Long Island Head Start Child Development Services

National Labor Relations Board - Board Decisions

Sep 29, 2005

345 N.L.R.B. 973 (N.L.R.B. 2005)

LONG ISLAND HEAD START CHILD DEVELOPMENT SERVICES
345 NLRB No. 74
973
Long Island Head Start Child Development Services,
Inc. and District Council 1707, Local 95, Ameri-
can Federation of State, County and Municipal
Employees, AFL–CIO. Case 29–CA–26343
September 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 22, 2005, Administrative Law Judge D.
Barry Morris issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the Charg-
ing Party filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to adopt the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified.1
The Respondent excepts to the judge’s finding that it
violated Section 8(a)(1) and (5) of the Act by unilaterally
changing its health insurance carrier and plan on June 1,
2004.2 The Respondent concedes that it changed the
carrier and plan but contends that the parties’ 1998–2001
collective-bargaining agreement,3 which agreement
automatically renewed for successive 1-year periods,
afforded the Respondent sole discretion to modify em-
ployee benefit plans.4 The Respondent asserts that, in the
absence of timely written notice to terminate or modify
that agreement, it automatically renewed after May 4,
and therefore permitted the Respondent’s June 1 action.
We find no merit in the Respondent’s contentions.
First, the judge implicitly found, and we agree, that the
parties’ collective-bargaining agreement expired on May
4. In late 2003 and early 2004, the parties began negoti-

1 We shall modify the recommended Order to require the Respon-
dent to notify and, on request, bargain with the Union before imple-
menting any changes in wages, hours, or other terms and conditions of
employment. See Mimbres Memorial Hospital, 337 NLRB 998 fn. 2
(2002) (holding limited bargaining order appropriate to remedy unlaw-
ful unilateral change). We shall also substitute a new notice to conform
to the Order as modified.
2 All dates are 2004 unless otherwise indicated.
3 The agreement had an effective term of May 5, 1998, through May
4, 2001, and further provided that “[t]hereafter, it shall automatically
renew itself and continue in full force and effect from year to year
unless written notice of election to terminate or modify any provision
of this Agreement is given by one party, and received by the other party
not later than sixty (60) days prior to the expiration date of this Agree-
ment or any extension thereof.”
4 Art. 29 of the parties’ agreement stated that the provisions of the
personnel manual shall remain in effect except where modified by the
agreement. Sec. 450 of the personnel manual reserved to the Respon-
dent’s discretion to modify or terminate benefit plans without the con-
sent of the Union.
ating for a successor collective-bargaining agreement.
The Board has found that, by entering into negotiations
for a new agreement, parties waive contractual require-
ments of timely or written notice of termination or modi-
fication, and the extant contract does not automatically
renew. Lou’s Produce, 308 NLRB 1194, 1200 fn. 4
(1992); Drew Div. of Ashland Chemical Co., 336 NLRB
477, 481 (2001); Big Sky Locators, Inc., 344 NLRB No.
15 (2005). Accordingly, contrary to the Respondent’s
contention, the prior agreement did not automatically
renew after the parties had begun bargaining for a new
contract.
Second, we agree with the judge’s further finding that
the contractual reservation to the Respondent of sole dis-
cretion with respect to health benefits did not survive the
expiration of the collective-bargaining agreement. A
contractual reservation of management rights does not
extend beyond the expiration of the contract in the ab-
sence of evidence of the parties’ contrary intentions.
Ironton Publications, 321 NLRB 1048, 1048 (1996); see
also Blue Circle Cement Co., 319 NLRB 954, 954 (1995)
(reservation of management discretion does not survive
contract unless the contract provides otherwise). There
is no evidence in this record demonstrating that the par-
ties intended that the agreement to permit the Respondent
to make unilateral decisions with respect to health benefit
plans would extend beyond the contract term.
Finally, although the parties’ negotiations for a succes-
sor agreement resulted in a Memorandum of Agreement
(MOA), reached on April 22, no party contends that the
provisions of that agreement privileged the Respondent’s
unilateral action.
In all of these circumstances, we find that the Respon-
dent’s change of health benefit plans was not privileged.5
Therefore, we conclude, as did the judge, that the Re-
spondent violated Section 8(a)(1) and (5) by unilaterally
changing its health insurance carrier and plan.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Long
Island Head Start Child Development Services, Inc., Pat-
chogue, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.

5 We agree with the judge that the Respondent’s unilateral changes
are not lawful under the Board’s decision in The Courier-Journal, 342
NLRB 1093 (2004). Unlike the employer in that case, the Respondent
has not demonstrated an established past practice of exercising its own
discretion in changing its health insurance plan. Member Liebman
dissented in The Courier-Journal, and does not consider the issue of
practices under the expired contract in finding a violation in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD974
1. Substitute the following for paragraph 2(a).
“(a) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All regular full-time and part-time teachers, teacher assis-
tants, teacher aides, health coordinators, parent involve-
ment coordinators, mental health specialists, disabilities
services specialists, child care specialists, early childhood
education specialists, nutrition specialists, health special-
ists, family/community development specialists, family
advocates, early head start family educators, cooks and
assistants, custodians, bus aides, food service/custodial
aides, secretaries, clerk/typists/receptionists, lead nutrition
specialists, lead parent involvement specialists and lead
mental health specialists working twenty hours or more
per week employed by Respondent but excluding all
managers and supervisors, confidential employees, asso-
ciate directors and assistant program managers.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Dis-
trict Council 1707, Local 95, AFSCME, AFL–CIO, by
unilaterally changing the health insurance carrier and
plan for unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All regular full-time and part-time teachers, teacher assis-
tants, teacher aides, health coordinators, parent involve-
ment coordinators, mental health specialists, disabilities
services specialists, child care specialists, early childhood
education specialists, nutrition specialists, health special-
ists, family/community development specialists, family
advocates, early head start family educators, cooks and
assistants, custodians, bus aides, food service/custodial
aides, secretaries, clerk/typists/receptionists, lead nutrition
specialists, lead parent involvement specialists and lead
mental health specialists working twenty hours or more
per week employed by Respondent but excluding all
managers and supervisors, confidential employees, asso-
ciate directors and assistant program managers.
WE WILL, upon request, reinstate the health insurance
plan as it existed prior to June 1, 2004, and WE WILL
make whole unit employees for any losses they may have
suffered as a result of our unlawful unilateral change,
with interest.
LONG ISLAND HEAD START CHILD DEVELOP-
MENT SERVICES, INC.
James Kearns, Esq., for the General Counsel.
J. Lawrence Paltrowitz, Esq., for the Respondent.
Thomas Murray, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case was
heard before me in Brooklyn, New York, on December 21,
2004.6 Upon a charge filed on June 4, a complaint was issued
on August 27, alleging that Long Island Head Start Child De-
velopment Services, Inc. (the Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
Respondent filed an answer denying the commission of the
alleged unfair labor practice.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally and file briefs. Briefs were filed on January 24, 2005.
Upon the entire record of the case, including my observation
of the demeanor of the witnesses,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal of-
fice and place of business located in Patchogue, New York, has
been engaged in the provision of preschool and social services.

1 All dates refer to 2004 unless otherwise specified.
2 Credibilty resolutions have been based on the witnesses’ demeanor,
the weight of respective evidence, established or admitted facts, inher-
ent probabilities, and inferences drawn from the record as a whole.
LONG ISLAND HEAD START CHILD DEVELOPMENT SERVICES 975
It has been admitted, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. In addition, it has been admitted, and I find, that Dis-
trict Council 1707, Local 95, AFSCME, AFL–CIO (the Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Respondent and the Union were parties to a collective-
bargaining agreement (the agreement) effective May 5, 1998
through May 4, 2001. Article 29 of the agreement provided
that:
All current practices, policies and procedures regarding per-
sonnel as set forth in the Agency’s Personnel . . . Manual shall
remain in effect except where modified by this Agreement.
Section 450 of Respondent’s personnel manual provides:
The Agency reserves the right in its sole discretion to modify
or terminate any or all benefit plan(s) permanently or tempo-
rarily at such time as it [d]eems appropriate without consent
of the union or prior notices to any employee, retiree or bene-
ficiary. . . .
Article 35 of the collective-bargaining agreement, under the
caption, “Duration,” provides, in pertinent part:
This Agreement shall be effective for a period of three (3)
years commencing May 5, 1998 . . . through May 4, 2001.
Thereafter, it shall automatically renew itself and continue in
full force and effect from year to year unless written notice of
election to terminate or modify any provision of this Agree-
ment is given by one party, and received by the other party
. . . .
The collective-bargaining agreement did not provide for
health benefits. However, since 1995 Respondent has provided
unit employees with health insurance using the Vytra Health
Plan.
During 2003 and the early part of 2004, the parties negoti-
ated a successor agreement to the 1998–2001 agreement. On
April 22, 2004, the parties entered into a memorandum of
agreement, agreeing to a retroactive collective-bargaining
agreement effective May 5, 2001, through May 4, 2004. Article
30 of the 2004 memorandum of agreement contains the identi-
cal provision as article 29 of the collective-bargaining agree-
ment. In addition, article 36 of the memorandum of agreement
contains a substantially identical provision to article 35 of the
agreement.
After learning that Respondent desired to change its health
insurance carrier, on March 25, Ann Marie Lunetta, the Un-
ion’s staff representative, wrote to Respondent requesting bar-
gaining over the proposed change in health plans. Respondent
did not reply to the request.
On June 1, Respondent unilaterally changed its health insur-
ance carrier to United Healthcare.
B. Discussion and Conclusions
Article 36 of the memorandum of agreement provides, in
pertinent part:
This Agreement shall be in effect . . . through May 4, 2004.
Thereafter, it shall automatically renew itself and continue in
full force and effect from year to year unless written notice . . .
is given by one party, and received by the other party. . . .
Respondent argues that because of this provision, after May
4, the collective-bargaining agreement automatically renewed
itself. Therefore, Respondent argues, on June 1, when it unilat-
erally changed the health insurance carrier, the contract was in
effect. Respondent further maintains, that since the agreement
was in effect, article 30 was in effect. Article 30 provides that
“all current practices, policies and procedures” as set forth in
Respondent’s personnel manual remain in effect. Section 450
of the manual contains a management rights clause which per-
mits Respondent to modify or terminate employee benefit plans
“without consent of the Union” and without prior notice to the
employees. Thus, Respondent contends that on June 1 it had the
right to change its health insurance carrier and plan without
bargaining with the Union.
In Blue Circle Cement Co., 319 NLRB 954 (1995), the
Board stated, “a contractual reservation of managerial discre-
tion does not extend beyond the expiration of the contract
unless the contract provides for it to outlive the contract.” There
is no provision in the memorandum of agreement that the man-
agement-rights clause shall outlive the contract. In addition, as
stated in Ironton Publications, 321 NLRB 1048 (1996), “the
waiver of a union’s right to bargain does not outlive the con-
tract that contains it, absent some evidence of the parties’ inten-
tions to the contrary.” See also Buck Creek Coal, 310 NLRB
1240 fn. 1 (1993).
The Board has found unilateral changes to be lawful where
the changes are pursuant to “established past practices.” The
Courier-Journal, 342 NLRB 1093, 1094 (2004). Respondent
had the same insurance carrier from 1995 until June 1, 2004.
Indeed, when it wanted to change the contribution rate in 2000,
it negotiated with the Union over a change in the rate. Respon-
dent has not shown that it had an “established past practice” of
unilaterally changing health insurance plans.
Finally, in support of its position, Respondent cites the case
of Pantry Restaurant, 341 NLRB 243 (2004). In that case the
Board held that the failure to make holiday and vacation pay-
ments without bargaining to impasse is a “unilateral change in a
mandatory subject of bargaining.” The Board held that the re-
spondent violated Section 8(a)(1) and (5) of the Act by making
a unilateral change.
Accordingly, I find that Respondent, by unilaterally chang-
ing its health insurance carrier and plan on June 1, 2004, with-
out affording the Union the opportunity to bargain over the
change, committed an unfair labor practice, in violation of Sec-
tion 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD976
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The employees listed in article 1 attached to the memo-
randum of agreement dated April 22, 2004, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times the Union has been the exclusive
collective-bargaining representative of the employees in the
appropriate unit.
5. By unilaterally changing the health insurance carrier and
plan on June 1, 2004, without affording the Union the opportu-
nity to bargain with respect to the change, Respondent has
committed an unfair labor practice, in violation of Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an unfair
labor practice, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent, having unilater-
ally changed its health insurance carrier and plan, I shall order
that, upon request from the Union, it reinstate the health insur-
ance program it had prior to June 1, 2004. In addition, I shall
order that Respondent make whole the unit employees for any
losses they may have suffered as a result of Respondent’s
change of health plans, in accordance with Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), and Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F. 2d 502 (6th Cir. 1971). Interest shall be
computed as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Long Island Head Start Child Development
Services, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Refusing to bargain collectively with the Union by uni-
laterally changing the health insurance carrier and plan for its
unit employees.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the appropriate unit concerning
terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
(b) On request by the Union, reinstate the health insurance
carrier and the plan as it existed prior to June 1, 2004, and make
whole unit employees for any losses they may have suffered as
a result of the unilateral change, with interest, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days after service by the Region, post at its fa-
cility in Patchogue, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. 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 this proceeding, the Re-
spondent has gone out of business or closed the facilities in-
volved in this proceeding, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 1, 2004.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”