National Union of Hospital and Health Care Employees

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