLRB 373 (1991). In Bottom Line, the
Board recognized only two exceptions to that general rule: when a union engages
in bargaining delay tactics and “when economic exigencies compel prompt action.”
The Board has limited the economic considerations which
would trigger the Bottom Line
exceptions to “extraordinary events which are an unforeseen occurrence, having
a major economic effect [requiring] the company to take immediate action.” Hankins Lumber Co., 316 NLRB 837, 838
(1995). In RBE Electronics, [320 NLRB
80 (1995),] the Board made clear that “[a]bsent a dire financial emergency,
economic events such as . . . operation at a competitive disadvantage . . . do
not justify unilateral action.”
However, in RBE
Electronics, the Board also found that there may be other economic
exigencies that although not sufficiently compelling to excuse bargaining altogether,
should be encompassed within the exigency exception. In those cases, the
employer will “satisfy its statutory obligation by providing [the union] with
adequate notice and an opportunity to bargain over the changes it proposes to
respond to the exigency and by bargaining to impasse over the particular
matter. In such time sensitive circumstances, however, bargaining, to be in
good faith, need not be protracted.”
In defining the less compelling type of economic exigency,
the Board in RBE Electronics made
clear that the exception will be limited only to those exigencies in which time
is of the essence and which demand prompt action. The Board will require an
employer to show a need that the particular action proposed be implemented
promptly. Consistent with the requirement that an employer prove that its
proposed changes were “compelled,” the employer must also show the exigency was
caused by external events, was beyond its control, or was not reasonably foreseeable.
What is clear
here is that there was no overall impasse. Additionally, Respondent’s refusal
to furnish relevant information to the
Conclusions of Law
By (1), without
prior notice to the Union and without affording the Union a meaningful
opportunity to bargain with respect to this conduct and the effects of this
conduct on the unit, (a) on about February 14, 2008, implementing its October
2007 proposal to reduce the work schedules of unit employees from 12 months to
10 months and pay unit employees 10 months’ wages over a 12-month period, and
(b) about February 1, unilaterally implementing changes to its unit employees’
health insurance prescription plan, (2), with respect to information that is
necessary and relevant to the Union’s performance of its role as the exclusive
collective-bargaining representative of the unit, (a) since on or about October
2007 being dilatory in responding to the information request for the existing
contract between the Respondent and the city of Detroit regarding providing
pre-kindergarten services for the city of Detroit, and (b) failing and refusing
to furnish the Union with requested information, namely, information relating
to Respondent’s claim of a $100,000 increase in health insurance costs, and (3)
on or about February 29, 2008, bypassing the Union by announcing to unit
employees that they would not be eligible for unemployment compensation as a
result of its implementation of the changes described in paragraph (1)(a)
above, Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. The General Counsel requests
that Respondent take the following affirmative action:
(a) Rescind the changes in terms and conditions of employment described above, restore the status quo ante, and make unit employees whole for any loss of wages or benefits suffered by them as a result of the above-described changes, with interest thereon computed on a quarterly compound basis.
(b) Upon request, bargain collectively and in good faith with the Charging Union as the exclusive collective-bargaining representative of the unit with respect to wages, hours, and other terms and conditions of employment.
(c) Furnish the Charging Union with the information relating to Respondent’s claim of a $100,000 increase in health insurance costs.
(d) Post appropriate notices.
(e) Provide a designated Respondent official to read the “Notice to Employees” aloud to all unit employees or designate a Respondent official to be present while the notice to employees is read at its 14000 W. Seven Mile, Detroit, Michigan facility, and compensate those employees not scheduled to work that day for their travel expenses to attend the reading of the notice.
In my opinion, counsel for the General
Counsel has shown that each of her requests, except for computing interest on a
quarterly compound basis—which
approach the Board has not yet taken, is warranted in the circumstances of this
case.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended37
ORDER
The Respondent,
Hartford Head Start Agency, Inc., of
1. Cease and
desist from
(a)
Implementing, without prior notice to the Union and without affording the Union
a meaningful opportunity to bargain with respect to this conduct and the
effects of this conduct on the unit, (1) Respondent’s proposal to reduce the
work schedules of unit employees from 12 months to 10 months and pay unit
employees 10 months’ wages over a 12-month period, and (2) unilateral changes
to its unit employees’ health insurance prescription plan.
(b) Being
dilatory in responding to the information request for the existing contract
between the Respondent and the city of Detroit regarding providing
prekindergarten services for the city of Detroit, and failing and refusing to
furnish the Union with requested information relating to Respondent’s claim of
a $100,000 increase in health insurance costs, when the contract and
information on health insurance costs are necessary and relevant to the Union’s
performance of its role as the exclusive collective-bargaining representative
of the unit.
(c) Bypassing
the Union by announcing to unit employees that they would not be eligible for
unemployment compensation as a result of its implementation of the changes described
in (1)(a)(1) in the second preceding paragraph above.
(d) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the
changes in terms and conditions of employment described above, and restore the
status quo ante.
(b) Make unit
employees whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(c) On request,
bargain with the Union as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time
center administrators, teachers, assistant teachers, family service workers,
special needs assistants, cooks, drivers, typists, secretary-receptionist,
learning specialists, and parent aides employed by Respondent at its various
facilities in the Detroit Metropolitan area; but excluding the Director,
Assistant Director, coordinators, assistant coordinators, accounting clerk,
secretary-receptionist (Executive Director), confidential employees, and guards
and supervisors as defined in the Act.
(d) Furnish the
Charging Union with the information relating to Respondent’s claim of a
$100,000 increase in health insurance costs.
(e) Provide a
designated Respondent official to read the “Notice to Employees” aloud to all
unit employees or designate a Respondent official to be present while the
notice to employees is read at its 14000 W. Seven Mile, Detroit, Michigan
facility, and compensate those employees not scheduled to work that day for
their travel expenses to attend the reading of the notice.
(f) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this
Order.
(g) Within 14
days after service by the Region, post at its facilities in
(h) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has
found that we violated Federal labor law and has ordered us to post and obey
this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not, without prior notice to Local 517M, Service Employees
International Union and without affording Local 517M, Service Employees International
Union a meaningful opportunity to bargain with respect to this conduct and the
effects of this conduct on you, implement our proposal to reduce your work schedules
from 12 months to 10 months and pay you 10 months’ wages over a 12-month
period, and we will not unilateral
change your health insurance prescription plan.
We will not be dilatory in responding to the information request from
Local 517M, Service Employees International Union for the existing contract
between us and the city of Detroit regarding providing prekindergarten services
for the city of Detroit, and we will not
fail and refuse to furnish Local 517M, Service Employees International Union
with requested information relating to our claim of a $100,000 increase in
health insurance costs, when the contract and information on health insurance
costs are necessary and relevant to the performance of Local 517M, Service
Employees International Union in its role as your exclusive collective-bargaining
representative.
We will not bypass Local 517M, Service Employees International Union by
announcing to you that you would not be eligible for unemployment compensation
as a result of our implementation of the changes resulting in the reduction of
your work schedules from 12 months to 10 months and your being paid 10 months
wages over a 12-month period.
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Section 7 of the
Act.
We will rescind the changes in terms and conditions of employment
described above, and restore the status quo ante.
We will make you whole for any loss of earnings and other benefits
suffered as a result of the discrimination against you, in the manner set forth
in the remedy section of the decision.
We will on request, bargain with Local 517M, Service Employees
International Union as your exclusive representative concerning terms and conditions
of employment and, if an understanding is reached, embody the understanding in
a signed agreement. The bargaining unit is:
All full-time and regular part-time
center administrators, teachers, assistant teachers, family service workers,
special needs assistants, cooks, drivers, typists, secretary-receptionist,
learning specialists, and parent aides employed by us at its various facilities
in the Detroit Metropolitan area; but excluding the Director, Assistant
Director, coordinators, assistant coordinators, accounting clerk,
secretary-receptionist (Executive Director), confidential employees, and guards
and supervisors as defined in the Act.
We will furnish Local 517M, Service Employees International Union
with the information relating to our claim of a $100,000 increase in health
insurance costs.
We will provide one of our officials to read the “Notice to
Employees” aloud to you or we will designate one of our officials to be present
while the notice to employees is read at our 14000 W. Seven Mile, Detroit,
Michigan facility, and we will
compensate you if you are not scheduled to work that day for your travel expenses
to attend the reading of the notice.
Hartford Head Start Agency, Inc.