San Juan Teachers Assn.

National Labor Relations Board - Board Decisions

Apr 30, 2010

355 N.L.R.B. 172 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

355 NLRB No. 28
172
San Juan Teachers Association and California Staff
Organization. Case 20–CA–34254
April 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On November 4, 2009, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed answering
briefs. The General Counsel also filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order3 as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, San Juan Teachers Associa-
tion, Carmichael, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 1(b).
“(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”

1 The Respondent excepts to the judge’s ruling permitting counsel
for the Union to testify at the hearing and, alternatively, to the judge’s
refusal to strike the testimony. It is clear from the judge’s decision,
however, that he did not rely on the counsel’s testimony, and we do not
rely on it in adopting his decision. Accordingly, we deny the Respon-
dent’s exception.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by reducing the weekly work hours of two unit employ-
ees, we find it unnecessary to pass on the General Counsel’s exception
to the judge’s failure to apply Bottom Line Enterprises, 302 NLRB 373
(1991). Under the rule of both that case and the case relied on by the
judge, Stone Container Corp., 313 NLRB 336 (1993), a respondent that
has made changes with respect to a mandatory subject of bargaining
will be found to have violated the Act unless it can establish that it
provided the union with adequate notice and an opportunity to bargain.
Here, we agree with the judge, for the reasons set forth in his decision,
that the Respondent failed to meet that burden.
3 In his exceptions and supporting brief, the General Counsel seeks
compound interest computed on a quarterly basis for any backpay or
other monetary award. Having duly considered the matter, we are not
prepared at this time to deviate from our current practice of assessing
simple interest. See, e.g., Cardi Corp., 353 NLRB 966 fn. 2 (2009);
Rogers Corp., 344 NLRB 504, 504 (2005).
Shelley Brenner, Esq., for the General Counsel.
Robert L. Rediger, Esq. (Rediger, McHugh, & Hubbert), of
Sacramento, California, for the Respondent.
Eleanor I. Morton, Esq. (Leonard Carder, LLP), of San Fran-
cisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard
this case on June 2 and 3, 2009, at Sacramento, California,
pursuant to a complaint and notice of hearing issued by the
Regional Director for Region 20 of the National Labor Rela-
tions Board (NLRB or Board). The complaint alleges Respon-
dent, San Juan Teachers Association (Respondent or SJTA),
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (Act) by unilaterally reducing the weekly work hours of the
employees in an appropriate bargaining unit represented by the
California Staff Organization (CSO or Charging Party). Re-
spondent filed an answer denying that it engaged in the unfair
labor practices alleged and interposing certain affirmative de-
fenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
on behalf of General Counsel, Charging Party, and Respondent,
I make the following
FINDINGS OF FACT
Respondent is, and has been at all material times, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and it would effectuate the pur-
poses of the Act for the Board to exercise its jurisdiction to
resolve this labor dispute.
Respondent, a labor organization, is an unincorporated asso-
ciation with a place of business in Carmichael, California,
where it represents employees employed by the San Juan Uni-
fied School District. In the course of its business operations
during the 12-month period ending January 31, 2009, Respon-
dent derived gross revenues in excess of $500,000, and pur-
chased and received at its Carmichael, California place of busi-
ness materials or services valued in excess of $5000, which
originated from points outside the State of California. Based on
the foregoing, I find that the Board should exercise its statutory
jurisdiction to resolve this labor dispute.
At relevant times, CSO, a labor organization within the
meaning of Section 2(5) of the Act, has been the exclusive
collective-bargaining representative under Section 9(a) of the
Act for the SJTA’s secretarial and clerical employees.
The complaint alleges and the answer admits that CSO is a
labor organization within the meaning of Section 2(5) of the
Act.
At relevant times, Respondent employed the following indi-
viduals: (1) Steve Duditch, president; (2) Tom Alves, executive
director; (3) Sandra Galindo, associate executive director; (4)
Lucia Guzman, secretary, and (5) Judy Mannis, secretary. All
five have been permanently employed by Respondent through-
out the period covered by this proceeding. Guzman and Man-
nis began working for Respondent in 1995. Throughout their
employment history until November 2008, they worked a
SAN JUAN TEACHERS ASSN. 173
“24/32” schedule, meaning that they alternated working 32
hours one week and 24 hours the next week.
In April 2006, Guzman and Mannis designated the CSO as
their agent for collective-bargaining purposes and Respondent
voluntarily recognized CSO as the exclusive collective-
bargaining representative of its secretarial and clerical employ-
ees (the clerical unit) on April 17, 2006. The clerical unit is an
appropriate unit for purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Since June 20, 2006, Re-
spondent and CSO have met in 12 negotiating sessions attempt-
ing to conclude an initial collective-bargaining agreement. By
the time of the hearing, the parties had not reached a final
agreement.
In September 1998, Respondent executed a nonbargaining
unit beneficiaries participation agreement (NBU participation
agreement or 1998 Agreement) with the California Teachers
Association Health and Welfare Trust (CTA Trust) that con-
tained a provision requiring participating employers to enroll
all permanent employees working more than 20 hours per week
in the Trust’s benefit plans.
Duditch, on behalf of SJTA, executed a NBU participation
agreement on September 14, 1998, with the intention of provid-
ing Alves and Galindo with certain fringe benefits available
through the CTA Trust so they would be on a par with their
counterparts employed by the CTA. (Jt. Exh. 16.)
Section A,1 of the agreement recites that the California
Teachers Association (CTA), the CSO, and the California As-
sociate Staff (CAS) established the trust “for certain eligible
. . . employees and employee dependents.” The agreement
provides for participation by certain other “labor organization
employers.” Respondent qualified under the terms of the
agreement as a “California affiliate of the National Education
Association.”1 The CTA Trust provides insurance for medical,
dental, and vision care as well as other incidental forms of cov-
erage.
Section B,1,b of the 1998 agreement obligated SJTA to en-
roll “all eligible employees in the plans selected for coverage,
and perform administration services in connection with such
enrollment.” Section B.3.a defines an “eligible employee” as a
“permanent employee who is actively at work a minimum of
twenty (20) hours of week [sic] at his or her customary place of
employment, and who complies with the eligibility require-
ments set forth Exhibit ‘B’” attached to the 1998 agreement.
The Exhibit B eligibility requirements are twofold; the first
requires eligibility under the chosen insurance plans and the
second requires qualification under the previously mentioned
20-hour rule. The 1998 agreement designates covered employ-
ees “beneficiaries.” By its terms, retirees cannot qualify as
beneficiaries.2 Agreement, section B,3,c; Agreement Exhibit

1 The bottom strip on the SJTA’s stationery also implies that it is a
CTA affiliate. The General Counsel characterized the Trust as a
“multi-employer trust.” In fact, the recitals in the participation agree-
ment indicate otherwise and no evidence establishes that participation
by “other labor organization employers” makes them eligible to share
in governing the Trust.
2 A subsequent edition of the CTA Trust NBU participation agree-
ment as well as its bargaining unit participation agreement provide for
retiree medical benefits. Jt. Exh. 12; R. Exh. 6. The latter presupposes
B, section II, 4.
At the time Duditch executed the 1998 agreement, the SJTA
employed the aforementioned five individuals, to wit, Duditch,
Alves, Galindo, who worked full time, and the two statutory
employees, Guzman and Mannis, who worked an alternating
schedule in excess of 20 hours per week.
In the period following the execution of the 1998 agreement,
Respondent contributed to the CTA Trust to pay for the active
fringe benefit plans it provided to Alves and Galindo, and a
retiree health benefit plan for all five individuals employed by
SJTA.
After signing the 1998 agreement, SJTA only enrolled Alves
and Galindo in the CTA Trust fringe benefit plans. They con-
tinued to receive coverage from this source at least up to the
time of the hearing.3 (Jt. Exh. 16, Individual Employee Bene-
fits Election Form—1998–1999 Plan Year.) Respondent never
enrolled Guzman and Mannis in the CTA Trust fringe benefit
plans. Instead, it obtained health insurance coverage for
Guzman through a special arrangement with the San Juan
School District. Mannis always elected the health insurance
coverage available to her through her husband’s employer; she
has never relied on the SJTA for her health insurance. Duditch
described the insurance Alves and Galindo receive under the
CTA Trust as a “Cadillac” plan, implying that their coverage
was superior to that the SJTA provided for Guzman.
In addition to the contributions made to the CTA Trust on
behalf of Alves and Galindo’s health and other miscellaneous
fringe benefits, the SJTA contributed 8 percent of its payroll to
the Trust to enroll all five employees in the retiree health bene-
fit plan provided by the CTA Trust.
In April 2008, the CTA Trust determined that the SJTA
failed to comply with the terms of the 1998 agreement over the
past 9 years by failing to enroll and pay for active fringe bene-
fits on behalf of all eligible employees.
In late 2007, the CSO negotiators bargaining on behalf of the
clerical unit learned from the employees that SJTA paid the
CTA Trust to provide retiree medical benefits for all of its em-
ployees but only paid it to provide current fringe benefits for its
two managerial employees. Marilyn Arden, one of the CSO
negotiators who also had been an alternate trustee for the Trust
since 2000, contacted a CTA Trust representative seeking ex-
planation of the SJTA’s unusual arrangement with the Trust
and learned that the Trust representative was also looking into
the situation.4 (Tr. 60–61.)

the existence of a collective-bargaining agreement, also requires cover-
age for all permanent employees who work at least 20 hours per week,
and contains a very questionable mandatory union membership re-
quirement.
3 The SJTA selected and paid for the following fringe benefits
through the CTA Trust for Alves and Galindo: medical, dental, vision
and behavioral health insurance, life insurance, accidental death and
dismemberment insurance, and a salary protection plan.
4 In other words, Arden would have me believe that her inquiry and
the Trust’s realization after 9 years that the SJTA might not be paying
all that it should was a mere coincidence. I do not credit Arden’s claim
as to what the CTA Trust representative told her. Instead, I strongly
suspect that the CSO negotiators used the CTA Trust tactically to
shortcut bargaining over health benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
By a letter dated January 15, 2008, Nathan Hartman, one of
the CTA Trust administrative managers, wrote to SJTA seeking
certain specific information. Hartman predicated his inquiry on
SJTA’s practice of paying for the current fringe benefits Alves
and Galindo but also paying for retiree medical benefits on
behalf of five employees even though the 1998 agreement con-
tained no provision for “any contribution to fund the retiree
medical benefits.” Hartman requested that Respondent provide
the following information: (1) whether any of the employees
covered by both types of contributions were bargaining unit
employees; (2) the reason Respondent submitted contributions
as it had been doing for two employees while also contributing
to the retiree plan on behalf of five employees; and (3) whether
Respondent employed any others for whom it made no contri-
butions. (Jt. Exh. 1.)
The SJTA responded in a letter dated January 31, that Man-
nis prepared and Duditch signed. That letter explained that the
SJTA had been paying the CTA Trust to cover the active (cur-
rent) fringe benefits for Executive Director Alves and Associate
Executive Director Galindo, and the retiree medical benefits for
all five SJTA employees because “[w]e understood that all
employees working more than 20 hours per week were enrolled
in the retiree health plan.5 The letter stated that there were no
other employees for whom SJTA did not make contributions
but it never really answered the bargaining unit question posed
by Hartman. Instead, it described the CSO membership history
of Alves, Galindo, Guzman, and Mannis.
In a letter dated April 1, Hannah Sutton, another manager for
the CTA Trust administrator, wrote to Duditch explaining that
the SJTA “is reporting incorrectly” to the Trust. (Jt. Exh. 4.)
She explained that as the SJTA executed a “non-bargaining unit
participation agreement,” it could only report on non-
bargaining unit employees. The SJTA violated the agreement,
Sutton explained, by remitting payments for retiree benefits on
behalf of two bargaining unit employees. According to Sutton,
“[U]nless you sign a bargaining unit participation agreement
you may not contribute on behalf of any bargaining unit em-
ployee.” (Emphasis added.) For that reason, Sutton stated that
the CTA Trust would no longer accept payments made on be-
half of the unit employees. However, Sutton told Duditch that,
if SJTA signed a bargaining unit participation agreement, it
would be obliged to purchase the Trust’s active fringe benefits
for the bargaining unit employees. She also told him that he
could apply to the Trust for a refund of the retiree benefit pay-
ments made on behalf of the unit employees and that he could
even cancel SJTA’s participation in the CTA Trust with a
timely notice.
Duditch responded to Sutton on April 17 attempting to cor-
rect certain representations made in his January 31 letter. Thus,
he clarified the earlier answer that arguably implied four of the
SJTA employees were bargaining unit members based on their
current or prior CSO membership. Duditch explained that the

5 Apparently, Duditch receives his current fringe benefits from an-
other source altogether. Although it is of little or no significance, his
January 31 letter seems contradictory (compare par. 1 with par. 2) as to
whether the SJTA contributed to the Trust on his behalf for retiree
health benefits.
correct answer to the first question Hartman posed in his Janu-
ary 15 letter should have been that none of those for whom
SJTA had been submitted contributions were unit employees.
He then went on to state that the SJTA contributed to the CTA
Trust for the “two part-time employees,” i.e., Guzman and
Mannis, because they “believe that they were entitled to claim
retiree health benefits” even though they “do not claim the
[Trust] benefit package.” Duditch asked Sutton to clarify for
him which of the two participation agreements (nonbargaining
unit or bargaining unit) SJTA should sign so that it “can par-
ticipate as an Option two affiliate that only has employees who
work for the [SJTA].” Although the quoted portion of that
particular sentence seemed to muddle the situation all over
again, he explained in a subsequent paragraph that if “SJTA
must contribute the cost of health plan benefits for part-time
employees regardless of whether there is any collective bar-
gaining agreement” he wanted to know the rationale and he
asked that the SJTA be granted “a waiver from such a stipula-
tion.” Duditch explained that the SJTA had provided health
care benefits to the part-timers independent of the Trust “for
more than twenty years for cost-saving reasons.”
Two weeks later, Sutton acknowledged Duditch’s April 17
letter and explained that she would get back to him after dis-
cussing his questions with legal counsel for the CTA Trust and
“possibly the Trustees.” In a letter dated June 13 (Jt. Exh. 6),
Sutton informed Duditch that the trustees had denied his re-
quest for a waiver from the requirement, in effect, that all of the
SJTA employees be covered with active benefits by reason of
the 20-hour rule. She went on to advise (seemingly contrary to
the position taken in her April 1 letter) that the CTA trust par-
ticipation agreement, section B,3a. required SJTA to contribute
on behalf of “all eligible employees” including “the two em-
ployees not currently being reported.” Sutton told Duditch that
compliance would be required by August 1 and the cost for the
two unit employees would be the same as what SJTA paid for
Alves and Galindo.
Duditch sought reconsideration of his request for a waiver.
Although the CTA Trust rescinded the August 1 compliance
deadline, it notified the SJTA in a letter dated October 27 that
the trustees had denied the requested waiver and advised that
the unit employees had to be covered or coverage for SJTA’s
other employees (Alves and Galindo) would cease as of Janu-
ary 1, 2009. The letter also advised that if SJTA desired to
continue its participation in the retiree health program, it would
“need to sign a new Participation Agreement that calls for such
contributions.” The letter requested that the SJTA respond to
the Trust administrators by December 1 as the Trustees would
meet soon thereafter “to finalize this matter.” (Jt. Exh. 9.)
To comply with the CTA Trust directive, Respondent re-
duced the regular work week of Guzman and Mannis to 19.5
hours effective November 17, in order to preserve the fringe
benefits enjoyed by Alves and Galindo through the CTA Trust.
Respondent’s answer to the complaint admitted that it re-
duced the weekly work hours of each unit employee on or
about November 17, and that this matter amounted to a manda-
tory subject of bargaining. (GC Exh. 1(f): Answer to complaint
par. 1.)
The evidence shows likewise. Following receipt of the Oc-
SAN JUAN TEACHERS ASSN. 175
tober 27 ultimatum from the CTA Trust, the SJTA board of
directors met on November 4, and decided to reduce the hours
of Guzman and Mannis so they would not be eligible employ-
ees under the terms of the participation agreement. On No-
vember 12, Duditch and SJTA Vice President Christina Wil-
liams gave Guzman and Mannis each a letter informing them
that as of November 17, their work schedules “will consist of
19.5 hours per work week.” The letter states that the reduction
in hours “is the result of a decline in work at the office as well
as the need for SJTA to avoid having to pay a premium on your
behalf to the [CTA Trust] for duplicative benefits.” The letter
goes on to state that the CTA Trust denied the SJTA’s request
for a waiver of the 20-hour rule and concluded with the asser-
tion that it was in “both of our interest[s] to maintain the health
benefits you are currently receiving, and SJTA not incurring . . .
unnecessary costs by having to remit a premium on your behalf
to the Trust.” (Jt. Exhs. 10 and 11.)
That same day Duditch sent the CTA Trust a new NBU par-
ticipation agreement (2008 agreement) to cover Alves and
Galindo along with a letter stating that the “other two part-time
employees in question no longer meet the eligibility require-
ments for enrollment.” (Jt. Exh. 12.)
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) and (5) of the Act by
reducing the workweek of Guzman and Mannis without prop-
erly notifying the CSO and providing it with an opportunity to
bargain over the reduction in their hours of work.
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer to refuse to bargain collectively with the repre-
sentatives of his employees. Section 8(d) defines the term
“bargain collectively” as the mutual obligation of the employer
and the employee representative to ‘‘meet . . . and confer in
good faith with respect to wages, hours and other terms and
conditions of employment.’’ Those matters falling within the
scope of Section 8(d) are mandatory subjects of bargaining.
NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). An
employer violates Section 8(a)(5) of the Act by making a “uni-
lateral change in conditions of employment under negotiation
. . . for it is a circumvention of the duty to negotiate which
frustrates the objectives of § 8(a)(5) much as does a flat re-
fusal.” NLRB v. Katz, 369 U.S. 736, 742 (1962). Here, I find
Respondent needed only to notify CSO and provide it with an
opportunity to bargain about a proposal to change the employee
hours in order to comply with its obligations to the CTA Trust,
a discreet, separable issue independent of the negotiations for a
complete collective-bargaining agreement. Stone Container
Corp., 313 NLRB 336 (1993).
In its defense, Respondent’s answer affirmatively alleged in
its answer to the complaint that it provided notice to the CSO
and an opportunity for it to bargain over the reduction in hours
question; that the CSO “delayed and avoided bargaining” over
this subject; and that economic exigencies compelled Respon-
dent to act promptly to reduce the hours of the unit employees.
(GC Exh. 1(f) ): Answer to Complaint, First, Second, and Third
Affirmative Defenses.) SJTA argued in its posthearing brief
that it notified the CSO that the unit employees hours would be
reduced on several occasions but the union failed to avail itself
to the opportunity to bargain about that subject. Respondent
had the burden of proving its affirmative defenses. For reasons
detailed below, I find Respondent failed to meet its burden.
Duditch’s wrote a letter dated July 7 that arguably contains a
proper notice and request to bargain over a proposed change in
unit employees’ hours of work, but the evidence concerning
receipt of that letter by the addressee, CSO Counsel Eleanor
Morton, or any other CSO agent, is problematic.6 For purposes
of receipt, Respondent needed to obtain an admission binding
on the CSO or its counsel that the letter had been received, or to
produce evidence sufficient to warrant a presumption of receipt.
Respondent obtained no admission from CSO’s counsel or
any other CSO agent that the July 7 letter had been received in
due course. Likewise, Respondent failed to prove facts suffi-
cient to establish that this letter was ever mailed or faxed to
CSO’s counsel so as to give rise to a presumption of receipt.
Federal common law follows the so-called “mail box rule”
which provides that the proper and timely mailing of a docu-
ment gives rise to a rebuttable presumption that the document
has been received by the addressee in the usual time. Schikore
v. Bankamerica Supplemental Retirement Plan, 269 F.3d 956,
961 (9th Cir. 2001). The evidence in this case does not warrant
a presumption that Morton or any other CSO representative
received the July 7 letter. Thus, Duditch could not recall with
any adequate degree of certainty that he mailed or faxed the
letter.7 In addition, Respondent failed to produce a facsimile
transmission confirmation for the letter, an essential prerequi-
site to invoking a presumption of receipt where the letter is
transmitted by that means. See, e.g., Mulder v. Commissioner
of Internal Revenue, 855 F.2d 208, 212 (5th Cir. 1988) (return
receipt for a letter sent by certified mail required in order to
establish a rebuttable presumption that the document has been
received by the addressee.) As the evidence is insufficient to
show the letter was actually mailed or faxed, or to warrant a
presumption of receipt by Morton or the CSO, no burden to
rebut receipt arose.8 See Rule 301, Federal Rules of Evidence.

6 In the final paragraph of that letter, Duditch wrote: “I am request-
ing that the parties meet during the month of July to discuss this matter
and potential solutions. SJTA is contemplating reducing the hours of
the two employees in the bargaining unit to 19.5 per work week effec-
tive August 1, 2008 to meet its business needs and to avoid having to
incur the unnecessary cost of including them in the Trust.” R. Exh. 4.
7 For example, Duditch’s testified as follows on cross-examination
by General Counsel:
Q. But you have no memory of you personally mailing that
letter to Ms. Morton?
A. No. I do have a memory though, the memory clearly that
it was such an urgent matter for us that we hired counsel, it was
such an urgent matter to get the letter out, it was such an urgent
matter because it was affecting the retirement of Alves and
Galindo but, I cannot say I can remember mailing a letter. I would
like to say I can remember it but, I cannot say I remember putting
it in the mail.
Q. Okay. And you have no memory of you personally faxing
this letter to Eleanor Morton?
A. No, I don t. [Tr. 238–239.]
8 Morton denied that she saw Duditch’s July 7 letter until counsel for
the General Counsel provided a copy to her during the investigation of
this charge, long after the employees’ hours had been reduced. I find it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
Hence, this letter does not satisfy the notice requirement under
Section 8(a)(5).
In addition, Respondent claims that the CSO’s agents were
told orally several times over the course of its 2008 compliance
controversy with the CTA Trust that the reduction in hours of
the unit employees was an option it might have to consider. By
failing to request bargaining after learning of that SJTA was
considering the reduction in hours option, Respondent argues
that the CSO, in effect, waived its right to bargain about this
subject and, therefore, SJTA did not violate the Act by imple-
menting this change when it did.
In support, Respondent points to a brief conversation on June
7 when Duditch purportedly told DePue that “if we don’t get
the waiver, we have various options and one of the options will
be to reduce the hours of Judy and Lucia.” (Tr. 209.)
Respondent also points to an October 27 meeting attended by
SJTA Managers Duditch, Alves, and Galindo, CSO Represen-
tative DePue, and CTA Trustee Stephens.9 DePue arranged this
meeting so that Stephens, in his capacity as a CTA Trustee,
could provide information to the SJTA officials about the cost
that would be involved to cover the two unit employees with
the CTA Trust benefits. This discussion was actually between
Stephens and the SJTA officials; DePue said little if anything
during the entire meeting. At the time, the SJTA had not yet
learned that CTA Trust had denied their last waiver request.
After Stephens calculated the cost for covering the two unit
employees, Alves purportedly stated that the cost was “prob-
lematic” and that it “would be more strategic for the organiza-
tion to cut their hours.” Stephens cautioned against taking that
step, suggesting instead that the SJTA might want to consider
employee only-coverage for the unit employees as a means of
bringing the SJTA into compliance and preserving coverage for
Managers Alves and Galindo. At the end of the meeting,
Duditch explained they had “to take this information back to
our Executive Board” because they were not comfortable with
precluding Lucia from covering her dependents (an option
Stephens suggested) and that they “were going to have to take a
look at cutting their hours to 19.5 hours.”
I disagree with Respondent’s contention that these verbal ex-
changes sufficed to put CSO on notice of the type of change
ultimately implemented here so that the CSO, in effect, waived
its right to bargain over reducing the work hours of the unit
employees by failing to request or engage in bargaining.10 The

unnecessary to consider her denial. Even if I struck Morton’s testi-
mony as requested in Respondent’s posthearing brief, no basis would
exist to conclude that Morton or any other CSO representative received
Duditch’s July 7 letter in due course.
9 Stephens works for the CTA and is represented by, and belongs to,
the CSO. He has held various positions with the CSO and has long
served as a union-appointed trustee on the CTA Trust. He had no
known involvement with the SJTA-CSO negotiations. Respondent
tacitly acknowledged that Stephens was not acting on behalf of CSO at
the October 27 meeting by arguing that DePue sat idly by without
making an attempt to bargain on this occasion.
10 Respondent also cites a verbal exchange between Alves and Ted
Bynum, another trustee of the CTA Trust in April 2008. However, I
find this exchange too vague and remote to merit consideration as a
notice of a proposal to change wages, hours, or working conditions.
June 7 exchange amounted to little more than an offhanded
remark that reducing the hours of the unit employees might be
one of several options Respondent would have to consider in
order to solve the problem raised by the CTA Trust investiga-
tion. At the October 27 meeting, DePue’s role was essentially
that of an onlooker to the discussion between Stephens in his
capacity as a representative of the CTA Trust and Respondent’s
officials about the precise cost of compliance with the CTA
Trust’s demand that SJTA provide coverage for all employees.
Respondent’s contention that the October 27 meeting amounted
to a bargaining session with the CSO that resulted in an im-
passe over the workweek change issue is not supported by the
evidence. Duditch’s reference to presenting the information
gained to the SJTA Executive Board for a decision shows that
no clear proposal had yet emerged from the Respondent over
which there could be meaningful bargaining. Although
Duditch, Alves, and presumably Galindo all favored the work-
week reduction as a solution to SJTA’s issue with the CTA
Trust, Duditch’s own statement at the conclusion of the Octo-
ber 27 meeting made it clear that decision actually rested with
the SJTA executive board. At no time, did Respondent notify
the CSO about a proposed change after the SJTA executive
board’s meeting.
The NLRB does not require a labor organization to demand
negotiations every time an employer mentions a potential, fu-
ture change in order to avoid the risk of waiving its right to
bargain under the Katz doctrine. More than general statements
about changes that might be necessary are required. Pan
American Grain Co., 343 NLRB 318 (2004), citing with ap-
proval Judge Joan Wieder’s formulation in Gannett Co., 333
NLRB 355, 357 (2001), at that, to be adequate under the Act,
“[t]he prior notice must afford the union with a reasonable op-
portunity to evaluate the proposals and present counter propos-
als before implementing [the] change.” An inchoate and im-
precise announcement of the type made here is insufficient to
trigger an obligation to bargain. Oklahoma Fixture Co., 314
NLRB 958, 960 (1994), enf. denied on other grounds 79 F.3d
1630 (10th Cir. 1996).
No clear formulation occurred here until the SJTA executive
board chose the reduced workweek option on November 4.
Respondent never notified the CSO of that decision. Instead,
Duditch and Williams bypassed the CSO and presented the
decision directly to the unit employees on November 12 as a
fait accompli with the explanation that they had been forced to
take this step as a means of meeting the obligations undertaken
with the CTA Trust to obtain fringe benefits for Alves and
Galindo. Having concluded that Respondent failed to provide a
proper notice and opportunity for bargaining, it follows that a
finding cannot be made that the CSO delayed and avoided bar-
gaining as Respondent alleged in its answer.
Finally, for two reasons I find Respondent failed to show an
economic exigency existed that would warrant the immediate
implementation of the reduced workweek without prior bar-
gaining. First, Respondent offered no evidence concerning its
economic condition. All that was shown was the belief of the
leadership that reducing employee hours made more economic
sense for the SJTA. I find this evidence insufficient to find
enough of economic exigency existed to bypass bargaining.
SAN JUAN TEACHERS ASSN. 177
Secondly, Respondent had ample time in which bargain with
the CSO over a proposal to change hours as it had nearly a full
month following the November 4 SJTA executive board meet-
ing before it needed to respond to the CTA Trust’s final ultima-
tum.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
As Respondent violated the Act by unilaterally reducing the
weekly hours of the unit employees, it will be required to re-
store the status quo ante. Larry Geweke Ford, 344 NLRB 628
(2005). Accordingly, Respondent will be required to rescind
the November 12, 2008 notices to Guzman and Mannis, and
restore their workweek to the level that existed prior to the
change implemented on November 17. Respondent will also be
required to reimburse the unit employees for the pay lost by
reason of the reduction of their work hours commencing on
November 17. Reimbursements to employees shall be com-
puted as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
11

On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, San Juan Teachers Association, Carmi-
chael, California, its officers, agents, successors, and/or assigns,
jointly and severally, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the California Staff
Organization (CSO) by unilaterally reducing the hours of em-
ployment of its secretarial and clerical employees represented
by CSO without first providing that labor organization with an
appropriate notice and an opportunity to bargain over changes
in their hours of work.
(b) In any like or related manner restraining or coercing em-
ployees 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) Within 14 days from the date of the Board’s Order, re-
scind the change in the weekly hours of work provided to its
secretarial and clerical employees implemented on November

11 The General Counsel requests that the interest award be com-
pounded quarterly instead of the present practice of awarding simple
interest. The Board, as presently constituted, has in several recent cases
declined to change the method for calculating interest. As I am bound
by the Board’s established policy, the request for compound interest is
denied.
12. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
17, 2008, and restore their workweek schedule to that which
existed prior to that date.
(b) Reimburse the unit employees for the loss in pay they
suffered by reason of the change in their weekly hours of em-
ployment that commenced on November 17, 2008, as described
in the remedy section of this decision with interest as pro-
scribed by law.
(c) Within 14 days after service by the Region, post at its of-
fice facility in Carmichael, California, copies of the attached
notice marked “Appendix.”13 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 posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these 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 November 17, 2008.
(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
Respondent has taken to comply.
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 violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT fail or refuse to bargain with the California
Staff Organization (CSO) as the representative of the employ-
ees employed in the following appropriate unit: All secretarial
and clerical employees.
WE WILL NOT change the wages, hours, and terms and condi-
tion of employment for the employees in the above unit without
first providing CSO with an appropriate notice of any proposed

13 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
change and provide it with an opportunity to bargain over the
proposed change.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the NLRB Order,
rescind the change in the weekly hours of work provided for
employees in the above unit that we implemented on November
17, 2008, and restore their workweek schedule to that which
existed before that date.
WE WILL reimburse the unit employees for any loss of pay
they suffered by reason of the change in their weekly hours of
employment that commenced on November 17, 2008, with
interest as proscribed by law.
SAN JUAN TEACHERS ASSOCIATION