372 NLRB No. 29
COUNTY CONCRETE CORPORATION
372 NLRB No. 29
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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County Concrete Corporation and Local 863, Interna-
tional Brotherhood of Teamsters. Case 22–CA–
238625
December 16, 2022
DECISION AND ORDER
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN
AND RING
On September 17, 2021, Administrative Law Judge Jef-
fery P. Gardner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief.1 The General Counsel filed cross-ex-
ceptions and a supporting brief, the Respondent filed an
answering brief, and the General Counsel and the Charg-
ing Party each 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, cross-exceptions, and briefs and
has decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this Deci-
sion and Order.2
The issue in this case is whether the Respondent vio-
lated the National Labor Relations Act (the Act) by chang-
ing the administrator of its self-funded healthcare plan
without consent from the Union. The judge, relying on
Bath Iron Works Corp., 345 NLRB 499 (2005), affd. sub
nom. Bath Marine Draftsmen's Assn. v. NLRB, 475 F.3d
14 (1st Cir. 2007), found that the Respondent violated Sec-
tion 8(a)(5) and (1) and Section 8(d) of the Act. For the
reasons discussed below, we reverse the judge and dismiss
the complaint.
A. Facts
The Respondent, which operates out of multiple facili-
ties in New Jersey, is engaged in the production, sale, and
transport of concrete and other construction materials.
The Respondent voluntarily recognized the Union as the
1
The Charging Party attempted to file an answering brief. The
Board’s Executive Secretary rejected the answering brief by letter dated
December 16, 2021, as the brief did not comply with Sec. 102.46(j) of
the Board’s Rules and Regulations. We have not considered the noncon-
forming answering brief or the Respondent’s reply thereto.
2 We shall modify the judge’s recommended Order to conform to our
findings.
3 Because the relevant provisions of the contracts are identical, here-
inafter we will use “the contract” as a term encompassing all five agree-
ments.
exclusive bargaining representative of its unit employees
in 2009. There are five collective-bargaining agreements
between the Respondent and the Union, covering employ-
ees at the Respondent’s five facilities, that all contain sim-
ilar or identical language.3 Provisions covering employee
health insurance benefits are identical in all five agree-
ments. Specifically, “Article 39. Insurance Benefits”
states in pertinent part:
[Paragraph 1:]4 The Employer agrees to continue to pro-
vide health insurance for full-time bargaining unit em-
ployees at the same level of benefits as it provides to its
non-union full-time and management employees.
. . . .
[Paragraph 3:] The Employer reserves the right to
change insurance carriers at its discretion, and to make
changes that may be required under the Affordable Care
Act, provided that (i) any such changes shall apply the
same to all union and non-union employees and (ii) the
level of benefits shall remain substantially the same.5
The Respondent has maintained a self-funded
healthcare plan for approximately 20 years.6
A self-
funded healthcare plan is one in which the employer as-
sumes financial risk for providing healthcare benefits to
its employees, as opposed to paying an insurance com-
pany to fully sponsor a plan. Self-funded employers de-
sign their own health insurance plans, often with the help
of professional consultants. In designing these plans, self-
funded employers establish their own eligibility require-
ments, including spousal and family eligibility, as well as
copays, scope of coverage, deductibles, and other benefits.
Self-funded employers generally contract with third-
party administrators (hereinafter TPAs, “insurance admin-
istrators,” or “plan administrators”) to administer their
employees’ health insurance in accordance with the plan
the employer designs. The basic service provided by
TPAs is utilization review, which entails determining the
appropriateness of a claim, whether the claim should be
paid, or whether it should be reviewed in more detail be-
fore it is paid. TPAs may also handle paying providers on
behalf of the self-funded employer. However, the TPA
4 The paragraphs are not numbered in the contract. We number them
here for ease of reference.
5 Details of the Respondent’s self-funded healthcare plan regarding
eligibility, benefits, and copays were not bargained with the Union, but
the contract contained a nonexhaustive list of services covered under the
plan.
6 The facts and explanations of insurance concepts in this decision are
based on uncontroverted expert testimony and exhibits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
does not assume any financial liability for payment of the
claims, nor is it responsible for designing the employer’s
insurance plan, i.e., scope of coverage, eligibility, copays,
and other benefits. Additionally, while TPAs assist self-
funded employers in adjudicating claims, final decision-
making authority on whether to grant claims rests with the
employer. Some large insurance companies, such as Blue
Cross Blue Shield (BCBS), offer insurance administration
as a standalone service. Where an insurance company is
acting as a TPA for a self-funded plan, it may, as part of
that service, offer access to the same preexisting network
of providers available to individuals covered by the insur-
ance company’s own plans.7 But this does not mean that
participants in the self-funded plan are covered by a plan
offered by the insurance company providing TPA ser-
vices; they are still covered by the self-funded plan that is
created and funded by the employer, not the insurance
company.
In 2009, the Respondent contracted with Horizon BCBS
(hereinafter Horizon) to serve as the TPA for its self-
funded plan. Under this arrangement, Horizon provided
standard TPA utilization review and payment services. In
addition, the Respondent’s employees, for an additional
fee, could access the BCBS’s network of providers; to this
end, Horizon provided a directory for employees to locate
a network provider that would accept the Respondent’s
self-funded insurance plan.
In January 2019, the Respondent made several changes
to employees’ insurance. Those changes fell into two cat-
egories: substantive changes to the plan itself, and changes
to the plan administrator. With respect to the plan itself,
the Respondent, among other things, eliminated spousal
coverage and certain covered services under the plan.8
With respect to the plan administrator, the Respondent
switched its TPA from Horizon to Cypress. Significantly,
unlike Horizon, Cypress does not provide the additional
benefit of a built-in network of providers guaranteed to ac-
cept the Employer’s self-funded plan.9 Employees as-
serted that the change made finding providers, making
claims, and confirming coverage significantly more chal-
lenging. However, the Respondent, as the sponsor of the
plan, continued to have ultimate authority in designing its
insurance plan and determining whether and to what ex-
tent services were covered.
7 An insurance company’s preexisting network is a group of providers
who are legally bound to accept the insurance of patients covered by the
company’s plans and with whom the company has prenegotiated rates
for services.
8 As discussed below, although the judge’s decision and the parties’
briefs discuss these changes at length, the General Counsel’s complaint
alleged only that the conduct at issue here was the change in the admin-
istrator of the plan, not the changes in the healthcare plan itself. For this
The General Counsel’s complaint alleged that the Re-
spondent violated the Act by unilaterally changing the ad-
ministrator of its self-funded healthcare plan from Hori-
zon to Cypress. The judge found, applying Bath Iron
Works, that the Respondent made an unlawful midterm
modification in violation of Section 8(a)(5) and (1) and
Section 8(d) of the Act. In so finding, the judge reasoned
that the Respondent did not have a sound arguable basis
for its contractual interpretation because the healthcare
benefits it provided were no longer “substantially the
same,” as required by article 39, paragraph 3 of the con-
tract. For the reasons that follow, we reverse.
B. Discussion
Section 8(a)(5) and (1) and Section 8(d) of the Act pro-
hibit an employer from modifying terms and conditions of
employment established by a collective-bargaining agree-
ment during the agreement’s term without the union’s
consent. When an employer defends against a midterm
modification allegation by arguing that the contract did
not prohibit its challenged conduct, the Board will not or-
dinarily find a violation if the employer’s contractual in-
terpretation has a “sound arguable basis.” Bath Iron
Works, 345 NLRB at 502; see also American Electric
Power, 362 NLRB 803, 803 (2015) (applying Bath Iron
Works). Where, as here, the outcome turns on the resolu-
tion of two conflicting interpretations of the relevant con-
tract language, the Board does not seek to determine
“which of two equally plausible contract interpretations is
correct.”
Atwood & Morrill Co., 289 NLRB 794, 795
(1988).
As an initial matter, we emphasize that the complaint
here alleged only that the Respondent violated the Act “by
changing from Horizon Blue Cross Blue Shield to Cypress
as the third[-]party administrator responsible for adminis-
tering health insurance benefit payments to Respondent's
[u]nit employees, which eliminated [u]nit employees’ ac-
cess to a network of health care providers.” The sole ques-
tion for the Board, in turn, is whether the Respondent had
a sound arguable basis for its interpretation of the contract
as not prohibiting it from changing the TPA of its
healthcare plan from Horizon to Cypress without consent
from the Union.10
reason, the fact that the Respondent’s plan contained a management
rights clause is not relevant here.
9 Unlike Horizon’s TPA program, Cypress is not affiliated with an
insurance company. It exclusively provides benefits administration ser-
vices.
10 In reversing the judge’s decision, we agree with the Respondent that
the judge erred in adjudicating the lawfulness of conduct that was beyond
the scope of the complaint. In addition to finding that the TPA change
was unlawful, the judge also found that the changes to the healthcare
COUNTY CONCRETE CORP.
3
We find that, pursuant to the relevant provisions of the
contract, the Respondent had a sound arguable basis for its
interpretation of the contract. Article 39, paragraph 1 of
the contract provides that “the [Respondent] agrees to con-
tinue to provide health insurance for full-time bargaining
unit employees at the same level of benefits as it provides
to its non-union full-time and management employees.”
This provision pertains only to the parity of health insur-
ance benefits for union and nonunion employees, and the
Respondent’s change to the administrator of its healthcare
plan applied equally to both union and nonunion employ-
ees. Further, paragraph 3, in pertinent part, gives the Re-
spondent the right to change “insurance carriers” at its dis-
cretion provided that the level of benefits remains “sub-
stantially the same.” The Respondent’s interpretation of
paragraph 3—that it applies to changes in “insurance car-
riers” rather than insurance administrators—is entirely
reasonable because, as explained above, insurance carriers
and insurance administrators are, as a legal and practical
matter, different entities that perform different functions.
Accordingly, we find that the Respondent had a sound ar-
guable basis for its contractual interpretation, namely that
it could change its insurance plan administrator in this sce-
nario without the Union’s consent.
We reject the General Counsel’s argument that, under
these circumstances, the insurance carrier language in
paragraph 3 must apply to insurance administrators be-
cause “[i]f the [Respondent] is not the ‘insurance carrier’
and Horizon and Cypress are not carriers as referred to in
Article 39, then the Article has no actual meaning be-
cause no entity would be the insurance carrier.”11 We
find this logic flawed: even if the Respondent is not by
definition an insurance carrier, the provision would un-
doubtedly be relevant if, for example, the Respondent
plan’s coverage, copays, and premiums were unlawful. However, the
complaint specifically alleged that the Respondent violated the Act “by
changing from Horizon Blue Cross Blue Shield to Cypress as the [TPA]”
of its employees’ insurance plan. As explained above, changes in cover-
age, copays, and premiums are attributable to the Respondent’s changes
to its plan design, not to the TPA change. And because the complaint
only alleged that the TPA change was unlawful, the only question at is-
sue is the lawfulness of the TPA change, not the plan design changes.
We note that, while the Respondent raised the issue of the distinction
between the plan design changes and the TPA change in its post-hearing
brief, the judge did not address this distinction. Similarly, although the
General Counsel reiterates the position that the changes to the healthcare
plan design were unlawful and discusses those changes at length, she
does not address, let alone refute, the argument raised by the Respondent
in its exceptions that changes to the plan design were not alleged to be
unlawful in the complaint.
The incongruence between the complaint and the judge’s decision ap-
pears to stem from a misunderstanding of the insurance concepts at issue
here; specifically, the judge and the General Counsel appear to uninten-
tionally conflate changes to the plan design and changes to the admin-
istration of the plan. For example, the General Counsel states that under
transitioned from a self-funded plan to a fully-funded
plan. The General Counsel, in her brief, also presents
various alternative interpretations of the parties’ contrac-
tual language. But even if these contractual interpreta-
tions are plausible, the Respondent’s interpretation is at
least equally plausible, as set forth above. Under these
circumstances, we are not permitted to “pass on which . .
. contract interpretation[] is the better view.” Bath Iron
Works, supra at 503; see NCR Corp., 271 NLRB 1212,
1213 (1984) (“[W]hen ‘an employer has a sound argua-
ble basis for ascribing a particular meaning to his con-
tract and his action is in accordance with the terms of the
contract as he construes it,’ the Board will not enter the
dispute to serve the function of arbitrator in determining
which party’s interpretation is correct.”) (quoting Vick-
ers, Inc., 153 NLRB 561, 570 (1965)). For all of these
reasons, we reverse the judge and find that the Respond-
ent did not violate the Act.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. December 16, 2022
Lauren McFerran
Chairman
Marvin E. Kaplan,
Member
John F. Ring,
Member
the “Cypress plan,” there were changes in out-of-pocket co-insurance
payments and a contraction of benefits, and that Cypress “refused to
cover” certain services. However, the characterization of the Respond-
ent’s pre-2019 healthcare plan as the “Horizon plan,” and the post-2019
healthcare plan as the “Cypress plan,” is somewhat misleading. It is the
Respondent who designs its plan with respect to co-insurance payments,
deductibles, and services covered; as explained in full above, TPAs like
Horizon and Cypress are only responsible for administering the plan in
accordance with the parameters set by the Respondent. Similarly, the
General Counsel conflates the impact of the TPA change with the
changes to the healthcare plan more broadly in stating that “the 2019
transition to Cypress resulted in substantial decreases in benefit levels.”
The result of the transition from Horizon to Cypress was, in pertinent
part, a loss of network access. As explained above, benefit levels are an
aspect of the plan design, not its administration.
11 It appears that the judge implicitly found that the “insurance carrier”
language in par. 3 applies to “insurance administrators.” However, the
judge did not state any ground for his finding. Therefore, it is not clear
whether this finding is based on a belief that the insurance carrier lan-
guage encompasses TPAs or on a failure to understand that TPAs and
insurance carriers are distinct entities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MCFERRAN, concurring.
I join the Board’s opinion today. I write separately to
emphasize that the result here follows directly from the
way the complaint was pled and litigated, as an alleged
modification of the collective-bargaining agreement in vi-
olation of Section 8(a)(5) and (1) and Section 8(d) of the
National Labor Relations Act. Under current Board law,
there is a fundamental distinction between such contract-
modification allegations based on Section 8(d) and allega-
tions under Section 8(a)(5) that an employer made an un-
lawful unilateral change in terms and conditions of em-
ployment. That distinction was made very clear some
years ago in Bath Iron Works, 345 NLRB 499 (2005),affd.
sub nom. Bath Marine Draftsmen's Assn. v. NLRB, 475
F.3d 14 (1st Cir. 2007), which we apply today.
I believe that the Board should consider revisiting Bath
Iron Works in an appropriate case, to examine the power-
ful points made in then-Member Liebman’s dissent there.
But the Board is currently bound by this precedent. And
in deciding how to plead and litigate a case, the General
Counsel must take into account the legal framework es-
tablished by Bath Iron Works—whatever its merits. Here,
it is arguable that the General Counsel might well have
fared better by proceeding under a unilateral-change the-
ory, instead of (or in addition to) a contract-modification
theory. However, because the case is predicated entirely
on the allegation that the Respondent modified a particular
provision of the collective-bargaining agreement, this trig-
gers the application of the “sound arguable basis” stand-
ard. As we explain, the Respondent did have a sound ar-
guable basis for its interpretation of the agreement—and
that ends the case. In the circumstances here, while the
workers affected by these changes may have very good
reason to feel aggrieved, due process does not permit the
Board to go far outside the scope of the complaint in
search of a viable legal theory.
Dated, Washington, D.C. December 16, 2022
Lauren McFerran,
Chairman
NATIONAL LABOR RELATIONS BOARD
1 Cristina Von Spiegelfeld, a Board attorney, served as Courtroom
Deputy to assist with the Zoom technology during the trial, and is recused
from otherwise participating in the case.
2 Abbreviations used in this decision are as follows: “Tr.” for the
Transcript, “Br.” for party briefs, “GC Exh.” for the General Counsel’s
Michael P. Silverstein, Esq., for the General Counsel.
Brian P. Shire, Esq., for the Respondent.
Kenneth I. Nowak, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JEFFREY P. GARDNER, Administrative Law Judge. Pursuant to
the Board’s decision in William Beaumont Hospital, 370
NLRB No. 9 (2020), on November 5, 2020, I conducted a trial
via Zoom Government in this case, during which all parties were
afforded the opportunity to present their evidence.1 The com-
plaint (GC Exh. 1(c)),2 alleges that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing the insurance
carrier or third-party administrator for its self-funded medical
plan.
Respondent denied the essential allegations in the complaint,
and asserts that it was privileged to make the changes it made.
(GC Exh. 1(e)). After the trial, the General Counsel, Charging
Party, and Respondent all filed timely briefs, which I have read
and considered. Based on those briefs and the entire record, in-
cluding the testimony of the witnesses and my observation of
their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey corporation that manufactures
and supplies sand, gravel and ready-mix concrete at various
Northern New Jersey facilities, including East Orange, Fleming-
ton, Kenvil, Morristown, Landi, and Oxford, New Jersey. Dur-
ing the preceding 12-month period, it purchased and received at
these facilities goods and supplies valued in excess of $50,000
directly from suppliers located outside the State of New Jersey.
Accordingly, I find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It is also admitted, and I hereby find, that the
Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
Background
Respondent is a materials supplier to the construction industry
in central and northern New Jersey. Respondent delivers its
products to construction sites and residential homes. Its employ-
ees work in different facilities throughout New Jersey as drivers,
mechanics, laborers and heavy equipment operators. Local 863,
International Brotherhood of Teamsters (the Union) represents
approximately 125 of Respondent’s employees, and has since
2009.
Exhibits, “CP Exh.” for the Charging Party’s Exhibits, “R. Exh.” for Re-
spondent’s Exhibits, and “Jt. Exh.” for Joint Exhibits. Specific citations
to the transcript and exhibits are included only where appropriate to aid
review, and are not necessarily exclusive or exhaustive.
COUNTY CONCRETE CORP.
5
Respondent’s majority owner and President since 1978 has
been John Crimi, who testified at the hearing for Respondent.
Testifying at the hearing for the General Counsel were the Un-
ion’s Secretary-Treasurer Alphonse Rispoli and Union Chief
Steward Raymond Bonelli, who is also a unit employee. Health
Benefit Consultant Kevin Klemm also testified as an expert wit-
ness for the Charging Party.
There are multiple collective-bargaining agreements between
the parties that cover the facilities in East Orange, Flemington,
Kenvil, Morristown, Landi, and Oxford, New Jersey, and none
had expired when Respondent took the disputed action on Janu-
ary 1, 2019. The collective-bargaining agreements between Lo-
cal 863 and the Kenvil and Morristown ready-mix plants did ex-
pire shortly thereafter on January 15, 2019. The issues involved
here are the same for all the collective-bargaining agreements,
which share the following common language under “Article 39.
Insurance Benefits”:
“The Employer agrees to continue to provide health insurance
for full-time bargaining unit employees at the same level of
benefits as it provides to its non-union full-time and manage-
ment employees.
. . .
The Employer reserves the right to change insurance carriers at
its discretion, and to make changes that may be required under
the Affordable Care Act,3 provided that (i) any such changes
shall apply the same to all union and non-union employees4and
(ii) the level of benefits shall remain substantially the same.”
(Jt. Exhs. 1–5.)
The primary issue in this case is whether Respondent had a
sound arguable basis to believe that the changes made to the em-
ployees’ health care plan maintained substantially the same level
of benefits that were provided previously.
Healthcare Coverage Prior to 2019
Since before the Union began representing the bargaining
units in 2009, Respondent has self-funded its health plan, which
means it was responsible for paying all of the claims incurred
under the plan. Like most self-funded plans, Respondent con-
tracted with a third-party administrator (TPA) to handle the pro-
cessing and determination of health plan claims, and throughout
the periods that the Union’s collective-bargaining agreements
were in effect, Respondent’s TPA was Horizon Blue Cross Blue
Shield.
As a result of this arrangement, Respondent’s employees had
access to in-network health benefits through Horizon Blue Cross
Blue Shield. That meant there was a network of roughly 44,000
in-network doctors in New Jersey alone that employees could
use, as well as being entitled to in-network benefits at 6000 hos-
pitals nationwide, with access to over 600,000 in-network pro-
viders nationwide.
As a TPA, Horizon did not have any discretionary authority to
determine what medical services Respondent’s medical plan
covered. Respondent, as a self-funder, had the authority to de-
termine what medical services were covered under the medical
3 Respondent does not claim that any changes made were required
under the Affordable Care Act.
plan. Similarly, Respondent determined the annual deductibles,
copays, coinsurance, and wellness eligibility requirements.
Horizon did not assume any financial risk for the liability of
medical claims incurred by a plan participant under the plan.
Instead, under the administrative services agreement between
Respondent and Horizon (Jt. Exh. 15), Horizon would make ini-
tial determinations of eligibility for claims, and Horizon would
make payments to hospitals and physicians in accordance with
negotiated prices, and be reimbursed by Respondent. Horizon
offered Respondent discounts when its employees sought medi-
cal services from in-network providers.
In 2018, Horizon Blue Cross and Blue Shield administered
two plans for Respondent’s employees, a high plan and a base
plan. The difference between the two plans were the cost of de-
ductibles. In 2018, Bonelli had the high plan. The cost for his
then deductible was $500. In order to obtain the deductible, em-
ployees including Bonelli had to fulfill the requirements of a
wellness physical.
Prior to the collective-bargaining agreement negotiations in
2015, there was no high and base medical plan. Respondent im-
plemented a high plan and base plan for the 2016 plan year as
part of the initial CBAs with the Union. If employees obtained
a complete physical and completed the necessary paperwork in
2015, they would receive a discount on their 2016 in-network
deductible placing them on the high plan. The wellness program
was important for Respondent for its preventative purposes,
which helped manage costs.
It is undisputed that Respondent previously made various
changes relating to the high medical plan effective January 1,
2017. None of these changes were negotiated with the Union
prior to being implemented. The Union did not grieve any
changes made to the County medical plan in 2017. In 2018,
County made additional changes to the medical plan that im-
pacted the high plan and the base plan. Again, the Union did not
grieve the changes to the 2018 base plan changes either.
Respondent Notifies Employees of Impending Changes to their
2019 Medical Plan
In December 2018, upon the request of Respondent’s attorney
Hope Goldstein, Alphonse Rispoli met with Goldstein and
Crimi. At that meeting, Crimi expressed that he wanted to ex-
tend the contract set to expire on January 15, 2019, for an addi-
tional year and give employees a 25-cent raise. Goldstein also
expressed to Crimi that Respondent had high costs associated
with Horizon Blue Cross Blue Shield and therefore wanted to
make changes to the plan. He did not specify what those changes
might be, and did not identify any new providers by name at that
time. Rispoli refused to discuss any changes until the upcoming
contract negotiations, and Crimi agreed.
Nevertheless, without negotiating for changes, in late Decem-
ber 2018, Respondent distributed to employees with their
paychecks a one-page memo titled “County Concrete New Med-
ical/Rx Plan Highlights” that indicated their health insurance
would be changing effective January 1, 2019. (Jt Exh. 29.) The
memo identified “Cypress” as the new medical provider and
4 It is not alleged that any changes made applied differently to union
versus nonunion employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
“Magellan” as the new prescription drug plan provider, and pro-
vided contact telephone numbers and Group IDs for each.
This was the first mention of either of these two entities by
name. The memo did not include a summary plan description
(SPD) or a summary of benefits and coverage (SBC),5 nor did it
provide information regarding what the new benefit levels, co-
pays or deductibles would be. It instructed employees to call
Cypress and/or Magellan with any questions they may have
about their coverage, and to call their doctors in advance to have
them in turn call Cypress to confirm coverage.
Employees were surprised to see this change and asked Chief
Steward Raymond Bonelli if he knew anything about the
changes. However, this was the first time Bonelli was informed
that the employee’s health insurance would be changing the fol-
lowing year. Bonelli called Rispoli to ask about the document,
and Rispoli told him that he also did not know about the impend-
ing change to the medical plan.
Union Response to Changes in Medical Plan
After hearing from Bonelli, around December 28, 2018,
Rispoli called Crimi to inquire about the memo. Crimi re-
sponded, "I had to change the plan. We're losing money. I had
to change the plan." Rispoli reiterated that they should discuss
the changes during negotiations and asked about the document
and the changes it described. Crimi said he would send Rispoli
information regarding the changes, which Respondent maintains
were recommended to it by its insurance representative, “USI.”
Bonelli consulted with Rispoli about creating a petition to ask
the company to explain the new health insurance plan, which
they did. The first page was a letter to Crimi and Vice President
of human resources, Steve Parisi, asking for the information on
the new medical plan. (GC Exh. 4.) The second page was a lined
paper where employees could sign their names to show interest
in receiving additional information on the insurance, which
about 40 or fewer employees signed. The petition was handed
to Crimi and Parisi in mid-to-late January of 2019.
Around January 15, 2019, Rispoli met with union members to
get their proposals for the upcoming CBA negotiations. Over-
whelmingly, the biggest issue was the sudden change to the
health plan. Members still did not have additional information
regarding the changes described in the County Concrete New
Medical/Rx Plan Highlights, specifically regarding Cypress and
Magellan. They wanted to return to Horizon Blue Cross Blue
Shield.
The Union received numerous calls from stewards, members,
and their spouses with questions and concerns regarding the new
medical plan. But, Rispoli had not received a response or infor-
mation from Crimi regarding the information he requested from
Crimi during their late December phone call. On January 23,
2019, Rispoli wrote a letter (Jt. Exh. 9) to Crimi requesting in-
formation, including the "formal and official name of the insur-
ance carrier/company (the term insurance carrier will cover both)
or if not an insurance company, then of the TPA who now pro-
vides or manages health insurance. Please specify whether it is
an insurance carrier or TPA." The letter also requested the SPDs
for both the prior and new health plan, the provider network
5 The terms SPD and SBC are used interchangeably here.
available to employees and additional information about the
plan. (Jt. Exh. 9.)
Crimi responded in a letter dated January 28, 2019, informing
Rispoli that Respondent had been self-insured and claiming to
be the insurance carrier of all hourly and management employees
for the previous 18 years. (Jt. Exh. 10.) Crimi’s letter further
explained that Respondent had changed the administration from
Horizon Blue Cross Blue Shield to Cypress Benefit Administra-
tors. It promised that an SPD would be forthcoming, but did not
otherwise provide information about the provider network or
other information about Cypress.
On February 4, 2019, Rispoli sent a response letter to Crimi
regarding the change in insurance and reiterated the request for
information about, including another request for an SPD, which
still had not been provided. Rispoli also disputed the character-
ization by Crimi that Respondent was the insurance carrier for
the employees, arguing that being self-insured and being an in-
surance carrier are two separate things. (Jt. Exh. 12.)
First CBA Negotiation Meeting
The first CBA negotiation meeting was held on February 7,
2019. Crimi and Goldstein were present on behalf of the Re-
spondent, while Rispoli was lead negotiator for the Union. The
main topic was healthcare. Among other proposals, the Union
presented the Local 863 Health Plan. Shop stewards and the
committee of workers asked about the Cypress plan and ex-
pressed concern about not having online access to any infor-
mation regarding Cypress. Crimi stated that Respondent was
"working on it" and "working through it." Crimi told them not
to worry and that he would "take care of it." At this meeting,
Rispoli was handed two packets titled “Summary of Benefits and
Coverage” (SBC) which represented Cypress’s High and Basic
plans for Respondent. (Jt. Exhs. 21 and 22.)
February 13, 2019, Rispoli received a seven-page letter with
Respondent’s responses to questions regarding the health insur-
ance posed by Rispoli at the February 7 negotiation meeting. (Jt.
Exh. 14.) Rispoli compared Respondent’s answers to the packet
given to him during that meeting, and found inconsistent lan-
guage in the two sets of documents. Significantly, the SBCs re-
ferred to network coverage, but the February 13, 2019 document
said there was no network coverage in the new plan. After re-
ceiving the February 13 letter, Rispoli called Crimi and asked
about the discrepancies. Crimi responded that an incorrect SBC
had been sent and that a corrected version would be provided.
February 24, 2019 Informational Meeting Hosted
by Respondent
In or about mid-February 2019, Respondent’s front office
gave Bonelli a flyer to hang up on the bulletin boards of the
plants. (Jt. Exh. 32.) The flyer contained information regarding
a meeting to be hosted by Respondent on February 24, 2019. The
flyer also announced that Respondent would be introducing a
new service called Compass Professional Health services.
On February 24, 2019, the meeting took place, with over 40
employees in attendance. The stated purpose of the meeting was
for employees to learn about the new insurance benefits. Re-
spondent’s insurance representative USI’s Dennis Bartley gave
COUNTY CONCRETE CORP.
7
a slideshow presentation and took questions from employees. (Jt.
Exh. 8.) When asked about whether employees had access to a
network where they could check if certain physicians partici-
pated in their insurance, Bartley explained that “all” doctors be-
longed to the network. He went on to explain that doctors only
had to call Cypress and Cypress would onboard them. Bartley
also said that a Cypress Insurance representative would speak to
doctors and if the doctors were still worried about not being paid,
Cypress could pay in advance using a credit card.
Employees were given a multi-page document which made
reference to “in-network provider[s],” but the employees were
never given a network list. Bartley did not say whether there was
an actual directory of doctors that employees could reference to
confirm whether they were in the employees’ network.
Also at this meeting, Compass Professional Health services
was introduced to employees as a concierge service that would
answer questions and try to find doctors or specialists on their
behalf. The Program Services Agreement between Respondent
and Compass Professional Health services entered into effect on
March 1, 2019.
The Union Continues to Request a Corrected SBC and Files an
Unfair Labor Practice
On March 15, 2019, Rispoli sent a letter via fax and first-class
mail asking for the promised corrected/updated version of the
Cypress SBC. Rispoli then sent a letter to all members on March
18, 2019 to notify them that the Union had filed an unfair labor
practice, and that the Union was still trying to get information
regarding the medical plan.
On March 25, 2019, Respondent sent what purported to be the
updated SBC. However, the same network language from the
previous SBC was still present on the updated March 25, 2019
SBC. Rispoli called Crimi to inquire about this, and Crimi told
him the wrong SBC had been sent.
Thereafter, on May 29, 2019, Crimi sent a two-page letter to
all of Respondent’s employees, which detailed changes to Re-
spondent’s medical plans, by then in effect for 5 months. The
letter blamed the high cost of maintaining the 2018 Horizon
medical plans as having forced Respondent to “explore alterna-
tives” to reduce the projected increase in its healthcare costs. It
also announced the implementation of additional changes that
were to be effective August 1, 2019. (Jt. Exh. 9.)
In August 2019, Respondent created and mailed employees an
amended guide detailing the changes made to the plan and the
current status of the plan. In late August 2019, Crimi sent a letter
to Respondent employees announcing that employees would
have a network of doctors available to them, the PCHS doctor
network. Subsequently, during the last quarter of 2019, for the
first time under the new Cypress plan, Crimi agreed to pay a fee
for employees to have access to this doctors’ network.
Bonelli Attempts to Use Cypress Insurance to See His Primary
Care Doctor
In January of 2019, Bonelli attempted to see his regular pri-
mary care doctor who is affiliated with Crystal Run Healthcare
in Middletown, New York. Bonelli called ahead to verify that
his new Cypress insurance would be accepted. A receptionist
said Cypress was not in the system and that she had never heard
of it. The receptionist referred Bonelli to the billing department.
The person working in the billing department said she did not
think the office accepted Cypress. Bonelli asked the billing de-
partment representative whether his insurance company could
contact her, and she said yes.
Bonelli called Cypress Insurance Company and explained that
his doctor's office had never heard of Cypress and needed addi-
tional information. Crystal Run eventually accepted Cypress In-
surance and Bonelli was able to see his primary care physician.
It took over 10 phone calls to Crystal Run and Cypress for his
doctor’s office to accept his Cypress insurance. Crystal Run ex-
plained that the approval of a new insurance company had to go
before their Board of Directors.
Before Bonelli could see his physician, he was asked to sign a
new form that said he would be responsible for any additional
fees that were charged beyond what Cypress was authorized to
pay, which is otherwise known as balance billing. Bonelli had
not been asked to sign a similar form when he had Horizon Blue
Cross Blue Shield Insurance because there is no balance billing
with in-network providers.
Bonelli Attempts to Use Cypress Insurance and Compass Pro-
fessional Health Services to See a Specialist
Bonelli had to see a specialist for an appointment in April of
2019 for a diagnostic colonoscopy. He had gotten an identical
procedure 5 years prior for which he paid a $50 copay because
he had met his deductible. He had been an employee of Re-
spondent at that time. The specialist he sought to use was Dr.
Gershenhorn who was also affiliated with Crystal Run
Healthcare.
Bonelli called the doctor's office and gave his insurance infor-
mation to the receptionist. The receptionist said his Cypress in-
surance was not in the system. Bonelli spoke to Rosa Lopez, the
Compass concierge health pro on the phone and asked for her
help to get Dr. Gershenhorn's office to accept Cypress Insurance
for this procedure. At this point Bonelli began communicating
with Lopez through email.
On March 12, 2019, Lopez emailed Bonelli. Bonelli was con-
fused because the process he initiated with Crystal Run with his
primary care doctor appeared to not apply anymore. He called
Crystal Run and was transferred to billing office. This billing
office representative said she would let Dr. Gershenhorn’s office
know that their system might not be updated. Lopez’ March 12,
2019 email also mentioned a Dr. Patel who was apparently will-
ing to work with Bonelli's policy and may be able to help. (GC
Exh. 5.) No additional information was provided about this doc-
tor.
By March 12, 2019, Bonelli had scheduled his colonoscopy
but did not know what his out-of-pocket costs for his procedure
scheduled the following month would be. Between March 12
and 19, 2019, Bonelli confirmed with Crystal Run that they
would accept Cypress Insurance. Bonelli then asked Lopez for
information regarding what he would be responsible for paying.
It took Bonelli more than six phone calls to Lopez, Dr. Gershen-
horn’s office, and Peggy in human resources to get the issues
resolved for the colonoscopy.
On March 19, 2019 at 3 p.m., Lopez emailed Bonelli with a
breakdown of the out-of-pocket costs for the doctor. In that same
email, Lopez asked Bonelli to have Dr. Gershenhorn’s office use
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
an in-network anesthesiologist. Bonelli claimed his deductible
was not supposed to be that high nor did he have any control over
what anesthesiologist was going to be used at his procedure.
When Bonelli was under Horizon, he was never told it was his
obligation to find an anesthesiologist.
Bonelli asked Lopez questions regarding the anesthesiologist,
the incorrect deductible listed in Lopez’ email to him, and the
co-insurance charge which he had never been charged before.
Bonelli was supposed to be on the high plan which meant his
deductible should have been $1000.
In addition, under the Horizon Blue Cross plan in 2018, there
was no coinsurance associated with the high plan because em-
ployees only had the high plan if they completed the wellness
program. On April 8, 2019, Lopez informed Bonelli that if there
was still a wellness program, she did not know anything about it.
Bonelli never got his colonoscopy because the cost was too
high, and he was unable to ascertain for sure what exactly it
would end up costing him. There was a medical provider who
was willing to accept the Cypress Medical Plan for Bonelli’s co-
lonoscopy. Since terminating the colonoscopy procedure,
Bonelli has not had any other medical services performed other
than routine visits, for which he has been able to use Cypress.
Bonelli Attempts to Use Magellan for His Prescription
Bonelli was prescribed and took Invokana to treat Type 2 di-
abetes in 2018 under the Horizon Blue Cross prescription drug
plan. His associated out-of-pocket cost was either $50 or $60
copay for a 90-day supply. When the prescription plan switched
to Magellan in 2019, Bonelli’s out-of-pocket cost for the same
prescription was $279 or $269 for the same 90-day supply.
Other Changes to the Employees’ Health Plan
In addition to the loss of the Horizon Blue Cross network
caused by Respondent’s switching to Cypress and Magellan,
there were other changes that went into effect as of January 1,
2019. One major change was that spouses who had the ability to
be covered under their own separate plan were not eligible to be
covered under Cypress. This “spousal carve-out” did not exist
under Horizon, and though Respondent maintains that this limi-
tation was subsequently taken out of the plan, it is undisputed
that it was a part of the initial SPD provided to the Union in Feb-
ruary 2019.6
Another change related to the coverage for services including
anesthesia, dialysis, diagnostic x-rays, durable medical equip-
ment, home health care, hospice care, newborn care and wigs, all
of which were 100 percent covered under the previous plan. Un-
der the new Cypress plan, these services were covered only up
to 80 percent of a calculated “maximum allowable charge,” leav-
ing the employee responsible for both the remaining 20 percent,
as well as 100 percent of any amount exceeding that “maximum
allowable charge.” These additional amounts are known as a
“balance bill,” which did not exist under the Horizon network
coverage.
Respondent maintained at the hearing that if employees re-
ceived a balance bill, Respondent would pay the full amount of
6 Likewise, during the last quarter of 2019, Crimi agreed to pay a fee
for employees to have a limited doctors’ network associated with Cy-
press, but it is not disputed that at the start of the year, no existing
the balance bill without question. However, that guarantee was
never put into writing, nor did Crimi ever make that explicit rep-
resentation to employees. Aside from one case of a balance bill
for a nonunion employee, Respondent maintains that every other
claim was paid by the company and that from January 1, 2019,
to at least November 5, 2020, Respondent did not allow any em-
ployee to be personally liable for a balance bill.
nally, based on the SPD that was eventually provided to em-
ployees, the new Cypress plan eliminated coverage altogether for
acupuncture, and at least initially also excluded coverage for au-
diology. It increased the copay for emergency room visits from
$100 to $500. It doubled the deductible for employees who had
participated in Respondent’s wellness plan from $500 single and
$1000 family to $1000 single and $2000 family.
Credibility
My factual findings set forth above are based primarily on un-
contradicted testimony and authentic documentary evidence. To
the extent there are conflicts, I find that witnesses Alphonse
Rispoli and Raymond Bonelli were both very credible. They re-
sponded directly to questions from counsel on direct and cross-
examination, and their testimony was consistent and appeared
forthright.
The Union’s witness, Kevin Klemm, whose testimony was es-
sentially uncontradicted, was likewise credible. He had detailed
knowledge of the subject matter, and provided helpful context
for the hearing and my decision.
I found John Crimi much less credible. His testimony seemed
directed at supporting Respondent’s position that little had
changed from 2018 to 2019, despite a wealth of evidence to the
contrary. When confronted with those specific changes, his
knowledge and recollection suddenly became vague.
Analysis
Respondent unlawfully modified the parties’ contract with re-
gard to the employees’ health care plan without first notifying
and bargaining with the Union
This case involves Respondent’s unilateral change to the
third-party administrator for its health care plan, without giving
the Union notice or an opportunity to bargain over the change. I
find that Respondent’s actions constitute an unlawful unilateral
change in violation of Section 8(d) and Section 8(a)(5) and (1)
of the Act.
In cases where a collective-bargaining agreement is in effect,
an employer’s modification of a contractual provision which re-
lates to a mandatory subject of bargaining without the union’s
consent violates Section 8(a)(5) of the Act. Allied Chemical &
Alkali Workers of America v. Pittsburgh Plate Glass, 404 U.S.
157, 185 (1971); St. Vincent Hospital, 320 NLRB 42 (1995).
Section 8(d) of the Act prohibits an employer that is party to
a collective-bargaining agreement with a union from terminating
or modifying that contract without the union’s consent. An em-
ployer who makes such an unlawful mid-term modification in
violation of Section 8(d) has failed to bargain collectively and in
doctors’ network was included or made available to the employees or the
Union.
COUNTY CONCRETE CORP.
9
good faith with the exclusive bargaining representative of its em-
ployees in violation of Section 8(a)(5) and (1) of the Act
Indeed, the Board recently reiterated in The Voorhees Care
and Rehabilitation Center, 371 NLRB No. 22 (2021), Section
8(a)(5) of the Act provides that it is an unfair labor practice for
an employer to “refuse to bargain collectively with the represent-
atives of [its] employees.” In general, an employer violates Sec-
tion 8(a)(5) if it makes a unilateral change to an existing term or
condition of employment without bargaining to impasse with its
employees’ collective-bargaining representative over the pro-
posed change. NLRB v. Katz, 369 U.S. 736, 743 (1962).
In determining whether an employer has modified the parties’
contract, the Board adheres to the “sound arguable basis” stand-
ard. Bath Iron Works Corp., 345 NLRB 499 (2005). The General
Counsel must show that the employer, which claims that it did
not unlawfully modify the contract, did not have a sound argua-
ble basis for its interpretation of the contract. Thus, here, the
issue is whether Respondent had a sound arguable basis to be-
lieve that the changes made to the employees’ health care plan
maintained substantially the same level of benefits that were pro-
vided previously. If so, the parties’ CBA would have permitted
Respondent to make the changes it made. If not, the changes
Respondent made would violate the Act.
Here, the difference in benefits available to employees prior
to Respondent’s unilateral change to the third party administrator
and after that change were both significant and considerable in
number. The most significant was the loss of an available net-
work of providers and facilities, arguably one of the most im-
portant benefits offered by health insurers and sought after by
employees, as evidenced by the reaction of the employees here
to the loss of their network.
Where previously employees could readily access the services
of over 44,000 in-network providers in the New Jersey region
alone, along with access to every acute care hospital in the state,
after Respondent’s unilateral change, there was no such network
or guarantee. In addition, employees previously had access to
coverage for providers and facilities nationwide through the
BlueCard program which Horizon participated in and provided.
In the absence of any identified network, employees were at the
whim of each individual provider from whom they might seek
care.
Moreover, the new plan implemented by Respondent involved
a serious of considerable increases in the co-pays, deductibles
and potential out-of-pocket costs to employees. It also limited
spousal participation in the employees’ coverage for certain
spouses who may have had coverage available elsewhere, a
carve-out that did not previously exist.
In addition, beyond the loss of in-network benefits, increased
expenses and this spousal carve-out, Respondent’s unilateral
change even reduced or eliminated coverage for whole catego-
ries of care that was previously covered, including acupuncture
and audiology. And for those services that continued to be cov-
ered, there were no longer contractual caps on what providers
could charge, resulting in the risk of balance billing that did not
previously exist under Horizon.
Taking these together, I find that Respondent could not and
did not have a sound arguable basis to believe that the new health
plan as administered by Cypress maintained substantially the
same level of benefits that were provided previously under the
plan as administered by Horizon Blue Cross. To the contrary, I
find that the new plan was substantially inferior to the previous
plan, and Respondent’s unilateral modification of the plan vio-
lated the Act.
In sum, as a result of Respondent’s unilateral change to the
third-party administrator, the level of benefits provided by Re-
spondent’s new health care plan was not substantially the same
as the level of benefits previously provided. This was in direct
violation of the parties’ collective bargaining agreement.
Accordingly, I find that Respondent did make a unilateral
change when it changed the employees’ insurance carrier or
third-party administrator for its self-funded health care plan, and
that none of Respondent’s explanations for its actions justify that
unilateral change.
CONCLUSIONS OF LAW
1. Respondent, County Concrete Corporation, is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, Local 863, International Brotherhood of Team-
sters, is a labor organization within the meaning of Section 2(5)
of the Act and represents a bargaining unit comprised of workers
employed by the Respondent.
3. Since on or about January 1, 2019, by unilaterally changing
the third-party administrator for its health care plan which did
not provide substantially the same level of benefits previously
provided, thereby making mid-term modifications, without the
Union’s consent, to the health care coverage terms of the parties’
collective-bargaining agreements, Respondent has been failing
and refusing to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in violation of Sec-
tion 8(a)(5) and (1) of the Act.
4. By unilaterally changing the terms and conditions of em-
ployment of its unit employees, the Respondent has been failing
and refusing to bargain collectively and in good faith with the
exclusive bargaining representative of its employees in violation
of Section 8(a)(5) and (1) of the Act.
5. The Respondent's above-described unfair labor practices
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take appropriate affirmative action designed to effectuate the
policies of the Act.
In particular, I shall recommend that, to the extent it has not
already done so, Respondent shall cease and desist from altering
the employees’ health care plan, including changing its third-
party administrator, and make whole its employees for any losses
they suffered or out-of-pocket expenses they incurred as a result
of Respondent’s unlawful conduct. Such amounts shall be com-
puted in accordance with Ogle Protection Services, 183 NLRB
662, 683 (1970), enfd. 444 F. 2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
356 NLRB 6 (2010).
Further, upon request of the Union, Respondent shall rescind
the unilaterally implemented changes in the unit employees’
health care plan and restore the coverage, copays, premiums and
network available to employees prior to January 1, 2019.
I shall also recommend that Respondent be required to notify
employees that it will not alter the insurance carrier or third-party
administrator for its health care plan, and that its prior change
has been rescinded. Therefore, Respondent will be ordered to
post and communicate by electronic post to employees the at-
tached Appendix and notice. On these findings of fact and con-
clusions of law and on the entire record, I issue the following
recommended7
ORDER
The Respondent, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good
faith with Local 863, International Brotherhood of Teamsters
(the Union) as the exclusive collective-bargaining representative
of the bargaining unit employees by making changes to the em-
ployees’ health care coverage, including the third-party admin-
istrator for its health care plan.
(b) Unilaterally changing the terms and conditions of employ-
ment of its unit employees.
(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 effectu-
ate the policies of the Act.
(a) Upon the Union’s request, rescind the modification to
your terms and conditions of employment, in particular the mod-
ification of your health care plan that occurred on January 1,
2019, by restoring the terms and coverage provided under the
Horizon Direct Access Plan until such time as we negotiate in
good faith with the Union either to a new agreement or to im-
passe.
(b) Make whole bargaining unit employees for any losses they
suffered or out-of-pocket expenses they incurred as a result of its
unlawful conduct, in the manner set forth in Ogle Protection Ser-
vices, 183 NLRB 662, 683 (1970), enfd. 444 F. 2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).
(c) Compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum financial awards, and
file with the Regional Director for Region 22, within 21 days of
the date such awards are fixed, either by agreement or Board or-
der, a report allocating the awarded amounts to the appropriate
calendar year for each employee.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
7 If no exceptions are filed as provided in Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Board’s Rules, be adopted by
the Board and all objections to them shall be deemed waived for all pur-
poses.
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of monies due un-
der the terms of this Order
(e) Within 14 days after service by the Region, post at each
of its Northern New Jersey facilities, copies of the attached no-
tice marked “Appendix”8 in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director for
Region 22, 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 notices, the notices shall be
distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the Re-
spondent 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 either of the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since January 1, 2019.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 22 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C., September 17, 2021
8 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.”
COUNTY CONCRETE CORP.
11
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT make unilateral changes to terms and conditions
of employment without first bargaining with the Union, Local
863, International Brotherhood of Teamsters.
WE WILL NOT unilaterally alter the third-party administrator
for the employees’ health care plan without providing notice and
an opportunity to bargain to the Union and without reaching
agreement or overall good faith impasse in bargaining.
WE WILL NOT in any like or related manner fail and refuse bar-
gain collectively and in good faith with the Union as the exclu-
sive collective-bargaining representative of our employees in the
unit or otherwise interfere with your rights under Section 7 of the
Act.
WE WILL upon the Union’s request, rescind the modification
to your terms and conditions of employment, in particular the
modification of your health care plan that occurred on January 1,
2019, by restoring the terms and coverage provided under the
Horizon Direct Access Plan until such time as we negotiate in
good faith with the Union either to a new agreement or to im-
passe.
WE WILL, make our unit employees whole for any loss suf-
fered as a result of our unlawful conduct, including reimburse-
ment of any increases in premiums, copays, coinsurance, and de-
ductibles and for other out-of-pocket expenses, plus interest.
WE WILL before implementing any changes in wages, hours,
or other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of our bargaining unit em-
ployees.
COUNTY CONCRETE CORPORATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-238625 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
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