National Union of Hospital and Health Care Employees

National Labor Relations Board - Board Decisions

Mar 25, 1980

248 N.L.R.B. 631 (N.L.R.B. 1980)

NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 631
National Union of Hospital and Health Care Em-
ployees, Division of RWDSU, AFL-CIO; Na-
tional Union of Hospital and Health Care Em-
ployees, Division of RWDSU, AFL-CIO, Dis-
trict 1199E, and National Benefit Fund for
Hospital and Health Care Employees and its
Trustees, Agent of the Aforementioned Unions
and Sinai Hospital of Baltimore, Inc. Case 5-
CB-2856
March 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS, PENELLO, AND TRUESDALE
On June 8, 1979, Administrative Law Judge Her-
bert M. Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Charging Party filed exceptions and briefs, and
Respondent Unions filed cross-exceptions to the
Administrative Law Judge's Decision, together
with an answering brief to the exceptions filed by
the General Counsel and Charging Party.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs' and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
Respondent National Union of Hospital and
Health Care Employees, Division of RWDSU,
AFL-CIO, District 1199E, herein called District, is
the exclusive collective-bargaining representative
of an appropriate unit of employees employed by
Charging Party Sinai Hospital of Baltimore, Inc.,
herein called Hospital. Respondent National Union
of Hospital and Health Care Employees, Division
of RWDSU, AFL-CIO, herein called National, is
the national parent organization of District and is,
and has been, a party signatory to the collective-
bargaining agreements between Hospital and Dis-
trict. Respondent National Benefit Fund for Hospi-
tal and Health Care Employees and its Trustees,
herein called Fund, is a trust fund subject to the
provisions of Section 302(c)(5) of the Act which
provides health and welfare benefits to employees
represented by National and District, including
Hospital's employees.
The Fund operates on a "pool-group" concept
wherein the contributions of all participating em-
ployers are pooled to provide benefits for all cov-
ered, as distinguished from the "experience-rated"
concept where the individual employer's contribu-
tions are related directly to the cost of benefits pro-
' The Charging Party's request for oral argument is hereby denied as
the record, exceptions, and briefs adequatel) present the issues and posi-
tions of the parties
248 NLRB No. 86
vided its employees. The Declaration of Trust
which established the Fund2 authorizes Respon-
dent National to select, and remove at will, 16
trustees, and provides for an equal number of em-
ployer trustees selected on the basis of 5 geographi-
cally designated employer groups, each of which
may select, and remove, 2 trustees, plus I addition-
al trustee for every 5,000 employees above a base
of 10,000. It also entitles each bloc 3 to one vote
which is determined by a majority of each bloc,
provides that deadlocks may be resolved by arbi-
tration, and vests in an executive director selected
by the trustees the responsibilities of administering
the Fund and the operation of the benefit plans
thereunder. William Taylor has been the Fund's ex-
ecutive director since 1950, and is paid by the
Fund. He also has been Respondent National's ex-
ecutive vice president since the Union's inception 7
years ago, and serves in that capacity without pay.
Similarly, Leon Davis, National's president for the
past 7 years, has been chairman of the Fund's
board of trustees since 1950.
The Fund is a tenant of, and is located in, the
same building as Respondent National. Both enti-
ties have the same telephone number and employ
the same accountants and data processing firm. The
Fund acts as a collection agent for Respondent Na-
tional with regard to dues, fees, and employer pen-
sion payments, and handles these matters in a sepa-
rate department which is headed by a Fund-paid
employee and staffed by three or four Fund em-
ployees and "union employees."
Respondent District has been the certified repre-
sentative of Hospital's service and maintenance em-
ployees for the past 10 years pursuant to contracts
negotiated together with, and executed by, Respon-
dent National. The instant proceeding was initiated
during the 1976 contract negotiations when Re-
spondent Unions demanded a 1-1/2-percent in-
crease in Hospital's contribution rate to the Fund,
i.e., from 8-1/2 to 10 percent of Hospital's gross
payroll, claiming such was necessary because New
York hospitals were subsidizing Baltimore hospi-
tals. Hospital agreed to the increase conditioned on
being furnished with periodic experience reports
showing its contributions to the Fund and the
amounts paid on behalf of its employees. Respon-
dents' response was a strike threat, a counteroffer
that each party direct its respective trustees to pro-
vide the information sought, and, ultimately, a con-
tractual agreement containing a 10-percent contri-
bution rate and providing that the Fund would fur-
nish experience reports.
2 Approximately 1,600 employers contribute to the Fund pursuant to
some 2,000 bargaining agreements covering 91.000 employees
I Of the 16 union trustees, 14 are officers of Respondent National
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reports furnished during the 1976-78 con-
tract term show that Hospital's contribution rate
exceeded the cost of benefits used by its employees
by an average of 3 percent, and that the excess
contributions were not held in a reserve account
for the benefit of its employees.
Negotiations for a new contract began on Sep-
tember 19, 1978. Preparatory thereto, Hospital di-
rected a July 31, 1978, letter to Fund Executive
Director Taylor requesting that it be furnished
with certain contribution-related information, in-
cluding the names of all contributing employers,
their gross payroll, the amounts contributed, the
number of employees covered, and the type and
quality of benefits provided. The letter also stated
that the requested information was relevant and
necessary for Hospital to bargain intelligently, to
police the administration of the contract, to evalu-
ate the Fund contribution level, and to prepare for
the coming negotiations. Taylor refused to furnish
the information and also rejected Hospital's August
18, 1978, request therefor on the grounds of confi-
dentiality and excessive labor and costs involved,
notwithstanding Hospital's agreement to accept an
identification number in lieu of an employer's name
and its offer to defray all costs incurred. At the
hearing, Taylor gave no reason for claiming confi-
dentiality other than stating that such was his opin-
ion and, when asked on what authority he based
his refusal to furnish the information, stated that
"my authority is broad and general and I felt that
this matter was within the jurisdiction of my au-
thority."
Hospital pursued its request through September
5, 1978, letters addressed to Davis as president of
Respondent National, and to Hollie, president of
Respondent District, requesting them to "instruct
your agent the [Fund]" to furnish the data. Davis
replied that the request should be addressed to the
Fund's board of trustees of which "a representative
of your hospital . . . Schneckenburger, is a
[member]." Hollie's reply was in the same vein. Al-
though Taylor furnished Schneckenburger with
some peripheral information, Schneckenburger was
unable to obtain the basic information from Taylor
despite requests therefor in a series of letters rang-
ing from September 7 to October 6, 1978.
Taylor subsequently referred the information re-
quest to the trustees' administrative committee
which split on the matter, the management trustees
being in favor of supplying it and the union trust-
ees opposing it. Management trustees then caused
Taylor to submit the issue to a mail referendum
among the trustees. Prior to the November 15,
1978, vote, the trustees received position papers
from a management spokesman urging approval,
and from Davis which he captioned, in part, "In
support of a no vote," and wherein he stated that
"The Union Trustees recommend and urge" defeat
of the issue. Again, the union bloc opposed, and
the management bloc favored, the request, thereby
insuring a tie vote which effectively denied the re-
quest. The issue had not been submitted to arbitra-
tion as of the time of the hearing.
Meanwhile, on September 19, 1978, negotiations
for a new contract began with an exchange of pro-
posals in which Hospital sought a 3-percent de-
crease in its contribution rate and Respondent Dis-
trict sought a two-step 3-percent increase to an
annual 13-percent rate. Hospital then requested
both Respondent Unions to provide the informa-
tion requested from the Fund. Respondent Dis-
trict's negotiator responded that only the Fund had
such information and that, while he would ask the
Fund to furnish it to Hospital, his opinion was that
"they won't give it." Throughout the ensuing
seven bargaining sessions Respondents maintained
that the increased contribution rates sought were
necessitated by the rate manual adopted by the
Fund's trustees. Respondents, however, never ex-
plained why the rate manual required Hospital to
increase its contribution rate when the 1976-78 ex-
perience reports, including a report received at a
late point during negotiations, showed that it was
making excessive contributions. In any event, on
November 30, 1978, influenced by a settlement
reached at another hospital, the parties reached
agreement on a new contract which did not in-
crease Hospital's contribution rate.
The contract was executed on behalf of Respon-
dent District by Trustee Board Chairman Davis in
his capacity as Respondent National's president.
The record further shows that Davis executes "all
District contracts" and otherwise performs the
union duties required by his office, and that Taylor
also wears two hats, as shown by the following ex-
change at the hearing:
Q. How can an outsider tell in which capac-
ity you were acting at the time . . . executive
director of the Fund, a Union trustee, or ex-
ecutive vice president of the Union?
A. I can't respond to what an outsider . . .
would estimate . . . I think it is clear to
people intimately involved with the operation
of the Fund which hat I am wearing at which
point of time.
The Administrative Law Judge found, and we
agree, that the requested information was relevant
and necessary to enable Hospital to perform its col-
lective-bargaining functions; that Taylor, in his role
as executive director of the Fund, did not have a
legitimate business justification for refusing to fur-
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 633
nish it; and that his responses to the requests were
not made in good faith. Nevertheless, by restricting
his inquiry to the roles played by Taylor and Davis
in their Fund-related capacities only and then rely-
ing on a series of court and Board decisions to the
effect that neither a fund nor its trustees are labor
organizations or partisan agents of a particular
principal, he concluded that the Employer is with-
out a remedy before the Board, thereby reaching a
result which was not contemplated in those cases
and is repugnant to the principles and purposes of
collective bargaining.
This is not a case of damnum absque injuria.
Here, the injury is real, it was intentionally inflict-
ed, and was predicated on a device of evasion
which was used simultaneously and unilaterally as
a sword to further union goals and as a shield to
cover that objective.
Taylor indirectly claimed, and the Administra-
tive Law Judge indirectly found, that Taylor was
acting solely in his fiduciary capacity when he re-
jected, for false reasons and in bad faith, the infor-
mation request, and thus refused to perform a
purely ministerial function which neither required
approval by the trustees nor would have affected
adversely the Fund or its operation had he granted
the request. Examination of that claim begins with
the Employment Retirement Investment Security
Act (ERISA), Section 408(c)(3),4 which permits in-
dividuals to serve as Section 302 trustees "in addi-
tion to being an officer, employee, agent, or other
representative" of a union or an employer organi-
zation. Thus, there is nothing in either ERISA or
the National Labor Relations Act to prohibit a
person in Taylor's and Davis' position from operat-
ing in separate spheres as a Section 302 trustee and
as a union official. ERISA also provides, however,
in Section 409(a)(1), 5 that trustees shall discharge
their fiduciary duties "solely in the interest of the
participants and beneficiaries" of the trust and "for
the exclusive purpose of . . . providing benefits to
participants and their beneficiaries." Here, the in-
formation sought was relevant directly to that ex-
clusive purpose. Taylor, however, as a controlling
benefits plan trustee, utilized groundless reasons
which were not supportive of that purpose and
which, instead, had the inevitable result of permit-
ting the Unions to evade their bargaining obliga-
tions with respect to a matter (contributions to the
Fund) which was primary to both Hospital and Re-
spondent Unions. This raises a clear inference, and
we draw it, that Taylor was speaking with a union
voice while wearing his fiduciary hat, and that he
was not acting solely in the interests of the employ-
429 U.S.C. §1 I108(c)(3).
5 29 U.S.C. §1104(a)(1).
ee participants and their beneficiaries, whose bene-
fits ultimately depend on freely and fairly negotiat-
ed contributions from the employers, but rather
was acting to support the interests of the Unions.6
Little credence can be placed in Taylor's subjective
hat test that an intimacy with Fund operations will
reveal whether he is acting as a union agent or a
fiduciary at a particular time. Such test can hardly
support a conclusion that his refusal to furnish the
information was, in fact, made in his fiduciary ca-
pacity. And even if it had been made under his fi-
duciary hat, no reason has been shown why this
precludes the furnishing of the information. The fi-
duciary duty is not a blank check for disregard of
interests of the beneficiaries and protects a trustee
only when he can show that his action is consistent
with such interests. Here, his action was inimical to
the interests of the beneficiaries in that it under-
mined the good-faith bargaining on which the em-
ployer contributions providing the benefits depend.
Board of Trustees Chairman Davis stands on an
equal footing since he too engaged in the same sort
of legerdemain when, as National's president, he
rejected Hospital's plea for assistance and referred
it to the Fund where, as board chairman, he urged
the union trustees, of whom 14 of the 16 are his
subordinates in National, to deny the request.
In light of the positions of power occupied by
Davis and Taylor as the two top officials in both
National and Fund, it would be naive to assume
that, as a practical matter, and without involving
the remaining trustees, they, or either of them,
could not have obtained the information had they
so desired. In addition, they could have acted pur-
suant to their counteroffer made during the 1976
contract negotiations, when they proposed that
each party direct its respective trustees to provide
the information. Instead, they, on behalf of Nation-
al, and Hollie, on behalf of District, intentionally
asserted a negative posture and thereby violated
their affirmative obligation to make a reasonable
effort to obtain the information, or to investigate
reasonable alternative means for obtaining it, or to
truthfully explain or document the reasons for its
unavailability, in violation of Section 8(b)(3) of the
Act.7 Accordingly, we shall require Respondents
to take the minimal action of formally requesting
from the Fund the information sought by Hospital.
Our determinations herein neither conflict with
any provisions of ERISA or Section 302 of the
6 Cf. N.L.R.B. v. Construction d General Laborers' Union Local 1140.
affiliated with International Laborers' Union of North America, AFL-CIO,
577 F.2d 16 (8th Cir. 1978).
7 Borden. Inc., Borden Chemical Division, 235 NLRB 982 (1978)
(Member Penello dissenting on other grounds), enfd in pertinent part 600
F.2d 313 (Ist Cir. 1979); General Electric Company, 150 NL.RB 192
(1964).
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, nor place an undue burden on Section 302
trusts or its trustees. We hold only that, although
Section 302 trustees may be expected to champion
the interests of their respective principals, they
must do so in a manner which is consistent with
their fiduciary obligations8 rather than utilizing
their alleged fiduciary capacity as a pretext to cir-
cumvent bargaining obligations under the Act.
CONCLUSIONS OF LAW
1. Sinai Hospital of Baltimore, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent National Union of Hospital and
Health Care Employees, Division of RWDSU,
AFL-CIO, and Respondent National Union of
Hospital and Health Care Employees, Division of
RWDSU, AFL-CIO, District 1199E, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time service and
maintenance employees who work regularly
twenty (20) or more hours in the week, including
food production and service employees, laundry
and linen workers, housekeeping employees, unit
service managers, nursing assistants, radiology
aides, autopsy assistants, laboratory aides, motor
service employees, animal caretakers, grounds and
maintenance employees, central material service
employees, receiving and stores employees, ward
clerks, physical and occupational therapy aides and
attendants, nursing technicians other than O.R.
technicians; excluding all cashiers, communication
employees, housemothers, patient hostesses, central
duplicating service employees, office clerical em-
ployees, physicians, dentists, registered nurses, li-
censed practical nurses, technical and professional
employees, temporary employees, guards, confiden-
tial employees, supervisory employees, administra-
tive employees, executive employees, maintenance
inspectors, O.R. technicians, and all other employ-
ees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein, Respondent Na-
tional Union of Hospital and Health Care Employ-
ees, Division of RWDSU, AFL-CIO, District
1199E, has been the exclusive bargaining represen-
tative of the employees in the aforesaid appropriate
unit within the meaning of Section 9(a) of the Act.
5. By failing on or about September 19, 1978,
and at all times thereafter, to provide Hospital with
the information pertaining to its contributions to
the Trust Fund, as requested in a September 7,
8 Associated Contractors of Essex County, Inc. v. Laborers lnternationat
Union of North America, 559 F.2d 222 (3d Cir. 1977)
1978, letter from Walter A. Schneckenburger, vice
president of the Employer and a trustee of the
Fund, to William J. Taylor, executive director of
the Fund, and as set forth supra, and by failing an
affirmative obligation to make reasonable efforts to
obtain the information, or to investigate reasonable
alternative means for obtaining it, or to truthfully
and in good faith explain or document the reasons
for its unavailability, Respondent National Union
of Hospital and Health Care Employees, Division
of RWDSU, AFL-CIO, and Respondent National
Union of Hospital and Health Care Employees, Di-
vision of RWDSU, AFL-CIO, District 1199E,
have failed to bargain collectively with Sinai Hos-
pital of Baltimore, Inc., and have thereby engaged
in, and are engaging in unfair labor practices
within the meaning of Section 8(b)(3) of the Act.
The relevant information requested consists of:
1. Contributing Employer (name and city or
location).
2. Identification number (which may be
coded for confidentiality).
3. Types of Organization (i.e., hospital,
home, local union, drug retailer, etc.).
4. Number of Covered Employees (annual
average will suffice).
5. Gross Annual Payroll (for covered em-
ployees).
6. Average Annual Pay (item 5 divided by
item 4).
7. Annual Employer contribution (dollars
actually contributed to NBF).
8. Contribution rate (percent of Gross Pay-
roll actually contributed to NBF).
9. Quality of Benefits (i.e., Plan A, Plan B,
Plan C, other).
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that Respondent National Union
of Hospital and Health Care Employees, Division
of RWDSU, AFL-CIO, and Respondent National
Union of Hospital and Health Care Employees, Di-
vision of RWDSU, AFL-CIO, District 1199E,
have engaged in and are engaging in the unfair
labor practices found herein, we shall order them
to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act.
Inasmuch as the requested information is rel-
evant and necessary to enable Hospital to perform
its collective-bargaining function, it follows that,
absent such information, Hospital will be unable to
perform that function properly. Accordingly, in
---
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 635
order to remedy the violation, we shall require Re-
spondent Unions to request from the Fund, in writ-
ing, the information sought by Hospital and to pro-
vide Hospital with such information. Should, how-
ever, Respondent Unions fail to request the infor-
mation, or in the event a majority of the Trustees
decline to honor Respondent Unions' request, it is
obvious that Hospital will be unable to engage in
intelligent and meaningful collective-bargaining on
the issue of its Fund contributions. Therefore, in
order to prevent Hospital from being required to
bargain without information to which it is entitled,
and to effectuate, as closely as possible, the status
quo ante, we shall not require Hospital, if it so de-
sires, to bargain with Respondents with respect to
its Fund contributions until such time as Hospital is
provided with the requested information.
ORDER
Pursuant to Section 10(c) of the National Rela-
tions Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent Nation-
al Union of Hospital and Health Care Employees,
Division of RWDSU, AFL-CIO, New York, New
York, and Respondent National Union of Hospital
and Health Care Employees, Division of RWDSU,
AFL-CIO, District 1199E, Baltimore, Maryland,
their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to make reasonable efforts to obtain
for and provide to Sinai Hospital of Baltimore,
Inc., information relevant to its contributions to the
National Fund for Hospital and Health Care Em-
ployees.
(b) In any like or related manner refusing to bar-
gain collectively with Sinai Hospital of Baltimore,
Inc., concerning contributions to the said Fund.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Request, in writing, from the said Fund the
requested information relevant to said Hospital's
contributions to the National Benefit Fund for Hos-
pital and Health Care Employees pursuant to the
manner and subject to the provisions set forth in
that section of this Decision and Order entitled
"Remedy."
(b) Post at their respective offices and meeting
halls copies of the attached notice marked "Appen-
dix."9 Copies of said notice, on forms provided by
the Regional Director for Region 5, after being
duly signed by Respondents' National's and Dis-
trict's representatives, shall be posted by said Re-
9 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National .abor Relations Board"
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by said Respon-
dents to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Furnish signed copies of said notice to the
Regional Director for Region 5 for posting by
Sinai Hospital of Baltimore, Inc., said employer
being willing, at all locations where notices to its
employees are customarily posted.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges the
commission of unfair labor practices by Respon-
dent National Benefit Fund for Hospital and
Health Care Employees and its Trustees.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to make reasonable ef-
forts to obtain for and provide to Sinai Hospi-
tal of Baltimore, Inc., information pertaining to
its contributions to the National Benefit Fund
for Hospital and Health Care Employees.
WE WILL NOT in any like or related manner
refuse to bargain collectively with the Hospital
concerning contributions to said Fund.
WE WILL ask the Fund's trustees, in writing,
for the requested information relevant to Sinai
Hospital's contribution to the said Fund and,
in the event we fail to do so or the Fund's
trustees refuse to honor our request, Sinai Hos-
pital will not be required to bargain with us
with respect to its contributions to the Fund
until such time as the Hospital is provided
with the information.
NATIONAL UNION OF HOSPITAL AND
HEALTH CARE EMPLOYEES, DIVISION
OF RWDSU, AFL-CIO, DISTRICT
I 1199E.
DECISION
STATEMENT OF: THE CASE
HERBERT M. SILBERMAN, Administrative Law Judge:
Upon charges of unfair labor practices filed on Septem-
ber 22, 1978, by Sinai Hospital of Baltimore, Inc.. herein
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometimes called the Hospital, a complaint, dated No-
vember 3, 1978, was issued alleging that the above-
named Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(b)(3) of the National Labor Relations Act, as amended.
Each of the Respondents duly filed an answer denying
that it has engaged in the alleged unfair labor practices
and Respondents National Union and District 1199E, in
their respective answers, assert various affirmative de-
fenses. A hearing in this proceeding was held in Balti-
more, Maryland, on January 22 and 23 and February 26
and 27, 1979. A motion to amend the complaint made
during the hearing was granted. Briefs were filed on
behalf of all parties other than District 1199E. The
cogent briefs received from Charging Party have been
particularly helpful.
Upon the entire record in this case, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Sinai Hospital of Baltimore, Inc., a Maryland corpora-
tion, operates a private nonprofit hospital in Baltimore,
Maryland. Its annual revenues exceed $250,000 and its
annual purchases of materials and supplies which are
shipped to it through channels of interstate commerce
from locations outside the State of Maryland are valued
in excess of $50,000. The answers admit, and I find, that
the Hospital is an employer as defined in Section 2(2) en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
National Union of Hospital and Health Care Employ-
ees, Division of RWDSU, AFL-CIO, herein referred to
as the National Union, is a labor organization within the
meaning of Section 2(5) of the Act.
National Union of Hospital and Health Care Employ-
ees, Division of RWDSU, AFL-CIO, District 1199E,
herein referred to as District 1199E, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
National Benefit Fund for Hospital and Health Care
Employees, herein sometimes referred to as the Fund or
the NBF, which maintains its principal office and place
of business in New York, New York, was established by
an Agreement and Declaration of Trust, dated October
1, 1949, which has been amended several times, most re-
cently on October 24, 1975. The Fund provides medical,
hospital, and other benefits to employees of various em-
ployers, including the Hospital, who have entered into
collective-bargaining agreements with the National
Union and District 1199E. The complaint alleges, but the
answers deny, that the Fund is an agent of the National
Union and of District 1199E "acting on [their] behalf,
within the purview of Section 2(13) of the Act," which
gives the Board jurisdiction over the Fund in this pro-
ceeding.
11. THE ISSUES
During the times material hereto the Hospital has rec-
ognized District 1199E as the collective-bargaining rep-
resentative of a unit of its employees appropriate for col-
lective bargaining consisting of its full-time and regular
part-time service and maintenance employees and has en-
tered into a series of collective-bargaining agreements
with District 1199E for this unit to which agreements
the National Union has been a signatory. The most
recent agreement, prior to the issuance of the initial com-
plaint herein, was effective for 2 years from December 1,
1976, through December 1, 1978. On July 21, 1978, the
Hospital served notice on District 1199E and the Nation-
al Union that it wished to negotiate modifications of
their collective-bargaining agreement and on various
dates between July 31 and October 6, 1978, the Hospital
directed requests to District 1199E, the National Union,
and the Fund for information relating to the operation of
the Fund such as the names of all the contributing em-
ployers, the number of covered employees, the annual
payroll of each contributing employer, their respective
contribution rates, the benefits furnished their employees,
etc. The National Union and District 1199E failed to
provide the information, asserting that the requested in-
formation was not in their possession, and the Fund re-
fused to provide the information. The amended com-
plaint, alleging that the Fund is the agent of the National
Union and District 1199E, charges Respondents with
violations of Section 8(b)(3) for failing and refusing to
furnish the Hospital with the requested information and
further alleges that "Respondent National Union has di-
rected the Union Trustees of NBF to refuse to provide
the Employer with the requested information, and, in so
doing, Respondent has refused and continues to refuse to
bargain in good faith with the Employer."
The principal defenses are that the Fund is not an
agent of the National Union or of District 1199E and
therefore the Board does not have jurisdiction over the
Fund, that the National Union and District 1199E are
unable to comply with the Hospital's request as they do
not have the information,' and, in any event, the infor-
mation requested is not relevant to the discharge by the
Hospital of its collective-bargaining functions.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Structure of the Fund
The Fund is a multiemployer trust fund which "oper-
ates on the concept of a pool-group," 2 as permitted by
I The following stipulation by the parties, dated March 28, 1979, is ac-
cepted and made part of the record:
If William J. Taylor is asked the question, whether either the Na-
tional Union of Hospital and Health Care Employees, Division of
RWDSU, AFL-CIO or National Union of Hospital and Health Care
Employees, Division of RWDSU, AFL-CIO, District 1199E pos-
sessed at any time pertinent hereto the information requested by the
charging party in this proceeding, he would answer that neither
Union possessed or now possesses such information, and that all such
information is in the sole possession of the National Benefit Fund for
Hospital and Health Care Employees.
2 Under the pool-group concept the contributions of all the participat-
ing employers are pooled to provide benefits for all the covered employ-
ees. This is distinguished from an "experience rated" concept where the
premiums (or contributions) of the individual employer are directly relat-
ed to the cost (or use) of benefits for his employees See Crawford v.
Cianciulli, 357 F.Supp. 357, 373 374 (D.C.Pa. 1973); Raymond, v Hoff-
man, 284 F.Supp 596, 601 (D.C.Pa.1966).
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 637
Section 302(c)(5) of the Act.3 As of the times material
herein there were approximately 1,600 contributing em-
ployers to the Fund who were making contributions pur-
suant to about 2,000 collective-bargaining agreements on
behalf of about 91,000 employees and their families so
that approximately 300,000 persons were covered by the
Fund's benefits plans. Of the 2,000 contracts which pro-
vide for contributions to the Fund about 1,150 are with
the National Union's drug division, which includes drug-
stores, medical centers, laboratories, warehouses, and
manufacturing plants; about 350 to 400 are with hospi-
tals; and the balance are with nursing homes and medical
centers of various kinds. Of the 91,000 covered employ-
ees only between 12,000 to 15,000 are in collective-bar-
gaining units composed of more than 500 employees and
the remaining numbers are in collective-bargaining units
of smaller size.
The Agreement and Declaration of Trust, as amended,
which established the Fund, herein referred to as the
Trust Indenture, provides that an equal number of trust-
ees will be selected by the National Union 4 and by the
contributing employers. The National Union also has the
right without limitation to recall any one or more of the
trustees appointed by it and to designate their successors.
The contributing employees are divided into five groups,
of which four groups are the contributing employers re-
spectively located in the States of New York, New
Jersey, Pennsylvania, and Maryland and the fifth group
is the New York Drug and Related Industries. Each of
these groups designates two employer trustees plus an
additional trustee for every 5,000 employees, or major
fraction thereof above the base of 10,000 for whom con-
tributions are being made by members of the group. Any
other employer group that is formed is also entitled to
designate a trustee for every 5,000 employees or major
fraction thereof in excess of 5,000 for which they make
contributions. The trustees appointed by any employer
group may be recalled by the group, which also has the
right to designate the trustees' successors.5 Administra-
tive or other action by the trustees is by vote with the
3 This section authorizes payments to
.. a trust fund established by [thel representative [of any of his
employees), for the sole and exclusive benefit of the employees of
such employer, and their families and dependents (or of such em-
ployees, families, and dependents jointly with the employees of other
employers making similar payments, and their families and depen-
dents): provided, That (A) such payments are held in trust . . . (B)
the detailed basis on which such are to be made is specified in a
written agreement with the employer, and employees and employers
are equally represented in the administration of such fund, together
with such neutral persons as the representatives of the employers and
the representatives of employees may agree upon and in the event
the employer and the employee groups deadlock on the administra-
tion of such fund and there are no neutral persons empowered to
break such deadlock, such agreement provides that the two groups
shall agree on an impartial umpire to decide such dispute . . . and
shall also contain provisions for an annual audit of the trust fund, a
statement of the results of which shall be available for inspection by
interested persons at the principal office of the trust fund and at such
other places as may be designated in such written agreement ...
4 Under the terms of the Trust Indenture, District 1199E has no power
to appoint any trustees.
I In his brief General Counsel argues: "The structure of the NBF trust
fractionalizes the employer bloc, whereas the National Union has sole
and all-encompassing control over the tenure of all union trustees of
NBF."
union trustees entitled to one vote and the employer
trustees entitled to one vote. The vote of the union trust-
ees and the employer trustees is determined by a major-
ity of each bloc present at any meeting. In the event of a
deadlock the dispute may be determined by arbitration.
The Fund employs co-counsel to represent it who are:
William Abelow, who was designated by the employer
trustees, and the firm of Sipser, Weinstock, Harper, Dorn
& Leibowitz, who was selected by the union trustees.
Responsibility for administration of the Fund and the
operation and administration of the benefits plans estab-
lished by the Fund is vested in an executive director se-
lected by the trustees. William Taylor has been executive
director since 1950. Taylor is a trustee and the secretary-
treasurer of the Fund and also is executive vice president
of the National Union for Health Care and Pensions.
Taylor receives a salary from the Fund but no compen-
sation from the National Union.
The Fund occupies space as a tenant, pursuant to a
rental arrangement approved by the trustees, in a build-
ing owned by the National Union and in which the Na-
tional Union has its offices. The Fund and the National
Union have the same telephone number. The Fund em-
ploys the same accountants and the same firm to do its
data processing as does the National Union.
The Fund acts as a collection agent for the National
Union to recieve union dues and initiation fees which
employers, pursuant to collective-bargaining agreements,
are required to deduct from their employees' wages and
to transmit to the National Union. In addition to employ-
ees who are contributors to the Fund, the Fund collects
union dues and initiation fees from 12 to 15 employers
who do not contribute to the Fund. Jack Klucsarits,
manager of the Fund's accounts receivable department
and who is paid by the Fund, acts on behalf of the Na-
tional Union to receive and to collect union dues and ini-
tiation fees. William Taylor testified that the arrangement
whereby the Fund collects union dues and initiation fees
was developed as a convenience for the employers (who
can report union deductions on the same form as Fund
contributions) as well as for the National Union. The Na-
tional Union pays all expenses incurred by the Fund in
connection with the collection of union dues and initi-
ation fees other than the salary of Jack Klucsarits.
The 16 persons who have been serving as the Union
trustees during the times material hereto were appointed
by the National Union, and of that number 14 are offi-
cers of the National Union and 2 are officers of its dis-
tricts. Leon Davis, who has been president of the Na-
tional Union since its organization, has been a trustee and
the chairman of the board of trustees of the Fund (and
its predecessors) since 1950. Similarly, William Taylor,
who is an executive vice president of the National
Union, has been a trustee and the executive director of
the Fund since 1950.
Walter A. Schneckenburger, who has been the vice
president for finance and the chief fiscal officer of the
Hospital since 1969, has been a trustee of the Fund since
1974.
General Counsel adduced testimony regarding two in-
cidents which tend to illustrate his thesis that the Union
trustees dominate the operations of the Fund and, in par-
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular, that Leon Davis, as chairman, and William
Taylor, as executive director, of the Fund have exercised
the authority of their respective offices to favor positions
promoted by the Union trustees and opposed by the Em-
ployer trustees.
The first incident occurred in early 1977. The Employ-
er trustees sought to reduce the benefits being provided
by the Fund because their cost was exceeding the contri-
butions to the Fund. The Union trustees were opposed.
As there was deadlock the matter was submitted to arbi-
tration. Morris Glushein, who was selected as the arbi-
trator, issued an award directing reductions in the bene-
fits levels. Despite the award no changes were made.
The Employer trustees therefore brought a proceeding in
the United States District Court to affirm the arbitrator's
award and to compel the Fund to implement the terms
of the award. It was only after the judgment of the court
was entered that there was compliance with the award.
According to William Abelow, the reason for the delay
on the part of the Fund in implementing the terms of the
award was that "Mr. Davis was chairman of the Board
of Trustees, and at various meetings at which this was
discussed [he] took a position that, as chairman, he
would not order anything to be done." As chairman he
"was able to exercise the prerogatives of the Chair; to
take or not to take certain actions." 6 On the other hand,
William Taylor explained that Arbitrator Glushein issued
his award on March 17. Because of ambiguities a request
for clarification was made by both the Employer and the
Union trustees and in mid-April 1977 Arbitrator Glu-
shein handed down a clarification of his award. Under
the award, as clarified, employees would lose certain
benefits. According to Taylor:
It seemed to me that the Fund had an obligation,
not only a moral obligation, but I think we had a
legal obligation under ERISA, to provide an oppor-
tunity for the participants by giving them a period
of time during which they could, if they so chose,
[to] make other arrangements.
By that, I mean, purchase insurance, protect
themselves and their families in some other way.
Taylor also explained that the Fund did not have enough
employees to make the changes required in order to im-
plement Arbitrator Glushein's award and that as part of
the confirmation proceeding the court directed the trust-
ees to hire the necessary personnel and to incur other
necessary expenses in order to comply with the award.
Another incident was developed by General Counsel
through his witness William Abelow. According to
Abelow, in 1978 the Union trustees and the Fund admin-
istrators proposed that the benefits for employees of cer-
tain hospitals and nursing homes in Connecticut and
Pennsylvania should be improved and that these employ-
ees should be moved from plan C to plan B. "That came
up at a trustee's meeting and it was informally dead-
locked; no specific resolution was submitted." Because of
the deadlock the matter was referred to a committee of
6 Abelow also testified that William Taylor, who is executive director
of the Fund, is "responsible for carrying out the decisions of the Trustees
in all matters."
the officer trustees who were directed to make recom-
mendations at the next meeting of the board of trustees.
The committee of officer trustees reached an agreement
that the benefits should be raised, which was done before
the next meeting of the board of trustees. 7 However,
when the trustees met because "other events had inter-
vened" the Employer trustees were unwilling to accept
the recommendation to increase the benefits for the
group of hospitals and nursing homes in question. Ac-
cording to Abelow:
A formal motion was introduced and deadlocked.
And the Chair, Mr. Davis, ruled in the case of a
deadlock, we will just have to continued doing
things the way we did and . . . [as] Mr. Taylor as
director of the Fund [had] raised the benefits, based
on the action of the Officer Trustees . . . that was
simply the way it was going to be.
Some months later, that action was subsequently
ratified, but during that period of time it was the
position of the management trustees that this had
been done without authorization by the Trustees.
William Taylor's version of what occurred differs
somewhat from Abelow's testimony. According to
Taylor, in early 1978 the trustees on his recommendation
delegated authority to a committee of the officer trust-
ees-three from each side-to act on behalf of the entire
board of trustees:
Subsequently, as a result of renewed contracts for
various areas with higher rates of payment which
conformed to the rate manual, which was now
under consideration but which had not yet been
adopted by the trustees [t]here were requests that
the employees be transferred in Connecticut and
Pennsylvania from [plan] C to B.
My recollection is that we had a meeting some-
time in April of the Officer Trustees.
My recollection is it was April 24th, to be exact.
The trustees considered it and put it over and
scheduled another meeting for May 8th, about 10 or
12 days later.
On May 8th, the Officer Trustees . acted affir-
matively to effectuate the transfer that had been
recommended by me in April.
With all due respect to Mr. Abelow his recollec-
tion was that these were informal meetings.... I
checked our records and found that they were
indeed formal meetings.
There were minutes, and we have the copies of
the minutes here.
Taylor further testified that in carrying out the directions
of the committee of officer trustees "I acted in conformi-
7 Abelow testified:
The official minutes drawn by Fund Administration and I believe
approved, make it quite clear in my opinion that the Officer Trustees
were only authorized to make a recommendation.
The Union trustees and Mr. Taylor said that the intention was to
authorize the Officer Trustees to act. I don't believe that interpreta-
tion is correct, and in that sense there was a disagreement.
It is noted that the minutes referred to by Abelow were not produced at
the hearing.
-- ----
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 639
ty with their decision. My responsibility was to imple-
ment their decision, which I did."
In its brief Charging Party vigorously argues that both
Leon Davis and William Taylor directly involved them-
selves in collective bargaining on behalf of the Unions
which necessarily affected their behavior as Fund trust-
ees. More specifically, Charging Party contends:
It is practically impossible to determine whether
Mr. Taylor is acting at any particular time as the
Executive Director of the NBF or as Executive
Vice President of the Union. It is established with-
out dispute that Mr. Taylor has been involved in
the collective bargaining process with various em-
ployers who make contributions to the NBF on nu-
merous occasions in the past. In this regard, it
should be noted that Mr. Taylor testified at the
hearing that under a contract between the union
and the Strong Memorial Hospital, an arbitration
was held over the contract provision governing em-
ployer payments to the NBF. Strong Memorial
Hospital won that case based on the language of the
collective-bargaining agreement. Commenting on
the Union's loss, Mr. Taylor testified, "And as a
result of my intervention, the renewed contract
with Strong Memorial does not have that provi-
sion." Can there be any clearer evidence of Mr.
Taylor's direct involvement in the negotiating pro-
cess on behalf of the Unions?
B. Collective-Bargaining History
The Hospital and the Unions have had a collective-
bargaining relationship since 1969. While District 1199E
is the certified bargaining representative for the unit of
service and maintenance employees, the National Union
has provided representatives who actively have partici-
pated in collective-bargaining negotiations with the Hos-
pital and who have signed the collective-bargaining
agreements between District 1199E and the Hospital.
The two most recent agreements between the contract-
ing parties covering the periods from December 1, 1976,
to December 1, 1978, and from December 1, 1978, to
December 1, 1980, call for Hospital contributions to a
trust fund which provides the employees with health,
medical, hospitalization, and life insurance benefits. The
specific provision of the contracts reads as follows:
Section 12.1-National Benefit Fund for Hospital
and Health Care Employees: The Hospital shall, ef-
fective December 1, 1976, contribute monthly to
the National Benefit Fund for Hospital and Health
Care employees located at 310 West 43rd Street,
New York City, a sum equal to ten (10%) percent
of the gross payroll of the employees who have
completed their probationary period. Such payment
shall be based on the previous month's gross payroll
and shall be made on or before the 10th day of each
month. Such payment shall be used by the Trustees
of the Fund for the purpose of providing said em-
ployees with health, medical, hospitalization and life
insurance benefits . . . as the Trustees of the Fund
may from time to time determine. An independent
audit of the Fund shall be made annually and a
copy of the audit shall be furnished to the Hospital
and the Union. The Hospital further agrees to make
available to the Trustees or designated representa-
tives of the Fund, such records of employees as
classifications, names, social security numbers, and
account of payroll and/or wages paid which may
be required in connection with the sound and effi-
cient operation of the Fund or may be so required
in order to determine the eligibility of employees
for Fund benefits, and also to permit an accountant
for the fund to audit such records. The Hospital's
sole obligation under the Fund is to make the afore-
mentioned contribution to the Fund and no employ-
ee or dependent of the Fund shall have any right or
claim of any type against the Hospital for any bene-
fits provided under the Fund so long as the Hospi-
tal makes the contributions required by the Fund.
The Hospital's 1978 request for information regarding
contributing employer payments to the Fund has its his-
torical basis in the 1976 contract negotiations. During
these negotiations the Unions demanded an increase in
the Hospital's rate of contribution to the Fund from 8-1/
2 percent to 10 percent of the covered payroll asserting
that the requested increase was necessary because the
New York Hospitals were subsidizing the Baltimore Hos-
pitals. According to the Hospital's principal negotiator,
Leonard Marcus, although the Hospital questioned the
need for an increase in the contribution rate, it agreed to
the proposal on condition that during the term of the
contract the Hospital would be furnished experience re-
ports which would show its contributions to the Fund
and the amounts paid out by the Fund on behalf of its
employees. After the negotiating parties had resolved all
other outstanding issues the Hospital submitted a draft
contract to the Unions which included the following
provisions:
In consideration of the Hospital's agreement to
increase its contribution to the National Benefit
Fund from 8-1/2% to 10% of the covered payroll,
in accordance with the provisions of Section 12.1 of
the Agreement, commencing 7/1/77, the Union
shall comply fully with the terms set forth in the
following paragraph.
At the end of each calendar quarter the Fund
shall provide to the Hospital a written report which
shall contain an alphabetical listing of the full name,
social security. number, category of benefit and
amount of money expended on behalf of each em-
ployee of the Hospital for whom any benefits were
paid by the Fund during that calendar quarter.
The Unions objected to these provisions and in lieu
thereof submitted an alternate proposal which stated
only that both parties would direct their respective trust-
ees to provide the Hospital with the desired information.
After the Unions threatened to call a strike if the matter
could not be satisfactorily resolved, the parties agreed to
submit their differences to arbitration. However, on
August 18, 1977, prior to the scheduled arbitration pro-
ceeding, representatives of the Hospital, the Unions, the
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fund, and the Fund's actuaries met and reached a settle-
ment.8 Pursuant to the terms of the settlement the fol-
lowing clause has been included in the parties' two most
recent collective-bargaining agreements:
For each calendar year the National Benefit Fund
shall, upon written request of the Hospital, provide
to the Hospital a written experience report in accor-
dance with the letter of August 3, 1977 from H. L.
Kane to W. J. Taylor and the letters of August 8,
1977 and August 10, 1977 from M. A. Lewart to W.
A. Schneckenburger.
The letter of August 3, 1977, from Howard L. Kane on
behalf of the Fund's consulting actuaries Woodward
Ryan Sharp and Davis Inc. lists a schedule of fees which
the Hospital (and other employers) will be required to
pay in order to obtain experience reports. The schedule
is set forth in Attachment on p. 648.
Also, in connection with the resolution of this dispute,
the Fund, pursuant to the direction of its trustees, estab-
lished a procedure whereby any contributing employer
would be furnished an experience report upon the pay-
ment of a fee in accordance with a schedule prepared by
the actuaries.9
The Hospital requested and received experience re-
ports for the calendar years 1976 and 1977 which show
that its contributions exceeded the cost of the benefits re-
ceived by its employees in the respective amounts of
$30,412 and $137,108. According to Leonard Marcus, for
the years 1976 and 1977 only 6.76 percent and 7.12 per-
cent, respectively, of covered payroll was required to
defray the cost of the benefits used by the Hospital's em-
ployees, although the Hospital's contribution rate for
each of those years was 10 percent. Furthermore, the
Fund's financial reports show that the excess contribu-
tions are not being held in a reserve fund for the benefit
of the Hospital's employees.' 0
C. The 1978 Negotiations
Prior to the December 1, 1978, termination of their
collective-bargaining agreement the Hospital and the
Unions served on each other a notice of desire to termi-
nate or modify the subsisting agreement and to begin ne-
gotiations for a succeeding contract. The Hospital's
notice is dated July 21, 1978, and the Union's notice sent
by the National Union on behalf of District 1199E is
dated August 22, 1978. Negotiations began on September
19, 1978. Spokesman for the Hospital was Leonard
Marcus, who is the institution's vice president for human
8 In his brief General Counsel argues:
This situation further demonstrates that the District and the NBF
have acted in concert with one another in furtherance of collective-
bargaining objectives, and provides substantiation for the finding that
the NBF acts as the agent of the union in furtherance of union inter-
est.
9 William Abelow testified that since the spring of 1968 the New York
League of Hospitals, whose members are contributors to the Fund, "have
requested . . information, as to the cost ... of benefits for our particu-
lar group of institutions be furnished, and they have been furnished to us
through Mr. Taylor's office from the actuaries."
'0 Similar experience reports for the Johns Hopkins Medical Institu-
tions, also located in Baltimore, show contributions in excess of the cost
of benefits for its employees of S3,758 for 1976 and $446,869 for 1977.
resources, and spokesman for the Unions initially was
Edward Kearl, secretary-treasurer of District 1199E.
Participating also was Ronald E. Hollie, president of
District 1199E. After a number of bargaining sessions
had taken place, Bernard Minter, a representative of the
National Union, attended the meetings and acted as
spokesman for the Unions.
At the September 19 session the parties exchanged
their contract proposals. Among other things, the Hospi-
tal asked for a decrease in its rate of contribution to the
Fund from 10 percent to 7 percent of covered payroll,
while the proposals of District 1199E asked for a two-
step increase in the contribution rate from 10 percent to
11-1/2 percent effective December 1, 1978, and from 11-
1/2 percent to 13 percent effective on December 1, 1979,
At this meeting the Hospital asked the Unions to provide
the information which it earlier had requested from the
Fund, the National Union, and District 1199E or to in-
struct the Fund to furnish the information. Kearl re-
sponded that only the Fund had the desired information
and District 1199E would ask the Fund to furnish it to
the Hospital, although he expressed the opinion that
"they won't give it."
Additional bargaining meetings were held on Septem-
ber 29, October 12 and 26, and November 2, 9, 16, 24,
and 29. The rate of contribution to the Fund was exten-
sively discussed by the parties at the various meetings."
The Hospital's position during the negotiations gener-
ally was that contributions to the Fund in excess of the
amounts required to provide benefits for the Hospital's
employees and their dependents are unlawful under Sec-
tion 302 of the Labor Management Relations Act and
that the savings which would be realized by matching
contributions to the cost of benefits could be used to in-
crease employees' wages or for other benefits. Neverthe-
less, at the November 2 negotiating session the Hospital
amended its proposal by offering to increase the contri-
bution rate from 7 percent to 8 percent of payroll for the
covered employees. However, the Unions stubbornly
maintained that the increases in the rate of contribution
which they were seeking were necessary because they
had been recommended by the officers of the Fund and
reflect what is called for by the rate manual which was
adopted by the Fund. Both Ronald Hollie and Bernard
Minter expressed their suspicions that the Hospital was
seeking to destroy the Fund. 2
Influenced by a settlement-1hrt had been reached by
the Johns Hopkins Hospitals, the parties in the early
morning hours of November 30 reached agreement upon
a contract to succeed the contract expiring on December
1 which, among other things, provides that the Hospital
will make contributions to the Fund at the rate of 10 per-
cent of its covered payroll, which is the same rate as was
called for in the expired contract.
" The unfair labor practice charges in this proceeding were filed on
September 22 between the first and second negtiating sessions.
2 The Hospital received a copy of its ep'ence report for the first 8
months of the calendar year 1978 at a }Ite point during the negotiations,
which indicated that the Hospital's contributions to the Fund for the 8-
month period exceeded the cost of benefits for its employees by an
amount between $55,000 and $80,000.
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 641
D. The Request for Information
Prior to the commencement of face-to-face negotia-
tions on September 19, 1978, the Hospital initiated its re-
quests for information regarding employer contributions
to the Fund and related data. This resulted in extensive
correspondence between the Hospital on the one hand
and the Fund by its executive director, the National
Union, and District 1199E on the other hand. Although
the negotiations between the Hospital and the Unions
were successful and the parties entered into an agree-
ment for 2 years from December 1, 1978, to December 1,
1980, the Hospital nevertheless insists that it requires the
information which it has requested and which in the
greater part has not been furnished.
Much in the correspondence between the parties relat-
ing to the Hospital's request for information is self-serv-
ing justifications for their respective positions. However,
pertinent to the issues in this proceeding are the extracts
quoted below from the letter exchanged by the parties: ' s
July 31, 1978, letter from Leonard Marcus, vice presi-
dent of the Hospital, to William J. Taylor, executive di-
rector of the Fund:
So as to permit the Hospital () to bargain intelli-
gently, (2) to police the administration of the cur-
rent contract, (3) to prepare for coming negotiations
and (4) to evaluate the NBF contribution level, I
hereby request the following information and data
concerning the NBF.
The Hospital requires two separate reports for cal-
endar years 1976 and 1977 respectively, listing verti-
cally (in alphabetical order, by geography, by type
of organization or by other logical sequence) each
"Contributing Employer," as that term is defined in
Article I, "Definitions," of the Agreement and Dec-
laration of Trust made as of 10/1/49 and as amend-
ed subsequent thereto. For each of the two calendar
years, the report should contain, in columnar fash-
ion, the following information:
1. Contributing Employer (name and city of loca-
tion)
2. Identification Number (which may be coded
for confidentiality)
3. Types of Organization (i.e., hospital, home,
local union, drug retailer, etc.)
4. Number of Covered Employees (annual aver-
age will suffice)
5. Gross Annual Payroll (for covered employees)
6. Average Annual Pay (Item 5 divided by item
4)
7. Annual Employer Contribution (dollars actual-
ly contributed to NBF)
8. Contribution Rate (percent of Gross payroll
actually contributed to NBF)
9. Quality of Benefits (i.e., Plan B, Plan C, other)
I do not believe this information is confidential
but if the NBF has a contrary opinion, the report
may initially omit the name of the Contributing Em-
ployer so long as a unique identification number is
I3 Where indicated emphasis is supplied.
provided and the actuaries (whom I assume will
prepare the reports) have a sufficient basis for certi-
fying that the information supplied is accurate.
August 3, 1978, reply from Taylor:
I am unable to provide you with the information
that you requested in your letter to me dated July
31, 1978, since it is not available and the time, effort
and cost of organizing would be very substantial.
The release of such confidential data regarding
all contributing employers-approximately 2,000-
to one single employer would also require specific
authorization from the Board of Trustees.
Although I have not discussed this with the
Fund's Counsel, I suspect that authorization would
also have to be obtained from each individual em-
ployer and possibly each individual employee.
August 18, 1978, response by Marcus to Taylor's
August 3 letter:
I do not beleive the information requested is con-
fidential and I find nothing in the current collective
bargaining agreement or the NBF Agreement and
Declaration of Trust which can support such an as-
sertion ...
With respect to the time, effort and cost of pro-
viding the data requested, as with past requests for
information, Sinai would be willing to reimburse the
NBF for Hospital pre-approved extraordinary expendi-
tures made on its behalf. Assuming that other con-
tributing employers are required to provide NBF
with the same kind of monthly input information
the NBF requires of Sinai Hospital, I believe you
have overestimated the difficulty of generating the
information I requested in the format suggested in
my letter....
August 29, 1978, answer by Taylor to Marcus' August
18 letter:
We will continued to provide you-and all other
Contributing Employers-with Certified Annual Fi-
nancial Reports and other relevant data as autho-
rized by the Trustees or required by law.
We will not, however, divulge confidential infor-
mation concerning each and every other Contribut-
ing Employer. Their annual gross payroll, payments
to the Fund and the other information requested by
you has absolutely no bearing on your upcoming
negotiations with the Union.
I also want to remind you that the Board of
Trustees is shared equally by Employer and Union
Trustees and that an employee of Sinai Hospital,
Mr. Walter Schneckenburger, is an Employer
Trustee elected by the Contributing Employers in
Maryland-Washington, D.C.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It might be more appropriate for you to have
your Trustee pursue your objective with the Board
of Trustees.
September 7, 1978, letter from Walter A. Schnecken-
burger, vice president of the Hospital and trustee of the
Fund, to William J. Taylor, executive director of the
Fund:
In accordance with the suggestion contained in
your letter of 8/29/78 to Leonard Marcus, as Em-
ployer Trustee, I hereby request information rela-
tive to income received by the NBF.
In order to discharge my trustee responsibilities, I
require various kinds of information from time to
time. The information requested here is vital to my
understanding of how the Fund satisfies its legal ob-
ligations, for which I am ultimately responsible. Al-
though I here request the information for my use as
a trustee, I see no reason why Sinai or any other
contributing employer should be denied the same
information as long as relevance and need is pre-
sent.
Specifically, I require two separate reports for cal-
endar years 1976 and 1977 respectively, listing verti-
cal (in alphabetical order, by geography, by type of
organization or by other logical sequence) each
"Contributing Employer," as that term is defined in
Article I, "Definitions," of the Agreement and Dec-
laration of Trust made as of 10/1/49 and as amend-
ed subsequent thereto. For each of the two calendar
years, the report should contain, in columnar fash-
ion, the following information:
I. Contributing Employer (name and city of loca-
tion)
2. Identification Number (which may be coded
for confidentially)
3. Types of Organization (hospital, home, local
union, drug retailer, etc.)
4. Number of Covered Employees (annual aver-
age will suffice)
5. Gross Annual Pay roll (for covered employ-
ees)
6. Average Annual Pay (Item 5 divided by item
4)
7. Annual Employer Contribution (dollars actual-
ly contributed to NBF)
8. Contribution Rate (percent of gross payroll ac-
tually contributed to NBF)
9. Contract Contribution Rate (percent of gross
payroll cited in written agreement)
10. Quality of Benefits Provided (Plan A, Plan B,
Plan C, other)
I do not believe this information is confidential
but if you have a contrary opinion, the report may
initially omit the name of the Contributing Employer
so long as a unique identification number is provided
and the actuaries (whom I assume will prepare the
reports) have a sufficient basis for certifying that
the information supplied is accurate.
For the same two calendar years (1976 and 1977)
1 request copies of the document the NBF is re-
quired by ERISA to file with the Secretary of
Labor (i.e. Plan Description, Summary Plan De-
scription, Annual Report, etc., and any amendments
thereto). My attempts to secure these materials from
the Department of Labor have not met with suc-
cess.
September 14, 1978, reply from Taylor:
With respect to the information you requested, I
believe that you have the answer to #4, to #7 and
the answer to #10. This information is contained in
the Executive Director's, the Auditor's and the Ac-
tuary's Reports regularly submitted to the Trustees.
The Fund does not have the answer to #6 (aver-
age annual pay). Although the information regard-
ing the other items is contained within the records
of the Fund, it is not organized or readily available
or in the form that you have requested.
Compliance with your request will require a sub-
stantial allocation of personnel, time and expense
which has not been budgeted for by the Trustees. I
suggest that it would be more appropriate, if you so
desire, for you to pursue this matter at the next
meeting of the Board of Trustees since it is my
opinion that authorization and approval is required
before I can act.
September 20, 1978, answer by Schneckenburger to
Taylor's September 14 letter:
I have reviewed the Executive Director's, the
Auditor's and the Actuary's Reports and nowhere
in those documents do I find the answers to #4, #7
or #10 of my letter. The figures contained in those
documents relate to the Fund as a whole or to
"Districts" but do not provide data respecting each
"contributing employer" "for calendar years 1976
and 1977" as I requested.
Although the Fund does not have the answer to
#6, that figure may be derived by merely dividing
item #5 by item #4 as my letter clearly stated.
Since your records contained the information
needed for items #4 and #5, the calculation should
be simple.
Your letter plainly states that "the information re-
garding the other items is contained within the re-
cords of the Fund." This being the case, the satis-
faction of my request requires only clerical and
ministerial acts which certainly do not require
action of the Board of Trustees. By law and by the
NBF Agreement and Declaration of Trustees, the
Trustees only approve policy matters and issues of
substance. Their assent is not required or even ad-
visable with respect to routine managerial and cleri-
cal tasks. Were that the case, there would be no
need for an Executive Director or a clerical staff
and as a result, the Trustees would find themselves
in constant session discussing routine matters, boo-
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 643
keeping decisions and office operations. The unnec-
essary transfer of responsibility for deciding to pro-
vide the information I seek, to the Board of Trust-
ees, would only further delay the delivery of vitally
needed information. As a Trustee, I am appalled at
the notion that the Board should waste its time on
such routine procedural matters.
The "substantial allocation of personnel, time and
expense which has not been budgeted for by the
Trustees" cited in your letter, all translates to the
reasonable costs of providing the information
sought. In his letter to you dated 8/18/78, Leonard
Marcus expressly stated that "Sinai would be willing
to reimburse the NBF for hospital pre-approved ex-
traordinary expenditures made on its behalf' in con-
nection with the requested date. Under these cir-
cumstances, there is absolutely no need for the
Trustee budgetary approval since the NBF will be
reimbursed by Sinai and no budget is required.
Your letter makes no mention of the documents I
requested which the Fund is required by ERISA to
file with the U.S. Secretary of Labor. To date, I
have not received any of them from the Fund and
as I indicated on 9/7/78, they are simply not avail-
able at the U.S. Department of Labor in Washing-
ton, D.C. Since there can be no argument about a
Trustee's right to and the ready availability of, these
legally required materials, I see no reason why you
should not supply them immediately. I would ap-
preciate receiving them by return mail.
September 26, 1978, response to Taylor to Schnecken-
burger's September 20 letter:
The answer to #10 "Quality of Benefits, etc." is
contained in the attached schedules which were ap-
proved by the Trustees. All of the employees cov-
ered by each of the three Plans of Benefits are iden-
tified by their employer.
I have extracted the answer to #7 from the en-
closed copy of the 1977 Financial Statement. (See
page 3 Exhibit B.)
Employer Payments-1976 = $68,683,274.
Employer Payments-1977 = $76,732,306.
The answer to #4 is contained in the enclosure
entitled "Number of Members covered." These
schedules show you the census of the Fund by year
and by month.
These figures include approximately 2,200 Re-
tired Members on Extended Coverage and 5,800
Direct Payment leaving a balance of about 83,500
employees covered by employer payments.
With respect to the other information that you
have again requested, my response is unchanged
from my prior letter to you dated September 14,
1978.
September 28, 1978, letter from Taylor to Schnecken-
burger:
I am enclosing a copy of the Form 5500 filed
with the Labor Department for 1976 which I inad-
vertently failed to include in my letter to you dated
September 26, 1978.
I am unable to furnish you with a copy of the
1977 Form 5500 since the report has not been filed
by the Fund as of this date.
Although you did not request it, I am also en-
closing a copy of the EBS I Report for 1976.
With respect to the Summary Plan Description
(SPD) this document is still in draft form. A copy
will be furnished to all the Trustees as soon as it is
finalized.
October 6, 1978, letter from Schneckenburger ad-
dressed to Taylor as executive director of the Fund and
as executive vice president of the National Union:
Thank you for pointing out that a listing of the
quality of benefits provided (i.e. Plan "A", "B", or
"C") for the employees of each contributing em-
ployer is contained in the schedules already sent to
me and other Trustees. Frankly, I had not made
that discovery when I received the Actuary's
Report dated 4/25/78. The schedules enclosed with
your letter are additionally helpful in that they up-
dated the former schedules from 1/5/78 to 7/10/78.
The 1976 government required reports sent with
your second letter are appreciated and I look for-
ward to receiving from you copies of the 1977 re-
ports and other related materials when they are
filed with the Secretary of Labor.
The remainder of the information contained in
your letters and attachments is interesting but not
really responsive to my requests for specific data
"for calendar years 1976 and 1977" for "each 'Con-
tributing Employer"' (emphasis added). The data
requested in items #1 through #9, of page two of
my 9/7/78 letter to you, is required for each indi-
vidual contributing employer listed in the "Sched-
ules of Employers Whose Employees Are Eligible
for Plan A [B and C] Benefits" enclosed with your
9/26/78 letter. Similarly, information is required for
each individual contributing employer listed in the
1976 and 1977 versions of the aforementioned
scheduled.
The need for and relevance of this information
has been well documented in prior correspondence
from myself and Mr. Marcus to you, Mr. Davis and
Mr. Hollie. I am advised by counsel that as a Trust-
ee of the NBF and as an officer of Sinai Hospital, I
should be concerned with and informed of those as-
pects of the NBF's operations about which I have
raised questions. At the suggestion of counsel, set
forth once again in this letter are the basis reasons
behind the request for the information sought.
1. To police the administration of the current
contract
Under Section 12.1 of the Agreement between
Sinai and District 1199E, the Hospital is current-
ly obligated to pay 10% of its covered payroll
for Sinai employees to the NBF. By the express
terms of that Agreement, "Such payments shall
be used by the Trustees of the Fund for the pur-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of providing said employees with . . .
benefits" (emphasis added). The 1976 and 1977
Sinai experience reports provided by the Fund's
actuaries show that Sinai overpaid the Fund by
at least $167,000 during that two year period.
Since that money is not credited or refunded to
Sinai Hospital or its employees or set aside as a
reserve for their use, but rather commingled with
other monies received by the Fund, Sinai's pay-
ments do not appear to be used for the purpose
of providing Sinai employees with benefits. The
information I have requested, therefore, is rel-
evant and necessary to police the administration
of the current contract.
2. To prepare for current negotiations and to bar-
gain intelligently over a mandatory subject for bar-
gaining.
* * * * *
3. To avoid criminal liability under Section
302(c)(5) and (d) of the Labor Management Rela-
tions Act.
Under Section 302 of the Labor Management
Relations Act, it is unlawful for any employer to
pay any money to any representative of any of
his employees or to any labor organization. By
virtue of the exception contained in Section
302(c)(5), however, such payments are not un-
lawful with respect to money paid to a trust fund
for the sole and exclusive benefit of the employees
of such employer or employers of other employers
making of such employer or employers of other em-
ployers making similar payments. Since Sinai's
1976 and 1977 overpayments to the NBF are not
credited or refunded to Sinai Hospital or its em-
ployees or set aside as a reserve for their use, but
rather commingled with other monies received
by the Fund, Sinai's payments do not appear to
be used for the sole and exclusive benefit of Sinai
employees. Moreover, the diversity of benefits
provided to various employees under Plans "A",
"B" and "C", the variations in contractually re-
quired payments and payments actually made to
the Fund, and the apparent continuation of bene-
fits to employees of employers who have failed
to pay part or all of their contractually required
payments to the Fund, all raise questions with re-
spect to whether or not other employers are
making similar payments. The information I have
requested, therefore, is relevant and necessary to
avoid potential criminal liability.
For all of the foregoing reasons, the specific ten
items of information requested in my letter of 9/7/
78, for each individual contributing employer for cal-
endar years 1976 and 1977 should be provided by
the NBF. Without the information sought, I am
unable to discharge my dual responsibilities as an
NBF Trustee and an officer of Sinai Hospital of
Baltimore, Inc.
September 5, 1978, letter from Leonard Marcus to
Ronald E. Hollie, president of District 1199E, and to
Leon J. Davis, president to National Union:
As evidenced by the enclosed correspondence,
Sinai Hospital has unsuccessfully attempted to
secure from the National Benefit Fund information
the Hospital requires in connection with the upcom-
ing contract negotiations.
The Hospital needs the information (1) to bargain
intelligently, (2) to police the administration of the
current contract, (3) to prepare for coming negotia-
tion and (4) to evaluate the NBF contribution level.
The information sought is exclusively in the posses-
sion of the Union and its agent the NBF, and can be
obtained from no other source.
Since the NBF has refused to supply the request-
ed data for bargaining, Sinai Hospital hereby de-
mands that the local and national Unions provide
the information requested of the NBF on 7/31/78,
or that you instruct you agent, the NBF, to comply
with our request....
September 7, 1978, reply by Davis:
In response to your letter of September 5 about
the National Benefit Fund, I wish to advise you (if
you don't already know) that the Fund is a joint
management and union Fund, with an equal number
of Trustees from the management and union on the
Board. Any communication with respect to infor-
mation on the operation and administration of that
Fund should be addressed to the Board of Trustees.
A representative of your hospital, Walter A.
Schneckenburger, is a Trustee on that Board.
September 8, 1978, reply by Hollie:
I am forwarding your letter of September 5,
1978, to the National Benefit Fund. Since the Trea-
surer of the Hospital is a Trustee on the Board of
the National Benefit Fund, I suggest you pursue
that matter with him. I do not have the information
you request and cannot provide you with it.
October 27, 1978, letter from Leonard Marcus to
Ronald E. Hollie:
[T]he Union seeks to require the Hospital to
make payments of money to the National Benefit
Fund for Hospital and Health Care Employees
(NBF) far in excess of what is required by the NBF
to provide benefits for Sinai employees and their
dependents.
It is the purpose of this letter to clearly summa-
rize, in writing, the Hospital's position and to once
more ask the Union to withdraw, in writing, its un-
lawful demand.
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 645
As the Hospital has told the Union across the
bargaining table, based on the experience reports
provided by the NBF to the Hospital under the
terms of our collective bargaining agreement, in
1976 the Hospital overpaid the NBF by at least
$30,412.00 (or 9.6%) and in 1977 the Hospital over-
paid the NBF by at least $137,108.00 (or 40.4%).
Although the 1978 experience report data has not
yet been provided to the Hospital by the NBF, an
overpayment of at least another $100,000.00 is pro-
jected. The NBF has informed the Hospital that
these overpayments are not credited or refunded to
Sinai Hospital or its employees and their depen-
dents, nor are they set aside as a reserve for their
use, but rather the ovepayments are commingled
with other monies received by the NBF.
As the Hospital has also told the Union across
the bargaining table, under Section 302 LMRA, it is
unlawful for any employer to pay any money to
any representative of any of his employees or to
any labor organization. By virtue of the exception
contained in Section 302(c)(5), however, such pay-
ments are not unlawful "with respect to money . . .
paid to a trust fund . . . for the sole and exclusive
benefit of the employees of such employer ... or ...
the employees of other employers making similar pay-
ments .... " Since Sinai's overpayments to the
NBF are not credited or refunded to Sinai Hospital
or its employees and their dependents nor are they
set aside as a reserve for their use, but rather the
overpayments are commingled with other monies
received by the NBF, Sinai's payments are not used
for the "sole and exclusive benefit" of Sinai employ-
ees. Moreover, the diversity of benefits provided to
various employees of various contributing employ-
ers under NBF Plans "A", "B" and "C", the vari-
ations in contractually required employer payments
and employer payments actually made to the NBF,
and the continuation of benefits to employees of
employers who have failed to pay part or all of
their contractually required payments to the NBF,
indicate that other employers are not "making simi-
lar payments."
The Hospital's request to the Fund for information ul-
timately was considered by the Fund's trustees. Execu-
tive Director Taylor brought the matter to the attention
of the Fund's joint administrative committee at one of its
regular meetings. The union members of the committee
opposed the Hospital's request while the employer mem-
bers were in favor of furnishing the information with
provision being made to protect "confidenitally" and to
impose the costs in the matter upon the Hospital. As no
resolution of the question was reached at this meeting, a
letter dated November 9, 1978, on behalf of 10 employer
trustees was sent to Executive Director Taylor request-
ing him to conduct a mail referendum among the trustees
as to whether the Hospital's request for information
should be complied with. Such referendum was conduct-
ed about November 15, 1978. Of the union trustees one
voted yes, two did not vote, and the others voted no; of
the employer trustees four or five did not vote and the
rest voted yes. Because of the Trust Indenture's bloc
voting provision the result of the mail referendum is a
deadlock which effectively denies the Hospital's informa-
tion request. According to Schneckenburger, the result
of the mail referendum was formally entered in the
Fund's records at a trustees' meeting held on January 24,
1979, but no final decision has been reached as to wheth-
er an arbitration proceeding should be brought in order
to resolve the deadlock. 4
While there may be some question as to what effective
use the information requested by the Hospital can be put,
nevertheless, it would appear that the Hospital's request
meets the standard of relevancy suggested by the Su-
preme Court in the Acme case. ' 5
Executive Director Taylor testified that his "authority
is broad and general and [he] felt that his matter was
within the jurisdiction of [his] authority and consequent-
ly [he] responded" to the Hospital's request for informa-
tion in the manner reflected by the correspondence in
evidence. Taylor's reasons for refusing to furnish the in-
formation as asserted in his letters and in his oral testimo-
ny are entirely conclusionary in nature and are devoid of
factual support. Although Taylor was questioned exten-
sively as to why the requested information was confiden-
tial, he was unable to give any reason other than that is
his opinion. Further, even assuming confidentiality, he
made no effort to explain why the Charging Party's pro-
posal to withhold the the identity of the employers
would not adequately protect their confidences. Similar-
ly, Taylor's assertions that it would be costly and disrup-
tive to the Fund's normal operations to provide the in-
formation are more contrived than convincing. There is
no question that providing the information may be ex-
pensive; Schneckenburger, who would lean towards the
low side, estimated that assembling the information
would cost up to $30,000. However, regardless of the
figure, the Hospital offered to pay the costs so that com-
plying with its request would impose no financial burden
on the Fund. While it may be true that assembling the
information would require additional work by the Fund's
staff, Taylor gave no convincing reasons as to why it
could not be done-by hiring additional employees if
necessary or by commissioning the Fund's accountants
or other similar organization to do the work at the Hos-
pital's expense. Further, Taylor's response to the Hospi-
tal's information request was not made in good faith. He
testified that he replied without knowing what the cost
of assembling the information would be and without con-
sulting the Company which provides the data processing
services for the Fund as to the feasibilty and the cost of
retrieving the information from the data bank. I find that
Taylor neither in his correspondence nor in his oral testi-
mony gave any acceptable business reason for refusing to
provide the information and that the Fund has not other-
wise demonstrated any legitimate business justification
'' In his brief General Counsel argues:
The 1978 poll of NBF trustees is a convincing demonstration of
both the control exercised over the NBF by the National Union, and
the manner in which the Unions and the NBF act in concert with
one another to promote the goals and interests of the Unions.
'5 NL.R.B. v. Acme Industrial Co., 385 U.S. 432, 437 (1967).
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for refusing to furnish the Hospital with the requested in-
formation. ' 1
Discussion
Among the obligations imposed upon a labor organiza-
tion by Section 8(b)(3) and (d) is to give the employer
whose employees it represents all information which it
possesses, requested by the employer, that is relevant and
reasonably necessary in order for the employer to dis-
charge his collective-bargaining functions, which in-
cludes information relating to the administration of the
collective-bargaining agreement as well as to its negotia-
tion. 17 This duty on the part of a labor organization to
provide information is the reciprocal of a similar obliga-
tion on the part of the employer. "[T]he right to the in-
formation arises out of a 'need' for it shown by the cir-
cumstances of the particular situation. While it is often
stated that the information sought must be 'relevant,'
more than abstract relevance is required. The fact that
the information will be merely 'helpful' is not enough."' 8
The test of relevancy is similar to that used in discovery
proceedings: "the probability that the desired information
[is] relevant, and that it would be of use . . . in carrying
out . . . statutory duties and responsibilities."' 9
The information which the Charging Party requested
concerns the operation of the Fund. The Hospital direct-
ed its request for the information to the Unions and to
the Fund. The Unions responded that they did not have
and therefore could not provide the requested informa-
tion. The Fund by its executive director, who not only is
a trustee and an officer of the Fund but also is a vice
president of the National Union, refused to comply with
the request asserting that the information sought was
confidential and that to assemble the information would
be costly and would interfere with the normal activities
of the Fund.
Assuming that the information is relevant and reason-
ably necessary in order for the Hospital to perform its
collective-bargaining functions the Hospital has a right
under the statute to demand that its employees' represen-
tative, the Unions, furnish it. However, the Unions are
unable to comply because only the Fund has the data
and the records to assemble the requested information.
But the Fund has no direct obligation under the Act to
respond to the Hospital's request because it is not a labor
organization nor the representative who was "designated
or selected for purposes of collective bargaining" by the
Hospital's employees. To overcome this jurisdictional in-
firmity the complaint, which charges the Fund with a
16 See Detroit Edison Company v. N.LR.B., 440 U.S. 301 (1979). It
would seem that as a cotrustee Schneckenburger has right to the informa-
tion he requested-particularly if he is willing to absorb the cost of as-
sembling the data-and that he can enforce this right in a court of equity.
However, this proceeding is not concerned with conflicts among the co-
trustees or between trustees and the administrators of the Fund, but only
with whether a collective-bargaining representative or its agent has re-
fused to bargain collectively with an employer within the reach and in-
tendment of Sec. 8(b)(3).
'T See Local 13, Detroit Newspaper Printing and Graphic Comminica.
tions Union, International Printing and Graphic Communications Union,
AFL-CIO (The Oakland Press Co.), 233 NLRB 994 (1977).
' The American Oil Company, a Texas Corporation, 164 NLRB 29, 3-
(1967).
'" N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 437 (1967).
violation of Section 8(b)(3), alleges that the Fund is an
agent of the Unions "acting on its behalf, within the pur-
view of Section 2(13) of the Act," and therefore has the
legal duty to provide the requested information on behalf
of its principals, the Unions. (Unless the Fund is an agent
of the Unions the complaint against the Unions must fail
because the Unions do not have, and therefore by them-
selves cannot provide, the requested information. 20
The threshold question here is whether the Fund is the
agent of the Unions.21 There is no contention by Gener-
al Counsel that the Fund is the general agent of the
Unions.2 2 If it were a general agent so that it would be
required to respond to the direction of the Unions in the
conduct of all the Fund's business and activities, then the
very organization as well as the operation of the Fund
would violate Section 302.23 Rather, the position of
General Counsel, disputed by Respondents, is that the
Fund is a special or limited agent of the Unions for the
purpose of enabling the Unions to comply with their col-
lective-bargaining obligation to furnish the Hospital with
the information requested by it.24 Not an issue in the
20 See Endo Laboratories Inc., 239 NLRB No. 147, fn. 8 (1978), where
the Board pointed out that in the case before it "[t]he record reveals that
Respondent, after having been notified by the Union that the health and
welfare information was to be obtained from the fund and its trustees,
continued to address its inquiries to the inappropriate party."
21 The complaint, as amended, also alleges that the "National Union
has directed the Union Trustees of (the Fund] to refuse to provide the
requested information, and in so doing, Respondent has refused and con-
tinues to refuse to bargain in good faith with the Employer." There is no
evidence that any such specific direction was given by the National
Union. More is required to sustain this allegation than that the president
and other officials of the National Union are also trustees of the Fund.
The mandate of equal representation set forth in Sec. 302 (cX5)(B) con-
templates that in the administration of a fund the designees of a union and
of an employer may be influenced by their respective biases but, never-
theless, must fairly and honestly discharge their fiduciary duties. The
mere fact that a union appointed trustee in the exercise of his administra-
tive trust functions acts in a manner which parallels or tends to support
the union's position does not mean that the trustee thereby has become an
agent of that union. Furthermore, it is not unlawful for trustees of a Sec.
302 trust in the performance of their duties as trustees to "entertain the
recommendations of their appointing parties." Camay Drilling Company,
239 NLRB No. 138, fn. 10 (1978). See also Toensing v. Brown, 528 F.2d
69, 72 (9th Cir. 1975); Associated Contractors of Essex County, Inc. v. La-
borers International Union of North America, 559 F.2d 222, 228 (3d Cir.
1977).
22 See Restatement of the Law, Second, Agency 2d, Sec. 3 (1957).
22 "The evils which Congress sought to prevent by enacting Section
302 were bribery of employee representatives by employers, extortion by
employee representatives, and possible abuse by union officers of the power
which they might achieve if welfare funds were left to their sole control ... .
To remove these dangers, specific standards were established to assure
that welfare funds would be established only for purposes which Con-
gress considered proper and expended only for the purposes for which
they were established. Arroyo v. United States, 359 U.S. 419, 426 (1959)
. . Employing Plasterers' Assoc. v. Journeymen Plasterers' Protected Soci-
ety, 279 F.2d 92, 97-99 (7th Cir. 1960). See Senate Rept. No. 105 on S.
1126, p. 52; House Conference Rept. No. 510 on HR. 3020, pp. 66-67; 1
Legislative History of the Labor Management Relations Act (1947), 458,
570-571; 11 Legislative History of the Labor Management Relations Act
(1947), 1312-1313, 1322, 1498-1499." (Emphasis supplied.) Quoted from
pages 35-36 of the brief filed by the Board with the United States Court
of Appeals for the Second Circuit in Carpenter Sprinkler Corporation v.
N.LR.B., No. 78-4189. See also Goetz, "Developing Federal Labor Law
of Welfare and Pension Plans," 55 Cornell Law Review 911, 922 (1970).
24 Charging Party contends that the Fund is a general agent of the
Unions. In its brief Charging Party argues: "In the instant case, the oper-
ation of the NBF as an entity controlled by the Unions is clearly shown
Continued
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES 647
proceeding this whether the individual union-appointed
trustees, in their individual capacities as trustees, are
agents of the Unions. 25
Normally, the functions of a trust fund, the relation-
ship between the trustees on the one hand and the set-
tlors and the beneficiaries on the other hand, and the
powers of the trustees are defined in the Trust Indenture,
the organic instrument which created the trust.2 6 "The
provisions of the trust instrument may give a person the
power to control the action of the trustee in certain re-
spects. This person may be a co-trustee, the settlor, a
beneficiary, or a third person otherwise unconnected
with the trust"27 and the relationship between the trust-
ee and such other person may be that of principal and
agent. Thus, when the required elements in each relation
exist "a trustee may be an agent as well as a trustee."2 8
A trust fund of the type contemplated by Section 302
"is a hybird trust which does not neatly fit in the catego-
ries of ordinary trusts .... The Funds which make up
the trust res are not paid to the trust as acts of benefi-
cience, but rather are paid to satisfy a contractual duty
owed by the [employer] to the signatory union and the
employees so represented." 29 The terms of the collec-
tive-bargaining agreement which provide for the contri-
butions to the trust fund, whether by specific reference
in the trust instrument or by inference, bind the trustees
of the fund in regard to the acceptance and application
of the contributed funds. 30 The Board considers the rela-
tionship thus created between the contracting parties
(employer and union) and the trustees a special or limit-
ed principal-agent relationship. See as examples: J.J. Ha-
gerty, Inc., 139 NLRB 633 (1962), enfd. sub nom. Local
138, International Union of Operating Engineers, AFL-
CIO v. N.L.R.B., 321 F.2d 130 (2d Cir. 1963) (the fund
and its trustees were found to be agents of the contract-
ing union and the employer where welfare coverage was
restricted to men who maintain financial good standing
with the union thereby discriminating against non-
members in violation of the Act); Local 80, Sheet Metal
Workers International Association, AFL-CIO (Turner-
Brooks, Inc.), 161 NLRB 229 (1966) (trustees who assist-
ed the union in pursuit of an unlawful purpose by refus-
ing to accept contributions tendered to the trust fund as
required by the terms of the applicable collective-bar-
by the activities of the Board of Trustees with regard to the Hospital's
information request"
5' The complaint names as a respondent "National Benefit Fund for
Hospital and Health Care Employees and its Trustees, agent of the afore-
mentioned Unions." The trustees are not individually named as Respon-
dents and I assume that the quoted portion of the caption is intended to
name one respondent and not to name the Fund as a respondent and the
trustees as another respondent.
26 See Restatement of the Law. Second, Trusts 2d, section 186 (1959)
27 Restatement of the Law., Second. Trusts 2d, section 185, Comment:
a (1959).
28 3 Scott, The Law of Trusts, 3d ed., 2304 (1967). See also Restate-
ment of the Law, Second, Agency 2d, section 14B (1958).
29 Lamb v. Carey., 498 F.2d 789, 793 (D C Cir. 1974).
30 ULnited Brotherhood of Carpenters and Joiners of America. Local
#1913 A.4FL-CIO, etc. (Fixtures Unlimited), 213 NLRB 363, fn I (1974),
affd. in part and reversed in part 531 F.2d 424 (9th Cir. 1976), Although
the court of appeals disagreed with the Board that there existed an
agency relationship between the trustees and the contracting union, it,
nevertheless, affirmed the order of the Board directing that certain con-
tributions should be made to and should be accepted by the trustees
gaining agreement held agent of the contracting parties);
L & M Carpet Contractors, Inc., 218 NLRB 802 (1975)
(company which refused to permit trustees to audit its
books in order to verify the adequacy of its contributions
to the trust fund violated Sec. 8(a)(5) and (1) because
"the trustees of a trust fund which has been provided for
by the collective-bargaining agreement are agents of
each of the parties to such agreement"); and Jacobs
Transfer, Inc., 227 NLRB 1231 (1977) (trusts, as well the
union which prompted the unlawful action, violated Sec.
8(b)(1)(A) and (2) by refusing to accept contributions on
behalf of a discriminatorily discharged employee in ac-
cordance with the direction in a Board order).3"
The extent of the special principal-agent relationship
between the Unions (and the Hospital also) and the Fund
is defined by the pertinent collective-bargaining agree-
ments. Under their terms the Fund may be deemed the
agent of the contracting parties with respect to the re-
ceipt and the application of contributions from the Hos-
pital. However, this proceeding is not concerned with
that relationship. The issue is whether the Fund is the
agent of the Unions (and the Hospital) not with respect
to furnishing information about the contributions of the
Hospital required by the terms of the applicable collec-
tive-bargaining agreements between the Hospital and the
Unions, but with respect to furnishing information about
the contributions and related data of employers who are
not parties to the Hospital's collective-bargaining agree-
ments. The current and the prior agreements between
the Hospital and the Unions require the Fund to give the
Hospital experience reports. The Fund has acceded to
this direction and in so doing may be deemed to be
acting as the agent of both the Unions and the Hospital.
However, the fact that the Fund has accepted such limit-
ed agency relationship does not automatically expand the
agency relationship to require the Fund to develop and
to furnish more extensive information. I find nothing in
the provisions of the applicable collective-bargaining
agreements (the current agreement and the prior agree-
ment) or in the general relationship between the Fund
and the Unions which mandates the Fund to respond to
a collective-bargaining obligation of the Unions by fur-
nishing the information requested by the Charging Party.
General Counsel and Charging Party point to evidence
in the record suggesting that the Fund's Union's trustees
in particular instances have acted to further the interests
of the Unions. If such conduct compromised their fidu-
ciary obligations it might indicate misfeasance on the
part of the Union trustees-but does not go to prove the
existence of an agency relationship between the Unions
31 In Jacobs Transfer, Inc., supra at 1233, the Board stated: "We recog-
nize that the trustees have a dual identit) vis-a-vis the administration of
the Trusts. On one hand, the Trustees are agents of the principals to the
collective-bargaining agreements . for the purposes of accepting contri-
butions and administering the Trusts in accordance ith the collective-bar-
gaining agreements. On the other hand, the Trustees must administer the
Trusts in accordance with each Trust agreement in order to comply with
their fiduciary duties to the Trusts" Emphasis supplied ) One court has
suggested that the trustee of a union trust fund is a third-party beneficiary
of the collective-bargaining agreement which provides that employers
shall make contributions to the fund Manning v. Wiscombe. 498 F2d
1311, 1313 (10th Cir 1974)
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Fund3 2 The power and authority of the trustees
derive exclusively from the Trust Indenture and the col-
lective-bargaining agreements between the Hospital and
the Unions. 3 3 These instruments do not contemplate that
a trustee acting in his fiduciary capacity will favor one
contracting party over the other. Any such preferential
treatment probably would be Ultra vires, not binding
upon the Fund and, if detrimental to a contracting party
or to the beneficiaries of the Fund, actionable in a forum
having jurisdiction in the matter.
Charging Party and General Counsel also contend that
the National Union through its power to appoint and to
remove trustees controls one half the trustees of the
Fund and as a practical matter-because there is not the
same unanimity of purpose on the part of the Employer
trustees-dominates the operation of the Fund so that
the National Union, had it wished to do so through its
minions, the Union appointed trustees, could have caused
the Fund to furnish the information requested by the
Charging Party. This argument tends to support a theory
that there is a general agency relationship which exists
for all purposes between the Unions and the Fund
which, if true, for the reasons averted to above, would
mean that the Fund is unlawfully constituted-a conten-
tion not within the scope of the instant complaint.3 4
32 N.L.R.B. v. Construction & General Laborers' Union Local 1140
[Knudson, Inc.], 577 F.2d 16, 20-21 (8th Cir. 1978).
33 See Local 80, Sheet Metal Workers International Association, AFL-
CIO (Turner-Brooks Inc), 161 NLRB 229, 234 (1966); International Union
of Operating Engineers, Local Union No. 12 (Griffin Company), 212 NLRB
343 (1974).
34 "[T]he equal representation clause [in Sec. 302(c)(5)(B)] is violated
by any arrangement which creates the possibility of union domination."
Associated Contractors of Essex County, Inc. v. Laborers' International
Union of North America, 559 F.2d 222, 227 (3d Cir. 1977). Furthermore,
"the Board does not possess jurisdiction to determine whether [the Fund]
violates the equal representation requirement of Section 30
2
(c)(5)(B)."
Sheet Metal Workers' International Association and Edward J. Carlough,
President (Central Florida Sheet Metal Contractors Association, Inc.), 234
NLRB 1238, 1242 (1978). Jacobs Transfer, Inc., 227 NLRB 1231 (1977), is
not to the contrary. In that case the union gave the trustees misleading
information which induced the trustees unlawfully to return certain con-
tributions. The obiter dictum appearing in fn. 3 that "we find, infra, that
the Union did control the trusts for the purpose of discriminating against
George" has reference to the misleading information given to the trustees
There is an additional reason why I find that no
agency relationship exists between the Unions and the
Fund for the purposes of this proceeding. The obliga-
tions of the Unions to provide the information requested
by the Hospital flows directly and proximately from the
Unions' status as collective-bargaining representatives. If
the Fund as the Unions' agent were to discharge the
Unions' obligation to furnish the information, it necessar-
ily follows that the Fund in so doing, like its principals,
would be acting as a collective-bargaining representative.
However, the Board has concluded that a Section 302
trust and its trustees are not collective-bargaining repre-
sentatives within the meaning of the Act.3 5 Therefore, as
the Fund is not a collective-bargaining representative it
cannot be charged in this proceeding with a refusal to
bargain collectively within the meaning of Section
8(b)(3).3 6
I find that for the purposes of this proceeding the
Fund is not the agent of the Unions and the Board does
not have jurisidiction over the Fund. I further find that
as the Unions do not have the information requested by
the Charging Party they have not been remiss in dis-
charging their statutory collective-bargaining obligations
by failing to comply with the Hospital's request for in-
formation.
CONCLUSIONS OF LAW
Respondents have not engaged in the violations of
Section 8(b)(3) of the Act alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
and not to any authority vested in the union to direct the activities of the
trusts.
"3 Sheet Metal Workers' International Association and Edward J. Car-
lough. President (Central Florida Sheet Metal Contractors Association, Inc.).
supra; United Mine Workers of America, Local No. 1854, and United Mine
Workers of America (Amax Coal Company), 238 NLRB No. 214 (1978).
36 I do not agree with Charging Party's argument that "Section 8(b)(3)
can be violated, according to the introductory clause of Section 8(b) by a
labor organization (which would be a representative) or by its agent
(which would not be a representative),"
Attachment
Est. Fee Per Hospital
Subsequent
1st Year Year
No. of
Hospitals
1--5
6-17
18-25
$3,300
2,900
2,200
$1,700
1,400
1,100