Mary Thompson Hospital

National Labor Relations Board - Board Decisions

Oct 6, 1989

296 N.L.R.B. 1245 (N.L.R.B. 1989)

MARY THOMPSON HOSPITAL
Mary Thompson Hospital and Warehouse, Mail
Order, Office, Technical Professional Employ-
ees Union , Local 743, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO. Cases 13-CA-27319 and 13-CA-27716
October 6, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On April 6 , 1989, Administrative Law Judge
Walter H . Maloney issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in
answer to the Respondent 's exceptions.
The National Labor Relations Board has delgat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
a modified below.2
There were no exceptions to the judge's failure
to defer to the arbitrator 's ruling that the Respond-
ent lawfully discontinued making pension fund con-
tributions.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mary
Thompson Hospital, Chicago, Illinois, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(d).
"(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
i Although the Respondent contends generally that the community
continuity assurance agreement is confidential , it has not shown why the
information should not be supplied to the Union We therefore find that
the Respondent has failed to meet its burden of demonstrating a legiti-
mate and substantial confidentiality of interest that outweighs the Union's
need for the information requested Washington Gas Light Co., 273 NLRB
116 (1984)
2 We shall modify the judge's recommended Order to include the
Board 's traditional notification clause
Dawn Miller, Esq. and Tamara Tanzillo, Esq., for the
General Counsel.
Norman Jeddeloh, Esq., of Chicago, Illinois, for the Re-
spondent.
Stephen B. Rubin, Esq., of Chicago, Illinois, for the
Charging Party.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
1245
WALTER H. MALONEY, Administrative Law Judge.
This case came on for hearing before me at Chicago, Illi-
nois, upon a consolidated and amended unfair labor prac-
tice complaint , ' issued by the Regional Director for
Region 13, which alleges that Respondent Mary Thomp-
son Hospital2 violated Section 8(a)(1) and (5) of the Act.
More particularly, the consolidated complaint alleges
that the Respondent unilaterally discontinued a contrac-
tually mandated pension plan covering both its bargain-
ing unit and its nonunit employees , and that it unlawfully
withheld from the Union information requested concern-
ing the discontinuance of its operations and its affiliation
with another hospital . The Respondent contends that it
had the unilateral right to discontinue pension plan con-
tributions because of language found in the plan itself
and by virtue of the zipper clause in its collective-bar-
gaining agreement with HELP . It further argues that an
arbitration award which it obtained to this effect should
be given deference by the Board . As for the information
requested by HELP, the Respondent states that it is both
privileged and irrelevant to any duty on the part of the
Union to bargain concerning the effects of closing the
hospital. Upon these contentions , the issues herein were
joined.3
A. The Unfair Labor Practices Alleged
Mary Thompson Hospital was founded just after the
Civil War by the woman physician after whom it was
named . For many years it provided medical and hospital
services at a location on South Ashland Avenue in Chi-
cago . On or before May 30, 1988, it closed its doors for
good because of financial difficulties having their roots in
the reduction of medicare and medicaid payments for
many of its elderly and indigent patients . It laid off all of
i The principal docket entries in this case are as follows. Charge filed
in Case l3-CA-27319 by Warehouse, Mail Order , Office, Technical Pro-
fessional Employees Union , Local 743, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America , AFL-CIO (Union) on November 4, 1987 ; complaint issued
against Respondent on June 30 , 1988, Respondent 's answer filed on July
29, 1988 , charge filed in Case 13-CA-27716 by the Union against the Re-
spondent on April 25 , 1988; amended consolidated complaint in both
cases issued against the Respondent by the Regional Director for Region
13 on September 14, 1988; Respondent's answer filed on September 21,
1988, hearing held in Chicago , Illinois, on January 9, 1989 ; briefs filed
with me by the General Counsel and the Respondent on or before March
2, 1989.
2 The Respondent admits, and I find , that it is a corporation which
provided health care and related services at a facility located in Chicago,
Illinois. During calendar year 1987 , Respondent , in the course and con-
duct of this operation , derived gross revenues in excess of $250,000 and
purchased directly from points and places located outside the State of Il-
linois goods and materials valued in excess of $5000. Accordingly, the
Respondent is an employer engaged in commerce within the meaning of
Sec 2(2), (6), and (7) of the Act Hospital Employees Labor Program of
Metropolitan Chicago (HELP), a joint effort of the Union and of Local
73, Service Employees International Union , AFL-CIO, is a labor organi-
zation within the meaning of Sec 2(5) of the Act.
8 Errors in the transcript are noted and corrected
296 NLRB No. 164
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its employees either in late May or early June 1988.4 For
many years Respondent 's dietary and housekeeping em-
ployees, along with its licensed practical nurses, ward
clerks, and patient care attendants , were represented by a
coalition formed by Teamsters Local 743 and SEIU
Local 73 which , at the Respondent 's facility and else-
where in Chicago , bargained on behalf of unskilled and
semi-skilled health care employees under the acronym
HELP. During the final days of Mary Thompson Hospi-
tal, there were about 16 employees in the HELP bargain-
ing unit . The latest and last contract between HELP and
the Respondent was a 3-year contract which expired on
March 31, 1988 . It was extended until April 30, 1988,
and then until July 30, 1988.
On October 3, 1986, about midterm in the collective-
bargaining agreement , Gwen Rodriguez , Respondent's
personnel director, wrote Clara Day, the Local 743-
HELP business manager, to point out that the Respond-
ent's financial outlook was poor and that its patient
census was low . She further informed Day that, in an
effort to reduce costs, the board of directors had ap-
proved a 15-month suspension of pension contributions,
effective October 1, 1986. She told Day:
I would appreciate hearing from you in this
regard . Specifically will the union consider suspen-
sion of pension contributions for union employees,
which is currently 3% of annual salary?
I would appreciate your response as soon as pos-
sible , or by October 9.
On October 8, Day responded to this letter and said no.
In fact the Respondent was considering not merely a
temporary suspension of the pension plan but its com-
plete elimination, but Rodriguez did not inform Day of
this fact.
The plan referred to by both correspondents was the
Accumulator Future Service Plan and Trust-No. 3, a
noncontributory pension plan which the Respondent
began to maintain with Connecticut General Life Insur-
ance Company in 1974. The plan covered both bargain-
ing unit and nonunit employees alike and was referred to
in sec . 21.4 of the collective-bargaining agreement as fol-
lows:
Pension Benefits-The Connecticut General Life In-
surance Accumulator Plan, which provides pension
benefits for employees upon their retirement, is in-
corporated in this Agreement for all eligible em-
ployees.
From its inception in 1974 until January 1, 1987, the Re-
spondent had been making regular payments into the
pension plan trust fund amounting to 3 percent of the
wages and salaries of the employees covered by the plan.
It continued to do so during the year or so which
elapsed before the execution of the 1985-1988 agreement
4 The parties entered into a detailed stipulation of facts in this proceed-
ing which contained somewhat confusing provisions relating to the layoff
of bargaining unit personnel One section stated that the last bargaining
unit employees were laid off in late May or early June while another sec-
tion stated that they were all laid off before July 30, 1988 While not mu-
tually exclusive, these provisions make it difficult to pinpoint exactly
when the final layoff occurred
when no written collective-bargaining agreement was in
effect. During negotiations leading up to this agreement
the Respondent proposed that pension contributions be
reduced from 3 percent to 1 percent of an employee's
wage but the Union objected and the parties agreed to
continue the 3-percent payment . Rodriguez testified that
the plan required a 3-percent contribution by the em-
ployer and the stipulation of facts executed by the parties
also says as much , but there is nothing in the documents
submitted by the parties which recites this fact.
Sometime in March 1987 , the Respondent 's board of
directors decided to discontinue the pension plan entire-
ly, retroactive to January of that year. On April 2, 1987,
Jeffrey R. Ellis, the Respondent 's chief financial officer,
wrote the account representative for Connecticut Gener-
al (CIGNA) informing her that, pursuant to their phone
conversation , the Respondent was giving written notifi-
cation that it was terminating its pension plan retroactive
to December 31, 1986 . He noted that the Respondent
had made no contributions to the plan since January 1,
1987, and attached a copy of a resolution of the Re-
spondent 's board of directors directing this action.
Respondent 's employees were not notified of this
action until June 3, 1987. On that date Respondent's ad-
ministrator , Ivette Estrada, announced to bargaining unit
employees that the pension plan had been terminated ef-
fective January 1, 1987. In a letter sent to HELP on the
same day, Rodriguez conveyed the same information to
Day, stating that the reason for this action was the Re-
spondent's difficult financial position . She informed Day
that employees had been told that they would receive
100 percent refunds of their pension fund accounts and
that the amounts would be forthcoming in the next 8 to
10 weeks. The Union's response to this information was
a grievance , filed on June 4 by 10 unit employees, which
stated that "we, the undersigned, ask that the Hospital
not withdraw the pension plan that is listed in the union
contract. We further ask that they not issue the funds
and that the funds issued be reinstated."
The case was heard through an expedited process
before Arbitrator Donald J . Peterson . In an award ren-
dered on January 11, 1988, Peterson denied the griev-
ance, stating:
The disputed contract language in the instant
case is Section 21.4 which reads as follows:
The Connecticut General Life Insurance Ac-
cumulator Plan, which provides pension benefits
for employees upon their retirement, is incorpo-
rated in this Agreement for all eligible employ-
ees.
It was argued by the Union that this language
clearly and unambiguously requires the pension to
be maintained for the duration of the contract,
namely, until March 31, 1988 . The Union also con-
tended that it is well established in the labor law
that working conditions cannot be unilaterally
changed while a contract is in effect.
However, a close reading of the language in
question (Section 21.4) indicates that it merely "in-
corporates" the Connecticut General Life pension
MARY THOMPSON HOSPITAL 1247
into the agreement . The word " incorporate" means,
of course, that all provisions of the plan become
part of the contract itself. In the pension booklet
distributed to all eligible employees [Hospital Exh.
2], and which sets out the major terms of the plan,
is the following language:
You can expect the plan to continue indefinite-
ly. However, we may modify, suspend, or termi-
nate the plan should circumstances force us to do
so. If the plan is terminated, plan contributions
will stop, and you will receive a total distribution
of your account.
Thus, the right of the Employer to terminate the
plan becomes part of the collective agreement.
"Circumstances" giving rise to the termination of
the plan were indeed compelling. A Hospital wit-
ness testified, without contradiction, that it was
losing substantial sums of money due to lower pa-
tient census and the mix of payments to it. It did
not, therefore, act arbitrarily or capriciously in its
decision to terminate the plan in a cost saving
effort.
Moreover, the Union is charged with construc-
tive knowledge of the contents of the plan booklet,
based on its distribution to employees and the fact
that it has been in force since 1975. Indeed, in the
past, modifications have been made to the plan
without union protest.
Other language in the collective agreement indi-
cates that the parties were aware of the possibility
of benefit termination while the contract was in
effect. For example, Section 21.1 is a proviso that
life insurance ". . . must be continued in effect
during the life of this agreement . . . ." Obviously
the parties were cognizant that the benefits could be
terminated and chose not to include that restrictive
language for the pension section.
Because of the clear contract language in the
agreement, there was no requirement that the Hos-
pital bargain regarding the plan's termination. It did
announce to the Union its intention to terminate the
plan, however, as early as October of 1986.
The pension plan provided for a 50-percent vesting of
benefits after 5 years of coverage and complete vesting
after 10 years of coverage. Some employees elected to
take their share of the plan's equity in a lump sum and
others elected to draw monthly annuities.
Apparently the elimination of pension benefits did not
serve to stem the flow of red ink at the Respondent's fa-
cility in 1987 and it was casting about for other means of
preserving its operation intact.5 One effort was an at-
tempt to affiliate with another local hospital, Bethany
Hospital, or possibly with an umbrella group, Evangeli-
cal Health System (EHS), a group of hospitals with
which Bethany was affiliated. This effort fell through
and, because it fell through, the Respondent's board of
6 The Respondent 's former personnel director testified that the Hospi-
tal had a $2 6 million net operating loss in 1986 and a $2 3 million net
operating loss in 1987 . As a result of this predicament , it had instituted a
salary freeze in April 1986 , and laid off 45 employees.
directors was well aware, as of the end of 1987 or the
beginning of 1988, that Mary Thompson Hospital would
close. However, the Respondent withheld this informa-
tion from its employees and their bargaining agent for
several months and in fact made statements indicating
the contrary.
Notwithstanding the fact that a decision had already
been made to close the Hospital, Respondent's adminis-
trator, Estrada, held two meetings with employees
during the month of February. At the first meeting she
stated that the Hospital was actively pursuing affiliation
with other hospitals, mentioning Bethany, Good Samari-
tan, and Christ Hospital as possibilities. In the second
meeting she said that an agreement had been made to
"team Mary Thompson Hospital with EHS." Both state-
ments were false and were known to be false when
made.
On or about February 25, 1988, Rodriguez and
Pogany told two employees in the oncology department
of the Respondent's hospital that the oncology depart-
ment was being transferred to Bethany Hospital. One of
the purposes of the conversation was to discuss with
those employees their seniority and bumping rights under
the existing contract. On or about March 5, Anne
Brown, the shop steward, phoned Day to tell her of the
pending transfer. Day in turn phoned Rodriguez to set
up an appointment for March 8 to discuss the matter.
On the day of their meeting, Rodriguez transmitted to
Day a letter in which she stated, in pertinent part:
The Oncology Service as we discussed is being
transferred to Bethany Hospital. The transfer is part
of an affiliation arrangement between Mary Thomp-
son and Evangelical Health System. Although the
final date has not been decided, we are considering
March 7 or 8 as a good possibility.
We believe that, as a result of this transfer of On-
cology, the layoff provisions of our agreement
apply to the three union employees assigned to this
unit.
It is our understanding that should Bethany need
bargaining unit staff as a result of the transfer of the
Oncology Service, Bethany will follow the terms
and provisions of its agreement.
At their March 8 meeting, Day questioned Rodriguez
concerning the proposed affiliation. Rodriguez replied
that the matter was not yet clear. Day asked whether the
Respondent was negotiating with Bethany Hospital for
the transfer of any bargaining unit employees to Bethany
and whether it had decided upon any benefits which
might be paid to employees of the Respondent who
might be laid off as the result of a transfer. Rodriguez
replied in the negative, repeating that the question of af-
filiation was not quite clear as of that time. Rodriguez
admitted in her testimony that she knew, as of March 8,
that there was not going to be any affiliation with Betha-
ny but she did not want to disclose this information in
advance of any formal announcement because she feared
the repercussions of such a disclosure.
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the same day, both women engaged in a formal ex-
change of correspondence . In a "Dear Gwen" letter,
Day wrote:
You have advised me that the Hospital intends to
enter into a form of partial affiliation with Bethany
Hospital under which certain bargaining unit jobs
will be transferred to Bethany Hospital . As you are
doubtless aware, Local 743, International Brother-
hood of Teamsters , has a contract convering a com-
parable bargaining unit at Bethany Hospital.
The Union wishes to protect the rights of all of
its members wherever located and, to this end, it is
quite important that we meet to consider a dovetail-
ing of seniority rights of such employees should
they be integrated into the Bethany Hospital struc-
ture.
Rodriguez ' March 8 letter said that she was writing to
inform Mrs. Day of the "details about the Oncology
transfer and . . . about a staff reduction which occurred
on March 7." Stating that the "Oncology Service was
transferred to Bethany Hospital, effective March 8,
1988," the letter went on to provide details as to how
three oncology department employees had bumped three
other employees elsewhere in the Hospital and gave the
names of the three lowest ranking employees who would
be laid off as a result of this change.6
The contract covering the Respondent's employees
was due to expire on March 31, so negotiations for a re-
newal started on March 22. Nothing much was accom-
plished on that day so the parties met again on March
31. At this meeting Rodriguez again spoke about the dire
financial straits in which the Hospital found itself but in-
sisted that they were still trying to make it work. Union
Vice President Robert Simpson asked about affiliation by
the Respondent with another hospital and inquired spe-
cifically when it might be expected to take place, adding
that he wanted to know what would become of the
Union 's members who were employed outside the oncol-
ogy department . Rodriguez replied that it would be an-
other 5 or 6 weeks before they could answer that ques-
tion . The Union also persisted in asking how many of its
members would be involved in any transfer or affiliation
and did not receive any responsive answers . The only
thing accomplished at this meeting was a 30-day exten-
tion of the expiring collective-bargaining agreement, an
extension which was further extended later on until July
30. According to Rodriguez it was at the March 31
meeting that the Respondent informed the Union that the
Hospital was going to close.
The next meeting of the parties took place on April
22. In the interim a large number of the Respondent's
bargaining unit employees had been laid off. Stephen B.
Rubin, the Union 's attorney , asked management negotia-
tors why the Hospital had waited until that date to
inform the Union of the closing . Rubin went on to ask
questions about when the last patients would be dis-
charged and whether there was anything in the affiliation
agreement relating to bargaining unit employees. The
reply was that all transfers to date related to physicians
and nurses and that no bargaining unit employees had
gone over to Bethany . Rubin insisted that all information
concerning the transfer or affiliation which had previous-
ly been requested be supplied to the Union . He also de-
manded that unit employees receive money for all
unused sick leave and accumulated days of personal
leave and made a further demand for a week 's severance
pay for all separated employees . They agreed to extend
the expired collective-bargaining agreement for another 3
months . The parties met again on April 28. At this time
the Union received certain data which had been request-
ed. Norman Jedelloh , the Company attorney , who had
earlier said that the agreement with Bethany was not all
that Mary Thompson had wanted,' stated at this meeting
that he was reviewing the agreement to see if it con-
tained anything which applied to bargaining unit em-
ployees . Rubin and Jedelloh spoke again by telephone on
May 11. On this occasion , Rubin told Jedelloh that the
Union wanted to see the Respondent 's agreement with
Bethany . On the same day Rubin wrote Jedelloh in
which he stated that "this will confirm our telephone
conversation . . . in which you informed me that Ivette
Estrada is attempting to put together a response to our
request for those portions of the Affiliation Agreement
which relate to the bargaining unit."
The Respondent has never delivered to the Union a
copy of any affiliation agreement and asserts that no
such agreement exists . It insists that, since Bethany actu-
ally refused to affiliate with Mary Thompson Hospital,
no affiliation agreement could possibly come into being.
It admits that an agreement relating to the oncology de-
partment was concluded between the Respondent and
Bethany Hospital and, in response to a subpoena in this
proceeding , produced this document at the hearing. It
admits further that it concluded a community continuity
assurance agreement with Bethany but insists that it is a
confidential agreement and contains nothing relating to
bargaining unit employees . Rodriguez, who had inspect-
ed this agreement , stated that the agreement dealt with
some topics of the sale of the Near West Medical Center,
an affiliate of the Respondent, the transfer of the Re-
spondent 's oncology service to Bethany, the acquisition
of the Respondent's medical staff by Bethany, the con-
tinuation of the Mary Thompson name and its tradition
of service to poor women and children, the mutuality of
service areas , and the division of patients and service
areas between Bethany and Mary Thompson Hospital.
B. Analysis and Conclusions
1. Deferral to the arbitration award
Because the Respondent obtained from an arbitrator a
favorable ruling concerning its right to terminate the
hospital pension plan, it urges that the Board ignore the
merits of the unfair labor practice alleged by the General
Rodriguez denied in her testimony that Jedelloh made this statement
6 The only employees in the oncology department who were trans- Rodriguez had been untruthful throughout her entire dealings with the
ferred to Bethany were professional employees who were not in this bar - Union and was no more reliable on the stand than she was before she
gaining unit . took the stand . I discredit her testimony on this point
MARY THOMPSON HOSPITAL 1249
Counsel and defer to the arbitrator 's decision under
Board doctrine set forth in Olin Corp., 268 NLRB 573
(1984). The General Counsel contends that the Union did
not waive the right to bargain over the termination of
pension benefits and that any waiver of a right which
arises from statute and not by contract cannot be lightly
inferred . Since the arbitrator did not address the waiver
of this statutory right , the General Counsel maintains
that deferral is inappropriate because the arbitration
award is repugnant to the purposes and policies of the
Act. Manitowoc Engineering Co., 291 NLRB 915 (1988).
In order for an arbitration award to be valid , the arbi-
trator must have authority to render the judgment in
question , even if that judgment misconstrues or misap-
plies the contract provision under scrutiny . If he had no
jurisdiction to act, the award is invalid and deferral is in-
appropriate . St. Agnes Medical Center, 287 NLRB 242
(1987). In this case, the issue presented by the employer
to the arbitrator , as well as the determination which gave
rise to the award , involved a putative right of the Re-
spondent to terminate pension benefits based upon a sec-
tion of a pamphlet it distributed to its employees years
ago outlining pension benefits . The pamphlet contained
the statement that "we may modify, suspend , or termi-
nate the plan should circumstances force us to do so."
The arbitrator reasoned that the Union had knowledge
of this pamphlet and its contents and, over a period of
years, had bargained with the employer with this back-
ground in mind . Hence, it should be bound by the terms
and provisions of the pamphlet . The Union correctly
points out that it was a signatory to a collective -bargain-
ing agreement , not to a pamphlet, and the sole provision
in that agreement relating to the pension plan is a state-
ment that the "Accumulator Plan, which provides pen-
sion benefits for employees upon their retirement, is in-
corporated in this agreement."
Both the contract itself and general arbitration law do
not permit an arbitrator to go beyond the terms and con-
ditions of the contract which confers authority upon him
to determine the rights and liabilities of its signatories. In
this case , the arbitrator concluded that the Union had, in
fact, agreed to the language of the pamphlet , when the
Union had not, and he based his decision largely upon
that faulty premise . In so doing, the arbitrator went out-
side the agreement he was commissioned to interpret and
apply . Section 8.1 of that contract provided that the arbi-
trator "shall not have authority to add to, detract from,
or alter in any way the provisions of the Agreement."
This is exactly what he did in rendering the award relied
upon by the Respondent which is based upon the provi-
sions of a pamphlet no one agreed to. In light of these
factors, his award was repugnant to the purposes and
policies of the Act and is not entitled to deferral.
2. Waiver found in the provisions of the
contract itself
As noted above, section 21.4 incorporates the entire
Connecticut General Life Insurance accumulator plan
into the body of the agreement between the parties. In
other words, the accumulator agreement is as much a
collectively bargained instrument as if the Union and the
Respondent had formally affixed their signatures to that
document . The Respondent made no argument to the ar-
bitrator based on terms and conditions contained in the
plan. Somewhat as an afterthought , it argued in this case
that sections 12 and 16 of that plan also contain waivers
of any right on the part of the Union to bargain over the
discontinuance of pensions . In this regard it is correct.
Section 16 .4 of the Plan, entitled "Termination of the
Plan," provides:
The Employer intends to continue the Plan indefi-
nitely for the benefit of its Employees , but reserves
the right to terminate the Plan at any time by reso-
lution of its Board of Directors . Upon such termina-
tion , the liability of the Employer to make Employ-
er Contributions hereunder shall terminate.
This language , to which the Union adhered when it
agreed to section 21.4 of the basic collective-bargaining
agreement , is a clear and unambiguous waiver of its right
to be consulted or to object, during the contract term, to
a termination of employer contributions to the pension
plan.
The Respondent also points to a clause in the contract,
section 24 . 1, which provides:
This agreement constitutes the entire agreement be-
tween the parties and concludes all collective bar-
gaining negotiations for the term hereof. Inasmuch
as both parties have had a full opportunity to nego-
tiate with respect to all matters relating to wages,
hours, and all other terms and conditions of em-
ployment, neither party is under any duty to bar-
gain with respect to any changes, modifications, or
additions to this Agreement to take effect during its
term.
Such clauses, usually called zipper clauses , are often in-
serted in labor contracts to make sure that there is noth-
ing dangling and that, during the contract term, one
party cannot force the other back to the bargaining table
to discuss items that they forgot to discuss or which they
deliberately avoided during negotiations but which fall
within the broad definition of "wages, hours, and terms
and conditions of employment" that negotiators are
bound under the Act to address if called upon to do so.
A resolution of this element of the consolidated com-
plaint need not go so far as a consideration of the zipper
clause. When, as here, the Union affirmatively agreed
that the Respondent could terminate its pension plan at
any time by resolution of its board of directors , the right
of the Respondent to do so, free and clear of mandatory
consultation or of union objections, was contractually es-
tablished. The language in question left nothing to be
done through negotiations when and if the employer de-
cided to take the action so authorized . Accordingly, so
much of the consolidated complaint which alleges that
the Respondent failed to bargain in good faith with the
Union when it terminated its pension plan should be dis-
missed.
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The refusal to provide information
The duty of an employer under Section 8(a)(5) of the
Act to provide the bargaining representative of its em-
ployees with information which is relevant to bargaining
and the responsibility of the agent to represent unit em-
ployees is well established . See Brooklyn Union Gas Co.,
220 NLRB 189 (1975), and cases cited therein . In deter-
mining relevance , the Board and the courts are not limit-
ed to a tunnel -vision meaning of that word but are called
upon to employ a liberal discovery-type concept of rel-
evance which might be employed in ruling upon ques-
tions posed during the taking of depositions . NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 fn. 6 (1967). One
of the Respondent 's defenses is that the request for infor-
mation made by the Union in this case is moot because
the Hospital has closed its doors and the bargaining unit
no longer exists . The right of the Union to the informa-
tion requested must be determined by the situation which
existed at the time the request was made, not at the time
the Board or the courts get around to vindicating that
right . Otherwise, important rights under the Act would
be lost simply by the passage of time and the course of
litigation . Part of the duty to supply relevant information
includes the duty to do so in a timely fashion . Quality
Engineered Products, 267 NLRB 593 (1984).
Information relating to the transfer of employees and
the affiliation of Mary Thompson Hospital with Bethany
had arguably been requested by the Union in March
1988. It was certainly requested by Rubin at the meeting
of April 22 and was renewed again on May 12. Through-
out the discussions it had with the Union at this point in
time, Respondent 's spokesmen frequently used the term
"affiliation" or "affiliation agreement ." Now its position
is that there was and is no such agreement, except possi-
bly with respect to the oncology department , and all that
exists is a community continuity assurance agreement be-
tween the institutions , which it has refused to produce
on the basis that the Agreement is confidential . The sub-
ject matter of that Agreement covers such things as the
transfer of the oncology service to Bethany, the continu-
ation of the Mary Thompson name and tradition of serv-
ice, the mutuality of service areas, and the kinds of pa-
tients and service areas between Bethany and Mary
Thompson Hospital . The possibility that the agreement,
or other understandings between the Respondent and
Bethany, relate to job opportunities , the location of
assets out of which employee claims for pensions and
other moneys due might be satisfied, and the underlying
question of whether the Respondent is really out of busi-
ness or has merged its operations with Bethany in a
manner which would suggest possible ongoing obliga-
tions to the Union in this case are all reasons why the
terms and conditions of the community continuity assur-
ance agreement and any other exchanges of correspond-
ence or memoranda of understanding between Mary
Thompson Hospital and Bethany Hospital would be rele-
vant to collective bargaining as it could have, and should
have, taken place in the spring of 1988 . For all of these
reasons, I conclude that the data sought by the Union,
whether formulated in a single instrument or contained
in a series of written documents, is relevant to the
Union's obligation to bargain collectively on behalf of
the members of the Mary Thompson Hospital bargaining
unit . By its refusal to supply such information , and by its
refusal to supply the oncology transfer agreement in a
timely fashion, the Respondent herein violated Section
8(a)(1) and (5) of the Act.
On these findings of fact and on the entire record con-
sidered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Mary Thompson Hospital is an employ-
er engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Warehouse, Mail Order, Office, Technical Profes-
sional Employees Union, Local 743, affiliated with the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO,
Local 73, Service Employees International Union, AFL-
CIO, and Hospital Employees Labor Program of Metro-
politan Chicago (HELP), and each of them, are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. All licensed practical nurses, patient care attendants,
ward clerks, utility attendants , and housekeeping and die-
tary employees employed by the Respondent at its hospi-
tal at 140 North Ashland Avenue, Chicago, Illinois, facil-
ity, but excluding all regularly scheduled employees
working less than 20 hours a week , casual employees,
guards , student nurses , engineers , licensed maintenance
men, licensed and/or certified employees, and supervi-
sors as defined in the Act, constitute a unit appropriate
for collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein , HELP and its sponsor-
ing organizations, Local 743 and Local 73, have been the
duly designated exclusive collective-bargaining represent-
atives of all the Respondent 's employees employed in the
unit described above in Conclusion of Law 3.
5. By failing and refusing to provide the Union herein
in a timely fashion with information requested concern-
ing the transfer to Bethany Hospital of the Respondent's
oncology department ; and by failing and refusing to pro-
vide the Union herein with requested information con-
cerning the transfer to Bethany Hospital of the Respond-
ent's other assets, personnel, operations , and good will,
including but not limited to a community continuity as-
surance agreement, the Respondent herein violated Sec-
tion 8(a)(1) and (5) of the Act. Said unfair labor practices
have a close, intimate , and substantial effect on the free
flow of commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom, and that it take
other affirmative actions designed to effectuate the pur-
poses and policies of the Act. Accordingly, I will recom-
mend that the Board direct the Respondent to provide
the Union with the information requested and that it mail
to each of the bargaining unit employees who were on
MARY THOMPSON HOSPITAL 1251
its payroll on March 30, 1988 , a copy of the attached
notice , informing them of their rights and of the results
in this case.
On these findings of fact and conclusions of law and
on the entire record considered as a whole, I make the
following recommended"
ORDER
The Respondent , Mary Thompson Hospital, Chicago,
Illinois, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with
Warehouse, Mail Order , Office, Technical Professional
Employees Union , Local 743, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehou-
semen and Helpers of America, AFL-CIO, Local 73,
Service Employees International Union, AFL-CIO, and
Hospital Employees Labor Program of Metropolitan
Chicago (HELP), as the exclusive collective -bargaining
representatives of its licensed practical nurses, patient
care attendants , ward clerks, utility attendants, and
housekeeping and dietary attendants employed by it at its
140 North Ashland Avenue, Chicago, Illinois facility, but
excluding all regularly scheduled employees working less
than 20 hours a week , casual employees , guards, student
nurses, engineers, licensed maintenance men, licensed
and/or certified employees, and supervisors as defined in
the Act.
(b) Failing and refusing to provide the collective-bar-
gaining agents of its employees in a timely fashion with
information which is relevant to the performance of their
duties as bargaining representatives.
(c) By any like or related means interfering with, co-
ercing , or restraining employees in the exercise of rights
guaranteed to them by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request , bargain collectively in good faith
with the Unions herein concerning wages, hours, and
terms and conditions of employment of employees in the
bargaining unit set forth in section 1(a) of this Order.
(b) Furnish the Unions in a timely fashion herein with
the oncology transfer agreement with Bethany Hospital,
the community continuity assurance agreement , and any
other documents reflecting an agreement or understand-
ing between the Respondent and Bethany Hospital or its
8 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 .48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
associated hospitals concerning the transfer of functions,
assets, personnel , or good will of the Respondent.
(c) Immediately upon receipt , mail to all bargaining
unit employees who were on its payroll on March 31,
1988, copies of the attached notice, marked "Appen-
dix,"9 which shall be signed by a representative of the
Respondent . Copies shall be furnished to the Respondent
by the Regional Director for Region 13.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in good
faith with Warehouse , Mail Order, Office, Technical
Professional Employees Union , Local 743, affiliated with
the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO,
Local 73, Service Employees International Union, AFL-
CIO, and Hospital Employees Labor Program of Metro-
politan Chicago (HELP), as the exclusive collective-bar-
gaining representatives of certain of our employees who
were employed at the Mary Thompson Hospital at 140
North Ashland Avenue, Chicago, Illinois.
WE WILL NOT in any like or related means interfere
with , coerce, or restrain employees in the exercise of
rights guaranteed to them by the Act.
WE WILL refrain from failing and refusing to furnish
these Unions in a timely fashion copies of requested data
which is relevant to the performance of their duties as
bargaining representative of our employees.
WE WILL furnish to these Unions in a timely fashion
copies of the oncology transfer agreement with Bethany
Hospital , the community continuity assurance agreement,
and any other documents reflecting an agreement or un-
derstanding with Bethany Hospital or its associated hos-
pitals concerning the transfer of functions , assets, person-
nel, or good will.
MARY THOMPSON HOSPITAL