Consolidated Communications, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2018

16-CA-196201 (N.L.R.B. Mar. 27, 2018)

JD–21–18
Conroe, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CONSOLIDATED COMMUNICATIONS
HOLDINGS, INC. d/b/a CONSOLIDATED
COMMUNICATIONS OF TEXAS COMPANY
and Case 16–CA–196201
COMMUNICATION WORKERS OF AMERICA,
AFL–CIO
Bryan A. Dooley, Esq., for the General Counsel.
Matthew Holder, Esq., (David Van Os & Associates, P.C.),
for the Charging Party.
David Lonergan and Amber M. Rogers, Esqs., (Hunton & Williams, LLP),
for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was heard in Houston,
Texas on January 18, 2018. The complaint alleged that the employer (Consolidated or the
Respondent) violated the National Labor Relations Act (the Act), when it unilaterally changed a
longstanding past practice without notifying the Communications Workers of America, AFL–
CIO (the Union). On the entire record, including my observation of the witnesses’ demeanors,
and after considering the parties’ posthearing briefs, I make the following
FINDINGS OF FACT1
I. JURISDICTION
At all material times, Consolidated, a corporation with offices in Conroe and Lufkin,
Texas has provided internet services. Annually, it derives gross revenues exceeding $100,000,
and provides services exceeding $5000 directly outside of Texas. It, thus, admits, and I find, that
it is an employer engaged in commerce, within the meaning of §2(2), (6) and (7). It also admits,
and I find, that the Union is a §2(5) labor organization.

1 Unless otherwise stated, factual findings arise from joint exhibits, stipulations, and undisputed evidence.
JD–21–18
2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The parties have a longstanding collective bargaining relationship. The Union represents 5
the following bargaining unit of employees (the unit):
All non-supervisory employees [employed by Consolidated] with the exception of
executive secretaries [at its Conroe and Lufkin, Texas offices].2
10
(GC Exh. 1; Jt. Exh. 1.) Their current contract runs from May 9, 2017 to October 16, 2019 (the
2017–2019 CBA). (Jt. Exh. 1.) Their prior agreement ran from October 16, 2013 to October 15,
2016 (the 2013–16 CBA). (Jt. Exh. 2.)
B. Issue15
This litigation centers upon Consolidated’s failure to decrease the unit’s health insurance
premiums during the 2017 open enrollment period. Although the 2017–2019 and 2013–2016
CBAs set forth the percentage that employees must pay towards premiums, these agreements are
silent regarding premium amounts and calculations. (Jt. Exhs. 1–2.) The General Counsel (the 20
GC) and Union insist that there is an established past practice, which requires Consolidated to
raise or lower a current year’s premiums solely on the basis of the past year’s claims. They aver
that Consolidated breached this past practice, when it kept premiums constant during the 2017
open enrollment period, when it should have actually decreased premium on the basis of the past
practice. Consolidated denies the alleged past practice, avers that premiums are based upon 25
multiple factors, and insists that its actions were legitimate. It explains that it had to maintain
the status quo ante for premiums during bargaining, and then properly re-assessed premiums on
the basis of its multi-factor analysis after bargaining ended. Its position is valid.
C. Undisputed Evidence 30
1. Collective-bargaining provisions – health benefits
This chart summarizes how health benefits are described in the parties’ contracts:
35
Contract
Term
Benefit Plans
Listed?
Employee Contribution
Listed?
Premiums
Listed?
Premium
Formula?
2013–2016
CBA
Plus, standard and
CDPHP plans
Yes, employees pay 5% to 40%. No No
2010–2013
CBA
Plus, standard and
CDPHP plans
Yes, employees paid 5% to 22.5%. Yes, contributions
described.
No
2007–2010
CBA
Plans unlisted Yes, employees paid 5% to 15%. No No
2004–2007
CBA
Plans unlisted No No No

2 There are roughly 150 unit employees; 90 in Conroe, and 60 in Lufkin.
JD–21–18
3
(Jt. Exhs. 2–5.)
2. 2017–2019 CBA negotiations
Between September 2016 and May 2017, the parties held 23 bargaining sessions.3 They 5
reached a tentative agreement on May 4, 2017, which was ratified on May 9. Regarding health
benefits, they agreed that: Consolidated would provide standard and high deductible plans; and
employees would contribute 6% to 25% towards premiums. (Jt. Exhs. 1–2.) Their bargaining
failed to incorporate a standardized methodology for calculating premiums in the contract.
10
3. Open enrollment for health benefits
Between December 2016 and January 2017, Consolidated held open enrollment. Given
that negotiations for the 2017–2019 CBA were ongoing, Consolidated maintained the status quo
ante menu of plans, contributions and premiums. It never notified the Union of its decision to 15
maintain the status quo ante. The Union contends that this decision breached the parties’
established practice, and that Consolidated was obligated to decrease premiums at that time.
D. Disputed Evidence on the Past Practice
20
1. GC and union witnesses
Novark, who was Union president from 2008 to 2017,4 described his understanding of
the past practice as follows:5
25
If we were doing good [and] … we were below what our numbers were last year,
… we would get a reduced rate. If we were doing bad, … we would get an
increase … at the end of the year.
(Tr. 29.) He averred that this has been the steady practice for 9 years. To this end, he recollected 30
that, in November 2016, “Rhetta [Bobo]… said it looks like … we hadn’t … used as much
money that year and our premiums would be going down.” (Tr. 31.) He said that, in January
2017, Bobo recanted this statement, and said that she had misspoken. (Tr. 35.)
Union Administrative Director Franken stated that, after a negotiating session, the 35
Union’s team had this exchange with Bobo regarding premiums:
They … ask[ed] Rhetta … if she knew … how much it was going to be reduced,
[and] … her response was she wasn’t sure how much it was going to be reduced.
40
(Tr. 57.) He described his understanding of the past practice in the following way:6

3 Stephanie Collier, Eddie Edds, Darrel Novark, and Mark Franken were on the Union’s bargaining team;
Rhetta Bobo, Mike Cannon, Kerry Wiggins and Kayla Martin were on Consolidated’s team. (Jt. Exh. 6.)
4 He is now a plant engineer and outside of the unit.
5 He did not provide a detailed explanation of the basis for his position, or offer supporting documentation.
6 He did not provide a detailed explanation of the basis for his position, or offer supporting documentation.
JD–21–18
4
[B]ased on … the plan experience for the various plans, and then whatever
percentage that the employees are required to pay contractually is applied to
whatever that premium is for the upcoming plan year ….
5
(Tr. 60.) Edds generally corroborated Novark and Franken. (Tr. 102.)
2. Consolidated’s witnesses
Former Labor Relations Director Bobo vigorously denied saying that premiums would 10
decrease,7 and explained that premiums were based upon several factors. Network Operations
Manager Cannon, another bargaining team member, denied witnessing anyone state that
premiums would decline.
Vice-president Vivian Schott described how premiums are set:815
[P]remium cost [has] … many factors…. [C]laims is … one of them…. [I]t’s
[also] trend and inflation…. It’s [also] … the prescription plan, … as more … use
specialty drugs…. It’s [also] the cost for Blue Cross/Blue Shield to handle the
claims. It’s [also] the cost of a stop loss…. [which] changes the cost …. The 20
copays drive changes. The deductibles, the out of-pocket, the in-network/out-of-
network costs drive claim costs. How many people go into the plan, [and] what
our assumptions [about] … who’s going to move … [after] we eliminated the plus
plan…. And then what type of people do you have? Do you have family coverage
… [or] single folks in there? Those [variables] all play a factor into the cost.25
(Tr. 205–206.) She denied that claims have ever singlehandedly controlled premiums. (Tr. 208.)
Brook Oliphant, an account executive for insurance broker A.J. Gallagher, testified that
she handles Consolidated’s account. She reiterated that multiple factors determine premiums, 30
including fixed costs, administrative fees, claims experience, stop loss coverage costs, plan
types, benefit design, health care inflation, and enrollment assumptions. She insisted that a
premium would never be calculated solely on the basis of claims.
3. Credibility resolution35
Two key credibility issues require resolution. The first involves Bobo’s alleged comment
that premiums would go down in 2017. The second involves the past practice itself.
Regarding Bobo’s alleged comment, Novark, Franken, and Edds each testified that she 40
made the statement at issue, while she denied. I credit Novark, Franken and Edds; they were
credible, had strong demeanors, and were consistent. Bobo was a less than credible witness, who
appeared to be more concerned with not conceding a point than providing a candid account. I
find, as a result, that Bobo initially made a statement, in or about November 2016, that 2017

7 She was employed by Consolidated for the prior 16 years; she left the company on December 29, 2017.
8 She has been employed by Consolidated for 12 years.
JD–21–18
5
premiums would decrease, and later recanted this errant statement.
Regarding the past practice itself, Novark, Franken and Edds testified that Consolidated
maintained a past practice, where it derived annual health insurance premiums solely on the basis
of the prior year’s claims. Novark indicated that this practice had been in effect for at least 9 5
years. Bobo, Schott, and Oliphant, however, denied any such past practice, and stated that
multiple factors, as opposed to a single factor, controlled premiums. Regarding whether
premiums are solely determined by the prior year’s claims, I credit Consolidated’s witnesses for
several reasons. First, it is implausible that a self-insured employer would simplistically use just
their prior year’s claims to calculate something as complex as their next year’s premiums. By 10
way of an extremely oversimplified example, if prior year claims decreased by 5% and
healthcare inflation rose by 20%, it is implausible that a rational employer would blindly
decrease premiums by 5%, while ignoring the 20% inflation increase.9 Second, Novark’s claim
that the alleged practice has been effective for 9 years is contradicted by the 2010–2013 CBA,
which sets fixed employee contribution amounts, and clearly ignores the reported past practice.10 15
Third, it is highly likely that the GC’s witnesses are confusing a correlated factor (i.e., past year’s
claims are loosely correlated with the next year’s premiums) with a singly conclusive factor (i.e.,
past year’s claims always and solely determine next year’s premiums).11 This confusion likely
caused the GC’s witnesses to erroneously assume the existence of a past practice, where no such
practice existed. Finally, the GC’s position is compromised by the complete lack of any 20
supporting documentary evidence. If the GC’s past practice allegations were accurate, it could
have easily corroborated the practice with documentation of the past claims, and then
demonstrated with pinpoint mathematical accuracy that the succeeding year’s premiums rose and
fell solely on the basis of the past year’s losses and gains.12 Such evidence, if it actually existed,
was highly accessible, inasmuch as the GC could have subpoenaed it, or the Union could have 25
made a connected information request. This glaring evidentiary lapse on a matter (as will be
discussed below), where the GC held the burden of proof eviscerates its position. In sum, the
credibility battle regarding the past practice was abundantly won by Consolidated. I find,
accordingly, that the record established that several factors, as opposed to an isolated factor,
determine the cost of next year’s health insurance premiums, and that there is no past practice to 30
the contrary.
III. ANALYSIS
The GC failed to establish that Consolidated violated §8(a)(5). The complaint alleged, as 35
noted, that Consolidated has “established a past practice of adjusting employees’ health
insurance premiums each January based on the total actual claims for the previous year,” and,
“[a]bout January 1, 2017, Respondent unilaterally and contrary to its past practice failed to adjust

9 A reasonable employer would logically seek to calculate premiums in the fullest, most informed, and least
risky manner that it possibly could, which would translate into factoring in every relevant variable that it could
identify (i.e., trends, inflation, medical costs, specialty drugs, population characteristics, plan benefits, plan design,
etc.).
10 This inconsistency on a key matter from a central witness undercuts the overall credibility of the GC’s case.
11 Bobo was likely confused in this manner, when she errantly stated that the decrease in last year’s claims
would cause premium rates to decrease. Moreover, this confusion is plausible given the complexity of the subject.
12 Such evidence would not have just been persuasive; it would have been virtually indisputable.
JD–21–18
6
health care premiums for employees in the unit.” (GC Exh. 1).
A. Legal Precedent
The Board has held that, “[u]nder the unilateral change doctrine, an employer’s duty to 5
bargain under the Act includes the obligation to refrain from changing its employees’ terms and
conditions of employment without first bargaining to impasse with the employees’ collective-
bargaining representative concerning the contemplated changes.” Lawrence Livermore National
Security, LLC, 357 NLRB 203, 205 (2011). The Act bars employers from taking unilateral
action on mandatory bargaining topics such as rates of pay, wages, hours of employment and 10
other conditions of employment. Garden Grove Hospital & Medical Center, 357 NLRB 653, 653
fn. 4, 5 (2011). It is well-established that health benefits are mandatory bargaining topics. See,
e.g., Mid-Continent Concrete, 336 NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002).
An employer’s regular and longstanding practices that are neither random nor intermittent
become terms and conditions of employment, even where such practices are not expressly set 15
forth within a collective-bargaining agreement. Garden Grove Hospital, supra. The party
asserting the existence of a past practice bears the burden of proof on the issue; specifically, the
evidence must show that the practice occurred with such regularity and frequency that employees
could reasonably expect the practice to reoccur on a consistent basis. Palm Beach Metro
Transportation, LLC, 357 NLRB 180, 183–184 (2011), enfd. 459 Fed. Appx. 874 (11th Cir. 20
2012).
B. Discussion
Given that the GC (i.e., the party asserting the past practice herein) held the burden of 25
proof on this matter under Palm Beach Metro, its connected unilateral change claim must fail.
Its witnesses, as noted, conclusively failed to establish the past practice. The record actually
established, in contrast to the GC’s allegations, that Consolidated uses a multi-factor actuarial
analysis to identify premium costs, as opposed to the mechanical, single factor analysis alleged
herein. It is also noteworthy that, even if the GC’s version of a past practice had been adduced,30
Consolidated’s decision to maintain the status quo ante regarding a discretionary matter such as
health insurance premiums, while contract negotiations were pending, was nevertheless lawful
under extant Board law. E.I. Du Pont de Nemours, 364 NLRB No. 113, slip op. at 10 (2016)
(discretionary unilateral changes in health insurance benefits made during bargaining pursuant to
a past practice developed under an expired contract are unlawful).13 In sum, Consolidated did 35
not violate the Act, when it maintained the status quo ante and retained its premiums in early
2017 while bargaining continued, and thereafter adjusted such premiums once bargaining ended
in accordance with its past practice.
Conclusions of Law40
1. Consolidated is an employer engaged in commerce, within the meaning of §2(2),
(6), and (7) of the Act.

13 Hence, if Consolidated would have implemented the past practice in the manner alleged by the GC during
bargaining, it would have still violated E.I. Du Pont De Nemours. This catch-22 situation is untenable.
JD–21–18
7
2. The Union is a labor organization, within the meaning of §2(5) of the Act.
3. Consolidated did not violate the Act in any manner alleged in the complaint.
On these findings of fact and conclusions of law, and on the entire record, I issue the 5
following recommended14
ORDER
The complaint is dismissed in its entirety.10
Dated Washington, D.C. March 27, 2018
15
Robert A. Ringler
Administrative Law Judge

14 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in §102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
,__e_# 4 Z,5,_