Hospital Employees District 1199E (Johns Hopkins)

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 319 (N.L.R.B. 1984)

HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 319
National Union of Hospital and Health Care Em-
ployees, District 1199E, Retail, Wholesale and
Department Store Union, AFL-CIO and Johns
Hopkins Hospital. Cases 5-CB-3533 and 5-
CB-3585
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 31 August 1982 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering
brief.
The National Labor Relations Board has delegat-
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 to the extent consistent with this
decision, and to adopt the recommended Order as
modified.
The Respondent (Union) and the Charging Party
(Employer) have been parties to a series of collec-
tive-bargaining agreements requiring the Employer,
among other things, to contribute to the National
Benefit Fund for Hospital and Health Care Em-
ployees (the Fund), a trust subject to Section
302(c)(5) of the Act. In 1980 the parties negotiated
a new agreement to succeed one that expired 1 De-
cember of that year. Anticipating those negotia-
tions, the Employer wrote the Union requesting
certain information about the Fund that the Em-
ployer thought would allow it to determine wheth-
er it was getting its money's worth in benefits to its
employees. The Union forwarded this request to
the Fund, and the Fund eventually informed the
Employer that it was preparing the requested infor-
mation. Contract negotiations began before the re-
quested information was provided.
On 6 November the Fund provided the Employ-
er with certain requested information, but some of
the information was omitted. The Fund expressly
declined to correlate the information with names
and addresses of the individual employer-contribu-
The Respondent has moved to reopen the record to show that the
requested information has been provided to the Charging Party and that
the National Benefit Fund has changed its policy with respect to
"coding" the information Both the General Counsel and the Charging
Party oppose the motion We find the motion is untimely because It
could have been made to the judge before her decision Issued, moreover,
not all the violations found in this decision would have been cured by the
belated provision of information We will therefore deny the Respond-
ent's motion and leave to the compliance stage the determination of the
Respondent's efforts to cure the violations found
tors to the Fund, as the Employer had requested,
the Fund trustees having voted to make that infor-
mation confidential. On 14‘ November the Employ-
er informed the Union that the information provid-
ed by the Fund was inadequate, and specified the
additional information it was still requesting. On 1
December, the day the contract expired, the parties
reached impasse and the Union began a strike
which lasted until a contract was signed on 16 De-
cember: A principal issue causing the impasse and
strike was the parties' disagreement over whether
the Employer would continue contributing to the
Fund and, if so, on what terms.
For the reasons to be discussed we do not agree
with the judge that the Union violated Section
8(b)(3) by virtue of any action or inaction by the
Fund. We agree with her, however, that the Union
did violate the Act when it failed to explore alter-
native means of providing the requested informa-
tion, and when it struck while refusing to provide
information relevant to the outstanding issues in
contract negotiations.
In finding that the Union was- required, under
Section 8(b)(3), to direct its representatives among
the Fund trustees to provide the information, the
judge relied on Hospital Employees (Sinai Hospital),
248 NLRB 631 (1980). In our recent decision in
Food & Commercial' Workers (Layman's Market),
268 NLRB 780 (1984), we overruled that aspect of
Sinai Hospital. Holding that trustees of Section
302(c)(5) trusts are not agents of the parties who
appoint them, for purposes of collective bargaining,
we decided that the actions of trustees could not be
the basis for finding bad-faith bargaining under the
Act unless "a collective-bargaining representative
demonstrates that it is in de facto control of a
nominally independent trust fund." Slip op. at 5.
We find that the Respondent was not in control
of the Fund at any time relevant to this case. We
note that control of this Fund by this Union was
demonstrated in Sinai Hospital, as we reiterated in
Layman's Market. Since Sinai was decided, howev-
er, the relationship between the Union and the
Fund has changed. Then the Fund's director was a
union officer, and it was in effect the director's de-
cision at issue in that case because the Fund trust-
ees were deadlocked. In this case, the Fund direc-
tor was not and never has been associated with the
Union. Furthermore, the decision to make the dis-
puted information "confidential" was at the initia-
tive of the employer trustees of the Fund. In these
circumstances, we cannot find that the union-ap-
pointed trustees had any duty, under Section
8(b)(3), to oppose that decision as Fund trustees.
We will therefore dismiss that portion of the com-
plaint.
273 NLRB No. 48
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will not, however, dismiss the entire com-
plaint beeause we agree with the judge that the
Union was obliged to investigate alternative
sources of the requested information, or to explain
its unavailability, and it had failed to do either.
While we stated in Layman's that the requested in-
formation was equally available to both bargaining
parties, we were addressing only the question of
the union's obligation to obtain information . from
the fund. In that case the fund eventually provided
or offered to provide all the requested information.
Here, the Employer informed the Union on 14 No-
vember that it needed information the Fund had
failed to provide. We do not need to determine
whether the Union had access to that information
through other means because the, Union did, not
offer to investigate other means, nor to show the
Employer that there were no other means. As we
stated years ago, "minimum standards of good faith
required" that the Union - do at least that much.
General Electric Co., 150 NLRB 192, 261. (1964).
Except as it requires the Union to request action
by the Fund, we will adopt the judge's recom-
mended remedy. .
ORDER
- The National Labor Relations Board adopts the
recommended Order of the administrative law
• judge as modified below and . orders that the Re-
spondent, National Union of Hospital and Health
Care Employees, District 1199E, Retail, Wholesale
and Department Store Union, AFL-CIO, Balti-
more, Maryland, its officers, agents, and. represent-
atives, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) Make reasonable efforts to obtain, from its
own records or other sources, the information re-
quested by Johns Hopkins Hospital in its letter of
16 May 1980, to the extent that the information has
not already been. supplied, or document why it
cannot obtain the information."
2. Delete paragraph 2(b) , and reletter the subse-
quent paragraphs.
.3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
Nona TO MEMBERS
POSTED BY ORDER OF TI-1
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to make reasonable efforts
to obtain and provide to Johns Hopkins Hospital
information pertaining to contributions to the Na-
tional Benefit Fund for Hospital and Health Care
Employees.
WE WILL NOT bargain to impasse or strike over
subjects of bargaining about which we failed to
supply relevant and necessary information.
WE WILL NOT in any like or related manner
refuse to bargain with Johns Hopkins Hospital con-
cerning contributions to said Fund.
WE WILL in the event the Fund refuses to make
the information available, make reasonable efforts
to obtain the information from our own records or
other sources or document why we cannot obtain
the information. If that information is not supplied,
Johns Hopkins Hospital will not be required to bar-
gain 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, DISTRICT
11 99E, RETAIL, WHOLESALE AND
DEPARTMENT STORE UNION, AFL-
CIO
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The charge in Case 5-CB-3533 was ,filed on October 3,
1980, 1 by Johns Hopkins Hospital (Hopkins or the Hos-
pital) against National Union of Hospital and Health
Care Employees, District 1199E, Retail, Wholesale and
Department Store Union, AFL-CIO (Respondent). On
November 24 a complaint issued alleging, in substance,
that Respondent violated Section 8(b)(3) of the Act by
refusing to sup-ply Hopkins with requested information
which was relevant for purposes of collective bargaining.
On December- 2 the Hospital filed the charge in Case 5-
CB-3585 against Respondent and - on December 10 a
complaint issued which, as amended on December 15, al-
leges that since about October 1 Respondent insisted to
the point of impasse over a subject about which it re-
fused in bad faith to provide relevant information re-
quested by Hopkins, and that since about December 1
Respondent had commenced and continued a strike to
compel agreement concerning a subject about which it
was refusing to provide relevant information. Respond-
ent filed answers to the complaint in Case 5-CB-3533
and to the amended complaint in Case 5-CB-3585 in
which it denied the commission of any unfair labor prac-
tices.
A hearing was held before me on October 19, 1981, in
Baltimore, Maryland Thereafter, all parties filed briefs,
which have been considered.
1 All dates are 1980 unless otherwise indicated
HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 321
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYER
Johns Hopkins Hospital is a Maryland corporation en-
gaged in the operation of a private nonprofit hospital in
Baltimore, Maryland. During the 12-month period pre-
ceding the issuance of each of the complaints, a . repre-
sentative period, the Hospital received gross revenues in
excess of $250,000 and purchased and received, in inter-
state commerce, materials and supplies valued in excess
of $50,000 from points located outside the State of Mary-
land. The answers admit and I find that the Hospital is
-an employer engaged in commerce within the 'meaning
of the Act and I find that it will effectuate the policies of
the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
'Respondent is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has represented Hopkins' service and
maintenance employees for an undisclosed number of
years and has been party to a series of collective-bargain-
ing agreements with the Hospital. The most recent
agreement prior to the events at issue here was effective
December 1, 1978, to December 1, 1980. This agreement,
called the 1978 contract, required the Hospital to, among
other things, contribute monthly a sum equal to 10 per-
cent of the gross payroll of unit employees to the Na-
tional Benefit Fund for Hospital and Health Care Em-
ployees (the Fund).
The Fund is a trust fund subject to the provisions of
Section 302(c)(5)' , of the Act and provides health and
welfare benefits to employees represented by Respondent
and to employees represented by the National Union of
Hospital and Health Care Employees, Division of
RWDSU, AFL-CIO (the National Union) with which
Respondent is affiliated. There are approximately 40
trustees of the Fund; half of the trustees are selected by
employer-contributors and half are selected by the Na-
tional Union and/or its districts. Both the employer and
the union trustees are selected according to a formula
which is based on geographical area. The union trustees
in the aggregate have one vote, as do the employer 'trust-
ees, the vote of each bloc of 'trustees is determined by a
majority within that bloc
The trustees meet annually, there is also an executive
committee comprised of six union and six employer trust-
ees who meet once a month and have the authority to
act for the trustees in between the trustees' annual meet-
ings. The executive committee also votes by bloc; in the
event of a deadlock of the executive committee the issue
is referred to the full board of trustees. If the full board
is deadlocked, the issue is submitted to arbitration.'
B. The Hospital's Request for Information and
Respondent's and the Fund's Response
Charles Johnson credibly testified that he became
Hopkins' manager of employee and labor relations in
April and at that time began to prepare for the upcoming
contract 'negotiations. As part of this preparation, John-
son reviewed experience reports the Hospital had re-
ceived from the Fund for the period 1976 through 1978
These reports are prepared by the actuaries of the Fund
'and list an employer's contributions to the Fund and the
benefits paid to the contributing employer's employees,
including a detailed breakdown for each claim. On the
basis of the experience reports, Johnson determined that
the Hospital had paid more in contributions to the Fund
for the years 1976 through 1978 than its employees had
received in benefits. 2 Johnson also discovered in the
course of his review of the Hospital's files that his prede-
cessor had brought a suit against the Fund and the Union
charging mismanagement of funds. 3 Realizing that the
Hospital's contributions to the Fund would be an issue in
the negotiations for d new collective-bargaining agree-
ment, Johnson wrote to Ronald Hollie, Respondent's
president, -on May 16, stating, inter aim, that "in order to
prepare for negotiations for a successor agreement and to
bargain intelligently concerning the provision of health
care benefits," the- Hospital requested the following in-
formation for the calendar years 1978 and 1979 and the
first 3 months of 1980.. (I) The name and address of each
employer or other person who made contributions to the
Fund, (2) the business or occupation of each contributor;
(3) the formula by which the amount of the required
contribution was determined; (4) the date and actual
amount of the contribution made on the most recent date
prior to December 1, 1978, for 1978 listings, December
1, 1979, for 1979 listings, and April 1 for 1980 listings; (5)
the number of employees eligible to receive benefits from
the Fund on the dates stated in response to item (4); (6)
the plan in which the covered employees were eligible to
participate on the specified date; 4 (7) the benefits provid-
ed if the plan listed, in response to item (6) was other
than Plan A, Plan B, or Plan C; and (8) the total annual
contribution Hollie responded by letter dated June 3,
stating that he had forwarded Johnson's letter to Mor-
timer Lewart, the director of the Fund, and that Lewart
would forward the requested information to Johnson "as
soon as possible" Lewart also wrote directly to Johnson
on June 11, acknowledging the reCidest for information
and stating that similar reqUests for information . had been
The Fund had not yet provided Hopkins' experience report for 1979
3 The record does not indicate whether the Union which was a party
to that sun was the National or Respondent, nor does the record disclose
the subsequent history of the litigation
-4 At material, times there were three major plans, known as Plan A,
Plan B, and Plan C, pursuant to which the Fund provided benefits—Plan
A provided the most benefits and Plan C the least The Hospital's em-
ployees were covered by Plan B There is also another benefit plan
known as the "direct pay" plan, which provides benefits for individuals
who have lost coverage under the other plans because they have retired
or otherwise left the employ of a contributing employer, but who make
contributions on their own behalf into the Fund Presumably, the request
in the Hospital's May 16 letter for information regarding "each other
"person who made cOntnbutions to the National Benefit Fund" as well as
employers referred to the direct pay contributors `
322 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received and that the trustees had, directed him to estab-
lish a format for data to be forwarded whenever such re-
quests were made to the Fund, and that he would notify
Johnson as to the date when a report would be available
and its cost. However, as of October the requested infor-
mation had not been supplied and, in consequence, Hop-
kins filed the charge in .Case 5-CB-3533 on October 3.
On November 6 Lewart sent N. Peter Lareau, Hop-
kins' counsel, various statistics relating to contributions
to and payments by the Fund in 1978 and 1979. Specifi-
cally, Lewart sent a , list of all employers who had made
contributions to the Fund for those years and their ad-
dresses, and in separate documents sent a listing of con-
tributors, identified only by a code number which was
not correlated with the names on the other list; the type
of business in which the contributor was engaged; its av-
erage number of employees; its annual gross payroll, its
average gross payroll per employee; its annual contribu-
tion; the percent of payroll contributed; percent of pay-
roll contributed for each contract; 5 the type of benefit
plan, listed as A, B,,C, or 0; and the amount in dollars
of benefits paid by the Fund to employees of that em-
ployer. Not all the information was provided with re'-
spect to every contributor. For "type . of business," for
example, a number of entries list only lothr," apparently
meaning "other," and some entries are confusing and/or
internally inconsistent. 8 No data was supplied for any
part of 1980.
After the information was received, but prior to No-
vember 14, Lareau had a telephone conversation with
Robert Moore, Respondees administrative organizer,
and told him that the information provided was inad-
equate because the Hospital needed: (1) statistical infor-
mation correlated to the specific contributor by name
and address; (2) the occupation or business of every
entry listed as "other"; (3) 'the formula utilized to deter-
mine the amount of contributions; (4) the specific de-
scription of the benefit's provided for those beneficiaries
whose plan type was not A, B, or C; (5) for those entries
which showed that the contributor changed the contribu-
tion rate in the course of a 'calendar year, the length of
time for which each of the 'different percentages was in
effect; (6) the rest of the statistical information for those
entries as to which some data was not supplied; and (7)
all of the information for the first 3 months of 1980.
There is no eVidenee of what response, dilly, was made
to Lareau in that conversation.' There is also no evidence
that any of the alleged defects in the information sup-
plied were ever remedied.
5 Apparently this item applies to those employers who had more than
one collective-bargaining agreement requiring contributions to the Fund
6 For example, in the statistics provided for 1979, Employer 057157 is
listed as having an annual gross payroll of 0, an average gross payroll per
employee as 0, and 00 percent of payroll contributed, but the employer
contnbution is listed as $120,486 In the 1978 statistics, Employer 057157
is similarly listed as having no annual gross payroll, average gross-payroll
per employee, or percent- of payroll contnbuted, but is also listed as
having , made a contribution of $116,010 The entry in the 1978 statistics
for, Employer 012021 lists 0 for its annual gross payroll, average gross
payroll per employee, percent of payroll contnbuted, and percent of pay-
roll per contract, but also lists a contribution of $87,322 and benefits
the amount of $94,494
C. The Bargaining
The first bargaining session for a successor to the 1978
contract was held on October 6. -Around September 29
Respondent had sent its initial proposals for a new con-
tract to the Hospital, including an increase in the contri-
butions to the Fund to . 11.5 percent of gross payroll.
Hopkins mailed its first proposal to Respondent on Octo-
ber 13 and included in that proposal an amendment to
the section of the contract regarding the Fund which
stated that the Hospital would provide health, medical,
hospitalization, and life' insurance benefits to its employ-
ees; i.e., that the Hospital could withdraw from the Fund
altogether. There were a total of approximately 13 bar-
gaining sessions; until the seventh Session on November
28 7 there was no change in the position of either party
regarding the Hospital's contribution to the . Fund. How-
ever, at that session Sam Cook, one of the Hospital's at-
torneys, told Respondent's negotiators that the Hospital
was willing to retreat from its original position and pro-
posed that Hopkins participate in the Fund but at a con-
tribution rate of 8 percent of gross 'payroll. Cook also
proposed language which would require the Fund to use
Hopkins' contributions for the sole purpose Of providing
the Hospital's employees with their current level of
health, medical, hospitalization, and life insurance bene-
fits, and specifying that none of the Hospital's contribu-
tions would be utilized for the purpose of providing ben-
efits to any other persons. At this point both Respond-
ent's and the Hospital's negotiating teams caucused; after
the caucus, according to Johnson, Hollie said that Re-
spondent was not stupid enough to strike over the Fund
contributions or the cost-of-living clause (anOther major
item in the negotiations), and that .there would be no
contract if those . two provisions "were tampered with."
Apparently, there was no response to this comment; the
negotiations continued but no agreement was reached
that day:
The next bargaining session began in the - morning of
Sunday, November 30, and concluded at 5 a.m. the next
day but no agreement was reached. The Hospital pro-
posed a new index on which to base the cost-of-living al-
lowance and reintroduced its proposal on the Fund. Ac-
cording to Johnson, Hollie again said that there would
be no contract if these two items were changed, 8 appar-
ently referring to the clauses as they existed in the con-
tract that was about to expire. At approximately 3
on December. 1, Respondent suggested maintaining the
status quo; i e., a 10-percent contribution rate with no re-
• strictions on the Fund's use of the money. The Hospital,
however, rejected that suggestion and continued to insist
upon its proposal. At 5 a.m. the Federal mediator in-
volved in the negotiations declared an impasse and the
strike began 2 hours /ater. The entire bargaining unit of
some 1400 employees participated 9
The Union notified the Hospital on November 19 that a strike would
begin at 7 a m December 1 .
8 I credit Johnson He appeared to be a straightforward witness and
Billie, although called as a witneS' s by Respondent, 'did not deny making
the statements Johnson attributed to him
- 9 The charge in Case 5-CB =3585, alleging that Respondent had unlaw-
fully refused to bargain with the Hospital, was filed the next day
HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 323
Negotiations continued -during the strike and in the
course of a bargaining session which began on December
15 the parties reached agreement about 3 a.m. on De-
cember 16. That agreement provides that -the Hospital
will contribute a sum equal to 9 percent of gross payroll
of employees - who have completed their probationary
period to the Fund and that "such payments shall be
used by the trustees of the Fund for the purpose of pro-
viding said employees with health, medical, hospitaliza-
tion and life insurance benefits and will remain at the
level of benefits provided as of December 30, 1980,
under the Fund's Plan B " 10 The strike ended that same
day.
Johnson testified that at the November 10 bargaining
session, which was the first held after the information de-
scribed above was received, Respondent contended that
the Hospital had not provided requested information on
the pension plan and the Hopkins' negotiators responded
that the' information was being forwarded. At that point
Cook or another Hospital negotiator stated that the in-
formation which had been provided to the Hospital by
the Fund was inadequate. Although the Hospital did not
again contact the Fund to request the information,
Hollie, a member of the Fund's executive committee and
an officer of the National Union, was present at this bar-
gaining session. 11 However, it is undisputed that the
Hospital negotiators never said that they could not bar-
gain unless they had more information from the Fund
and, according to Hale's uncontradicted testimony,
when the Hospital negotiators made their proposals as to
what the contribution rate should be they produced fig-
ures which they said were based on information from the
Fund
D The Board's Decision in Sinai Hospital; 2 Actions
Subsequently Taken by Respondent and the Fund -
Regarding Requests for Information
'About 2 months before Hopkins' request for informa-
tion the Board had issued its- decision in Sinai Hospital of
Baltimore, supra, which involved "a request by Sinai Hos-
pital of Baltimore, Inc. (Sinai), for various statistical in-
formation similar to that at issue in the instant case, i.e.,
the names and types of business of all contributing em-
ployers, their gross payroll, the amounts contributed,
contribution rates (both actual and required by contract),'
the number of employees covered, average annual pay-
roll per employee, and the type of plan under which ben-
efits were provided by the Fund. Sinai, whose employees
are represented by Respondent and who is a contributing
employer to the Fund, had requested the information
from William Taylor, who Was then and had been since
'° The printed version of this portion of the agreement refers to bene-
fits provided as of "November 30, 1980" but is otherwise the same as the
handwritten agreement signed by the, negotiators on the morning of De-
cember 16
" Johnson was substantially corroborated on this point by Hale, who
testified that he thought that the comment about information on the pen-
sion fund and the Hospital negotiators' comment that the Hospital had
not received all the information It wanted from the Fund was made on
November 27, but It may have been sooner
" Hospital Employees (Sinai Hospital of Baltimore, Inc ), 248 NLRB 631
(1980), enfd in an unpublished decision by the United States Court of
Appeals for the Fourth Circuit, December 10, 1981
1950 the Fund's executive director, and who had also
been the National Union's executive vice president for a
number of years 13 Taylor denied the request on grounds
that the information was confidential and that too much
time, effort, and cost would be required to provide it
Sinai offered to reimburse the Fund for preapproved
costs of assembling the information and had expressed in
its initial request a , willingness to accept identification
numbers in lieu of employers' names, but Taylor none-
theless refused to supply any of the requested informa-
tion. Subsequently, Sinai wrote to Hollie and to Leon
Davis, who was then both president of the National
Union and chairman of the Fund's board of trustees, re-
questing them to instruct ,the Fund to provide the data,
but they replied that the request should be addressed to
the board of trustees. Thereafter, there was a vote by the
trustees and the management trustees voted to supply the
information and the union trustees voted not to; thus, the
request was in effect demed.14
The administrative law judge found, and the Board
agreed, that the information requested was relevant and
necessary for Sinai's collective-bargaining purposes, that
Taylor did not have a legitimate business justification for
refusing to furnish . it, and, that his responses to the re-
quests were not made in good faith. However, the ad-
ministrative law judge further found that because neither
the Fund nor its trustees were labor organizations within
the meaning of the Act nor partisan agents of a particu-
lar principal, the Fund had no obligation to respond to a
collective-bargaining obligation of the union by furnish--
ing the requested information, and that the Board did not
have jurisdiction over the Fund. The administrative law
judge therefore recommended that the complaint be dis-
missed. The Board disagreed, finding that Taylor was
not acting solely in the interest of the beneficiaries of the
Fund when he denied the request and that he was thus
not refusing to furnish the information in his fiduciary
capacity, or if he was acting in a fiduciary capacity, that
that fiduciary duty did not preclude the furnishing_ of the
information, and that Taylor, Davis, and Hollie "violated
their affirmative obligation to make a reasonable effort to
obtain the information; or to investigate reasonable alter-
native 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." 15 Thus, the Board held
that "although Section 302 trustees may be expected to
champion the interest of their respective principals, they
must do so in a manner which is consistent with their fi-
duCiary obligations rather than utilizing their alleged fi-
duciary capacity as a pretext to circumvent bargaining
obligations under the Act."16
It is undisputed that, in response to the complaint
issued in Sinai Hospital, supra, in November 1978 em-
ployer trustee William Abelow offered on behalf of 10
other management trustees and himself a resolution that
13 Taylor was paid by the Fund in his capacity as its executive direc-
tor but served as the National Union's vice president without pay
" At the time of the hearing in that case, the Issue had not been sub-
mitted to arbitration
15 248 NLRB at 633 (Footnote omitted )
5 248 NLRB at 634 (Footnote omitted )
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Fund provide to either Respondent or Sinai the in-
formation the latter had requested, "in a manner which
will preserve the confidentiality of .each item with re-
spect to any individual contributing employer," and pro-
vided that the entity requesting the information reim-
burse the Fund for all costs incurred in providing it.
Thereafter, as found by the Board in Sinai Hospital,
supra, management trustees voted for, and the union
trustees voted against, supplying the Information. There
is no evidence in this record of- any -further actions by
the Fund's trustees in determining how to respond to
such requests until May 20, 1980, when, -at an annual
meeting of the full board of trustees, the employer trust-
ees moved that the trustees adopt the resolution pro-
posed by Abelow The resolution was tabled at the re-
quest of the union trustees pending further opinion from
counsel.
Thereafter, on June 10 the executive committee of the
trustees met and, noting that there were several pending
information requests from employers asking for different
versions of essentially the same data, voted to request a
committee consisting of Abelow, -Lewart, and Donald
Klein, counsel to the Fund, to develop a proposal to re-
spond to all requests for data uniformly. On August 7
Lewart approved a computer job request for a Fund-
wide statistical report at a cost of some $17,000, and at
an executive committee meeting on September 9 Lewart
reported that programing for a report on Fund-wide data
was proceeding and that delivery was scheduled for No-
vember. The $17,000 for the computer programing was
approved by the executive committee at its meeting of
October 14; at that same meeting the committee ap-
proved a charge of $200 for each report to amortize the
total cost of preparing the reports over the anticipated
number of requests.
At the November 11 executive committee meeting,
Klein reported that representatives of the Board, appar-
ently in the compliance stage of the Sinai Hospital case,
had questioned him regarding the information furnished
to Sinai Hospital with respect to the lack of information
the -Hospital had requested for the years 1976 and 1977, a
more detailed breakdown of the category of ,"other" of
contributing employers, presumably the same problem
faced by Hopkins in -the instant case, and an identifica-
tion of employers by location. The trustees unanimously
directed that information for 1976-77 and a more de-
tailed breakdown be provided to Sinai if it were willing
to pay the higher cost of developing this information, but
the trustees—also unanimously—declined the request that
employers be further identified by location, according to
the minutes, "consistent with the principle of confiden-
tiality with respect to the identity of individual employ-
ers."17
17 In accord with this position, Lewart, in a letter dated November 12
to Richard Dorn, an attorney who represented the National Union in
Sinai Hospital, supra, and is a member of the same firm as Klein, stated
' As to [Sinai's] request for additional identification of employers by
location, the Trustees adopted the principle of confidentiality with
respect to the Identity of individual employers as a premise and pre-
requisite for making such a report available They are of the view
that adding the location of each employer to the report would vio-
late that principle of confidentiality
In the meantime, the Board had filed an application for
enforcement of its order in Sinai Hospital, supra, and the
United States Court of Appeals for the Fourth Circuit
granted enforcement of the Board's order in an unpub-
lished decision dated December 10, 1981, in Case 80-
1499 There is no mention in the court- decision of the
confidentiality issue other than a reference to Taylor's
denial of the request for information on grounds that the
data sought was confidential and the employer trustees'
position that the information should be supplied with
provision for protection of its "confidentiality."
E Analysis and Conclusions
1. The parties' contentions
The General Counsel and Hopkins contend at the
outset that all of the information requested by Hopkins,
including a matching of employers' names and addresses
with the, statistical information regarding their contribu-
tions _to the Fund, was relevant and necessary for pur-
poses of collective bargaining The General Counsel and
Hopkins further contend the information supplied was in-
adequate because (1) there was no way Hopkins could
identify which data referred to a specific contributor; (2)
certain information was not provided, specifically: a de-
scription of the occupation or business of contributors
described as "other"; the formula by which an employ-
er's contribution was determined; a description of those
benefit plans other than Plans A, p, or C; and, for those
entries where the contribution rate changed during the
year, a breakdown of when each rate was in effect; (3)
there were significant numbers of "blank" entries, i.e.,
entries where the only information reported was the con-
tributor's code number and the amount of benefits paid,
and (4) no information at all for 1980 was provided. The
General Counsel and Hopkins assert that no justifiable
explanation was presented regarding the failure to pro-
vide the information, that the information sought should
not be considered confidential, and that the fact that the
Fund rather than Respondent is the repository of the re-
quested information does not justify Respondent's failure
to provide it Finally, the General Counsel and Hopkins
contend that Respondent's failure to supply the informa-
tion converted the subject of Hopkins' contribution to
the Fund into a nonmandatory subject of bargaining;
thus, by bargaining to impasse and striking over that
issue, Respondent further violated Section 8(b)(3) of the
Act.
Respondent contends, on the other hand, that it cannot
be found to have committed an unfair labor practice by
failing to supply information it did not possess, asserting
that, in the instant case, unlike Sinai Hospital, supra, Re-
spondent made an effort to procure the requested infor-
mation and the fact that it was not all supplied cannot be
attributed to Respondent. Respondent also contends that
the trustees' unanimous decision, that in order to pre-
serve confidentiality the financial data should not be cor-
related with the names and addresses of contributors, dis-
tinguishes the facts of this case from the Board's finding
in Sinai Hospital, supra, that the refusal to supply the in-
formation was not made in good faith.
HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 325
. 2. The relevance of the requested information
The - duty of a participant- in collective bargaining to
provide information to its opposite number-is well estab-
lished, for
There can be no question of the general obliga-
tion of an employer to provide information that is
needed by. the bargaining representative for the
proper performance of its duties.18
It is also well established that a labor organization's duty
to furnish information relevant for collective bargaining
is parallel to that of an employer 19 In the instant case,
Johnson credibly testified that in light of his conclusion
that the Hospital had contributed more to the Fund than
the employees had received in benefits for the years 1976
through 1978, and as Hopkins had sued the Fund and the
Union alleging mismanagement, he realized that Hopkins'
contributions to the Fund would be an issue in the nego-
tiations , for a new contract. Clearly, in these circum-
stances, information enabling Hopkins to compare its
number of employees, amount of contribution, gross
annual payroll, contribution formula, actual contribu-
tions, number of employees eligible to receive benefits,
type of plan, and total annual contributions, with similar
data from other employers, would assist Hopkins - in for-
mulating its bargaining position and supporting that posi-
tion at the bargaining table.
Respondent asserts that inasmuch as Hopkins had re-
ceived its own experience reports and a copy of a letter
from the Fund's actuaries indicating that a contribution
rate of 9 6 percent was necessary to continue funding
benefits at the same level, and had received the informa-
tion described above pursuant to its May request, Hop-
kins had sufficient information available to negotiate the
collective-bargaining agreement. However, Hopkins was
not required to "demonstrate that the information sought
is certainly relevant or clearly dispositive of the basic ne-
gotiating or arbitration issues between the parties. The
fact that the information is of probable or potential rel-
evance is sufficient to give rise to .an obligation on the
part of [the Union] to provide it. The appropriate stand-
ard in determining the potential relevance of information
sought . . is a liberal discovery-type standard." 2 ° Cer-
tainly, Hopkins 'was not required to rely on the conclu-
sionary statement of the Fund's actuaries, but was enti-
tled to obtain statistical data and reach its own conclu-
sions. 21 In addition, the fact that Hopkins negotiated the
collective-bargaining agreement without all of the infor-
mation it requested does not establish that the informa-
tion was not releliant: 22 Similarly, the fact that Respond-
ent's failure to provide the information was not apparent-
ly a major item for discussion at the bargaining table
18 NLRB v Acme Industrial Go, 385 U S 432, 435-436 (1967)
13 Graphic Communications Local 13 (Oakland Press-Go), 233 NLRB
994, 996 (1977)
20 Westinghouse Electric Corp. 239 NLRB 106, 107 (1978)
2i General Electric Co y NLRB, 466 F 2d 1177, 1183 (6th Cir 1972)
22 NLRB v Yawman & Erbe Mfg Go, 187 F 2d 947, 949 (2d Cir
1951)
does not warrant a- finding that the information was not
relevant for collective-bargaining purposes.23
Respondent also contends' that the Fund's practice of
pooling contributions by geographical area rather than
on a nationwide basis suggests that information as ' to all
contributors in the pool is not relevant. This contention,
however, ignores Klein's uncontroverted testimony that
areawide pooling began in the spring and summer of
1980; thus this pooling method was apparently not in
effect for the period for which Hopkins requested the
data -
Finally, with respect to the question of whether a cor-
relation between specific contributors and the data re-
garding their contributions was relevant, I agree with the
General Counsel and the Charging Party that it was,
both because Hopkins had no way of verifying the accu-
racy of the statistical data without knowing how to
match statistics and contributors, and also because, in
light of the system of geographical pooling which was
being implemented in 1980, as discussed above, Hopkins
was entitled to information enabling it not only to com-
pare its contributions and tile benefits received by its em-
ployees with other contributors in the same pool, but
also to compare contributions made by and benefits re-
ceived by Members of its pool' with those in other geb-
graphic areas. In light of these considerations, and in
view of the Board's findings in Sinai Hospital, I conclude
that the information requested in the instant case was rel-
evant.24
3 Respondent's asserted inability to obtain _
information correlating the names and addresses of
contributors with statistical data
Respondent contends that no unfair labor practice can
be found with regard to its failure to match the names
and addresses of contributors with the statistical data re-
lating to their contributions and the benefits received by
them or their employees, because this information was in
the possession of the Fund and the trustees of the Fund
had declared this information to be confidential. It is un-
disputed that at the November 11 executive committee
meeting the trustees declined unanimously to identify
specific employers with their contributions. In this
regard, Respondent emphasizes that in Sinai Hospital,
supra, the Board relied on the fact that the president of
23 White Farm Equipment Co'. 242 NLRB 1373, 1374 (1979)
24 In Sinai Hospital, supra, the Board found, Inter aim, that the names
and addresses of contributing employers, the type of business in which
the employer was engaged, the number of employees eligible to receive
benefits, the employer's total annual contribution, and the type of benefit
plan provided, all of which were also requested by Hopkins, were rele-
vant, 248 NLRB at 632 In the instant case, Hopkins also requested other
information which was not requested in Sinai Hospital, supra Significant-
ly, the Board found that the charging party in Sinai Hospital was appar-
ently willing to accept the statistical data without correlation to specific
employers, and, thus, the Board did not pass on the question of whether
Sinai was entitled to information which would permit such a correlation
Inasmuch as the relevance of the information sought is established by
the record, I find It unnecessary to determine whether all of the Informa-
tion was presumptively relevant Cf East Dayton Tool & Die Go, 239
NLRB 141. 143 (1978), in which the Board stated that insurance is en-
compassed within the concept of wages and that, therefore, information
about Insurance is presumptively relevant
326 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
the National Union was chairman of the board of trust-_
ees and the executive vice president was the executive
director of the Fund, and that the Board found that the
latter had no- legitimate reason for refusing to provide
the • information -and that his refusal was not made in
good faith. In the instant case, by contrast, the executive
director of the Fund-at the ,time of the negotiations be-;
tween Hopkins and Respondent holds no position with
either Respondent or the National Union, and it is undis-
puted that the executive committee of the trustees voted
unanimously to refuse to supply a correlation between
specific contributors and '..their contributions and other
statistical data. Clearly, to some extent these facts differ-.
entiate the instant case from Sinai 'Hospital, supra. None-,
theless, I find that these factual differences are not such
as to excuse Respondent from its obligation to provide
the requested data.
'a. The confidentiality defense
Although the reCord i replete with references to the
asserted confidentiality of the identities of specific con-
tributors matched to data regarding their contributions to
the Fund, there is no evidence whatsoever as to why this
information should be deemed confidential Indeed, there_
is not even any evidence that employers were ever as-
sured by the Fund that information about their contribu-
tions and about the benefits received by their employees
would not be disclosed. Obviously, the decision by the
trustees on the executive committee to categorize the in-
formation as confidential is not, by itself, dispositive as to
whether the Board should direct that the information be
provided.
b. The defense that the Fund, 'not Respondent,
possessed the information
Respondent's contention, that its failure to match the
names and addresses of contributors with the statistical
data about their contributions was justified by the fact
that this information was in the possession of the. Fund,
misconstrues Respondent's obligation as a- party -to col-
lective bargaining. Clearly, if information is shown not to
exist, there is no obligation to provide it 25 However,
where; as here, there is no dispute that the requested rel-
evant information exists, there is an "obligation to make
a reasonable effort to obtain this information, to investi-
gate alternative means for obtaining this information, or
to explain or document the reasons for its unavailabil-
ity." 2 ,6 Respondent utterly failed to meet 'this obligation
True, Respondent did forward the Hospital's letter re-
questing the information to the Fund, but that is the only
action Respondent took to supply the information. Thus,
although twO members of the executive committee of the
Fund's trustees, Hollie and Henry Nicholas, 27 were on
Bendzx Corp, 242 NLRB 62 (1979) -
26 Borden, Inc , 235 NLRB 982, 983 (1978)
27 Nicholas did not testify, but it appears from minutes of executive
committee meetings in evidence and from stationery letterheads that he
was a union member of the executive committee and secretary of the
board of trustees
Respondent's negotiating team, there is no evidence
whatsoever that either of them attempted to persuade the
executive -committee or even the union trustees that the
information should be provided Indeed, although Nicho-
las was at the November 11 meeting where the trustees
voted to treat the information as confidential, he did not
vote to supply the data, and there is no indication in the
minutes Of that meeting that he argued in-favor of pro-
viding it At least, if the union tfustees had voted -to pro-
vide the information and the employer trustees had
voted against this action, the issue would have been sub-_
Mated to' the full board of trustees and, in the event of
deadlock, to arbitration.
Similarly, there is, not a scintilla of evidence that Re-
spondent made any attempt to investigate alternative
means for obtaining the information. In this regard, it-is
noteworthy that Respondent has collective-bargaining
relationships with some of the employers who are con-'
tributors to the Fund, but, although presumably, by ex-
amination of its records regarding these employers Re-
spondent could have matched Some of the identities of
the contributing employers with the statistics regarding
their -contributions, 'Respondent did not offer to do so or
suggest any other alternative means for obtaining the in-
formation without recourse to the Fund.
Finally, it is undisputed that Respondent did not prof-
fer any explanation as to why the information was not
supplied other than that the Fund's trustees considered it
cOnfidential Having found that the information was not
confidential and that Respondent did not make sufficient
efforts to obtain the information either from the Fund or
elsewhere, I conclude that Respondent also failed to ex-
plain or document the reasons for the asserted unavail-
ability of the information.
4. The failure to supply all the statistical data.
- As diseussed above, there are significant -gaps in 'the
statistical information which was provided to Hopkins
and no information was provided for 1980. Klein testified
without contradiction that when the Fund received a
written complaint from Sinai about gaps in the informa-
tion which was furnished to it after the Board's decision
(and which was apparently similar to the information
furnished to Hopkins), the Fund requested the actuarial
service which had ' prepared the information to supply
the missing data to the extent it could and the actuarial
service did so Klein also testified that there was no simi-
lar complaint to the Fund from Hopkins. Respondent im-
plies that Hopkins' failure to make such a complaint ex-
cuses the failure to attempt to supply more information.
However, the parties stipulated that Lareau contacted
Respondent's administrative organizer and specified what
items, were missing from the information supplied in No-
vember, but there is no evidence that Respondent subse-
quently attempted to obtain the missing information from
the Fund
To summarize, in light of the foregoing, I find that all
of the information requested by Hopkins was relevant,
that not all of the requested information was supplied,
and that Respondent has _asserted no sufficient justifica-
tion for its failure to supply it. I therefore find that, by
HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 327
failing -to provide the informâtion, Respondent violated
Section 8(b)(3) of the Act. Having so found, I further
conclude, in light of the Board's decision in Sinai Hospi-
tal, supra, that by bargaining to impasse and striking
over the issue of Hopkins' s contributions to the Fund
while failing to supply relevant and necessary informa-
tion abOut the Fund, Respondent further violated Section
8(b)(3) of the Act
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Johns Hopkins Hospital is an employer engaged in
commerce within the meaning of Section' 2(2), (6), and
(7) of the Act
2. National Union of Hospital and- Health, Care Em-
ployees, District 1199E, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, is a labor oragamzation
within the meaning of Section 2(5) of the Act.
3 All full-time and regular part-time service and main-
tenance employees who work regularly twenty (20) or
more hours in the workweek, -including dietary employ-
ees and dietary cashiers, linen 'workers and housekeeping
employees, aides, nursing assistants, nursing technicians,
technical assistants or helpers, messengers, and mainte-
nance department employees, pharmacy technicians,
electronic technicians, apprentices, radiology mainte-
nance technicians, fire safety mechanics, P.0 C. teacher
assistants, uniform room attendants,, central supply tech-
nicians, supply aides, physician's aides, nursing unit
clerks, and dark room technicians, but excluding office
clerical and all other clerks, physicians, dentists, regis-
tered nurses, licensed practical nurses, technical and pro-
fessional employees, temporary employees, guards, confi-
dential employees, supervisory, administrative, and exec-
utive employees, 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 Respondent has been the exclu-
sive bargaining representative of the employees in the
aforementioned appropriate unit within the meaning of
Section 9(a) of the Act.
5. By failing since about May 17, 1980, and at all times
thereafter, to provide Johns Hopkins with relevant and
necessary information pertaining to contributions by em-
ployers and others to the National Benefit Fund for Hos-
pital and Health Care Employees, and by failing its af-
firmative 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 has failed to bargain collectively with Johns
Hopkins Hospital and has thereby engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(b)(3) of the Act.
The relevant information requested consists of:
For the calendar years of 1978 and 1979 and the
period January 1-March 31, 1980:
(1) The name and address of each employer or other
persons who made contributions to the Fund;
(2) The business or occupation of each contributor;
(3) The formula by which the amount of the required
contribution was determined;
(4) The date and actual amount of the contribution
made on the most recent date prior to December 1, 1978,
for 1978 listings, December 1, 1979, for 1979 listings, and
April 1 for 1980 listings;
(5) The number of employees .eligible to receive bene-
fits from, the Fund on the dates stated in response to item
(4),
(6) The plan in which the covered employees were eli-
gible to participate on the specified date;'
(7) The benefits provided if the plan listed in response
to item (6) .was other than Plan A, Plan B, or Plan C;
(8) The' total annual contribution
-6. By insisting to impasse and striking over a subject of
bargaining about which it failed to supply relevant and
necessary information, Respondent has engaged in fur-
ther unfair labor practices within the meaning of Sec-
tions 8(b)(3) and 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act
Inasmuch as I have found that the information listed
above and requested by the Hospital is relevant and nec-
essary for purposes of collective bargaining, I shall rec-
ommend that Respondent be ordered to request the
Fund, in writing, to supply the requested information to
the extent that the Fund has not already done so In the
event the Fund refuses to make the information avail-
able, I recommend that Respondent be ordered to make
reasonable efforts to obtain the information from its own
records or other sources or document why it cannot
obtain the information. Consistent with the remedy pro-
vided by the Board in Sinai Hospital, supra, if the infor-
mation is not made available to the Hospital, I recom-
mend that, if it so desires, the Hospital not be required to
bargain with Respondent with respect to its Fund contri-
bution until such time as it is provided with -the request-
ed information.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
The Respondent, National Union of Hospital and
Health Care Employees, District 1199E, Retail, Whole-
sale and Department Store Union, AFL-CIO, Baltimore,
Maryland, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to make reasonable efforts to obtain and
provide to Johns Hopkins Hospital information relevant
2 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
328 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
for purposes of collective bargaining regarding contribu-
tions to the National Benefit Fund for Hospital and
Health Care Employees.
(b) Bargaining to impasse or striking over a subject of
bargaining about which it failed to supply relevant and
necessary information.
(c) In any like related manner refusing to bargain
collectively with Johns Hopkins Hospital concerning
contributions to the Fund.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Request, in writing, from the Fund, the requested
information regarding contributions to the Fund to the
extent that the information requested by Johns Hopkins
Hospital in its letter of May 16, 1980, has not already
been supplied, as set forth in the section of this Decision
entitled "The Remedy."
(b) In the event the Fund refuses to supply the infor-
mation, make reasonable efforts tO obtain the information
from it own records or other sources, as described else-
where in this Decision or document why it cannot obtain
the information.
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix "29 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's au-
thorized _representative,. shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily 'posted. Rea-
sonable steps shall be taken by Respondent to ensure that
Said notices are not altered, defaced, or covered by any
other material.
(d) Sign and mail sufficient copies of the attached
notice to the Regional Director for Region 5 for posting
by Johns Hopkins Hospital, if said employer is willing, at
all locations where notices to its employees are custom-
arily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
25 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"