E Center

National Labor Relations Board - Administrative Judge Opinions

Nov 10, 2014

20-CA-124323 (N.L.R.B. Nov. 10, 2014)

JD(SF)–55–14
Marysville, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
E-CENTER
Cases 20–CA–124323
And 20–CA–125698
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 1021, CLC
Carmen Leon, Esq., for the General Counsel.
Dennis R. Murphy, Esq.
(Murphy Austin Adams Schoenfeld), for the Respondent.
Robert E. Szykowny, Esq.
(Weinberg, Roger & Rosenfeld), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Sacramento,
California, on July 22–24, 2014, upon the Order consolidating, consolidated complaint, and
notice of hearing, as amended1 (complaint), issued on May 30, 2014, by the Regional Director
for Region 20. On July 16, 2014, the Regional Director for Region 20 issued an Order
withdrawing allegations, severing Case 20–CA–120259, Dismissing Charge in Case 20–CA–
120259, and notice of right of review. At the hearing the Charging Party stated it would not
appeal the Regional Director’s dismissal of the charge in Case 20–CA–120259.
The complaint alleges that E Center, Respondent, violated the Section 8(a)(1) and (5) of
the Act by unilaterally altering its past practice by increasing the length of spring break closure
for its Head Start facilities from 5 to 10 days, by unilaterally changing bargaining unit
employees’ health benefits and by refusing and unreasonably delaying in providing information
to the Service Employees International Union, Local 1021, CLC (Union) necessary and relevant
to the Union’s duty as collective-bargaining representative. Respondent filed a timely answer to
the complaint stating it had committed no wrongdoing.

1 At the hearing counsel for the General Counsel made technical amendments to certain numbered
paragraphs that were granted.
JD(SF)–55–14
2
FINDINGS OF FACT
Upon the entire record herein, including the briefs from counsel for the General Counsel
and Respondent, I make the following findings of fact.5
I. Jurisdiction
Respondent admitted it is a non-profit California corporation with an office and place of
business in Marysville, California, where it engages in providing services under the Federal 10
Head Start and Women, Infants and Children (WIC) programs. During the last 12 months
Respondent admitted it has received goods valued in excess of $50,000 directly from points
located outside the State of California. It admitted that it is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
15
II. Labor Organization
Respondent has stipulated2 and I find that Service Employees International Union, Local
1021, CLC is a labor organization within the meaning of Section 2(5) of the Act.
20
III. The Alleged Unfair Labor Practices
A. The issues to be resolved
This case revolves around the parties’ collective-bargaining negotiations for a successor 25
agreement to their July 1, 2009 through June 30, 2012 contract. Negotiations began in June 2012
and ended on about August 28, 2013, when the parties had tentatively agreed to all substantive
terms of a new collective-bargaining agreement. While the Union ratified the tentative
agreement on September 25, 2013, Respondent’s new CEO discovered in early October 2013,
that Respondent was operating at a significant deficit and Respondent’s board of directors failed 30
to ratify the new agreement. Respondent formally notified the Union of this decision on
November 21, 2013. Subsequently, Respondent implemented changes in the length of its spring
break in March and April 2014. Respondent also implemented changes in employee health care
benefits in April 1, 2014. Meanwhile, on February 28, 2014, the Union made an extensive
information request of Respondent that was never fully complied with. 35
General Counsel contends that the changes Respondent made in employees’ terms and
conditions of employment were without adequate notice to or bargaining with the Union and that
Respondent unreasonably delayed or failed to provide information relevant to the Union’s
collective-bargaining responsibilities, all in violation of Section 8(a)(5) of the Act.40
Respondent on the other hand argues that a fiscal crisis caused Respondent to operate at a
significant deficit and that this crisis permitted Respondent to make the changes absent an overall
impasse in bargaining under the Bottom Line Enterprises, 302 NLRB 373 (1991), and RBE
Electronics, 320 NLRB 80 (1995), exceptions, specifically where the union engages in tactics 45

2 Jt. Exh. 1.
JD(SF)–55–14
3
,
designed to delay bargaining and when economic exigencies compel prompt action. Respondent
further contends that the Union waived its right to bargain over the changes by its refusal to
bargain and by agreeing to a broad management-rights clause in the expired collective
bargaining agreement. As to the Union’s information request, Respondent argues that it was
privileged in its delay to provide and in its refusal to provide information because the request 5
was unduly burdensome, it was designed to delay bargaining and the Union failed to
accommodate Respondent’s requests to ameliorate the request.
B. The Facts
10
1. Respondent’s organization
Thomas Wagner was Respondent’s CEO until October 14, 2013. He was replaced as
CEO by Trunice Anaman-Ikyurav (Ikyurav) on October 1, 2013. Troy Bettcher (Bettcher) was
Respondent’s human resources director and Jodie Keller (Keller) was Respondent’s director of 15
Head Start. Respondent stipulated3 that Ikyurav and Bettcher are supervisors of Respondent
within the meaning of Section 2(11) of the Act and that Keller is an agent of Respondent within
the meaning of Section 2(13) of the Act. Respondent denied that Ikyurav and Bettcher are
Respondent’s agents within the meaning of Section 2(13) of the Act.
20
The record reveals that Bettcher is Respondent’s main contact in dealing with the Union
in matters including providing information requested by the Union, attending grievance meetings
with the Union and providing Respondent’s grievance responses to the Union. He is also
responsible for ensuring Respondent’s compliance with wage and hour issues and he created and
ensures compliance with Respondent’s employee handbook. Bettcher also supervises several 25
assistant human resources managers and interacts with Respondent’s board of directors, CEO,
and various department heads. Ikyurav was Respondent’s CEO from October 1, 2013 until June
14, 2014. She was the chief officer of Respondent and ultimately supervised all of its
employees. I find both Bettcher and Ikyurav are agents of Respondent within the meaning of the
Act.30
Respondent’s programs are financed by grants from the U.S. Office of Head Start. The
funds are given for the period May 1 to April 30. Under the terms of its funding grants,
Respondent is prohibited from having a deficit, overspending, or using a current year's
budget to pay balances from the prior year. Respondent also can not apply for further funds 35
from Head Start. Moreover, Respondent may not borrow funds from one program to pay for
costs of another program. The overall budget for the Migrant Head Start and regional Head
Start programs for the 2013–2014 fiscal year was $21 million.
2. Respondent’s budget deficit40
Respondent’s new CEO Ikyurav, hired on October 1, 2013, discovered in early October
2013 that by April 30, 2014, Respondent would be running a $470,000 deficit in its Head Start
and administrative budgets. Ikyurav was advised of the situation by Respondent’s financial
officer. Apparently the deficit was caused by Respondent’s budget assumptions that went into 45
its grant proposal to Head Start in January 2013 for the 2013–-2014 grant. The proposal

3 Ibid.
JD(SF)–55–14
4
assumed that Respondent would have a 7-percent rate of employee vacancy, i.e., employee
absentee rate, for which Respondent would not have to pay wages. Apparently this vacancy
rate did not materialize, resulting in the deficit. Keller, the director of Head Start said this was
not an appropriate assumption to make since Head Start requires fully staffed positions at all
times. The financial deficit in the regional Head Start program was apparently exacerbated by 5
Respondent’s past practice, which violated the terms of the Head Start grants, of having one
program borrow funds from another to balance the budgets. Upon learning of Respondent’s
financial situation the Federal Head Start officials limited Respondent’s payments to expenses
Respondent could verify. According to Ikyurav’s uncontradicted testimony, she spoke with
union representatives sometime between October 10 and the end of October 2013 and advised 10
them that Respondent was operating at a $470,000 deficit and wanted to meet. While her
October 10, 2013 email4 to Union Representative Linda Medina did not mention any specific
budgetary issues, Ikyurav’s October 14, 2013 memo5 to all employees corroborates her
testimony in that she states therein that Respondent had a $417,000 deficit.
15
3. The bargaining history with the Union
As noted above Respondent is a non-profit corporation that provides services through the
federally funded WIC, Migrant Head Start and Head Start programs in the northern California.
Respondent has had a collective-bargaining relationship with the Union since 2004, as the 20
collective bargaining representative of:
All regular employees of E Center's Head Start Programs in the following classifications:
Head Start: Bus Driver, Cook Aide, Cook, ERSEA Specialist, Family Educator, Family 25
Service Worker, Janitor, Lead Transporter, Secretary, Teacher/Family Educator, Teacher,
Teacher Aide, Teacher Assistant, Transporter, Transportation Aide.
Early Head Start: Infant Toddler Home Base Aide, Infant Toddler Family
Educator.30
Migrant Head Start: Associate Family Advocate, Associate Teacher, Bus Driver, Cook,
Cook Aide, ERSEA Specialist, Family Advocate/Family Childcare Specialist, Family
Advocate, Groundskeeper, Health and Nutrition Specialist, Secretary, Teacher Assistant,
Teacher, Transportation Aide.35
Shared: Health & Nutrition Specialist, Education/ Special Needs Specialist, Facilities
Specialist, Secretary, and Receptionist.
Since July 1, 2009, Respondent has recognized the Union as the exclusive collective-40
bargaining representative of its employees in the above-described bargaining unit and has
entered into a collective-bargaining agreement with the Union effective July 1, 2009 through
June 30, 2012.

4 R. Exh. 1.
5 R. Exh. 10.
JD(SF)–55–14
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Brian Lee (Lee) was the Union’s chief negotiator for the negotiations with Respondent
for a new collective-bargaining agreement. Linda Medina (Medina) was a field representative
for the Union and dealt with Respondent in negotiations for the new collective-bargaining
agreement and over contract enforcement issues. Chris Bolshazy (Bolshazy) was a field
representative for the Union.5
The parties engaged in collective bargaining for a successor collective-bargaining
agreement beginning in June of 2012. The parties engaged in negotiations until about
August 28, 2013. At this time the parties had reached tentative agreements on all substantive
provisions of the new contract.6 The parties next submitted the tentative agreement to the union 10
members and Respondent’s board of directors for ratification. The Union ratified the agreement
on September 25, 2013.
A series of emails7 between Ikyurav and Medina from October 31 to November 6, 2013,
reflect that the Union was seeking to get Respondent to ratify the new collective-bargaining 15
agreement and Ikyurav was seeking continued negotiations. Again Ikyurav’s testimony is
uncontradicted that in early November 2013, she spoke with Union Representative Lee and
advised him of Respondent’s budget problems. Her testimony is further supported by Medina’s
email of November 7, 2013, where she acknowledges “the economic position that E Center is
currently in.”8 In a November 21, 2013 letter to Lee, Ikyurav indicated that the board of directors 20
had refused to ratify the proposed collective-bargaining agreement and directed her to go back to
the bargaining table due to “new issues concerning our fiscal health, funding and licensing.”9
Ikyurav requested further bargaining as soon as possible.
4. Respondent’s requests to bargain about health care issues25
Ikyurav testified without contradiction by Lee, Medina, or Bolshazy that she spoke with
Medina in October 2013 by phone about ideas to reduce Respondent’s deficit including changing
health care plans and switching to the Affordable Healthcare Plan (ACA).10 In testimony11
Ikyurav said she told Lee in November 2013 Respondent needed solutions including changes to 30
health benefits and an adjustment of wages and that Lee indicated he was interested in meeting
but was not waiving his NLRB rights.12 However, no specific proposals were put forth by
Ikyurav concerning health care benefits.

6 Jt. Exh. 4.
7 R. Exh. 2.
8 R. Exh. 3.
9 R. Exh. 4.
10 Tr. pp. 353–357.
11 Ibid. at pp. 358–359.
12 On January 8, 2013, the Union filed an unfair labor practice charge in Case 20–CA–120259 with
Region 20 alleging Respondent had violated the Act by refusing to sign an agreed-upon collective-
bargaining agreement. See GC Exh. 1(a). Initially the allegations of the charge were incorporated into the
complaint herein alleging that Respondent violated Sec. 8(a)(5) of the Act in refusing to sign an agreed
upon collective-bargaining agreement. GC Exh. 1(m), pars. 7(a)-(c) and 12. Those allegations were later
dismissed on July 16, 2014, and the charges were dismissed. GC Exh. 1(t). At the hearing the Union
represented that it would not appeal the dismissal of the charge.
JD(SF)–55–14
6
I found Ikyurav to be an honest and forthright witness. She is no longer employed by
Respondent and this enhances her credibility. Her answers were responsive to all questions put to
her and her testimony was detailed and uncontradicted. I will credit her testimony.
On December 3, 2013, Respondent’s human resources director, Bettcher, emailed135
Union Chief Negotiator Lee requesting that they schedule a collective-bargaining meeting on
December 18, 2013. That same day, Lee replied by email14 stating that he would not be available
that day due to the holidays and further, the Union was still determining how to respond to
Respondent's refusal to recommend the tentative agreement to the executive board. In a
December 3, 2013 email15 Lee said he was unavailable for negotiations in December and felt 10
further negotiations were unnecessary but that he would send a formal response detailing the
Union’s position.
On December 6, 2013, Respondent's attorney, Clark Malak (Malak), emailed16 Lee and
suggested they meet for lunch. Clearly this was not a request for bargaining sessions. On 15
January 9, 2014, Malak emailed17 Lee and offered to bargain over four items including health
care benefits. The email stated in pertinent part:
E Center’s management does not want to renegotiate the entire CBA or reject all of the
tentative agreements reached. In fact, had you taken the time to meet with E Centers 20
management, you may well have discovered that not only do the current challenges
warrant making some changes but also that the changes proposed are both reasonable and
rational in light of the current challenges faced. The management team has identified
essentially only four areas where modifications are being proposed to address very
specific issues. Those four areas are the following:25
. . . .
Terminate current group healthcare plan and offer in its place employer contributions of
$500 per month for each employee to go into a qualified account (a Health Savings 30
Account or a Flexible Spending Account). Management would certainly be receptive to
suggestions for how best to disburse this monthly amount to employees in ways which
maximize its value to the employees of E Center. This is a critical proposal because of
both pressing timelines and also because of the significant impact it would have on the E
Centers budget.35
. . . . * *
Obviously, the healthcare piece is a very big issue both in terms of its fiscal impact on the
organization as well as its impact on employees. It would certainly be very helpful for the 40
union and management to meet as soon as possible to discuss how this proposal would
impact employees and what are the best ways to minimize that impact while allowing E

13 R. Exh. 5.
14 Ibid.
15 R. Exh. 5.
16 Jt. Exh. 5, p. 2.
17 Ibid at p. 1.
JD(SF)–55–14
7
Center to achieve much needed cost savings. The other parts of the proposal, I believe,
could be achieved with little pain to the employees. In fact, my understanding is that
management is proposing to adopt wage increases which are certainly not a part of the
tentative agreements previously reached.
5
As I stated above, I strongly urge you to schedule a negotiation session with management
as soon as possible to address these critical issues. Absent a response from you,
management would proceed with putting together final proposals without the union's
input, a course which I, and E Center’s management, strongly disfavor. I look forward to
your response. Thank you.10
5. The Union’s response to Respondent’s requests to bargain over health care
It appears that from late October 2013 the Union took the position that it did not have to
bargain further over terms of a collective-bargaining agreement since the parties had agreed to all 15
of the terms and conditions of a new contract. Union Representative Bolshazy confirmed this
position in his testimony that the Union did not bargain over the healthcare issues Respondent
raised because they had filed unfair labor practices with the Board over Respondent’s refusal to
sign the agreed-upon contract and it was their position “. . . that we would not be negotiating the
changes because we felt we already had a binding agreement, . . .:18 20
In an email of November 6, 2013,19 Medina advises Ikyurav that:
You can review the contract, but cannot make any changes to our contract. . . . The union
demands benefits in the contract and the date of Board members have executed as of 25
October 5th or 6th as promised. The union is prepared to file an unfair labor practice if
we do not have a fully executed contract by November 12, 2013.
Similarly Boshazy takes the position that Respondent is bound to the terms of the
agreed- upon collective-bargaining agreement in an email to Lee of November 7, 2013,2030
commenting on Ikyurav’s email disclaiming that the agreedupon terms of the new
contract were binding:
Brian, what is your take on this verbiage from EC? How do you want to respond? Is this
something we hand over to Matt? My take is to bad so sad for them. We bargained in 35
good faith for 15 months with their attorney at the table. I feel she is duty bound to take
it to the board for ratification.
The Union’s position is further confirmed in Lee’s email to Bettcher on
December 3, 2013, where he states: “As of today, the union does not agree that further 40
negotiations are necessary.”

18 Tr. at p. 226, LL. 17–-25.
19 R. Exh. 2.
20 R. Exh. 3.
JD(SF)–55–14
8
6. Respondent’s post January 2014 bargaining position
It appears that sometime after the Union filed its unfair labor practice charge on
January 9, 2014, in Case 20–CA–-120259, alleging Respondent violated Section 8(a)(5) of the
Act in refusing to sign an agree- upon collective-bargaining agreement, Respondent took the 5
position that it could not bargain with the Union until the charges were resolved. Respondent
also took the position that the management-rights clause of the expired collective- bargaining
agreement gave it the right to make changes to terms and conditions of employment. Thus, in a
March 4, 2014 email to Respondent’s management, union stewards and union representatives,
Ikyurav cites the parties’ expired 2009–2012 collective-bargaining agreement, and notes it:10
[S]tates that the actions E Center management is taking are clearly within our rights.
I have included Article 6, Management Rights from the CBA, and highlighted the areas
that the SEIU representatives have erroneously stated that we are violating.
15
Ikyurav then provides the text of article 6, management rights of the collective-bargaining
agreement.21
According to Bolshazy’s uncontradicted testimony, which is consistent with Ikyurav’s
meeting notes,22 at a February 27, 2014 union stewards’ meeting at Respondent's Chestnut Street 20
office in Marysville, California, Ikyurav stated that the meeting was not a bargaining session and
she could not bargain because of the pending unfair labor practice charges. Medina testified that
Ikyurav discussed Respondent’s budget, financial situation and healthcare. Ikyurav said new
health benefits had already been implemented for nonbargaining unit employees and that she
wanted to propose it to bargaining unit employees. Ikyurav said that she wanted to offer those 25
who did not take the Health Savings Account insurance (HSA) the option to take a $500-per
month stipend and get health coverage through their spouses or a covered California plan. In the
minutes of the February 27, 2014 meeting, Ikyurav related that she had tried to begin making
changes to health benefits in January 2014:
30
[B]ut the union and E Center did not make it to the table to begin discussion. . . Because
of the CBA, changes for the union employees cannot be made due to the lack of
negotiations.23
Consistent with Respondent’s position that it could not bargain with the Union, at this 35
meeting, Ikyurav stated that ". . . because charges were filed against E Center, both parties would
have to wait for the outcome of that decision by a party to be made before further discussions
could be made."24
Respondent continued to maintain this position as late as March 12, 2014. When Medina 40
received the new health benefits package Respondent had issued to employees, in his email25 to
Medina, Bettcher states that,

21 GC Exh. 11.
22 GC Exh. 11.
23 GC Exh. 11, CEO meeting notes at p.1.
24 R. Exh. 6, p. 3.
25 Jt. Exh. 13, p. 4.
JD(SF)–55–14
9
Since the current NLRB charge regarding the CBA is still pending, we are not able to
meet concerning this issue at this time. This information was sent out to ensure members
are able to take advantage of the Covered California option if they choose to do so.
5
This position was reiterated by Ikyurav on March 12, 2014, in an email from Ikyurav to
Bettcher in which Ikyurav stated that Medina should have understood that ". . . there will not be
any discussion regarding items that are still part of the CBA related charges because of the
NLRB charges that are still pending investigation."26
10
Once again on March 12, 2014, Ikyurav states to all regional Head Start employees that
Respondent would not bargain with the Union stating:
The NLRB charges your representatives filed about the CBA keep us from being able to
meet with your representatives until a decision has been made — by NLRB. Linda can't 15
demand to meet with us after she filed her claim — it would jeopardize the investigation,
and she knows that. I don't understand why she isn't being honest with everyone that
they waived their rights to bargain when they filed the charges. The random emails and
harassing phone calls are just a show for staff, she makes them and then tells everyone
that we won't meet or talk — despite knowing the truth that we can't meet.2720
7. The spring break closure change
In the past, Respondent has closed its Head Start facilities during the spring break for 5
days. This practice is reflected in the parties’ tentative agreement28 reached during bargaining on 25
August 28, 2013.
Respondent’s Head Start director, Keller testified, without contradiction, that in early
February 2014, she submitted a plan to Ikyurav for reducing Respondent’s deficit by scheduling
every Friday off for 5 weeks or by closing an additional 5 days during the spring break closure. 30
According to Keller, Respondent decided it would add 5 days to the spring break closure. Keller
initially said the decision to add the 5 days was made in early February then she backtracked and
said it wasn’t completely decided and that the decision was made in the latter part of February.
The evidence does not support Keller’s testimony that the decision to close was made in late
February as discussed below. I do not credit Keller’s testimony. 35
On about February 10, 2014, the Union and Respondent met at Respondent's program
administration office in Marysville, California, regarding employee layoffs. The Respondent's
representatives said that the purpose of the meeting was to reduce Respondent’s projected budget
deficit to zero as they could not have a deficit at the end of the fiscal year. At the end of this 40
meeting, Respondent gave the union representatives a draft of a memo29 to all Head Start
employees dated February 11, 2014 which states, in part:

26 Ibid at p. 3.
27 Jt. Exh. 15.
28 Jt.Exh. 4, pp. 1 & 14.
29 Jt. Exh. 7.
JD(SF)–55–14
10
E Center customarily takes 5 days off for Spring Break but the fiscal situation requires
that all Head Start sites take 10 days off for Spring Break in 2014 reducing the service
days to 128. The extended break has been shared with OHS Region 9, as well as SEIU.
The program closure dates are as follows:
5
Chico sites, (Elm, Rosedale, Chapman, and Mariposa)
March 10th-March 21st
A11 other Head Start sites
April 7th-April 18th10
Staff members in positions that do not require a substitute and have a PTO balance above
80 hours at the end of Spring Break may be asked to take additional time off. You will be
contacted by your supervisor if you will need to take additional time off.
15
Upon giving this memo to the union representatives, Keller told them that Respondent
would need an answer from the Union by February 14, 2014, as to whether they would agree to
the 10-day spring break closure rather than the traditional 5 days.
According to Bolshazy this was the first notice the Union was given about an extended 20
spring break closure. Both Bolshazy and Medina said February 14, 2014, was not enough time
to get back to their members. The parties then agreed to a telephone call on February 17, 2014,
to followup with whether the union representatives had been able to communicate with the
members. Keller told Medina that she wanted to send the draft memo out to the employees.
Both Bolshazy and Medina said Respondent should not send this letter to bargaining unit 25
employees until they had had a chance to speak with their members. Keller agreed. Keller did
not contradict either Bolshazy or Medina about the need to contact union members. I credit both
Bolshazy and Medina.
According to Keller she told the union officials at the February 10, 2014 meeting that 30
Respondent, “ . . . w as projecting that we were going to close 5 additional days at spring
break. It was clear that both Linda and Chris were not happy to hear that.”30 While Bolshazy
was unhappy he said he understood why it was necessary. Keller asked Boshazy what his
request would be if Respondent moved forward with the additional 5-day closure and he
responded, “Well I think it makes sense that you would offer the opportunity to the employees 35
to have that choice (to take time off with their PTO balance or apply for unemployment)
because you’re already taking five days from them.”31 Keller responded, “I completely agreed
with his statement and that absolutely if we moved forward that’s what I would do.” 32
According to Keller this exchange resulted in her understanding that the parties had reached an
agreement on the extended spring break. Later on February 10, 2014, Bettcher sent Medina an 40
email33 summarizing the subjects discussed earlier that day at the meeting. While he listed the
spring break closure as a matter discussed, there was nothing stated about an agreement on the
closure.

30 Tr. at p. 287, LL. 3–6.
31 Ibid at p. 288, LL. 10–12.
32 Ibid. at p. 288, LL. 14–15.
33 GC Exh. 8.
JD(SF)–55–14
11
In a February 11, 2014, email34 from Keller to Ikyurav, Keller advises she wants to send
out the above-cited February 11, 2014 memo to employees regarding the spring break closure
memo shown to Medina and Bolshazy. The text of the email states nothing about an agreement
concerning the length of the closure but confirms Medina and Bolshazy’s testimony that they 5
were seeking meetings with members to discuss the issue. In her email Keller states:
Please review the memo regarding the extension of Spring Break. If you are ok with it; I
will send it out to the staff. The union is already out telling everyone that they have a
union meeting tomorrow tonight . . . . I’d like this to go out tonight or tomorrow early if 10
possible.
Ikyurav approved the memo, with her corrections35 that same day.
On February 12, 2014, Medina met with approximately 60 union members in Yuba City, 15
California where union members showed Medina Respondent's memo36 announcing the 10-day
spring break closure.
In a February 14, 2014 email37 Medina told Bettcher that the Union did not agree with
Respondent’s proposed changes including the 10-day spring break closure and that she would be 20
filing unfair labor practice charges with the NLRB. Later that day Ikyurav replied that, "[i]f the
issue becomes that I made unilateral decisions to save E center from, complete closure, I will
hold my head high in the process."38
I credit Medina and Bolshazy’s testimony that no agreement was reached with Keller 25
regarding extending spring break an additional 5 days. Both Medina and Bolshazy testified
without contradiction that they needed additional time beyond February 17, 2014, to talk with
union members about this issue. Nothing is mentioned about such an agreement in Bettcher’s
contemporaneous memo or in Keller’s email to Ikyurav. Moreover, as soon as Medina became
aware of Respondent’s decision to close an additional 5 days, she wrote an email in protest. 30
Respondent subsequently closed different work sites across different regions impacting
about 100 employees for 10 days over a designated spring break period which fell on either
March 10 through March 21, or April 7 through April 18.39
35
8. The health care changes
The parties stipulated that the 2009–2012 collective-bargaining agreement at article 13
provided health, dental and vision benefits.40 Article 13 provided that employees could choose

34 Jt. Exh. 6.
35 Ibid.
36 Jt. Exh. 7.
37 Jt. Exh. 8, p. 3.
38 Ibid.
39 Jt. Exh. 7.
40 Jt. Exh. 1, stipulation 4.
JD(SF)–55–14
12
among insurance plans of Blue Shield PPO, Blue Shield HMO, and Blue Shield HSA.541 Article
13.3 of the contract provides that Respondent paid 100 percent of the premium for employees
and 50 percent for their dependents under the three plans.
At a February 27, 2014 meeting with union stewards to discuss, among things, health 5
insurance , Ikyurav was asked, "If the health stipend is something that needs to be negotiated,
how does this affect the union employees? If open enrollment is missed, how does this affect the
employee?" She replied, "When employees return, they qualify for open enrollment. Just as
Troy Bettcher, HR director had the letters ready for nonunion staff; he has the letters ready for
bargaining unit employees to be mailed, once the meeting is held with the Union. The turnaround 10
is tight but it can be done."42
According to Bolshazy’s uncontradicted testimony, which is consistent with Ikyurav’s
meeting notes,43 at the February 27, 2014 union stewards’ meeting Ikyurav stated that the
meeting was not a bargaining session and she could not bargain because of the pending unfair 15
labor practice charges. Medina testified that Ikyurav discussed Respondent’s budget, financial
situation, and healthcare. Ikyurav said new health benefits had already been implemented for
nonbargaining unit employees and how she wanted to propose it to bargaining unit employees.
Ikyurav said that she wanted to offer those who did not take the health savings account insurance
(HSA) the option to take a $500-per month stipend and get health coverage through their spouses 20
or a Covered California plan. In the minutes of the February 27, 2014 meeting, Ikyurav related
that she had tried to begin making changes to health benefits in January 2014, "but the union and
E Center did not make it to the table to begin discussion . . . Because of the CBA, changes for the
union employees cannot be made due to the lack of negotiations."44 In response to Union
Representative Medina's question as to the CBA, Anaman-Ikyurav stated that "because charges 25
were filed against E Center, both parties would have to wait for the outcome of that decision by a
party to be made before further discussions could be made."45
The parties stipulated46 that in a March 7, 2014 letter47 to bargaining unit employees
Bettcher set forth Respondent’s new health care options for bargaining unit employees. In the 30
letter Bettcher describes the new plans:
E Center is offering the following benefits to all bargaining staff. We are providing this
information to ensure that all staff have the opportunity to participate in our health plan . .
.35
Our health insurance carrier will continue to be Blue Shield. The Active Choice plan is
not longer available and has been replaced with a Blue Shield Plan that allows members
to open up a tax advantaged “Health Savings Account” (HSA). The second letter states
"E Center is offering the following benefits to all bargaining staff. . . The Active Choice 40

41 Jt. exh. 3.
42 GC Exh. 11, p. 2.
43 Id..
44 Id., CEO meeting notes at p.1.
45 Ibid.
46 Jt. Exh. 1, stipulation 17.
47 Jt. Exh. 12.
JD(SF)–55–14
13
plan is no longer available and has been replaced with a Blue Shield plan that allows
members to open up a tax advantage 'Health Savings Account' (HSA) . . . All current
working benefit eligible employees will need to submit either an enrollment form for
elections or changes or an Opt-Out Notice form before 03/24/14. . . .
5
In a second letter48 of March 7, 2014, Bettcher informs employees:
Due to the fiscal challenges E Center has faced in the recent past, and in an effort to plan
more effectively for the future, E Center has had to restructure our benefit options for 10
benefit eligible, bargaining staff starting with the upcoming program year. Although
these changes are a distinct shift from past years coverage options, they are indeed
necessary in order to make E Center fiscally strong to move forward.
Also included are the plan descriptions for the benefit packages E Center is now offering. 15
Among the options provided are a HSA and an “Opt-Out” option. In addition, the
premium rate for the HSA option is listed to include Dental and Vision. If you choose
not to participate in either the HSA plan, you do have the option to opt-out and receive
cash-in-lieu in the amount of $500/month (subject to payroll taxes) if you are able to
provide a letter showing you have other medical coverage.20
There is also information on Covered California, which is an option for those who choose
not to participate in E Center’s benefit plan options. Open enrollment for Covered
California is only available until March 31, 2014.
25
Respondent’s new health care plans for bargaining unit employees no longer included
Active Choice which was replaced with an HSA provided by BlueShield. In addition,
Respondent no longer provided any premium payments for bargaining unit employee
dependents.49 Employees were informed they must submit an enrollment form, elections for
changes, or an opt-out form by March 24. Migrant Head Start employees would have to make 30
their decision when their season started.
On March 11, 2014, Medina sent Ikyurav an email requesting the benefits package that
was issued to employees on March 7, 2014.50 She also provided her availability to meet.51
35
On March 11, 2014, Ikyurav sent employees an email52 in which she notifies employees
that they would be receiving their medical enrollment forms in the mail. In the email, Ikyurav
stated that, "The only difference moving forward is E Center will contribute $500 per employee
for medical costs—whether it is our current provider Blue Cross, or if an employee decides to
find insurance under the Affordable Care Act."5340

48 R. Exh. 7.
49 Jt. Exh. 12, p. 2.
50 Jt. Exh. 13.
51 Ibid.
52 Jt. Exh. 14.
53 Ibid.
JD(SF)–55–14
14
On March 12, 2014, Medina received the benefits package Respondent
previously issued to employees.54 In the email to Medina, Bettcher stated that Respondent could
not meet with the Union concerning health care because of the pending NLRB unfair labor
practice charge. That same day, Medina requested to meet and confer over the package.55 Later
that day, Ikyurav confirmed there would be no negotiations regarding health care because of the 5
pending unfair labor practice charges.56 Again on March 12, 2014, Medina replied to Bettcher
stating that she was "requesting to meet and confer on the current CBA dated July 1, 2009
through June 30, 2012, article 13.1 thru 13.4."57 Also on March 12, 2014, Union Representative
Medina sent Ikyurav an email in which Medina states that she contacted Respondent's benefits
person who had no information on the new health care plan and Medina again requested that 10
Respondent meet and confer.58
Contrary to its earlier stated position, on March 17, and again on March 18, 2014,
Bettcher emailed Medina and proposed dates to meet regarding the health benefits. Medina
accepted but she later withdrew her availability.5915
On March 28, 2014, Respondent proposed to the Union that E Center would sign off on
all the tentative agreements, if the Union would be agreeable to accept the changes to the
healthcare plan. The Union rejected the proposal and told Respondent to go back and sign the
tentative agreements as they were. 20
On April 1, Respondent provided new benefits to its employees. Bargaining unit
employees were given the option of receiving the HSA insurance benefit, or the $500-a-month
stipend.
9. The information request25
After the February 27, 2014 meeting with union stewards where Respondent’s fiscal
problems and specific health care plans were discussed, on February 28, 2014, Union
Representative Bolshazy sent Bettcher a letter60 with multiple information requests concerning
unit employees as well as requesting financial information concerning Respondent’s fiscal 30
health. General Counsel’s Exhibit 2, as redacted, reflects those portions of the Union’s
information request that the General Counsel believes were relevant and necessary to the
Union’s performance of its function as exclusive collective-bargaining representative.61 This
information was requested to verify Respondent's claims about its poor fiscal situation as well as
for information concerning Respondent’s health care plans. The relevant information requested 35
included:

54 Jt. Exh. 13, p. 4.
55 Ibid at p. 3.
56 Ibid.
57 Ibid.
58 Jt. Exh. 16.
59 Jt. Exh. 13 and GC Exh. 3.
60 Jt. Exh. 9.
61 GCExh. 2 represents an amendment to the complaint, substituting the redacted version of the
Union’s February 28, 2014 information request.
JD(SF)–55–14
15
EMPLOYEE DATA
1. Please provide the names, titles, phone numbers, home address, dates of hire and
current hourly salaries of all employees of E-Center head start to include represented,
5
2. List of any and all newly created positions for represented for the current year and
the past four (4) years.
3. List any and all newly created job descriptions for represented for the current year
and the past four (4) years and the annual fully loaded cost.10
4. Current Organizational Chart for current fiscal year and the past three years. Include
classifications and FTE.
FINANCIAL DATA15
5. List of any and all who participated in mandatory time off (MTO) (represented
6. Total salary savings for represented employees based participation in MTO.
20
IV.-EMPLOYMENT AND WAGES
1. Number of unfilled FTE's and the salary savings for current
fiscal year. Include the number of vacancies per month for the current fiscal year. Include
the salary savings for the previous four (4) fiscal years of any unfilled FTE's.25
3. Confirm the total dollar amount for each of the following for represented for the
current fiscal year and the past three fiscal years, for extra help, temporary, contracts,
merit increases, bonuses, overtime pay.
30
4. Please also include the current PTO balance and also the balance for the past three
years for represented
V. HEALTH INSURANCE
35
1. Number of employees enrolled in the current health plans for the current fiscal year
and previous three (3) fiscal years. Break out information to include, plan, type of
coverage, single, couple or family.
2. Out-of-Docket costs for represented employees in the above plans.40
4.Savings realized by E-Center from employees who opted-out of insurance.
5. Total cost if E-Center were to pay 100% of employee-only health insurance.
45
6. Total cost if E-Center were to pay 100% of employee-only dental insurance.
JD(SF)–55–14
16
IV. EMPLOYMENT AND WAGES
1. Number of -unfilled FTE's and the salary savings for current
fiscal year. Please include a list of all open funded positions and unfunded positions both
represented5
2. The COLA amount for E-Center employees to include migrant and regional from
2007 to present and please show increase to the salary schedule for each year. Total
salary savings from E-Center over the same period of time due to contract
negotiations or closures of schools, closures during winter break and spring break.10
3. Amount of overtime for represented employees for 2010-11, 2011-12 and 2012-13
and reason for overtime.
VI MISCELLANEOUS15
5. On a letter dated November 21, 2013 by the CEO, to former Field Director Brian
Lee, she states "... fiscal, licensing and fundraising parameters within which we find
ourselves." This statement can be found on paragraph number three, the first
sentence. Please provide information regarding what parameters you are referring to 20
and how they apply to SEIU bargaining unit members.
6. On an email dated Friday, February 14, 2014 from the CEO Trunice Anaman--
Ikyurab to Linda Medina, states in the first sentence of the first paragraph: "If we
don't close as proposed, we will be overspent for the program year and E-Center will 25
have to close its head start program for good because we won't be able to dig out of
the whole the program is in."
Please provide information and documentation which supports that E-Center will have
to close its head start program for good.
30
7. On the same email dated Friday, February 14, 2014 the CEO also states 'What I
have seen since I joined E-Center is that SEIU 1021 representation is equally
responsible for the fiscal mess e center is in as Tom Wagner, Moises de Costa, and
Kathy Davison." Please provide documentation and information supporting your
allegations that SEIU is equally responsible for any financial deficits that E-Center 35
is or has been currently experiencing.
9. In paragraph you Have identified as paragraph #3, the second sentence the CEO
states: The directive to eliminate the deficit by 4/30/14 came directly from Jan Len
and Martin Tom, the fiscal and program leads for Region 9, our funding source." 40
Please provide the directives) that this statement is based on.
A week later on March 6, 2014, Ikyurav responded by email62 to the Union's request for
information (RFI) refusing to provide any information, stating:
45

62 Jt. Exh. 10.
JD(SF)–55–14
17
We have forwarded your RFl to the NLRB. It has become abundantly clear that you
have absolutely no interest in working with us, exploring solutions or protecting the
interests of employees in this bargaining unit. Your outrageous RFI Is entirely outside
the scope of what we are trying to work on together and is a very transparent effort to
both bully and paralyze management from taking the steps necessary to keep this 5
organization viable. It was actually more honest and honorable when you simply
rejected our efforts to meet altogether. We will not respond to your RFI until a
reasonable RFI is sent. We will await your next ULP and we will respond accordingly.
In a May 1, 2014 email63 Bettcher replied to the information request with some of the 10
information requested and asking the relevance of other information. The responses and
information provided on May 1, 2014, were as follows:
Please explain the relevance of each item not addressed in the RFI below to SEIU
activities as they relate to E Center. We will provide information that is relevant 15
to the SEIU—represented staff, however, we don't believe that the information
requested below is relevant to any current case/actions of SEIU.
II. Employee Data
20
1. The requested for union represented staff is attached. Please explain the
relevance for the requested employee data for non-union staff information.
2. The current salary schedule for union represented staff is attached.
Please explain the relevance for the requested employee data for non-25
union staff information.
3. The union has received all newly created positions for union
represented staff at the time of creation. Per Art 2.2 of the CBA, a meet
and confer was conducted for any new classification created within the 30
last four years.
4. Please see attached for the organizational charts for Oct 2013 and March
2014. There is no record of any previous charts.
35
III. Financial Data
1. State Funding- Please explain the relevance for the requested financial
data.
40
2. Approved Budgets- Please explain the relevance for the requested
financial data.
3. Quarterly Financial reports- Please explain the relevance for the requested
financial data45

63 C Exh. 13.
JD(SF)–55–14
18
4. Internal/External audit- Please explain the relevance for the requested financial
data.
There are currently 207 Union FTEs. The current vacancy list is attached. The salaries 5
are listed in the attached compensation plan.
Items 1-11. Please explain the relevance of the requested financial data.
IV. Employment and Wages10
Items 1-4. Please explain the relevance of the employment and wage information.
V. Health Insurance
15
1. Please see attached for the current medical plan data which was
provided on Apr 10, 2014. Please explain the relevance for the requested previous
three years of information.
2. Please see attached for the 2014 union medical plan enrollment form which 20
lists the out-of-pocket costs for the HSA plan. The medical plan data sheet
provides what each individual employee is contributing.
3. Please explain the relevance for the requested information for non-
union staff.25
Items 4-6. Please explain the relevance of the requested benefit information.
VI. Miscellaneous
30
Items 1-2. Please explain the relevance of the requested miscellaneous information.
3. Please see attached for the Mar 2014 Org Chart and well as 2014 HS Staffing
Plans.
35
Items 4-8. Please explain the relevance of the requested miscellaneous information.
VII. Employment and Wages
Items 1-5. Please explain the relevance of the requested employment and wage 40
information.
VIII. Miscellaneous
1. Duplicate question.45
2. Duplicate question
JD(SF)–55–14
19
3. Duplicate question.
Items 4-9. Please explain the relevance of the requested miscellaneous
information.
5
10. The CEO sent the attached letter to the union on Nov 21, 2013 in an attempt
to discuss the issue. The union provided no response.
b. The HR Director sent the attached message to the union on Dec 3, 2013 in
attempt to discuss the issue. The union declined the request.10
c. Legal counsel for E Center sent the attached message to the union on Jan
8, 2014 in an attempt to discuss the issue. The union provided no response.
d. The union sent the attached message on Mar 12, 2014 to the HR Director 15
in attempt to discuss the issue. The HR Director responded to the request
and a date was set to meet and confer but the union later declined to meet.
Of the information the Union requested on February 28, 2014, Respondent provided the 20
Union only the names and titles of employees, the newly created positions for the current
year, the organizational chart for October 2013 and March 2014, a document for April 2014,
that listed then-current open positions, the names of employees and the health plans they had
selected for the current fiscal year, the cost of the plan for each employee without co-pays or
any other out-of-pocket expenses, the current list of positions and the hours for April 2014, 25
without the salary savings or the list of all open funded positions and unfunded positions.
C. Analysis
1. Unilateral changes30
It is well established that an employer violates Section 8(a)(5) and (1) of the Act when it
makes substantial and material unilateral changes during the course of a collective-bargaining
relationship absent impasse on matters that are mandatory subjects of bargaining. NLRB v. Katz,
369 U.S. 736 (1962). 35
However, there are limited situations in which an employer’s unilateral action may be
justified absent overall impasse. In Bottom Line Enterprises, 302 NLRB 373, 374 (1991), the
Board recognized two limited exceptions to the general rule that changes in terms and conditions
of employment may not be made absent impasse. One situation occurs when a union engages in 40
tactics designed to delay bargaining and the second exits when economic exigencies compel
prompt action. The Board has limited its definition of exigent economic circumstances 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), quoting Angelica Healthcare Services, 284 NLRB 844, 852–853 (1987). Absent a dire 45
financial emergency, the Board has held that economic events such as loss of significant
accounts or contracts, operation at a competitive disadvantage, or supply shortages do not justify
JD(SF)–55–14
20
unilateral action. The Board has similarly held that under exigent circumstances an employer
need not give notice and bargain concerning the effects of closing its operations, but has limited
its definition of such exigent circumstances to situations such as where an employer lacked funds
to continue operating and paying employees, or lost performance bonds required by law and had
the bank end the employer’s line of credit. See Your Host, Inc., 315 NLRB 295, 297 (1994).5
In RBE Electronics, 320 NLRB 80, 82 (1995), the Board expanded on Bottom Line and
explained the appropriate analysis in determining whether an employer's unilateral action is
justified by an economic exigency:
10
Thus, where we find that an employer is confronted with an economic exigency
compelling prompt action short of the type relieving the employer of its obligation to
bargain entirely, we will hold under the Bottom Line Enterprises exigency exception,
as further explicated here, that the employer will satisfy its statutory obligation by
providing the union with adequate notice and an opportunity to bargain. In that event, 15
consistent with established Board law in situations where negotiations are not in
progress, the employer can act unilaterally if either the union waives its right to
bargain or the parties reach impasse on the matter proposed for change.
Consistent with the requirement that an employer prove that its proposed changes were 20
‘‘compelled,’’ the employer must additionally demonstrate
that the exigency was caused by external events, was beyond the employer’s control,
or was not reasonably foreseeable.
a. The extended spring break closure25
Respondent does not dispute that it made changes to employee terms and conditions of
employment by changing health care benefits and increasing the duration of spring break.
Moreover, it is clear that the extension of the spring break was a mandatory subject of
bargaining. Gannett Rochester Newspapers, 319 NLRB 215 (1995). However, Respondent 30
contends that it was compelled by economic exigency to make changes in the duration of its
spring break and to its employee health care plans. It argues further that the Union waived its
right to bargain over the spring break closure by refusing to request bargaining when it had
notice of the proposed change and by means of the management-rights clause in the expired
collective-bargaining agreement.35
General Counsel argues that Respondent failed to give the Union notice of the change to
a ten day spring break closure, that the Union did not agree to the ten day spring break closure,
and that Respondent cannot meet its burden to show that economic exigency justified the
unilateral ten day spring break closure.40
i. Notice to the Union of the extended spring break closure
The record reflects that the Union first received notice of a proposed extended
spring break closure on about February 10, 2014, when Keller gave the union 45
representatives a copy of a proposed letter to bargaining unit employees advising them of
the additional 5 days Respondent would be closed for spring break. While telling the
Union it had 5 days to respond to this change, Respondent in fact sent the notice to
JD(SF)–55–14
21
employees the following day in the absence of any agreement by the Union to the change.
While Respondent argues the change was not implemented until March 10, 2014, it is
clear from the text of the letter that it had decided to make the change when the letter was
sent to unit employees on February 11:
5
E Center customarily takes 5 days off for Spring Break but the fiscal situation requires
that all Head Start sites take 10 days off for Spring Break in 2014 reducing the service
days to 128.
The extended break has been shared with OHS Region 9, as well as SEIU. The 10
program closure dates are as follows:
Chico sites,(Elm, Rosedale, Chapman, and Mariposa)
March 10th-March 21st
15
All other Head Start sites
April 7th-April 18th
This notice was not timely as it did not give the Union a reasonable opportunity to
bargain. Moreover, it appears that at the time the Union first received notice of this change, 20
Respondent has already made the decision to extend spring break from 5 to 10 days. Here the
record shows that Respondent had no intention of bargaining about this subject and did nothing
more than inform the Union of a fait accompli. Intersystems Design Corp., 278 NLRB 759
(1986).
25
ii. Economic exigency
Respondent contends that it was compelled by economic exigency to make the unilateral
change to the length of spring break. In either the Bottom Line or the RBE test, to avoid its
obligation to bargain to impasse Respondent must show that the economic exigency was caused 30
by external events, was beyond its control, or was not reasonably foreseeable. Respondent is
unable to establish these circumstances. It is clear that Respondent’s own mismanagement of its
budgetary process caused its economic dilemma. In making its grant proposals to Head Start in
2013, Respondent made faulty and inappropriate assumptions regarding absenteeism that created
its deficit. Moreover, its past illegal practice of sharing funds among its programs caused lax 35
oversight of its budgets and further contributed to its fiscal problems. Thus, the record is clear
that the budget shortfall in the Head Start program was not caused by an external event but was
self inflicted, within its own control and therefore foreseeable. I find that the first exception of
Bottom Line has not been established by Respondent. A similar conclusion was reached in
Hartford Head Start Agency, 354 NLRB 164, 185–188 (2009), where the Respondent argued 40
that a shortfall of funds caused by a change from the funding source was unforeseen.
iii. Delays in bargaining
Respondent also argues that the second exception under Bottom Line applies because the 45
Union engaged in tactics designed to delay bargaining. I conclude, contrary to Respondent’s
assertion, that the facts herein do not meet the standard for pronounced delays and obstruction
necessary to establish this exception.
JD(SF)–55–14
22
In M&M Contractors, 262 NLRB 1472 (1982), the Board held the employer was relieved
of its obligation to bargain to impasse where it had given the union 5 days’ notice of proposed
changes but the union had already refused to agree to schedule bargaining sessions with the
employer for over seven months. The Board held that ordinarily 5 days’ notice would be 5
insufficient notice to the union. However, in view of the union’s intransigence in scheduling
bargaining for over 7 months, the Board found the 5-day notice sufficient. In AAA Motor Lines,
215 NLRB 793, 794 (1974), the union refused to meet for a period of 2-1/2 and months after
demand for bargaining and notice to the union of the employer’s proposed changes prior to the
contract’s expiration. Under these circumstances the Board found the employer did not violate 10
the Act in unilaterally implementing changes to its employees’ terms and conditions of
employment.
Here the record reflects that by August 28, 2013, the parties had reached tentative
agreements on all provisions of a new contract. The Union ratified the agreement on September 15
25, 2013, but based upon Ikyurav’s recommendation, Respondent failed to ratify the tentative
agreement. It was not until November 21, 2013, that Ikyurav indicated that the board of directors
had refused to ratify the proposed collective-bargaining agreement and directed her to go back to
the bargaining table. Ikyurav requested further bargaining as soon as possible. From October 31,
2013 to at least November 6, 2013, the Union sought Respondent’s ratification of the new 20
collective- bargaining agreement. The Union’s position from October 2013, until at least July
16, 2014, was that it did not have to bargain further over terms of a collective -bargaining
agreement since the parties had agreed to a new contract. Region 20 agreed with this position,
issuing complaint on May 30, 2014, alleging Respondent violated Section 8(a)(5) of the Act by
refusing to execute the tentative collective-bargaining agreement. It was not until July 16, 2014, 25
6 days before the trial herein commenced, that the Region dismissed this allegation. While the
Union delayed in bargaining with Respondent over the issues of health care benefits, its position
was not unreasonable, particularly given the Region’s issuance of a complaint alleging
Respondent violated Section 8(a)(5) of the Act by refusing to sign the tentative contract.
30
Respondent’s first request for bargaining over health care issues occurred sometime in
November 2013, when Ikyurav told Lee she was requesting further bargaining over health issues
while the issue of signing the tentative agreement was still undecided. On December 3, 2013,
Respondent’s human resources director, Bettcher, requested that the parties schedule a
collective-bargaining meeting on December 18, 2013. On January 9, 2014, Respondent's 35
attorney, Clark Malak, offered to bargain over four items including health care benefits.
However, Malak’s January 9, 2014 letter was not a notice of any changes Respondent proposed.
Indeed, his letter constituted preliminary discussion points and he indicated that final proposals
would be forthcoming if the Union did not agree to bargain. Moreover, his letter did not mention
spring break changes.40
However, commencing in January 2014, after the Union filed the charge in Case 20–CA–
120259 on January 8, 2013, alleging Respondent had violated the Act by refusing to sign an
agreed-upon collective-bargaining agreement, Respondent changed its position and refused to
bargain with the Union pending the outcome of the unfair labor practice investigation.45
With respect to the spring break closure, there is no evidence that Respondent ever
requested bargaining over the length of spring break. It was not until February 10, 2014, that
JD(SF)–55–14
23
Respondent gave the Union notice of its plans to lengthen spring break from 5 to 10 days. By
this time Respondent was refusing to bargain with the Union over terms and conditions of
employment due to the Union’s filing of unfair labor practice charges. The Union protested the
short notice and demanded until February 17, 2014, to speak with its members about this
proposed change. As noted above, no agreement was reached by the parties concerning the 5
length of spring break on February 10. Contrary to the Union’s request, on February 11, 2014,
Respondent gave notice to its employees that it intended to make the change to the length of the
spring break. The Union was presented with a fait accompli without adequate notice to bargain.
Based upon Respondent’s position at the time, it had no intent to bargain with the Union as
stated in numerous emails from Respondent’s management. Johns-Manville Sales Corp., 282 10
NLRB 182 (1986).
Under all of these circumstances, I find that Respondent has failed to establish that there
was unreasonable delay by the Union in bargaining over the issue of either health benefits or the
length of spring break. M&M and AAA are distinguishable. In neither case did the unions 15
maintain a good-faith basis for their refusal to bargain. In neither case did the employers
themselves refuse to bargain over their proposals. Further the length of time in M&M and AAA
in which the unions refused to meet and bargain substantially exceeded the period of time
involved in this case in which the Union would not bargain over terms of a new contract. Indeed
the Union had already engaged in good-faith bargaining for over a year that they felt resulted in a 20
binding agreement.
iv. Waiver
Contrary to Respondent’s assertions, the Union did not waive its right to bargain over 25
changes to the spring break closure as a result of the management-rights clause in the expired
collective-bargaining agreement. The management-rights clause provided:
MANGEMENTS RIGHTS
30
ARTICLE 6
6.1 The Union hereby recognizes the prerogative of the Agency to operate and manage its
service delivery, operations, and responsibilities according to its determination. As the
employer in this contract, the Agency retains all of the functions, rights, powers, or 35
authority not specifically abridged, delegated or modified by this Agreement. By way
of illustration and not by way of limitation, the Agency shall have the right to:
. . . .40
6.1.2 D irect the work of all of its personnel; determine the number of shifts and hours of
work and starting times and scheduling of all the foregoing. Further, it shall
maintain the right to establish, modify or change any work or business
hours or days.64
45

64 GC exh. 11, p. 2.
JD(SF)–55–14
24
Initially, a waiver by a union of its right to bargain over mandatory subjects must be clear
and explicit. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). More significantly, a
management rights clause does not survive contract expiration, absent the parties’ intent to the
contrary, since it is not a term or condition of employment. Here there is no evidence that any
such waiver in that clause was intended to survive the contract. Control Services, 303 NLRB 5
481 (1991). Since this contract provision did not survive the contract expiration, it cannot
constitute a waiver of the Union’s right to bargain over Respondent’s change in the length of
spring break.
Respondent’s citations to Haddon Craftsmen, 300 NLRB 789, 790, 971 (1990), and10
Jim Walter Resources, Inc., 289 NLRB 1441 (1988), are inapposite. In Haddon, the
employer notified the Union of a proposed reclassification in mid-April. Not until June 6,
did the Union protest the proposed change. Here unlike Haddon, it is clear from the
language of the notice to employees issued on February 11, 2014, that Respondent intended
to make changes to the spring break forthwith. Moreover, as noted above, Respondent 15
refused to bargain about this or any other mandatory subject of bargaining during this period
of time.
I find that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing an extended spring break.20
b. Health care
It is well established that employee health benefits are a mandatory subject of bargaining.
KSM Industries, Inc., 336 NLRB 133, 134-135 (2012).
25
Respondent contends that the Bottom Line exceptions, economic exigency and the
Union’s tactics designed to delays in bargaining, allowed it to make unilateral changes in the
health care benefits of bargaining unit employees absent impasse. It argues further that the
Union waived its right to bargain over the health care changes by refusing to request bargaining
when it had notice of the proposed change.30
General Counsel argues that Respondent did not give the Union notice of its change to
bargaining unit employees' health benefits but informed the Union of its fait
accompli and that the Union did not waive its right to bargain over healthcare benefits because
Respondent did not afford the Union a meaningful opportunity to bargain.35
i. Notice to the Union of changes to the health care plan
While Respondent may have requested bargaining over health care issues as early as
November 2014 and made proposals in Attorney Malak’s letter of January 9, 2014, Respondent 40
never notified the Union that it intended to implement these proposals.
In the February 27, 2014 union stewards’ meeting Ikyurav did not give the Union notice
of the proposed changes in Respondent’s health care benefits. The minutes of the meeting reflect
that she made reference to some changes but the specifics of the changes were not set forth until 45
JD(SF)–55–14
25
Bettcher’s March 7, 2014 letter65 to bargaining unit employees advising that they must submit an
enrollment form, elections for changes, or an opt-out form by March 24. March 7, 2014, was
the first notice the Union had of Respondent’s proposed changes to the health care plans for unit
employees.
5
In the February 27 meeting, Ikyurav made it clear that the meeting was not a bargaining
session and she could not bargain because of the pending unfair labor practice charges. In
response to Union Representative Medina's question as to the CBA, Anaman-Ikyurav stated that
"because charges were filed against E Center, both parties would have to wait for the outcome of
that decision by a party to be made before further discussions could be made." 10
After receiving notice of the new health care plans, on March 11, 2014, Medina sent
Ikyurav an email requesting the benefits package that was issued to employees on March 7, and
provided her availability to meet. On March 12, 2014, Bettcher told Medina that they could not
bargain about the health care benefits due to the, “current NLRB charge regarding the CBA.” 15
Nevertheless, Medina again requested bargaining over the health care plan. While on March 17,
and 18, Bettcher emailed Medina about proposed dates to meet regarding the health benefits,
Medina accepted but she later withdrew her availability. On April 1, Respondent provided new
benefits to its employees.
20
ii. Economic exigency
As discussed above, Respondent has failed to establish that economic exigency warranted
its implementation of the new health care benefits under the Bottom Line exception.
Respondent’s mismanagement of its budgetary process caused its economic dilemma. The 25
budget shortfall in Respondent’s Head Start program was not caused by an external event but
was self inflicted, within its own control and therefore foreseeable. I find that the first exception
of Bottom Line has not been established by Respondent in implementing the new health care
benefits for bargaining unit employees. Hartford Head Start Agency, 354 NLRB 164, 185–188
(2009). 30
iii. Delay in bargaining
Likewise, for the reasons set forth above I find that Respondent has not established that
the Union engaged in tactics designed to delay bargaining. Moreover, by the time that the Union
received notice from Respondent of the changes it intended to make to the health care plans, 35
Respondent itself was refusing to bargain over this mandatory subject of bargaining until the
Union’s unfair labor practice charges were resolved. Respondent had no intent of bargaining
over health care with the Union and it is clear from the language of Bettcher’s March 7, 2014
letters notifying employees of the health care changes that Respondent intended to implement the
changes at that time. The Union was faced with a fait accompli excusing any demand for 40
bargaining. National Steel & Shipbuilding Co., 348 NLRB 320, 324 (2006).
iv. Waiver
For similar reasons, Respondent’s argument that the Union waived its right to bargain 45
over the health care changes fails. As discussed above, the Union cannot be found to have

65 Respondent’s exhibit 7, joint exhibit 12.
JD(SF)–55–14
26
waived bargaining where it did not receive clear and timely notice, nor can it be found to have
waived bargaining by failing to pursue negotiations over changes that were presented as a fait
accompli. Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023 (2001). Here, the Union first
received notice of Respondent’s specific plans to implement health care benefits changes on
March 7, 2014. The Union immediately demanded bargaining but Respondent made it clear it 5
had no intention of bargaining over this mandatory subject. Tesoro Refining & Marketing Co.,
360 NLRB No. 46, slip op. at ___fn. 10 (2014).
Moreover, by March 7, 2014, and as late as April 1, 2014, Respondent had failed to
respond to the Union’s February 28, 2014, information request for information dealing with 10
health benefits. In fact Respondent never provided information on much of the Union’s request
for information on health care benefits. By refusing to provide necessary and relevant
information regarding health benefits Respondent failed to provide the Union a meaningful
opportunity to bargain. Absent an opportunity to bargain, there is no basis to find waiver.
Coalite, Inc., 278 NLRB 293 (1986).15
I find that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing changes to bargaining unit employees’ health care plans.
2. Information requests20
An employer has an obligation to furnish relevant information to collective bargaining
representatives during bargaining and in labor-management relations during the term of an
agreement. NLRB v. Truitt Mfg. Co., 351 US 149 (1956); NLRB v. Acme Industrial Co., 385 US
432 (1967). 25
Information concerning bargaining unit employees’ terms and conditions of employment
is presumptively relevant and the employer has the burden of proving lack of relevance. AK Steel
Co., 324 NLRB 173 (1997). However, the union has the burden of showing relevance of
information concerning non unit employees. National Grid USA Service. Co., 348 NLRB 1235, 30
1235, 1242–1243 fn.1 (2006). The Board has held, "that burden is not exceptionally heavy."
Duquesne Light Co., 306 NLRB 1042, 1042–1044 (1992).
General Counsel contends that the information requested by the Union was relevant and
necessary to the Union’s role as collective-bargaining representative. General Counsel also 35
contends that Respondent's replies on May 1, 2014, were deficient where it requested the
relevance of the information because this information was either presumptively relevant or the
relevance was established by the Union within its February 28, 2014 request.
Respondent takes the position that its refusal to provide information about new hires was40
lawful because the request made it clear that the information was intended to assist the Union
in a pending unfair labor practice complaint. Respondent also contends that compliance was
not required because the purpose of the information request was delay and the request for
information was unduly burdensome.
45
In the instant case the Union’s February 28, 2014 information request asked for
information including:
JD(SF)–55–14
27
[N]ames, titles, phone numbers, home addresses, dates of hire, and current hourly salaries
employees; newly created job descriptions and positions for the past four years and
annual costs; organizational chart for current fiscal year and past three years with
classifications and FTE; total dollar amount for the past three years for extra help, 5
temporary, contract, merit increases, bonuses, overtime pay; paid time off balance for the
current and past three years; number of employees enrolled in the current health plans for
the current and previous three years; list of all who participated in mandatory time off;
total salary savings to Respondent for participation in mandatory time off; number of
unfilled FTE and salary savings, number of vacancies per month for current fiscal year 10
and salary savings for the previous four fiscal years for unfilled FTE’s; out of pocket
costs for the plans selected; savings from employees who opted-out of insurance; total
cost of paying 100% of employee-only health insurance and dental; number of unfilled
FTEs and salary savings for the current year; COLA amount from 2007 to the present;
and amount of overtime 2010-2013.15
Some of these requests dealt with bargaining unit employees’ terms and conditions of
employment and were presumptively relevant. Some of the information requested dealt with
non-bargaining unit employees. Given Respondent’s position that it was claiming poverty, all
of this information was relevant to establishing the credibility and validity of Respondent’s 20
claim.
There were also requests to verify the basis for statements made by Respondent’s
managers claiming Respondent was in fiscal trouble. Based upon Respondent’s claim of
poverty, this information was also relevant to determining the validity of these claims. 25
On March 6, 2014, Respondent initially refused to provide any information. In its
May 1, 2014 response Respondent failed to provide the phone numbers, home address, dates of
hire, and hourly salaries of bargaining unit employees; newly created positions within the
bargaining unit for the past 4 years; list of all employees who participated in mandatory time off 30
programs, and salary savings for employees who participated in mandatory time off programs;
vacancies per month for the past 4 years and any salary savings; dollar amount for the past 3
years for temporary, contracts, merit increases, bonuses, and overtime pay; the current and past 3
years' PTO balance; number of employees enrolled in the current health plan for the current and
past 3 years; out of pocket costs for these plans; savings for employees who opted out of 35
insurance; total cost for 100-percentemployer paid health and dental; salary savings and open
funded and unfunded positions; the COLA amount for 2007 to the present, total salary savings
due to contract negotiations, or winter and spring break closures; and amount of overtime from
2010 to 2013 and reason for overtime for bargaining unit employees.
40
The information provided by Respondent on May 1, 2014, included:
[N]ewly created positions for the current year; the organizational chart for October 2013
and March 2014; current open positions; names of employees and the health plans they
had selected for the current fiscal year; the cost of the plan for each employee without co-45
pays or any other out-of-pocket expenses; the current list of positions and the hours for
April 2014, without the salary savings or the list of all open funded positions and
unfunded positions.
JD(SF)–55–14
28
With much of the information requested Respondent’s response was, “please explain the
relevance of the information requested.” Respondent’s position cannot be considered a request
for an accommodation from the Union since it merely questions the relevance of the information
sought. As noted above, all of the information was either presumptively relevant or was made5
relevant by Respondent’s claim of poverty.
Not only must an employer furnish relevant information it must do so in a timely manner.
An unreasonable delay in furnishing information is a violation of Section 8(a)(5) of the Act.
Iron Tiger Logistics, Inc., 359 NLRB No. 13, slip op. at 2 (2012); Woodland Clinic, 335 NLRB 10
735, 736 (2006).
The Board considers the totality of the circumstances in determining whether an
employer has unlawfully delayed in responding to an information request, including the
complexity and extent of information sought, its availability, and the difficulty in retrieving the 15
information. West Penn Power Co., 339 NLRB 585, 587 (2003), enfd. in pertinent part 394 F.3d
233 (4th Cir. 2005); Postal Service, 359 NLRB No. 4, slip op. at 2–3 (2012); Postal Service, 308
NLRB 547, 551 (1992).
Here, after the Union's February 28, 2014 request for information, Respondent on 20
March 6, 2014, refused to provide any information. It was not until after the Union filed an
unfair labor practice charge on April 1, 2014, that Respondent provided any response to the
Union on May 1, 2014. The Respondent's response came 2 months after the initial request and
after Respondent's unilateral changes to health benefits took effect. Therefore, based on the
absence of evidence that Respondent made a reasonable good-faith effort to promptly respond to 25
the Union, Respondent unlawfully delayed in providing the information in violation of the Act.
Respondent contends that it had no obligation to provide information to the Union
because the information request was designed as a vehicle for discovery during the pendency of
the Boards pending unfair labor practice cases herein.30
In Unbelievable, Inc., 318 NLRB 857, 877 (1995), the Board affirmed Administrative
Law Judge (ALJ) James Kennedy who found that the employer's refusal to provide information
about new hires was lawful despite the request being for presumptively relevant information.
In Unbelievable the General Counsel’s complaint alleged a violation of Section 8(a)(5) and (1) of 35
the Act in the Respondent’s refusal to utilize the contractual hiring hall. The ALJ concluded that
given the timing of the Teamsters demand for information regarding new hires, coming in
January 1991, about 2 weeks after the complaint issued alleging hiring hall violations, it is clear
that the request for information was indeed aimed to assist the Teamsters and the General
Counsel in the presentation of evidence relating to the complaint. The ALJ concluded: 40
The Board has recently held that even if the material sought would have been producible
for collective-bargaining or representational purposes, it is not producible as a substitute
for discovery. Union-Tribune Publishing Co., 307 NLRB 25 (1992), It is well established
that the Board’s procedures do not include prehearing discovery. Accordingly, when 45
information is sought that relates to a pending 8(a)(3) charge, the Board generally will not
find that a refusal to provide that information violates Section 8(a)(5). Any other rule
JD(SF)–55–14
29
would, in effect, impose a discovery requirement where none otherwise exists. See, e.g.,
WXON-TV, 289 NLRB 615, 617, 618 (1988).
Union-Tribune Publishing Co., 307 NLRB 25, 26 (1992), is a case involving unfair labor
practice charges alleging that the employer violated Section 8(a)(3) of the Act by terminating its 5
employee. Those charges were still pending in November when the discriminatee was
suspended and then terminated. When the discriminatee asked the Respondent for information
relating to her suspension and discharge, the Respondent refused, citing the pending charges.
The Board noted that the judge found the suspension and discharge to have been unlawfully
motivated, in part because of the Respondent’s refusal to confront the discriminate at trial with 10
the requested information. The Board held that while such an inference normally would be
justified, it was improper in the circumstances of this case. The Board held that the Board’s
procedures do not include prehearing discovery and when information is sought that relates to a
pending 8(a)(3) charge, the Board generally will not find that a refusal to provide that
information violates Section 8(a)(5). The Board reasoned that any other rule would, in effect, 15
impose a discovery requirement where none otherwise exists citing WXON-TV, 289 NLRB 615,
617, 618 (1988).
In WXON-TV, 289 NLRB 615, 617–618 (1988), it was alleged that the employer violated
Section 8(a)(5) of the Act by unilaterally eliminating its production department without 20
bargaining with the Union, resulting in the layoff of three bargaining unit employees. The judge
found that the failure to bargain over this decision violated Section 8(a)(5) and (1) of the Act.
The Union requested certain information from the employer concerning the reasons for the
termination of the bargaining unit employees, documents referring to that decision, the status of
in-house production work, the status of public service broadcasting spots, production service 25
subcontracting, duties of the chief operator and bargaining unit work being performed by
supervisory personnel. The next day the Union filed the unfair labor practice charge alleging
that the Respondent violated Section 8(a)(5), (3), and (1) by unilaterally changing terms and
conditions of employment of bargaining unit employees, assigning quasi-supervisory duties to
unit employees, terminating and discriminating against employees, and refusing to provide 30
requested information. The Board found no violation of Section 8(a)(5) of the Act holding that
the Union’s information request in the facts of this case, “was akin to a discovery device
pertinent to its pursuit of the unfair labor practice charge rather than to its duties as collective-
bargaining representative. Huck Mfg. Co., 254 NLRB 739, 755 (1981); American Oil Co., 171
NLRB 1180, 1188 (1968).”35
In Unbelievable, Union-Tribune or WXON, the information request called for information
that went to the substance of the charges filed or the complaint issued. The Board found that this
amounted to improper discovery in a Board proceeding. Here, the information request was not
for the purpose of assisting the General Counsel in an unfair labor practice investigation or trial. 40
The nature of the charges and the complaint allegations herein is that Respondent failed to
provide relevant and necessary information and that Respondent made unilateral changes to
terms and conditions of employment. No part of the information request goes to the allegations
of unilateral changes. The information requested cannot help to establish that Respondent
violated the Act by refusing to supply information, rather General Counsel must show that the 45
information was requested, that it was relevant and necessary to the Union’s obligation as
collective-bargaining representative and that Respondent refused or unreasonably delayed in
furnishing the requested information. Nor does the requested information assist in establishing
JD(SF)–55–14
30
the elements of a unilateral change. None of these elements of the violation are supported by the
information request and therefore the information request does not constitute improper discovery
in a Board proceeding.
Respondent’s defense that compliance with the information request was not required 5
because the purpose of the request was delay is not supported by the evidence. Respondent’s
reliance on ACF Industries, LLC, 347 NLRB 1040, 1042–1043 (2006), is misplaced. The Board
in AFC concluded that the facts established that the union’s information request was made for
the purpose of forestalling implementation of the employers’ final offer after 2 months of
negotiations and 3days before the Respondent implemented its final offer. 10
Here, the Union’s information request was made when Respondent had pled poverty,
before Respondent notified the Union of its plan to change employees’ health benefits, absent
any evidence of impasse, when Respondent had failed to bargain over the changes to the spring
break or the health care benefits and in the absence of a showing of economic exigency by 15
Respondent. Under these facts, I cannot conclude that the Union’s information request was
made for the purpose of forestalling bargaining.
Respondent also argues that the information request was unduly burdensome and
provided no time for compliance, citing Safeway Stores, Inc. v. NLRB 691 F.2d 953, 956 20
(10th Cir.1982). Safeway Stores does not support Respondent’s contention. In Safeway
Stores, the Court, in agreement with the Board, held that the union’s information request was
not burdensome. However in Mission Foods, 345 NLRB 788 (2005), the Board held that the
respondent in claiming an information request overly broad and unduly burdensome to produce,
had the obligation to raise, at the time of the request, any issue concerning the possible burden of 25
complying with the Union’s request, citing with approval Honda of Hayward, 314 NLRB at 450,
citing Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 353 fn. 6 (D.C. Cir. 1983). The Court in
Local 6-418 held that if a party, “does wish to assert that a request for information is too
burdensome, this must be done at the time information is requested, and not for the first time
during the unfair labor practice proceeding.”30
In addition, the Board has held that “an employer may not simply refuse to comply with
an ambiguous or overbroad information request, but must request clarification or comply with
the request to the extent that it encompasses necessary and relevant information.” Superior
Protection Inc., 341 NLRB 267, 269 (2004), enfd. 401F.3d 282 (5th Cir. 2005). Streicher Mobile 35
Fueling, Inc., 340 NLRB 994, 995 (2003), affd. 138 Fed. Appx. 128, 2005 WL 1395063 (11th
Cir. 2005) (unpublished). No such request was made here. As noted above, Respondent merely
questioned the relevance of information that was presumptively relevant or made relevant by
Respondent’s claim of poverty.
40
Further, although the Board and courts have held that there are some acceptable limits on
information requests that would otherwise entail an undue burden, the onus is on the employer to
show that production of the data would be unduly burdensome, and to offer to cooperate with the
union in reaching a mutually acceptable accommodation. Yeshiva University, 315 NLRB 1245,
1248 (1994); U.S. Testing Co. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998); Soule Glass & 45
Glazing Co. v. NLRB, 652 F.2d 1055, 1094 (1st Cir. 1981), abrogated on other grounds NLRB v.
Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 fn. 7 (1990).
JD(SF)–55–14
31
Here, the Respondent has failed to proffer any evidence in support of its assertion that the
information requests would be unduly burdensome, and there is no evidence that it has made any
effort to reach a mutually acceptable accommodation with the Union. Accordingly, I find that
the assertion that the information request was overbroad and burdensome does not excuse the 5
Respondent’s failure to comply with the request.
Accordingly, I find that Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to furnish the Union with information and in unreasonably delaying the furnishing of
information from March 3 to May 1, 2014.10
CONCLUSIONS OF LAW
1. Respondent E Center is an employer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7) of the Act. 15
2. Service Employees International Union, Local 1021, CLC (Union), is a labor
organization within the meaning of Section 2(5) of the Act and is the exclusive collective-
bargaining representative of Respondent’s employees in the following appropriate collective-
bargaining unit:20
All regular employees of E Center's Head Start Programs in the following
classifications:
Head Start: Bus Driver, Cook Aide, Cook, ERSEA Specialist, Family Educator, 25
Family Service Worker, Janitor, Lead Transporter, Secretary, Teacher/Family
Educator, Teacher, Teacher Aide, Teacher Assistant, Transporter, Transportation
Aide.
Early Head Start: Infant Toddler Home Base Aide, Infant Toddler Family 30
Educator.
Migrant Head Start: Associate Family Advocate, Associate Teacher, Bus Driver,
Cook, Cook Aide, ERSEA Specialist, Family Advocate/Family Childcare
Specialist, Family Advocate, Groundskeeper, Health and Nutrition Specialist, 35
Secretary, Teacher Assistant, Teacher, Transportation Aide.
Shared: Health & Nutrition Specialist, Education/ Special Needs Specialist,
Facilities Specialist, Secretary, and Receptionist.
40
3. By engaging in the following conduct, the Respondent committed unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act:
a. Unilaterally changing bargaining unit employees’ spring break from 5 to 10 days.
45
b. Unilaterally changing bargain unit employees’ health care benefits.
JD(SF)–55–14
32
c. Refusing to provide and unreasonably delaying in providing the Union with
information relevant and necessary to its function as collective bargaining representative of
bargaining unit employees.
REMEDY5
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such 10
means. J. Picini Flooring, 356 NLRB No. 8 (2010).
The Board has held that discriminatees be reimbursed for any excess taxes owed as a
result of a lump-sum backpay award and that Respondent be ordered to complete the
appropriate paperwork as set forth in IRS Publication 975 to notify the Social Security 15
Administration what periods to which the backpay should be allocated as requested in the
remedy section of the complaint herein.
In Don Chavas, LLC d/b/aTortillas Don Chavas, 361 NLRB No. 10 (2014), Board
ordered that it will routinely require the filing of a report with the Social Security Administration 20
allocating backpay awards to the appropriate calendar quarters. The Board also held that it will
routinely require respondents to compensate employees for the adverse tax consequences of
receiving one or more lump-sum backpay awards covering periods longer than 1 year. The Board
concluded that it is the General Counsel’s burden to prove and quantify the extent of any adverse
tax consequences resulting from the lump-sum backpay award and that such matters shall be 25
resolved in compliance proceedings.
Pursuant to Tortillas Dan Chavas, I will order that Respondent shall file a report with the
Social Security Administration allocating any backpay awards to the appropriate calendar
quarters. 30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.66
ORDER
35
Respondent, E Center, Marysville, California, its officers, agents, successors, and
assigns shall
1. Cease and desist from
40
(a) Refusing to bargain in good faith with Service Employees International
Union, Local 1021, CLC as the exclusive collective-bargaining representative of its
employees in the following collective-bargaining unit:

66 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 shall be waived for all purposes.
JD(SF)–55–14
33
All regular employees of E Center's Head Start Programs in the following
classifications:
Head Start: Bus Driver, Cook Aide, Cook, ERSEA Specialist, Family Educator, 5
Family Service Worker, Janitor, Lead Transporter, Secretary, Teacher/Family
Educator, Teacher, Teacher Aide, Teacher Assistant, Transporter, Transportation
Aide.
Early Head Start: Infant Toddler Home Base Aide, Infant Toddler Family Educator.10
Migrant Head Start: Associate Family Advocate, Associate Teacher, Bus Driver,
Cook, Cook Aide, ERSEA Specialist, Family Advocate/Family Childcare
Specialist, Family Advocate, Groundskeeper, Health and Nutrition Specialist,
Secretary, Teacher Assistant, Teacher, Transportation Aide.15
Shared: Health & Nutrition Specialist, Education/ Special Needs Specialist,
Facilities Specialist, Secretary, Receptionist.
(b) Unilaterally and without bargaining with the Union:20
Changing its spring break closure from 5 to 10 days.
Changing its bargaining unit employees’ health care plan.
(c) Refusing to provide and unreasonably delaying in providing information to the 25
Union that is relevant and necessary to its function as collective bargaining representative of
bargaining unit employees.
(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.30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) At the request of the Union rescind the extended spring break period of 10 days.35
(b) At the request of the Union rescind any changes to its health care plans and restore
those health care plans contained in the parties’ expired collective-bargaining agreement.
(c) Provide the Union with the information requested in its February 28, 2014, 40
information request that has not been supplied.
(d) Make whole any employees for lost wages and other benefits as a result of our
unlawful closure for an additional 5 days during spring break in 2014. My recommended
Order further requires that backpay shall be computed in accordance with Ogle Protection 45
Service, 183 NLRB 682 (1970), with interest as prescribed in New Horizons for the
JD(SF)–55–14
34
Retarded, 283 NLRB 1173 (1987), plus daily compound interest as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
(e) Make whole any employees for costs associated with our change in health care
benefits, including additional premiums paid for themselves and dependents, and any out of 5
pocket expenses for medical or dental care or drugs.
(f) The Respondent shall be required to post a notice that assures its employees
that it will respect their rights under the Act. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an intranet 10
or internet site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. J. Picini Flooring, supra..
(g) Compensate employees who lost wages due to the extended 5 days of spring
break in 2014 for the adverse tax consequences, if any, of receiving a lump-sum backpay15
award, and file a report with the Social Security Administration allocating the backpay award to
the appropriate calendar quarters.
(h) 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 the20
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.
25
(i) Within 14 days after service by the Region, post at its facilities in Marysville,
California, copies of the attached notice marked “Appendix.”67 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 30
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 35
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
March 10, 2014.
40

67 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–55–14
35
(j) Within 21 days after service by the Region, filed with the Regional Director for
Region 20 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
5
Dated, Washington, D.C. November 10, 2014

10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES EMPLOYEES 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
Chose not to engage in any of these protected activities.
After a trial at which we appeared, argued and presented evidence, the National Labor Relations
Board has found that we violated the National Labor Relations Act and has directed us to post
and obey this notice to employees and to abide by its terms.
Accordingly, we give our employees the following assurances:
WE WILL NOT refuse to bargain in good faith with Service Employees International Union,
Local 1021, CLC as the exclusive collective-bargaining representative of its employees in the
following collective-bargaining unit:
All regular employees of E Center's Head Start Programs in the following
classifications:
Head Start: Bus Driver, Cook Aide, Cook, ERSEA Specialist, Family Educator,
Family Service Worker, Janitor, Lead Transporter, Secretary, Teacher/Family
Educator, Teacher, Teacher Aide, Teacher Assistant, Transporter, Transportation
Aide.
Early Head Start: Infant Toddler Home Base Aide, Infant Toddler Family
Educator.
Migrant Head Start: Associate Family Advocate, Associate Teacher, Bus Driver,
Cook, Cook Aide, ERSEA Specialist, Family Advocate/Family Childcare
Specialist, Family Advocate, Groundskeeper, Health and Nutrition Specialist,
Secretary, Teacher Assistant, Teacher, Transportation Aide.
Shared: Health & Nutrition Specialist, Education/ Special Needs Specialist,
Facilities Specialist, Secretary, Receptionist.
WE WILL NOT unilaterally and without bargaining with the Union:
Change our spring break from 5 to 10 days.
Change our bargaining unit employees’ health care plans.
WE WILL NOT refuse to furnish or unreasonably delay in furnishing the Union with relevant
and necessary information.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed by Section 7 of the Act.
WE WILL recognize and on request, bargain collectively with the Union as the exclusive
representative of our employees in the above described unit with respect to wages, hours, and
other terms and conditions of employment.
WE WILL at the request of the Union, rescind our extended spring break from 10 to 5 days.
WE WILL at the request of the Union rescind our unilaterally implemented health care plans and
reinstate the health plans called for in the 2009–2012 collective-bargaining agreement.
WE WILL make whole all employees affected by our unilateral changes to the length of spring
break in 2014 and our employees’ health care plans, including payments for additional
premiums, costs and deductibles and out of pocket expenses for dependents.
E CENTER
(Employer)
Dated By
(Representative) (Title)
Insert QR code before or after these last two paragraphs. Please verify actual placement.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-124323 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5183.