Consolidated Communications, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 2018

366 NLRB No. 152 (N.L.R.B. 2018)

366 NLRB No. 152
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
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Consolidated Communications Holdings, Inc. d/b/a
Consolidated Communications of Texas Com-
pany and Communications Workers of America,
AFL–CIO. Case 16–CA–196201
August 3, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On March 27, 2018, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Charging
Party filed exceptions with supporting argument, the Re-
spondent filed an answering brief, and the Charging Par-
ty filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. August 3, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member

1 The Charging Party has implicitly excepted to some of the judge’s
credibility determinations. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings. Accordingly, we
adopt the judge’s finding that the General Counsel failed to prove that
the Respondent violated Sec. 8(a)(5) and (1) of the Act as alleged in the
complaint. To the extent that the Charging Party argues that the judge
erred by failing to make findings beyond the scope of the complaint and
the General Counsel’s theory of the case, we reject that argument. See,
e.g., Smoke House Restaurant, 347 NLRB 192, 195 (2006), enfd. 325
Fed.Appx. 577 (9th Cir. 2009).
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 & Wil-
liams, 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 com-
plaint alleged that the employer (Consolidated or the Respond-
ent) 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 offic-
es 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The parties have a longstanding collective-bargaining rela-
tionship. The Union represents 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
(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 Octo-
ber 15, 2016 (the 2013–16 CBA). (Jt. Exh. 2.)
B. Issue
This litigation centers upon Consolidated’s failure to de-
crease 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 pre-
mium amounts and calculations. (Jt. Exhs. 1–2.) The General
Counsel (the GC) and Union insist that there is an established

1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations, and undisputed evidence.
2 There are roughly 150 unit employees; 90 in Conroe, and 60 in
Lufkin.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 prac-
tice, when it kept premiums constant during the 2017 open
enrollment period, when it should have actually decreased pre-
mium on the basis of the past practice. Consolidated denies the
alleged past practice, avers that premiums are based upon mul-
tiple factors, and insists that its actions were legitimate. It
explains that it had to maintain the status quo ante for premi-
ums 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
1. Collective-bargaining provisions health benefits
This chart summarizes how health benefits are described in
the parties’ contracts:
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
(Jt. Exhs. 2–5.)
2. 2017–2019 CBA negotiations
Between September 2016 and May 2017, the parties held 23
bargaining sessions.3 They 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 calculat-
ing premiums in the contract.
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 maintain the status quo

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.)
ante. The Union contends that this decision breached the par-
ties’ established practice, and that Consolidated was obligated
to decrease premiums at that time.
D. Disputed Evidence on the Past Practice
1. GC and union witnesses
Novark, who was Union president from 2008 to 2017,4 de-
scribed his understanding of the past practice as follows:5
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 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 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.
(Tr. 57.) He described his understanding of the past practice in
the following way:6
[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. . . .
(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 decrease,7 and explained that pre-
miums 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:8
[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 copays drive changes. The deductibles, the

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 posi-
tion, or offer supporting documentation.
6 He did not provide a detailed explanation of the basis for his posi-
tion, or offer supporting documentation.
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.
CONSOLIDATED COMMUNICATIONS HOLDINGS, INC. D/B/A CONSOLIDATED COMMUNICATIONS OF TEXAS CO. 3
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.
(Tr. 205–206.) She denied that claims have ever singlehanded-
ly controlled premiums. (Tr. 208.)
Brook Oliphant, an account executive for insurance broker
A.J. Gallagher, testified that she handles Consolidated’s ac-
count. She reiterated that multiple factors determine premiums,
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 pre-
mium would never be calculated solely on the basis of claims.
3. Credibility resolution
Two key credibility issues require resolution. The first in-
volves 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 made the statement at issue, while
she denied. I credit Novark, Franken and Edds; they were cred-
ible, 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 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 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 calcu-
late something as complex as their next year’s premiums. By
way of an extremely oversimplified example, if prior year
claims decreased by 5 percent and healthcare inflation rose by
20 percent, it is implausible that a rational employer would
blindly decrease premiums by 5 percent, while ignoring the 20
percent 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 contribu-
tion amounts, and clearly ignores the reported past practice.10
Third, it is highly likely that the GC’s witnesses are confusing a

9 A reasonable employer would logically seek to calculate premi-
ums in the fullest, most informed, and least risky manner that it possi-
bly could, which would translate into factoring in every relevant varia-
ble 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 under-
cuts the overall credibility of the GC’s case.
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 compro-
mised by the complete lack of any 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 math-
ematical 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 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 pre-
miums, and that there is no past practice to the contrary.
III. ANALYSIS
The GC failed to establish that Consolidated violated
§8(a)(5). The complaint alleged, as 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 health care premiums for employees in the unit.” (GC
Exh. 1.)
A. Legal Precedent
The Board has held that, “[u]nder the unilateral change doc-
trine, 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 bargaining to impasse
with the employees’ collective-bargaining representative con-
cerning the contemplated changes.” Lawrence Livermore Na-
tional Security, LLC, 357 NLRB 203, 205 (2011). The Act bars
employers from taking unilateral action on mandatory bargain-
ing topics such as rates of pay, wages, hours of employment
and 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 top-
ics. 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 forth within a collec-
tive-bargaining agreement. Garden Grove Hospital, supra.

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 fre-
quency that employees could reasonably expect the practice to
reoccur on a consistent basis. Palm Beach Metro Transporta-
tion, LLC, 357 NLRB 180, 183–184 (2011), enfd. 459 Fed.
Appx. 874 (11th Cir. 2012).
B. Discussion
Given that the GC (i.e., the party asserting the past practice
herein) held the burden of 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 mechani-
cal, single factor analysis alleged herein. It is also noteworthy
that, even if the GC’s version of a past practice had been ad-
duced, Consolidated’s decision to maintain the status quo ante
regarding a discretionary matter such as health insurance pre-
miums, while contract negotiations were pending, was never-
theless lawful under extant Board law. E.I. Du Pont de
Nemours, 364 NLRB No. 113, slip op. at 10 (2016) (discretion-
ary unilateral changes in health insurance benefits made during
bargaining pursuant to a past practice developed under an ex-
pired contract are unlawful).13 In sum, Consolidated did not

13 Hence, if Consolidated would have implemented the past practice
in the manner alleged by the GC during bargaining, it would have still
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 LAW
1. Consolidated is an employer engaged in commerce, with-
in the meaning of §2(2), (6), and (7) of the Act.
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 al-
leged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended14
ORDER
The complaint is dismissed in its entirety.
Dated Washington, D.C. March 27, 2018

violated E.I. Du Pont De Nemours. This catch-22 situation is untena-
ble.
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 pur-
poses.