Connecticut Institute for the Blind, Inc. d/b/a Oak Hill School

National Labor Relations Board - Board Decisions

Feb 27, 2014

360 N.L.R.B. 359 (N.L.R.B. 2014)

OAK HILL 359
360 NLRB No. 55
Connecticut Institute for the Blind, Inc. d/b/a Oak
Hill and New England Health Care Employees
Union, District 1199, SEIU. Case 34–CA–013016
February 27, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On February 22, 2013, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering 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, findings, and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that Connecticut Institute for the Blind, Inc. d/b/a
Oak Hill, Hartford, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(c).
“(c) 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 desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.”
Rick Concepcion, Esq., for the General Counsel.
Miguel A. Escalera, Esq. and Diana Garfield, Esq. (Kainen,
Escalera & McHale PC), of Hartford, Connecticut, for the
Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charg-
es and amended charges filed by New England Health Care
Employees Union, District 1199, SEIU (the Union or Local

1 Member Johnson joins in affirming the judge’s finding that the
Respondent failed to establish economic exigency excusing its unilat-
eral implementation of health insurance changes. He notes that this
finding does not foreclose the possibility under different circumstances
that economic exigency could justify such unilateral changes.
2 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language.
1199), the Regional Director for Region 34 issued a complaint
and notice of hearing on March 30, 2012, alleging that Con-
necticut Institute for the Blind, Inc. d/b/a Oak Hill (Respondent
or Oak Hill) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by failing and refusing to furnish
information to the Union and unilaterally implementing chang-
es in employees’ healthcare insurance benefits.
The trial with respect to the allegations in the complaint was
held before me in Hartford, Connecticut, on June 11–15 and
July 9 and 10, 2012. Excellent briefs have been filed by both
the General Counsel and Respondent, which accurately and
comprehensively detailed the facts adduced at trial and present-
ed well-researched arguments in support of their respective
legal positions, which were most helpful to me in reaching my
decision.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDING OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a not-for-profit corporation that provides daily
living, vocational, and residential support to individuals with
developmental disabilities in its 91 Connecticut-based facilities,
including residential group homes and day programs through-
out the State as well as at its main campus in Hartford, Con-
necticut.
During the 12-month period ending February 29, 2012, Re-
spondent derived gross revenue in excess of $100,000 and pur-
chased and received goods at its Connecticut facilities valued in
excess of $50,000 directly from points outside the State of
Connecticut.
Respondent admits, and I so find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, and I so find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Respondent’s Operations
Respondent originated 118 years ago to service the blind and
visually impaired and has subsequently branched to also service
children and adults, who suffer from other developmental and
physical disabilities.
Patrick Johnson is Respondent’s executive director, who is
primarily responsible for its overall operations in conjunction
with Respondent’s board of directors.
Reporting to Johnson are Gayle Wintjen, general counsel and
secretary to the board of directors, James Jones, vice president
of finance, as well as Donna Shears, director of human re-
sources.
B. Bargaining History
Since the early 1980s, the Union has represented employees
in a unit composed of regular full time, regular part time, and
per diem (also known at Respondent as “substitutes”), teaching
and “direct care” staff (also known as residential program
workers and day service workers), plus maintenance employ-
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees, employed by Respondent and assigned to one or more of
Respondent facilities.
Respondent employs approximately 1300 employees, 875 of
whom are employed in bargaining unit positions and have been
represented by the Union.
The parties bargaining relationship has been embodied by a
series of collective-bargaining agreements, the most recent of
which had an effective date of March 31, 2007, through March
31, 2011.
Linda Vannoni, a vice president of the Union, was the Un-
ion’s chief negotiator for the above contract and also participat-
ed in negotiations for the prior agreement, which had expired in
2007. She continued in the role of chief negotiator during the
present set of negotiations for the expiring contract in 2011.
Gayle Wintjen was the chief negotiator for Respondent for
the 2007–2011 contract as well as for the contract reopener in
2009. In January 2011, Respondent retained Attorney Patrick
McHale as its chief negotiator for the negotiation for the expir-
ing contract, in large part due to McHale’s experience negotiat-
ing with the Union on behalf of agencies similar to Respondent.
C. The 2007–2011 Contract
Article 17 of the 2007–2010 contract had the following pro-
visions regarding health insurance:
1. The present health insurance plan or one providing equiva-
lent benefits shall continue, subject to the following provi-
sions.
2. Eligibility
(a) An employee who is regularly scheduled for at least twen-
ty hours but fewer than thirty-five hours a week is eligible for
part-time insurance benefits.
(b) An employee who is regularly scheduled for at least thirty-
five hours a week is eligible for full-time insurance benefits.
(c) An employee who was receiving insurance benefits on
June 30, 1992, whose regularly scheduled hours are not suffi-
cient to make him or her eligible for the same level of benefits
under section 2(a) or 2(b) above, shall retain the level of bene-
fits he or she was receiving on June 30, 1992. An Employee’s
right to retain benefits or benefit eligibility under this subsec-
tion shall expire permanently upon the occurrence of any of
the following events:
(1) He or she applies for and is granted a transfer to
another position.
(2) His or her employment is terminated at any time or
for any reason after June 30, 1992, or
(3) If an employee (i) returns from layoff, (ii) returns
to a different position following a leave of absence, (iii) is
involuntarily transferred, or (iv) accepts a materially
changed or significantly changed position or bumps a less
senior Employee in lieu of layoff. In the event of any of
these occurrences, (i), (ii), (iii) or (iv), for as long as he or
she remains in the position he or she obtained as a result of
the occurrence, he or she shall have his or her eligibility
for benefits determined under section 2(a) or 2(b) or shall
be eligible for part time insurance benefits if that position
is one of fewer than twenty regularly scheduled hours a
week but of at least two full shifts a week or he or she
shall be eligible for full time benefits if that position is one
of at least twenty-six regularly scheduled hours a week
but fewer than thirty-five scheduled hours a week.
3. Part-time insurance benefits shall include individual medi-
cal insurance.
4(a) Full-time insurance benefits shall include individual and
family medical insurance, individual and family dental insur-
ance, individual life, accidental death and dismemberment in-
surance, and short-term disability insurance. Employees elect-
ing to enroll their families in the dental plan shall contribute
$5.00 per month.
(b) The Employer reserves the right to eliminate the CIGNA
Health Plan which it currently offers and require Employees
to select of the other options that are currently being offered.
(c) Any time on or after July 1, 1995, the parties, by mutual
agreement, may meet to discuss possible modifications to the
current group health insurance plan. Any change would be
made only by agreement of the parties.
(d) Effective July 1, 2006, specialist office visit co-pay will
increase to Twenty-five Dollars ($25) and prescription co-
pays shall increase to Ten Dollars ($10) generic, Twenty
Dollars ($20) formulary brand and Thirty Dollars ($30) non-
formulary brand.
(e) All Employees who are eligible for and elect individual
health insurance shall contribute twenty ($20.00) dollars per
month toward the cost of health insurance premiums and all
Employees who are eligible for and elect family health insur-
ance shall contribute forty ($40.00) dollars per month toward
the cost of health insurance premiums.
(f) Effective the first pay period beginning after ratification
and for fiscal year 2008, all Employees who are eligible for
and elect health insurance benefits shall make contributions as
follows:
$35.00 per month for individual coverage
$70.00 per month for family coverage
Effective July 1, 2008, Employees who are eligible for and
elect health insurance benefits shall make contributions as fol-
lows:
$40.00 per month for individual coverage
$80.00 per month for family coverage
Employees who elect the Point of Service (“POS”) plan cur-
rently available for out-of-network access shall continue to
pay the differences between a basic HMO plan and the POS,
as well as any applicable health insurance contributions.
5. The Employer shall continue the current life insurance pro-
gram for Employees eligible for full-time insurance benefits,
but shall pay the full cost of such life insurance without con-
tribution from Employees.
6. Pension benefits for members of the bargaining unit shall
continue to be provided under State Statute as amended from
time to time.
OAK HILL 361
7. All eligible Union Employees, hired after December 31,
1992, who are not participants in State Employee Retirement
System (and new Employees after one (1) year of service and
attaining age 21), will participate in Oak Hill’s Defined Con-
tribution Retirement Plan, in accordance with Plan terms and
conditions, with Oak Hill making five percent (5%) of com-
pensation contribution for eligible Employees effective Janu-
ary 1, 2006.
8. The Employer shall continue to provide a short-term disa-
bility plan for Employees eligible for full-time insurance ben-
efits. The plan shall have the following features:
(a) Benefits shall commence with the eighth day of disability
(excluding disability covered by workers’ compensation).
(b) The benefits shall be two-thirds of basic weekly earnings,
to a maximum of $215 per week. Effective August 1, 2002,
this maximum shall be increased to $275.00 per week.
(c) The maximum benefit period is twenty-six (26) weeks.
Articles 23, paragraph 10 of the agreement provides as fol-
lows:
10. Except as otherwise provided in this contract, all past
practices, policies and procedures which constitute material
conditions of employment shall remain in effect and may not
be changed by the Employer without satisfying its obligation
to negotiate with the Union pursuant to the National Labor
Relations Act. In the event of impasse, the matter shall be
submitted to the American Arbitration Association, which
shall render a decision based on a balancing of the justifica-
tion for the change against the impact on the bargaining unit.
Consistent with the provision, there is no evidence that Re-
spondent ever unilaterally changed insurance premiums or ben-
efits prior to 2011.
The record reflects that the annual renewal rate for its medi-
cal insurance plans changes on July 1. In prior years, although
there had been some increases in premium costs to Respondent,
there had never been an enrollment for medical plans that the
parties had not agreed to in some manner, regardless of the size
of the premium increase. In the past, on occasion Respondent
has changed insurance carriers, in part due to premium increas-
es, but only with agreement of the Union, where Respondent
demonstrated to the Union’s satisfaction that the coverage in
the new plan was “equivalent” to the coverage in the prior plan
as is required in the parties’ collective-bargaining agreement.
Respondent has historically offered the same medical bene-
fits to unit and nonunit employees.
D. The 2009–2010 Reopener Negotiations
Pursuant to the terms of the contract, the parties met in 2009
to discuss modifications of the existing wage and insurance
benefits for the unit employees. As noted above, Wintjen and
Vannoni were the chief negotiators for the parties during these
negotiations, which began in March 2009 and consisted of two
meetings in March, two in May, and two in June.
Respondent, by Wintjen at the March 19 opening negotiation
session, presented to the Union a Power Point presentation,
detailing what she described as Respondent’s “dire economic
conditions that exist” that caused Respondent to make pro-
posals, which included reductions in wages and health benefits.
These factors included the fact that Respondent had been un-
derfunded by the State for many years with no rate increases for
the next 2 years, despite increasing expenses, an operating defi-
cit of $6.6 million for the next fiscal year, its endowment lost
30 percent of its value due to stock market decline, and even
using $4 million from the endowment income, a $2.6 million
deficit would still exist with an additional $1.1 million deficit
expected for fiscal year 2010,1 which represents a total project-
ed deficit of $3.7 million for the 2009 and 2010 fiscal years.
Respondent proposed cuts in both wages and benefits in or-
der to help overcome these deficits. With respect to wages,
Respondent offered to pass along to employees a wage increase
if Respondent received an increase in funding from the State
legislature, minus 10 percent. If Respondent was level-funded
or its rates were cut, it offered several alternative cuts. They
included a 5-percent wage cut, a 3-percent wage cut plus elimi-
nation of shift differentials and longevity pay, and a new rate
structure for newly hired employees.
The Union requested 5-percent wage increase in each of the
2 years of the contract term and changes in language on imple-
mentation of layoffs.
With respect to healthcare, Respondent asserted that it has
been notified that it would receive a 9.7-percent rate increase
for health insurance premiums, effective July 1, which would
amount to increased expenses of $800,000 for Respondent for
the year. Respondent made a health insurance proposal, which
it claimed was designed to eliminate 1/3 of the expected deficit.
This proposal included offering bargaining unit employees an
option of a high deductible health plan (HDHP plan), which
had been enjoyed by nonbargaining employees. This plan pro-
vided for a deductible of $1500 for individual coverage and
$3000 for family coverage. Additionally, to partially offset the
deductible to employees, Respondent offered to make contribu-
tions into a Health Savings Account (HSA) for employees, who
opt for that plan, of 66.5 percent of the deductible. Thus, em-
ployees’ costs for this plan would be reduced from $1500 to
$500 for individual coverage and from $3000 to $1000 for
family coverage. This plan was offered by Respondent since it
would result in lower premium costs to Respondent. Respond-
ent also offered as another option that employees could remain
in the existing ConnectiCare HMO Access Plan,2 but, if so,
these employees would have to pay 75 percent of the premium
costs difference between the existing plan and HDHP. For 75-
percent individual’s coverage, this would have amount to
$64.35 a month and for family coverage $174.3 Additionally,
employees choosing this option would incur some increases in
copays on the doctor visits and for prescriptions. Respondent
also offered a hybrid option, which was a continuation of Point
of Service Plan (POS) then in effect, which provided for out-of-
network access. This plan required that the employees pay the

1 Respondent’s fiscal year’s end date is June 30.
2 This is the plan that the large majority of unit employees had cho-
sen to enroll in.
3 If employees chose the HDHP plan, then premiums would remain
at $40 per month for individual and $80 for family coverage.
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
difference in premiums between the costs of the HMO plan and
the POS plan.
Respondent was most anxious to reach an agreement on the
healthcare proposals in 2009 and stressed, at that time, the
time-sensitive nature of these proposals in view of the fact that
Respondent’s premium rates were due to increase by 9.7 per-
cent as of July 1.
In that regard, Wintjen wrote a letter to Vannoni, dated
March 30, 2009, reminding her of the time-sensitive nature of
the issue and complaining about the Union’s failure to schedule
sufficient number of dates for negotiations. This letter is set
forth below:
March 30, 2009
Via Facsimile & First Class Mail
Ms. Linda Vannoni
Vice President, Community Programs
NEHCEU District 1199, SEIU
17 Huyshope Avenue
Hartford, CT 06106
Re: Scheduling of Negotiations with Oak Hill
Dear Ms.Vannoni:
I write in response to your offer of dates to negotiate our wage
and benefit reopener as represented at the bargaining table on
March 24th and reiterated in your email to me dated March
25, 2009.
At the end of our last session on Tuesday evening, we dis-
cussed additional negotiating dates. You stated that you had
no time in April to meet with Oak Hill but offered several
dates in May. This substantial delay in negotiating is of grave
concern to Oak Hill. Though we recognize that in years past
the Union believed that waiting to reach a contract benefitted
our employees, this year such a delay provides no such bene-
fit.
As you are well aware, bargaining unit employees expressed
great interest in the ConnectiCare High Deductible Health
Plan (“HDHP”) and are eager to learn more about it. We will
need to hold open enrollment in early June in order to get em-
ployees on the plan for July 1. Waiting until May to have the
informational sessions and to then negotiate all other remain-
ing terms of our proposals leaves us little time, as our fiscal
year and health plan contract begin again on July 1. If we do
not have an agreement on healthcare by then, we will in all
likelihood face a 9.7% rate increase and increased expense of
approximately $800,000. Moreover, it would be unfortunate if
our employees lose the opportunity to participate in the Con-
nectiCare HDHP due to scheduling issues.
We have held only two sessions thus far. The Union has not
responded to Oak Hill’s proposals, and we have not really en-
gaged in the process of negotiating. Though the legislature
may not timely pass a budget in June, we plan for the next fis-
cal year well ahead of any action by the State. As I explained
in my opening presentation, even if we are level-funded, Oak
Hill will need to make substantial cuts in its expenses, includ-
ing wages and benefits, in order to eliminate its budget deficit.
We are trying to save jobs, but in the absence of a contract
agreement prior to June, we may have no choice but to close
programs and eliminate positions.
In light of the above, I respectfully request that you take a
fresh look at your calendar and find time to meet with us in
April. We are available in April to meet as follows: Friday,
April 3 during the day; Monday, April 6 and Tuesday April 7
in the morning only; April 14th, 20th, 23rd, 27th all day; and
April 28th and 30th in the afternoon only. If you are not avail-
able, perhaps another Union representative can lead these
meetings.
We are pleased that the Union has agreed to have our health
insurance agent come to “informational” sessions with the
Union to better describe the ConnectiCare HDHP proposal
and to answer questions. You offered May 5th and May 7th as
the first dates you are available. While we hope you will be
able to find time in April, we will plan on holding these in-
formational sessions on Tuesday, May 5, 2009. The sessions
will begin promptly at 11:00 am and 4:30 pm. Both sessions
will be held in the Expo Hall in the NEAT Center. I would
expect both meetings to last about an hour.
You have offered four dates in May and we are agreeable to
the following: May 12th in the morning, May 19th in the
morning and May 21st in the afternoon. Morning sessions
will start at 11:00 am and afternoon sessions will start at
4:30pm with the Union meeting with members one-half hour
prior to each session. All sessions will be held in the Expo hall
at the NEAT Center.
I await your response.
Very truly yours,
Gayle C. Wintjen
General Counsel
CC: All staff
Although the parties did bargain over these plans, including
meetings with representatives of Respondent’s health insurance
agent to describe and answer questions on the HDHP plan, no
agreements were reached prior to the July 1, 2009 deadline.
Respondent did not implement the HDHP plan for bargaining
unit employees or make any of the other changes in premiums
that it had offered at the time. It chose to absorb the increases in
premium rates.
Wintjen wrote to Vannoni on June 29, expressing Respond-
ent’s dissatisfaction with the bargaining, particularly the Un-
ion’s failure to agree to the HDHP proposal by the July 1 dead-
line, which she attributed, at least in part, to the Union’s failure
to schedule a sufficient amount of negotiations dates.
OAK HILL 363
This letter is set forth below:
June 29, 2009
Via Facsimile & Electronic Mail
Ms. Linda Vannoni
Vice President, Community Programs
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Status of Negotiations
Dear Ms. Vannoni:
I write regarding the status of our negotiations regarding our
re-opener.
As you are aware, the parties first met on March 19, 2009. At
that time, both sides presented their re-opener proposals. Oak
Hill presented a slide show evidencing the amount of savings
it needed to achieve in order to balance its budget, and the
cost savings that its wage and benefits proposals would ac-
complish. Though alterative proposals were offered, it was
clearly communicated that additional cost savings—either
through renegotiating contract terms outside of the re-opener,
or closing programs—would have to be achieved in addition
to the savings anticipated from the wage and benefit pro-
posals. Oak Hill also informed the Union that its health insur-
ance proposals was time-sensitive insofar as the option for
bargaining unit members to participate in the high deductible
health plan (“HDHP”) would have to agreed to prior to open
enrollment and the new plan year starting July 1, 2009.
At our second negotiating session, on March 24, 2009, the
Union offered two dates in May for further sessions. I wrote
to you on March 30th to request that we meet sooner and
more often and offered nine dates in April so that we might
reach agreement in time for bargaining unit members to enroll
in the HDHP. The Union never responded to that request.
At our negotiating session on May 21st, the Union offered
two dates in June for negotiations. On May 28th, and June
17th I again wrote to you and offered dates for negotiations so
we could meet sooner and more often. The Union never re-
sponded to those requests.
To date, the only agreement we have reached concerns the
advocacy issue. The Union did not agree to the HDHP option
in time during open enrolment and so bargaining unit mem-
bers well not be able to participate in that plan. Negotiations
are moving at a snail’s pace. Moreover, notwithstanding the
pressing need to reduce costs both within the bargaining unit
and the agency as a whole, the Union remains steadfast in
seeking increases in wages and decreases in health insurance
costs, and has yet to offer any counterproposal with respect to
Oak Hill’s wage proposals regarding new hire rates and the
shift differential.
As we have emphasized all along, Oak Hill needs to achieve
cost savings. At out last meeting, we made a proposal to ad-
dress the Union’s demand that Oak Hill withdraw its pro-
posals to cut wages. We urge the Union to come fully pre-
pared on July 2nd with a complete response to this proposals
and that we work hard towards agreement on all wage and
benefit issues. We are quickly reaching a point, where if we
do not implement negotiated savings, we will have no alterna-
tive except to close additional programs and eliminate posi-
tions. This is why I have been requesting that we meet more
often and this is why we must seriously accelerate negotia-
tions, starting on July 2nd.
Very truly yours,
Gayle C. Wintjen
General Counsel
CC: All staff
During the course of these negotiations, Respondent notified
the Union by a letter from Wintjen, with a letter of May 8,
2009, that it had received a quote from Health Net, another
insurance carrier for coverage that would represent a 3.7-
percent increase over Respondent’s premium rates for the next
year. Respondent indicated that in its view the coverage and
out-of-pocket expenses for the employees were the same as in
the current ConnectiCare plan. Thus, the plan would meet the
contract’s “equivalent benefits” requirement and would be sav-
ing Respondent money. Wintjen attached a two-page compari-
son of the two plans, detailing the costs, copays, services of-
fered, and deductibles for both of these plans to demonstrate
that they were equivalent. The letter is as follows:
May 8, 2009
VIA ELECTRONIC & FIRST CLASS MAIL
Ms. Linda.Vannoni
Vice President
NEHCEU, District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Health Insurance Renewal
Dear Ms. Vannoni:
In connection with our ongoing contract negotiations, I write
regarding the renewal of our health insurance plan.
As I stated in the remarks related to Oak Hill’s health insur-
ance proposal, ConnectiCare, our current health insurance
carrier, has advised Oak Hill that it will increase its premium
rates for the plan year starting on July 1, 2009 by 9.7%. That
translates to more than $800,000 in additional costs, in a year
when Oak Hill has not received additional funding from the
State of Connecticut and may well experience rate cuts as the
State wrestles with mitigating the state budget deficit. ln light
of this significant cost increase, Oak Hill asked its health in-
surance broker to rebid its health insurance contract to find
out whether there was another carrier that offered a more af-
fordable yet equivalent plan.
Oak Hill has received a quote from Health Net, an insurance
carrier that was offered to its employees along with the Con-
nectiCare plan not too long ago. Health Net has proposed a
3.7% increase over Oak Hill’s current rates for a health insur-
ance plan that is equivalent to the current ConnectiCare plan.
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A side-by-side comparison of coverage and out-of pocket ex-
penses is attached for your review. The network of physicians
and hospitals is nearly identical as is the prescription cover-
age. The terms of the high deductible health plan/health sav-
ings account are the same. Most important, switching to
Health Net will save Oak Hill approximately $350,000 due
the fact that the premium increase is far less than that pro-
posed by ConnectiCare.
The collective bargaining agreement states that “the present
health insurance plan or one providing equivalent benefits
shall continue, subject to the following provisions.” (Art.
17,¶11). In order to take advantage of the cost reduction for
the new policy period, and because this does not change the
benefits being provided, Oak Hill considers the Health Net
plan to be “equivalent” to the ConnectiCare plan and will
make the change effective July 1. 2009. Oak Hill will be pre-
pared to answer any questions you may have regarding these
changes at our negotiating session on May 12, 2009.
This change would not effect our current contract negotiations
or Oak Hill’s proposals. While the cost savings to be achieved
by changing to Health Net are significant, Oak Hill still needs
to reduce its overall costs. District 1199 remains free to make
any proposals it believes are appropriate with respect to health
insurance. Oak Hill remains free to respond to those proposals
and make others as we believe appropriate.
Please do not hesitate to call me if you have any questions.
Very truly yours,
Gayle C. Wintjen
General Counsel
During the course of the bargaining, the Union ultimately de-
termined that the coverage was, as Wintjen had represented,
“equivalent,” and the Respondent changed carriers to Health
Net for the plan year beginning July 1, 2009. There were no
changes to employees’ benefits, premiums, or copay payments
resulting from this change.
During the course of the 2009 bargaining, the Union made
multiple information requests in order to assist in bargaining
over the issues in the negotiations, including Respondent’s
request to change carriers. The Union conceded that Respond-
ent filed timely and complete responses to these information
demands in 2009.
One of the Union’s information requests, dated February 5,
2009, asked for “copy of the medical plan and dental plans,
‘summary plan description,’ which lists any and all copays,
allowed service, allowed service, number of office visits, de-
ductible, etc.”
In response to that request, Respondent submitted three pag-
es. The first page, entitled “What are the Benefits of Changing
to Health Net,” is as follows:
FACT SHEET: WHAT ARE THE BENEFITS OF
CHANGING TO HEALTH NET
How does this change affect Oak Hill’s financial condition?
ConnectiCare had informed Oak Hill that it intended to
increase its rates by 9.7% effective July 1. Health Net of-
fered Oak Hill a rate increase of 3.7% effective July 1.
This results in a cost savings of approximately $379,000.
How does this change impact Oak Hill’s proposal regarding
HMO costs?
Oak Hill has proposed that employees pay 75% of the
difference between the employer’s cost of the HMO and
the HDHP in each plan year. Applying this formula, the
employee monthly premium costs under the ConnectiCare
and Health Net plans for fiscal year 2010, which begins on
July 1, 2009, would be:
ConnectiCare Health Net Difference
Individual
coverage: $64.35 $49.00 $15.35
Family Coverage: $174.00 $135.00 $39.00
How does this change impact the HDHP/HSA proposal?
The terms of the HDHP/HSA do not change. The em-
ployee monthly contributions will be kept, as promised, at
current levels ($40/month individual and $80/month fami-
ly) for the next two fiscal years. The deductible levels and
the amounts Oak Hill will deposit into the HSAs remain
the same. Like the HMO, the only real difference would
occur if an employee’s medical provider is not on the
Health Net network. Significantly, if an employee’s medi-
cal provider is not on the Health Net network, the
HDHP/HSA will be attractive because the medical ex-
penses for that provider can be paid out of the HSA.
Does the new health insurance plan make any other changes?
Yes. Oak Hill was able to include within the plan cov-
erage the outpatient procedures and hospitalization cover-
age that Oak Hill has been self-insuring since 2008. This
means that after July 1, 2009, employees will no longer
have to carry the additional insurance card. In essence, the
coverage for outpatient procedures and hospitalizations
will return to what it was prior to June 2008.
The benefits office will be scheduling open enrollment in the
very near future. In the meantime, if you have any questions,
please contact Rose Bolton, Director of Compensation and
Benefits, at 769–3829.
Respondent also transmitted to the Union a two-page chart,
reflecting comparisons of the existing ConnectiCare Medical
plan with the proposed Health Net plan. These two pages are
not entitled, “Summary Plan Descriptions,” as requested by the
Union, and do not appear to be documents prepared by the
insurance companies. Rather, it appears to be Respondent’s
efforts to compare the two plans as per the Union’s inquiries,
concerning “co-pays, allowed services, number of visits, de-
ductibles, etc.” As related above, these pages reflect that these
plans were virtually identical in all aspects and persuaded the
Union that Respondent would be in compliance with the equiv-
alency language in the contract by changing carriers. I note also
that at the time, although the Union had requested “Summary
Plan Descriptions” of the plans, that Respondent did not inform
the Union that there were no such documents. Instead it provid-
ed the Union with what it believed to be responsive to the Un-
ion’s requested information concerning the copays, allowed
OAK HILL 365
services, number of visits, deductibles for the plans, which the
Union had indicated would be included in the “Summary Plan
Description” that it asked for.
Thus, as detailed above, despite Respondent’s repeated as-
sertions during the 2009 bargaining that its health insurance
proposals were “time sensitive” and needed to be addressed
prior to the July 1, 2009 deadline, resulting in substantial pre-
mium increases that the deadline came and went without an
agreement on any of Respondent’s proposals. Thus, there was
no agreement on Respondent’s proposals to increase premium
payments by employees on the HMO plan, and no agreement
on Respondent’s proposal to offer the HDHP plan to bargaining
unit employees. Respondent, therefore, did not offer to the
HDHP to such employees but did offer it to nonbargaining unit
employees with a 75-percent payment by Respondent with an
HSA for such employees.
The additional premium increases for the existing bargaining
unit plans were absorbed by Respondent, and these employees
continued to be covered by existing plans with no changes in
premiums or coverage for the plan year starting July 1, 2009.
Subsequent to July 1, 2009, the parties continued to bargain
over the midterm modifications, including the Respondent’s
continuing efforts to include the HDHP plan as an option for
employees. Respondent, during this bargaining, also proposed
eliminating the “equivalency” language in the contract.
Additionally, in 2010, Respondent proposed changing carri-
ers from Health Net to United Health Care/Oxford, again as-
serting to the Union that the benefits and coverage for the two
plans were equivalent and that since Oxford’s premiums were
less, it wished to change to Oxford for the employees. Re-
spondent continued to press for the acceptance of HDHP plan
as an alternative, and the parties continued to bargain over that
issue. In that connection, the Union proposed a reduction in
employee premiums for employees,4 who opted for the HDHP
plan (plus the HSA as an incentive for employees to switch to
that plan). The Union also proposed that Respondent pay 75
percent for the deductible for the HAS plan and that Respond-
ent accept the Union’s wage and economic proposals in ex-
change for the Union’s agreement on the HDHP plan.
Ultimately, the Union withdrew its demands for agreements
on its demands and agreed to the HDHP plan, and Respondent
agreed to contribute 75 percent of the deductible into an HSA
for employees. Respondent also agreed to withdraw its de-
mands for other concessions and changes in the equivalency
language.
In early June 2010, the parties reached agreement on
healthcare issues, which was reflected in a document, entitled,
“Agreement regarding Health Insurance,” signed by Respond-
ent on June 11, 2010, and by the Union on June 10, 2010. The
document is as follows:
AGREEMET REGARDING HEALTH INSURANCE
PROPOSALS

4 The Union proposed reductions of the $40/$80 premiums (single
and family) to $30 and $70 per month.
Oak Hill (hereinafter referred to as “the Employer”) and The
New England Health Care Employees Union, District 1199,
SEIU (“the Union”) agree and resolve the following:
WHEREAS the parties’ 2007–2011 collective bargaining
agreement (“the Agreement”) provides a “re-opener” effec-
tive April 1, 2009 for the purpose of renegotiating medical
benefits and other matters as more fully set forth in the
Agreement; and
WHEREAS both parties have made proposals concerning
medical benefits;
NOW THEREFORE, the parties agree as follows:
1. Effective July 1, 2010, Oak Hill shall offer to members of
the bargaining unit a High Deductible Health Plan (“HDHP”)
and Health Savings Account (““as”) through United Health
Care/Oxford (Freedom Plan) on the same terms and condi-
tions as offered to all other Oak Hill employees, as more spe-
cifically set forth in paragraph 2. Participation in the
HDHP/HSA shall be voluntary and shall be offered as an op-
tion in addition to the United Health Care/Oxford Freedom
Plan HMO, which shall replace the existing Health Net HMO
Plan.
2. The HDHP/HSA shall be offered to employees who elect
benefits under the HDHP/HSA during the 2010–2011 Plan
Year on the following terms:
a. Monthly employee premium contributions for the
Plan Year starting July 1, 2010 shall be $40 for individual
coverage and $80 for individuals with dependent cover-
age;
b. The annual deductibles shall be $1500 for individual
coverage and $3000 for individuals with dependent cover-
age; and
c. Oak Hill shall fund 75% of the deductible and shall
make deposits into employees’ HSAs on a quarterly basis
starting on or about July 1, 2010.
3. Oak Hill formally withdraws all other proposals and coun-
terproposals made to date regarding medical insurance cover-
age including but not limited to: premium cost-sharing and
copayments; Oak Hill’s proposal to eliminate the contract
language which maintains any subsequent plan as “equivalent
to” the current plan; Oak Hill’s proposal to increase HMO co-
pays in effect under the HMO plan; and Oak Hill’s proposal
to increase employee medical premiums for the HMO plan.
4. Employees shall have until June 22, 2010 to submit their
insurance applications to Oak Hill’s Benefits Department. So
long as the applications are on file by that date, employees’
benefits will not lapse and their new coverage will commence
effective July 1, 2010.
For Oak Hill For NEHCEU, District 1199, SEIU
Gayle Wintjen Linda Vannoni
This agreement was to be effective July 1, 2010, the effec-
tive date of the new insurance year for the plans as in 2009.
There was some discussion between Wintjen and Vannoni con-
cerning the enrollment dates and issues in June 2010, particu-
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
larly since there was an agreement on offering the HDHP plan,
which was a new plan for Respondent’s unit employees.
An email exchange between Wintjen and Vannoni concern-
ing enrollment issues on June 9 is set forth below:
From: Linda Vannoni [mailto:lvannoni@seiu1199ne.org]
Sent: Wednesday, June 09, 2010 3:12PM
To: Gayle Wintjen
Subject: RE: AGREEMENT REGARDING HEALTH
INSURANCE PROPOSALS, rev 6–8–10
HI gayle, looks good and thanks for modifying. Also, one
more thing the parties agreed to. You said it would be fine to
have an extended date for members to sign up and enroll. I
would like to add a paragraph that reads. BU employees will
have until July 1, 2010 to enroll in any of the plan options and
maintain coverage without any lapse, or at least up until June
29th. Let me know and I will be happy to sign then. Thanks
_________________________________________________
From: Gayle Wintjen [mailto:wintjeng@ciboakhill.org]
Sent: 2010–06–09 3:22PM
To: Linda Vannoni
Cc: Donna Shears; Rose Bolton
Subject: RE: AGREEMENT REGARDING HEALTH
INSURANCE PROPOSALS, rev 6–8–10
Linda,
I do not recall extending any enrollment date, as our Plan
Year starts July 1. What we said is that we would offer addi-
tional informational sessions on the HDHP and information
concerning those sessions has been distributed. Our benefits
department does need time to get all paperwork prepared and
reviewed for accuracy so that employees can have coverage
starting July 1. Also, we stated that employees who are cur-
rently have coverage at Oak Hill through the HMO do not
need to go through open enrollment unless they need to make
a change in their coverage (e.g., individual to dependent cov-
erage). So the only employees who are affected by this
change are employees who wish to move from the HMO to
the HDHP. They will still have until June 22 to submit their
forms to the Benefits department. If you want me to add a
sentence about that June 22 date in the agreement I am happy
to do so, but I do not believe it is necessary.
Thanks, Gayle
Gayle C. Wintjen
769-3827
_________________________________________________
From: Linda Vannoni [mailto:lvannoni@seiu1199ne.org]
Sent: Wednesday, June 09, 2010 3:43 PM
To: Gayle Wintjen
Subject: RE: AGREEMENT REGARDiNG HEALTH
INSURANCE PROPOSALS, rev 6–8–10
It would be helpful. June 22nd it is. It would be great if you
could extend it to June 25th. I do know your people need
time. But the employer didn’t really give us much time nego-
tiate. We will be helping to advertise signing up for the HSA
so more time it is likely more people will be able to enroll.
Thanks
Linda Vannoni
Vice President
District 1199 NE/SEIU
(860) 549–1199
Further, additional information requests were made by the
Union and complied with by Respondent during the 2009–2010
bargaining that ultimately resulted in the modification agree-
ment. As related above, Respondent proposed changing carriers
form Health Net to Oxford but stated that the benefits were
equivalent for the plans as the contract requires. The Union was
interested in verifying that assertion and in that connection, the
Union requested summary plan descriptions for the Oxford
plan.
On May 28, 2010, Wintjen sent an email to Vannoni with the
subject “FW: Oak Hill Benefit Summaries.” These emails read,
“Here are the SPDs for the new health insurance coverage. I
have not reviewed them thoroughly, but it appears that Oxford
is even more attractive than Health Net. We can discuss these
on Tuesday afternoon. Thanks Gayle.”
Wintjen forwarded to Vannoni benefit summaries comparing
the Health Net and the Oxford plans prepared by Respondent’s
insurance broker, Peter Wertsching. The summaries consisting
of 12 pages, comparing the Oxford and Health Net plans in all
three categories of plans that were being offered.5 These sum-
maries detailed cost including deductibles, coinsurance, de-
scriptions of coverage for preventative care, in-patient care,
out-patient care, emergency care, maternity care, mental
healthcare, treating alcohol addiction home health and hospice
care, eye care, and pharmacy. These pages also included the
following footnote. “This is intended to be a general description
and comparison of plan benefits. A complete listing of benefits
and exclusions will be provided in the Oxford benefits sum-
mary and certificate of coverage.”
Vannoni testified that the information provided in May 2010,
although not entitled, “Summary Plan Description (SPD),”
contained most of the information that would be included in
what she believed to be an SPD. Vannoni added that subse-
quent to receiving the above information, she still had some
questions about some of the items that needed answering. Thus,
Vannoni made several email and phone requests of Wintjen to
answer the inquiries that Vannoni had about some of the bene-
fits. Wintjen immediately forwarded the answers to Vannoni’s
questions from the brokers and promptly informed Vannoni of
these responses. Vannoni provided some examples of addition-
al questions that she asked, which were not elaborated upon in
the summaries provided. These include what qualifies as dura-
ble medical equipment, whether the number of visits per year
can or must be combined for physical, occupational, or speech
therapy, more details about what allergy services are covered as
well as questions about what OB/GYN services are included.
Upon receiving answers to these inquiries from Respondent,
Vannoni reviewed the information provided and concluded that
the Oxford Plan’s coverage appeared to be “equivalent” to the

5 POS plan, HMO plan, and HDHP plan.
OAK HILL 367
Health Net Plan, as Respondent had asserted and agreed that it
could be substituted and implanted for bargaining employees as
of July 1, 2010.
E. The 2011 Arbitration
In November 2009, after being unable to secure the conces-
sions and agreements from the Union that it sought in the mid-
term bargaining, Respondent reduced the scheduled hours of
unit employees, which resulted in 22 employees suffering a loss
of medical benefits since their scheduled hours after the cuts
rendered them ineligible for this benefit. The Union believed
that the cut in hours was arbitrary and was done by Respondent
in retaliation for the Union failing to agree to it bargaining pro-
posals and filed a grievance on November 17, 2009, requesting
that affected employees’ lost wages be repaid, their former
benefits be reinstated, benefits cuts be restored, and grievants
be made whole for the uncovered medical bills.
The grievance ultimately proceeded to arbitration before Ar-
bitrator Tim Bornstein on March 7 and June 7, 2011.
Arbitrator Bornstein issued his decision on September 7,
2011, finding the Respondent did not violate the collective-
bargaining agreement by reducing the hours of some of its bar-
gaining unit employees. He rejected the Union’s arguments that
Respondent’s actions were arbitrary or in retaliation for the
failure to obtain bargaining concessions. The decision reviewed
much of the bargaining history, detailed below, including the
failure of Respondent to obtain the concessions from the Union
that it deemed necessary to meet is budget deficit. He essential-
ly concluded the Respondent’s actions did not violate the con-
tract and were done for legitimate business reasons. His re-
sponse to the Union’s assertions sums up the essence of his
decision.
Arbitrator Bornstein concluded:
While there was no agreement in negotiations, that did not
limit management’s right to do what the contract expressly
authorizes. Management sought wage concessions in bargain-
ing because of its unquestioned fiscal crisis. Failing to achieve
concessions in bargaining, it reduced some employees’ hours
in order to deal with its looming deficit. That was a decisional
response to, not retaliation for, the parties’ failure to reach
agreement in bargaining. Management’s financial crisis was
real, and it responded to the crisis, not to the Union’s refusal
to make concessions…Of course, the 22 Oak Hill employees
who lost benefits or who were forced to bump into other posi-
tions to maintain benefits suffered real harm. The loss of in-
surance benefits can be extremely painful, even catastrophic,
to a family. Yet the record leaves little doubt that manage-
ment’s scheduling changes were prompted by its severely de-
teriorating financial situation. These are hard times for non-
profit organizations, especially in the health care sector. Un-
fortunately, their employees are not exempt from the conse-
quences. Management of Oak Hill was over a financial barrel,
and the actions it took to meet its obligations to its mission
were severe, but they did not violate the collective bargaining
agreement.
F. 2011 Contract Negotiations
On December 14, 2010, the Union sent a letter to Respond-
ent, informing it that the Union wishes to start negotiations for
a new agreement to replace the contract due to expire on March
31, 2011, and asked for a meeting “as soon as possible.” The
Union also notified the Federal Mediation and Conciliation
Service (FMCS) about the bargaining request.
By letter, dated December 23, 2010, from Vannoni to Donna
Shears, Respondent’s human resources director, the Union
requested information in furtherance of such negotiations. The
letter is as follows:
December 23, 2010
Donna Shears, Human Resources
Oak Hill
120 Holcomb Street
Hartford, CT 06112
Fax (860)-769-6562
Dear Ms. Shears-
The Union is requesting the following information in elec-
tronic format, where available.
1. A current list of employees in the bargaining unit(s) repre-
sented by District 1199 at your facility that includes the fol-
lowing:
 Wage rate
 Regularly scheduled hours per week
 What type of health insurance plan/plans they are en-
rolled in and their level of coverage–ex. employee
only, plus one, family.
 Cost to employee for these insurance plans
 Cost to employer for these insurance plans
2. For each of the insurance plans offered to unit employees
(medical, life, short term disability, etc.) please provide us
with a summary plan description.
3. A list of all insurance benefit plans offered that includes
the number of employees eligible, the number of employees
participating in each and the number of hours needed to quali-
ty for each insurance benefit. Please indicate where there is a
difference in cost to an employee based upon their status as
full or part time, and what that cost difference is, if any.
Example-Dental insurance: 75 employees eligible; 43 em-
ployees participate; 25 are full time; 18 are part time; 12 have
individual coverage at this cost. . . .
We request that you send us the information above in elec-
tronic format as soon as possible to Frances Boyes at
fboye@seiu1199ne.org. If some of the requested items re-
quire time to compile please send us the information that is
readily available first and forward other material at a later
date. Please contact me by phone or letter if you anticipate
any difficulty in complying with this request in full within ten
business days.
Thank you in advance for your cooperation.
Linda Vannoni, Vice President,
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NEHCEU District 1199, SEIU
Upon receiving this request, Shears assigned the task of
compiling and forwarding the information to the Union to one
of her subordinates, Rose Bolton, director of compensation and
benefits. Bolton was involved with “year’s ends” and the holi-
days were approaching, so Shears instructed Bolton to get to it
after the holidays.
In late January 2011, Shears followed up and asked Bolton if
she had complied with the Union’s request. Bolton replied that
she had not done it. Shears instructed Bolton to get it done as
quickly as possible. However, Bolton never got around to com-
plying with the request. Shears was retiring at that time and was
in the process of training her replacement as well as other mat-
ters and simply did not get to it before she retired.
Shears never followed up and inquired if Bolton had done it
because she assumed that Bolton had complied with her in-
structions in January to get it done as soon as possible. Thus,
according to Shears, the request just “slipped through the
cracks.”
The Union did not renew its request for this information until
after the bargaining actually started in March 2011, as will be
described below.
Respondent did not respond to the Union’s December 10,
2010 request to meet and bargain until a letter, dated January
28, 2011.6 The letter was from Patrick McHale, who advised
the Union that his law firm will be representing Respondent
with regard to the upcoming contract negotiations with the
Union, and asked the Union to “please contact me at your earli-
est convenience so that we can discuss mutually agreeable dates
and times to begin negotiations.”
The Union received McHale’s letter on January 31. Vannoni
responded by email on February 2 as follows:
Dear Pat McHale,
I am writing to schedule negotiations for a Successor Collec-
tive Bargaining Agreement at Oak Hill School. Below are a
series of dates the Union is offering for negotiations:
3/1/11 10am–6 pm
3/8/11 10am–8 pm
3/10/11 10am–8 pm
3/15/11 10am–8 pm
3/16/11 10am–8 pm
3/17/11 10am–8 pm
3/23/11 10am–8 pm
3/24/11 10am–8 pm
3/29/11 10am–8 pm

6 All subsequent dates are in 2011, unless otherwise indicated.
3/30/11 10am–8 pm
3/31/11 10am–8 pm
4/5/11 10am–8 pm
4/7/11 10am–8 pm
4/12/11 10am–8 pm
4/13/11 10am–8 pm
4/14/11 10am–8 pm
I propose that the parties hold our first session in the evening
following day programs. When you respond to the above
dates for availability please respond to ALL dates which work
for your negotiating team as I am offering these dates to all
employers I am negotiating with and I would like to expedite
our ability to meet to reach successor agreement by having as
many available dates as possible to work with.
I will follow up this email with an information request to help
prepare the Union’s proposals. In the mean time, please re-
spond to dates you are ready to negotiate as soon as possible. I
appreciate your cooperation in advance.
Sincerely,
Linda Vannoni
Vice President
McHale responded on behalf of Respondent by email in Feb-
ruary, in which he offered to meet on nine of the dates proposed
by Vannoni. The email is as follows:
From: Patrick J. McHale
Sent: Friday, February 04, 2011 1:37 PM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: RE: Oak Hill Contract Negotiations - Union offer of
dates
Linda:
Oak Hill’s negotiating committee is available for negotiations
on the following dates you offered:
3/8 beginning at 4pm
3/15 beginning at 1pm
3/17 beginning at 1pm
3/23 beginning at 1pm
3/29 beginning at 1pm
3/31 beginning at 1pm
4/7 beginning at 1pm
4/12 beginning at 1pm
4/14 beginning at 1pm
Please confirm that these dates remain agreeable to District
1199. I and the other members of Oak Hill’s negotiating
committee look forward to meeting with you and your com-
mittee soon.
Vannoni responded to McHale by email on February 8, stat-
ing that she was “reviewing dates,” but inquired about and dis-
cussed times for the meetings. The email is set forth below,
along with McHale’s response on February 13, discussing times
and asking what dates are acceptable to the Union.
OAK HILL 369
From: Linda Vannoni [mailto:lvannoni@seiu1199ne.org]
Sent: Tuesday, February 08, 2011 4:13 PM
To: Patrick J. McHale
Subject: RE: Oak Hill Contract Negotiations- Union offer of
dates
Pat:
I am reviewing dates for negotiations. I notice in your email
you said for most dates that beginning at 1pm when your team
is available. I am not sure you are aware that the parties have
routinely scheduled sessions such that they rotate every other
session, evening morning. The evening sessions typically start
at 5 pm and morning sessions would start at 11:30 am. There
are virtually no members available to negotiate at 1pm they
need to leave for work right around that time. The Union sees
no reason to stray from our practice of having morning nego-
tiations begin around 11:30 am. Please advise if your team is
not available in the morning times beginning at 11:30 am.
Let me know
_________________________________________________
From: Patrick J. McHale
Sent: Sunday, February 13, 20114:51PM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: RE: Oak Hill Contract Negotiations - Union offer of
dates
Linda:
In response to your request below my committee is willing to
begin negotiations at 11:30am as you requested on any of the
dates we proposed to begin at 1pm in my email to you dated
February 4, 2011. Please let us know what dates are accepta-
ble to you and your committee for negotiations.
On February 16, Vannoni emailed McHale and confirmed
that the Union can meet on March 15 at 6 p.m. and March 23 at
11:30 a.m. McHale responded by email and fax on February 18,
as follows:
February 18, 2011
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni
Vice President, Community Programs
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Scheduling of Negotiations with Oak Hill
Dear Ms. Vannoni:
I am writing in response to your recent email “confirming”
negotiation dates of March 15 at 6:00 pm and March 23 at
11:30 a.m. In my email to you of February 4, 2011, Oak Hill
offered nine (9) dates in March and April for negotiation ses-
sions starting at 1:00 p.m. I then wrote to you on February 13
advising that we were willing to start negotiation sessions at
11:30 a.m. instead of 1:00 p.m. to accommodate your request
that we do so. At no time did we offer to meet on the evening
of March 15 as members of my negotiating committee are not
available that evening. We are also available on March 23 at
11:30 a.m. and will plan to meet with you on that date and are
willing to meet on any of the other dates that were offered on
February 4th.
Please let me now [sic] if you are available on any of the other
dates that we offered besides March 23, 2011.
Sincerely,
Patrick J. McHale
Cc: Gayle C. Wintjen
On March 1, McHale sent an email to Vannoni clarifying
that the only agreed-upon date at the time was March 23 and
offering April 12 and 14 as additional dates.
Vannoni responded by email of March 3, confirming March
23 and April 12. This email exchange is set forth below:
From: Patrick J. McHale
Sent: 2011–03–01 11:41AM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: RE: Oak Hill Contract Negotiations - Union offer of
dates
Linda:
The purpose of this email is to attempt to clarify the dates we
have agreed to hold negotiations on a successor contract. Of
the 9 dates we offered you on February 4th, the only con-
firmed date you indicated was acceptable is March 23, 2011
beginning at 11:30am. Therefore we anticipate that will be
our first negotiating session.
In an effort to schedule additional sessions on dates you indi-
cated you were available this is to offer additional negotiating
dates as follows:
April 12, 2011at 4:30pm
April 14, 2011at 11:30am.
_________________________________________________
From: Linda Vannoni
Sent: Thursday, March 03, 2011 10:47 AM
To: Patrick J. McHale
Cc: nness@seiu1199ne.org
Subject: RE: Oak Hill Contract Negotiations- Union offer of
dates
Pat:
I am writing to confirm negotiations dates for the successor
contract at Oak Hill:
3/23/11 at 11:30 am
4/12/11 at 5:30pm
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Both at NEAT Market place.
These dates are acceptable.
Linda Vannoni
Vice President
District 1199 NE/SEIU
(860)–549–1199
Please confirm that these two additional dates are acceptable
to the Union.
Thus, the first negotiation session took place on March 23.
Vannoni testified that she was bargaining for a large number of
contracts during the same period with many employers. Indeed,
some of these employers, such as HARC, Connecticut South-
point, and Connecticut Greenwich are employers, who are also
represented by McHale. Therefore, although she offered 16
dates to Respondent in her initial letter, she also offered them to
the other employers with whom she is bargaining. Indeed, her
letter to Respondent so states.
Thus, by February 16, when she “confirmed” two dates out
of the nine that McHale had proposed, the other dates that she
had initially proposed had been filled by other employers.
There was also apparently some confusion about March 15.
Both parties had agreed to that date, but the time became a
problem. The Union initially had proposed 10 a.m. to 8 p.m. for
that date as the time. McHale responded that on March 15,
Respondent could meet at 1 p.m. and then in another email
notified Vannoni in response to her requests that Respondent
could meet at 11:30 a.m. on any day that it agreed to start at 1
p.m., including March 15. Vannoni apparently assumed incor-
rectly that McHale, from these email exchanges, Respondent
could meet on March 15 at 6 p.m. and that is why she “con-
firmed” that date. She was mistaken in that assumption as
McHale had only agreed to meet on March 15 at 1 or 1:30 p.m.
and not at 6 p.m. as Vannoni proposed.
The March 23 negotiation session took place as scheduled.
McHale and Vannoni were the primary negotiators on behalf of
Respondent and the Union. Respondent’s negotiating team
included Wintjen and Shears, who were also present and partic-
ipated in the sessions. The Union also had various employee
members of its bargaining committee present, who also con-
tributed to the discussions.
Vannoni, on behalf of the Union, presented and explained
the Union’s proposal for a successor agreement. The proposals
included 60-cents-per-hour wage increases on all rates and
minimums each year of the contract, some changes in seniority,
increases in full-time positions, plus a number of changes relat-
ing to Respondent’s medical plans, primarily related to em-
ployees’ eligibility for medical coverage. The Union proposed
that employees, who work 20 hours on average a week in a 3-
month period, shall be eligible for part-time medical insurance
for the following month and that employees, who work 35
hours on average in a 3-month period, shall be eligible for full-
time insurance for the following month. The expiring contract
provided that employees scheduled for 20 hours for part-time
insurance and those scheduled for 35 hours were eligible for
full-time insurance.
However, at Respondent, the practice was that a number of
employees would be scheduled for less than 20 or 35 hours a
week but would, in fact, work these hours. Thus, the Union was
interested in making more employees eligible for health insur-
ance benefits and proposed this exchange in eligibility. This
problem, according to Vannoni, became exacerbated when
Respondent reduced scheduled hours for a number of employ-
ees, resulting in some cases, in reductions in medical insurance
eligibility. As noted above, this resulted in the Union’s arbitra-
tion demand, discussed above, where the Union felt that these
reductions were in retaliation for the Union having to agree to
its proposals to change medical coverage in the 2009 midterm
negotiations. The arbitration was still ongoing at the time the
negotiations started in March 2011, and the Union explained
that it was seeking to make up for these cuts as well as to in-
crease employee eligibility for insurance. A number of employ-
ee members of the Union’s committee spoke up about this issue
and what they perceived as the unfairness of their treatment by
Respondent and how the cuts had adversely affected the em-
ployees’ medical coverage and how unfair it was that employ-
ees not be eligible for medical coverage based on hours worked
rather than the current system based on scheduled hours.
Vannoni explained that in her opinion that the Union had
previously agreed to permit Respondent to make modifications
in employee work schedules, but that Respondent had abused
that when they cut hours for cost savings, which resulted in loss
of medical benefit of eligible positions.
The Union also proposed that all who work over 20 hours a
week be eligible for insurance, which would encompass per
diem or casual employees, who were not eligible for any insur-
ance, even though a number of them would actually work more
than 20 hours a week.
Respondent had no questions about any of the Union’s pro-
posals and made no comment about the proposals.
Instead, McHale made a long “opening statement,” in which
he stated that Respondent appreciated the hard work that the
employees perform and that their work is greatly valued by
Respondent. However, McHale observed that the State of Con-
necticut is bankrupt and Respondent cannot expect any addi-
tional funding, which it has not received for the past 3 years.
Thus, while Respondent was about to make proposals that em-
ployees would view as extremely concessionary, they were
necessary and were not reflective of the fact that Respondent
was not appreciative of their work. Indeed, they were reflective
of the fact that Respondent had been experiencing operational
deficits that would be expected to continue unless Respondent
could get a handle on costs. He also noted that 78 percent of
Respondent’s costs are personnel related and that Respondent
had lost between $3.5 and $6 million a year over the 3 years of
the past contract and hasn’t received any more funding.
McHale passes out a copy of Respondent’s proposals for a
new contract and explained each of them in some detail. With
regard to wages, McHale emphasized again that there was no
increases in funding from the state to be likely, so no increases
can be offered. However, if Respondent receives increases in
funding from the legislature, it would pass through the increas-
es in wages, less 1 percent. Respondent also proposed, as it had
in 2009, freezing longevity pay, eliminating shift differentials
OAK HILL 371
and creating a new wage structure for employees hired after
March 31, 2011. Respondent also proposed deletion of current
contract language requiring Respondent to negotiate the effects
of subcontracting work and the requirement that if there is an
impasse in negotiations, Respondent can implement such sub-
contracting only if affected employees be offered continued
employment with Respondent or the contractor.
Article 17, Insurance and Pension received considerable dis-
cussion by McHale. He emphasized that Respondent was facing
substantial increases in medical costs and added that he repre-
sented a number of unionized agencies, including HARC in
Hartford, whose employees were envious of the medical bene-
fits provided by Respondent.
In order to meet these substantial increases in costs, McHale
stated that it would be necessary to propose several changes to
the current medical benefits provisions. He proposed changing
the current contract language, requiring that any changes in the
current plan must be to a plan providing “equivalent” benefits
to “comparable” coverage. Additionally, Respondent proposed
that if premium costs for Core medical insurance increased by
more than 10 percent, effective July 1, 2012, Respondent can
implement a different medical plan without regard to whether
such plan is comparable to the one in effect, provided that Re-
spondent agrees to provide employees with the same insurance
plan terms as it offers to nonunion employees.
Respondent proposed four options for employees for medical
coverage. The first option was the Core HMO plan, wherein
employees would still pay the same current monthly premium
rates of $40–$80 but with higher copays on doctor’s visits,
prescription drugs, and other services. The second option was a
buy-up HMO plan, where the employees would continue to
maintain the same copays as the current plan, but employees
would pay 100 percent of the increased cost in their monthly
premiums. Option three was the existing POS plan, with an
increase in premium costs to employees as compared to the
Core plan. The final option was HDHP plan at the current rates
but with a reduction in Respondent’s contributions to the de-
ductible from 75 to 67 percent.
McHale also stated that health insurance changes need to be
negotiated and agreed to by July 1 and that Respondent was
facing premium rate increases of 19 percent. He added that
Respondent was still negotiating with carriers and did not have
final cost number of premium increases.
The parties then confirmed that the next meeting, previously
agreed to, was for April 12 at 5:30 p.m. Respondent proposed
six additional dates for negotiations, two in April and four in
May, and Vannoni stated that she would advise McHale of the
dates that fit into her schedule.
Respondent did not supply the Union with information that it
had previously requested at this meeting nor did the Union
renew its request for the documents at the meeting.
Respondent introduced evidence and testimony from James
Jones, Respondent’s vice president of finance and administra-
tion, describing its financial condition and its reasons for mak-
ing the proposals that it made, particularly concerning health
coverage. The primary source of Respondent’s income is fund-
ing from the State of Connecticut. Since 2008, the State had
provided “level” funding (no increase or decrease) to Respond-
ent and other similar not-for-profit providers. In addition to
State funding, Respondent receives some funding from Federal
grants, Medicaid money administrated by the State, income
from tuition from its school programs and fee-based services.
Respondent also annually received $1.2 to $1.3 million trusts
and from $700,000 to $800,000 annually in donation and
grants.
Respondent maintains a large endowment fund, which con-
sists primarily of bequeathed gifts from families of disabled
clients serviced by Respondent. The fund is overseen by Re-
spondent’s board of directors, which consists of Johnson,
Wintjen, Jones, and three other board members. An investment
committee advises the board on investments, which is currently
weighted at 60 percent in equities and 30 percent in fixed in-
vestments. Based on advice from the investment fund, the
Board utilizes a policy that established that 4.625 percent of
preceding 12 quarters endowment market value can be used by
Respondent to cover operations and deficits. Jones conceded
that this policy is not mandated and can be changed by the
board. However, according to Jones, the board believed, based
on the investment fund’s advice, that it would be “imprudent”
to deviate from that percentage and the board has never done so
and has followed that policy.
Thus, according to Jones, following this policy, the fund has
distributed $3.6 to $3.8 million to Respondent which it then
applies to cover operations. In this fiscal year 2010, covering
July 1, 2009, to June 30, 2010, the fund held $90 million in
liquid assets. That year the assets were $75 million due primari-
ly to fluctuations in investment value. In 2007, the funding
value was close to $94.6 million but as a result of financial
reversals had been reduced to $69 million and then, as noted,
had rebounded close to its $94.6 million high. Therefore, based
on the formula, Respondent has been using to obtain disburse-
ments from the fund, the amounts received by Respondent from
the fund has increased each year since 2007.
Jones testified, and Respondent’s records confirm, that for
the fiscal years 2008 through 2011, Respondent experienced
operational deficits of $7.3, $6.6, $4, and $5 million, respec-
tively. These deficits resulted from increasing expenses, pri-
marily escalating costs of medical insurance, in the absence of
revenue increases. In 2008 and 2009, Respondent reduced op-
erational deficits by eliminating and consolidating programs
and eliminating from nonunit positions.
In 2010, Respondent reduced its deficit from $6.6 million to
$4 million by, in part, making staffing and scheduling changes.
As noted above, these scheduling changes and reductions in
hours resulted in the Union’s grievance, which was sent to arbi-
tration. As related above, the Union asserted at the arbitration
that the cuts were in retaliation for the Union not agreeing to
Respondent’s proposals to change medical coverage due to
increased premiums costs. The arbitrator ultimately did not
agree with the Union’s position that Respondent violated the
contract by making the scheduling changes, finding that it was
permissible due to financial issues caused at least in part by the
increased in medical costs that Respondent had to absorb in
2009.
In the fiscal year 2011, Respondent’s deficit increased by $1
million again due to the increase in medical costs, which went
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
into effect on July 1, 2010. Respondent again absorbed these
increases and did not propose the modifications in medical
plans as it did in 2009 but did agree with the Union to offer the
HDHP plan to unit employees. The hope was apparently that a
number of employees would opt for this plan, which could
result in savings for Respondent. In fact, very few unit employ-
ees chose to switch to this plan, even with the incentive of Re-
spondent agreeing to fund 75 percent of their deductible.
In early March 2011, Respondent received information from
its insurance broker as part of its normal progress of budget
preparations concerning proposed medical costs for the period
starting July 1, 2011. The broker reviewed marketing plans
from five different insurance companies for coverage. His re-
port, sent to Respondent on March 1, showed that Respondent
faced increases of 18–19 percent in costs for the plans, with an
18.3-percent increase for Oxford, the incumbent carrier.
Jones then prepared Respondent’s budget projections for the
fiscal year, which incorporated the anticipated 18-percent in-
crease in healthcare costs.7 This document also projected an
operational deficit of $6.6 million for fiscal year 2012, an in-
crease of $2 million over the $4.5 million deficit then begin
projected for fiscal year 2011.
Jones shared this information with the members of Respond-
ent’s negotiating team in preparation for the pending negotia-
tions. Meanwhile, Jones was continuing to negotiate with the
broker and the insurance companies to attempt to see what
changes the plan’s design, premium contributions and/or co-
payments in order to reduce the substantial increase in insur-
ance costs that was being project.
While, as noted above, the evidence disclosed that Respond-
ent did have the option of increasing the contributions from its
endowment fund in order to be reducing these operating defi-
cits, it did not do so. According to Jones, that option was never
even discussed or considered by the board since it traditionally
follows its investment advisors’ advice that it would be “im-
prudent” to increase the percentage of money from the endow-
ment fund.
It was in that context that Respondent formulated its bargain-
ing position and concluded that it would push for the changes in
medical coverage that it proposed in order to help cover the
substantial increases in their medical costs, starting July 1.
In this connection, Jones testified that the costs of medical
coverage in Respondent’s budget covers both unit and nonunit
employees, who are both covered by these medical plans with
identical costs to employees. Approximately 60 percent of Re-
spondent’s employees are in the bargaining unit. Thus 60 per-
cent of the increased cost in medical coverage was attributable
to unit employees.
According to Jones, there was no discussion among Re-
spondent’s team of separating unit and nonunit employees in
terms of medical coverage since Respondent had always in-
cluded both unit and nonunit employees, including manage-

7 An anticipated raise from $7.9 to $9.3 million in healthcare costs
from the prior year.
ment, under the same medical plan and preferred to continue
that practice.8
The General Counsel adduced evidence, which it asserts
demonstrates a different financial picture than described by
Respondent’s witnesses. Thus, Respondent’s tax return, known
as 990s,9 show that in fiscal year 2011 (July 1, 2010, through
June 30, 2011) Respondent had revenues of $86.2 million and
expenses of $77.1 million, and in fiscal year 2010 (the prior
year), it had revenues of $77.3 million and expenses of $76.1
million.
Additionally, Respondent’s financial records revealed that its
cash position increased each year from fiscal year 2007 through
fiscal year 2011. Its cash position doubled during that period
from $6.2 million in 2007 in excess of $13.5 million. Addition-
ally, between fiscal years 2009 and 2011, the value of Re-
spondent’s endowment fund grew from $69 to $90 million,
which increased Respondent’s disbursement from the fund
during each passing quarter. Further during the same period,
Respondent’s assets grew from $136 to $171 million and unre-
stricted endowment funds grew from $20 to $69 million. Re-
spondent also maintains a $4 million line of credit that can be
used to deal with emergent financial circumstances.
Finally, Respondent’s financial statements and Jones’s testi-
mony reveal that a significant portion of the operational deficits
cited by Respondent results from accounting principles that
allows for the inclusion of items, such as depreciation and
amortization into the operating expense category, but for which
Respondent does not sustain any out-of-pocket expenditures
during the fiscal year. In fiscal year 2011, Respondent’s operat-
ing expenses included depreciation on $7.8 million worth of
property, including 36 homes, which were donated at no cost to
Respondent in 2011.10
By the close of the March 23 negotiation session, the parties
had agreed on April 12 for an additional date. However, McHa-
le, at the time, furnished the Union with six additional dates and
asked Vannoni to let him know which of the additional dates
would be agreeable to the Union. As of April 7, she had not
responded. McHale then sent Vannoni the following email:
From: Patrick J. McHale
Sent: Thursday, April 07, 2011 5:31PM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: Request for Additional Negotiating Dates for Oak
Hill Negotiations
Linda:
I am writing to request that you provide me with additional
dates for future negotiations.

8 I do note, though, that in 2009, when it first implemented the
HDHP plan, it did so only for nonunit employees since the Union had
not agreed by the July 1, 2009 deadline to offer bargaining unit em-
ployees this option.
9 Because it is a not-for-profit entity, it does not pay income taxes.
10 Respondent had made lease payments to an entity called Corpora-
tion for Independent Living for these payments until fiscal year 2011, at
which time, Respondent took ownership of the properties.
OAK HILL 373
When we met on March 23, 2011 in our first and only session
to date we provided you with eight additional dates for nego-
tiations. We offered 4/12 at 5:30pm, 4/25 during the day, 4/27
during the day, 5/3 day or evening, May 4 day or evening, 5/5
day or evening, 5/9 in the morning and 5/12 in the morning.
You promised to check your calendar a [sic] get back to us.
The only additional date you have agreed to meet is April 12,
2011 beginning at 5:30pm.
As we discussed on March 23, Oak Hill has made numerous,
significant proposals which we feel we need to make to the
contract which expired on March 31, 2011 to be competitive.
We also have a closely approaching deadline related to our
medical insurance plan renewal. Our current plan expires on
June 30, 2011 and we expect that maintaining the current plan
offerings will require a premium cost increase of just under
20%. Such an annual increase is enormous and unsustainable
in the present environment. Since Oak Hill has made it clear
that it does not intend to spend more in the future than it is
spending presently for medical insurance benefits, together
we are going to need to find a way to obtain future benefits in
a way that avoids premium increases or in the alternative em-
ployees are going to end up paying more to keep the benefits
they currently enjoy. For its part the Union has proposed no
alternatives to the present medical insurance offerings and, in
fact, has proposed to make Oak Hill’s financial burden for
medical insurance even more severe by extending benefits to
employees who have never been eligible in the past.
For these reasons we urge you to provide us with additional
dates and times when the Union will be available for negotia-
tions as soon as possible so that we set aside an appropriate
amount of time to engage in collective bargaining about these
important matters.
I hope to hear from you soon.
The parties met on April 12, as scheduled. McHale began the
meeting by repeating comments that he had made at the prior
session about how Respondent believes that its work force is
great and treats its workers with respect. However, costs are
increasing, revenues are not, and Respondent needs to find
ways to reduce costs with the least impact on the employees.
Vannoni responded that the work force had already under-
gone cuts in the past and that Respondent has sat on resources,
including the endowment fund, and uses money on technology,
GPSs, etc., rather than medical benefits. She added that there
has been 4 years of Respondent making expenditures at the
expense of the work force.
The Union submitted four new written proposals dealing
with disciplinary action, vacations, unpaid leaves of absence,
and substitutes. The latter proposal dealt with medical insur-
ance in that it proposed to expand medical coverage to substi-
tute employees, who work (as opposed to scheduled) 20 hours
or more weekly.
The parties then discussed the Union’s proposals and some
of the bargaining committee expressed their views as to why
these proposals were necessary.
Vannoni asked McHale for a response to the Union’s pro-
posals from the first meeting. McHale addressed the Union’s
demand for wage increases by stating that Respondent cannot
increase wages, without increases in revenues and would honor
pass through language in its proposals. Vannoni replied that
Respondent spent money on other things that it would have
spent on wages, including policing employees.
McHale asked the Union about costs of its medical proposal
to base medical coverage eligibility on hours worked and added
that this would be hard to administer. Vannoni replied that she
did not know costs but would supply such information to Re-
spondent.
McHale stated that medical insurance would increase by 18
percent and that Respondent can’t afford an 18-percent in-
crease. He added that Respondent had instructed its insurance
broker to come with plans without any increases in costs to
Respondent. Vannoni responded that any agreement on medical
plans has to be mindful of not increasing employees’ costs.
McHale replied to that comment that employees at other agen-
cies want what Respondent offers to its employees and that he
represented employers at other agencies that negotiated with
the Union and that they pay more and more than what Re-
spondent’s employees pay.
McHale then distributed a two-page document that compared
the financial difference between the existing plans and Re-
spondent’s proposed new plans. The document is set forth in
Appendix A.
The parties discussed and reviewed these documents. Van-
noni had several questions about the plans and the benefits, and
McHale answered them. McHale stated that the new plans are
the same with the same providers and same benefits but differ-
ent copays or premiums. He stated that the network of doctors
and the same level of medical costs and services that were in
place for the prior years would be available under the new plan.
Vannoni responded that the Union was appreciative of the
fact that the benefits are the same, but the Union would need
something in writing to confirm McHale’s assertions. Vannoni
stated that the Union was appreciative of that but that it needed
greater detail from Respondent. Vannoni asked for copies in
writing on the summary plan descriptions or some other plan
document that describes a greater list of specific benefits and
costs than what was contained in the documents presented by
Respondent to the Union. McHale replied that it would not be a
problem, “We’ll get you whatever you need.”
Respondent had modified its proposal regarding the “Core
HMO” plan in response to concerns raised by the Union at the
prior session over the substantial raise from $15 to $35 in co-
pays for doctor’s visits, plus new $75 copay for each high diag-
nostic test, such as an MRI. In between the two sessions, Re-
spondent contacted its broker to see if it could find some way to
reduce these payments in response to the concerns expressed by
employees and the Union. The broker, consulting with the in-
surance company, informed Respondent that it would reduce
the copay from $35 to $30 and eliminate high diagnostic test
copay if the plan reduced payments for durable medical equip-
ment from 100–50 percent of the costs. Therefore, Respond-
ent’s proposal on April 12, in the form of the documents dis-
cussed above, incorporated these changes and reduced the co-
payments from $35 to $30 and eliminated the high diagnostic
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
costs while adding the reduction in payments for durable medi-
cal equipment.
McHale explained to the Union that Respondent cannot af-
ford an 18-percent increase and that it had instructed its broker
to send them proposals for plans without an increase in costs to
Respondent. These plans were what the broker had come up
with and that met Respondent’s determination not to pay any
more than Respondent was currently paying.
McHale added that issues regarding medical benefits need to
be addressed before the deadline related to the health plan re-
newal as its current plans “expire on June 30th.”
Vannoni responded that Respondent take all proposed cuts in
economic terms off the table in order to get an agreement. She
added that the Union would not change the contract language
requiring the maintenance of “equivalent” coverage over the
course of the contracts and that Respondent should absorb any
increases in medical costs by, if necessary, using its endowment
fund.
McHale stated that the change in the equivalency language
proposed by Respondent is the same proposal the Union has
agreed to with other agencies and adds that if the Union had
alternative proposal on language, Respondent would be happy
to listen. McHale explained that Respondent needed this change
in language because each year there can be and usually are
increases in costs in a multiyear contract. Vannoni responded
once again that Respondent should absorb any cost increases, if
necessary, by tapping into the endowment.
The parties then briefly discussed the Union’s request to in-
crease the number of full-time positions, and McHale said that
Respondent cannot agree to that proposal.
After a caucus, the parties discussed a number of language
proposals made by Respondent, and the Union had agreed to
several of them.
The parties then discussed additional dates for negotiations.
McHale proposed April 27 and May 3. The Union agreed to
both dates and left the issue of where to meet for subsequent
discussion.
Vannoni emailed McHale on April 14, stating that negotia-
tions in Hamden, Connecticut, at the Construction Engineers
Union Hall, which would be at no cost to Respondent, and the
parties would meet at 11 a.m. at that location and on May 3 at
the Neat Market Place.
The parties met in Hamden on April 27 as scheduled. Van-
noni began the session by asking Respondent to prioritize its
proposals. McHale replied that all of its proposals are important
but the medical plan proposal is time-sensitive, and Respondent
needed a response on its medical plan proposals. The parties
then reviewed the Respondent’s medical proposals, and McHa-
le explained that Respondent had tried to find a plan that would
allow unit employees to continue paying $40 and $80 per
month, even with the 18-percent increase. McHale explained
the increased costs to employees in premiums if they elected to
continue $40 and $80 copays. He emphasized that the plans had
the same medical networks of doctors and would go through
the same carrier.
Vannoni then asked some questions about specific issues,
such as what is the definition of durable medical equipment
(DME), what is on the list of DMEs on these plans. She also
asked about other items in the plans that were not specific in
the documents presented by Respondent, such as occupational
therapy, physical therapy, speech therapy, and prescription drug
tiers. McHale was unable to provide answers to these questions.
Vannoni stated that the Union needed a greater level of speci-
ficity with regard to plan details. Vannoni testified that the
Union had still not received information from Respondent that
it requested in its December 10 written request and her oral
request at the prior meeting for the summary plan descriptions
on the incumbent plans and had several questions about the
details of the new plans being proposed by Respondent. The
Union, therefore, submitted a written information request, dated
April 27, 2011, which reads as follows:
April 27, 2011
Donna Shears, Human Resources
Oak Hill
120 Holcomb Street
Hartford, CT 06112
Fax (860)–769-6562
Dear Ms. Shears–
The Union is submitting this second request for the following
information in electronic format, where available. The infor-
mation provided will be used by the Union to continue to ad-
vocate at the Capitol for increased funding that could lead to
more affordable health insurance for our members as well as
allow us to make informed proposals at the bargaining table.
We appreciate your cooperation with us in this very important
endeavor.
1. A current list of employees in the bargaining unit(s) repre-
sented by District 1199 at your facility that includes the fol-
lowing:
 Wage rate
 Regularly scheduled hours per week
 What type of health insurance plan/ plans they are en-
rolled in and their level of coverage- ex. employee
only, plus one, family.
 Cost to employee for these insurance plans
 Cost to employer for these insurance plans
2. For each of the insurance plans offered to unit employees
(medical, life, short term disability, etc.), please provide us
with a summary plan description.
3. A list of all insurance benefit plans offered that includes the
number of employees eligible, the number of employees par-
ticipating in each and the number of hours needed to qualify
for each insurance benefit. Please indicate where there is a dif-
ference in cost to an employee based upon their status as full
or part time, and what that cost difference is, if any
Example- Dental insurance: 75 employees eligible; 43 em-
ployees participate; 25 are full time; 18 are part time; 12 have
individual coverage at this cost.
I noted that this document refers to a “second” request. Re-
spondent’s representatives seemed surprised by the Union’s
assertion that it had made a previous request for some of these
OAK HILL 375
items. Indeed, Wintjen testified that she was not aware of the
fact that the Union had made a request in December for the
SPDs of the incumbent plans since the December 2010 request
had not been addressed to her and she was not copied on it. As
noted above, the request had been forwarded by Johnson to
Shears, who had forwarded it to Bolton, her subordinate, and
Shears assumed that it had been complied with, but Bolton
retired before completing this assignment.
McHale responded to Vannoni’s request by stating that he
was unfamiliar with what a summary plan description was, but
if one existed, Respondent would forward it to the Union.
McHale testified that he personally had never seen a document
entitled “summary plan description” before.
Vannoni then asked how many of Respondent’s employees
were enrolled in each of the three current plans. Shears provid-
ed the answers, which reveal that 241 employees were enrolled
in the single HMO plan, 168 family HMO, 4 employees single
HDHP, 6 on family HDHP, and that 137 unit employees elect-
ed no coverage.
McHale stated that the POS plan offered is the same as in the
past but no unit employees selected that plan.
McHale then explained that to the extent that the Union had
questions about any of these plans, Respondent had a broker,
Peter Wertsching, who would be willing to attend negotiations
to provide such information. He asked Vannoni to let Respond-
ent know, and Respondent would make Wertsching available.
Vannoni replied, according to McHale, that “she didn’t like
to meet with brokers.” Vannoni denied making that comment
but conceded that she replied that she was more accustomed to
bargaining with the chief negotiator and that she doesn’t bar-
gain with insurance agents. However, Vannoni stated that she
added McHale “can bring whoever you want. I can’t tell you
who to bring. You can’t tell me who to bring.”
The parties then talked about the HDHP plan, which the par-
ties referred to the HSA plan since that is the funding mecha-
nism for the plan. Vannoni explained that the employees still
have reservations about the high deductible plan and wanted
Respondent to fund 100 percent of the deductible up front.
McHale explained why Respondent could not agree to that
proposal.
Vannoni then requested that Respondent obtain quotes from
its broker for a plan with different copays, increased coverage
of DMEs, or changes in hospitalization deductibles that might
increase premiums for employees but might result in less of an
increase than currently proposed. For example, Vannoni sug-
gested rather than having copays increase from $15 to $30 that
the increase could be up to $20–$25.11
The discussion then turned to other issues, such as the
“equivalency” language that Respondent sought to change.
Again, McHale explained that Respondent wasn’t asking for
anything that had not been agreed to by other agencies and the
Union and reminded Vannoni that Vannoni herself had been the

11 Subsequently, as will be discussed more fully below, Respondent
did obtain a quote on a plan as suggested by the Union. This became
known as “Hamden Plan” since it had been suggested by the Union at
the Hamden meeting.
negotiator for the Union at these agencies, where similar lan-
guage was agreed upon.
Vannoni replied that Respondent had been able to maintain
equivalent coverage for employees in the past and that the Un-
ion expected it to continue to do so. McHale stated that 2011 is
different from prior years, no one can predict increased costs,
Respondent has not received new funding and it cannot contin-
ue to pay for all increases.
After a caucus, the parties discussed several of the Union’s
proposals, including increases in full-time positions and leaves
of absence.
At the close of the meeting, Vannoni asked what Respond-
ent’s priorities were in reaching agreement. McHale replied that
all proposals were important but detailed the priorities for Re-
spondent. They included a new wage scale for new hires, elim-
inating shift differential, freezing longevity, and most im-
portantly, due to the time-sensitive nature of the issue,
healthcare.
In that regard, McHale stated that Respondent needed to en-
roll employees in the near future in order to assure continued
coverage. He added that Respondent had responded to all of the
union proposals.
Vannoni replied as follows: “It is hard to reach agreement
while massive concessions are on the table.” She added that the
Union is willing to reach agreement but not with step wage cuts
on the table and that the parties need to “jump over these hur-
dles before we get to July 1.” Vannoni then observed that if “no
agreement is reached by July 1, Oak Hill pays the full 18%
increase. The Union will not pay any more.”
The meeting ended with an agreement to meet again on May
3 at the Neat Center at Respondent’s facility. The same parties
were present in addition to Kevin Creane, attorney for the Un-
ion.
McHale provided the Union with information that it had re-
quested at the April 27 session, concerning a quote for a modi-
fied Core HMO plan with lower copayments than what Re-
spondent had previously offered and for a modified HDHP
plan, which would substitute HRA for the HSA as a funding
mechanism. He presented Vannoni with documents, detailing
this information, and they were discussed. The modified “Core
HMO” plan would have amounted to increase in premiums for
employees of $48.85 for individuals and $141.85 for family,
which would be an approximate 6-percent increase (as opposed
to 18 percent in Respondent’s plan). However, in order to pay
these premiums, there would be increases for employees in
copays for doctors, hospitals, and surgery. While McHale sub-
mitted this information to the Union concerning the costs of
this modified Core plan, which, as noted above, became known
as the “Hamden Plan,” it did not offer it to the Union as an
alternative at that meeting. Nor did the Union offer it as an
alternative health insurance proposal after receiving the infor-
mation concerning its costs as the Union had requested at the
previous meeting.
McHale then discussed the HDHP/HRA plan and indicated
that this plan was not a viable alternative because it did not
reduce utilization costs, plus there would be higher administra-
tive costs for the HRA plan that the Union suggested might be
an alternative.
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After a discussion of available dates for the next meeting,
both sides agreed to meet on May 25 and again on June 20.
Other dates were also discussed, such as June 8, 9, 17, and 21,
which were not agreed to, and Vannoni stated that she would
confirm with McHale the next day if any of these other June
dates were acceptable.
The Union presented two sets of documents to Respondent.
They were a response to each of Respondent’s proposals and
some additional proposals from the Union. In its response to
Respondent’s proposal on medical coverage, the Union’s doc-
ument stated that it wished to retain the current “equivalency”
language and the Union was “considering proposal of employ-
ees of new medical plan.” Some of the Union’s proposals and
its responses to Respondent’s proposals were discussed, includ-
ing short-term versus long-term disability, snow dates and
changes in domestic partnership in the contract.
Respondent did not supply the Union with the SPDs that it
had twice requested for the current plans or that it had request-
ed orally at the previous meeting for the plans proposed by
Respondent.
On May 6, Respondent’s insurance broker wrote to McHale
and stated as follows:
May 6, 2011
Mr. Patrick McHale
Attorney at Law
Kainen Escalera and McHale, PC
21 Oak Street, Suite 601
Hartford, CT 06106
RE: OAK HILL MEDICAL PLANS
Dear Pat:
I am writing this letter in response to a question on the en-
rollment timing for the Oak Hill medical plans for July 1,
2011. Oak Hill is not proposing changing medical insurance
carriers but employees will have the ability to change plan op-
tions.
Oxford Health Plans has indicated they would need enroll-
ment forms (for employees changing plan options or add-
ing/deleting dependents) to be in their office by June 8, 2011.
With this lead time they feel they would have new ID cards in
the hands of any employees making changes therefore avoid-
ing any dis-ruption/inaccuracies in service.
Please let me know if you need further information.
Sincerely,
Peter J. Wertsching
Senior Vice President
On May 11, McHale wrote to Vannoni the following corre-
spondence:
May 11, 2011
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni
Vice President
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Oak Hill Negotiations
Dear Ms. Vannoni:
As you know, representatives of Oak Hill and District
1199 have met on four (4) separate occasions to date in
negotiations for a contract to succeed the one that expired
on March 31, 2011. More specifically, the parties met in
negotiations on March 23rd, April 12th, April 27th and
most recently on May 3rd. When we concluded our negoti-
ating session on May 3rd, the parties agreed to meet again
on May 25, 2011, since the Union did not have any other
dates to offer in May. We also discussed the possibility of
meeting on June 8th and June 20th. You said you would
check your availability and let us know, but as yet we have
not heard from you.
During each of our negotiating sessions beginning with
the very first one, as well as in periodic email communica-
tions with you, Oak Hill has emphasized that the premium
cost for the Core HMO medical insurance benefits current-
ly in effect for bargaining unit employees will increase by
approximately eighteen percent (18%) effective upon re-
newal (July 1, 2011). As we have communicated to Dis-
trict 1199, Oak Hill is not in a position to pay any more
towards the cost of medical insurance premiums for its
employees than it is paying presently. This means, of
course, that we will need to find one or more alternative
insurance plans that cost no more than our current insur-
ance plan or our employees are going to need to pay more
than they pay presently ($40 per month for single coverage
and $80 per month for employee plus dependent coverage)
to keep their current insurance plan benefits in force fol-
lowing June 30th. More specifically, in order to continue
to receive benefits under the current Core HMO plan fol-
lowing June 30, 2011, employees who elect employee on-
ly coverage would need to pay an additional $111.13 per
month. Those who elect employee plus dependent cover-
age would pay an additional $322.26 per month. As you
are aware, this information has already been shared with
District 1199 during our negotiations to date.
So that employees may avoid such increased costs,
Oak Hill asked its insurance broker (“Willis”) to price out
alternative medical insurance plan designs, which would
cost no more than the current Core HMO plan, while still
offering competitive coverage. In our negotiations to date
we have proposed and provided the Union with infor-
mation regarding an alternative Core HMO Plan. Under
Oak Hill’s proposal, during at least the first year of the
successor contract, employees would contribute the same
amounts that they are paying today towards the premium
costs of this plan. However, as we have discussed at great
OAK HILL 377
length in negotiations, employee co-pays would increase
for primary care and specialist visits as well as emergency
room and urgent care visits, hospitalization stays and out-
patient surgeries and prescriptions as compared with the
current Core HMO benefit terms. We have also offered
other plan options which employees may elect provided
they agree to pay the difference in cost between the pro-
posed Core HMO Plan and the option elected, if any.
During the course of our negotiations we have offered
to bring Oak Hill’s insurance broker to our negotiations
but the Union has declined all such invitations. If the Un-
ion would like us to bring our insurance broker to our next
negotiating session, scheduled for May 25th to answer any
questions you or any of your members may have about our
proposal, please let us know and we will make sure that
our broker is available at that time, or any other time that
is mutually convenient. We are quite concerned that de-
spite the dramatic increases resulting from our current in-
surance renewal costs, at no time in negotiations has the
Union responded to any of our proposals regarding medi-
cal insurance. Similarly, at no time has the Union offered
any proposals of its own to mitigate the eighteen percent
(18%) increase in medical insurance premiums which will
take effect on July 1, 2011 for the current Core HMO Plan
offering.
Recently, we were notified by our insurance broker
that our insurance carrier, Oxford Health Plans, has indi-
cated that they need us to provide them with insurance en-
rollments (for employees changing plan options and/or
adding/deleting dependents) by no later than June 17, 2011
to ensure continuation of coverage following June 30th.
Based on this information we will need to make some de-
cisions very soon regarding the benefit plans that will be
offered to Oak Hill employees beginning July 1, 2011 so
employees will know the benefit options (and costs) from
which they may choose at the time of enrollment.
Please let me know if the Union has any alternative
proposals for dealing with the eighteen percent (18%)
premium cost increase that will take effect on the current
Core HMO Plan effective July 1, 2011 or if you have any
other proposals to address this serious issue related to
medical insurance cost increases in these negotiations. Al-
so please let us know whether the Union would be availa-
ble for negotiations on the other two dates we discussed
when we last met (June 8, 2011 at 5:30 p.m. and June 20,
2011 at 5:30p.m.) or if the Union has any other availability
for negotiations so we can plan accordingly.
Sincerely,
Patrick J. McHale
Cc: Ms. Gayle Wintjen
Vannoni responded by email on May 12 that she was availa-
ble to meet on June 1 in the evening or June 8 either morning or
evening. McHale replied by email a few minutes later stating
that Respondent could be available on June 1 at 5:30 p.m. and
on June 8 from 8 a.m. to noon.
Vannoni responded back that 5:30 p.m. on June 1 was fine,
but she was uncertain about the morning of June 8 due to the
possible unavailability of members of the negotiating commit-
tee. She stated that she would discuss with Wintjen possible
issues of release of day-shift workers and get back to McHale
with regard to June 8 in the morning as had been discussed.
Subsequently, emails between McHale and Vannoni dealt
with the issue of the venue for the upcoming agreed-upon May
25 meeting since the Neat Market Place (previously agreed
upon) became unavailable. The parties finally agreed to hold
the meeting at the Lion’s Den in Hartford.
On May 20, McHale sent to the Union some information that
it had requested. His letter states that “I have enclosed all of the
information that is responsive to your recent request for infor-
mation pertaining to our ongoing collective-bargaining negotia-
tions.” Wintjen had sent McHale on May 12 a document enti-
tled, “Response to Union’s request for information,” which
McHale, in turn, forwarded to Vannoni. Wintjen’s letter to
McHale was a two-page summary of what was submitted as
well as what proposals or issues that these documents refer-
enced. These documents reveal that although Respondent sub-
mitted to the Union a significant number of documents respon-
sive to the Union’s request at that time, including 990 forms for
4 years, union leave data and annual reports, it did not provide
the Union with the SPDs for the current plans (that the Union
requested twice in writing) or the SPDs for the proposed plans
that the Union had requested orally. McHale made no reference
to these issues in his response to Vannoni. As noted, he stated
that he enclosed all (emphasis added) of the information that is
responsive to your recent request for information.
I note that in Wintjen’s letter to McHale, which the Union
apparently also received along with the accompanying docu-
ments, Wintjen stated as follows in reference to Proposal 16
(Medical Insurance), “We have already provided the Union
with the information concerning the medical insurance.”
Wintjen provided no testimony as to precisely what she
meant by her comment that Respondent had “already provided
the Union with information concerning medical insurance.” She
made no reference to SPDs, either with regard to the current or
proposed plans. She also did not say that the Union had been
provided this information in 2009 when it made an identical
request for SPDs for the incumbent plans. It is not clear that is
what Wintjen meant or that she had even recalled in 2011 that
such information had been supplied in 2009. It may very well
be that Wintjen believed that Respondent had supplied the Un-
ion with the information request by assuring it that benefits
would be the same as in the prior plans but that only premiums
or, in some cases, copays would be changed, the amounts of
which had been shared with the Union.
Wintjen was asked on direct and on cross-examination about
the Union’s information requests and Respondent’s responses,
and she provided some answers although, as reflected above,
did not explain what she meant in her letter to McHale that “we
have provided the Union with the information concerning the
medical insurance.”
According to Wintjen, as the record has detailed above, in
2009, the Union requested copies of the SPDs for, at that time,
the proposed “new” Oxford plans, which Respondent asserted
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were equivalent to the plans then in place. Wintjen responded
on May 28, 2010, with an email stating, “Here are the SPDs for
the new health insurance coverages.” The documents that were
submitted, though were not entitled SPDs, but instead consisted
of detailed summaries of the two plans, presumably prepared
by Respondent’s broker, which set forth the prices, coverages,
deductibles, copays, both plans in various areas, such as mental
health, drug/alcohol, preventative care, in-patient and out-
patient care and emergency care.
Further, as detailed above, after Vannoni received this in-
formation in 2010, she phoned Wintjen and had some addition-
al questions about some issues with regard to the two plans and
that Wintjen promptly provided Vannoni with responses. Thus,
after receiving that information, Vannoni was satisfied that the
two plans were “equivalent,” and that the Union did not object
to the change to Oxford.
Notably, Wintjen did not testify that she did not know what a
SPD was or whether it existed but, in effect, stated that in her
view SPDs are the equivalent of summaries of benefits, which
is why she herself used the term SPDs when providing the
summaries of benefits to the Union in 2010.
Wintjen further testified that she personally never saw or re-
ceived a copy of the Union’s information request, dated De-
cember 10, 2010, for the SPDs. Wintjen was vague and uncer-
tain in her testimony as to what she recalled at that time and/or
what she said to Shears or McHale about the Union’s request
for SPDs. Thus, although Wintjen testified that she had sent the
Union what she herself “characterized” as SPDs for the current
plans in May 2010, she did not recall if she told Shears, McHa-
le or even the Union that Respondent had done so at that time
when she became aware on April 27, 2011, that the Union was
making a second request for that information. Indeed, Wintjen
did not testify (nor was she asked) whether or not on April 27,
2011, she remembered that Respondent had provided the Union
with SPDs regarding the current plans in May 2010.
In fact, it appears from her testimony that she did not re-
member that fact in April 2011 since she was asked by the
General Counsel whether she told Shears (the representative of
Respondent, who was assigned to respond to the request) that
she already had these SPDs or that the Union had already been
furnished them by Respondent. Wintjen replied, “I don’t be-
lieve I did.” When asked why not, she answered, “Because I
didn’t focus on that particular issue. I was looking at the whole
thing and I wanted to make sure that we responded to every-
thing.” Wintjen later added that she had “no recollection as I sit
here today whether or not I reviewed my computer files or pre-
vious documents to see whether or not I had previously pro-
duced that. I am looking to make sure that we provided all of
the information that was being requested.”
Further, Wintjen testified that she did not tell either Shears or
McHale that Respondent had sent this information to the Un-
ion, and when asked if she knew why she didn’t tell this to
them, Wintjen replied no. From this testimony, I conclude that
Wintjen simply did not recall in April 2011 that Respondent
had sent SPDs to the Union in 2010 concerning the incumbent
plans and this would have been responsive to the two union
requests for the SPDs in the current negotiations.
Wintjen was further asked about the Union’s request for
SPDs for the proposed plans, which had been made orally by
Vannoni and which Wintjen did not dispute. She was asked
whether or not she had requested Respondent’s broker to pro-
vide SPDs for these proposed plans. She replied that she had no
recollection of doing that, explaining that Respondent didn’t
“know what plan we were going with at that point.” She did
recall asking the broker to provide answers to the Union’s re-
quests for cost information on alternative plans that Vannoni
made at the meeting as well as questions Vannoni had about
gym membership and DMEs. In fact, she recalled having con-
versations with the broker after the April 27 meeting about the
Union’s information requests but stated that these conversations
to be used on the issues Vannoni raised across the table on
April 23, i.e., the requests for alternative plan information.
Wintjen was specifically asked by the General Counsel whether
she had asked the broker during these 2011 conversations to
send Respondent SPDs for the 2011 plans. Her response to that
question is as follows:
You know, I don’t remember. You know—Look, as I sit here
today, I know that I tried to do the best I could to comply with
all of the information requests. Now, there’s information that I
needed to get to Pat. There were also conversations Pat
McHale is having with Pete. It may well have been a situation
of too any chefs spoiling the soup.
But, what I did was, I—What I tried to do is to get infor-
mation to Pat that I knew we had in our control, the infor-
mation that he wouldn’t be able to get from Willis. Whether
there was some communication snafu that ultimately resulted
in a document called and SP—SPD not getting into the un-
ion’s hand, I’m willing to fall on my sword for that.
Shears, for her part, testified, as noted above, that she re-
ceived (from Johnson) a copy of the Union’s initial written
request for the SPDs for the incumbent plans in December 2010
and that she asked Rose Bolton, an employee under her super-
vision, to respond. She further testified that on or about January
26, 2011, she followed up with Bolton and asked her for a copy
of the information requested by the Union in 2010 and that
Bolton responded that she had not done it yet. Shears instructed
Bolton to get it done as quickly as possible.
This was the last Shears heard about the request until the re-
quest was renewed by the Union at the April 27, 2011 meeting.
Shears testified that Bolton was retiring at the time and was
overwhelmed with work, including training her replacement.
Thus, according to Shears, Bolton simply did not get to it be-
fore she retired. Shears opined, “I just believe that it slipped
through the cracks.”
When Shears found out on April 27, 2011, that the Union
had not received the documents, she inquired of Bolton’s re-
placement, Jane Jones, to see if the request had been complied
with by Respondent. Jones reported to Shears that there was no
evidence that this information had been provided. Shears testi-
fied that she instructed Jones to respond to the Union’s April 27
request and “make sure it gets out as soon as possible.”
Further, according to Shears, Jones subsequently provided
the information requested to Respondent’s attorneys, which she
believed was immediately turned over to the Union. Shears was
OAK HILL 379
unsure of what particular information Jones provided to Re-
spondent’s attorneys and was not certain whether Jones submit-
ted it to Wintjen or to McHale or both.
Shears further testified that she was present at meetings of
Respondent’s negotiating team between April 27 and sometime
in July, in which it was stated that the Union had been supplied
with all information it had requested. However, she was uncer-
tain as to specifically what documents were provided or were
discussed or whether they included SPDs for either the incum-
bent or the proposed plans.
Shears was shown copies of documents ultimately submitted
by Respondent to the Union in September 2011, which includ-
ed detailed coverage for the incumbent Oxford plan. These
documents were not entitled SPDs but were documents from
Oxford, entitled “Your Oxford Coverage.” It was further de-
scribed by the insurance company as a certificate of coverage
and added that “the summary of benefits is pending approval
and is not included in your plan documents at this time.” There
is no date on these documents nor any testimony as to when
Respondent either asked for or received them from its broker or
the insurance company. In any event, these particular docu-
ments provided detailed coverages, costs, benefits, networks,
etc., and are, according to the Union, the information requested
by the Union concerning the incumbent plans, which Vannoni
referred to as SPDs.
Shears was not certain in her testimony as to when she saw
these documents, but she testified that, in her view, they would
be the equivalent of SPDs.
Shears also identified another document, which as ultimately
submitted by Respondent to the Union on March 21, 2012, as,
in her view, an SPD for the plans proposed by Respondent (and
ultimately implemented on July 1). These documents were sent
to the Union allegedly in response to the Union’s request on
February 17, 2012, for a “more detailed summaries of the med-
ical plans offered to employees at Oak Hill.” These summaries
were not documents from the insurance companies nor were
they entitled SPDs. Instead, they were summaries of benefits,
coverages, payments, copays, deductibles, which detailed these
matters for all types of services for all four plans in effect. Alt-
hough the record is unclear, it appears that these documents
were prepared by Respondent’s broker in response to the Un-
ion’s request orally and in writing on February 17, 2010, for
this information. I note that in that written request, Vannoni
stated, “At many bargaining sessions since before and after
September 21, 2011, the Union has asked for more detailed
benefit summaries. On February 17th when inquiring about the
summaries of coverage provided to date, the Employer con-
firmed that these summaries were for marketing and to be used
by the Employer in employee enrollment meeting but were not
a complete summary and that another summary was available
. . . . Please provide such detailed summaries of the 4 plans as
was stated in our meeting.”
When shown these documents, Shears confirmed that, in her
view, they were SPDs for the ultimately proposed and imple-
mented plans, but she was unsure when they were prepared or
when she saw them. Vannoni, for her part, conceded that the
information contained in these documents represented all of the
information that the Union was seeking and that it would be
contained in SPDs for these plans.
On May 24, Respondent provided some additional infor-
mation to the Union that it had requested relating to payroll
costs for employees, who work various hours per week, as well
as annual costs of medical and dental insurance. However, Re-
spondent did not supply to the Union the SPDs for either the
current or the proposed plans that the Union had requested.
The session began with discussion of some of the information
provided to the Union by Respondent, including issues of paid
administrative leave, extenuating circumstances, and the issue
of Respondent’s proposal that employees contribute 10 percent
to their pensions.
Vannoni then stated that the Union had presented new pro-
posals at the last session but that Respondent had not responded
to them.
McHale replied by stating that the deadline for enrollment in
the healthcare plan for the new fiscal year is fast approaching
and that the current plan expires on June 30. He further ex-
plained that Respondent needed to enroll employees prior to
that date in order to avoid disruption of coverage and delays in
receiving new medical cards. Vannoni replied, “We have been
through this. We get it.” Vannoni added that the Union under-
stood that Respondent had concerns about the medical costs
and the Union was listening to it. However, the Union needs to
hear from Respondent on their response to the Union’s con-
cerns. McHale again asked if the Union had a counterproposal
on medical today, and Vannoni again replied that the Union
needs to see movement on everything and a total agreement and
asked again for a response from Respondent on the Union’s
proposal.
Vannoni then suggested that perhaps the parties could re-
solve some less contentious issues and the parties then talked
about the Union’s proposals on grievance procedure, work-
men’s compensation, leave, work schedules, bereavement
leave, domestic partnership language, snow days, substitute and
temporary employees, weekend recertification, and layoff
avoidance. Some tentative agreements were reached on some of
these issues.
McHale again asked Vannoni if the Union had counterpro-
posals on medical insurance. Vannoni repeated the Union’s
prior stance. She asked again if Respondent had any prior coun-
ters for the Union and continued by stating that the Union had
indicated to Respondent that if it pulled or modified their stance
on shift differential, wage cuts, and cut to longevity on new
hires, the Union could find a way to make movement on the
medical insurance. McHale replied that Respondent did not
have a response to that and once more asked if the Union had a
response on medical. Vannoni replied not at this time.
The parties then caucused. After the caucus, Respondent
made counterproposals concerning administrative leave and
temporary reassignments. After some discussion of these pro-
posals, Vannoni brought up the issue of snow days, which pro-
duced some additional exchanges but no agreement.
McHale then asked once more if the Union had any response
on medical insurance and reiterated that medical needs to be
decided by June 30. Vannoni replied that the Union had no
other proposals to make on medical insurance.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties then discussed additional dates for negotiations
and agreed on June 1 and 20, plus a tentative agreement to meet
on June 8 in an early start if possible. This issue was to be con-
firmed later that day. Subsequent emails on May 25 confirmed
that June 8 in the morning as agreeable to both sides.
Wintjen issued a postsession memorandum entitled “Negoti-
ations Updates\” to unit employees, describing the events on
the May 25 meeting. It is set forth below.
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Negotiations Update
DA:·May 25, 2011
Oak Hill and 1199 met for our fifth negotiating session yes-
terday morning.
We started the session with the Union asking some clarifying
questions regarding documentation we supplied in response to
its last request for information. The Union also sought clarifi-
cation of our pension plan proposal, which is to require em-
ployees to contribute 1% of income to the tax deferred annui-
ty plan in order to get the 5% contribution from Oak Hill into
the defined contribution plan. We explained that this will as-
sist us administratively. While there was concern expressed
that this was akin to “taking money away”, in reality it means
simply putting the employee’s own money into the employ-
ee’s retirement account. We further explained that employees
can make the contributions on a pre-tax basis, which means
that the amount of the actual deduction is less than one per-
cent. The Union stated that it would reject the proposal.
Thereafter, we asked the Union if it had any counterproposals
with respect to Oak Hill’s medical insurance proposals, as we
are fast approaching a June 30 deadline, when the plans ex-
pire. We explained that we need to be able to enroll employ-
ees prior to that date to avoid any disruptions in coverage and
inconvenience with employees not having correct insurance
cards by July 1. Notwithstanding the deadline, the Union stat-
ed that it was not interested in addressing medical insurance
until we reached agreement on some contract language pro-
posals.
We then spent some time discussing several proposals regard-
ing the grievance process, administrative leave, temporary re-
assignments and substitutes. In order to properly respond to
some of the issues raised, the parties caucused. We produced
two counterproposals to the union regarding administrative
leave and temporary reassignments when we returned from
the caucus. We again asked the Union if it wanted to discuss
medical insurance and it declined to do so. Instead, it wanted
to discuss its proposal concerning snow days, which we re-
jected. We reiterated that the current health insurance plan
goes away on June 30 and we want to avoid employees being
without coverage. Nevertheless, the Union remained steadfast
that it would not address the health insurance proposal.
The parties did agree to another meeting date on June 1st at
5:30 pm. Additional sessions are scheduled for June 8th at
9:00 am and 20th at 5:30 pm. All sessions will be held at
NEAT.
The parties met again on June 1 as scheduled. Vannoni be-
gan the session by asking what proposals Respondent had for
the Union. McHale replied that Respondent had been expecting
a counterproposal regarding the medical plan, whose deadline
is fast approaching. Vannoni answered that the Union needed to
hear back on items that Respondent had rejected. Vannoni re-
peated that the Union needed resolution on contract language.
McHale then stated that perhaps he had not been clear about the
deadline.
Vannoni, perhaps somewhat sarcastically, responded, “Dead-
line?”
McHale replied as follows:
Oak Hill is facing a $1.5 million increase in the cost of
providing healthcare to its employees. Coming to an agree-
ment on the plan is a high priority. The employer wants to
avoid having folks pay more. There is no legal obligation that
we resolve the contract issues before health insurance. You
have the right to choose, but a plan has to be implemented in
order for people to be enrolled and obtain their plan docu-
ments in a timely manner.
Vannoni then proposed a series of counterproposals on vari-
ous issues, which engendered considerable discussion, but no
agreements were reached.
Vannoni asked McHale if Respondent had any proposals for
the Union to consider. McHale answered that he did not have
anything for the Union to review.
Vannoni observed, “How prepared are you really to negoti-
ate today? You claim a big deadline of July 1, 2011, but you
haven’t brought us anything to caucus on.” McHale then re-
plied that there would be an 18-percent increase in July, and
Vannoni answered, “We get it. We know. We are here to bar-
gain. Part of that is reaching an agreement on these issues and
responding to our proposals. Do you have anything for us to
review, to caucus on?” McHale replied that Respondent did not
have anything at that moment for the Union to review and cau-
cus on. Vannoni suggested that Respondent caucus and come
up with some counterproposals.
McHale agreed, and the parties caucused. During the caucus,
the Union interrupted management and asked them what they
had come up with so far. The parties then discussed several
issues, and Respondent made some counterproposals, including
possible agreements on some issues concerning assignments,
scheduling, snow days, and minimum pay. After some discus-
sion of these counterproposals, the meeting ended after another
brief caucus, and the Union notifying Respondent that they
were leaving, and Respondent stating that it would continue its
caucus and share the results with the Union by email.
Respondent did not supply the Union with the SPDs for ei-
ther the current or the proposed plans at this meeting nor did
the Union renew its request for these documents at the meeting.
On June 3, Wintjen sent a “Negotiations Update” to unit em-
ployees, describing her account of the events of the meeting.
This document is set forth below.
OAK HILL 381
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Negotiations Update
DA: June 3, 2011
Oak Hill and 1199 met for our sixth negotiating session
Wednesday evening.
We opened the session by asking the Union if it had any re-
sponses to counterproposals we had made last week regarding
temporary reassignments and administrative leave. We also
asked if the Union had any counterproposals regarding the
health insurance proposals we made at our very first bargain-
ing session. The Union reiterated its position that it was un-
willing to discuss the health insurance proposal until the par-
ties resolved the various proposals on the table regarding
changes to contract language. We acknowledged the Union’s
position, but reminded the Union that the law does not require
that we address the language proposals first. We stated that
we believed it was most prudent to address the health insur-
ance proposals because the current health insurance plan ex-
pires at the end of the month and we need to make sure em-
ployees are enrolled prior to that expiration date. Notwith-
standing our desire to discuss health insurance, and to receive
a counterproposal from the Union, the Union returned to the
topic of changes to contract language.
The Union proposed what it characterized as six “exchange
proposals”, meaning that the Union was offering to withdraw
or modify specified proposals if Oak Hill withdrew or modi-
fied other specified proposals. In addition, the Union sought
responses from us on its proposals regarding: 1) “inclement
weather” (which we had previously rejected); 2) union access
and 3) the grievance procedure. We then caucused to discuss
all of these items. We had not yet finished preparing our re-
sponses to each of the proposals when the Union asked us to
return to the table to provide our answers. We explained that
we had not completed our work, but we were able to offer a
counterproposal regarding temporary reassignments. We also
rejected several of the Union’s “exchange proposals” that
would have required us to keep the very language that we are
seeking to change. We explained that we were rejecting those
proposals because we need to reduce costs and improve effi-
ciencies, so maintaining the status quo is simply not an op-
tion.
The Union then asked us to take another caucus to consider
the remainder of its proposals. While we were doing so, the
Union informed us that it desired to end the session for the
evening, so we were unable to provide a complete response to
all of the proposals.
We will meet again on Wednesday, June 8 from 9:00 a.m. to
noon and on Monday, June 20 at 5:30 pm. Both sessions will
be held at NEAT.
On June 7, McHale sent the following letter to the Union, en-
titled, “Oak Hill Negotiations.”
June 7, 2011
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni
Vice President
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Oak Hill Negotiations
Dear Linda:
When we last met in negotiations on June 1, 2011, Oak Hill’s
negotiating committee promised to provide the Union with
written counterproposals to both our proposals in negotiations
as well as those of the Union, where we are prepared to make
counters. I have attached those written counterproposals for
your review and will be prepared to discuss them when we
meet again tomorrow at 9:00a.m. at the NEAT Marketplace at
Oak Hill’s campus.
Including our most recent negotiating session held on June
1st, we have now held a total of six negotiating sessions to
date. During each of our negotiating sessions beginning with
the very first one, as well as in period email communications
with you, Oak Hill has emphasized that the premium costs for
the Core HMO medical insurance benefits currently in effect
for the vast majority of bargaining unit employees (and the
other plan offerings) will increase by approximately eighteen
percent (18%) effective upon renewal (July 1, 2011). This
premium increase alone amounts to an additional cost of ap-
proximately $1.5 million, or approximately 2.5% of bargain-
ing unit wages, and Oak Hill has informed the Union that it is
not in a position to pay any more than it is paying presently
for these benefits.
As we advised you through correspondence dated May 11,
2011 our insurance carrier, Oxford Health Plans, has indicated
that they need us to provide them with insurance enrollments
by no later than June 17, 2011 to ensure continuation of em-
ployee coverage following June 30th. Despite our best efforts
to get the Union’s attention regarding this matter, the Union
has been unwilling to bargain over medical insurance to date
in our collective bargaining negotiations. At no time has the
Union made any proposals to address the eighteen percent
(18%) premium increases that will take effect July 1 and in
fact has made no specific medical insurance proposals in our
negotiations to date.
In the absence of an agreement between the parties prior to
the deadline for notifying the insurance carrier of the plan of-
ferings and allowing time for employee enrollments, Oak Hill
will have no choice but to offer its employees the new Oak
Hill-proposed Core HMO Plan beginning July 1, 2011. Oak
Hill will contribute the same amount it is contributing present-
ly for employees who elect to enroll in the new Core HMO
Plan and employees shall be responsible for paying the re-
maining costs. Oak Hill will also offer the current HMO Plan
and the POS 15/25 Plan offering as buy-up options with em-
ployees who elect benefits under those plans paying the addi-
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tional costs for such benefits. Finally, Oak Hill will offer the
High Deductible Health Plan (“HDHP”) with a Health Sav-
ings Account, which deductible Oak Hill will fund at the rate
of sixty-seven percent (67%) beginning July 1, 2011 as a
fourth option from which employees may choose.
Obviously, Oak Hill remains willing and eager to bargain
over these insurance issues, but to date the Union has been
unwilling to do so. Aside from our negotiating session set for
tomorrow, we do not have another negotiating session sched-
uled until the evening of Monday, June 20, 2011, which falls
after the deadline for providing the insurance carrier with en-
rollment data.
Therefore, time is of the essence as the current medical bene-
fit plans will expire on June 30, 2011 and in order to allow
employees to have benefits effective July 1, 2011, final deci-
sions need to be made as to what medical plan benefits will be
made available and what employees will contribute to those
benefits promptly so employees may elect their choice from
the options offered. For this reason, I urge you to make this
matter your highest priority and to provide Oak Hill with
whatever insurance proposals the Union has, if any, when we
meet tomorrow. If the Union has any proposals to suggest that
would allow Oak Hill to offer medical insurance benefits to
employees at no additional cost to Oak Hill, obviously we
would be interested in learning of those proposals. None have
been offered by the Union to date and so the only options we
are considering at this time are the plans Oak Hill has identi-
fied and attempted to discuss with the Union throughout our
negotiations as referenced above.
I look forward to seeing you tomorrow in our next negotiating
session and hope that the Union will find a way to devote
some time to making proposals or otherwise addressing this
important issue of medical insurance benefits that will be
available to bargaining unit employees beginning July 1,
2011. Please let me know if the Union requires any additional
information, would like to have our insurance broker attend a
negotiating session to discuss Oak Hill’s proposed plan op-
tions or if the Union has additional availability for negotia-
tions aside from June 20th.
Sincerely,
Patrick J. McHale
On the same date, McHale sent several written counterpro-
posals to the Union dealing with several issues, including
grievance procedure, discipline, assignment transfers, and pro-
motions, hours of work, and substitutes, but none dealing with
health insurance.
The meeting on June 8 was held as scheduled at the Neat
Center. Vannoni began the meeting by remarking that Re-
spondent had not shown a serious willingness to meet the em-
ployees’ concerns, had rejected all of the Union’s proposals and
made no substantive movement. McHale disagreed with this
assessment of the bargaining.
Vannoni then presented a document consisting of proposals,
including a proposal on health insurance. According to McHa-
le, “This was good news.”
The proposals modified its previous wage proposal by re-
questing a 40-cent-per-hour wage increase for the first year
(retroactive to March 31, 2011, down from 60 cents) but con-
tinuing to request a 60-cent-per-hour increase for each of the
three additional years of the contract, effective on March 31 of
each year from 2012 through 2014.
On medical insurance, the Union proposed that unit employ-
ees be covered by the Union’s health and welfare plan with
Respondent contributing 24 percent of gross payroll towards
the plan. The Union’s plan was to be provided for all employ-
ees, who worked for 20 hours per week. Vannoni stated that it
was the Union’s belief that this proposal could save Respondent
some money.
The Union’s proposal also offered an option of an alternate
HMO plan with copays and out-of-pocket expenditures that
were higher than the existing plan. According to Vannoni, this
proposal, in the Union’s view, could represent lower cost in-
creases to Respondent than the 18 percent but would not be a 0-
percent increase that Respondent was pressing. The Union did
not know what the additional premium costs of this proposed
plan would be.12
Finally, the Union offered a modified HDHP plan, which en-
abled Respondent to recoup money from employees, who re-
signed, thereby, addressing a concern previously raised by Re-
spondent but requesting that Respondent fund 75 percent of the
deductible.13
The Union’s medical proposal was contingent on Respond-
ent withdrawing all wage cut proposals, including shift differ-
entials, longevity start rates, and all other proposed costs to pay.
McHale, after examining the Union’s proposals, asked for
information about the Union’s health and welfare fund. Vanno-
ni responded that the funds are considered a separate company
from the Union by law and that in order to obtain the infor-
mation, the Union would need a written request directed to the
executive director of the funds. McHale asked for the name and
address for that person, and Vannoni supplied that information
to McHale.
Vannoni then made reference to the June 7 letter specifically
to his comment that Respondent “will have no choice but to
offer its employees the new Oak Hill plan” beginning July 1,
2011, in absence of an agreement prior to the deadline for noti-
fying the carrier and allowing time for enrollments. Vannoni
asserted that Respondent could not do that, that it would be in
violation of the contract and a violation of the law if Respond-
ent did so.
McHale responded that the contract expired on March 31 and
the Union must understand that Respondent cannot sustain the
status quo. Respondent’s operating deficit is $3.9 million and
78 percent of its costs are wages and benefits. He added that if
there is no agreement on medical Respondent would need to

12 The plan was similar to, but not the same, as the Hamden plan,
which the Union had proposed earlier, and the Respondent had costed
and sent to the Union the cost of the plan. Neither side had actually
proposed or rejected the Hamden plan. It had simply been proposed by
the Union, costed by the Respondent, and the Union was so notified of
the costs.
13 Respondent’s HDHP proposal provided reimbursement of 67 per-
cent of the deductible.
OAK HILL 383
enroll employees prior to July 1 to let them know what the
plans are going to be. Respondent can’t take the same plans and
pay a million and a half more. McHale continued that Respond-
ent did not even know if the plan that the Union is offering is
available in the market place and repeated his assertion that the
Union has refused to respond to Respondent’s proposed
healthcare plans. Vannoni disagreed and asserted that the Union
has not refused. McHale then stated that Respondent would
review the Union’s healthcare proposals to determine if they
are valid options.
The discussion then moved to other issues, including snow
days and breaks. Vannoni asked what the benefits were of the
HDHP plan, and McHale explained that costs are maintained
and once a deductible is met, the employee will incur no addi-
tional costs and it was beneficial to high users. A union em-
ployee replied that Respondent was trying to push employees
into HDHP, and McHale answered that he was not trying to
push anything on anyone, that employees make their own
choices but Respondent was trying to control increases in costs.
The meeting adjourned with a confirmation that the next ses-
sion was to be June 20.
Respondent did not produce to the Union at this meeting the
SPDs for either the current or the proposed plans nor did the
Union renew its request for these items at the meeting.
Following this meeting on June 8 at 1 p.m., Wintjen sent an
email to Respondent’s broker, attaching the Union’s counter-
proposals in medical insurance. She asked him to review the
option 2 and let Respondent know whether Oxford (or any
other carrier) offers an HMO plan on the terms identified by the
Union, and if so, provide costs for family and individual cover-
age.
On June 10, there was an email exchange between McHale
and Wertsching (Respondent’s broker), dealing with medical
plan issues. The exchange is set forth below:
From: Patrick J. McHale [mallto:pmchale@kemlaw.com]
Sent: Friday, June 10, 2011 1:40 PM
To: Wertsching, Peter
Cc: Gayle Wintjen
Subject: Oak Hill
Pete:
Can you tell me the effect on HMO premiums if we make the
following changes to our proposed new core plan:
1. Improve DME from 50% to unlimited to 100% to unlim-
ited
2. Any other slight change that will make total premium costs
equal to current rates, rather than the 1.9% savings we show
now on the proposed plan design.
Our posture in negotiations has been we can pay what we are
paying now but no more (except if you elect the HAS option)
and so since I don’t want to lower the already very modest
employee contributions to premiums I am hoping to make one
or, if necessary, two slight plan design improvements to get
premiums to equate to where they are today on the core plan.
I hope my request is clear but if not feel free to call my cell
(860–930–8080) and I will either take your call or will return
your message as soon as I can.
Thank you.
_________________________________________________
From: Wertsching, Peter [peter.wertschlng@willis.com)
Sent: Friday, June 10, 2011 3:40PM
To: Patrick J. McHale
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill
Pat,
The unlimited DME is worth 0.5%.
I would suggest bring outpatient surgery down from $250 to
$100 would get us the other 1.4%.
Thoughts?
Pete
The General Counsel presented evidence that McHale, de-
spite requesting information from the Union about its proposed
fund plans, was familiar with these plans. Thus, McHale repre-
sented two different employers, who had contracts with which
incorporated the Union’s health and welfare plans. Further,
McHale submitted to the Union that reduced the percentages
that these employers would contribute to the Union’s fund.
On June 14, Wertsching and McHale had another email ex-
change, pertaining to the Union’s proposals and the costs to
Respondent. This exchange is as follows:
From: Wertsching, Peter [mail-
to:peter.wertsching@willis.com]
Sent: Tuesday, June 14, 2011 11:25 AM
To: Patrick J. McHale
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill—1199 Negotiations
Pat,
Here are the revised figures for the most recent union coun-
terproposal.
The HMO plan rates would represent a 14.4% increase from
current as the only things changing would be the office visits
($20/$30), $250 inpatient copay and $100 outpatient surgery
copay.
The one outstanding question we have whether or not the per
admission hospital copay can be limited to $250 per family
per plan year. We are assuming at this point it is not limited so
is per event as indicated here. We will confirm.
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Please let us know if you need anything further.
Pete
_________________________________________________
From: Wertsching, Peter [peter.wertsching@willis.com]
Sent: Tuesday, June 14, 2011 1:49 PM
To: Patrick J. McHale
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill—1199 Negotiations
Pat,
I got your voicemail as well.
We have confirmed that the pricing we are showing for the
new plan DOES limit the family hospital copay amount to
$250 per plan year. However, this has not been approved by
the State of CT so the plan is not available at this time. Oxford
would need to do a single case filing with the State to be able
to offer this option.
Also, the plan with a 14.4% increase would end up costing
Oak Hill $1,102,033 per year more than current after taking
into consideration employee contributions.
Please let us know if you need anything further.
Pete
_________________________________________________
From: Patrick J. McHale [mailto:pmchale@kemlaw.com]
Sent: Tuesday, June 14, 2011 11:39 AM
To: Wertsching, Peter
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill -1199 Negotiations
Thank you Pete.
Could you provide me with the dollar values of these increas-
es based upon our current enrollments so I can share these
amounts with the union when I respond explaining why these
options are unaffordable?
McHale responded to Vannoni by email concerning Re-
spondent’s positions on the Union’s counterproposals on medi-
cal insurance. This email is as follows:
From: Patrick J. McHale
Sent: Tuesday, June 14, 2011 4:02PM
To: ‘Linda Vannoni’
Cc: Gayle Wintjen
Subject: Oak Hill Negotiations - Medical Insurance Plan Op-
tions
Linda:
I am writing with regard to the two medical insurance pro-
posals the union offered for the first time at our seventh nego-
tiating session last Wednesday, June 8, 2011. Since the union
was unable to supply us with any information as to whether
the HMO plan the union proposed was available in the mar-
ketplace or the cost of the union’s two medical insurance pro-
posals we needed to investigate the matter and calculate the
expected cost ourselves, which explains why we have been
unable to communicate with you on your proposals until to-
day.
Regarding the union’s Option #1 proposal to replace the cur-
rent medical insurance plan options with the 1199 Health and
Welfare Fund, the union has indicated that Oak Hill would
need to pay 24% of gross payroll to the Fund for employees
who work 20 hours or more per week in order to participate in
the Fund. Based upon our calculations, if we agreed to the un-
ion’s proposal on Option #1, Oak Hill would need to pay in
excess of $700,000 over and above what we are now paying
for medical premium costs for bargaining unit employees. I
say “in excess of” because we calculated this amount based
upon employees’ scheduled hours and note that the union has
proposed requiring these payments based upon employees’
actual hours, which will only serve to further increase the cost
of this proposal to Oak Hill. As we have indicated since we
began negotiations in March, 2011, Oak Hill is not in a posi-
tion to pay more than we are paying presently for such costs
and so we do not view the union’s Option #1 proposal as a vi-
able alternative.
Regarding the union’s Option #2 proposal to replace the cur-
rent Core HMO Plan with a new one with the terms as set
forth in your written proposals dated June 8th, we have sup-
plied this information to Oxford, our current insurance carrier,
and they have advised us that the product the union proposed,
due primarily to the request for a $250 annual cap on hospital
copays, has not been approved by the State of Connecticut
and so such plan is not available for purchase at this time.
Even if Oxford could offer the plan described in union Option
#2 the premium costs for the plan the union has proposed
would be $1,102,033 more than our current rates for the Core
HMO Plan. Further, taking into consideration the union’s
proposal to decrease employee premium contributions from
$40 to $30 per month for single coverage and from $80 to $60
per month for employee plus dependent coverage the cost to
Oak Hill under Option #2 would increase by an additional
$71,000 per year. The combination of cost increases of just
these aspects of the union’s Option #2 would require Oak Hill
to pay $1,173,033 more than it is paying presently for premi-
um costs for these benefits and so due to the unavailability of
the plan design and the extra cost, Option #2 also is not a via-
ble alternative.
In the absence of any other proposals from the union that will
allow Oak Hill to offer medical benefits to employees at no
additional cost to Oak Hill beyond what it is paying presently,
Oak Hill plans to offer employees the 4 plan alternatives we
have proposed in our negotiations to date. More specifically
eligible employees will be offered the following plan options
from which they may elect:
1. The New Core HMO Plan as proposed by Oak Hill. Em-
ployees who elect this option will continue to contribute $40
per month ($480 per year) toward premium costs for employ-
ee only coverage and $80 per month ($960 per year) for em-
ployee and dependent coverage.
2. The current Core HMO Plan as presently in force with em-
ployees who elect such coverage paying the extra premium
OAK HILL 385
costs as compared with the premium costs for the New Core
Plan for the level of coverage employees elect as set forth in
the pricing information we provided the union previously.
3. The current POS Plan as presently offered with employees
who elect such coverage paying the extra premium costs as
compared with the premium costs for the New Core HMO
Plan for the level of coverage employees elect as set forth in
the pricing information we provided the union previously.
4. The current High Deductible Health Plan with Oak Hill
funding 67% of the deductible amount via proportionate quar-
terly contributions to employees’ Health Savings Accounts.
Employees who elect this option will contribute $40 per
month ($480 per year) toward premium costs for employee
only coverage and $80 per month ($960 per year) for employ-
ee and dependent coverage.
We believe this offering will allow Oak Hill, at least for the
next plan year, to contribute the same amount it is contrib-
uting today, based upon current enrollment data, for medical
benefits for bargaining unit employees while at the same time,
for employees who choose to enroll in the New Core HMO
Plan, enable such employees to access such benefits at no ad-
dition premium costs than they are contributing today.
If the union has any other proposals on the subject of medical
insurance to make please let us know immediately (along with
the hard costs for each such proposal since we simply have no
time to cost out any new proposals the union may make at this
late date) since we will need to begin employee enrollment as
soon as possible in order to get enrollment information to Ox-
ford by as close to Friday, June 17th as possible (the date Ox-
ford gave us as a deadline for providing this information) in
order to ensure there are no lapses for employees who choose
to elect to continue coverage under on the Oak Hill plans.
On June 16, Wintjen sent a memo to the staff announcing the
new plan offerings and informing employees that they need to
fill out new forms, no later than June 30 in order to select the
coverage that he or she wishes. Otherwise, if employees do not
enroll, they would not have coverage beginning on July 1. This
document is as follows:
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Medical Insurance Plan Offerings and Costs Effective
July
1, 2011
DA: June 16, 2011
The purpose of this memorandum is to inform you of im-
portant developments regarding the medical insurance benefit
plans we expect to offer Oak Hill employees effective July 1,
2011. Oak Hill will be holding open enrollments next week
and continuing through June 30, 2011. More details regarding
the process for open enrollment will be provided by Human
Resources. All employees (bargaining unit and non-
bargaining unit) who wish to have medical insurance under
one of the plans offered by Oak Hill must complete an elec-
tion form during the open enrollment period in order to have
health insurance coverage starting July 1, 2011. This is true
even if you currently participate in an Oak Hill plan. Employ-
ees who do not currently participate in one of Oak Hill’s med-
ical insurance plan offerings, or wish to make changes to their
coverage, must also complete an election form no later than
June 30, 2011.
During our current negotiations with District 1199, which be-
gan on March 23, 2011, we advised the Union that our health
insurance carrier, Oxford/United, had notified us that the
premium costs for our medical insurance benefits plans will
increase by approximately eighteen percent (18%) effective
July 1, 2011. This increase amounts to an additional $1.5 mil-
lion in benefit costs. In addition, we informed the Union at
that time, and throughout our negotiations, that Oak Hill is not
in a position to contribute any more than it is paying presently
towards the cost of medical insurance benefits. Unfortunately,
at no time during our negotiations to date has the Union made
a proposal regarding medical insurance that will allow Oak
Hill to continue to offer benefits without significant cost in-
creases to Oak Hill. Therefore, we are offering the four plans
that we have previously informed you about. We will offer a
new “Core” HMO Plan, which will allow employees to con-
tinue to elect medical benefits and pay the same monthly
premium contributions that employees enrolled in the current
HMO Plan pay today. We also will continue to offer the cur-
rent HMO Plan as a “buy up” plan with employees who elect
to stay in that plan paying any additional premium costs asso-
ciated with that plan. In addition, we will offer the current
Point of Service Plan with employees paying any additional
premium costs as compared to the Core HMO Plan offering.
Finally, we will continue to offer the current High Deductible
Health Plan (“‘HDHP”) with Oak Hill funding sixty-seven
percent (67%) of the deductible amount through proportionate
quarterly installments to employees’ health savings accounts.
Employees who elect this option will continue to contribute
the same monthly premium contributions that employees en-
rolled in the current HDHP pay today.
We believe that these plan offerings will allow Oak Hill, at
least for the next plan year, to contribute the same amount as
Oak Hill is contributing today, based upon current enrollment
data, for medical benefits for all employees. In addition, for
employees who choose to enroll in the new Core HMO Plan,
such employees will be able to access medical benefits at ad-
ditional premium cost than they are contributing today.
Attached to this memorandum you will find a chart which ex-
plains the plans we expect to offer beginning July 1, 2011, a
brief description of the benefits available (and co-pay charges
under each of the plans and the amount employees will need
to contribute each month if they elect to participate in an Oak
Hill plan. If any last minute changes are negotiated in terms of
plans that will be offered beginning July 1, 2011 and/or the
amounts employees will need to contribute, we will let you
know promptly.
Employees who fail to enroll in one of the health insurance
plan offerings prior to June 30, 2011 will not have insurance
coverage beginning July 1, 2011. As you know, normally we
allow plenty of time for an orderly enrollment period. Unfor-
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tunately, due to the lack of an agreement on the medical in-
surance plan offerings, we have no choice but to enroll em-
ployees at the last possible time this year.
On June 17, Vannoni responded to McHale’s June 14 email
with a faxed letter, which sets forth the Union’s position on
bargaining over healthcare, and included an additional infor-
mation request. This letter is as follows:
June 17, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Re: Information request for Oak Hill School
Dear Mr. McHale:
With respect to bargaining over health care benefits, the Un-
ion is willing to consider the Employer’s current proposals, as
presented to the Union in your June 14, 2011 email. The Un-
ion would prefer the two Union proposed plans for many rea-
sons and the Union is willing to discuss those reasons across
the table. In order to consider the Employer’s proposed plans,
the Union needs the following information:
1. A copy of the summary plan description as well as the plan
for each of the four plans being proposed by the Employer.
2. A copy of the form 5500 for each of the four plans being
proposed by the Employer.
3. A copy of any rules, regulations, procedures, administra-
tive manual or procedures or policies which affect or relate to
any of the four proposed plans.
4. A cost breakdown of each plan to the Employer.
5. The name, address and principal contact of the office who
administers the plan(s).
6. Copies of all claims for coverage under the plan made by
employees during the last five years as well as copies of any
correspondence or other documents with respect to the pro-
cessing of those claims and the payment of those claims. The
Union requests that any sensitive and confidential information
be redacted.
7. A copy of any contracts with health care providers, insur-
ers or health care plans.
In your email of June 14, 2011, you rejected the Union’s pro-
posals on health benefits. In your explanation you presented
the Union with cost estimates that you claim prove that the
Union proposals would impose significant increases to the
Employer. The Union has done its own cost analysis of our
proposals, based on information that was provided to us by
the Employer, and our analysis produced different estimates.
In order for the Union to accurately assess proposals that both
parties are making, we will need the following information:
1. A detailed description of the Employer’s total monthly cost
for each of the following: Medical insurance, Dental insur-
ance, Short term disability insurance, Vision insurance, Life
insurance. Please provide separate totals for each benefit.
2. A detail of the Employer’s calculation explaining how they
arrived at the figures that were reported to the Union for gross
bargaining unit payroll of all bargaining unit Employees
working 20 hours or more.
We request that you send us the information above in elec-
tronic format to Linda Vannoni at lvannoni@seiu1199ne.org
as soon as possible.
Finally, I believe that continued negotiations on health insur-
ance in the context of an overall resolution of the entire eco-
nomics of the contract can be fruitful. The proposal by the
Union regarding health care which was presented at our last
negotiating session was a starting point and I believe there is
potential movement on the Union’s behalf on this issue. I re-
mind you, while you state that your proposals allow the Em-
ployer to contribute the same amount in the future that you are
contributing now, this is not something provided for in the
contract. There is nothing in the expired health insurance
provision that guarantees the Employer’s costs are capped. It
does guarantee set costs and co-pays under the current plan or
any successor plan which hold costs to employees equivalent
to the plan in effect until June 30th, 2011. Regardless the par-
ties have proposals on the matter of health insurance which
we are negotiating about at the table. I urge to take those and
any future proposals the union makes on health insurance in
good faith.
Sincerely,
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
I note that, although this letter is the first time that the Union
requests in writing SPDs for the proposed plans, the Union had
made such a request orally in two prior meetings, as I have
detailed above.
Upon receipt of this letter, Wintjen and Wertsching had an
email exchange between June 17 and 21 concerning the Un-
ion’s information request, and Respondent requested
Wertsching to help provide some of the information. The ex-
change is set forth below:
From: Wertsching, Peter (peter.wertsching@willis.com}
Sent: Friday, June 17, 20112:11 PM
To: Gayle Wintjen
Cc: Patrick J. McHale; James Jones; Yashalifski, Denise
Subject: RE: Response to email of June 14, 2011
Gayle,
We will get to work on this today. We are sending a request to
Oxford for plan summaries, contact info, etc. and we will map
out the cost information.
OAK HILL 387
We have aggregated claim information that we will provide
but it will not be broken out at employee level. The carriers
will not provide this and I assume the union knows that.
Pete
Peter Wertsching
Client Executive, Employee Benefits Practice
Willis of Connecticut LLC
185 Asylum Stree25th Floor
Hartford, CT 06103-3708
Direct: 860–756–7364, Cell: 860–250–7973, Fax: 860–756–
7364
E-mail:peter.wertschlng@willis.com, www.wiltis.com
_________________________________________________
From: Gayle Wintjen [mailto:wlntjeng@ciboakhill.org]
Sent: Friday, June 17, 201112:32 PM
To: Wertsching, Peter
Cc: Patrick J. McHale; James Jones
Subject: FW: Response to email of June 14, 2011
Hi Pete,
Pat asked that I forward the attached letter to you. We are
hopeful that you might have some of the documentation that
the Union is requesting. If so, please provide the information
electronically to Pat at your earliest convenience.
We appreciate your ongoing assistance with this matter.
Have a great weekend,
Gayle
_________________________________________________
From: Wertsching, Peter (peter.wertsching@willis.com}
Sent: Tuesday, June 21, 2011 7:57AM
To: Gayle Wintjen
Cc: Patrick J. McHale; James Jones
Subject: RE: Info needed for Union negoations[sic]
Gayle,
We are working on the info.
Denise will send out the latest 5 years of premium and claim
info by month which is thru November 2010. We have re-
quested the next update which should bring us thru February
2011.
Pete
Peter Wertsching
Client Executive, Employee Benefits Practice Willis of Con-
necticut LLC
185 Asylum Street, 25th Floor
Hartford, CT 06193–3708
Direct: 869–756–7364, Cell: 860–259–7973, Fax: 860–756–
7364
E-mail: peter.wertsching@willis.com, www.willis.com
_________________________________________________
From: Gayle Wintjen [mailto:wintjeng@ciboakhill.org]
Sent: Tuesday, June 21, 2011 7:43 AM
To: Wertsching, Peter
Cc: Patrick J. McHale; James Jones
Subject: Info needed for Union negoations[sic]
Good morning, Pete.
I am writing to follow-up on the request for information that
the Union gave us on Friday. We have the Form 5500s. If you
could get us the SPDs, the aggregated claims data and the
other requested information that you have in your possession
as soon as possible, that would be great. Please provide the
data electronically, if you have it in that form.
Thanks again for all of your assistance.
Gayle
Gayle C. Wintjen
General Counsel
Oak Hill
Phone. 869.769.382.7
Fax: 869.769.3831
Email: win-
tieng@ciboakhill.org
By email dated June 20, McHale responded to Vannoni by
email and attached some of the information requested by the
Union in its June 17 letter, although it did not include the SPDs
for either the old or new plans. McHale also made some obser-
vations about Respondent’s view of the bargaining and the
Union’s information requests. McHale’s email is as follows:
From: Patrick J. McHale
Sent: Monday, June 20, 201112:23 PM
To: Linda Vannoni; Linda Vannoni
Cc: · Gayle Wintjen
Subject: 2009 IRS Form 5500
Attachments: 2009 IRS Form 5500 6–17–11 0166.pdf
Linda:
I am writing in response to your letter of July 17th.
I have attached the most recent Form 5500 which you re-
quested at item 2 of your letter. Representatives of Oak Hill
are working on gathering the numerous other documents that
are responsive to the other requests contained in your letter
and once the documents you have requested have been ob-
tained we will forward them to you promptly.
We are both surprised and disappointed that you have waited
until this late date to request this and other information related
to our proposals on medical insurance since, as you know, our
proposals regarding medical insurance were shared with the
Union as early as March 23, 2011 at which time we explained
the significant premium cost increase Oak Hill was facing ef-
fective July 1, 2011 and the fact that Oak Hill would not be in
a position to pay any more than current contributions to these
costs. Beginning on March 23 and consistently throughout our
negotiations we have asked you if the union needed any addi-
tional information about our proposal and also regularly asked
if the union wanted our insurance broker to attend any of our
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
negotiating sessions to answer any questions the union had
about our proposals and in each instance the union declined
our offers. Now with just 9 business days before our current
medical insurance plans will expire the union is suddenly in-
terested in viewing a variety of data regarding medical insur-
ance costs. Again this Information will be provided to you as
it is available. In the meantime we look forward to meeting
with you this evening when we hope we can reach a settle-
ment on the terms of a successor contract to the one that ex-
pired on March 31, 2011.
Patrick J. McHale
On June 20, the same day of the parties’ negotiations ses-
sion, the Union filed the instant charge.14 The charge alleges
that Respondent on or about June 16 and continually failed to
bargain in good faith by unilaterally charging terms and condi-
tions of employment of unit employees by altering cost of em-
ployee medical benefit premiums, copays, and other payments
for medical, dental, and health benefits, which changes will
occur effective July 1. The charge further alleges that Respond-
ent violated Section 8(a)(1) of the Act by threatening employ-
ees with loss of medical coverage if they did not elect one of
the unilaterally implemented medical plans at increased costs.15
On June 20, the negotiation session commenced at 5:40 p.m.
Vannoni began the meeting by stating that as soon as the Union
received the information that it requested concerning the health
plans, the Union would consider modifying its proposal in that
area, adding that the Union was interested in bargaining over
medical benefits as well as all other aspects of collective-
bargaining agreement to reach a total resolution.
McHale responded that the parties had met eight times and
that they had repeatedly explained that Respondent lost $3.5 to
$6 million in revenue per year and that 78 percent of Respond-
ent’s costs are employee wages and benefits. He continued that
if Respondent did nothing on medical insurance costs alone will
increase by $1.5 million. McHale then referenced an article in
the newspaper reflecting that the average State employee pays
14 percent of their insurance while Respondent’s employees
contribute between 5–7 percent for coverage. He continued that
Respondent cannot continue to operate with shortfalls. He rec-
ognized that employees had received increases for many years
but that Respondent needed to stem the tide, and in order to do
so needed to address shift differentials and overtime costs. He
added that Respondent had received no responses from the
Union on wages and benefits.

14 The charge was dated June 17 and apparently sent by mail on that
date to the Region, which filed it and dated it on June 20 and served the
charge on Respondent by fax and mail on that date.
15 I note the complaint did not allege that Respondent violated the
Act on June 16 by announcing its proposed changes effective July 1 as
alleged in the charge or that it had violated the Act by threatening em-
ployees on June 16 with loss of medical coverage if they did not elect
one of the unilaterally implemented plans.
Rather, the complaint alleges that Respondent unlawfully imple-
mented changes to employee health benefits on July 1 without first
bargaining with the Union to a good faith impasse in violation of Sec.
8(a)(5) of the Act.
Vannoni disagreed, asserting that the Union had made sever-
al proposals. McHale countered that all the proposals submitted
by the Union would increase Respondent’s costs.
Vannoni responded that the Union had requested information
on potential options during the Hamden session and the infor-
mation shared by Respondent revealed that this plan would
have cost only 6.8 percent more and added that the Union’s last
proposal would save Respondent money and that the Union
intended to present more counterproposals. Vannoni noted that
an increase in copays is an increase in employee costs and that
it is not the Union’s responsibility to save employer costs. She
added that Respondent has not modified its proposal on medical
and that the Union wanted a “serious counter.” McHale replied
that this is not true. Vannoni repeated that employees pay more
due to increases in copays under Respondent’s proposals and
that employees should not have to bear the cost of Respond-
ent’s deficits. Vannoni then stated that Respondent was asking
employees to incur serious increases in medical benefit costs
and at the same time to cut the shift differential and cut new
hire rates and longevity. Thus, the Union needs to hear from
Respondent about these cuts so that the Union could consider
further counters on medical.
McHale noted that the shift differential is unsustainable and
no reasonable employer pays it. Vannoni urged McHale to
make comprehensive proposals so that employees do not bear
the costs. McHale then reviewed the savings that Respondent
would experience if its proposals were adopted. They included
$656,000, $85,000 on freezing longevity pay, $195,000 over
the 4-year period of the contract for the new hire rate and
$8000 for reduction in paid breaks and $106,000 per year by
eliminating some holidays and paying for jury duty. McHale
also described that losses incurred by Respondent from 2007
through 2010 ranging from $3.4 million (2010) to $6.5 million
in 2008. McHale added that the changes proposed by Respond-
ent do not come close to saving $3.5 million deficit and Re-
spondent was not balancing on the backs of labor, but it needs
to preserve the institution and save jobs.
Vannoni replied that Respondent has $74 million in its en-
dowment and has used this money in the past to offset not get-
ting monies from the State.
McHale responded that Respondent expects its costs to be
labor intensive and the reality is that is where it can cut costs.
Vannoni then commented that Respondent’s increased costs
do not come solely from the bargaining unit but the cuts are
being proposed from the bargaining unit. She then stated that
the Union was there to bargain and focused on the Union’s
counterproposals to Respondent’s proposals as set forth in the
Union’s written response. The parties discussed these issues,
which included arbitration, discipline, paid administrative
leave, temporary transfers, snow days, and medical certifica-
tion.
After the discussion concluded, McHale asked Vannoni if
the Union had an economic proposal.
Vannoni replied that the Union was prepared to negotiate but
Respondent was only asking staff to make concessions and the
Union needs responses to their proposals. She added that Re-
spondent illegally implemented medical benefit changes and
has not provided information as to the costs of the Union’s
OAK HILL 389
medical proposal and the Union needed a detailed account of
insurance costs.
McHale responded that the parties had been negotiating
since March, the Union made the request on Friday and here is
why the Union’s proposal costs more. In the Union’s proposal,
anyone, who works (rather than scheduled certain amounts of
hours) is eligible for medical coverage based on 2.4 percent of
gross payroll. Based on scheduled hours, Respondent calculated
a difference in costs to it of $700,000 and the Union’s proposal
(based on hours worked) would cost even more. Vannoni disa-
greed with Respondent’s calculations and again asked for the
information requested. She reiterated that Respondent wanted
only to discuss what the staff has to give up, had made only one
wage and medical proposal, the Union made a proposal and
Respondent needed to do more than just reject.
McHale countered that Respondent offered to pay 75 percent
of the cost of family insurance.
Vannoni asked about cuts other than in the bargaining unit.
McHale replied that health insurance cuts are across the broad
and applies to all nonbargaining personnel. He reiterated that
the Union has not offered one counter that would save Re-
spondent money.
Vannoni responded that it Respondent would move off its
wage cuts, the parties could reach agreement.
McHale repeated that the Union’s counterproposal on medi-
cal was too costly.
Vannoni then stated that the Union had filed an unfair labor
practice charge with the Board, alleging that Respondent ille-
gally implemented medical plans and the employees were elect-
ing new plans under protest. She handed Respondent a letter,
dated June 20, to this effect, as follows:
June 20, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Re: Unfair Labor Practice filed against Oak Hill School
Dear Mr. McHale:
The Union has filed an unfair labor practice charge against the
Employer for implementing changes to employee terms and
conditions of employment specific to employee medical bene-
fits. The Employees have been advised by the Union to elect a
new plan, under protest, in order that they have necessary
medical coverage. This in no way waives the Employees’ and
Union’s claim that the Employer’s change in health insurance
coverage violates the terms of the expired agreement and rel-
evant federal labor law.
On behalf of all bargaining unit members the Union reserves
the right to continue to pursue a full and complete remedy of
the Employer’s unlawful actions including, but not limited to,
making all affected employees whole. We look forward to
bargaining further on this issue and others at our on-going
contract talks.
Sincerely
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
McHale explained that the Core plan proposed retained the
same contribution if employees so elect and the parties dis-
cussed these amounts.
Vannoni stated that Respondent’s notice to employees was
threatening (as alleged in its charge). McHale answered that
Respondent wanted to make sure that employees were aware of
the June 30 deadline. Respondent was not threatening, they
were merely informing them of the insurance election deadline.
Vannoni repeated that Respondent had no right to impose the
plans, it was an act of intimidation and employees are signing
up under duress.
Vannoni mentioned that Respondent based its cost on an ad-
ditional plan that costs 6.8 percent more, and McHale urged the
Union to make a comprehensive proposal.
A caucus was called. After the caucus, there was some dis-
cussion about the high deductible plan, and McHale again
brought up the deadline. One of the employee members then
chimed in that the parties could reach agreement and “we could
stay here all night.” Vannoni added that yes we could stay all
night to reach agreement.
McHale responded that Respondent had no counterproposals
to offer that night since it did not receive any counters from the
Union on economics. McHale reiterated that “we can no longer
absorb $1.5 million in premium increases.”
Vannoni replied that she was disappointed and asked why
hadn’t Respondent offered the plan discussed in Hamden as an
alternative plan. McHale answered that the Union had never
proposed that Respondent offer it and the Respondent merely
costed out a plan the Union had asked about. McHale added
that “if the Union wanted to make a proposal with that plan,
Respondent can offer it if the employees pay the difference in
premium.”
After some additional discussion, Vannoni repeated again
that the Union would be able to make a counteroffer on medical
once it gets the information it is seeking.
McHale relied that Respondent had asked its broker to pre-
pare responses to the Union’s requests.
Vannoni stated that the Union’s calculations are not con-
sistent with the data Respondent has provided and that the par-
ties will meet again once Respondent produces the information
that the Union is requesting.
Wintjen, in her postsession summary of the meeting to em-
ployees, stated as follows. “There is nothing in our contract or
the law that requires Oak Hill to absorb the $1.5 million in-
crease in rates that it would face in the absence of offering our
medical insurance proposals.”
On June 22, McHale sent the following email to the Union.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From: Patrick J. McHale
Sent: Wednesday, June 22, 2011 10:51 AM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: Experience Information and Calculation of Cost of
1199 Health and Welfare Plan Proposal
Attachments: Oak hill experience.pdf
Linda:
In response to your request of last Friday I have attached the
claims experience data covering the period of January 1, 2005
to November 30, 2010 as you requested. Our broker has also
requested the data from December 1, 2010 to as close to the
present as such claims data may be available and when we re-
ceive it I will send it to you promptly.
At our negotiating session yesterday I explained the calcula-
tion Oak Hill used to determine the expected cost of the pro-
posal the Union made on June 8, 2011 (specifically the Op-
tion #1 proposal) that Oak Hill switch from offering its cur-
rent medical insurance plan options to the 1199 Health and
Welfare Fund which would require Oak Hill to contribute
“24% of gross payroll for all employees who work twenty
houses of more per week”. This was another piece of infor-
mation that you requested on Friday, June 17th. As discussed
it is difficult to determine the exact cost of the Union’s offer
since some employees who are not regularly scheduled to
work twenty hours per week may in fact work at least twenty
hours from time to time but not always. For this reason we
calculated our cost estimate conservatively by taking into
consideration only the gross payroll for such employees
amounts to $21,481,803 and 24% if that amounts to
$5,155,633. This amount is significantly greater than the
$4,445,764 which Oak Hill is currently contributing for medi-
cal insurance costs for the same groups of employees. If we
add to the cost the additional workers who are not scheduled
to work at least twenty hours each week but who sometimes
do the cost disparity will only widen further.
During our negotiations last evening you asked why Oak Hill
was not planning to offer employees the HMO option the Un-
ion requested that Oak Hill have priced out on April 27, 2011.
More specifically you were referring to the plan the union
wanted to see priced which involved an increase in office visit
copays to $20 primary and $30 specialist; increase in hospital
copay to $250 per admission; increase in outpatient surgery
copay to $100; increase in emergency room copay to $150
and urgent care copay to $75; reduce the DME benefit to
50%; and increase in prescription drug copays to $15 Tier
1/$25 Tier 2/$40 Tier 3. This plan would increase current
medical premium costs by 6.8% over current rates as further
set forth in the cost comparisons we provided the Union at our
bargaining session on May 3, 2011. As we explained on
Monday night if the Union wants Oak Hill to offer the above-
referenced HMO plan design as an alternate buy up option or
even in lieu of the current HMO as a buy up plan option form
which employees may choose please let us know. The Union
has never made such proposal in our negotiations to date but
we would have no objection to that optional plan choice if that
is the Union’s proposal.
Again at our meeting last night, as in each of our seven prior
bargaining sessions, the Union made no proposals on medical
insurance that would allow Oak Hill to offer medical insur-
ance benefits to employees at no additional cost to Oak Hill or
any of the other economic proposals Oak Hill has made in our
negotiations which began on March 23, 2011. Further, the un-
ion indicated that it would not make any such proposals at
least until the union received the information it just requested
on June 17th. If the union has any such proposals to make
please let us know as soon as possible since, at least with re-
gard to medical insurance, we are at the point where the in-
surance carrier and our employees need to know what plan
options will be available to them effective July 1, 2011.
I just received information that is responsive to each of the
other requests contained in your letter of June 17, 2011 and so
will forward that additional information to you, in electronic
form as you requested, today.
McHale sent another email to the Union later that morning,
stating that “I am hereby forwarding you responses to all the
other requests for information made of Oak Hill on Friday, June
17.” The information submitted by McHale to the Union was
compiled by Respondent’s broker, who sent an email to Re-
spondent on June 21, stating that the broker had received a
copy of the Union’s June 17 letter and that Respondent’s re-
sponse to the questions asked by the Union were provided. The
broker also attached various documents to be provided, which
included “a copy of 2010 United Health Care/Oxford HMO
PD5 and HDHP summaries,” cost breakdowns of each plan to
Respondent and copy of Respondent’s monthly cost by cover-
age.
The “summary of coverage” forms provided by Respondent
on that date, according to Vannoni are not the equivalent SPDs
as requested by the Union. While she observed that important
information is provided, including costs premium deductibles,
and listed various services covered, it was not complete and
many important issues are not explained. Vannoni provided
some examples of some items that were not specific in these
documents but should be included. For example, the Union
needs: (1) to know whether or not physical therapy, occupa-
tional therapy and speech therapy are included under the plan,
and if so, the limits of such care; (2) the limits of allergy care
and the types of treatments allowed under the plan; (3) the
number of annual visits paid for alternative medicine, including
occupational and chiropractors; (4) the limits of short-term
rehabilitation; (5) what DMEs are covered, and if so, how
much; and (6) the limits of mail order prescriptions.
I also note that in several places on these documents the fol-
lowing footnote is provided:
Please Note: This sample summary of coverage is provided
for informational purposes only. The applicable Summary of
Benefits will be issued to eligible enrolled members as part of
the Certificate of Coverage. Coverage is subject to the terms
and conditions of the Certificate. Refer to the Certificate of
Coverage for a more complete listing of all benefits, limita-
OAK HILL 391
tions, and exclusions which include, among other services not
authorized by Oxford, cosmetic surgery, routine foot care,
custodial care, personal comfort or convenience items, private
or special duty nursing, learning and behavioral disorders,
Worker’s Compensation, military service-related conditions,
or unless, otherwise stated, dental service and vision correc-
tion services and supplies.
Benefits are subject to final approval by the Department of In-
surance and therefore may be subject to change.
I note further that these documents submitted by Respondent
(through its broker) were dated July 1, 2010.
McHale responded to the Union’s June 17 request for a
“copy of the SPDs as well as the plan for each of the plans
being proposed by the Employer” as follows. “A copy of the
2010 Benefit Summaries are attached. The full SPD is not
available as Oxford is still waiting for state approval for some
of the SPDs from 2010.”
More significantly, McHale made no response or reference
to the Union’s request for the SPDs for Respondent’s proposed
plans nor did any of the attachments provided by Respondent
include any information concerning these plans.
On June 29, McHale sent the following emails to the Union:
From: Patrick J. McHale
Sent: Wednesday, June 29, 2011 12:29 PM
To: Patrick J. McHale, ‘Linda Vannoni’
Cc: ‘Gayle Wintjen’
Subject: Oak Hill Negotiations
Linda:
As you know the Union has chosen not to reply to Oak Hill’s
offer as set forth in my email of June 22nd below. According-
ly Oak Hill has no reasonable choice under the present cir-
cumstances but to finalize the anticipated medical insurance
plan offerings that will be made available to employees be-
ginning July 1, 2011 as set forth in my prior communications
with you both during negotiations and through written follow-
up communications.
From the financial statements Oak Hill has provided the Un-
ion in our negotiations to date, you are aware that Oak Hill’s
operating costs have exceeded its operating revenues by any-
where from $3.4 million to $6.5 million during the term of the
recently expired agreement. Oak Hill has explained that it can
no longer afford to operate with such significant operating
deficits and needs to reduce its operating costs since its reve-
nues have not materially increased during the past 4 years and
are not expected to increase in the foreseeable future. As we
have explained during our negotiations, personnel-related
wage and benefit costs make up just under 80% of Oak Hill’s
operating costs and so Oak Hill needs to find ways to reduce
some of these costs in order to run its programs at closer to a
break even margin. Accordingly, Oak Hill would like to re-
sume negotiations on each of the open issues in our current
negotiations and offers the following dates and times for fu-
ture negotiations:
From: Patrick J. McHale
Sent: Wednesday, June 29, 2011 12:42 PM
To: ‘Linda Vannoni’
Cc: ‘Gayle Wintjen’
Subject: RE: Oak Hill Negotiations
Linda:
I sent my recent message below to you before including the
offered dates and times for future negotiations. Here they are:
July 21 after 4pm, July 25 in the morning or early afternoon (I
need to be in New Haven by 4pm), July 26 anytime or July 27
after 4pm.
As you know calendars fill quickly so please let us know at
your earliest convenience if any of these offered dates are ac-
ceptable to the Union for future negotiations.
Thank you.
McHale testified concerning the above emails and Respond-
ent’s decision to implement the medical plans on July 1 as he
had stated in his notification to the Union. McHale explained
that his comments in his June 22 letter was meant to make it
clear that Respondent (as it had expressed in the June 8 meet-
ing) was willing to agree to the Hamden Plan if the employees
would pay the difference in premiums. McHale stated that this
means that this “is a final offer that we would extend. If you
want this we will include this. The Union has never made such
a proposal in negotiations to date, but we would have no objec-
tion to that optional plan if that’s what the Union proposes. So
we’re expressing a willingness to incorporate that plan.”
McHale further explained that had the Union responded that
they wanted the Hamden Plan as one of the alternatives and an
agreement was reached, Respondent would have had to re-
enroll employees for such a plan if they so chose and it would
have resulted in lots of confusion and delays in processing of
claims. But Respondent was willing to do that for the sake of
making a deal.
However, since the Union did not respond to this offer, Re-
spondent did not believe that there was any reasonable possibil-
ity that further negotiations would result in an agreement with
the Union on healthcare. McHale further testified, “We had
reached the end of the rope. We worked at this as long as we
could. July 1 was the date we had to have a new plan. Keeping
the old plan would have meant us paying 18% more, annualized
$1.5 million dollars. We couldn’t do that. So there was no op-
portunity for further negotiations. We had offered our pro-
posals. We had offered to substitute the Union’s suggested plan
at the last minute if that was agreeable to them. Not only did we
not have an acceptance or rejection, we had no response. So
there was no meaningful opportunity that further bargaining
would be fruitful at that stage. We were 24 hours away from the
end.”
McHale further testified that Respondent has been hopeful
that it would be able to obtain an agreement from the Union on
healthcare before July 1 and continue bargaining on other sub-
jects. He further was asked if the Union had agreed to some-
thing that Respondent could live with, such as, for example, the
Hamden Plan with some concessions, what would happen.
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McHale replied that if the Union had agreed to the Hamden
Plan with “let’s split the cost that would have been perfect.” In
such a case, the parties would have agreed to continue bargain-
ing on other subjects and signed an agreement on the agreed-
upon health plans.
McHale was subsequently asked why Respondent didn’t
propose splitting the cost of the Hamden Plan as he suggested
Respondent would agree to. He replied that the Union never
responded to whether the Hamden Plan was acceptable to them,
so Respondent did not make that offer.
McHale also testified that it was clear from the bargaining
stance of the Union that it wanted a total agreement on the en-
tire contract, not just on healthcare and didn’t want to move on
medical until Respondent took the concessionary proposals that
it made off the table.
McHale testified further that Respondent made the decision
on June 29 that the parties were at impasse and that no further
bargaining would be productive, again emphasizing that the
Union wouldn’t even tell Respondent if the Hamden Plan was
an acceptable alternative. He conceded that Respondent never
told the Union at that or any time for that matter that Respond-
ent believed the parties were at impasse (on healthcare) but
adds that “we told them what the consequences of where we
stood.”
Vannoni testified on rebuttal that, in her and the Union’s
view, the parties were not at impasse on June 29 and that she
believed that the parties were still talking about medical bene-
fits and looking at alternatives and that the Union was still wait-
ing the receipt of additional information from Respondent.
Thus, she believed that further bargaining on medical benefits
could be useful and productive. She indicated that she did not
believe that the parties were at impasse and that Respondent
had not indicated that it believed that they were at impasse.
When asked about McHale’s June 22 letter, Vannoni testified
that she did not take it as a proposal from Respondent, but
merely an observation that the Union could propose it (the
Hamden Plan) if it wanted to, which she knew. She also noted
that McHale commented in his letter that Respondent had just
received information that is responsive to the Union’s requests
for information, which he will forward on that day to the Un-
ion. Thus, according to Vannoni, this is a recognition that Re-
spondent knew that the Union was awaiting information re-
quested and that bargaining would resume and the Union could
make some movement on medical at such future bargaining.
Vannoni was also asked why the Union did not reply to
McHale’s June 22 letter or to his suggestion that the Union
propose the Hamden Plan. Vannoni testified there was nothing
new in there that required a response. She asserts that she did
not see any movement by Respondent and reminding the Union
that it could make a proposal on the Hamden Plan was not, in
her view, a proposal by Respondent. She adds that, in her opin-
ion, a proposal is made across the table. As for replying to the
letter, she states that it was clear at the last session as well as in
McHale’s own letter that the Union was seeking more infor-
mation to understand further any further proposals it might
make on medical benefits and still hadn’t received it. Therefore,
Vannoni did not believe that the Union should bargain against
themselves and that she expected future sessions to be ar-
ranged, the information supplied and further bargaining on the
medical issue.
G. Respondent Implements the New Plans
On July 1, consistent with Respondent’s written communica-
tions to the Union and the employees, Respondent implemented
the plans that it proposed. At that time, the three previous plans
that the employees had previously been allowed to choose from
were still in existence and had not “expired.” Respondent de-
cided not to offer them to its employees because Respondent
did not want to incur the additional costs for premiums that
would have resulted if these plans continued to be offered to
employees after July 1.
These new plans resulted in either an increase in premiums
for unit employees or increases in their copays or other out-of-
pocket expenditures if they chose a plan with the same premi-
ums or in the case of the HDHP, reduced the amount Respond-
ent funded to that plan from 75–67 percent.
H. Post-July 1 Events
No bargaining sessions were held until the end of August.
They met twice in August, once in October and on January 11,
2012.
On July 6, Vannoni sent the following letter to McHale:
July 6, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Dear Pat McHale,
You misrepresent the Union’s position frequently in
your letters and emails. The Union has made the Employer
a counter proposal regarding medical. The Union has nev-
er refused to bargain over medical benefits. Additionally,
at our last bargaining session we indicated very clearly we
believed the Union would be able to make further counter
proposals on the subject of medical benefits and in order
to do so we needed information which had been previously
requested on numerous occasions and had not received as
late as the June 20th negotiations. After having received
some of the information requested so far I am writing to
inform you that the Union intends to make a counter pro-
posal on the issue of medical in the near future. In order
the Union to do so I will need the additional information
you have yet to provide, please do so at your earliest con-
venience. Here is the information still needed as requested
most recently in my letter to you dated June 17, 2011:
 A copy of the summary plan description for the Ox-
ford plan offered, as well as the actual plan descrip-
tion for each of the plans offered, not just the sum-
mary of benefits.
 A copy of any rules, regulations, procedures, admin-
istrative manual or procedures or policies which af-
fect or relate to any of the four proposed plans.
 A cost breakdown of each plan to the employer for
coverage for bargaining unit employees only. The in-
OAK HILL 393
formation provided by the employer includes non-
union personnel as well.
 A detail of the Employer’s calculation explaining
how the employer has arrived at the figures that were
reported to the Union for gross bargaining unit pay-
roll of all bargaining unit employee working 20 hours
or more.
As you know the Union has filed an Unfair Labor
Practice Charge with the National Labor Relations Board
because of your announcing and unilaterally implementing
dramatic changes to workers’ benefits over which you
have failed to bargain in good faith. Specifically you have
implemented the following alterations in existing benefit
coverage and we demand you cease and desist in changes:
 For employees electing the HMO Medical plan with
co-pays of $15 per routine office visit, $25/per visit
to specialist office visits, prescription costs of
$10/$20/$30, etc the employer has dramatically and
illegally implemented premium increases of
$151.13/month for employee only coverage, any-
where between $296.70–$402.26/month for family
rather than the $40/month for individual only cover-
age or $80/month afforded for Employee plus cover-
age under the expired agreement.
 For employees electing to stay at a premium of
$40/month or $80/month for individual or employee
plus coverage, respectively, you have dramatically
changed employee co-payments to amounts which
are not equivalent to the HMO plan which prior to
June 30th, 2011 was afforded individuals who signed
up for $40/month or $80/month benefits.
 For employees electing to take the High Deductible
Plan you are decreasing the employer funded up-front
share of that High Deductible from 75% under the
expired agreement to your illegally implemented
amount of 67% of the upfront deductible.
Each of these changes should cease and desist imme-
diately.
Lastly, I write to inform you that I have heard from your col-
league, Gayle Wintjen, you are not available during the dates
I offered yesterday. Therefore I have offered additional dates
included in the email sent earlier this evening to her.
Please let me know when your team is available to
meet next to continue negotiations for a new collective
bargaining agreement.
Sincerely,
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
McHale responded to the Union by email on July 14, stating
as follows: “Linda: Here is another copy of the information
pertaining to the other plan offerings. Again, if this is not what
you seek, let me know and I will schedule a meeting with a
representative of Oxford so you can explain what additional
information you require.” The information supplied by McHale
on July 14 to the Union was, as indicated by McHale, simply
another copy of the information supplied to the Union in June,
and detailed below.
Thus, Respondent did not furnish SPDs for either the previ-
ous or the new plans on that date.
On August 25, the parties resumed negotiations at the Neat
Center. Wintjen was not present at this session, so Respondent
was represented by Stan Soby, Donna Shears, as well as by
McHale, its primary negotiator. Vannoni was again the Union’s
primary negotiators, assisted by bargaining unit members,
Clark Peters and Jeanette Bailey Spence.
The Union began this meeting by submitting a document en-
titled “Status Proposals (a) Oak Hill,” which included some
modifications of its previous proposals. These modifications
included a modification of the wage proposal, reducing it to 40
cents per hour, effective July 1, 2011, from 60 cents an hour,
effective April 1, 2011, as well as a modification of the Union’s
health insurance proposal. This modification, which as contin-
gent on Respondent with drawing all of its other proposals to
reduce costs, provided for unit employees to be covered under
the Union’s health and welfare fund but at a rate of 23 percent
of scheduled payroll, down from 24 percent. The Union also
provided copies of what it believed to be tentative agreements
reached by the parties on grievance procedure and substitutes.
These matters were reviewed and discussed by the parties.
With respect to the Union’s proposals on the medical plan,
McHale stated that, as he had noted previously, it would be too
costly for Resident’s employees to participate in the Union’s
plan whether at a rate of 27 or 24 percent.
Vannoni informed Respondent that the Union was still miss-
ing the plan descriptions that it had requested. McHale replied
that it had already been sent. Vannoni answered that the Union
needed a full broad descriptions of the plans that Respondent
imposed.
McHale asked if the Union had any proposals to address Re-
spondent’s need to cut costs.
Vannoni protested that Respondent was proposing severe
and drastic cuts and all the savings were on the back of its em-
ployees. McHale responded that Respondent cannot continue to
operate unless it reduced its labor costs. Vannoni stated that
Respondent was wasting its time repeating the same things and
urged it to make modified economic proposal.
After further discussions, Peters chimed in that, in his view,
Respondent was not really losing money, just making less and
that employees deserve more. Vannoni again talked about the
endowment and observed that Respondent does not have con-
cern for the Union’s proposals.
The meeting ended after some further discussion and con-
firmation that the next meeting will take place on August 31.
On August 26, McHale sent an email to its broker apparently
in response to the Union’s request for detailed descriptions of
the implemented plans. The broker responded that he would get
them over to McHale. The exchange is as follows:
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From: Wertsching, Peter [mail-
to:peter.wertsching@willis.com]
Sent: Friday, August 26, 2011 1:57 PM
To: Patrick J. McHale
Cc: Vashalifski, Denise
Subject: RE: Oak Hill
Pat,
We will get these over to you.
Pete
Peter Wertsching
Client Executive, Employee Benefits Practice
Willis of Connecticut LLC
185 Asylum Street, 25th Floor
Hartford, CT 06103–3708
Direct:860·756–7364, Cell:860·250·7973Fax:860·756–7364
E-mail: peter.wertsching@willis.com..Willis.com
_________________________________________________
From: Patrick J. McHale [mailto:pmchale@kemlaw.com]
Sent: Friday, August 26, 2011 12:18 PM
To: Wertsching, Peter
Subject: Oak Hill
Pete:
I hope you have been well.
I need you to send me the full, detailed descriptions of the
medical insurance plans that are presently being offered to
employees at Oak Hill to respond to the Union’s latest infor-
mation request. Is there any chance you can provide me with
those voluminous documents in advance of our next negotiat-
ing session on August 31st?
Best regards.
On August 30, Respondent sent to the Union a series of doc-
uments, which he described as “the subscriber agreements for
each of the plans offered at Oak Hill.” In fact, these documents
were provided in error to Respondent by the broker, and in turn,
to the Union. At the August 31 session, Vannoni showed these
documents to McHale and pointed out that they do not contain
information pertaining to the implemented plans. McHale
looked at the documents, conceded that they were not correct
and apologized and commented that these documents were sent
in error.
On August 31, the parties met once more at the Neat Center.
Most of this session was spent on discussing and memorializing
the tentative agreements reached by the parties regarding griev-
ance process and substitutes. The parties also discussed a coun-
terproposal made by Respondent, deadline with administrative
leave, but no agreements were reached.
Vannoni asked if Respondent had any counterproposal to the
Union’s wage increase proposals. McHale replied that Re-
spondent could not agree to any increases since there is no in-
creased funding or revenues. Thus, Respondent was holding to
its previous pass through proposals on wages.
With respect to medical, McHale stated that Respondent al-
ready rejected the Union’s request that employees participate in
the Union’s plan as too costly and that even with a reduction
from 24 to 23 percent of payroll, the cost is more than Re-
spondent was paying. Further, McHale observed that Respond-
ent was in the middle of the year in its contract with the insur-
ance carrier and the Union’s proposal would force it to cancel
that plan prematurely, which would not be feasible or economi-
cal.
Vannoni then proposed that Respondent end the current con-
tract at the year’s end to join the Union’s plan and pointed out
that 18-percent increases do not happen in the Union’s plan,
adding that there has been security in costs of these plans since
2003.
McHale responded that the Union erodes benefits in order to
keep costs down and that employees are not happy with the
Union’s plans. He again asked the Union to propose plans that
would represent cost savings, not more expensive proposals.
The parties then discussed some other language issues and
returned to Respondent’s request that the Union make pro-
posals to lower Respondent’s costs. Vannoni replied that “we
have none. It is not our job to provide the employer with mas-
sive concessions; we will not shred the fabric of the contract.”
The meeting ended with a discussion of additional dates for
meetings.
On September 20, Respondent’s broker sent to McHale four
documents, described as “The Genene UHC/Oxford certifi-
cates.” McHale sent them to the Union on September 21, stat-
ing that these were “additional information the insurance carrier
has recently provided further describing the terms of the benefit
plans offered to employees at Oak Hill.”
The documents provided by Respondent were entitled, “cer-
tificates of coverage” and, although it provided useful infor-
mation to the Union according to Vannoni, it was not complete-
ly responsive and was still not, in her view, SPDs, which would
include the information that Vannoni believes should be in-
cluded in a SPD. These documents were clearly documents
from Oxford and provided detailed information about the four
plans that were implemented. These documents are not dated,
but on a number of pages of these documents, there are various
dates appearing on the bottom of the pages, which appear to
reflect some dates. These include “OH/PCT HMO/POS
SELECT 1/98,” “2810 Ct Freedom Plan Select Cert 12.09,”
“OHPCTBENRID 10/99,” “Ct 2000 Ben/Leg POS Select Rid-
er,” “OHPBENRID 5.05,” “Ct.OHP HMO/POS Select Benefits
Update Rider 3.06,” “Ct OHP Benefits Update Rider 12.06,”
“Ct.OHPPOS2007 Benefits Rider 10.07,” “OHPCTHMO
NGMH 11/09,” “POS Select Handbook 2.10,” “2810 Ct Free-
dom Plan Select Care 12.09,” and “7437 Ct Large FP Direct
HAS Certificate 12.08.”
On October 19, the parties met once more. At this meeting,
Respondent offered a package settlement, which included a 2-
percent wage increase for all unit employees, effective upon the
signing of a contract, contingent on agreement to all of Re-
spondent’s outstanding proposals, which included elimination
of shift differentials, longevity increases and a new pay struc-
ture for new employees.”
The union representatives characterized this proposal as “you
insult us,” again accused Respondent of cutting its employees
OAK HILL 395
to meet its deficits and once more, urged Respondent to consid-
er the endowment.
McHale urged the Union to propose an alternative medical
plan that is less costly to Respondent.
The Union offered a counterproposal on wages and medical
insurance. On wages, it proposed increases of 40 cents per
hour, effective October 1, 2011, and March 31, 2012, and 60
cents per hour, effective March 31, 2013, and March 31, 2014.
On medical insurance, the Union offered similar, but slightly
altered proposals from its prior proposal. It offered an option of
switching employees to the Union’s plans at a cost of 23 per-
cent for the first year and 24 percent the second year, starting in
July 2012. Option 2 was offering Buy Up plan as Core HMO
plan with employee contributions of $40 per month for individ-
uals and $80 for families and reimbursement of 75 percent but
with modifications in when payments would be made of the
deductible by Respondent.
Vannoni asked how Respondent had projected the costs of
joining the union funds, contending that Respondent might not
have calculated those benefits in addition to health insurance
that the Union’s funds provided. The parties agreed to ex-
change dates for future meetings by email.
On November 11, the Union sent a detailed information re-
quest to Respondent, noting among other things that the de-
scription of newly implemented plans provided by Respondent
on August 30 listed various benefits and charges in its “Free-
dom Access Plan,” which was significantly different from the
summary of benefits for the “Core HMO plan” provided by
Respondent to the Union on June 16. The Union listed some of
these differences.
The Union’s letter also asked once again for health insurance
documents and more detailed descriptions of the plans in effect
prior to June 30, 2011. The Union’s letter is as follows:
November 11, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Re: Information requests for Oak Hill School
Dear Mr. McHale:
With respect to bargaining over health care benefits,
the Union has filed an Unfair Labor Practice Charge
against Oak Hill for failing to provide information we be-
lieve is necessary for making a full and comprehensive
counter proposal on medical benefits and for illegally im-
plementing radical changes to Employee benefits which
you failed to negotiate with the Union in good faith. While
at the table for negotiations on these and many other unre-
solved issues, the Union has demanded that the Employer
cease and desist in the implementation of the medical
plans and corresponding premium shares which you have
failed to bargain in good faith over. To date you have
failed to heed this demand.
At our last three sessions in August and October, the
Union made other counter proposals regarding medical
and other issues open at negotiations, especially regarding
modifications on our stance to switch to the Union Health
& Welfare Fund. As requested since early on in our nego-
tiations the Union has requested copies of the medical and
other benefit plans in effect prior to 6/30/11. Of those ben-
efits I am still in need of the following:
1. A copy of the health insurance plan documents, including
the summary of benefits, the more detailed plan description,
not just the “summary of coverage” for each of the plans in
effect prior to 6/30/11 which delineates how many any limits
to the number of chiropractic visits, what constitutes durable
medical equipment.
2. A copy of any rules, regulations, procedures, administra-
tive manual or procedures or policies which affect or relate to
any of the four plans effective prior to 6/30/11. (On Septem-
ber 21, 2011 the employer sent some plan details for unspeci-
fied medical benefits. It is possible that these are “Certificates
of Coverage” for these pre 6/30/11 plans. Please be explicit in
your response if these Plan documents relate to our prior ben-
efit plans.)
3. Copies of all claims for coverage under the plan made by
bargaining unit only employees for the last 5 years and the
summary of such claims akin to that one provided previous
but for bargaining unit employees only and through the period
through until July 1, 2011. The Union still is not in receipt of
these.
4. Copies of any correspondence or other documents with re-
spect to the processing of those claims and the payment of
those claims for bargaining unit employees only. The Union
requests that any sensitive and confidential information be re-
dacted. The information provided to date on this is incomplete
and contains aggregate numbers including non-union person-
nel.
5. As for non-medical benefits offered by the Employer prior
to 6/30/11 your 7/14/11 failed to identify if the costs repre-
sented there in the attachment for “Life/AD&D,” included on-
ly union employees or non-union as well, please specify. Al-
so, there was no plan description included for this benefit.
Please provide it.
6. As for the Short Term Disability information, please pro-
vide a list of bargaining unit employees who enroll for this
benefit and a list of which bargaining unit employees that uti-
lized this benefit, each year for the last 5 years. What was the
length of Employee benefits received? What was the total fi-
nancial amount of benefit received? What was the dollar
amount the employer paid for each employee? What was the
nature for the need for the STD? Provide a Summary Plan
Description and plan documents related which describe the
benefits received by employees who enroll and utilize this
benefit?
7. As for Long Term Disability you provided a document
which listed “Class 1—Non-Union Officers,” and “Class 2—
Non-Union Employees.” Please specify what if any of the in-
formation provided on June 22, 2011 and July 14th, 2011 is
under the title “LTD Provisions” are the benefits also provid-
ed to Union workers. Please provide a copy of any listing or
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Summary Plan Description and plan documents related which
describe the benefits received by employees who enroll and
utilize this LTD benefit.
8. For dental and vision insurance prior to July 1, 2011,
please provide the summary plan description for these bene-
fits, what exact services are covered, and for what exact cost.
Are there plan limits, co-pays, deductibles and exclusions of
certain services? Please provide a copy of all such docu-
ments.
In your email dated July 14th, 2011 you provided a
Summary of Coverage for the plans in effect prior to
6/30/11. However, you have, to date, failed to provide
“Summaries of Coverage” and “Summaries of Benefits”
for the Plans being offered effective beginning July 1,
2011 to employees. The names of those plans according to
Wintjen’s email dated 6/16/11 were: “Core HMO Plan,”
“Buy-Up Current HMO Plan,” “POS Plan,” and the
“HDHP(HSA)”‘ plans. I request again that you provide a
Summary Plan of Benefits, Summary Plan of Coverage
and any and all Plan documents to the Union for each of
the plans effective beginning July 1, 2011.
Since the Employer has illegally changed employee
benefits the Union requests information regarding what
Employees are now enrolled in. Please provide the follow-
ing:
9. A list of insurance benefit plans elected by employees that
includes the number of employees eligible at this point in time
(post 7/1/11 member enrollment), the number of employees
participating in each of the plans, the levels of coverage they
elect in the new plans, the number of hours they are weekly
regularly scheduled to work, what the employee pays monthly
for the insurance, what the employer pays to cover that em-
ployees’ insurance (for medical and dental separately). In-
clude whether or not employees are eligible and have now
elected Life/AD&D, STD, LTD as well, and if so, how much
do they pay for these benefits now?
In your letter dated August 30, 2011 you provided the
Union with what appears to be one plan “Summary of
Benefits” for a plan called “Freedom Access Plan” which
matches nothing like what the Employer has proposed an-
ywhere to date. What is this document? What plan is this
in reference to and why does it not match the co-pay struc-
ture proposed under any of the plans “implemented” July
1, 2011? Here are some examples from the one “Summary
of Benefits” provided the union on August 30, 2011:
Example:
1) name of the plan appears no-where in your prior proposals
“Freedom Access Plan”‘ exists
2) Physician visits say - Preventive Care= no Charge
3) Primary Care Treatment of Illness or Injury-= $25/visit
4) Specialist Visit = $40 co-payment
5) RX = $15/$25/$40
6) ER visits = $100/visit
7) Urgent Care = $40/visit
8) Durable Medical Equipment = No charge
9) Inpatient= $250
10) Outpatient= $100
Whereas your email whose attachment is titled “Oak
Hill’s Health Insurance Plans at-a-glance” emailed to me
by Wintjen on June 16, 2011 lists a “Core HMO Plan”
with a fee scheduled as follows:
1) Name of plan “Core HMO Plan”‘
2) Physicians Visit/Routine = $30, doesn’t specify if they are
preventive if they cost $0, this implies it costs $30 for all vis-
its, preventive or not
3) Specialist = $45
4) Rx: $15/$25/$40
5) ER Visits = $150
6) Urgent Care = $75
7) Durable Medical Equipment = 50%
These two plans are not remotely the same. It is un-
clear what the August 30th SPD is for. Please inform me
as to how it relates to the Employer’s proposals and im-
plemented medical plans. None of the other medical plans
listed on the Employer’s June 16th list to workers, either
the plans titled, “Current HMO Plan,” “Core HMO Plan,”
“Buy-Up Current HMO Plan,” “POS Plan,” or the
“HDHP(HSA)” has similar costs as I summarize above for
the “Freedom Access Plan” provided 8/30/11.
Lastly, at our last negotiations on October 19, 2011 I
asked you to provide me with your total costing of all the
benefits which would be equivalent to the Union’s Health
& Welfare Fund. You admitted that you were not aware as
to whether or not the Employer, when comparing the Un-
ion’s Health & Welfare Fund to Oak Hill’s own array of
benefits, had included the cost of STD, LTD, Life/AD&D,
dental and medical in the agency’s total consideration.
You claimed that the Union had never made you aware
that this was the array of benefits offered by the Union’s
Fund. I pointed out to you that the Union had done so in
writing prior to July 1, 2011 and yet you were completely
unaware as to what the Employer’s costing of the plan had
been. I requested that you ask your team to fully cost out
the cost of the total equivalent of the Union’s Health &
Welfare package in Oak Hill’s current benefits which
would include:
1) The cost to the Employer to provide Union Employees’
cost of Life/AD&D annually
2) The cost to the Employer to provide Union Employees
Cost of STD annually
3) The cost to the Employer to provide Union Employees
Medical annually
4) The cost to the Employer to provide Union Employees
Dental annually
5) The cost to the Employer to provide Union Employees Vi-
sion annually
6) The cost to the Employer to provide Union Employees Tu-
ition benefits
7) What is 24% of Gross Union payroll for Employees regu-
larly scheduled to work 20 hours/week, including overtime?
8) What is 24 %of Gross Union payroll For Employees who
regularly work 20 hours/week, including overtime?
OAK HILL 397
Please provide this prior to our next session. I offer the fol-
lowing dates:
Dec 8th - morning or evening
December 13th morning or evening
December 15th morning or evening
Sincerely,
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
On December 1, Respondent granted a 2-percent wage in-
crease to all nonunit employees. The Union responded by dis-
tributing a flyer, labeling Respondent’s president, Johnson, as a
“grinch” for giving nonunion staff a 2-percent increase with no
strings attached while asking the union staff to take his offer of
no shift differentials, freeze of longevity bonus, acceptance of
illegal increased healthcare costs, and open all new homes as
nonunion.
On December 4, McHale sent the Union a series of emails
and documents responsive to its November 11 information
request, detailed above.
None of the documents provided to the Union were labeled
SPDs but had various labels, including plan summary for Re-
spondent’s dental coverage for plan periods, 7/1/10–6/11 and
7/11–6/12, which provided detailed information about dental
coverage for these periods of time. Additionally, Respondent
provided, according to is broker, “2010 and 2011 plan summar-
ies along with the certificated providing details of the plan cov-
erage.” Respondent provided copies of a two-page summary of
the Oxford Freedom Select Plan Summary of Coverage, dated
July 1, 2011, a two-page summary of coverage for the Oxford
HSA Direct Plan, dated July 1, 2011, a two-page summary of
coverage for the Oxford HMO Plan Select, dated July 1, 2010,
and a two-page summary of coverage for the Oxford HMO
Plan Select, dated July 1, 2011.
In addition to these summaries, Respondent provided the
documents from Oxford, entitled, “Certificate of Coverage” for
the plans. The documents included a “2010 Benefits Update
Rider,” “2009 Amendment” and a “2011 Amendment.”
According to Vannoni, this submission was the first time that
the Union received detailed summaries of coverage and bene-
fits for the old and new plans although, in her view, these were
still not SPDs. Vannoni testified that “it’s close” but still not
SPDs.
The parties met once more on January 11, 2012. As the Un-
ion had request, Respondent passed out a written copy of its
comprehensive settlement proposal, submitted at the prior ses-
sion, which, as noted, reflected a 2-percent wage increase in
exchange for the Union’s agreement on all other outstanding
Respondent’s proposals. The Union did make a response to that
proposal at the meeting.
Vannoni stated that Respondent had still not fully complied
with the Union’s information requests with respect to medical
benefits and that some of the information provided was confus-
ing. She referenced the August 30 documents supplied by Re-
spondent and noted that the copays reflected in those docu-
ments did not appear anywhere else and did not match the doc-
uments supplied on December 4.
McHale replied that Respondent had supplied thousands of
documents to the Union and suggested that the best way to
resolve the Union’s concerns in this regard was to schedule a
meeting with Respondent’s broker. Vannoni agreed to meet the
insurance broker but added that the Union also wanted Jim
Jones to be present so that the Union can understand how Re-
spondent made its cost analysis of the Union’s health and wel-
fare fund.
Vannoni asserted that participating in these funds would save
Respondent money and added that other providers had switched
to the Union’s fund and that increases are normally 1 percent.
McHale retorted that other employers are not pleased with
the Union’s funds and the benefits were eroded. He also stated
that Respondent needed information about the fund. Vannoni
answered that requests for information should be sent to the
fund administrator, Cassandra Murphy.
The Union then modified its wage proposals to a 2-percent
wage increase, effective October 1, 2011. McHale replied that
Respondent had offered the Union such a wage increase in its
October 19 offer. The Union responded that this offer was
made along with a cut in other areas.
The Union questioned how Respondent could give a 2-
percent increase to nonunit employees in view of the financial
crisis and then state it is unable to provided wage increase to
union personnel.
McHale replied that unit employees have been receiving
longevity raises and step increases, which are not available to
nonunit employees. McHale added that all employees had to
absorb increased medical costs and that Respondent needed to
reduce operating costs.
After a caucus, Vannoni stated that it was a priority to get
resolution to the health insurance, and she wanted to schedule a
negotiation session after a meeting with Jones and the broker.
Vannoni emphasized that she wished to exhaust discussion of
the Union’s health plan. She again asked for explanations as to
her questions and information requested in her November 11
letter.
Vannoni also commented that the Union’s fund has some
benefits that Respondent’s plan does not have. McHale retorted
that the increased cost of the Union’s fund exceeded any addi-
tional benefits.
The parties discussed the logistics of setting up meetings
with the broker and Jones.
The parties agreed to meet on February 17, 2012, as dis-
cussed, with Respondent’s insurance broker and Jones being
present to assist. On the morning of the meeting, McHale sent
the following email to Vannoni:
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From: Patrick J. McHale [mailto:pmchale@kemlaw.com]
Sent: 2012–02–17 8:58AM
To: Linda Vannoni; ‘Gayle Wintjen’
Subject: RE: February 17th meeting
Linda:
As we have expressed to you previously during our negotia-
tions in order for Oak Hill to be able to provide you with Oak
Hill’s “total costing of all the benefits which would be equiva-
lent to the Union’s Health and Welfare Fund” the Union will
need to share with us all of the benefits offered through the
Union’s Health and Welfare Fund. You have been unwilling
to provide us with any details about those benefits which
would be offered under your proposal to date. When we have
asked you for that information you have told us that if we
want the specific information we will have to write to the Un-
ion’s Fund and ask the Fund for it. Your response is unac-
ceptable and constitutes bad faith bargaining. If you are truly
making a benefit replacement proposal in our negotiations
you need to supply a detailed description of the specific bene-
fits you are offering as replacements for the benefits we cur-
rently offer. Without such information Oak Hill cannot seri-
ously consider you proposal since we have no basis for com-
parison to the current benefit offerings.
We look forward to meeting with you this morning and we
hope you will have more information to provide us regarding
the specific benefits offered under the Union’s proposed
“Health and Welfare Fund”.
The parties meet on February 17, as scheduled, with Jones
and Pete Wertsching, Respondent’s broker. A number of issues
were clarified with respect to the information requests and Re-
spondent’s calculations of the Union’s plan’s costs.
During this meeting, Wertsching conceded that prior plans
sent by Respondent in August 2011 were sent in error and did
not reflect the plans implemented. Wertsching also admitted,
according to Vannoni, that the summaries of coverage previ-
ously sent were only for informational purposes but that SPDs
did exist and could be provided.
On February 24, 2012, Vannoni sent an email to McHale, at-
taching a letter, dated February 17, 2012, but acknowledging it
was not sent until February 24. The letter reads as follows:
February 17, 2012
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Re: Information requests for Oak Hill School Insurance Bene-
fits
Dear Mr. McHale:
With respect to bargaining over health care benefits,
the parties met recently on February 17th, 2012 to vet in-
formation provided to the Union over course of collective
bargaining for a successor agreement which your team
could not answer or clarify with the committee members
present at those prior negotiations. As part of those discus-
sions information came to light as did further questions the
Union needed to be clarified. At the meeting, some of the
Union’s inquiries were not able to be answered and so the
employer confirmed you would follow-up on those inquir-
ies.
Leading up to our meeting on February 17th, I asked
the Employer to provide the Union with your total costing
of all the benefits which would be equivalent to the Un-
ion’s Health and Welfare Fund. You responded to those
questions on 12/4/11 in an email. At our meeting February
17th you further clarified that information, which you
were unable to do at our bargaining session in January,
2012. This was helpful in understanding the total costs of
employee benefits to the employer.
Regarding that 12/4/11 email response on question # 8
you stated that the $5,948,927 number was calculated
based off of wages and bargaining unit employees from
10/1/10 through 9/30/11. When seeking clarification on
February 17th, I inquired as to if any 12 month gross bar-
gaining unit wages might fluctuate from any snap shot of
12 months within the 2011–2012 year, if the fluctuation
could be even close to two hundred thousand, you replied
that, in aggregate the fluctuation wouldn’t likely even
amount to a hundred thousand. I reminded the employer
that the Union has been provided with a gross total bar-
gaining unit wages on May 24th, 2011 of a total of
$21,481,803 by the Employer. I pointed out the difference
in those two 12 month periods amounted to a fluctuation
of $3,303,395 based on the numbers provided to the Union
by the Employer on two different occasions. When I asked
you why those numbers might fluctuate the Employer re-
sponded that the information from that time was not avail-
able for your review at the February 17th, 2012 meeting. I
asked the Employer to follow up and you said you would.
The Union awaits the Employer’s explanation. We have
asked for such a further elucidation of the Employer’s
number since before July 1 of 2011 and still await to hear
an explanation of the Employer’s work which led the gross
bargaining unit numbers provided from May 24th, an ex-
planation of how the employer came up with the Decem-
ber bargaining unit numbers and why these figures in your
costing are so different from your earlier projections.
At many bargaining sessions since before and after
September 21, 2011 the Union has asked for more detailed
benefit summaries. On February 17th, when inquiring
about the Summaries of Coverage provided to date, the
Employer confirmed that those summaries were for mar-
keting and to be used by the Employer in employee en-
rollment meetings but were not a complete summary and
that another summary was available akin to the “mistaken-
ly” provided summary given to the Union on August 30th,
2011. Please provide such detailed summaries for each of
the 4 plans as was stated in our meeting February 17th
which the Employer’s representatives said were available.
I am also writing to confirm another session on March
27th to consider alternatives over medical insurance. We
are available to meet beginning at 9:30am. The Union had
proposed 3/8, 3/9, 3/22 for which the Employer’s team
OAK HILL 399
was not available. I am also interested in bringing the Un-
ion’s Health & Welfare Fund’s Executive Director to fur-
ther discuss any questions you may have regarding the Un-
ion’s medical plan.
Your email dated February 17th sent to me a half hour
prior to our meeting to discuss the Employer’s plan was
inaccurate. The Union has never expressed an “unwilling-
ness” to provide information regarding the Union’s Health
& Welfare Fund. At a prior bargaining session I asked you
to put your request in writing to the Executive Director of
the Fund and that I would facilitate getting it to her, and
getting you the information you might request. I further
offered that if you got the request to me prior to our next
bargaining session I would personally meet with her to get
the information and bring it to the next session. As I ex-
plained, the Fund is a separate organization, one regulated
by the Federal Government under the Taft Hartley Act and
for the Fund to release such information I would need the
Employer to assist in requesting it. It is something we
practice with all Employers and has never been an issue to
date with any employer to ask them to put the request in
writing. This response by me does not constitute bad faith
bargaining, I was simply explaining the process and offer-
ing to assist your getting the information. You never sub-
mitted such a request. Please do not suggest that the Union
has been unwilling to provide detailed information just be-
cause you have failed to seriously entertain the Union’s
proposal on our Health and Welfare benefits offerings.
Despite not receiving that request from you, I provided the
information and gave it to you on February 17th.
Since our February 17th meeting I met with the Execu-
tive Director of the Fund, Cassandra Murphy, and asked
her to join us. Please advise me by March 1st if you are in-
terested in having her at the March 27th meeting. She is
available and intending to attending to come if you con-
firm you desire her to be present. I request that you pre-
pare a list of information and questions you would like her
to be able to answer and that you provide them no later
than 16th so that she can best answer them on the date of
March 27th.
Sincerely,
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
Subsequent to the receipt of these documents, Respondent
sent the Union an email with attachments, dated March 21,
2012. The email stated that he was attaching “more detailed
summaries of medical plans presently offered to employees at
Oak Hill which you requested when we last met on February
17, 2010.”
The attached documents were still not labeled SPDs but in-
stead were entitled “summary of benefits” for each of the plans.
According to Vannoni, these documents finally provided all the
information that the Union had been requesting for the imple-
mented plans and are, in her view, SPDs.
There was apparently another informational meeting session
with the broker set for March 27, 2012. The record is unclear
whether this meeting was actually held.
The record does reflect that the parties had negotiation ses-
sions since January and prior to the trial herein, but that no
agreements have been reached. No details of those meetings
have been placed into the record other than Vannoni’s testimo-
ny that at a meeting in June 2011, the Union modified its health
insurance proposal to require Respondent to contribute 20 or
21 percent of gross payroll for participation in the Union’s
plans.
III. ANALYSIS AND CONCLUSIONS
A. The Information Requests
It is well settled that an employer is obligated to supply rele-
vant information to the union in a timely and complete manner.
Absent evidence justifying an employer’s delay in furnishing
such information, such a delay is violative of the Act. The un-
ion is entitled to the information at the time it made its initial
request, and it is the employer’s duty to furnish it as promptly
as possible. Monmouth Care Center, 354 NLRB 11, 41 (2009);
Woodland Clinic, 331 NLRB 735, 737 (2000). An unreasonable
delay in furnishing such information is as much of a violation
of Section 8(a)(5) as a refusal to furnish the information at all.
Monmouth Care, supra; Woodland Clinic, supra; Valley Inven-
tory Service, 295 NLRB 1163, 1166 (1989).
The burden is on the employer, once relevance is established,
to provide an adequate explanation or valid defense to its fail-
ure to provide the information in a timely manner. Woodland
Clinic, supra, Coca-Cola Bottling Co., 311 NLRB 424, 425
(1993).
In applying the above principles to the facts here, it is not
disputed that the information sought by the Union and the in-
formation alleged to have been unreasonably delayed in sub-
mission, SPDs for the prior and proposed health insurance
plans, was relevant to the pending negotiation for a collective-
bargaining agreement. Indeed, the issue of health insurance was
clearly the primary issue during the negotiations and the issue
that the parties spent considerable time discussing, in view of
Respondent’s expressed desire to resolve that issue prior to the
July 1 deadline, which would have required Respondent to
incur significant increases in premium costs if the prior plans
were to be continued in effect.
There also can be little question that Respondent failed to
produce the information requested in a timely and complete
manner.
Respondent contends that its conduct was not unlawful for
several reasons, making a number of contentions, which at-
tempts to provide adequate justification for its failure to pro-
duce the information requested in a timely and complete man-
ner.
Respondent initially contends that no violation can be found
because no documents existed entitled “summary plan descrip-
tions.” It further asserts that Vannoni conceded that she used
the terms “summary of benefits” and “summary plan descrip-
tions” interchangeably and there were a variety of things Re-
spondent could send.
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, while the General Counsel and the Union conceded
that the SPDs were ultimately provided by Respondent in late
2011 and early 2012, none of these documents were entitled,
“summary plan descriptions” or SPDs.
In this connection, Respondent argues that neither Wintjen
nor McHale had ever seen any document from Respondent’s
insurer entitled, “summary plan descriptions.” Therefore, Re-
spondent argues that it “cannot be liable for failing to produce
‘summary plan descriptions’ when the evidence provides that
no such documents ever existed.”
I find this contention to be totally without merit. While it is
true that no document entitled, “summary plan description” for
any of the plans was shown to have existed, in fact, it is clear
that the information requested by the Union was included in
other documents that were in existence and that were eventually
turned over to the Union, albeit several months after they were
requested. These documents had various names, such as certifi-
cate of coverage or summary of benefits, and Respondent’s
witnesses attempted to comply with the Union’s requests by
submitting these documents. No one from Respondent ever
informed the Union that SPDs did not exist or that this was a
reason for its delay in producing the information. Further,
Wintjen, herself, used the term “SPDs” when replying to the
Union’s requests for similar information in May 2010 and when
Wintjen asked Respondent’s broker on June 21 to comply with
the Union’s request for such information, she stated, “If you
could get us the SPDs . . . that you have, that would be great.”
Additionally, Shears characterized the documents ultimately
submitted to the Union by Respondent as, in her view, “SPDs”
or their equivalent. Thus, it is clear that Respondent’s officials
knew what information the Union was seeking regardless of the
nomenclature and that the Union wanted detailed descriptions
of the benefits and coverages provided in the various plans.
Respondent, therefore, cannot excuse its tardy submission of
the information that it knew the Union wanted based on the fact
that no documents entitled SPDs existed.
Accordingly, this defense of Respondent in its failure to
timely produce SPDs or equivalent documents containing the
information requested by the Union is rejected.
Turning to the specific “SPDs” (or its equivalent documents)
requested, I first consider the request for SPDs for the plans in
effect for Respondent’s employees prior to July 1, i.e., the cur-
rent or incumbent plans. The Union requested in writing that
Respondent produce these plans on December 23, 2010, prior
to the scheduling of their first session. This request was ignored
by Respondent, and no such information was provided to the
Union at that time. The parties met for the first time on March
23, and this information still had not been supplied. The parties
met again on April 12, and Respondent still did not supply this
information at or prior to that meeting.
When the parties met again on April 27, the Union still had
not received this information and submitted a second written
request, specifically stating that it was a “second request” for
this information. This request still did not produce an immedi-
ate response, and it was not until June 20, when Respondent
sent any information attempting to comply with this request
when it sent documents entitled “summaries of coverage” for
the incumbent plans to the Union.
It, therefore, took approximately 6 months for Respondent to
send anything in attempted compliance with the Union’s re-
quest. Vannoni testified that these “summaries of coverage”
were not the equivalent of SPDs since they did not provide
detailed descriptions of the coverage and that the Union did not
receive such documents until December 20 when it received
documents entitled “certificate of coverage” from the insurance
company, which, according to Vannoni, finally fully satisfied
the Union’s requests for this information.16
I agree with the General Counsel that the information sup-
plied in June was not the equivalent of SPDs as testified by
Vannoni since it did not include the detailed information in-
cluded in the documents eventually supplied in December. But,
even if it is concluded that Respondent fully complied with the
request on June 20, this is way past an unreasonable time for
submission since it was 6 months after the request was made
and nearly 2 months after the request was renewed at the April
27 meeting. Monmouth Care, supra, 354 NLRB at 52 (6-week
delay unreasonable); Woodland Clinic, supra, 331 NLRB at
737 (absent evidence justifying employer’s delay, 7-week delay
found unreasonable and violative of the Act); Beverly Califor-
nia Corp., 326 NLRB 153, 157 (1998) (2-month delay unrea-
sonable).
Respondent provide an alleged “explanation” for the delay in
providing the information in a timely fashion, which it argues
warrants a finding that the delay was not unlawful. It contends,
in this regard, that any delay was “inadvertent and excusable.”
Respondent normally provides information in a timely fashion
and that it does not “create obstacles” to providing information.
It further points to the evidence that when the request was first
received by Respondent in December 2010, it was turned over
to an employee to comply with the information requested.
However, due to the Christmas holidays and the fact that this
employee was retiring and was busy training her replacement,
she did not get to complying with the request. Shears followed
up in January 2011 and asked the employees about it and in-
structed her to get to it as soon as possible. However, the em-
ployees did not do so and retired. Shears did not followup fur-
ther about the issue because she assumed that the employee has
compiled.
Further, Wintjen and McHale did not know about the request
until it was renewed by the Union at the April 27 session, and
Respondent was told that it was a “second request.” Thus, as
Respondent’s witnesses testified, the request “slipped through
the cracks.”
While those facts may establish that the delay was “inadvert-
ent” at least until that time, it cannot be construed as a legiti-
mate or adequate explanation justifying the unreasonable delay.
Respondent is responsible for complying with the Union’s re-
quest and its officials were responsible for making sure that it
was complied with promptly. It cannot rely on the failure of

16 I note that the Union needed to send another written request, dat-
ed November 11, again requesting more detailed description of the
healthcare plans for each plans in effect prior to June 30, 2011, and not
just a summary of coverage, and Vannoni gave some examples of in-
formation that she expected to be included, such as how many limits to
the number of chiropractic visits and what constitutes medical equip-
ment.
OAK HILL 401
one of its employees, who did not carry out instructions to
comply with the information, because she was too busy or was
about to and, in fact, did retire.
Furthermore, even after this April 27 second notification of
the failure to promptly comply with this request when Wintjen
and McHale were made aware of the Union’s request, Re-
spondent, nonetheless, did not comply with this request until
June 20, nearly 2 months later, an unreasonable delay in itself.
Monmouth Care, supra; Woodland Clinic, supra; Beverly Cali-
fornia, supra.
As I have concluded above, these documents were not the
equivalent of SPDs since they did not contain the comprehen-
sive description of benefits and coverage contained in the “cer-
tificates of coverage,” not turned over to the Union until De-
cember. However, even assuming that the June documents
submitted were considered the equivalent of SPDs, as I have
detailed above, Respondent’s submission to the Union in June
was clearly unreasonably delayed and violative of its obligation
to submit information to the Union in a timely fashion.
Respondent also argues that the Union clearly had the re-
quested information in its possession since Respondent had sent
documents on May 28, 2010, to the Union containing infor-
mation concerning the 2010 plans, which the Union used in
ultimately concluding that the plans proposed by Respondent to
be implemented on July 1, 2010, were, in fact, “equivalent” to
the plans then in place.
This contention by Respondent fails for several reasons.
First, the documents supplied to the Union in 2010 were not
SPDs and did not contain the equivalent information. They
were not even documents from the insurance company. They
were instead summaries of coverage, apparently prepared by
Respondent’s broker, comparing these plans with the prior
plans in effect at that time. Indeed, the broker included in these
documents that states, “this is intended to be a general descrip-
tion of the plan benefits. A complete listing of benefits and
exclusions will be provided in the Oxford benefit summary and
certificate of coverage.” Further, Vannoni, while she conceded
that she was able to conclude in 2010, based on these docu-
ments that the plans proposed by Respondent were “equivalent”
to the plans then in effect, she also testified that she needed
some questions answered orally from Wintjen about certain
items not included in those documents. Thus, it was not until
later in June 2010 that she was able to determine the plans were
equivalent. Therefore, the 2010 documents submitted clearly
cannot be considered SPDs.
Furthermore, even if they were to be construed as the equiva-
lent of SPDs, it would not be a defense to Respondent that the
Union may have had this information in its possession from a
prior information request. Here, neither the Union nor Re-
spondent recalled or was aware that such information had been
supplied to the Union in May 2010, 6 months before the Un-
ion’s request was made with respect to the current bargaining.
Respondent neither produced the information nor advised the
Union that it had previously provided a copy of the information
requested. Thus, Respondent, in such circumstances, did not
make a timely response to the Union’s request for relevant
information, it has violated the Act. Postal Service, 332 NLRB
635, 636 (2000) (no defense to refusal to turn over relevant
information that information had been previously turned to
union as part of earlier request).
Turning to the request for SPDs for the proposed and even-
tually implemented plans, the Union, by Vannoni, requested at
the April 12 negotiation meeting that Respondent supply it with
SPDs for the plans being proposed by Respondent. McHale
responded no problem and “we’ll get you whatever you need.”
Despite that reassuring comment by McHale, Respondent did
not supply SPDs or any purportedly equivalent document to the
Union at that time or in a timely fashion thereafter. This request
was simply ignored, and the Union made a request in writing
for the SPDs for these plans (as well as other information) on
June 17. While Respondent did reply to the Union’s request on
June 20 and submitted information to the Union relative to
other requests made by the Union, it made no reference to the
request for SPDs for the current plans. On June 22, Respondent
did furnish documents in attempted compliance with the Un-
ion’s request, made orally on April 12 and in writing on June
17. However, these documents entitled, “summaries of cover-
age” were for the old plans and not the new proposed plans.
McHale responded to the Union’s June request for SPDs for the
proposed plans by stating that Respondent was including a copy
of the 2010 benefit summary but the full SPD is not available
as Oxford is still waiting for state approval of some of their
SPDs for 2010. According to McHale, this was compliance
with what Respondent had at the time since the summaries of
coverage for the proposed plans were still not exist at that time.
Further, McHale notes that these summaries of coverage for
three of the plans were the same as for the proposed plans, only
in terms of coverages, benefits, and copays. Only the premiums
charged would have been different, but the Union already had
information about the difference in premiums for the employ-
ees. While McHale admitted that with respect to the fourth plan
that Respondent proposed with different copays and deductibles
but the same premiums for employees, Respondent did not
furnish a summary of coverage or any other documents. As to
that document, McHale asserts that it did not exist as of June 22
and that is why it was not produced at that time.
I find it somewhat questionable that summaries of coverage
for the 2011 implemented plans did not exist at that time, but
even if true, Respondent’s submission on June 22 for infor-
mation first requested on April 12, was still untimely and would
be violative of the Act. Monmouth Care, supra; Woodland Clin-
ic, supra, Postal Service, supra.
Subsequent to June 22, Respondent made several attempts to
comply with the Union’s request for the SPDs for the imple-
mented plans but these attempts were not successful until it
finally produced the certificates of coverage for these plans in
March 2012 after Vannoni met with Respondent’s broker.
While Respondent certainly made efforts to comply with the
Union’s information request, which were numerous, the facts
are that it simply did not comply in a timely fashion with the
requests. It may not have been an intentional failure to comply,
but rather, simply a matter of “too many cooks spoiling the
broth” (testimony of Wintjen) or “slipping through the cracks”
(testimony of Shears), but Respondent is ultimately responsible.
It appears that there might have been some diffusion of respon-
sibility for the Union’s requests between Shears, Wintjen, and
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McHale, but this is Respondent’s responsibility to sort out such
confusion, and it cannot rely on that as an adequate justification
for the failure for Respondent to submit to the Union the infor-
mation requested in a timely fashion. Indeed, even when Van-
noni requested at the April 12 negotiation session the Respond-
ent turn over SPDs or other documents for the plans that Re-
spondent was proposing, McHale replied that it would not be a
problem and “we’ll get you whatever you need.” However,
despite that statement by McHale, Respondent furnished noth-
ing to the Union in response to that request until June after the
Union repeated its request for this information, which was still
not fully complied with until March 2012.
Respondent’s primary argument in defense of these com-
plaint allegations is that the Union had no need of the SPDs
requested since the Union was aware of the benefits, coverages,
and costs of the plans. Thus, Respondent contends that the doc-
uments provided by the Union on April 12, which compared the
plans, offered and explained the financial difference between
the existing plans and Respondent’s proposed new plans was
adequate compliance. McHale repeatedly explained to the Un-
ion that the benefits, coverages, networks, and other plan de-
tails were unchanged from the plans then in place. The only
differences were the increased premiums to be paid by employ-
ees if they chose to retain the same copays and deductibles or if
employees pay the same premiums the plans would have differ-
ent copays and deductibles. McHale assured the Union that the
network of doctors and the same level of medical costs and
services that were in place for the prior years would be availa-
ble under the new plans. Therefore, Respondent argues that the
Union had all the information that it needed in order to bargain
over this issue by virtue of having received the documents from
Respondent, plus assurances from Respondent that the benefits
and coverages were unchanged in the proposed plans. Howev-
er, when McHale made assurances to the Union, Vannoni re-
plied that she appreciated McHale’s statements but needed
something in writing to confirm McHale’s assurances that the
benefits were the same. Thus, she asked for SPDs or some other
plan documents that described a greater list of specific benefits
than contained in the documents presented.
The Union is clearly entitled to this information and need not
have to rely on McHale’s oral assertions that the benefits and
coverages were unchanged from the prior plans. Notably, at this
point in the negotiations, the Union had also requested SPDs
for the prior plans and had still not received these documents
and another written request was necessary before Respondent
complied with that request, also, as detailed above, in an un-
timely fashion.
In this regard, Respondent also argues that Respondent re-
peatedly offered to have its insurance broker attend negotia-
tions to answer questions or provide information. The Union
did not express any interest in that opportunity and, in fact,
Vannoni stated that she does not negotiate with brokers. There-
fore, Respondent contends that the “Union should not be heard
to complain that it lacked information when it failed to enter-
tain opportunities to obtain details and ask questions of the
insurance broker.”
I do not agree.
While the Union did not jump at that opportunity met with
Respondent’s broker, it never declined to do so. Indeed, as
Vannoni correctly observed in her testimony, the Union cannot
lawfully object to Respondent bringing anyone that it wanted to
negotiations and if Respondent wanted to bring its broker, it
could have done so. Further, the Union did eventually meet
with the broker in January 2012 and ascertained that the certifi-
cates of coverage (equivalent of SPDs) for the new plans,
which were available from the insurance company and were
finally turned over to the Union in March 2012. I, therefore,
find that the failure of the Union to affirmatively agree to meet
with the broker not to be an adequate defense to Respondent’s
failure to produce relevant information to the Union in a timely
manner. It is Respondent’s responsibility to comply with that
obligation, and if that entailed bringing its broker to the negoti-
ations, Respondent should have and could have done so, and
the Union’s failure to specifically agree to his presence does
not justify Respondent’s conduct in failing to provide timely
information to the Union.
Finally, Respondent also argues that the Union had sufficient
information to make two alternative proposals to Respondent,
one to participate in the Union’s health and welfare fund with a
24-percent payment of gross salary of hours worked by Re-
spondent and a second proposal for a modified HMO with dif-
ferent copays and employee contributions to premiums, Thus,
Respondent contends that the Union was able to make these
proposals on June 8 and that the Union never stated that it was
unable to make a proposal on June 8 and that the Union never
stated that it was unable to make a proposal because it lacked
information. Therefore, Respondent asserts that the complaint
allegation must be dismissed. Once again, I cannot agree.
The fact that the Union was able to make counterproposals
on June 8, despite not having the information requests complied
with, is not a defense to the failure to provide clearly relevant
information to the Union. If the information requested was
provided promptly as the law requires, the proposal could have
been made earlier or might have been different. These are mat-
ters of speculation that need not and cannot be decided. It is not
necessary for the Union to show specifically that the failure to
produce the information hampered or affected its ability to
make counterproposals. Such a requirement would eviscerate
the duty to supply information. Once the finding made that the
information is relevant, it must be supplied in a timely fashion.
Absent adequate defenses, which have not been demonstrated
here, such conduct is violative of Section 8(a)(5) of the Act.
Accordingly, based on the foregoing analysis and authorities,
I conclude that Respondent has violated Section 8(a)(1) and (5)
of the Act by failing to supply the SPDs to the Union for the
prior and the new plans in a timely manner. Monmouth Care,
supra; Woodland Clinic, supra; Postal Service, supra.
B. Respondent’s Implementation of its Medical
Insurance Proposals
It is well settled that an employer’s duty to bargain under the
Act includes the obligation to refrain from changing its em-
ployees’ terms and conditions of employment without first
bargaining to impasse with the employees’ collective-
bargaining representatives concerning the contemplated chang-
OAK HILL 403
es. NLRB v. Katz, 369 U.S. 736, 743–747 (1962); Lawrence
Livermore National Security, 357 NLRB 203, 205 (2011).
During negotiations for a collective-bargaining agreement,
an employer may not unilaterally change any terms or condi-
tions of employment without having bargained to impasse for
the agreement as a whole. E. I. du Pont de Nemours & Co., 355
NLRB 1084 (2010); RBE Electronics, 320 NLRB 80, 81
(1995); Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
As the Supreme Court has recognized, “it is difficult to bargain,
if, during negotiations, an employer is free to alter the very
terms and conditions that are the subject of negotiations.” Lit-
ton Financial Printing Division v. NLRB, 501 U.S. 190, 198
(1991).
The Board’s view, with support from the courts, condemns
piece-meal implementation during negotiations, recognizing
that “collective bargaining involves give and take on a number
of issues,” and the effect of allowing implementation in ab-
sence of an overall impasse “would be to permit the employer
to remove, one by one, issues from the table and impair the
ability to reach an overall agreement through compromise on
particular items. In addition, it would undermine the role of the
Union’s collective-bargaining representative effectively com-
municating that the Union lacked the power to keep issues at
the tables.” Visiting Nurse Services of Western Mass. v. NLRB,
177 F.3d 52, 58 (1st Cir. 1999), affg. 325 NLRB 1125, 1130–
1131 (1998). Judge Posner’s opinion in Duffy Tool & Stamping
LLC v. NLRB, 233 F.3d 995 (7th Cir. 2000), provided a com-
prehensive analysis in support of the Board’s view on this is-
sue. Judge Posner observed the Board’s rule promotes labor
peace and that the contrary position (allowing implementation,
if there is an impasse on one subject) interferes with the negoti-
ation process and makes reaching agreement less likely, and
interferes with the goal of labor peace. (233 F.3d at 997.) The
judge further reasoned that the employer’s position would emp-
ty “the duty of bargaining of meaning and this in two respects:
(1) by removing issues from the bargaining agenda early in the
bargaining process, it would make it less likely for the parties
to find common ground; (2) by enabling the employer to paint
the union as impotent, it would enable him to hold out for a
deal so unfavorable to the union as to preclude agreement. A
negotiation is more likely to be successful when there are sev-
eral issues to be resolved (integrative bargaining) rather than
just one because it is easier in the former to strike a deal that
will make both parties feel they are getting more from peace
than from war. . . . If by deadlocking on a particular issue, the
employer is free to implement his proposals with respect to that
issue, he signals to the workers that the union is a paper tiger.”
(Id. at 998.)
The Board, supported by the courts, has crafted exceptions to
the general rule that an overall impasse in bargaining is re-
quired before an employer can lawfully implement changes in
conditions of bargaining during negotiations. These exceptions
are set forth in Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. 15 F.3d 1087 (1994), amplified in RBE Electron-
ics, 320 NLRB 80, 82 (1995). The Board in Pleasantview Nurs-
ing Home, 335 NLRB 961, 962 (2001), enfd. 351 F.3d 747,
755–756 (6th Cir. 2003), summarized these exceptions as fol-
lows:
In Bottom Line, the Board recognized only two excep-
tions to that general rule: when a union engages in bar-
gaining delay tactics and when economic exigencies com-
pel prompt action. Id. at 374.The Board has limited the
economic considerations which would trigger the Bottom
Line exception to “extraordinary events which are an un-
foreseen occurrence, having a major economic effect [re-
quiring] the company to take immediate action.” Hankins
Lumber Co., 316 NLRB 837, 838 (1995). In RBE Elec-
tronics, the Board made clear that “[a]bsent a dire finan-
cial emergency, economic events such as . . . operation at a
competitive disadvantage. . . do not justify unilateral ac-
tion.” Id. at 81, citing Triple A Fire Protection, 315 NLRB
409, 414 (1994).
However, in RBE Electronics, the Board also found
that there may be other economic exigencies that, although
not sufficiently compelling to excuse bargaining altogeth-
er, should be encompassed within the exigency exception.
In those cases, the employer will “satisfy its statutory ob-
ligation by providing [the union] with adequate notice and
an opportunity to bargain over the changes it proposes to
respond to the exigency and by bargaining to impasse over
the particular matter. In such time sensitive circumstances,
however, bargaining, to be in good faith, need not be pro-
tected.” Id. at 82. See generally Naperville Ready Mix,
Inc., 329 NLRB 174, 182–184 (1999).
In defining the less compelling type of economic exi-
gency, the Board in RBE Electronics made clear that the
exception will be limited only to those exigencies in which
time is of the essence and which demand prompt action.
The Board will require an employer to show a need that
the particular action proposed be implemented promptly.
Consistent with the requirement that an employer prove
that its proposed changes were “compelled,” the employer
must also show that exigency was caused by external
events, was beyond its control, or was not reasonably fore-
seeable. Id. 335 NLRB at 962
Respondent does not dispute the above precedent but argues
that the facts here demonstrate that both exceptions, described
above, have been demonstrated here, and, therefore, it has not
violated its duty to bargain by implementing its medical pro-
posals. The General Counsel contends, not surprisingly, that
neither of the exceptions set forth in Bottom Line and RBE
Electronics are present in this case. It is to that issue that I now
turn.
The first exception detailed in Bottom Line that permits uni-
lateral implementation of changes in conditions of employment,
absent an overall impasse, is “when a union, in response to an
employer’s diligent and earnest efforts to engage in bargaining,
insists on continually avoiding or delaying bargaining.”
Respondent contends that the Union has insisted on avoiding
or delaying bargaining about medical insurance and relies heav-
ily on Vannoni’s comment at one of the negotiation sessions
that if no agreement was reached on healthcare prior to June 30,
Respondent could be forced to continue the plans then in exist-
ence and absorb the $1.5 million premium increases. It asserts
further than the Union’s strategy was to avoid bargaining over
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
healthcare, since once July 1 arrived, Respondent would be
fully responsible to paying the increased premium costs. Thus,
in furtherance of that strategy, it notes that the Union did agree
to meet at only three of the nine sessions that Respondent pro-
posed and that despite Respondent’s continued demand that
healthcare needed to be discussed and agreed to prior to June
30, the Union insisted that other issues be discussed first. Re-
spondent also notes that the Union failed to make a counterpro-
posal to Respondent’s demands on healthcare until June 8, 2-
1/2 months after negotiations began and a week before enroll-
ment cards were due to enroll in the new proposed plans. Final-
ly, Respondent notes that the Union stated on June 20 that there
would be no further meetings or additional negotiations until it
received a response to the information request that it made in
June. Although some of the information was provided by Re-
spondent on June 22, the Union scheduled no further negotia-
tions and did not respond to Respondent’s communication of
June 22, offering to offer the “Hamden Plan” as an additional
choice for employees.
I conclude, contrary to Respondent’s assertion, that these
facts did not come close to meeting the standard for pro-
nounced delays and obstruction necessary to establish this ex-
ception. Cf. M&M Contractors, 262 NLRB 1472 (1982) (union
refused to agree to schedule bargaining session with employer
for over 7 months); AAA Motor Lines, 215 NLRB 793, 794
(1974) (union refused to meet for a period of 2–1/2 months
after demand for bargaining and prior to contract’s expiration;
such conduct found to be violative of sec. 8(b)(3) by the union
in related case. 215 NLRB 789 (1974)).
Here, unlike the unions in these cases, the Union did agree to
meet with Respondent to bargain, and the parties met for eight
negotiations between March 25 and June 20. This can hardly be
described as an obstructive, unreasonable failure to schedule
meetings. I note that the failure to have more meetings can be
equally attributed to Respondent’s conduct. Thus, the Union
requested that bargaining commence in its letter of December
29, 2010, “as soon as possible.” Respondent ignored this re-
quest for over a month until January 28, 2011, when it respond-
ed but proposed no dates for bargaining. The Union immediate-
ly proposed 16 dates; Respondent rejected seven of them and
agreed to nine of the Union’s dates. The Union then agreed to
only three of the original dates that it had proposed since Van-
noni had proposed her available dates to all of the employers
with whom she was negotiating at the time, and some of these
dates had been agreed to by these other employers before Re-
spondent had agreed to meet on nine of these dates. Significant-
ly, at this point, the Union was unaware of Respondent’s pro-
posals or that it was asserting “time sensitive” requirement for
agreeing to healthcare. Thus, it was not until the first meeting
on March 25 when Respondent made its medical proposal and
emphasized that the new plans must be in place by July 1 that
the Union was on notice that Respondent was seeking to
change the medical coverage for its employees. Thus, there can
be no inference that the Union delayed meeting until March 25
because of any alleged interest in avoiding bargaining over
healthcare as Respondent contends since the Union was not
aware that Respondent would raise a “time sensitive” proposal
to eliminate benefits prior to March 25. Indeed, as I noted
above, it was Respondent’s conduct in failing to respond to the
Union’s December request to meet “as soon as possible” that
was primarily responsible for the failure to meet until March
25, more than 3 months after the Union’s initial bargaining
request.
Therefore, I reject Respondent’s contentions that the Union’s
conduct in failing to agree to meet with Respondent on a few
dates during this 2-month period when Respondent agreed to be
available constituted unreasonable, obstructive, or unlawful
conduct.
Further, I reject Respondent’s contention that the Union re-
fused to bargain over healthcare issues during the negotiations
that did take place. While it is true that the Union did seek to
delay bargaining over these health proposal made by Respond-
ent until it could persuade Respondent to back off its wage cut
proposals and bargain economics as a whole, such conduct is
not unlawful or obstructive. The Union need not capitulate to
Respondent’s unchanged terms “since such a doctrine would
encourage rigid, inflexible posturing in place of the give and
take of true bargaining,” Grinnell Fire Protection, 328 NLRB
585, 585 (1999).
The Union’s position is perfectly lawful and not inconsistent
with good-faith bargaining. As repeatedly explained by Vanno-
ni, the Union did not want to divorce the insurance changes
from an overall contract since the amount Respondent paid for
insurance impacted the amount it had left over for wage in-
crease and other economic matters, such as longevity and shift
differentials, which Respondent was seeking to cut as well.
Indeed, this position is consistent with the rationale for the
Board’s well-settled disfavoring of piece-meal bargaining and
requiring impasse on all issues before unilateral implementa-
tions as explicated in the precedent detailed above. Visiting
Nurse, supra; Duffy Tool, supra. Thus, the Union was acting
consistent with this view of bargaining by demanding that Re-
spondent withdraw its wage cut proposals in exchange for some
agreement by the Union to Respondent’s proposal for changes
in healthcare coverage.
More significantly, the evidence discloses that notwithstand-
ing the Union’s statement, as detailed above, that the Respond-
ent must withdraw its other proposals for wage cuts before
agreeing to healthcare changes, the Union did, in fact, make
several counterproposals to Respondent’s healthcare proposal,
including coverage for unit employees under the Union’s plan,
which the Union believed could result in a cost savings to Re-
spondent. While Respondent disagreed with that assessment
and rejected the Union’s proposal, the issue was still under
discussion, the Union was disputing Respondent’s calculations
of cost, and Respondent was still awaiting receipt of infor-
mation from the Union’s funds concerning the Union’s pro-
posed plans when Respondent decided to implement its pro-
posed on July 1. The Union also proposed another modified
plan with different copays, which Respondent also rejected.
The evidence with respect to the “Hamden Plan” is some-
what murky, but I do not find that the Union’s conduct with
respect to this plan can be viewed as unlawful, unreasonable or
obstructive. Thus, the Union asked Respondent to cost out this
plan at one meeting, which Respondent subsequently did and
presented it to the Union. It is true that the Union never formal-
OAK HILL 405
ly proposed this plan not did it agree to accept it after Respond-
ent at the final meeting, and in McHale’s letter informed the
Union that Respondent was willing to include that plan in its
proposal for changes to healthcare coverage if the Union was
agreeable. However, I note that this offer by Respondent and
McHale did not include an offer to withdraw its wage cuts as
requested by the Union, so the Union cannot be faulted for not
agreeing to the inclusion of the “Hamden Plan” as Respondent
proposed. Indeed, the Union expressed interest in the “Hamden
Plan” even after it had been costed and had asked why Re-
spondent did not propose that it be included since it would have
resulted in reduced costs for Respondent and the employees if
chosen by employees as an option. Notably, when Respondent
implemented its plans, it chose not to include this “Hamden
Plan” that it had agreed to include (if employees would absorb
the differences in premiums) even though doing so would have
resulted in less of a cost increase to employees, who chose that
plan. I find it incongruous for Respondent to fault the Union for
not agreeing to the “Hamden Plan” while at the same time,
failing to implement that plan, which could have saved the
employees some money and while costing the Respondent
nothing.
Accordingly, based on the foregoing, I reject Respondent’s
contention that the Union has “insisted or continually avoiding
or delaying bargaining,” over healthcare cannot find that this
exception as defined in Bottom Line does not apply to the facts
here.
I now consider the second exception detailed in Bottom Line
and expanded in RBE Electronics that of “economic exigency
that compel prompt action.” There can be little question that the
facts, here, do not demonstrate the existence of compelling
economic considerations that would excuse bargaining alto-
gether, and indeed Respondent does not so contend.
Respondent does assert that the RBE Electronics’ modifica-
tion of Bottom Line to encompass “other economic exigencies”
that while not sufficient to excuse bargaining, will permit uni-
lateral action, if the parties reach impasse on the matter pro-
posed for change, RBE Electronics, supra, 320 NLRB at 81–82,
is applicable here.
Respondent argues that it faced an economic exigency
caused by an external event with a time deadline that required
prompt action with its significant operating deficits, resulting
from increasing expenses and flat state funding. It further notes
that due to the Union’s refusal to agree to Respondent’s medi-
cal proposals in prior years, Respondent absorbed all the medi-
cal insurance increases.
Respondent further notes that in March 2011, it became
aware from its broker that continuing the same medical cover-
age for employees would result in an 18-percent increase in
health insurance costs. Therefore, Respondent concluded that it
could not continue to absorb the significant increases in medi-
cal insurance as it had been forced to do in the past. Thus, this
was, in Respondent’s view, “an external event” beyond Re-
spondent’s control and had to be dealt with by June 30, 2011,
the last day of the existing plan contract. It further contends that
impasse was reached in bargaining with the Union over health
insurance that “the end of the rope had been reached” and that
“implementation was the only reasonable option to insure unin-
terrupted insurance benefits for employees.” In that regard,
Respondent argues that it faced a “time deadline to reach
agreement on medical because the medical contract in place for
all 1300 employees, union and nonunion alike, would expire on
June 30, 2011. Thus, Oak Hill could not wait until the entire
contract was settled.”
I disagree. I agree with the General Counsel’s contrary con-
tention that the circumstances, here, did not demonstrate an
“economic exigency” due to the pending 18-percent increase in
insurance premiums as “time was not of the essence” and Re-
spondent’s action was not “compelled.” Rather, the evidence
discloses that Respondent simply did not want to continue to
pay any portion of the increased costs for health insurance,
dictated by the contractual requirement to continue the Core
HMO plan with no change in employee premiums. This is not
an “economic exigency” under RBE Electronics that justifies
unilateral implementation, absent overall impasse. Maple
Grove Care Center, 330 NLRB 775, 779 (2000) (increased
premiums in health coverage not an economic exigency, in
which time was of the essence and which demands prompt
action; Board concludes that, as here, it is highly unlikely that
respondent would have been placed in straitened financial cir-
cumstances had it paid the entire premium increase until overall
impasse had been reached); Naperville Ready Mix Inc., 329
NLRB 174, 182–183 (1999), enfd 242 F.3d 744 (7th Cir. 2001)
(refusal to bargain over sale of trucks not justified under RBE
Electronics’ economic exigency exception, although employer
could save some money if scheme was implemented before
July 1 when licenses for trucks were to be renewed, an ex-
pected event that occurred annually on that date; Board con-
cludes that this argument that employer “might make in support
of its proposals, but it in no way meets the economic exigency
standard in advance of an impasse in contractual negotiations”);
L&L Wine & Liquor Corp., 323 NLRB 848, 851–852 (1997)
(concern over high insurance costs does not warrant implanta-
tion prior to contract impasse); United States Testing Co., 324
NLRB 854 (1997) (respondent failed to offer evidence that its
financial situation was so dire that it either had to implement its
final offer when it did or suffer financial ruin); Sartorius Inc.,
323 NLRB 1275, 1284–1286 (1997) (unilateral implantation of
incentive bonus program not justified by alleged economic
exigency of increases in scrap rate on machine and unexpected
high orders); Pleasantview Nursing Home, 335 NLRB 961, 962
(2001), enfd. in pertinent part 351 F.3d 747 (6th Cir. 2003). See
also IFG Stockton, 357 NLRB 1398, 1404–1405 (2011) (inade-
quately trained employees not an economic exigency under
RBE Electronics, justifying unilateral implementation of sub-
contracting).
Furthermore, the anticipated premium increases cannot be
characterized as an “unforeseen” economic emergency, justify-
ing unilateral action, absent overall impasse. Harmon Auto
Glass, 352 NLRB 152, 154 (2008) (substantial deadline in sales
revenues, resulting in substantial net loss, plus placement into
receivership, found not to be unforeseen economic emergencies
excusing unilateral action); Toma Metals, Inc., 342 NLRB 787,
801 (2004) (employer’s 50-percent decline in revenue over 6
months not unforeseen emergency, justifying unilateral deci-
sion to lay off employees); Hartford Head Start Agency, 354
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 164, 185–188 (2009) (funding decrease from city not
“unforeseen” and did not justify unilateral cuts in wages and
schedules).
Here, the record establishes that there have been yearly in-
creases in health premium costs, often in excess of 10 p. While
the projected increase in 2011 was somewhat higher, 18 per-
cent, it still cannot be characterized as “unforeseen.” While
Respondent’s effort to avoid bearing the full brunt of this in-
crease is understandable, it does not equate to an “economic
exigency” under RBE Electronics warranting implementation,
absent overall impasse in bargaining.
Respondent argues, as noted, that it established that the al-
leged exigency, rise in premium rates on July 1, demonstrates
that “time was of the essence” and that it was “compelled” to
make the proposed changes at that time. However, this conten-
tion overlooks several factors. The increases that Respondent
was referring to represent an 18-percent increase for all of its
employees since unit and nonunit employees are covered by the
same plans. Thus, unit employees comprise 60 percent of the
employees covered by the plans and nonunit employees com-
prise 40 percent. Therefore, Respondent need not have imple-
mented the new plans for the unit employees but could have
done so for the nonunit employees only, thereby, saving a sub-
stantial amount of the proposed increases. Moreover, Respond-
ent concededly had substantial amounts of money in its en-
dowment fund, which it could have drawn upon if it so chose to
help meet these additional costs. Although its witnesses testi-
fied that financial advisors have advised it that exceeding the
4.6-percent threshold would not “be prudent,” the fact is that
the board of directors could have agreed to raise that percentage
if it so chose.
Further, the assertions made by Respondent that the “time
sensitive” nature of implementing its healthcare proposals is
established by virtue of the fact that the current plans were
“expiring” on June 30 is simply incorrect and a mischaracteri-
zation of the record. These plans were not expiring but would
have continued without change (albeit with increased premiums
for Respondent) but for Respondent’s unilateral decision to
implement an economic decision “seen as desirable by Re-
spondent.” Beverly Health & Rehabilitation Services, 335
NLRB 635, 637 (2001) (9.5-percent increase in healthcare
premiums does not warrant unilateral change in increasing
employees’ premium costs); Brannan Sand & Gravel, 314
NLRB 282 (1994) (employer’s unilateral changes in deduc-
tions, copayments and employee contributions in employee
health insurance plan violative of Sec. 8(a)(5) of the Act); Cir-
cuit Wise Inc., 308 NLRB 1091 (1992) (employer’s act of uni-
laterally increasing employee contributions to the new plans).
Thus, the alleged deadline, here, is in reality a self-imposed
deadline by Respondent in accordance with its desire to avoid
incurring additional premium costs on July 1. That cannot be
properly characterized as an “economic exigency” under RBE
Electronics. It is rather than an economic exigency, simply an
unlawful unilateral change, even if increases were merely
passed along from the insurance carrier.
Here, bargaining could have continued past the July 1 dead-
line with the Union, and possible agreement with the Union
might have resulted in some agreement by the Union to absorb
some of the additional costs of premiums, thereby, saving Re-
spondent at least some of the projected increases for any period
subsequent to any agreement. Instead, Respondent chose to
implement the proposed plans and placing all of the increased
costs on the employees if they chose to retain the same copays
and deductibles or if they chose to continue to pay the same
premiums, substantial changes in copays and deductibles.
I, therefore, conclude based on the foregoing analysis and
precedent that Respondent has not demonstrated the existence
of any exceptions to Bottom Line and RBE Electronics, and it
cannot justify its implementation of these healthcare changes,
even if it had bargained to impasse with the Union over this
issue.
I also conclude that even if I were to conclude that the pend-
ing 18 percent premium increase was an “economic exigency”
as defined by RBE Electronics, I would not conclude that Re-
spondent has established that an impasse existed on healthcare
on July 1 when it implemented the new healthcare plans that it
had proposed during bargaining.
A genuine impasse exists when the parties are warranted in
assuming that further bargaining would be futile. Monmouth
Care, supra, 354 NLRB at 57; Essex Valley Visiting Nurses
Assn., supra, 343 NLRB at 840. “An impasse exists at a given
time when there is no realistic possibility that continuation of
discussions at that time could have been fruitful.” NLRB v.
WPIX, 906 F.2d 898, 901 (2d Cir. 1990); Cotter & Co., 331
NLRB 787 (2000).
Further, an impasse cannot be found unless both parties be-
lieve that they are at the end of their rope. Monmouth Care,
supra; Essex Valley, supra at 890; Cotter, supra at 788; Lars-
dale, Inc., 310 NLRB 1317, 1318 (1993).
The question of whether an valid impasse has been reached
is a “matter of judgment” and among the relevant factors are
the bargaining history, the good faith of the parties in negotia-
tions, the length of the negotiations, the importance of the issue
or issues as to why there is disagreement and the contempora-
neous understanding of the parties as to the state of negotia-
tions. Taft Broadcasting, 163 NLRB 475, 478 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968).
The Respondent as the party asserting impasse has the bur-
den of proof on that issue. Newcor Bay City Division, 345
NLRB 1229, 1238 (2005); L.W.D. Inc., 342 NLRB 965 (2004).
I conclude that, here, Respondent has fallen short of meeting
its burden of proof that the parties were at impasse on July 1
when it implemented its healthcare proposals.
In order to establish the existence of impasse, Respondent
must prove that there was a contemporaneous understanding by
both sides that they had reached impasse. Monmouth Care, 354
NLRB at 57; Essex Valley, supra, 343 NLRB at 841. Here,
Respondent had failed to establish that either party believed
that they had “reached the end of their rope” when Respondent
implemented its proposals.
While McHale did testify in this proceeding that he and Re-
spondent believed that the parties were at impasse in view of
the Union’s failure to respond to Respondent’s proposals and to
its June 22 letter, it is significant that neither he nor anyone else
from Respondent made such an assertion either during bargain-
ing or in its letters. Indeed, Respondent never even character-
OAK HILL 407
ized its offer on healthcare as a final offer. Thus, it cannot even
be seriously argued that both parties believed that they had
reached impasse. Monmouth Care, supra; Essex Valley, supra.
Respondent argues in this regard the Respondent did make it
clear in its letter that it did intend to implement its proposals on
healthcare, absent agreement or further counterproposals from
the Union on the subject. However, that statement is not a dec-
laration that Respondent believed that the parties were at im-
passe or that they reached the end of their rope. Rather, it is
simply an assertion by Respondent that since the Union has not
met Respondent’s self-imposed deadline of June 30 to agree to
healthcare changes, it would implement its proposals at that
time.
Additionally, and more significantly, whatever can be said
about Respondent’s contemporaneous understanding, it is crys-
tal clear that the Union did not believe that the parties were at
impasse on June 30 or at any other time. Indeed, the Union’s
consistent position during negotiations and after when Re-
spondent asserted its intention to implement on July 1 was that
further negotiations could be fruitful and that the Union could
have more movement on healthcare, especially if Respondent
withdrew its other wage reduction proposals. Indeed, the Union
filed unfair labor practice charges in mid-June, alleging that
Respondent illegally implemented its proposals at that time by
compelling employees to fill out new enrollment forms for the
new plans, effective July 1. While no complaint allegation al-
leges that conduct to be violative of the Act, and I do not so
find, this fact, nevertheless, is demonstrative that the Union did
believe, as it repeatedly stated in negotiations and in writing,
that further negotiations on healthcare could be fruitful and that
no impasse existed.
While Respondent may have been impatient with the Un-
ion’s pace in agreeing to concessions on healthcare, its frustra-
tion is not the equivalent of a valid impasse nor did it mean that
a negotiated settlement was not within reach. Newcor Bay City,
supra, 345 NLRB at 1230; Grinnell Fire Systems, Inc., 328
NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000); Powell
Electrical, 287 NLRB 969, 973–974 (1987), enfd. as modified
906 F.2d 1007 (5th Cir. 1990) (futility not some lesser level of
discouragement or apparent gamesmanship is necessary to es-
tablish impasse).
The record shows that negotiations had not broken down on
healthcare and that the Union had made counterproposals to
Respondent’s contemplated changes, including covering Re-
spondent’s unit employees in the Union’s healthcare plans.
While Respondent did reject that plan as too costly, the issue
was still under discussion, particularly since the Union was
disputing Respondent’s calculations in that regard and request-
ed information relative to that issue. Further, Respondent was
still awaiting receipt of information that it had requested from
the Union concerning the details of the Union’s funds. Finally,
the Union had still not received the information that it had pre-
viously requested concerning the SPDs for both the old and
new plans.
In such circumstances, it is clear that an impasse cannot be
found to have existed on July 1. Newcor Bay City, supra at
1238–1239 (union’s continued assertion that movement is pos-
sible in future, depending in part on what information respond-
ent provided, substantial evidence of finding no impasse).
That is so, despite the fact that the Union had not offered ad-
ditional concessions on healthcare as demanded by Respondent,
but merely declared its intention to be flexible and continue
bargaining.17 See also Grinnell Fire Systems, supra, 328 NLRB
at 585–586 (no impasse where employer expressed unwilling-
ness to move from its position and union had not offered specif-
ic concession, but had declared its intention to be flexible and
sought further bargaining). See also Cotter & Co., 331 NLRB
787, 788 (2000) (no impasse, where union attorney stated par-
ties were not at impasse and respondent would act unlawfully if
it implemented its offer); Royal Motor Sales, 329 NLRB 760,
773 (1999) (no impasse because union had insufficient time to
analyze information that had been requested from employer).
Additionally, I would note again that the Union’s position on
healthcare after Respondent made its proposals was that the
Union would agree to some changes and would make some
movement on that issue if Respondent would agree to withdraw
its other regressive proposals (to reduce wages, end shift differ-
ential and longevity pay). Thus, the Union’s expressed demon-
stration of flexibility on healthcare, if other issues were satis-
factorily resolved, is strongly indicative that further bargaining
could be useful and that no impasse existed. Royal Motor Sales,
supra, 329 NLRB at 770, where the Board observed as follows,
which is applicable here:
The very nature of collective bargaining presumes that while
movement may be slow on some issues, a full discussion of
other issues, which have not been the subject of agreement or
disagreement, may result in agreement on stalled issues.
“Bargaining does not take place in isolation and a proposal on
one point serves as leverage for positions in other areas.”
Korn Industries, Inc. v. NLRB, 389 F.2d 117, 121 (4th Cir.
1967). Thus, had German “been willing to bargain further,
much more might have been accomplished through the give
and take atmosphere of the bargaining table.” NLRB v. Sharon
Hats, Inc., 289 F.2d 628, 632 (5th Cir. 1961). [Id. at fn. 31.]
Respondent argues that impasse has been demonstrated by
the Union’s conduct with regard to the “Hamden Plan.” Thus,
Respondent notes that the Union asked Respondent on April 27
to find out about the availability of an alternative HMO plan
with lower copays that would have ultimately resulted in a 6.8
percent increase rather than the 18-percent increase in Re-
spondent’s proposed plan. Respondent provided that infor-
mation to the Union, but, subsequently, the Union never pro-
posed implementing that plan. Although it made some further
references to the Hamden Plan during negotiations, it never
requested that it be offered. Respondent twice notified that
Union that it would be willing to offer this plan as an alterna-
tive to or in addition to its proposed plan if employees were
willing to absorb the additional premium costs. Notwithstand-
ing these offers, the Union still did not respond and did not
agree to this offer, even though its acceptance would have re-

17 Indeed, at the parties’ last bargaining session on June 20, the Un-
ion stated that it would be willing to stay all night in order to reach
agreement.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sulted in a savings in premium costs to employees, who opted
for that plan (as opposed to the plan offered by Respondent).
Thus, Respondent argues, as testified to by McHale, that the
“Union’s conduct showed that it lacked any interest or willing-
ness to try to reach an agreement before the insurance contact
expired on June 30, 2011.” Thus, Respondent reached the “end
of the rope,” and the Union’s actions demonstrated the same
conclusion by the Union. ACF Industries, 347 NLRB 1040
(2006).
I do not agree.
On the contrary, the evidence with respect to the “Hamden
Plan” demonstrates, in my view, that no impasse had been
reached. While it is true that the Union failed to respond to
Respondent’s offer to implement the “Hamden Plan” but even
that offer did require that employees pay the additional premi-
um costs and presumably did not include an agreement by Re-
spondent to withdraw its wage cuts proposals as demanded by
the Union. Thus, the Union cannot be faulted for not promptly
responding to Respondent’s offers. I emphasize again the inac-
curacy of Respondent’s assertion that the plans were “expiring”
on June 30. In fact, they were not expiring but would have con-
tinued (albeit in increased costs to Respondent) had Respondent
not unilaterally decided to implement the new plans because it
did not want to incur these increased premium costs. Thus, the
“self-imposed” deadline by Respondent cannot justify an im-
passe finding.
Significantly, in this regard, McHale testified that his June
22 letter reflected that Respondent was making it clear that it
was offering the Hamden Plan as an alternative and that this
was a “final offer” from Respondent.18 McHale further testified
that if the Union had agreed to incorporate that plan as an alter-
native, Respondent would have agreed to it for the sake of mak-
ing a deal, even though it would have resulted in confusion and
delays in processing of claims (due to the fact that employees
had already enrolled in the proposed plans, and it would require
new enrollment forms to be filled out for employees, who opted
for the “Hamden Plan”). McHale further testified that if the
Union “had agreed to the Hamden Plan, with let’s split the cost,
that would have been perfect.” Thus, McHale’s testimony es-
tablished that fruitful bargaining was still possible and still in
progress, and the parties had not reached the “end of the rope”
as McHale asserted. I emphasize again McHale’s further testi-
mony that “we were 24 hours from the end,” so no further bar-
gaining would be fruitful. There is “no end” in 24 hours as
there is no prohibition on bargaining after July 1. Respondent’s
self-imposed deadline cannot create an impasse, especially
where, as here, the evidence suggests that further bargaining
could be productive.
While McHale also notes in his testimony the Union’s con-
tinued insistence that Respondent withdraw its regressive wage
cuts before asking the Union to make concessions on
healthcare, this testimony only reflects that there was still bar-
gaining to be done, and only reinforces the wisdom of the
Board’s rejection of piecemeal bargaining (subject to limited
exceptions). There was clearly still an opportunity for move-

18 Notably, McHale did not use the term “final offer” either in his
letters or at negotiations.
ment and agreement on healthcare if Respondent would agree
to withdraw its wage cut proposal, so bargaining could still
have been fruitful and Respondent’s decision to implement its
proposal “precluded further exploration of possible tradeoffs
and foreclosed any finding that good faith bargaining exhausted
the prospects of reaching an agreement. Having never fully
tested the finality of the Union’s bargaining positions, Re-
spondent is in no position to argue that further negotiations
would have been futile.” Newcor Bay City, supra, 345 NLRB at
1239, citing Royal Motor Sales, supra, 329 NLRB at 763, and
Towne Plaza Hotel, 258 NLRB 69, 78 (1981).
Respondent’s reliance on ACF Industries, supra is misplaced
as the facts therein are clearly distinguishable from the instant
matter. The issue there was whether there was an overall im-
passe in bargaining rather than an impasse solely on healthcare
as here. Further, in ACF Industries, the union’s membership
had twice voted to reject respondent’s offers, after which re-
spondent stated that it had nothing further to offer and would
implement its last offer on August 21. The union, in an August
16 call, stated that it had additional proposals to make but did
not divulge what the proposals would be and did not request
any further negotiations. Respondent replied that it had nothing
further to offer and was going to implement.
The Board majority19 concluded that in these circumstances
in agreement with the judge that the parties were at impasse.
The Board majority agreed with the judge that the union’s
statement that it was prepared to make additional proposals
does not preclude an impasse finding since he concluded that if
the union had meaningful proposals to make, it would have
done so and asked for further negotiations on these proposals.
Thus, the judge concluded, and the Board majority agreed that
the reason the union failed to do so was because it had no fur-
ther (nonregressive) proposals to offer.
In contrast here, not only did the Union say that it was will-
ing to make new proposals on healthcare, but it did request
additional negotiations in order to further explore these issues,
which could be fruitful, particularly, if Respondent withdraw its
other regressive proposals that the Union had demanded.
Furthermore, as I have detailed above, Respondent had not
fully complied with the information requests for the SPDs for
both the old and proposed (and eventually implemented) health
plans when Respondent , in fact, implemented the new health
plans on July 1. Particularly, since the information requested
was directly relevant to the issue (healthcare) upon which Re-
spondent asserts impasse was reached, this precludes a finding
of a good-faith impasse. E. I. du Pont de Nemours & Co., 346
NLRB 553, 558 (2006); Monmouth Care, supra, 354 NLRB at
57–58; New Cor Bay City, supra, 345 NLRB at 1291; Essex
Valley, supra, 343 NLRB at 841–842; U.S. Testing, supra, 324
NLRB at 860; Decker Coal, 301 NLRB 729, 740 (1991).
A third exception to the overall impasse requirement before
implementing a change in past practice terms of employment,
set forth in Bottom Line, supra and RBE Electronics, supra is
detailed in Stone Container Corp., 313 NLRB 336 (1993), and
amplified in TXU Electric Co., 343 NLRB 1404 (2004).

19 Member Liebman dissented.
OAK HILL 409
This precedent holds that where a particular term of em-
ployment involves a discrete annual event that occurs every
year at a particular time, even if that event happens to occur
while contract negotiations are in progress, an employer need
not bargain to overall impasse before implementing that term. It
needs only to provide the union with notice and opportunity to
bargain as to these matters.20
These principles have been applied where the term and con-
dition of employment changed was annual wage increases,
Stone Container, supra; TXU Electric, supra; Alltel Kentucky,
326 NLRB 1350 (1988); as well as where the change involved
health coverage. St. Mary’s Hospital of Blue Springs, 346
NLRB 776 (2006); Saint-Gobain Abrasives, 343 NLRB 542
(2004); Nabors Alaska Drilling, 341 NLRB 610 (2004); Bran-
nan Sand & Gravel, 314 NLRB 282 (1994).
Respondent asserts that it provided the Union an adequate
notice and opportunity to bargain over the changes that it made
and that, therefore, its implementation was not unlawful. How-
ever, I disagree since the Stone Container exception applies
only to first contract negotiations and not to negotiations for
successor contracts, as here.
Respondent argues that RBE Electronics and Bottom Line
were both successor contract cases as well as other cases apply-
ing the RBE Electronics and Bottom Line analysis concerning
exceptions to the overall impasse requirement before imple-
mentation. IFG Stockton, 357 NLRB 1398 (2011); Pleas-
antville Nursing Home, supra. While I note that RBE Electron-
ics does make reference to Stone Container in footnote 15, it
indicates that the Stone Container analysis is separate and apart
from the RBE Electronics analysis although both involve ex-
ceptions to the overall impasse rule. In RBE Electronics, the
Board remanded the case to the judge to issue a decision con-
sistent with its opinion. No such decision issued thereafter,
indicating that the case was subsequently resolved. Thus, RBE
Electronics did not apply the Stone Container analysis to a
successor contract situation.
Close examination of the opinions in subsequent cases,
which did apply the Stone Container exception, make it clear
that the analysis is applicable only to first contract situations,
where the parties have not yet established their own practices
through contract that they can rely upon in the future. I note
that all of the cases cited above, where the Board applied the
Stone Container analysis, involved first contracts.
In TXU Electric, the Board felt it significant to stress at the
outset of its analysis that the case concerned “a situation in
which the status quo of a mandatory subject at the commence-
ment of a bargaining relationship.” (Id. at 1405.) In its analysis,
the Board further stressed that the employer did not violate the
Act because its actions occurred “in the context of a new-
collective-bargaining relationship.” (Id. at 1407.) The Board
added:
We agree with the opinion in Daily News of Los Ange-
les, 315 NLRB at 1244, that where, as here, a discrete re-
curring event occurs every year at a given time, and nego-

20 Thus, under this precedent, it is not even necessary to bargain to
impasse over these specific changes. Notice to the union and opportuni-
ty to bargain is sufficient to permit implementation.
tiations for a first contract will be ongoing at that time, an
employer can announce in advance that its plans to make
changes as to that event. . . . As long as the union is given
notice and opportunity to bargain to those matters. The
employer can carry out the changes even where there is no
overall impasse as of the time of the change.
Finally, the Board concluded by again stressing that the “dis-
crete, recurring event” theory is limited to initial contracts by
stating:
That bargaining subject of wages is not removed from
the table by the employer’s interim unilateral action. . . . It
provides a bargaining bridge to cross the transitional peri-
od when an employer must deal with that event while en-
gaged in initial negotiations with a newly-recognized or
certified union. The principle has no broad application or
disruptive potential.
Further in St. Mary’s Hospital, supra, where the Board ap-
plied the Stone Container analysis to changes in healthcare
coverage, the Board observed as follows:
As the judge found from the credited record, the Re-
spondent gave the Union timely notice of the prospective
changes at issue and an opportunity to bargain over them.
In addition, the Respondent remained willing to bargain
over the changes after implementation. The Respondent
also established that the changes were consistent with a
past practice, established when the unit’s employees were
unrepresented, under which the Respondent implemented
changes in copremiums, copayments, deductibles, and
other terms of health plan coverage on an annual basis.
The parties were negotiating for a first contract but had not
reached agreement on health coverage by the time the
changes at issue would normally have been implemented.
Moreover, if the Respondent did not take any action prior
to January 1, the employees would have suffered a disrup-
tion in coverage. Under these circumstances, the imple-
mentation did not violate Section 8(a)(5) of the Act. [346
NLRB 776.]
See also Rose Fence Inc., 359 NLRB 225 fn. 1 (2012) (ap-
plying Stone Container analysis to a decision to lay off em-
ployees and stating it applies to negotiations “for a first con-
tract,” “which is the kind of situation that calls for a balanced
approach accommodating the legitimate need for an employer
to continue making daily operational decisions necessary to the
maintenance of its business during the initial stage of a collec-
tive bargaining relationship”). Id.
Furthermore, even apart from the first contract issue, the
Stone Container exception applies only if the change in terms
of conditions of employment was a discrete, recurring event, a
necessary requirement under Quality Roofing Supply Co., 357
NLRB 789, 789 (2011). In Quality Roofing,21 the Board reject-
ed an employer’s argument that is decision to implement
changes in health insurance premiums was privileged by Stone
Container as follows:

21 Quality Roofing was also a first contract situation.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, there is no merit in the Respondent’s argu-
ment based on Stone Container Corp., 313 NLRB 336
(1993), that it was privileged to implement the health in-
surance premium increases because a bargaining impasse
had been reached on that issue. The employer in Stone
Container had an established practice of conducting an
annual wage and benefit survey and implementing an in-
crease, if appropriate, each April. Id. at 336. In the instant
case, the Respondent has not established that an increase
in employees’ health insurance premiums was a discrete,
annually recurring event—a necessary requirement under
Stone Container.
Further, both St. Mary’s Hospital and Saint Gobain Abra-
sives, two other cases that applied the Stone Container analysis
to healthcare changes, stressed that a past practice had been
established when employees were unrepresented, under which
the employer implemented changes in copremiums, copay-
ments, deductibles, and other terms of health plan coverage on
an annual basis, 346 NLRB at 776, or had an annual process of
renewing and adjusting its health insurance programs, Saint-
Gobain Abrasives, 343 NLRB at 542. Here, in contrast, there is
no established practice of Respondent adjusting premiums or
coverage on an annual basis, notwithstanding the fact that every
year the insurance company can and had raised premium rates
and changed policy terms or coverages. To the contrary, here,
Respondent has, consistent with its contractual obligation to
maintain equivalent coverage, absorbed any healthcare premi-
ums increases from the insurance company and made changes
in coverages or plans, only where the Union consented.
Finally, I note Maple Grove Health Care, supra, 330 NLRB
at 775, a post-Stone Container case, involving a first contract,
where the Board found, as detailed above, that the employer
was not free to implement changes in healthcare premiums,
despite its assertion that the union had notice and opportunity to
bargain about the change.
The Board explained as follows, in response to a contention
that the employer had not changed the status quo by making the
changes:
[I]f the employer’s practice was to pay a specified amount for
each employees’ health insurance, and for the employees to
pay the rest, the employer could lawfully require the employ-
ees to bear the entire weight to the premium increase. On the
other hand, if an employer’s practice was for employees to
pay a set amount of the premium, and the employer to pay the
rest, the employer could not lawfully impose any part of the
increase on the employees without first bargaining to agree-
ment or impasse with the union.
Thus, when an insurance carrier imposes a premium
increase, the employer may unilaterally require employees
to shoulder part or all of the increase if it can show that the
status quo ante is not changed as a result.
Therefore, Stone Container and its progeny provide no sup-
port for Respondent’s position that it could lawfully implement
the changes in healthcare, absent overall impasse.
Accordingly, based on the foregoing analysis and precedent,
I conclude that Respondent has violated Section 8(a)(1) and (5)
of the Act by unilaterally changing healthcare benefits for its
employees.
CONCLUSIONS OF LAW
1. The Respondent, Connecticut Institute for the Blind, Inc.
d/b/a Oak Hill, is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, District 1199, New England Health Care Em-
ployees Union, SEIU, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all material times, the Union has been the designated
exclusive collective-bargaining representative of Respondent’s
employees employed at its principal office in Hartford, Con-
necticut, as well as at various other facilities throughout Con-
necticut in the following appropriate unit:
All regular full-time and part-time assistant teachers, day pro-
gram workers, job coaches, residential program workers, die-
tary workers and maintenance employees, excluding instruc-
tors, head custodian, maintenance mechanic, head cooks,
guard, clerical employees, professional employees and super-
visors as defined in the Act.
4. By failing to supply relevant information to the Union in a
timely and complete fashion, Respondent has violated Section
8(a)(1) and (5) of the Act.
5. By unilaterally implementing health insurance changes on
July 1, 2011, during collective bargaining, without bargaining
to a lawful overall impasse in negotiations, Respondent has
violated Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices, described above, affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, it is necessary to order it to cease and desist and
to take certain affirmative actions designed to effectuate the
policies of the Act. Respondent shall be required to make whole
its employees for any losses they suffered or expenses they
incurred, including increased premium costs, that resulted from
Respondent’s unlawful changes in healthcare insurance. Such
amounts shall be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Connecticut Institute for the Blind, Inc.
d/b/a Oak Hill, Hartford, Connecticut, its officers, agents, suc-
cessors and assigns, shall
1. Cease and desist from

22 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
OAK HILL 411
(a) Failing and refusing to bargain collectively with the New
England Health Care Employees Union, District 1199, SEIU
(the Union) by failing and refusing to timely and completely
supply information that is relevant and necessary to the Union’s
performance as the exclusive collective-bargaining representa-
tive of its unit employees. The unit is:
All regular full-time and part-time assistant teachers, day pro-
gram workers, job coaches, residential program workers, die-
tary workers and maintenance employees, excluding instruc-
tors, head custodian, maintenance mechanic, head cooks,
guard, clerical employees, professional employees and super-
visors as defined in the Act.
(b) Failing and refusing to bargain collectively with the Un-
ion by unilaterally implementing changes in terms and condi-
tions of employment of its employees employed in the above-
described unit in the absence of an overall lawful bargaining
impasse.
(c) 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) Upon request of the Union, rescind the unilaterally im-
plemented changes in employees’ healthcare coverage, copays,
and premiums and restore the coverage, copays, and premiums
available to employees prior to July 1, 2011.
(b) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this decision for any
losses they suffered or expenses they incurred as a result of the
unlawful action by Respondent.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination, 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 ana-
lyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
Hartford, Connecticut facility and at all of its other facilities,
where unit employees work, copies of the attached notice
marked “Appendix B.”23 Copies of the notice, on forms provid-
ed by the Regional Director for Region 34, 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 em-
ployees are customarily posted. In addition to physical posting
of paper notices, 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 com-
municates 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. If the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, 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 July 1, 2011.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 34 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

23 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.”
41
2
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OAK HILL
2010-2011 Cun-ent and 2011-2012 Proposed Plan Costs
&doh] / -• trattti On it 12 otos. : • -•-•'s 2010/2011
Cost to
OakHW
Monthly
Cost
riTn1 Crat. • •
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El0p0aa:a Cdat Moho,
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Employee
Employee + Spouse
Employee + Child(ren)
Employee + Family
Current HMO
Employee $556.69 $40.00 8516 69
Employee + Spouse 1,196.88 80.00 1116.88
Employee + Child(ren) 1,085.53 80.00 1,005.
Employee + Family 1,614.41 80.00 1.534.41
FOS 15125
Bmployee $605.25 $88.56 $5 6.69
Employee + Spouse 1,301.30 184.42 1116.88
Employee + ChEd(ren) 1,180.21 174.68 1,00153
Employee + Fatally 1,755.25 220.84 1,534.41
HDHP/IISA $130441000 w/1J46 all Funding
Employee $535.11 $40.00 5495.11
Employee + Spouse 1,136.39 80.00 1,056 39
Employee + Child(ren) 1,048.13 80.00 968.13
Employee + Family 1,467.41 80.00 1,387.41
74,-11;V.ffta
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$545.88
1,173.65
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$657.01 18.14% $151.13
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1,496.13
OAK HILL 413
OAK BILL
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