Long Island Head Start Child Development Services

National Labor Relations Board - Board Decisions

Dec 29, 2008

353 N.L.R.B. 645 (N.L.R.B. 2008)

LONG ISLAND HEAD START CHILD DEVELOPMENT SERVICES
353 NLRB No. 70
645
Long Island Head Start Child Development Services,
Inc. and Community and Social Agency Em-
ployees Union, District Council 1707, American
Federation of State, County & Municipal Em-
ployees, Local 95, AFL–CIO. Case 29–CA–
28712
December 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On August 20, 2008, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Charg-
ing Party filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order.1
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Marcia E. Adams, Esq., for the General Counsel.
David M. Cohen, Esq., for the Respondent.
Thomas M. Murray, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on June 11 and 12, 2008. The
charge was filed on January 11, 2008, and a complaint was
issued on April 30, 2008. In substance, the complaint alleges
that the Respondent, in violation of Section 8(d) and Section
8(a)(1) and (5) of the Act, unilaterally modified the existing
collective-bargaining agreement by modifying the job descrip-
tions of employees by requiring them to clean classrooms and
perform related duties.
The Respondent asserts that it made no material changes in
the job duties of bargaining unit employees and that to the ex-
tent that any changes were made, they were made outside the
10(b) statute of limitations period. The Respondent also asserts
that the contract contained a clear and explicit waiver by virtue
of the management-rights clause.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
briefs, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
A. The Alleged Unfair Labor Practice
In this case, the General Counsel contends that on November
14, 2007, the Respondent, when it issued a memorandum to
employees, changed certain job duties of some of its bargaining
unit employees. In pertinent part, the memorandum states:
As Head Start Staff, we are charged with maintaining a
clean and safe healthy environment for the children that
we service. In order to clarify the center staff’s responsi-
bility, we have updated the job descriptions to detail the
requirements for maintaining a safe, clean, healthy envi-
ronment. Please keep in mind that although these changes
have always been a job requirement, the updated job de-
scriptions effective Monday, November 19, 2007, will
now include the following details per job title as it pertains
to maintaining a safe, clean, healthy environment.
Teacher, Teacher Assistant, Teacher Aide
Other Duties as Assigned: . . . These other duties may
include, but are not limited to cleaning the classroom; dis-
infecting the classroom materials; sweeping/mopping
floors; cleaning classroom bathrooms; wiping tables; trash
disposal; and cleaning up any spills. . . .
Cook & Cook Assistants
Other Duties as Assigned: . . . These other duties may
include, but are not limited to cleaning the kitchen daily;
classroom coverage as needed; disinfecting the kitchen
supplies and materials; sweeping/mopping floors; cleaning
bathrooms; trash disposal; and cleaning up any spills. . . .
Center Secretary
Other Duties as Assigned: . . . These other duties may
include, but are not limited to classroom coverage as
needed; cleaning the common areas, for example staff
lounges; front desk; sweeping; trash disposal; and cleaning
up any spills. . . .
Family Advocate/Educator
Other Duties as Assigned: . . . These other duties may
include, but are not limited to cleaning and providing cov-
erage for the classroom as needed; cleaning common ar-
eas; sweeping office space; trash disposal and cleaning up
spills.
It should be noted that the General Counsel does not contend
that all of these changes represent new functions that the em-
ployees had not done before as a regular part of their job duties.
Instead she focuses on only a few items relating to each job
category as being new duties.
In the case of the teaching staff, the General Counsel asserts
that the November 14 memorandum represents changes in job
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD646
duties only insofar as it includes cleaning the classroom, sweep-
ing/mopping floors, cleaning classroom, bathrooms, and trash
disposal. (Trash disposal essentially means taking waste bas-
kets outside to the dumpster.)
In the case of the kitchen staff, the General Counsel asserts
that the only new changes are cleaning the kitchen daily and
sweeping/mopping floors, cleaning bathrooms, and trash dis-
posal.
In the case of the secretary, she contends that the only new
changes are cleaning the common areas, for example staff
lounges; front desk; sweeping, and trash disposal.
In the case of the family advocates, the General Counsel con-
tends that the only new changes are cleaning common areas,
sweeping office space, and trash disposal.
The Respondent contends that the November 14, 2007
memorandum, by itself, made no new changes. Although ac-
knowledging that in December 2006, these employees were
assigned to more extensive cleaning functions, it argues that the
February 14 memorandum, at most, merely memorialized al-
leged changes which were made outside the 10(b) statute of
limitations period.
The Respondent operates about 20 head start facilities in
Long Island, New York. Its student population is about 300. It
employs about 300 people in various categories, including
teachers, teacher assistants, teacher aides, cooks and cook assis-
tants, family advocates, and secretaries.
The Union has been the collective-bargaining representative
for certain of the Respondent’s employees for a number of
years. The job classifications covered by the contract include
the classifications described above. The last contract, which
was executed on November 2, 2005, ran until November 30,
2007. (At the time of the hearing, the parties were engaged in
collective bargaining and no new agreement had yet been
reached.) That contract, although containing a grievance pro-
cedure, did not contain an arbitration provision.
The last contract contains some provisions that are arguably
relevant to this case. The Respondent asserts that the Union
has waived its right to bargain about the alleged changes. Arti-
cle 25 is a management-rights clause which states inter alia;
The Agency shall also have the right to promulgate working
rules and procedures, to hire, lay off, promote, assign duties
to, transfer, discipline or dismiss employees; to carry out the
ordinary and customary functions of management and to de-
termine the extent and scope of each job and to make and
change work assignments.
At article 30 of the contract, there is a provision entitled:
“Personnel Policies and Procedure Manual.” This states:
All current practices, policies and procedures regarding per-
sonnel as set forth in the Agency’s Personnel Policies and
Procedures Manual shall remain in effect except where modi-
fied by this Agreement.
Regarding article 30, I note that at the time that the 2005
contract was executed, there was in effect a personnel policies
and procedures manual that had been issued in 1999. In Febru-
ary 2006, the Company issued a revised manual and I can’t see
how the Respondent could conceivably contend, in the absence
of evidence of the Union’s explicit consent, that the collective-
bargaining agreement incorporated by reference this later man-
ual that was issued after the collective-bargaining agreement
had been executed.
For many years, the Respondent used its own custodial em-
ployees to clean the day care facilities after the children were
through for the day. At the same time, the evidence shows that
many of the other bargaining unit day care employees, were
accustomed to doing cleaning functions as an ancillary part of
their work. For example, cooks and cook assistants cleaned the
kitchens. Teachers and other classroom employees swept up
after the children ate their meals and snacks. If a child had an
accident, the clean up did not wait for the custodial staff to
arrive at the scene. The classroom teacher or assistant would
mop up a spill or clean a toilet.
In or about 2005, the Respondent started to subcontract out
the cleaning work to an outside contractor. In this regard, the
contractor hired and assigned one or two of its own employees
to go into each center and clean up after hours. This would
involve, among other things, mopping and sweeping floors,
removing trash, and cleaning bathrooms. At the same time,
during the school day, bargaining unit employees, except per-
haps for the secretaries and family advocates, continued to do
some cleaning as part of the regular course of their work.
Everyone agrees that in December 2006, the Respondent,
because of financial difficulties, decided to have the cleaning
contractor go from a 5-day week schedule to a 1-day-per-week
schedule. As a consequence, supervisors at the various centers
told the staffs that they would have to pitch in to do the clean-
ing work that had previously been done by the contractors. In
some situations, the manager of a center simply let the employ-
ees arrange for themselves how they would accomplish this
task.
There is no question but that the reduction in services pro-
vided by the cleaning contractor put an extra burden on the
bargaining unit employees. Each center’s employees were
required to do more cleaning than they had done before and in
some cases they had to do somewhat different types of clean-
ing. (Such as taking the trash out at the end of each day; clean-
ing bathrooms on a daily basis instead of merely cleaning up if
a child made a spill; or mopping floors on a daily basis instead
of just sweeping and/or vacuuming.) The bottom line, how-
ever, is that the teachers, the cooks, the secretaries, and the
family advocates were expected to do more cleaning than they
had done before.
Almost immediately, the Union began to receive complaints
from some of the staff and on December 5, 2006, it filed a
grievance that read:
On or about December 4, 2006, the Employer notified
employees that they are now required to clean the facilities
on a daily basis due to LI Head Start’s contract with a
cleaning company being amended from daily to weekly
service. The Employer’s demand is in violation of, but not
limited to, the Hours of Work, Overtime, and Preparation
Time provisions of the Collective Bargaining Agreement
. . . as well as the Human Resources Philosophy and Em-
LONG ISLAND HEAD START CHILD DEVELOPMENT SERVICES 647
ployment Sections of the Personnel Procedures Policy
Manual.
Remedy: Withdraw the demand that employees clean
facilities and make the Union whole in every way.
By letter dated January 5, 2007, the Respondent proposed a
settlement of the grievance by offering to allow one teacher
aide and or cook assistant from each center an opportunity to
work an additional hour per day (at the overtime rate), to pro-
vide cleaning services. This offer was meant not to abrogate
the obligation of other employees to do the extra cleaning, but
to mitigate some of those tasks.1
By letter dated January 11, 2007, the Union responded by
stating:
Management’s offer of “work an additional hour per
day not to exceed five hours per week” to 35 hour em-
ployees based on seniority is agreeable to the Union with
the condition that agreements are reached regarding clean-
ing responsibilities that can be reasonably expected to be
performed in one hour, specific to each center or center
size.
Please be advised that many members have expressed
concerns about the ability of the suggested cleaning
schedule to maintain the facilities in an acceptable manner.
If health and safety matters arise, the Union will respond.
The record shows an e-mail exchange on January 31, 2007,
between the Union and management. In pertinent part, the
Union’s e-mail states:
I e-mailed you on January 26 regarding an “outcry”
from our members who reported that Center Managers
were “directing staff to clean far above their pre December
4, 2006 cleaning duties.” . . . If seeking assistance from
Human Resources is met with hostility, and if meetings
are not scheduled, are we to return to the days when this
Union sought assistance from Federal Compliance Offi-
cers, the National Labor Relations Board, the Office of
Children and Family Services and Day care Licensing?
. . . It has been two weeks and you have yet to respond re-
garding your availability to meet. Please respond with a
meeting date so that we may confer “regarding cleaning
responsibilities that can be reasonably expected to be per-
formed in one hour, specific to each center or center size.”
In pertinent part, Thalia Anthony responded as follows:
I will not be able to meet with you personally in February for
we have a Federal Review that we have to prepare for.

1 The letter states inter alia;
However, please note that the Teachers, Teacher assistants, Teacher
Aides, Cooks, cook Assistants are required to maintain a safe, clean
and healthy environment for the head Start children that we service.
This requirement is inclusive of, but not limited to cleaning up spills,
and wiping down the tables as per the recommended cleaning proce-
dure. The Cooks and Cook Assistants are additionally required to
maintain a safe, clean, and healthy environment as delineated in their
job description which states, “Assures that all sanitation procedures
for dishwashing and cleaning are followed as required by State and
local procedures.
[H]owever I will assign to another Human Resources repre-
sentative along with someone from the Management Team
who will be able to discuss the issue with you in February.
On February 26, 2007, the Union filed a charge in Case 29–
CA–28187 that alleged inter alia that; “Since in or around a
date more than six months prior to the filing of this charge, the
above named employer . . . has failed and refused to honor or
implement the terms of a settlement agreement concerning a
grievance the Union filed regarding the cleaning duties of class-
room staff.”
In March 2007, the Union’s attorney withdrew the charge in
Case 29–CA–28187 based on his belief that the Respondent
was going to bargain over the terms of the previously described
grievance settlement and the means to implement those terms.
(As should be obvious, the grievance settlement did not fully
resolve what if any additional cleaning duties would be re-
quired of the bargaining unit employees despite an employee at
each center being allowed to work 1 overtime hour per day.)
That charge was never refiled or reinstated. And by this time,
about 4 months had passed since the Employer has announced
to its employees that they were required to do more cleaning.
Later in March 2007, the parties met to discuss dental insur-
ance and the cleaning issue. With respect to the latter, the Un-
ion’s representatives stated that its members were still being
required to do more cleaning than they should. Management
responded that they were doing the best that they could. From
the Union’s point of view, the issue remained unresolved and
the employees continued to do the extra cleaning work.
The parties met again in September 2007. At this meeting,
the Union’s representatives proposed that either (a) the Re-
spondent hire a traveling custodian to go to all of the facilities,
or (b) the Respondent increase to five, the number of days done
by the contractor, or (c) allowing two bargaining unit employ-
ees, (instead of one), to work overtime hours to do the extra
cleaning. As all of these proposals would entail additional
costs, the Respondent rejected them.
As noted above, on November 14, 2007, the Respondent is-
sued revised job descriptions for the unit employees. These job
descriptions, in unnecessary detail, essentially described the
cleaning duties that these people had been assigned to do on
and after December 4, 2006. In my opinion, these new job
descriptions put into writing and therefore merely memorialized
the extra cleaning duties that the employees had been required
to perform from December 4, 2006. Those extra cleaning as-
signments were immediately known by the Union and were the
subject of an ongoing grievance and negotiation from Decem-
ber 5, 2006, through September 2007.
B. Discussion
There is no dispute that as of December 4, 2006, the Re-
spondent caused a change in the job functions of the unit em-
ployees. This occurred because it changed its arrangement with
a cleaning contractor so that the contractor reduced the number
of days per week that it sent a cleaning employee to each Head
Start Center. When this happened, there is no dispute that the
Respondent required the bargaining unit employees, in all clas-
sifications at each center, to pitch in and do the cleaning work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
that had been done by the contractor’s employee on the days
that he no longer was present.
Except for secretaries and family advocates, who ordinarily
did no cleaning before December 4, 2006, all of the other em-
ployees did at least some cleaning either in the classroom, bath-
rooms or kitchens. But when the contractor was reduced to 1-
day-per-week, all center employees were required to do extra
cleaning work during the course of their day’s work. Thus,
while before they may have done some cleaning that was inci-
dental to their normal job functions they now had to do the
cleaning functions that had previously been done by a contrac-
tor’s employee who had been assigned to the Center.
In my opinion there was a material unilateral change made in
the terms and conditions of employment for the unit employees.
But it is also my opinion that this change occurred on Decem-
ber 4, 2006. The Union was aware of this change and it filed a
grievance on December 5, 2006. For the next 9 months there
were talks between management and union representatives on
how to deal with the change. During that time, the parties
reached what amounts to a partial grievance resolution on Janu-
ary 11, 2007. When the Union became dissatisfied with how
that turned out, it filed an unfair labor practice charge in Case
29–CA–28187 that alleged, in part, that the Company had
failed to honor or implement the grievance settlement. That
charge was timely filed with respect to the December 4, 2006
unilateral change. But it was withdrawn in March 2006, and
was not reinstated thereafter.
There were further negotiations that culminated in a meeting
on September 25, 2007. At that meeting the Union made three
alternative proposals that were rejected.
Finally, on November 14, 2007, the Respondent issued a
new set of job descriptions that stated that the bargaining unit
employees could be required to do certain specific cleaning
tasks. I really don’t understand why the Respondent’s human
resource manager felt that it was necessary to do this, but as she
did, the General Counsel alleges that these new job descriptions
constituted new unilateral changes.
It is my opinion that the job descriptions did not constitute
changes in the working conditions of the employees as they
existed on or before November 14, 2007. The real change took
place on December 4, 2006, and the November 14 document
merely memorializes the changes that had already occurred.
See Alamo Cement Co., 277 NLRB 1031 (1985).
As previously described, there is no question but that on De-
cember 4, 2006, the Respondent unilaterally changed the job
duties of bargaining unit employees by requiring them to do
more cleaning than what they had previously done. It was not
so much a question of whether a person had to use a broom or a
mop, a wet towel or a dust cloth, or take out the garbage. All of
these are more or less the same. They are simple tasks that do
not require any special skill or equipment and fall within the
general category of cleaning. What was different, in my opin-
ion, was the amount of work that was required, in that the em-
ployees, after December 4, had to divide up and do the work
that had previously been done by a contractor’s employees.
Had a charge been filed in relation to the December 4, 2006
changes, there would be no question that a complaint would
have been timely under Section 10(b) of the Act. And in fact, a
charge was filed in Case 29–CA–28187. However, that charge
was withdrawn and was never reinstated. The present case is
based on a completely different charge and this does not allege
a violation based on the change that took place in December
2006, but alleges that a unilateral change took place on No-
vember 14, 2007. However, if the November 14 change merely
memorialized the change that had already taken place on De-
cember 4, 2006, then the present charge must be barred by the
Act’s statute of limitations. See John Morrell & Co., 304
NLRB 896, 899 (1991), where the Board stated: “As a general
rule, a withdrawn charge may not be reinstated after the 6-
month period prescribed by Section 10(b).” In that case, the
Board concluded that the Employer did not engage in fraudu-
lent concealment and that the Union knew or should have
known of the evidence necessary to file a timely charge.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The complaint is dismissed.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.