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

National Labor Relations Board - Administrative Judge Opinions

Feb 22, 2013

34-CA-013016 (N.L.R.B. Feb. 22, 2013)

JD(NY)–08–13
Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CONNECTICUT INSTITUTE FOR THE BLIND,
INC. d/b/a OAK HILL
and Case 34-CA-13016
NEW ENGLAND HEALTH CARE EMPLOYEES
UNION, DISTRICT 1199, SEIU
Rick Concepcion, Esq., Hartford, CT for the
General Counsel.
Miguel A. Escalera, Esq. and Diana Garfield, Esq.
(Kainen, Escalera & McHale PC), Hartford,
CT for the Respondent.
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge: Pursuant to charges and amended charges filed
by New England Health Care Employees Union, District 1199, SEIU, (the Union or Local 1199),
the Director for Region 34 issued a complaint and notice of hearing on March 30, 2012, alleging
that Connecticut Institute for the Blind, Inc. d/b/a Oak Hill (Respondent or Oak Hill) violated
Section 8(a)(1) and (5) of the Act by failing and refusing to furnish information to the Union and
unilaterally implementing changes in employees’ healthcare insurance benefits.
The trial with respect to the allegations in the complaint was held before the undersigned
in Hartford, Connecticut on June 11 through 15 and July 9 and 10, 2012. Excellent briefs have
been filed by both General Counsel and Respondent, which accurately and comprehensively
detailed the facts adduced at trial and presented 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 demeanor 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 throughout the state as well as at
its main campus in Hartford, Connecticut.
JD(NY)–08–13
2
During the 12-month period ending February 29, 2012, Respondent derived gross
revenue in excess of $100,000 and purchased and received goods at its Connecticut facilities 5
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 engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
10
It is also admitted, and I so find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
15
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.20
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 25
Directors, James Jones, vice-president of finance, as well as Donna Shears, director of human
resources.
B. Bargaining History
30
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 employees, employed by Respondent and assigned to one or more
of Respondent facilities.35
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 40
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 Union’s chief negotiator for the
above contract and also participated in negotiations for the prior agreement, which had expired 45
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 of 2011, Respondent retained Attorney 50
Patrick McHale as its chief negotiator for the negotiation for the expiring contract, in large part
due to McHale’s experience negotiating with the Union on behalf of agencies similar to
JD(NY)–08–13
3
Respondent.
C. The 2007-2011 Contract
5
Article 17 of the 2007-2010 contract had the following provisions regarding health
insurance:
1. The present health insurance plan or one providing equivalent benefits shall
continue, subject to the following provisions.10
2. Eligibility
(a) An employee who is regularly scheduled for at least twenty hours but
fewer than thirty-five hours a week is eligible for part-time insurance benefits.15
(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, 20
whose regularly scheduled hours are not sufficient 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 benefits he or she was receiving on June 30, 1992. An Employee's right to
retain benefits or benefit eligibility under this subsection shall expire permanently
upon the occurrence of any of the following events:25
(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 30
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 35
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 40
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 45
hours a week.
3. Part-time insurance benefits shall include individual medical insurance.
4(a) Full-time insurance benefits shall include individual and family medical 50
insurance, individual and family dental insurance, individual life, accidental death
and dismemberment insurance, and short-term disability insurance. Employees
JD(NY)–08–13
4
electing 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.5
(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.
10
(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.
15
(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 insurance shall contribute forty ($40.00) dollars per month toward the cost
of health insurance premiums.20
(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:
25
$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 follows:30
$40.00 per month for individual coverage
$80.00 per month for family coverage
Employees who elect the Point of Service ("POS") plan currently available for 35
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 program for
Employees eligible for full-time insurance benefits, but shall pay the full cost of 40
such life insurance without contribution 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.
45
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
Contribution Retirement Plan, in accordance with Plan terms and conditions, with
Oak Hill making five percent (5%) of compensation contribution for eligible 50
Employees effective January 1, 2006.
JD(NY)–08–13
5
8. The Employer shall continue to provide a short-term disability plan for
Employees eligible for full-time insurance benefits. The plan shall have the
following features:
(a) Benefits shall commence with the eighth day of disability (excluding 5
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.10
(c) The maximum benefit period is twenty-six (26) weeks.
Articles 23, paragraph 10 of the agreement provides as follows:
15
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 20
Association, which shall render a decision based on a balancing of the
justification for the change against the impact on the bargaining unit.
Consistent with the provision, there is no evidence that Respondent ever unilaterally
changed insurance premiums or benefits prior to 2011.25
The record reflects that the annual renewal rate for its medical 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 30
occasion Respondent has changed insurance carriers, in part due to premium increases, 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.
35
Respondent has historically offered the same medical benefits to unit and non-unit
employees.
D. The 2009-2010 Reopener Negotiations
40
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 of 2009 and consisted of two meeting in March, two in May and two in June.
45
Respondent, by Wintjen at the March 19 opening negotiation session, presented to the
Union a powerpoint presentation, detailing what she described as Respondent’s “dire economic
conditions that exist” that caused Respondent to make proposals, which included reductions in
wages and health benefits. These factors included the fact that Respondent had been
underfunded by the state for many years with no rate increases for the next two years, despite 50
increasing expenses, an operating deficit of $6.6 million for the next fiscal year, its endowment
lost 30% of its value due to stock market decline, and even using $4 million from the
JD(NY)–08–13
6
endowment income, a $2.6 million deficit would still exist with an additional $1.1 deficit expected
for fiscal year 2010,1 which represents a total projected deficit of $3.7 million for the 2009 and
2010 fiscal years.
Respondent proposed cuts in both wages and benefits in order to help overcome these 5
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%. If
Respondent was level-funded or its rates were cut, it offered several alternative cuts. They
included a 5% wage cut, a 3% wage cut plus elimination of shift differentials and longevity pay,
and a new rate structure for newly hired employees.10
The Union requested 5% wage increase in each of the two years of the contract term
and changes in language on implementation of layoffs.
With respect to healthcare, Respondent asserted that it has been notified that it would 15
receive a 9.7% 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 one-third 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 non-bargaining employees. This plan 20
provided 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
contributions into a Health Savings Account (HSA) for employees, who opt for that plan, of
66.5% of the deductible. Thus, employees’ 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 25
offered by Respondent since it would result in lower premiums costs to Respondent.
Respondent 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% of the
premium costs difference between the existing plan and HDHP. For 75% individual's coverage,
this would have amount to $64.35 a month and for family coverage $174.00.3 Additionally, 30
employees choosing this option would incur some increases in co-pays 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 difference in premiums between the costs of the HMO plan and the
POS plan.35
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% as of July 1.
40
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, 200945

1 Respondent’s fiscal year’s end date is June 30.
2 This is the plan that the large majority if unit employees had chosen 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.
JD(NY)–08–13
7
Via Facsimile & First Class Mail
Ms. Linda Vannoni
Vice President, Community Programs
NEHCEU District 1199, SEIU5
17 Huyshope Avenue
Hartford, CT 06106
Re: Scheduling of Negotiations with Oak Hill
10
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, 2009.15
At the end of our last session on Tuesday evening, we discussed 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 20
that waiting to reach a contract benefitted our employees, this year such a delay
provides no such benefit.
As you are well aware, bargaining unit employees expressed great interest in the
ConnectiCare High Deductible Health Plan ("HDHP") and are eager to learn 25
more about it. We will need to hold open enrollment in early June in order to get
employees on the plan for July 1. Waiting until May to have the informational
sessions and to then negotiate all other remaining 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 30
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 ConnectiCare HDHP due to scheduling issues.
We have held only two sessions thus far. The Union has not responded to Oak 35
Hill's proposals, and we have not really engaged in the process of negotiating.
Though the legislature may not timely pass a budget in June, we plan for the next
fiscal 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, including wages and benefits, in order to eliminate its 40
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 45
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 available, perhaps another Union representative
can lead these meetings.50
We are pleased that the Union has agreed to have our health insurance agent
JD(NY)–08–13
8
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 informational sessions on Tuesday,
May 5, 2009. The sessions will begin promptly at 11:00 am and 4:30pm. Both 5
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. 10
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.15
Very truly yours,
Gayle C. Wintjen
General Counsel20
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 25
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.
30
Wintjen wrote to Vannoni on June 29, expressing Respondent’s dissatisfaction with the
bargaining, particularly the Union’s failure to agree to the HDHP proposal by the July 1 deadline,
which she attributed, at least in part, to the Union’s failure to schedule a sufficient amount of
negotiations dates.
35
This letter is set forth below:
June 29, 2009
Via Facsimile & Electronic Mail40
Ms. Linda Vannoni
Vice President, Community Programs
NEHCEU District 1199, SEIU
77 Huyshope Avenue45
Hartford, CT 06106
Re: Status of Negotiations
Dear Ms. Vannoni:50
I write regarding the status of our negotiations regarding our re-opener.
JD(NY)–08–13
9
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 would5
accomplish. 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 proposals. Oak
Hill also informed the Union that its health insurance proposals was time-10
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 15
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.
20
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
responded to those requests.
25
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 members 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 30
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 35
last meeting, we made a proposal to address the Union’s demand that Oak Hill
withdraw its proposals to cut wages. We urge the Union to come fully prepared
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 40
alternative except to close additional programs and eliminate positions. This is
why I have been requesting that we meet more often and this is why we must
seriously accelerate negotiations, starting on July 2nd.
Very truly yours,45
Gayle C. Wintjen
General Counsel
Cc: All staff50
JD(NY)–08–13
10
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% 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 5
the plan would meet the contract’s “equivalent benefits” requirement and would be saving
Respondent money. Wintjen attached a two-page comparison of the two plans, detailing the
costs, co-pays, services offered and deductibles for both of these plans to demonstrate that they
were equivalent. The letter is as follows:
10
May 8, 2009
VIA ELECTRONIC & FIRST CLASS MAIL
Ms. Linda.Vannoni15
Vice President
NEHCEU, District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
20
Re: Health Insurance Renewal
Dear Ms. Vannoni:
In connection with our ongoing contract negotiations, I write regarding the 25
renewal of our health insurance plan.
As I stated in the remarks related to Oak Hill's health insurance 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%.30
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 insurance
broker to rebid its health insurance contract to find out whether there was another 35
carrier that offered a more affordable yet equivalent plan.
Oak Hill has received a quote from Health Net, an insurance carrier that was
offered to its employees along with the ConnectiCare plan not too long ago.
Health Net has proposed a 3.7% increase over Oak Hill's current rates for a 40
health insurance plan that is equivalent to the current ConnectiCare plan. A side-
by-side comparison of coverage and out-of pocket expenses is attached for your
review. The network of physicians and hospitals is nearly identical as is the
prescription coverage. The terms of the high deductible health plan/health
savings account are the same. Most important, switching to Health Net will save 45
Oak Hill approximately $350,000 due the fact that the premium increase is far
less than that proposed by ConnectiCare.
The collective bargaining agreement states that 'the present health insurance
plan or one providing equivalent benefits shall continue, subject to the following 50
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
JD(NY)–08–13
11
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 prepared to answer any questions you may have regarding these changes at
our negotiating session on May 12, 2009.
5
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 10
as we believe appropriate.
Please do not hesitate to call me if you have any questions.
Very truly yours,15
Gayle C. Wintjen
General Counsel
During the course of the bargaining, the Union ultimately determined that the coverage 20
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 co-pay payments resulting from this change.
During the course of the 2009 bargaining, the Union made multiple information requests 25
in order to assist in bargaining over the issues in the negotiations, including Respondent’s
request to change carriers. The Union conceded that Respondent 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 30
medical plan and dental plans, ‘summary plan description,’ which lists any and all co-pays,
allowed service, allowed service, number of office visits, deductible, etc.”
In response to that request, Respondent submitted three pages. The first page, entitled
“What are the Benefits of Changing to Health Net,” is as follows:35
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 40
by 9.7% effective July 1. Health Net offered 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 45
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 Difference50
Individual coverage: $64.35 $49.00 $15.35
Family Coverage: $174.00 $135.00 $39.00
JD(NY)–08–13
12
How does this change impact the HDHP/HSA proposal?
The terms of the HDHP/HSA do not change. The employee monthly
contributions will be kept, as promised, at current levels ($40/month individual
and $80/month family) for the next two fiscal years. The deductible levels and the 5
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 medical provider is not on the
Health Net network, the HDHP/HSA will be attractive because the medical
expenses for that provider can be paid out of the HSA.10
Does the new health insurance plan make any other changes?
Yes. Oak Hill was able to include within the plan coverage the outpatient
procedures and hospitalization coverage that Oak Hill has been self-insuring
since 2008. This means that after July 1, 2009, employees will no longer have to 15
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 20
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 25
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, deductibles, 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 equivalency language in the contract by changing carriers. I note also 30
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
provided the Union with what it believed to be responsive to the Union’s requested information
concerning the co-pays, allowed 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.35
Thus, as detailed above, despite Respondent’s repeated assertions 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 premium increases that the
deadline came and went without an agreement on any of Respondent’s proposals. Thus, there 40
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 non-bargaining unit employees with a 75% payment by Respondent with an
HSA for such employees.45
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.
50
Subsequent to July 1, 2009, the parties continued to bargain over the mid-term
modifications, including the Respondent’s continuing efforts to include the HDHP plan as an
JD(NY)–08–13
13
option for employees. Respondent, during this bargaining, also proposed eliminating the
“equivalency” language in the contract.
Additionally, in 2010, Respondent proposed changing carriers from Health Net to United
Health Care/Oxford, again asserting to the Union that the benefits and coverage for the two 5
plans were equivalent and that since Oxford’s premiums were less, it wished to change to
Oxford for the employees. Respondent 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 10
proposed that Respondent pay 75% for the deductible for the HAS plan and that Respondent
accept the Union’s wage and economic proposals in exchange for the Union’s agreement on the
HDHP plan.
Ultimately, the Union withdrew its demands for agreements on its demands and agreed 15
to the HDHP plan, and Respondent agreed to contribute 75% of the deductible into an HSA for
employees. Respondent also agreed to withdraw its demands for other concessions and
changes in the equivalency language.
In early June of 2010, the parties reached agreement on healthcare issues, which was 20
reflected in a document, entitled “Agreement regarding Health Insurance,” signed by
Respondent on June 11, 2010 and by the Union on June 10, 2010. The document is as follows:
AGREEMET REGARDING HEALTH INSURANCE PROPOSALS
25
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:
30
WHEREAS the parties’ 2007-2011 collective bargaining agreement ("the
Agreement") provides a "re-opener" effective April 1, 2009 for the purpose of
renegotiating medical benefits and other matters as more fully set forth in the
Agreement; and
35
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 40
unit a High Deductible Health Plan ("HDHP") and Health Savings Account
("HSA") through United Health Care/Oxford (Freedom Plan) on the same terms
and conditions as offered to all other Oak Hill employees, as more specifically set
forth in paragraph 2. Participation in the HDHP/HSA shall be voluntary and shall
be offered as an option in addition to the United Health Care/Oxford Freedom 45
Plan HMO, which shall replace the existing Health Net HMO Plan.
2. The HDHP/HSA shall be offered to employees who elect benefits under

4 The Union proposed reductions of the $40/$80 premiums (single and family) to $30 and
$70 per month.
JD(NY)–08–13
14
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 coverage;5
b. The annual deductibles shall be $1500 for individual coverage and
$3000 for individuals with dependent coverage; and
c. Oak Hill shall fund 75% of the deductible and shall make deposits 10
into employees' HSAs on a quarterly basis starting on or about July 1, 2010.
3. Oak Hill formally withdraws all other proposals and counterproposals
made to date regarding medical insurance coverage including but not limited to:
premium cost-sharing and copayments; Oak Hill's proposal to eliminate the 15
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.
20
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.
25
For Oak Hill For NEHCEU, District 1199, SEIU
Gayle Wintjen Linda Vannoni
This agreement was to be effective July 1, 2010, the effective date of the new insurance
year for the plans as in 2009. There was some discussion between Wintjen and Vannoni 30
concerning the enrollment dates and issues in June of 2010, particularly 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 concerning enrollment issues on June
9 is set forth below:35
From: Linda Vannoni [mailto:lvannoni@seiu1199ne.org]
Sent: Wednesday, June 09, 2010 3:12PM
To: Gayle Wintjen
Subject: RE: AGREEMENT REGARDING HEALTH INSURANCE PROPOSALS, 40
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 45
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
______________________________________________________50
From: Gayle Wintjen [mailto:wintjeng@ciboakhill.org]
JD(NY)–08–13
15
Sent: 2010-06-09 3:22PM
To: Linda Vannoni
Cc: Donna Shears; Rose Bolton
Subject: RE: AGREEMENT REGARDING HEALTH INSURANCE PROPOSALS,
rev 6-8-105
Linda,
I do not recall extending any enrollment date, as our Plan Year starts July 1.
What we said is that we would offer additional informational sessions on the 10
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 currently have coverage at Oak Hill through the
HMO do not need to go through open enrollment unless they need to make a 15
change in their coverage (e.g., individual to dependent coverage). 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 20
necessary.
Thanks, Gayle
Gayle C. Wintjen25
769-3827
______________________________________________________
From: Linda Vannoni [mailto:lvannoni@seiu1199ne.org]30
Sent: Wednesday, June 09, 2010 3:43 PM
To: Gayle Wintjen
Subject: RE: AGREEMENT REGARDiNG HEALTH INSURANCE PROPOSALS,
rev 6-8-10
35
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 negotiate. 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
40
Linda Vannoni
Vice President
District 1199 NE/SEIU
(860) 549-1199
45
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
agreement. 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 50
summary plan descriptions for the Oxford plan.
JD(NY)–08–13
16
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.”
5
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 summaries detailed cost including deductibles, co-
insurance, descriptions of coverage for preventative care, in-patient care, out-patient care, 10
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 summary and certificate of
coverage.”15
Vannoni testified that the information provided in May of 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 subsequent to receiving the above
information, she still had some questions about some of the items that needed answering. Thus, 20
Vannoni made several email and phone requests of Wintjen to answer the inquiries that
Vannoni had about some of the benefits. Wintjen immediately forwarded the answers to
Vannoni’s questions from the brokers and promptly informed Vannoni of these responses.
Vannoni provided some examples of additional questions that she asked, which were not
elaborated upon in the summaries provided. These include what qualifies as durable medical 25
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 inquires from Respondent, Vannoni reviewed the 30
information provided and concluded that the Oxford Plan’s coverage appeared to be
“"equivalent” to the 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 Arbitration35
In November of 2009, after being unable to secure the concessions 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 Union40
believed that the cut in hours was arbitrary and was done by Respondent in retaliation for the
Union failing to agree to it bargaining proposals 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.
45
The grievance ultimately proceeded to arbitration before Arbitrator Tim Bornstein on
March 7 and June 7, 2011.
Arbitrator Bornstein issued his decision on September 7, 2011, finding the Respondent

5 POS plan, HMO plan and HDHP plan.
JD(NY)–08–13
17
did not violate the collective bargaining agreement by reducing the hours of some of its
bargaining 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 essentially5
concluded the Respondent’s actions did not violate the contract and were done for legitimate
business reasons. His response to the Union’s assertions sums up the essence of his decision.
Arbitrator Bornstein concluded:
10
“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 bargaining 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, 15
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 positions to maintain benefits suffered real harm.
The loss of insurance benefits can be extremely painful, even catastrophic, to a 20
family. Yet the record leaves little doubt that management's scheduling changes
were prompted by its severely deteriorating financial situation. These are hard
times for non-profit organizations, especially in the health care sector.
Unfortunately, their employees are not exempt from the consequences.
Management of Oak Hill was over a financial barrel, and the actions it took to 25
meet its obligations to its mission were severe, but they did not violate the
collective bargaining agreement.”
F. 2011 Contract Negotiations
30
On December 14, 2010, the Union sent a letter to Respondent, 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.
35
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, 201040
Donna Shears, Human Resources
Oak Hill
120 Holcomb Street
Hartford, CT 0611245
Fax (860)-769-6562
Dear Ms. Shears-
The Union is requesting the following information in electronic format, where 50
available.
JD(NY)–08–13
18
1. A current list of employees in the bargaining unit(s) represented by District
1199 at your facility that includes the following:
 Wage rate
 Regularly scheduled hours per week5
 What type of health insurance plan/plans they are enrolled 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
10
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 15
number of hours needed to quality 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 employees participate; 25
are full time; 18 are part time; 12 have individual coverage at this cost...20
We request that you send us the information above in electronic format as soon
as possible to Frances Boyes at fboye@seiu1199ne.org. If some of the
requested items require time to compile please send us the information that is
readily available first and forward other material at a later date. Please contact 25
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.
30
Linda Vannoni, Vice President,
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 35
benefits. Bolton was involved with “year’s ends” and the holidays were approaching, so Shears
instructed Bolton to get to it after the holidays.
In late January of 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 40
done as quickly as possible. However, Bolton never got around to complying with the request.
Shears was retiring at that time and was in the process of training her replacement as well as
other matters 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 45
Bolton had complied with her instructions 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 of 2011, as will be described below.50
JD(NY)–08–13
19
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 earliest
convenience so that we can discuss mutually agreeable dates and times to begin negotiations.”5
The Union received McHale’s letter on January 31. Vannoni responded by email on
February 2 as follows:
Dear Pat McHale,10
I am writing to schedule negotiations for a Successor Collective Bargaining
Agreement at Oak Hill School. Below are a series of dates the Union is offering
for negotiations:
15
3/1/11 10am -6 pm
3/8/11 10am -8 pm
3/10/11 10am -8 pm20
3/15/11 10am -8 pm
3/16/11 10am-8 pm
25
3/17/11 10am-8 pm
3/23/11 10am -8 pm
3/24/11 10am-8 pm30
3/29/11 10am-8 pm
3/30/11 10am -8 pm
35
3/31/11 10am -8 pm
4/5/11 10am -8 pm
4/7/11 10am -8 pm40
4/12/11 10am -8 pm
4/13/11 10am -8 pm
45
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

6 All subsequent dates are in 2011, unless otherwise indicated.
JD(NY)–08–13
20
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.
5
I will follow up this email with an information request to help prepare the Union's
proposals. In the mean time, please respond to dates you are ready to negotiate
as soon as possible. I appreciate your cooperation in advance.
Sincerely,10
Linda Vannoni
Vice President
McHale responded on behalf of Respondent by email in February, in which he offered to 15
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 Vannoni20
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 25
dates you offered:
3/8 beginning at 4pm
3/15 beginning at 1pm
3/17 beginning at 1pm
3/23 beginning at 1pm30
3/29 beginning at 1pm
3/31 beginning at 1pm
4/7 beginning at 1pm
4/12 beginning at 1pm
4/14 beginning at 1pm35
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 committee soon.
40
Vannoni responded to McHale by email on February 8, stating that she was “reviewing
dates,” but inquired about and discussed 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.
45
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
50
Pat:
JD(NY)–08–13
21
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 5
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
negotiations begin around 11:30 am. Please advise if your team is not available
in the morning times beginning at 11:30 am.
10
Let me know
_________________________________________________________
From: Patrick J. McHale 15
Sent: Sunday, February 13, 20114:51PM
To: Linda Vannoni
Cc: Gayle Wintjen
Subject: RE: Oak Hill Contract Negotiations - Union offer of dates
20
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
acceptable to you and your committee for negotiations.25
On February 16, Vannoni emailed McHale and confirmed that the Union can meet on
March 15 at 6:00 pm and March 23 at 11:30 am. McHale responded by email and fax on
February 18, as follows:
30
February 18, 2011
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni35
Vice President, Community Programs
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
40
Re: Scheduling of Negotiations with Oak Hill
Dear Ms. Vannoni:
I am writing in response to your recent email “confirming” negotiation dates of 45
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
sessions 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 50
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
JD(NY)–08–13
22
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, 2011.5
Sincerely,
Patrick J. McHale
Cc: Gayle C. Wintjen10
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 15
exchange is set forth below.
From: Patrick J. McHale
Sent: 2011-03-01 11:41AM
To: Linda Vannoni20
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 25
hold negotiations on a successor contract. Of the 9 dates we offered you on
February 4th, the only confirmed 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 indicated you were 30
available this is to offer additional negotiating dates as follows:
April 12, 2011at 4:30pm
April 14, 2011at 11:30am.
________________________________________________________________35
From: Linda Vannoni
Sent: Thursday, March 03, 2011 10:47 AM
To: Patrick J. McHale
Cc: nness@seiu1199ne.org40
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:
45
3/23/11 at 11:30 am
4/12/11 at 5:30pm
Both at NEAT Market place.
50
These dates are acceptable.
JD(NY)–08–13
23
Linda Vannoni
Vice President
District 1199 NE/SEIU
(860)-549-1199
5
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 Southpoint and Connecticut 10
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 15
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 10:00 am to 8:00 pm for
that date as the time. McHale responded that on March 15, Respondent could meet at 1:00 pm
and then in another email notified Vannoni in response to her requests that Respondent could 20
meet at 11:30 am on any day that it agreed to start at 1:00 pm, including March 15. Vannoni
apparently assumed incorrectly that McHale, from these email exchanges, Respondent could
meet on March 15 at 6:00 pm and that is why she “confirmed” that date. She was mistaken in
that assumption as McHale had only agreed to meet on March 15 at 1:00 pm or 1:30 pm and
not at 6:00 pm as Vannoni proposed.25
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 participated in the sessions. The
Union also had various employee members of its bargaining committee present, who also 30
contributed to the discussions.
Vannoni, on behalf of the Union, presented and explained the Union’s proposal for a
successor agreement. The proposals included sixty cents per hour wage increases on all rates
and minimums each year of the contract, some changes in seniority, increases in full-time 35
positions, plus a number of changes relating to Respondent’s medical plans, primarily related to
employees’ eligibility for medical coverage. The Union proposed that employees, who work 20
hours on average a week in a three-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
three-month period, shall be eligible for full-time insurance for the following month. The expiring 40
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 45
Union was interested in making more employees eligible for health insurance benefits and
proposed this exchange in eligibility. This problem, according to Vannoni, became exacerbated
when Respondent reduced scheduled hours for a number of employees, resulting in some
cases, in reductions in medical insurance eligibility. As noted above, this resulted in the Union’s
arbitration demand, discussed above, where the Union felt that these reductions were in 50
retaliation for the Union having to agree to its proposals to change medical coverage in the 2009
mid-term negotiations. The arbitration was still ongoing at the time the negotiations started in
JD(NY)–08–13
24
March of 2011, and the Union explained that it was seeking to make up for these cuts as well as
to increase employee eligibility for insurance. A number of employee 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 employees’ medical
coverage and how unfair it was that employees not be eligible for medical coverage based on 5
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 10
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 insurance, even though a number of them would actually work more than 20 hours a week.15
Respondent had no questions about any of the Union’s proposals and made no
comment about the proposals.
Instead, McHale made a long “opening statement,” in which he stated that Respondent20
appreciated the hard work that the employees perform and that their work is greatly valued by
Respondent. However, McHale observed that the State of Connecticut is bankrupt and
Respondent cannot expect any additional funding, which it has not received for the past three
years. Thus, while Respondent was about to make proposals that employees would view as
extremely concessionary, they were necessary and were not reflective of the fact that 25
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% of Respondent’s costs
are personnel related and that Respondent had lost between $3.5 and $6 million dollars a year
over the three years of the past contract and hasn’t received any more funding.30
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 35
increases in wages, less 1%. Respondent also proposed, as it had in 2009, freezing longevity
pay, eliminating shift differentials 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 subcontracting only if affected 40
employees be offered continued employment with Respondent or the contractor.
Article 17, Insurance and Pension received considerable discussion by McHale. He
emphasized that Respondent was facing substantial increases in medical costs and added that
he represented a number of unionized agencies, including HARC in Hartford, whose employees45
were envious of the medical benefits 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 50
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%,
JD(NY)–08–13
25
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 Respondent agrees to
provide employees with the same insurance plan terms as it offers to non-union employees.
Respondent proposed four options for employees for medical coverage. The first option 5
was the Core HMO plan, wherein employees would still pay the same current monthly premium
rates of $40-$80 but with higher co-pays 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 co-pays as the current plan, but employees would pay 100% of the
increased cost in their monthly premiums. Option three was the existing POS plan, with an 10
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
deductible from 75% to 67%.
McHale also stated that health insurance changes need to be negotiated and agreed to 15
by July 1 and that Respondent was facing premium rate increases of 19%. 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 20
at 5:30 pm. 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.25
Respondent introduced evidence and testimony from James Jones, Respondent’s vice-
president of finance and administration, describing its financial condition and its reasons for
making the proposals that it made, particularly concerning health coverage. The primary source
of Respondent’s income is funding from the State of Connecticut. Since 2008, the state had 30
provided “level” funding (no increase or decrease) to Respondent 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.35
Respondent maintains a large endowment fund, which consists primarily of bequeathed
gifts from families of disabled clients serviced by Respondent. The fund is overseen by
Respondent’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 40
weighted at 60% in equities and 30% in fixed investments. Based on advice from the investment
fund, the Board utilizes a policy that established that 4.625% 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 45
“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 50
July 1, 2009 to June 30, 2010, the fund held $90 million in liquid assets. That year the assets
were $75 million due primarily to fluctuations in investment value. In 2007, the funding value
JD(NY)–08–13
26
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 disbursements from the fund, the amounts
received by Respondent from the fund has increased each year since 2007.
5
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 dollars,
respectively. These deficits resulted from increasing expenses, primarily escalating costs of
medical insurance, in the absence of revenue increases. In 2008 and 2009, Respondent
reduced operational deficits by eliminating and consolidating programs and eliminating from 10
non-unit positions.
In 2010, Respondent reduced its deficit from $6.6 million to $4 million dollars by, in part,
making staffing and scheduling changes.
15
As noted above, these scheduling changes and reductions in hours resulted in the
Union’s grievance, which was sent to arbitration. 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 scheduling20
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 a million dollars again due to
the increase in medical costs, which went into effect on July 1, 2010. Respondent again25
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 employees chose to switch to this plan, even with the
incentive of Respondent agreeing to fund 75% of their deductible.30
In early March of 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 report, sent to Respondent on March 1, showed that Respondent35
faced increases of 18-19% in costs for the plans, with an 18.3% increase for Oxford, the
incumbent carrier.
Jones then prepared Respondent’s budget projections for the fiscal year, which
incorporated the anticipated 18% increase in healthcare costs.7 This document also projected 40
an operational deficit of $6.6 million for fiscal year 2012, an increase of $2 million over the $4.5
million deficit then begin projected for fiscal year 2011.
Jones shared this information with the members of Respondent’s negotiating team in
preparation for the pending negotiations. Meanwhile, Jones was continuing to negotiate with the 45
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
insurance costs that was being project.

7 An anticipated raise from $7.9 million to $9.3 million in healthcare costs from the prior year.
JD(NY)–08–13
27
While, as noted above, the evidence disclosed that Respondent did have the option of
increasing the contributions from its endowment fund in order to be reducing these operating
deficits, 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 “imprudent” to increase the percentage of money from the endowment fund.5
It was in that context that Respondent formulated its bargaining 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.
10
In this connection, Jones testified that the costs of medical coverage in Respondent’s
budget covers both unit and non-unit employees, who are both covered by these medical plans
with identical costs to employees. Approximately 60% of Respondent’s employees are in the
bargaining unit. Thus 60% of the increased cost in medical coverage was attributable to unit
employees.15
According to Jones, there was no discussion among Respondent’s team of separating
unit and non-unit employees in terms of medical coverage since Respondent had always
included both unit and non-unit employees, including management, under the same medical
plan and preferred to continue that practice.820
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),25
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. Additionally, between fiscal years 30
2009 and 2011, the value of Respondent’s endowment fund grew from $69 million 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 million to $171 million
and unrestricted endowment funds grew from $20 million to $69 million. Respondent also
maintains a $4 million line of credit that can be used to deal with emergent financial35
circumstances.
Finally, Respondent’s financial statements and Jones’s testimony 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 40
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 operating expenses
included depreciation on $7.8 million worth of property, including 36 homes, which were
donated at no cost to Respondent in 2011.10

8 I do note, though, that in 2009, when it first implemented the HDHP plan, it did so only for
non-unit employees since the Union had not agreed by the July 1, 2009 deadline to offer
bargaining unit employees 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 Corporation for Independent
Living for these payments until fiscal year 2011, at which time, Respondent took ownership of
Continued
JD(NY)–08–13
28
By the close of the March 23 negotiation session, the parties had agreed on April 12 for
an additional date. However, McHale, 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:5
From: Patrick J. McHale
Sent: Thursday, April 07, 2011 5:31PM
To: Linda Vannoni
Cc: Gayle Wintjen10
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.15
When we met on March 23, 2011 in our first and only session to date we
provided you with eight additional dates for negotiations. 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 20
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 25
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 30
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
employees 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 35
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 40
when the Union will be available for negotiations 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.45
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
workforce is great and treats its workers with respect. However, costs are increasing, revenues
_________________________
the properties.
JD(NY)–08–13
29
are not, and Respondent needs to find ways to reduce costs with the least impact on the
employees.
Vannoni responded that the workforce had already undergone cuts in the past and that
Respondent has sat on resources, including the endowment fund, and uses money on 5
technology, GPSs, etc. rather than medical benefits. She added that there has been four years
of Respondent making expenditures at the expense of the workforce.
The Union submitted four new written proposals dealing with disciplinary action,
vacations, unpaid leaves of absence and substitutes. The latter proposal dealt with medical 10
insurance in that it proposed to expand medical coverage to substitute 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.15
Vannoni asked McHale for a response to the Union’s proposals 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 20
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 Respondent.25
McHale stated that medical insurance would increase by 18% and that Respondent can’t
afford an 18% increase. 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 30
replied to that comment that employees at other agencies 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 Respondent’s employees pay.
McHale then distributed a two-page document that compared the financial difference35
between the existing plans and Respondent’s proposed new plans. The document is set forth in
Appendix A.
The parties discussed and reviewed these documents. Vannoni had several questions
about the plans and the benefits, and McHale answered them. McHale stated that the new 40
plans are the same with the same providers and same benefits but different co-pays 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 45
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 50
problem, “We’ll get you whatever you need.”
JD(NY)–08–13
30
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 co-pay for each high diagnostic test, such as an MRI.
In between the two sessions, Respondent 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. 5
The broker, consulting with the insurance company, informed Respondent that it would reduce
the co-pay from $35 to $30 and eliminate high diagnostic test co-pay if the plan reduced
payments for durable medical equipment from 100% to 50% of the costs. Therefore,
Respondent’s proposal on April 12, in the form of the documents discussed above, incorporated
these changes and reduced the co-payments from $35 to $30 and eliminated the high 10
diagnostic costs while adding the reduction in payments for durable medical equipment.
McHale explained to the Union that Respondent cannot afford an 18% 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’s15
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 renewal as its current plans “expire on June 30th.”
20
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.25
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 30
increases in costs in a multi-year 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 increase the number of full-time
positions, and McHale said that Respondent cannot agree to that proposal.35
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 40
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 negotiations in Hamden, Connecticut
at the Construction Engineers Union Hall, which would be at no cost to Respondent, and the 45
parties would meet at 11:00 am at that location and on May 3 at the Neat Market Place.
The parties met in Hamden on April 27 as scheduled. Vannoni 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 50
on its medical plan proposals. The parties then reviewed the Respondent’s medical proposals,
and McHale explained that Respondent had tried to find a plan that would allow unit employees
JD(NY)–08–13
31
to continue paying $40 and $80 per month, even with the 18% increase. McHale explained the
increased costs to employees in premiums if they elected to continue $40 and $80 co-pays. He
emphasized that the plans had the same medical networks of doctors and would go through the
same carrier.
5
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 10
Union needed a greater level of specificity 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 15
April 27, 2011, which reads as follows:
April 27, 2011
Donna Shears, Human Resources20
Oak Hill
120 Holcomb Street
Hartford, CT 06112
Fax (860) - 769-6562
25
Dear Ms. Shears--
The Union is submitting this second request for the following information in
electronic format, where available. The information provided will be used by the
Union to continue to advocate at the Capitol for increased funding that could lead 30
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) represented by District 35
1199 at your facility that includes the following:
 Wage rate
 Regularly scheduled hours per week
 What type of health insurance plan/ plans they are enrolled in and their 40
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 45
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 qualify for each insurance benefit. Please indicate 50
where there is a difference in cost to an employee based upon their status as full
JD(NY)–08–13
32
or part time, and what that cost difference is, if any
Example- Dental insurance: 75 employees eligible; 43 employees 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. Respondent’s representatives 5
seemed surprised by the Union’s assertion that it had made a previous request for some of
these 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 10
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. 15
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 provided the answers, which reveal that 241 employees were 20
enrolled in the single HMO plan, 168 family HMO, 4 employees single HDHP, 6 on family HDHP
and that 137 unit employees elected no coverage.
McHale stated that the POS plan offered is the same as in the past but no unit
employees selected that plan.25
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 Respondent know, and
Respondent would make Wertsching available.30
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 bargain with insurance
agents. However, Vannoni stated that she added McHale “can bring whoever you want. I can’t 35
tell you who to bring. You can’t tell me who to bring.”
The parties then talked about the HDHP plan, which the parties referred to the HSA plan
since that is the funding mechanism for the plan. Vannoni explained that the employees still
have reservations about the high deductible plan and wanted Respondent to fund 100% of the 40
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 45
different co-pays, 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 suggested rather than having co-pays increase from $15 to
$30 that the increase could be up to $20-$25.11

11 Subsequently, as will be discussed more fully below, Respondent did obtain a quote on a
Continued
JD(NY)–08–13
33
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 negotiator for the Union at these agencies, where similar 5
language was agreed upon.
Vannoni replied that Respondent had been able to maintain equivalent coverage for
employees in the past and that the Union 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 10
received new funding and it cannot continue 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.
15
At the close of the meeting, Vannoni asked what Respondent’s priorities were in
reaching agreement. McHale replied that all proposals were important but detailed the priorities
for Respondent. They included a new wage scale for new hires, eliminating shift differential,
freezing longevity and most importantly, due to the time-sensitive nature of the issue,
healthcare.20
In that regard, McHale stated that Respondent needed to enroll employees in the near
future in order to assure continued coverage. He added that Respondent had responded to all
of the Union proposals.
25
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 hurdles 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.”30
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 Union.
35
McHale provided the Union with information that it had requested at the April 27 session,
concerning a quote for a modified Core HMO plan with lower co-payments than what
Respondent 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 40
increase in premiums for employees of $48.85 for individuals and $141.85 for family, which
would be an approximate 6% increase (as opposed to 18% in Respondent’s plan). However, in
order to pay these premiums, there would be increases for employees in co-pays for doctors,
hospitals and surgery. While McHale submitted this information to the Union concerning the
costs of this modified Core plan, which, as noted above, became known as the “Hamden Plan,” 45
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 information concerning its costs as the
Union had requested at the previous meeting.
_________________________
plan as suggested by the Union. This became known as “Hamden Plan” since it had been
suggested by the Union at the Hamden meeting.
JD(NY)–08–13
34
\
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
administrative costs for the HRA plan that the Union suggested might be an alternative.
5
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.
10
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 document stated that it wished to
retain the current “equivalency” language and the Union was “considering proposal of
employees of new medical plan.” Some of the Union’s proposals and its responses to 15
Respondent’s proposals were discussed, including 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 requested orally at the previous meeting for the plans proposed by 20
Respondent.
On May 6, Respondent’s insurance broker wrote to McHale and stated as follows:
May 6, 201125
Mr. Patrick McHale
Attorney at Law
Kainen Escalera and McHale, PC
21 Oak Street, Suite 60130
Hartford, CT 06106
RE: OAK HILL MEDICAL PLANS
Dear Pat:35
I am writing this letter in response to a question on the enrollment 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
options.40
Oxford Health Plans has indicated they would need enrollment forms (for
employees changing plan options or adding/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 avoiding any 45
disruption/inaccuracies in service.
Please let me know if you need further information.
Sincerely,50
Peter J. Wertsching
JD(NY)–08–13
35
Senior Vice President
On May 11, McHale wrote to Vannoni the following correspondence:
May 11, 20115
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni
Vice President10
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
Re: Oak Hill Negotiations15
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 20
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 negotiating 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 25
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 communications with you, Oak Hill has emphasized 30
that the premium cost for the Core HMO medical insurance benefits currently in
effect for bargaining unit employees will increase by approximately eighteen
percent (18%) effective upon renewal (July 1, 2011). As we have communicated
to District 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 35
means, of course, that we will need to find one or more alternative insurance
plans that cost no more than our current insurance 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 following June 30th. More 40
specifically, in order to continue to receive benefits under the current Core HMO
plan following June 30, 2011, employees who elect employee only coverage
would need to pay an additional $111.13 per month. Those who elect employee
plus dependent coverage would pay an additional $322.26 per month. As you are
aware, this information has already been shared with District 1199 during our 45
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 50
offering competitive coverage. In our negotiations to date we have proposed and
provided the Union with information regarding an alternative Core HMO Plan.
JD(NY)–08–13
36
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
length in negotiations, employee co-pays would increase for primary care and
specialist visits as well as emergency room and urgent care visits, hospitalization 5
stays and outpatient 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 proposed Core HMO Plan and the option elected, if any.
10
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 Union 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 15
make sure that our broker is available at that time, or any other time that is
mutually convenient. We are quite concerned that despite the dramatic increases
resulting from our current insurance renewal costs, at no time in negotiations has
the Union responded to any of our proposals regarding medical insurance.
Similarly, at no time has the Union offered any proposals of its own to mitigate 20
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 indicated that they need us to provide them with 25
insurance enrollments (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 decisions very soon regarding the benefit plans that will be
offered to Oak Hill employees beginning July 1, 2011 so employees will know the 30
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 35
proposals to address this serious issue related to medical insurance cost
increases in these negotiations. Also please let us know whether the Union
would be available 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.40
Sincerely,
Patrick J. McHale
45
Cc: Ms. Gayle Wintjen
Vannoni responded by email on May 12 that she was available 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 pm and on June 8 from 8 am to 50
noon.
JD(NY)–08–13
37
Vannoni responded back that 5:30 pm 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
committee. 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.5
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.10
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
information pertaining to our ongoing collective bargaining negotiations.” Wintjen had sent
McHale on May 12 a document entitled, “Response to Union’s request for information,” which 15
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 referenced.
These documents reveal that although Respondent submitted to the Union a significant number
of documents responsive to the Union’s request at that time, including 990 forms for four years,
union leave data and annual reports, it did not provide the Union with the SPDs for the current 20
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 supplied) of the information that is
responsive to your recent request for information.
25
I note that in Wintjen’s letter to McHale, which the Union apparently also received along
with the accompanying documents, Wintjen stated as follows in reference to Proposal 16
(Medical Insurance), “We have already provided the Union with the information concerning the
medical insurance.”
30
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 35
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 Union 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, co-pays would be changed, the amounts of which had been shared with the Union.
40
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.”
45
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 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 50
summaries of the two plans, presumably prepared by Respondent’s broker, which set forth the
prices, coverages, deductibles, co-pays, both plans in various areas, such as mental health,
JD(NY)–08–13
38
drug/alcohol, preventative care, in-patient and out-patient care and emergency care.
Further, as detailed above, after Vannoni received this information in 2010, she phoned
Wintjen and had some additional questions about some issues with regard to the two plans and
that Wintjen promptly provided Vannoni with responses. Thus, after receiving that information, 5
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, 10
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 received a copy of the Union’s
information request, dated December 10, 2010, for the SPDs. Wintjen was vague and uncertain 15
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 of 2010, she did
not recall if she told Shears, McHale 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 20
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 of 2010.
In fact, it appears from her testimony that she did not remember that fact in April of 2011 25
since she was asked by 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 believe
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 everything.” 30
Wintjen later added that she had “no recollection as I sit here today whether or not I reviewed
my computer files or previous documents to see whether or not I had previously produced 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 Respondent35
had sent this information to the Union, 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 of 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.40
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 provide SPDs for these proposed
plans. She replied that she had no recollection of doing that, explaining that Respondent didn‘t45
“know what plan we were going with at that point.” She did recall asking the broker to provide
answers to the Union’s requests 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 conversations 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 50
raised across the table on April 23, i.e., the requests for alternative plan information. Wintjen
was specifically asked by General Counsel whether she had asked the broker during these
JD(NY)–08–13
39
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, 5
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 information to Pat that I knew 10
we had in our control, the information 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 union's hand, I'm willing to
fall on my sword for that.
15
Shears, for her part, testified, as noted above, that she received (from Johnson) a copy
of the Union’s initial written request for the SPDs for the incumbent plans in December of 2010
and that she asked Rose Bolton, an employee under her supervision, 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 20
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 request 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 25
simply did not get to it before 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 replacement, Jane Jones, to see if the request had been 30
complied with by Respondent. Jones reported to Shears that there was no evidence that this
information had been provided. Shears testified 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 35
Respondent’s attorneys, which she believed was immediately turned over to the Union. Shears
was unsure of what particular information Jones provided to Respondent’s attorneys and was
not certain whether Jones submitted it to Wintjen or to McHale or both.
Shears further testified that she was present at meetings of Respondent's negotiating 40
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 uncertain as to specifically
what documents were provided or were discussed or whether they included SPDs for either the
incumbent or the proposed plans.
45
Shears was shown copies of documents ultimately submitted by Respondent to the
Union in September of 2011, which included 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 described by the insurance company as a certificate of
coverage and added that “the summary of benefits is pending approval and is not included in 50
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.
JD(NY)–08–13
40
In any event, these particular documents 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 5
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 10
response to the Union’s request on February 17, 2012 for a “more detailed summaries of the
medical 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, co-pays, deductibles, which detailed these matters for all types
of services for all four plans in effect. Although the record is unclear, it appears that these 15
documents were prepared by Respondent's broker in response to the Union’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 confirmed that these summaries were 20
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 25
the ultimately proposed and implemented 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.
30
On May 24, Respondent provided some additional information 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, Respondent 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, 35
including issues of paid administrative leave, extenuating circumstances and the issue of
Respondent’s proposal that employees contribute 10% to their pensions.
Vannoni then stated that the Union had presented new proposals at the last session but
that Respondent had not responded to them.40
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
explained 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 45
been through this. We get it.” Vannoni added that the Union understood 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 concerns. 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 50
Respondent on the Union’s proposal.
JD(NY)–08–13
41
Vannoni then suggested that perhaps the parties could resolve some less contentious
issues and the parties then talked about the Union’s proposals on grievance procedure,
workmen’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.5
McHale again asked Vannoni if the Union had counterproposals on medical insurance.
Vannoni repeated the Union’s prior stance. She asked again if Respondent had any prior
counters 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 10
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 counterproposals15
concerning administrative leave and temporary reassignments. After some discussion of these
proposals, Vannoni brought up the issue of snow days, which produced some additional
exchanges but no agreement.
McHale then asked once more if the Union had any response on medical insurance and 20
reiterated that medical needs to be decided by June 30. Vannoni replied that the Union had no
other proposals to make on medical insurance.
The parties then discussed additional dates for negotiations and agreed on June 1 and
June 20, plus a tentative agreement to meet on June 8 in an early start if possible. This issue 25
was to be confirmed later that day. Subsequent emails on May 25 confirmed that June 8 in the
morning as agreeable to both sides.
Wintjen issued a post-session memorandum entitled “Negotiations Updates\” to unit
employees, describing the events on the May 25 meeting. It is set forth below.30
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Negotiations Update
DA:· May 25, 201135
Oak Hill and 1199 met for our fifth negotiating session yesterday 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 40
Union also sought clarification of our pension plan proposal, which is to require
employees to contribute 1% of income to the tax deferred annuity plan in order to
get the 5% contribution from Oak Hill into the defined contribution plan. We
explained that this will assist us administratively. While there was concern
expressed that this was akin to "taking money away", in reality it means simply 45
putting the employee's own money into the employee'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 percent.
The Union stated that it would reject the proposal.
50
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
JD(NY)–08–13
42
deadline, when the plans expire. We explained that we need to be able to enroll
employees 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 stated that it was not interested in
addressing medical insurance until we reached agreement on some contract 5
language proposals.
We then spent some time discussing several proposals regarding the grievance
process, administrative leave, temporary reassignments and substitutes. In order
to properly respond to some of the issues raised, the parties caucused. We 10
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
rejected. We reiterated that the current health insurance plan goes away on June 15
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 20
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 began the session by asking
what proposals Respondent had for the Union. McHale replied that Respondent had been 25
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 repeated that the Union needed resolution on contract language.
McHale then stated that perhaps he had not been clear about the deadline.30
Vannoni, perhaps somewhat sarcastically, responded, “Deadline?”
McHale replied as follows:
35
Oak Hill is facing a $1.5 million increase in the cost of providing healthcare to its
employees. Coming to an agreement 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 40
plan documents in a timely manner.
Vannoni then proposed a series of counterproposals on various issues, which
engendered considerable discussion, but no agreements were reached.
45
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 negotiate today? You claim a big
deadline of July 1, 2011, but you haven’t brought us anything to caucus on.” McHale then 50
replied that there would be an 18% increase in July, and Vannoni answered, “We get it. We
know. We are here to bargain. Part of that is reaching an agreement on these issues and
JD(NY)–08–13
43
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
caucus on. Vannoni suggested that Respondent caucus and come up with some
counterproposals.
5
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
discussion of these counterproposals, the meeting ended after another brief caucus, and the 10
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 either the current or the
proposed plans at this meeting nor did the Union renew its request for these documents at the 15
meeting.
On June 3, Wintjen sent a “Negotiations Update” to unit employees, describing her
account of the events of the meeting. This document is set forth below.
20
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Negotiations Update
DA: June 3, 2011
25
Oak Hill and 1199 met for our sixth negotiating session Wednesday evening.
We opened the session by asking the Union if it had any responses to
counterproposals we had made last week regarding temporary reassignments
and administrative leave. We also asked if the Union had any counterproposals 30
regarding the health insurance proposals we made at our very first bargaining
session. The Union reiterated its position that it was unwilling to discuss the
health insurance proposal until the parties 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 35
the language proposals first. We stated that we believed it was most prudent to
address the health insurance proposals because the current health insurance
plan expires at the end of the month and we need to make sure employees are
enrolled prior to that expiration date. Notwithstanding our desire to discuss health
insurance, and to receive a counterproposal from the Union, the Union returned 40
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 modified other specified proposals. In addition, the Union sought 45
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 responses 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, 50
but we were able to offer a counterproposal regarding temporary reassignments.
We also rejected several of the Union's "exchange proposals" that would have
JD(NY)–08–13
44
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 efficiencies, so maintaining the status quo is simply not an
option.
5
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.
10
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, entitled “Oak Hill Negotiations.”
15
June 7, 2011
VIA EMAIL AND FACSIMILE
Ms. Linda Vannoni20
Vice President
NEHCEU District 1199, SEIU
77 Huyshope Avenue
Hartford, CT 06106
25
Re: Oak Hill Negotiations
Dear Linda:
When we last met in negotiations on June 1, 2011, Oak Hill's negotiating 30
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.35
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 40
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 approximately $1.5
million, or approximately 2.5% of bargaining unit wages, and Oak Hill has 45
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 50
insurance enrollments by no later than June 17, 2011 to ensure continuation of
employee coverage following June 30th. Despite our best efforts to get the
JD(NY)–08–13
45
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.5
In the absence of an agreement between the parties prior to the deadline for
notifying the insurance carrier of the plan offerings 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 10
contribute the same amount it is contributing presently for employees who elect
to enroll in the new Core HMO Plan and employees shall be responsible for
paying the remaining costs. Oak Hill will also offer the current HMO Plan and the
POS 15/25 Plan offering as buy-up options with employees who elect benefits
under those plans paying the additional costs for such benefits. Finally, Oak Hill 15
will offer the High Deductible Health Plan ("HDHP") with a Health Savings
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.
20
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
scheduled until the evening of Monday, June 20, 2011, which falls after the
deadline for providing the insurance carrier with enrollment data.25
Therefore, time is of the essence as the current medical benefit plans will expire
on June 30, 2011 and in order to allow employees to have benefits effective July
1, 2011, final decisions need to be made as to what medical plan benefits will be
made available and what employees will contribute to those benefits promptly so 30
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 35
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 identified and attempted to discuss with the Union throughout
our negotiations as referenced above.
40
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 45
insurance broker attend a negotiating session to discuss Oak Hill's proposed plan
options or if the Union has additional availability for negotiations aside from June
20th.
Sincerely,50
Patrick J. McHale
JD(NY)–08–13
46
On the same date, McHale sent several written counterproposals to the Union dealing
with several issues, including grievance procedure, discipline, assignment transfers and
promotions, hours of work and substitutes, but none dealing with health insurance.
5
The meeting on June 8 was held as scheduled at the Neat Center. Vannoni began the
meeting by remarking that Respondent had not shown a serious willingness to meet the
employees’ concerns, had rejected all of the Union’s proposals and made no substantive
movement. McHale disagreed with this assessment of the bargaining.
10
Vannoni then presented a document consisting of proposals, including a proposal on
health insurance. According to McHale, “This was good news.”
The proposals modified its previous wage proposal by requesting a 40 cent per hour
wage increase for the first year (retroactive to March 31, 2011, down from 60 cents) but 15
continuing 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 employees be covered by the
Union’s health and welfare plan with Respondent contributing 24% of gross payroll towards the 20
plan. The Union’s plan was to be provided for all employees, 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 co-pays and 25
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 increases to Respondent than the 18%
but would not be a 0% increase that Respondent was pressing. The Union did not know what
the additional premium costs of this proposed plan would be.12
30
Finally, the Union offered a modified HDHP plan, which enabled Respondent to recoup
money from employees, who resigned, thereby, addressing a concern previously raised by
Respondent but requesting that Respondent fund 75% of the deductible.13
The Union’s medical proposal was contingent on Respondent withdrawing all wage cut 35
proposals, including shift differentials, 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. Vannoni responded that the funds are considered a separate company
from the Union by law and that in order to obtain the information, the Union would need a written 40
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 45

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% of the deductible.
JD(NY)–08–13
47
July 1, 2011 in absence of an agreement prior to the deadline for notifying 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 Respondent did so.
McHale responded that the contract expired on March 31 and the Union must 5
understand that Respondent cannot sustain the status quo. Respondent’s operating deficit is
$3.9 million and 78% of its costs are wages and benefits. He added that if there is no agreement
on medical Respondent would need to 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 Respondent did not even know if the plan that the Union is offering 10
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.
15
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 additional costs and it was
beneficial to high users. A union employee replied that Respondent was trying to push
employees into HDHP, and McHale answered that he was not trying to push anything on 20
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 session was to be June 20.
25
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 1:00 pm, Wintjen sent an email to Respondent’s
broker, attaching the Union’s counterproposals in medical insurance. She asked him to review 30
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 coverage.
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:35
From: Patrick J. McHale [mallto:pmchale@kemlaw.com]
Sent: Friday, June 10, 2011 1:40 PM
To: Wertsching, Peter
Cc: Gayle Wintjen40
Subject: Oak Hill
Pete:
Can you tell me the effect on HMO premiums if we make the following changes 45
to our proposed new core plan:
1. Improve DME from 50% to unlimited to 100% to unlimited
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.50
Our posture in negotiations has been we can pay what we are paying now but no
JD(NY)–08–13
48
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.
5
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.
______________________________________________________10
From: Wertsching, Peter [peter.wertschlng@willis.com)
Sent: Friday, June 10, 2011 3:40PM
To: Patrick J. McHale
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise15
Subject: RE: Oak Hill
Pat,
The unlimited DME is worth 0.5%.20
I would suggest bring outpatient surgery down from $250 to $100 would get us
the other 1.4%.
Thoughts? 25
Pete
General Counsel presented evidence that McHale, despite requesting information from
the Union about its proposed fund plans, was familiar with these plans. Thus, McHale 30
represented 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 exchange, pertaining to the 35
Union’s proposals and the costs to Respondent. This exchange is as follows.
From: Wertsching, Peter [mailto:peter.wertsching@willis.com]
Sent: Tuesday, June 14, 2011 11:25 AM
To: Patrick J. McHale40
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill - 1199 Negotiations
Pat,
45
Here are the revised figures for the most recent union counterproposal.
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.50
The one outstanding question we have whether or not the per admission hospital
JD(NY)–08–13
49
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.
Please let us know if you need anything further.
5
Pete
_____________________________________________________________
From: Wertsching, Peter [peter.wertsching@willis.com]
Sent: Tuesday, June 14, 2011 1:49 PM10
To: Patrick J. McHale
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill - 1199 Negotiations
Pat,15
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 20
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 25
contributions.
Please let us know if you need anything further.
Pete30
From: Patrick J. McHale [mailto:pmchale@kemlaw.com]
Sent: Tuesday, June 14, 2011 11:39 AM
To: Wertsching, Peter35
Cc: Gayle Wintjen; James Jones; Vashalifski, Denise
Subject: RE: Oak Hill -1199 Negotiations
Thank you Pete.
40
Could you provide me with the dollar values of these increases 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 Respondent’s positions on the 45
Union’s counterproposals on medical insurance. This email is as follows:
From: Patrick J. McHale
Sent: Tuesday, June 14, 2011 4:02PM
To: 'Linda Vannoni'50
Cc: Gayle Wintjen
Subject: Oak Hill Negotiations - Medical Insurance Plan Options
JD(NY)–08–13
50
Linda:
I am writing with regard to the two medical insurance proposals the union offered
for the first time at our seventh negotiating session last Wednesday, June 8, 5
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 marketplace or
the cost of the union's two medical insurance proposals 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 today.10
Regarding the union's Option #1 proposal to replace the current 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 15
Fund. Based upon our calculations, if we agreed to the union'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 20
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 position 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 viable alternative.25
Regarding the union's Option #2 proposal to replace the current Core HMO Plan
with a new one with the terms as set forth in your written proposals dated June
8th, we have supplied this information to Oxford, our current insurance carrier,
and they have advised us that the product the union proposed, due primarily to 30
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 35
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 40
than it is paying presently for premium costs for these benefits and so due to the
unavailability of the plan design and the extra cost, Option #2 also is not a viable
alternative.
In the absence of any other proposals from the union that will allow Oak Hill to 45
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:
50
1. The New Core HMO Plan as proposed by Oak Hill. Employees who elect this
option will continue to contribute $40 per month ($480 per year) toward premium
JD(NY)–08–13
51
costs for employee only coverage and $80 per month ($960 per year) for
employee and dependent coverage.
2. The current Core HMO Plan as presently in force with employees who elect
such coverage paying the extra premium costs as compared with the premium 5
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 10
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 quarterly contributions to employees’ Health15
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 employee and dependent coverage.
We believe this offering will allow Oak Hill, at least for the next plan year, to 20
contribute the same amount it is contributing 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 addition premium costs
than they are contributing today.25
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 30
possible in order to get enrollment information to Oxford by as close to Friday,
June 17th as possible (the date Oxford 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.
35
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:
40
TO: All Staff
FR: Gayle Wintjen, General Counsel
RE: Medical Insurance Plan Offerings and Costs Effective July 1, 2011
DA: June 16, 2011
45
The purpose of this memorandum is to inform you of important 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 50
(bargaining unit and non-bargaining unit) who wish to have medical insurance
under one of the plans offered by Oak Hill must complete an election form during
JD(NY)–08–13
52
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.
Employees who do not currently participate in one of Oak Hill's medical
insurance plan offerings, or wish to make changes to their coverage, must also
complete an election form no later than June 30, 2011.5
During our current negotiations with District 1199, which began 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 10
increase amounts to an additional $1.5 million 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 15
that will allow Oak Hill to continue to offer benefits without significant cost
increases 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 continue to elect medical benefits and pay the same monthly
premium contributions that employees enrolled in the current HMO Plan pay 20
today. We also will continue to offer the current HMO Plan as a "buy up" plan
with employees who elect to stay in that plan paying any additional premium
costs associated 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 25
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
enrolled in the current HDHP pay today.30
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 35
will be able to access medical benefits at additional premium cost than they are
contributing today.
Attached to this memorandum you will find a chart which explains the plans we
expect to offer beginning July 1, 2011, a brief description of the benefits available 40
(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.45
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.
Unfortunately, due to the lack of an agreement on the medical insurance plan 50
offerings, we have no choice but to enroll employees at the last possible time this
year.
JD(NY)–08–13
53
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
information request. This letter is as follows:
5
June 17, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 60110
Hartford, CT 06106
Re: Information request for Oak Hill School
Dear Mr. McHale:15
With respect to bargaining over health care benefits, the Union is willing to
consider the Employer's current proposals, as presented to the Union in your
June 14, 2011 email. The Union would prefer the two Union proposed plans for
many reasons and the Union is willing to discuss those reasons across the table. 20
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 25
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, administrative manual or
procedures or policies which affect or relate to any of the four proposed plans.30
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 35
with respect to the processing 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, insurers or health care
plans.
40
In your email of June 14, 2011, you rejected the Union's proposals 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 45
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 insurance, Short term disability insurance, 50
Vision insurance, Life insurance. Please provide separate totals for each benefit.
JD(NY)–08–13
54
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 electronic format to Linda5
Vannoni at lvannoni@seiu1199ne.org as soon as possible.
Finally, I believe that continued negotiations on health insurance in the context of
an overall resolution of the entire economics of the contract can be fruitful. The
proposal by the Union regarding health care which was presented at our last 10
negotiating session was a starting point and I believe there is potential movement
on the Union's behalf on this issue. I remind you, while you state that your
proposals allow the Employer 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 15
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 parties 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 20
good faith.
Sincerely,
Linda Vannoni25
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 30
detailed above.
Upon receipt of this letter, Wintjen and Wertsching had an email exchange between
June 17 and June 21 concerning the Union’s information request, and Respondent requested
Wertsching to help provide some of the information. The exchange is set forth below:35
From: Wertsching, Peter (peter.wertsching@willis.com}
Sent: Friday, June 17, 20112:11 PM
To: Gayle Wintjen
Cc: Patrick J. McHale; James Jones; Yashalifski, Denise40
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 45
summaries, contact info, etc. and we will map out the cost information.
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. 50
Pete
JD(NY)–08–13
55
Peter Wertsching
Client Executive, Employee Benefits Practice
Willis of Connecticut LLC
185 Asylum Stree25th Floor5
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
10
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, 201115
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 20
provide the information electronically to Pat at your earliest convenience.
We appreciate your ongoing assistance with this matter.
Have a great weekend,25
Gayle
From: Wertsching, Peter (peter.wertsching@willis.com} 30
Sent: Tuesday, June 21, 2011 7:57AM
To: Gayle Wintjen
Cc: Patrick J. McHale; James Jones
Subject: RE: Info needed for Union negoations[sic]
35
Gayle,
We are working on the info.
Denise will send out the latest 5 years of premium and claim info by month which 40
is thru November 2010. We have requested the next update which should bring
us thru February 2011.
Pete
45
Peter Wertsching
Client Executive, Employee Benefits Practice Willis of Connecticut LLC
185 Asylum Street, 25th Floor
Hartford, CT 06193-3708
Direct: 869-756-7364, Cell: 860-259-7973, Fax: 860-756-736450
E-mail: peter.wertsching@willis.com, www.willis.com
JD(NY)–08–13
56
From: Gayle Wintjen [mailto:wintjeng@ciboakhill.org]
Sent: Tuesday, June 21, 2011 7:43 AM
To: Wertsching, Peter
Cc: Patrick J. McHale; James Jones5
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 10
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.15
Gayle
Gayle C. Wintjen
General Counsel20
Oak Hill
Phone. 869.769.382.7
Fax: 869.769.3831
Email: wintieng@ciboakhill.org
25
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 observations about Respondent's view
of the bargaining and the Union’s information requests. McHale’s email is as follows:
30
From: Patrick J. McHale
Sent: Monday, June 20, 201112:23 PM
To: Linda Vannoni; Linda Vannoni
Cc: · Gayle Wintjen
Subject: 2009 IRS Form 550035
Attachments: 2009 IRS Form 5500 6-17-11 0166.pdf
Linda:
I am writing in response to your letter of July 17th. 40
I have attached the most recent Form 5500 which you requested 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 obtained we will 45
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 50
shared with the Union as early as March 23, 2011 at which time we explained the
significant premium cost increase Oak Hill was facing effective July 1, 2011 and
JD(NY)–08–13
57
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 additional
information about our proposal and also regularly asked if the union wanted our
insurance broker to attend any of our negotiating sessions to answer any 5
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 interested in viewing a variety of
data regarding medical insurance costs. Again this Information will be provided to
you as it is available. In the meantime we look forward to meeting with you this10
evening when we hope we can reach a settlement on the terms of a successor
contract to the one that expired on March 31, 2011.
Patrick J. McHale
15
On June 20, the same day of the parties’ negotiations session, 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 conditions of employment of unit
employees by altering cost of employee medical benefit premiums, co-pays and other payments
for medical, dental and health benefits, which changes will occur effective July 1. The charge 20
further alleges that Respondent violated Section 8(a)(1) of the Act by threatening employees
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 pm. Vannoni began the 25
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.
30
McHale responded that the parties had met eight times and that they had repeatedly
explained that Respondent lost $3.5 million to $6 million in revenue per year and that 78% of
Respondent’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% of their 35
insurance while Respondent’s employees contribute between 5-7% for coverage. He continued
that Respondent cannot continue to operate with shortfalls. He recognized 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.40

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 employees 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 implemented changes to
employee health benefits on July 1 without first bargaining with the Union to a good faith
impasse in violation of Section 8(a)(5) of the Act.
JD(NY)–08–13
58
Vannoni disagreed, asserting that the Union had made several 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 5
the Hamden session and the information shared by Respondent revealed that this plan would
have cost only 6.8% 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 co-pays 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 10
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 co-pays under Respondent’s proposals
and that employees should not have to bear the cost of Respondent’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. 15
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 20
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 $8,000 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 25
million (2010) to $6.5 million in 2008. McHale added that the changes proposed by Respondent
do not come close to saving $3.5 million deficit and Respondent 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 endowment and has used this 30
money in the past to offset not getting 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.
35
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 40
transfers, snow days and medical certification.
After the discussion concluded, McHale asked Vannoni if the Union had an economic
proposal.
45
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 Respondent illegally implemented medical benefit changes and has not provided
information as to the costs of the Union’s medical proposal and the Union needed a detailed
account of insurance costs.50
McHale responded that the parties had been negotiating since March, the Union made
JD(NY)–08–13
59
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% 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 disagreed with Respondent’s calculations and again asked for the 5
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% of the cost of family insurance.10
Vannoni asked about cuts other than in the bargaining unit. McHale replied that health
insurance cuts are across the broad and applies to all non-bargaining personnel. He reiterated
that the Union has not offered one counter that would save Respondent money.
15
Vannoni responded that it Respondent would move off its wage cuts, the parties could
reach agreement.
McHale repeated that the Union’s counterproposal on medical was too costly.
20
Vannoni then stated that the Union had filed an unfair labor practice charge with the
Board, alleging that Respondent illegally implemented medical plans and the employees were
electing new plans under protest. She handed Respondent a letter, dated June 20, to this effect,
as follows:
25
June 20, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 60130
Hartford, CT 06106
Re: Unfair Labor Practice filed against Oak Hill School
Dear Mr. McHale:35
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 benefits. The Employees have been advised by the Union
to elect a new plan, under protest, in order that they have necessary medical40
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 relevant federal labor law.
On behalf of all bargaining unit members the Union reserves the right to continue 45
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.
50
Sincerely
Linda Vannoni
JD(NY)–08–13
60
Vice President, NEHCEU
District 1199, SEIU
McHale explained that the Core plan proposed retained the same contribution if
employees so elect and the parties discussed these amounts.5
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 10
plans, it was an act of intimidation and employees are signing up under duress.
Vannoni mentioned that Respondent based its cost on an additional plan that costs 6.8%
more, and McHale urged the Union to make a comprehensive proposal.
15
A caucus was called. After the caucus, there was some discussion 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.
20
McHale responded that Respondent had no counter proposals 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 25
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.”
30
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 prepare responses to the Union’s
requests.35
Vannoni stated that the Union’s calculations are not consistent with the data Respondent
has provided and that the parties will meet again once Respondent produces the information
that the Union is requesting.
40
Wintjen, in her post-session summary of the meeting to employees, stated as follows.
“There is nothing in our contract or the law that requires Oak Hill to absorb the $1.5 million
increase 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.45
From: Patrick J. McHale
Sent: Wednesday, June 22, 2011 10:51 AM
To: Linda Vannoni
Cc: Gayle Wintjen50
Subject: Experience Information and Calculation of Cost of 1199 Health and
Welfare Plan Proposal
JD(NY)–08–13
61
Attachments: Oak hill experience.pdf
Linda:
In response to your request of last Friday I have attached the claims experience 5
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 receive it I
will send it to you promptly.
10
At our negotiating session yesterday I explained the calculation Oak Hill used to
determine the expected cost of the proposal the Union made on June 8, 2011
(specifically the Option #1 proposal) that Oak Hill switch from offering its current
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 15
twenty houses of more per week”. This was another piece of information 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 20
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 medical
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 week25
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 Union requested that Oak Hill have priced out
on April 27, 2011. More specifically you were referring to the plan the union 30
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 35
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 40
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, 45
the Union made no proposals on medical insurance that would allow Oak Hill to
offer medical insurance 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 union indicated that it would not make any
such proposals at least until the union received the information it just requested on 50
June 17th. If the union has any such proposals to make please let us know as soon
as possible since, at least with regard to medical insurance, we are at the point
JD(NY)–08–13
62
where the insurance 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 5
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’s10
broker, who sent an email to Respondent on June 21, stating that the broker had received a
copy of the Union’s June 17 letter and that Respondent’s response 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 coverage.15
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 20
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,
occupational 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 25
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 following footnote is provided:
30
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, limitations, and exclusions which 35
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 correction services and supplies.40
Benefits are subject to final approval by the Department of Insurance and
therefore may be subject to change.
I note further that these documents submitted by Respondent (through its broker) were 45
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 50
approval for some of the SPDs from 2010.”
JD(NY)–08–13
63
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:5
From: Patrick J. McHale
Sent: Wednesday, June 29, 2011 12:29 PM
To: Patrick J. McHale, 'Linda Vannoni'
Cc: 'Gayle Wintjen'10
Subject: Oak Hill Negotiations
Linda:
As you know the Union has chosen not to reply to Oak Hill's offer as set forth in 15
my email of June 22nd below. Accordingly Oak Hill has no reasonable choice
under the present circumstances but to finalize the anticipated medical insurance
plan offerings that will be made available to employees beginning July 1, 2011 as
set forth in my prior communications with you both during negotiations and
through written follow-up communications.20
From the financial statements Oak Hill has provided the Union in our negotiations
to date, you are aware that Oak Hill's operating costs have exceeded its
operating revenues by anywhere 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 25
afford to operate with such significant operating deficits and needs to reduce its
operating costs since its revenues 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 30
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 resume negotiations on
each of the open issues in our current negotiations and offers the following dates
and times for future negotiations:
35
From: Patrick J. McHale
Sent: Wednesday, June 29, 2011 12:42 PM
To: 'Linda Vannoni'
Cc: 'Gayle Wintjen'40
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:45
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 acceptable to the Union for future 50
negotiations.
JD(NY)–08–13
64
Thank you.
McHale testified concerning the above emails and Respondent’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 5
expressed in the June 8 meeting) 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 objection to that optional plan if that’s
what the Union proposes. So we’re expressing a willingness to incorporate that plan.”10
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 15
of making a deal.
However, since the Union did not respond to this offer, Respondent did not believe that
there was any reasonable possibility 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 20
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 opportunity for further negotiations. We had offered our proposals. 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 25
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 30
subjects. He further was asked if the Union had agreed to something that Respondent could live
with, such as, for example, the Hamden Plan with some concessions, what would happen.
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 35
bargaining 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 40
that offer.
McHale also testified that it was clear from the bargaining stance of the Union that it
wanted a total agreement on the entire 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.45
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 50
Respondent believed the parties were at impasse (on healthcare) but adds that “we told them
what the consequences of where we stood.”
JD(NY)–08–13
65
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
benefits and looking at alternatives and that the Union was still waiting the receipt of additional
information from Respondent. Thus, she believed that further bargaining on medical benefits5
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 10
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 Union. Thus, according to Vannoni, this
is a recognition that Respondent knew that the Union was awaiting information requested and
that bargaining would resume and the Union could make some movement on medical at such
future bargaining.15
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 20
view, a proposal by Respondent. She adds that, in her opinion, 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 information 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 25
expected future sessions to be arranged, the information supplied and further bargaining on the
medical issue.
G. Respondent Implements the New Plans
30
On July 1, consistent with Respondent’s written communications 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 decided not to offer them to its employees because
Respondent did not want to incur the additional costs for premiums that would have resulted if35
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 co-pays or other out-of-pocket expenditures if they chose a plan with the same
premiums or in the case of the HDHP, reduced the amount Respondent funded to that plan from 40
75% to 67%.
H. Post-July 1 Events
No bargaining sessions were held until the end of August. They met twice in August, 45
once in October and on January 11, 2012.
On July 6, Vannoni sent the following letter to McHale:
July 6, 201150
Pat McHale
JD(NY)–08–13
66
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 06106
Dear Pat McHale,5
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 never refused to bargain over medical benefits. Additionally, at
our last bargaining session we indicated very clearly we believed the Union 10
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 proposal on the 15
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
convenience. Here is the information still needed as requested most recently in
my letter to you dated June 17, 2011:
20
 A copy of the summary plan description for the Oxford plan offered, as
well as the actual plan description for each of the plans offered, not just
the summary of benefits.
 A copy of any rules, regulations, procedures, administrative manual or
procedures or policies which affect or relate to any of the four proposed 25
plans.
 A cost breakdown of each plan to the employer for coverage for
bargaining unit employees only. The information provided by the
employer includes non-union personnel as well.
 A detail of the Employer's calculation explaining how the employer has 30
arrived at the figures that were reported to the Union for gross bargaining
unit payroll 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 35
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:
40
 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, anywhere between $296.70-$402.26/month for family rather 45
than the $40/month for individual only coverage or $80/month afforded for
Employee plus coverage 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 50
equivalent to the HMO plan which prior to June 30th, 2011 was afforded
JD(NY)–08–13
67
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.5
Each of these changes should cease and desist immediately.
Lastly, I write to inform you that I have heard from your colleague, Gayle Wintjen,
you are not available during the dates I offered yesterday. Therefore I have 10
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.
15
Sincerely,
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU20
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 25
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 previous or the new plans on that
date.30
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.35
The Union began this meeting by submitting a document entitled “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’s40
health insurance proposal. This modification, which as contingent 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% of scheduled payroll, down from 24%. 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 45
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’
plan whether at a rate of 27% or 24%.50
Vannoni informed Respondent that the Union was still missing the plan descriptions that
JD(NY)–08–13
68
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 Respondent's need to cut
costs.5
Vannoni protested that Respondent was proposing severe and drastic cuts and all the
savings were on the back of its employees. 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.10
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 concern for the Union’s
proposals.15
The meeting ended after some further discussion and confirmation 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 20
request for detailed descriptions of the implemented plans. The broker responded that he would
get them over to McHale. The exchange is as follows:
From: Wertsching, Peter [mailto:peter.wertsching@willis.com]
Sent: Friday, August 26, 2011 1:57 PM25
To: Patrick J. McHale
Cc: Vashalifski, Denise
Subject: RE: Oak Hill
Pat,30
We will get these over to you.
Pete
35
Peter Wertsching
Client Executive, Employee Benefits Practice
Willis of Connecticut LLC
185 Asylum Street, 25th Floor
Hartford, CT 06103-370840
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 45
To: Wertsching, Peter
Subject: Oak Hill
Pete:
50
I hope you have been well.
JD(NY)–08–13
69
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 information request. Is there any chance you can provide me with
those voluminous documents in advance of our next negotiating session on
August 31st?5
Best regards.
On August 30, Respondent sent to the Union a series of documents, which he described
as “the subscriber agreements for each of the plans offered at Oak Hill.” In fact, these 10
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.15
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 grievance process and substitutes. The parties also discussed a counterproposal
made by Respondent, deadline with administrative leave, but no agreements were reached.20
Vannoni asked if Respondent had any counterproposal to the Union’s wage increase
proposals. McHale replied that Respondent could not agree to any increases since there is no
increased funding or revenues. Thus, Respondent was holding to its previous pass through
proposals on wages.25
With respect to medical, McHale stated that Respondent already 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% of payroll, the cost is more than Respondent was paying. Further,
McHale observed that Respondent was in the middle of the year in its contract with the 30
insurance carrier and the Union’s proposal would force it to cancel that plan prematurely, which
would not be feasible or economical.
Vannoni then proposed that Respondent end the current contract at the year’s end to
join the Union’s plan and pointed out that 18% increases do not happen in the Union’s plan, 35
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.40
The parties then discussed some other language issues and returned to Respondent’s
request that the Union make proposals to lower Respondent’s costs. Vannoni replied that “we
have none. It is not our job to provide the employer with massive concessions; we will not shred
the fabric of the contract.” The meeting ended with a discussion of additional dates for meetings.45
On September 20, Respondent’s broker sent to McHale four documents, described as
“The Genene UHC/Oxford certificates.” McHale sent them to the Union on September 21,
stating 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.”50
The documents provided By Respondent were entitled “certificates of coverage” and,
JD(NY)–08–13
70
although it provided useful information to the Union according to Vannoni, it was not completely
responsive and was still not, in her view, SPDs, which would include the information that
Vannoni believes should be included 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 5
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 Rider,” “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 10
2.10,” “2810 Ct Freedom 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% wage increase for all unit employees, effective upon 15
the signing of a contract, contingent on agreement to all of Respondent’s outstanding proposals,
which included elimination of shift differentials, longevity increases and a new pay structure for
new employees.”
The Union representatives characterized this proposal as “you insult us,” again accused 20
Respondent of cutting its employees to meet its deficits and once more, urged Respondent to
consider the endowment.
McHale urged the Union to propose an alternative medical plan that is less costly to
Respondent.25
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.
30
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%
for the first year and 24% 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 individuals and $80
for families and reimbursement of 75% but with modifications in when payments would be made 35
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 exchange dates for future 40
meetings by email.
On November 11, the Union sent a detailed information request to Respondent, noting
among other things that the description of newly implemented plans provided by Respondent on
August 30 listed various benefits and charges in its “Freedom Access Plan,” which was 45
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 50
follows:
JD(NY)–08–13
71
November 11, 2011
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 6015
Hartford, CT 06106
Re: Information requests for Oak Hill School
Dear Mr. McHale:10
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 believe is necessary for making a full and comprehensive counter proposal
on medical benefits and for illegally implementing radical changes to Employee 15
benefits which you failed to negotiate with the Union in good faith. While at the
table for negotiations on these and many other unresolved 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.20
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 negotiations the Union has 25
requested copies of the medical and other benefit plans in effect prior to 6/30/11.
Of those benefits 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" 30
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, administrative manual or
procedures or policies which affect or relate to any of the four plans effective 35
prior to 6/30/11. (On September 21, 2011 the employer sent some plan details
for unspecified 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 benefit plans.)
3. Copies of all claims for coverage under the plan made by bargaining unit only 40
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 respect to the
processing of those claims and the payment of those claims for bargaining unit 45
employees only. The Union requests that any sensitive and confidential
information be redacted. The information provided to date on this is incomplete
and contains aggregate numbers including non-union personnel.
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 represented there in the attachment for50
"Life/AD&D, included only union employees or non-union as well, please specify.
Also, there was no plan description included for this benefit. Please provide it.
JD(NY)–08–13
72
6. As for the Short Term Disability information, please provide a list of bargaining
unit employees who enroll for this benefit and a list of which bargaining unit
employees that utilized this benefit, each year for the last 5 years. What was the
length of Employee benefits received? What was the total financial amount of
benefit received? What was the dollar amount the employer paid for each 5
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 10
if any of the information provided on June 22, 2011 and July 14th, 2011 is under
the title "LTD Provisions" are the benefits also provided to Union workers. Please
provide a copy of any listing or Summary Plan Description and plan documents
related which describe the benefits received by employees who enroll and utilize
this LTD benefit.15
8. For dental and vision insurance prior to July 1, 2011, please provide the
summary plan description for these benefits, 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 documents.
20
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-25
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.
30
Since the Employer has illegally changed employee benefits the Union
requests information regarding what Employees are now enrolled in. Please
provide the following:
9. A list of insurance benefit plans elected by employees that includes the 35
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 employees' insurance (for 40
medical and dental separately). Include 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 45
appears to be one plan "Summary of Benefits" for a plan called “Freedom Access
Plan" which matches nothing like what the Employer has proposed anywhere to
date. What is this document? What plan is this in reference to and why does it
not match the co-pay structure proposed under any of the plans "implemented"
July 1, 2011? Here are some examples from the one “Summary of Benefits" 50
provided the union on August 30, 2011:
JD(NY)–08–13
73
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/visit5
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 charge10
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 15
"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 visits, preventive or not
3) Specialist = $4520
4) Rx: $15/$25/$40
5) ER Visits = $150
6) Urgent Care = $75
7) Durable Medical Equipment = 50%
25
These two plans are not remotely the same. It is unclear what the August
30th SPD is for. Please inform me as to how it relates to the Employer's proposals
and implemented 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 30
"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 35
Union's Health & Welfare Fund. You admitted that you were not aware as to
whether or not the Employer, when comparing the Union'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 40
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:45
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 annually50
4) The cost to the Employer to provide Union Employees Dental annually
5) The cost to the Employer to provide Union Employees Vision annually
JD(NY)–08–13
74
6) The cost to the Employer to provide Union Employees Tuition benefits
7) What is 24% of Gross Union payroll for Employees regularly 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?5
Please provide this prior to our next session. I offer the following dates:
Dec 8th - morning or evening
December 13th morning or evening 10
December 15th morning or evening
Sincerely,
Linda Vannoni15
Vice President, NEHCEU
District 1199, SEIU
On December 1, Respondent granted a 2% wage increase to all non-unit employees.
The Union responded by distributing a flyer, labeling Respondent’s President Johnson as a 20
“grinch” for giving non-union staff a 2% 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 non-union.
On December 4, McHale sent the Union a series of emails and document responsive to 25
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 Respondent’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. 30
Additionally, Respondent provided, according to is broker, “2010 and 2011 plan summaries
along with the certificated providing details of the plan coverage.” 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-35
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.”40
According to Vannoni, this submission was the first time that the Union received detailed
summaries of coverage and benefits 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.
45
The parties met once more on January 11, 2012. As the Union had request, Respondent
passed out a written copy of its comprehensive settlement proposal, submitted at the prior
session, which, as noted, reflected a 2% 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.50
Vannoni stated that Respondent had still not fully complied with the Union’s information
JD(NY)–08–13
75
requests with respect to medical benefits and that some of the information provided was
confusing. She referenced the August 30 documents supplied by Respondent and noted that
the co-pays reflected in those documents did not appear anywhere else and did not match the
documents supplied on December 4.
5
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
Respondent made its cost analysis of the Union’s health and welfare fund.10
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%.
15
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.
20
The Union then modified its wage proposals to a 2% 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% increase to non-unit employees25
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 non-unit employees. McHale added that all employees had 30
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 health35
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 40
additional 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 discussed, with Respondent’s45
insurance broker and Jones being present to assist. On the morning of the meeting, McHale
sent the following email to Vannoni:
From: Patrick J. McHale [mailto:pmchale@kemlaw.com]
Sent: 2012-02-17 8:58AM50
To: Linda Vannoni; 'Gayle Wintjen'
Subject: RE: February 17th meeting
JD(NY)–08–13
76
Linda:
As we have expressed to you previously during our negotiations in order for Oak
Hill to be able to provide you with Oak Hill's "total costing of all the benefits which
would be equivalent to the Union's Health and Welfare Fund" the Union will need 5
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 Union's Fund and ask the Fund for it. Your 10
response is unacceptable 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 benefits you are offering as replacements for
the benefits we currently offer. Without such information Oak Hill cannot seriously
consider you proposal since we have no basis for comparison to the current 15
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".20
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 Respondent’s calculations of the Union’s plan’s costs.
25
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 previously sent were only for
informational purposes but that SPDs did exist and could be provided.
30
On February 24, 2012, Vannoni sent an email to McHale, attaching a letter, dated
February 17, 2012, but acknowledging it was not sent until February 24. The letter reads as
follows:
February 17, 201235
Pat McHale
Kainen, Escarla and McHale
21 Oak Street, Suite 601
Hartford, CT 0610640
Re: Information requests for Oak Hill School Insurance Benefits
Dear Mr. McHale:
45
With respect to bargaining over health care benefits, the parties met
recently on February 17th, 2012 to vet information 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 discussions information came to light as did further 50
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
JD(NY)–08–13
77
follow-up on those inquiries.
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 Union’s Health and Welfare Fund. You responded to those 5
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.
10
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 bargaining unit wages might fluctuate
from any snap shot of 12 months within the 2011-2012 year, if the fluctuation 15
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 bargaining 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 20
$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 responded that the information from that time was not available 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 25
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 explanation of how
the employer came up with the December bargaining unit numbers and why
these figures in your costing are so different from your earlier projections.30
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 marketing and to be used by the 35
Employer in employee enrollment meetings but were not a complete summary
and that another summary was available akin to the "mistakenly" 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.40
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
was not available. I am also interested in bringing the Union's Health & Welfare 45
Fund's Executive Director to further discuss any questions you may have
regarding the Union'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 50
an "unwillingness" 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
JD(NY)–08–13
78
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 explained, the
Fund is a separate organization, one regulated by the Federal Government under 5
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 offering to assist your getting 10
the information. You never submitted such a request. Please do not suggest that
the Union has been unwilling to provide detailed information just because 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.15
Since our February 17th meeting I met with the Executive Director of the
Fund, Cassandra Murphy, and asked her to join us. Please advise me by March
1st if you are interested in having her at the March 27th meeting. She is available
and intending to attending to come if you confirm you desire her to be present. I20
request that you prepare 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,25
Linda Vannoni
Vice President, NEHCEU
District 1199, SEIU
30
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.”
35
The attached documents were still not labeled SPDs but instead 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 implemented plans and are, in her view,
SPDs.
40
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 sessions since January and prior
to the trial herein, but that no agreements have been reached. No details of those meetings 45
have been placed into the record other than Vannoni’s testimony that at a meeting in June of
2011, the Union modified its health insurance proposal to require Respondent to contribute 20%
or 21% of gross payroll for participation in the Union’s plans.
III. Analysis and Conclusions50
A. The Information Requests
JD(NY)–08–13
79
It is well-settled that an employer is obligated to supply relevant 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 union 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 5
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 Inventory Service, 295 NLRB 1163, 1166 (1989).
10
The burden is on the employer, once relevance is established, to provide an adequate
explanation or valid defense to its failure 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 15
sought by the Union and the information alleged to have been unreasonably delayed in
submission, 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 20
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.25
Respondent contends that its conduct was not unlawful for several reasons, making a
number of contentions, which attempts to provide adequate justification for its failure to produce
the information requested in a timely and complete manner.
30
Respondent initially contends that no violation can be found because no documents
existed entitled “summary plan descriptions.” It further asserts that Vannoni conceded that she
used the terms “summary of benefits” and “summary plan descriptions” interchangeably and
there were a variety of things Respondent could send.
35
Further, while 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 40
any document from Respondent's insurer entitled “summary plan descriptions.” Therefore,
Respondent 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 45
“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 certificate of coverage or
summary of benefits, and Respondent’s witnesses attempted to comply with the Union’s 50
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,
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Wintjen, herself, used the term “SPDs” when replying to the Union’s requests for similar
information in May of 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 is5
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.10
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 15
the request for SPDs for the plans in effect for Respondent’s employees prior to July 1, i.e. the
current 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 20
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 25
this information. This request still did not produce an immediate 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 six months for Respondent to send anything in 30
attempted compliance with the Union’s request. 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.1635
I agree with General Counsel that the information supplied in June was not the
equivalent of SPDs as testified by Vannoni since it did not include the detailed information
included 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 40
for submission since it was six months after the request was made and nearly two months after
the request was renewed at the April 27 meeting. Monmouth Care, supra, 354 NLRB at 52 (six-
week delay unreasonable); Woodland Clinic, supra, 331 NLRB at 737 (absent evidence
justifying employer’s delay, seven-week delay found unreasonable and violative of the Act);
Beverly California Corp., 326 NLRB 153, 157 (1998) (two-month delay unreasonable).45

16 I note that the Union needed to send another written request, dated 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
information that she expected to be included, such as how many limits to the number of
chiropractic visits and what constitutes medical equipment.
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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 5
further points to the evidence that when the request was first received by Respondent in
December of 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 of 2011 and asked the employees about it and instructed her to get to it as soon 10
as possible. However, the employees did not do so and retired. Shears did not follow up further
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 15
Respondent’s witnesses testified, the request “slipped through the cracks.”
While those facts may establish that the delay was “inadvertent” at least until that time, it
cannot be construed as a legitimate or adequate explanation justifying the unreasonable delay.
Respondent is responsible for complying with the Union’s request and its officials were 20
responsible for making sure that it was complied with promptly. It cannot rely on the failure of
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 25
with this request when Wintjen and McHale were made aware of the Union’s request,
Respondent, nonetheless, did not comply with this request until June 20, nearly two months
later, an unreasonable delay in itself. Monmouth Care, supra; Woodland Clinic, supra; Beverly
California, supra.
30
As I have concluded above, these documents were not the equivalent of SPDs since
they did not contain the comprehensive description of benefits and coverage contained in the
“certificates of coverage,” not turned over to the Union until December. 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 35
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 requested information in its
possession since Respondent had sent documents on May 28, 2010 to the Union containing
information concerning the 2010 plans, which the Union used in ultimately concluding that the 40
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 45
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 description 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 50
she conceded that she was able to conclude in 2010, based on these documents that the plans
proposed by Respondent were “equivalent” to the plans then in effect, she also testified that she
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needed some questions answered orally from Wintjen about certain items not included in those
documents. Thus, it was not until later in June of 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 equivalent of SPDs, it would not 5
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 Respondent recalled or was aware
that such information had been supplied to the Union in May of 2010, six months before the
Union’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 10
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. U.S. 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).
15
Turning to the request for SPDs for the proposed and eventually 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 20
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 Union’s 25
request, made orally on April 12 and in writing on June 17. However, these documents entitled
“summaries of coverage” 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, 30
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 co-pays. Only the premiums charged would have been different, but
the Union already had information about the difference in premiums for the employees. While 35
McHale admitted that with respect to the fourth plan that Respondent proposed with different co-
-pays 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.
40
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
information first requested on April 12, was still untimely and would be violative of the Act.
Monmouth Care, supra; Woodland Clinic, supra, U.S. Postal, supra.
45
Subsequent to June 22, Respondent made several attempts to comply with the Union’s
request for the SPDs for the implemented plans but these attempts were not successful until it
finally produced the certificates of coverage for these plans in March of 2012 after Vannoni met
with Respondent’s broker.
50
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
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83
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 responsibility for the Union’s requests between Shears, Wintjen
and McHale, but this is Respondent’s responsibility to sort out such confusion, and it cannot rely 5
on that as an adequate justification for the failure for Respondent to submit to the Union the
information requested in a timely fashion. Indeed, even when Vannoni requested at the April 12
negotiation session the Respondent turn over SPDs or other documents for the plans that
Respondent 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 10
nothing 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 of 2012.
Respondent’s primary argument in defense of these complaint allegations is that the
Union had no need of the SPDs requested since the Union was aware of the benefits, 15
coverages and costs of the plans. Thus, Respondent contends that the documents 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 Union that the benefits, coverages, networks and other plan
details were unchanged from the plans then in place. The only differences were the increased20
premiums to be paid by employees if they chose to retain the same co-pays and deductibles or
if employees pay the same premiums the plans would have different co-pays 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 available under the new plans.
Therefore, Respondent argues that the Union had all the information that it needed in order to 25
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. However, when McHale made assurances to the Union, Vannoni replied 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 30
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, 35
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 untimely fashion.
In this regard, Respondent also argues that Respondent repeatedly offered to have its 40
insurance broker attend negotiations 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. Therefore, Respondent contends that the “Union should not be heard to
complain that it lacked information when it failed to entertain opportunities to obtain details and
ask questions of the insurance broker.”45
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 50
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
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broker in January of 2012 and ascertained that the certificates 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 of 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 5
with that obligation, and if that entailed bringing its broker to the negotiations, 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.
10
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% payment of gross salary of hours worked by Respondent and a second proposal for
a modified HMO with different co-pays and employee contributions to premiums, Thus,
Respondent contends that the Union was able to make these proposals on June 8 and that the 15
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.
20
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
matters of speculation that need not and cannot be decided. It is not necessary for the Union to 25
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.30
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; U.S. Postal, supra.35
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 employees’ terms and conditions of employment without first 40
bargaining to impasse with the employees’ collective bargaining representatives concerning the
contemplated changes. NLRB v. Katz, 369 U.S. 736, 743-747 (1962); Lawrence Livermore
National Security, 357 NLRB #23 slip op p. 3 (2011).
During negotiations for a collective bargaining agreement, an employer may not 45
unilaterally change any terms or conditions of employment without having bargained to impasse
for the agreement as a whole. E.I. DuPont De Nemours, 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.” Litton 50
Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991).
JD(NY)–08–13
85
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 absence 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 5
undermine the role of the Union’s collective bargaining representative effectively communicating
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), affirming 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 comprehensive analysis in support of the Board’s view on this issue. Judge 10
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 negotiation 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 empty “the duty of
bargaining of meaning and this in two respects: (1) by removing issues from the bargaining 15
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 several issues to be resolved (integrative
bargaining) rather than just one because it is easier in the former to strike a deal that will make 20
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 25
overall impasse in bargaining is required 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
Electronics, 320 NLRB 80, 82 (1995). The Board in Pleasantview Nursing Home, 335 NLRB
961, 962 (2001), enfd. 351 F.3d 747, 755-756 (6th Cir. 2003) summarized these exceptions as 30
follows:
In Bottom Line, the Board recognized only two exceptions to that general
rule: when a union engages in bargaining delay tactics and when economic
exigencies compel prompt action. Id. at 374.The Board has limited the economic 35
considerations which would trigger the Bottom Line exception to “extraordinary
events which are an unforeseen occurrence, having a major economic effect
[requiring] the company to take immediate action.” Hankins Lumber Co., 316
NLRB 837, 838 (1995). In RBE Electronics, the Board made clear that “[a]bsent a
dire financial emergency, economic events such as…operation at a competitive40
disadvantage…do not justify unilateral action.” 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 45
bargaining altogether, should be encompassed within the exigency exception. In
those cases, the employer will “satisfy its statutory obligation 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 50
be in good faith, need not be protected.” Id. at 82. See generally Naperville
Ready Mix, Inc., 329 NLRB 174, 182-184 (1999).
JD(NY)–08–13
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In defining the less compelling type of economic exigency, 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 proposed5
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 foreseeable. Id.
335 NLRB at 96210
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 proposals. General
Counsel contends, not surprisingly, that neither of the exceptions set forth in Bottom Line and 15
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 unilateral 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 continually20
avoiding or delaying bargaining.”
Respondent contends that the Union has insisted on avoiding or delaying bargaining
about medical insurance and relies heavily on Vannoni’s comment at one of the negotiation
sessions that if no agreement was reached on healthcare prior to June 30, Respondent could 25
be forced to continue the plans then in existence and absorb the $1.5 million dollar premium
increases. It asserts further than the Union’s strategy was to avoid bargaining over 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 proposed and that despite Respondent’s30
continued demand that healthcare needed to be discussed and agreed to prior to June 30, the
Union insisted that other issues be discussed first. Respondent also notes that the Union failed
to make a counterproposal to Respondent’s demands on healthcare until June 8, 2 ½ months
after negotiations began and a week before enrollment cards were due to enroll in the new
proposed plans. Finally, Respondent notes that the Union stated on June 20 that there would be 35
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 Respondent on
June 22, the Union scheduled no further negotiations and did not respond to Respondent ‘s
communication of June 22, offering to offer the “Hamden Plan” as an additional choice for
employees.40
I conclude, contrary to Respondent’s assertion, that these facts did not come close to
meeting the standard for pronounced delays and obstruction necessary to establish this
exception. 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 45
(1974) (union refused to meet for a period of 2 ½ months after demand for bargaining and prior
to contract’s expiration; such conduct found to be violative of 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 50
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
JD(NY)–08–13
87
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 request for over a month until January 28, 2011 when it
responded but proposed no dates for bargaining. The Union immediately proposed 16 dates;
Respondent rejected seven of them and agreed to nine of the Union’s dates. The Union then 5
agreed to only three of the original dates that it had proposed since Vannoni 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 Respondent had agreed to
meet on nine of these dates. Significantly, at this point, the Union was unaware of Respondent’s
proposals or that it was asserting “time sensitive” requirement for agreeing to healthcare. Thus, 10
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 15
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 Unions
December request to meet “as soon as possible” that was primarily responsible for the failure to
meet until March 25, more than three months after the Union’s initial bargaining request.
20
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 two-month period when Respondent agreed
to be available constituted unreasonable, obstructive or unlawful conduct.
Further, I reject Respondent’s contention that the Union refused to bargain over 25
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 Respondent 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 30
the give and take of true bargaining,” Grinnell Fire Protection, 328 NLRB 585, 585 (1999).
The Union’ position is perfectly lawful and not inconsistent with good faith bargaining. As
repeatedly explained by Vannoni, 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 35
left over for wage increase 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 implementations as explicated in the precedent detailed above.
Visiting Nurse, supra; Duffy Tool, supra. Thus, the Union was acting consistent with this view of 40
bargaining by demanding that Respondent 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 notwithstanding the Union’s statement, as
detailed above, that the Respondent must withdraw its other proposals for wage cuts before 45
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 Respondent. 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 50
still awaiting receipt of information from the Union’s funds concerning the Union’s proposed
plans when Respondent decided to implement its proposed on July 1. The Union also proposed
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88
another modified plan with different co-pays, which Respondent also rejected.
The evidence with respect to the “Hamden Plan” is somewhat 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 5
Respondent subsequently did and presented it to the Union. It is true that the Union never
formally proposed this plan not did it agree to accept it after Respondent 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 10
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 Respondent 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 15
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.20
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.
25
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 altogether, and indeed Respondent does not so contend.
30
Respondent does assert that the RBE Electronics’ modification of Bottom Line to
encompass “other economic exigencies” that while not sufficient to excuse bargaining, will
permit unilateral action, if the parties reach impasse on the matter proposed for change, RBE
Electronics, supra, 320 NLRB 81-82, is applicable here.
35
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 medical proposals in prior years, Respondent absorbed all the medical
insurance increases.40
Respondent further notes that in March of 2011, it became aware from its broker that
continuing the same medical coverage for employees would result in an 18% increase in health
insurance costs. Therefore, Respondent concluded that it could not continue to absorb the
significant increases in medical insurance as it had been forced to do in the past. Thus, this 45
was, in Respondent’s view, “an external event” beyond Respondent’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
uninterrupted insurance benefits for employees.” In that regard, Respondent argues that it faced50
a “time deadline to reach agreement on medical because the medical contract in place for all
1300 employees, union and non-union alike, would expire on June 30, 2011. Thus, Oak Hill
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could not wait until the entire contract was settled.”
I disagree. I agree with General Counsel’s contrary contention that the circumstances,
here, did not demonstrate an “economic exigency” due to the pending 18% increase in
insurance premiums as “time was not of the essence” and Respondent's action was not 5
“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 10
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 circumstances 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 15
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 expected event that occurred annually on that date; Board concludes 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 20
& Liquor Corp., 323 NLRB 848, 851-852 (1997) (concern over high insurance costs does not
warrant implantation 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 25
alleged economic exigency of increases in scrap rate on machine and unexpected high orders);
Pleasantview Nursing Home, 335 NLRB 961, 962 (2001), enfd. in pert part, 351 F.3d 747 (6th
Cir. 2003). See also IFG Stockton, 357 NLRB #118 ALJD slip op at 7-8 (2011) (inadequately
trained employees not an economic exigency under RBE Electronics, justifying unilateral
implementation of subcontracting).30
Furthermore, the anticipated premium increases cannot be characterized as an
“unforeseen” economic emergency, justifying 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 35
emergencies excusing unilateral action); Toma Metals, Inc., 342 NLRB 787, 801 (2004)
(employer’s 50% decline in revenue over six months not unforeseen emergency, justifying
unilateral decision to lay off employees); Hartford Head Start Agency, 354 NLRB 164, 185-188
(2009) (funding decrease from city not “unforeseen” and did not justify unilateral cuts in wages
and schedules).40
Here, the record establishes that there have been yearly increases in health premium
costs, often in excess of 10%. While the projected increase in 2011 was somewhat higher, 18%,
it still cannot be characterized as “unforeseen.” While Respondent’s effort to avoid bearing the
full brunt of this increase is understandable, it does not equate to an “economic exigency” under 45
RBE Electronics warranting implementation, absent overall impasse in bargaining.
Respondent argues, as noted, that it established that the alleged 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 contention overlooks 50
several factors. The increases that Respondent was referring to represent an 18% increase for
all of its employees since unit and non-unit employees are covered by the same plans. Thus,
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unit employees comprise 60% of the employees covered by the plans and non-unit employees
comprise 40%. Therefore, Respondent need not have implemented the new plans for the unit
employees but could have done so for the non-unit employees only, thereby, saving a
substantial amount of the proposed increases. Moreover, Respondent concededly had
substantial amounts of money in its endowment fund, which it could have drawn upon if it so 5
chose to help meet these additional costs. Although its witnesses testified that financial advisors
have advised it that exceeding the 4.6% 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 10
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 mischaracterization 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 Respondent.” Beverly Health & Rehabilitation Services, 335 15
NLRB 635, 637 (2001) (9.5% 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 deductions, co-payments and employee contributions
in employee health insurance plan violative of Section 8(a)(5) of the Act); Circuit Wise Inc., 308
NLRB 1091 (1992) (employer’s act of unilaterally increasing employee contributions to the new 20
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 25
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 deadline with the Union, and
possible agreement with the Union might have resulted in some agreement by the Union to 30
absorb some of the additional costs of premiums, thereby, saving Respondent 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 co-pays and deductibles or if they chose to continue to pay the
same premiums, substantial changes in co-pays and deductibles.35
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.40
I also conclude that even if I were to conclude that the pending 18% premium increase
was an “economic exigency” as defined by RBE Electronics, I would not conclude that
Respondent has established that an impasse existed on healthcare on July 1 when it
implemented the new healthcare plans that it had proposed during bargaining.45
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 817, 840 (2004). “An impasse exists at a given time when there
is no realistic possibility that continuation of discussions at that time could have been fruitful.” 50
NLRB v. WPIX, 906 F.2d 898, 901 (2nd Cir. 1990); Cotter & Co., 331 NLRB 787 (2000).
JD(NY)–08–13
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Further, an impasse cannot be found unless both parties believe that they are at the end
of their rope. Monmouth Care, supra; Essex Valley, supra at 890; Cotter, supra at 788; Larsdale
Inc., 310 NLRB 1317, 1318 (1993).
The question of whether an valid impasse has been reached is a “matter of judgment” 5
and among the relevant factors are the bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the importance of the issue or issues as to why
there is disagreement and the contemporaneous understanding of the parties as to the state of
negotiations. Taft Broadcasting, 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (DC Cir. 1968).
10
The Respondent as the party asserting impasse has the burden 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.15
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 20
Respondent implemented its proposals.
While McHale did testify in this proceeding that he and Respondent 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 25
an assertion either during bargaining or in its letters. Indeed, Respondent never even
characterized 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 counterproposals30
from the Union on the subject. However, that statement is not a declaration that Respondent
believed that the parties were at impasse 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.35
Additionally, and more significantly, whatever can be said about Respondent’s
contemporaneous understanding, it is crystal 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 Respondent asserted its intention to implement on July 1 was that 40
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 alleges that conduct to be 45
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 Union’s pace in agreeing to 50
concessions on healthcare, its frustration 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;
JD(NY)–08–13
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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 mod. 906 F.2d 1007 (5th Cir. 1990) (futility
not some lesser level of discouragement or apparent gamesmanship is necessary to establish
impasse).
5
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
Respondent’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 requested information relative to that 10
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 previously requested concerning the SPDs for both the old and new
plans.
15
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
possible in future, depending in part on what information respondent provided, substantial
evidence of finding no impasse).
20
That is so, despite the fact that the Union had not offered additional 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 unwillingness to move from its position and union had not
offered specific concession, but had declared its intention to be flexible and sought further 25
bargaining). See also Cotter & Co., 331 NLRB 787, 788 (2000) (no impasse, where union
attorney stated parties 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).
30
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 differential and longevity pay). Thus, the Union’s expressed
demonstration of flexibility on healthcare, if other issues were satisfactorily resolved, is strongly 35
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 40
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 45
atmosphere of the bargaining table.” NLRB v. Sharon Hats, Inc., 289 F.2d 628,
632 (5th Cir. 1961).
Id., fn.31.

17 Indeed, at the parties’ last bargaining session on June 20, the Union stated that it would
be willing to stay all night in order to reach agreement.
JD(NY)–08–13
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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 co-pays that
would have ultimately resulted in a 6.8% increase rather than the 18% increase in Respondent’s 5
proposed plan. Respondent provided that information to the Union, but, subsequently, the Union
never proposed 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 alternative to or in addition to
its proposed plan if employees were willing to absorb the additional premium costs. 10
Notwithstanding these offers, the Union still did not respond and did not agree to this offer, even
though its acceptance would have resulted 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
willingness to try to reach an agreement before the insurance contact expired on June 30, 15
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.
20
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 premium costs and presumably did not include an agreement by
Respondent to withdraw its wage cuts proposals as demanded by the Union. Thus, the Union 25
cannot be faulted for not promptly responding to Respondent’s offers. I emphasize again the
inaccuracy of Respondent’s assertion that the plans were “expiring” on June 30. In fact, they
were not expiring but would have continued (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 30
an impasse 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 35
to incorporate that plan as an alternative, Respondent would have agreed to it for the sake of
making 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 40
cost, that would have been perfect.” Thus, McHale’s testimony established 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 testimony that “we were 24
hours from the end,” so no further bargaining 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 45
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 continued insistence that

18 Notably, McHale did not use the term “final offer” either in his letters or at negotiations.
JD(NY)–08–13
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Respondent withdraw its regressive wage cuts before asking the Union to make concessions on
healthcare, this testimony only reflects that there was still bargaining 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 movement and agreement on healthcare if
Respondent would agree to withdraw its wage cut proposal, so bargaining could still have been 5
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, Respondent 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 10
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 impasse in bargaining rather than an impasse solely on healthcare as here. Further, in 15
ACF Industries, the union’s membership had twice voted to reject respondent’s offers, after
which respondent 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. 20
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 25
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
further (non-regressive) proposals to offer.
In contrast here, not only did the Union say that it was willing to make new proposals on 30
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 35
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 Respondent asserts impasse was reached, this precludes a finding of a good faith
impasse. E.I. DuPont & Co., 346 NLRB 553, 558 (2006); Monmouth Care, supra, 354 NLRB at 40
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 45
is detailed in Stone Container Corp., 313 NLRB 336 (1993) and amplified in TXU Electric Co.,
343 NLRB 1404 (2004).
This precedent holds that where a particular term of employment involves a discrete

19 Member Liebman dissented.
JD(NY)–08–13
95
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
5
These principles have been applied where the term and condition 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); Brannan Sand & Gravel, 314 NLRB 282 10
(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.
However, I disagree since the Stone Container exception applies only to first contract 15
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 applying the RBE Electronics and Bottom Line analysis concerning
exceptions to the overall impasse requirement before implementation. IFG Stockton, 357 NLRB 20
#118 (2011); Pleasantville Nursing Home, supra. While I note that RBE Electronics 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 exceptions to the
overall impasse rule. In RBE Electronics, the Board remanded the case to the judge to issue a
decision consistent with its opinion. No such decision issued thereafter, indicating that the case 25
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, 30
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 35
case concerned “a situation in which the status quo of a mandatory subject at the
commencement 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:
40
We agree with the opinion in Daily News of Los Angeles, 315 NLRB at
1244, that where, as here, a discrete recurring event occurs every year at a given
time, and negotiations 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 45
employer can carry out the changes even where there is no overall impasse as of
the time of the change.

20 Thus, under this precedent, it is not even necessary to bargain to impasse over these
specific changes. Notice to the union and opportunity to bargain is sufficient to permit
implementation.
JD(NY)–08–13
96
Finally, the Board concluded by again stressing that the “discrete, recurring event” theory is
limited to initial contracts by stating:
That bargaining subject of wages is not removed from the table by the 5
employer’s interim unilateral action…It provides a bargaining bridge to cross the
transitional period when an employer must deal with that event while engaged in
initial negotiations with a newly-recognized or certified union. The principle has
no broad application or disruptive potential.
10
Further in St. Mary’s Hospital, supra, where the Board applied the Stone Container
analysis to changes in healthcare coverage, the Board observed as follows:
As the judge found from the credited record, the Respondent gave the
Union timely notice of the prospective changes at issue and an opportunity to 15
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 20
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
disruption in coverage. Under these circumstances, the implementation did not 25
violate Section 8(a)(5) of the Act.
346 NLRB 776.
See also Rose Fence Inc., 359 NLRB #6, fn. 1 (2012) (applying Stone Container
analysis to a decision to lay off employees and stating it applies to negotiations “for a first 30
contract,” “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 collective bargaining relationship”). Id
Furthermore, even apart from the first contract issue, the Stone Container exception 35
applies only if the change in terms of conditions of employment was a discrete, recurring event,
a necessary requirement under Stone Container. Beacon Sales Acquisition d/b/a Quality
Roofing Supply Co., 357 NLRB #75 slip op p.1 (2011). In Quality Roofing,21 the Board rejected
an employer’s argument that is decision to implement changes in health insurance premiums
was privileged by Stone Container as follows:40
Further, there is no merit in the Respondent’s argument based on Stone
Container Corp., 313 NLRB 336 (1993), that it was privileged to implement the
health insurance premium increases because a bargaining impasse had been
reached on that issue. The employer in Stone Container had an established 45
practice of conducting an annual wage and benefit survey and implementing an
increase, 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

21 Quality Roofing was also a first contract situation.
JD(NY)–08–13
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under Stone Container.
Further, both St. Mary’s Hospital and Saint Gobain Abrasives, 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 5
changes in co-premiums, co-payments, 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 10
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 premiums increases from the insurance company and made changes in coverages
or plans, only where the Union consented.
15
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.
20
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 25
employer could lawfully require the employees 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 agreement or impasse with the union.30
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.
35
Therefore, Stone Container and its progeny provide no support 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 40
employees.
Conclusions of Law
1. The Respondent, Connecticut Institute for the Blind, Inc. d/b/a Oak Hill, is an employer 45
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, District 1199, New England Health Care Employees Union, SEIU, is a
labor organization within the meaning of Section 2(5) of the Act.
50
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
JD(NY)–08–13
98
Hartford, Connecticut as well as at various other facilities throughout Connecticut in the
following appropriate unit:
All regular full-time and part-time assistant teachers, day program workers, job
coaches, residential program workers, dietary workers and maintenance 5
employees, excluding instructors, head custodian, maintenance mechanic, head
cooks, guard, clerical employees, professional employees and supervisors as
defined in the Act
4. By failing to supply relevant information to the Union in a timely and complete fashion, 10
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.15
6. The unfair labor practices, described above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy20
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 25
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 Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical, 356 NLRB
No. 8 (2010).30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER35
The Respondent, Connecticut Institute for the Blind, Inc. d/b/a Oak Hill, Hartford,
Connecticut, its officers, agents, successors and assigns shall
1. Cease and desist from40
(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 representative of its unit employees. The unit is:45

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–08–13
99
All regular full-time and part-time assistant teachers, day program workers, job
coaches, residential program workers, dietary workers and maintenance
employees, excluding instructors, head custodian, maintenance mechanic, head
cooks, guard, clerical employees, professional employees and supervisors as
defined in the Act5
(b) Failing and refusing to bargain collectively with the Union by unilaterally
implementing changes in terms and conditions of employment of its employees employed in the
above described unit in the absence of an overall lawful bargaining impasse.
10
(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 effectuate the policies of the Act.
15
(a) Upon request of the Union, rescind the unilaterally implemented changes in
employees’ healthcare coverage, co-pays and premiums and restore the coverage, co-pays 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 20
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 25
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its Hartford, Connecticut facility 30
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 provided 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 employees are customarily posted. In addition to physical posting of paper 35
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 communicates with
its employees by such means. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent 40
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since July 1, 2011.

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–08–13
100
(e) Within 21 days after service by the Region, file with the Regional Director for Region
34 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 22, 20135
____________________
Steven Fish
Administrative Law Judge10
JD(NY)–08–13
APPENDIX
A
JD(NY)–08–13
JD(NY)–08–13
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this
Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail or refuse to bargain collectively with the New England Health Care Employees Union, District
1199, SEIU (the Union) as your exclusive collective bargaining representative by failing to timely and completely supply
information that is relevant and necessary to the Union’s performance as the exclusive collective bargaining representative
of its unit employees. The unit is:
All regular full-time and part-time assistant teachers, day program workers, job coaches, residential
program workers, dietary workers and maintenance employees, excluding instructors, head custodian,
maintenance mechanic, head cooks, guard, clerical employees, professional employees and supervisors
as defined in the Act
WE WILL NOT fail to bargain collectively with the Union by unilaterally implementing changes in terms and
conditions of employment of our employees employed in the above described unit, in the absence of an overall lawful
bargaining impasse.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL upon request of the Union, rescind the unilaterally implemented changes in unit employees’ healthcare
coverage, co-pays and premiums and restore the coverage, co-pays and premiums available to employees prior to July 1,
2011.
WE WILL make you whole for any losses that you suffered or expenses you incurred as a result of the unlawful
action taken against you, with interest.
CONNECTICUT INSTITUTE FOR THE BLIND, INC.
d/b/a OAK HILL
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
A.A Ribicoff Federal Building and Courthouse
450 Main Street, 4th Floor
Hartford, Connecticut 06103-3022
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3006