Hospital Employees District 1199E (Johns Hopkins)

HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 319 National Union of Hospital and Health Care Em- ployees, District 1199E, Retail, Wholesale and Department Store Union, AFL-CIO and Johns Hopkins Hospital. Cases 5-CB-3533 and 5- CB-3585 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 31 August 1982 Administrative Law Judge Mary Ellen R. Benard issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions to the extent consistent with this decision, and to adopt the recommended Order as modified. The Respondent (Union) and the Charging Party (Employer) have been parties to a series of collec- tive-bargaining agreements requiring the Employer, among other things, to contribute to the National Benefit Fund for Hospital and Health Care Em- ployees (the Fund), a trust subject to Section 302(c)(5) of the Act. In 1980 the parties negotiated a new agreement to succeed one that expired 1 De- cember of that year. Anticipating those negotia- tions, the Employer wrote the Union requesting certain information about the Fund that the Em- ployer thought would allow it to determine wheth- er it was getting its money's worth in benefits to its employees. The Union forwarded this request to the Fund, and the Fund eventually informed the Employer that it was preparing the requested infor- mation. Contract negotiations began before the re- quested information was provided. On 6 November the Fund provided the Employ- er with certain requested information, but some of the information was omitted. The Fund expressly declined to correlate the information with names and addresses of the individual employer-contribu- The Respondent has moved to reopen the record to show that the requested information has been provided to the Charging Party and that the National Benefit Fund has changed its policy with respect to "coding" the information Both the General Counsel and the Charging Party oppose the motion We find the motion is untimely because It could have been made to the judge before her decision Issued, moreover, not all the violations found in this decision would have been cured by the belated provision of information We will therefore deny the Respond- ent's motion and leave to the compliance stage the determination of the Respondent's efforts to cure the violations found tors to the Fund, as the Employer had requested, the Fund trustees having voted to make that infor- mation confidential. On 14‘ November the Employ- er informed the Union that the information provid- ed by the Fund was inadequate, and specified the additional information it was still requesting. On 1 December, the day the contract expired, the parties reached impasse and the Union began a strike which lasted until a contract was signed on 16 De- cember: A principal issue causing the impasse and strike was the parties' disagreement over whether the Employer would continue contributing to the Fund and, if so, on what terms. For the reasons to be discussed we do not agree with the judge that the Union violated Section 8(b)(3) by virtue of any action or inaction by the Fund. We agree with her, however, that the Union did violate the Act when it failed to explore alter- native means of providing the requested informa- tion, and when it struck while refusing to provide information relevant to the outstanding issues in contract negotiations. In finding that the Union was- required, under Section 8(b)(3), to direct its representatives among the Fund trustees to provide the information, the judge relied on Hospital Employees (Sinai Hospital), 248 NLRB 631 (1980). In our recent decision in Food & Commercial' Workers (Layman's Market), 268 NLRB 780 (1984), we overruled that aspect of Sinai Hospital. Holding that trustees of Section 302(c)(5) trusts are not agents of the parties who appoint them, for purposes of collective bargaining, we decided that the actions of trustees could not be the basis for finding bad-faith bargaining under the Act unless "a collective-bargaining representative demonstrates that it is in de facto control of a nominally independent trust fund." Slip op. at 5. We find that the Respondent was not in control of the Fund at any time relevant to this case. We note that control of this Fund by this Union was demonstrated in Sinai Hospital, as we reiterated in Layman's Market. Since Sinai was decided, howev- er, the relationship between the Union and the Fund has changed. Then the Fund's director was a union officer, and it was in effect the director's de- cision at issue in that case because the Fund trust- ees were deadlocked. In this case, the Fund direc- tor was not and never has been associated with the Union. Furthermore, the decision to make the dis- puted information "confidential" was at the initia- tive of the employer trustees of the Fund. In these circumstances, we cannot find that the union-ap- pointed trustees had any duty, under Section 8(b)(3), to oppose that decision as Fund trustees. We will therefore dismiss that portion of the com- plaint. 273 NLRB No. 48 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will not, however, dismiss the entire com- plaint beeause we agree with the judge that the Union was obliged to investigate alternative sources of the requested information, or to explain its unavailability, and it had failed to do either. While we stated in Layman's that the requested in- formation was equally available to both bargaining parties, we were addressing only the question of the union's obligation to obtain information . from the fund. In that case the fund eventually provided or offered to provide all the requested information. Here, the Employer informed the Union on 14 No- vember that it needed information the Fund had failed to provide. We do not need to determine whether the Union had access to that information through other means because the, Union did, not offer to investigate other means, nor to show the Employer that there were no other means. As we stated years ago, "minimum standards of good faith required" that the Union - do at least that much. General Electric Co., 150 NLRB 192, 261. (1964). Except as it requires the Union to request action by the Fund, we will adopt the judge's recom- mended remedy. . ORDER - The National Labor Relations Board adopts the recommended Order of the administrative law • judge as modified below and . orders that the Re- spondent, National Union of Hospital and Health Care Employees, District 1199E, Retail, Wholesale and Department Store Union, AFL-CIO, Balti- more, Maryland, its officers, agents, and. represent- atives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Make reasonable efforts to obtain, from its own records or other sources, the information re- quested by Johns Hopkins Hospital in its letter of 16 May 1980, to the extent that the information has not already been. supplied, or document why it cannot obtain the information." 2. Delete paragraph 2(b), and reletter the subse- quent paragraphs. .3. Substitute the attached notice for that of the administrative law judge. APPENDIX Nona TO MEMBERS POSTED BY ORDER OF TI-1 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to make reasonable efforts to obtain and provide to Johns Hopkins Hospital information pertaining to contributions to the Na- tional Benefit Fund for Hospital and Health Care Employees. WE WILL NOT bargain to impasse or strike over subjects of bargaining about which we failed to supply relevant and necessary information. WE WILL NOT in any like or related manner refuse to bargain with Johns Hopkins Hospital con- cerning contributions to said Fund. WE WILL in the event the Fund refuses to make the information available, make reasonable efforts to obtain the information from our own records or other sources or document why we cannot obtain the information. If that information is not supplied, Johns Hopkins Hospital will not be required to bar- gain with us with respect to its contributions to the Fund until such time as the Hospital is provided with the information. NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, DISTRICT 11 99E, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL- CIO DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge. The charge in Case 5-CB-3533 was ,filed on October 3, 1980, 1 by Johns Hopkins Hospital (Hopkins or the Hos- pital) against National Union of Hospital and Health Care Employees, District 1199E, Retail, Wholesale and Department Store Union, AFL-CIO (Respondent). On November 24 a complaint issued alleging, in substance, that Respondent violated Section 8(b)(3) of the Act by refusing to sup-ply Hopkins with requested information which was relevant for purposes of collective bargaining. On December- 2 the Hospital filed the charge in Case 5- CB-3585 against Respondent and - on December 10 a complaint issued which, as amended on December 15, al- leges that since about October 1 Respondent insisted to the point of impasse over a subject about which it re- fused in bad faith to provide relevant information re- quested by Hopkins, and that since about December 1 Respondent had commenced and continued a strike to compel agreement concerning a subject about which it was refusing to provide relevant information. Respond- ent filed answers to the complaint in Case 5-CB-3533 and to the amended complaint in Case 5-CB-3585 in which it denied the commission of any unfair labor prac- tices. A hearing was held before me on October 19, 1981, in Baltimore, Maryland Thereafter, all parties filed briefs, which have been considered. 1 All dates are 1980 unless otherwise indicated HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 321 On the entire record in the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER Johns Hopkins Hospital is a Maryland corporation en- gaged in the operation of a private nonprofit hospital in Baltimore, Maryland. During the 12-month period pre- ceding the issuance of each of the complaints, a .repre- sentative period, the Hospital received gross revenues in excess of $250,000 and purchased and received, in inter- state commerce, materials and supplies valued in excess of $50,000 from points located outside the State of Mary- land. The answers admit and I find that the Hospital is -an employer engaged in commerce within the 'meaning of the Act and I find that it will effectuate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATION INVOLVED 'Respondent is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has represented Hopkins' service and maintenance employees for an undisclosed number of years and has been party to a series of collective-bargain- ing agreements with the Hospital. The most recent agreement prior to the events at issue here was effective December 1, 1978, to December 1, 1980. This agreement, called the 1978 contract, required the Hospital to, among other things, contribute monthly a sum equal to 10 per- cent of the gross payroll of unit employees to the Na- tional Benefit Fund for Hospital and Health Care Em- ployees (the Fund). The Fund is a trust fund subject to the provisions of Section 302(c)(5)' ,of the Act and provides health and welfare benefits to employees represented by Respondent and to employees represented by the National Union of Hospital and Health Care Employees, Division of RWDSU, AFL-CIO (the National Union) with which Respondent is affiliated. There are approximately 40 trustees of the Fund; half of the trustees are selected by employer-contributors and half are selected by the Na- tional Union and/or its districts. Both the employer and the union trustees are selected according to a formula which is based on geographical area. The union trustees in the aggregate have one vote, as do the employer 'trust- ees, the vote of each bloc of 'trustees is determined by a majority within that bloc The trustees meet annually, there is also an executive committee comprised of six union and six employer trust- ees who meet once a month and have the authority to act for the trustees in between the trustees' annual meet- ings. The executive committee also votes by bloc; in the event of a deadlock of the executive committee the issue is referred to the full board of trustees. If the full board is deadlocked, the issue is submitted to arbitration.' B. The Hospital's Request for Information and Respondent's and the Fund's Response Charles Johnson credibly testified that he became Hopkins' manager of employee and labor relations in April and at that time began to prepare for the upcoming contract 'negotiations. As part of this preparation, John- son reviewed experience reports the Hospital had re- ceived from the Fund for the period 1976 through 1978 These reports are prepared by the actuaries of the Fund 'and list an employer's contributions to the Fund and the benefits paid to the contributing employer's employees, including a detailed breakdown for each claim. On the basis of the experience reports, Johnson determined that the Hospital had paid more in contributions to the Fund for the years 1976 through 1978 than its employees had received in benefits. 2 Johnson also discovered in the course of his review of the Hospital's files that his prede- cessor had brought a suit against the Fund and the Union charging mismanagement of funds. 3 Realizing that the Hospital's contributions to the Fund would be an issue in the negotiations for d new collective-bargaining agree- ment, Johnson wrote to Ronald Hollie, Respondent's president, -on May 16, stating, inter aim, that "in order to prepare for negotiations for a successor agreement and to bargain intelligently concerning the provision of health care benefits," the- Hospital requested the following in- formation for the calendar years 1978 and 1979 and the first 3 months of 1980.. (I) The name and address of each employer or other person who made contributions to the Fund, (2) the business or occupation of each contributor; (3) the formula by which the amount of the required contribution was determined; (4) the date and actual amount of the contribution made on the most recent date prior to December 1, 1978, for 1978 listings, December 1, 1979, for 1979 listings, and April 1 for 1980 listings; (5) the number of employees eligible to receive benefits from the Fund on the dates stated in response to item (4); (6) the plan in which the covered employees were eligible to participate on the specified date; 4 (7) the benefits provid- ed if the plan listed, in response to item (6) was other than Plan A, Plan B, or Plan C; and (8) the total annual contribution Hollie responded by letter dated June 3, stating that he had forwarded Johnson's letter to Mor- timer Lewart, the director of the Fund, and that Lewart would forward the requested information to Johnson "as soon as possible" Lewart also wrote directly to Johnson on June 11, acknowledging the reCidest for information and stating that similar reqUests for information . had been The Fund had not yet provided Hopkins' experience report for 1979 3 The record does not indicate whether the Union which was a party to that sun was the National or Respondent, nor does the record disclose the subsequent history of the litigation -4 At material, times there were three major plans, known as Plan A, Plan B, and Plan C, pursuant to which the Fund provided benefits—Plan A provided the most benefits and Plan C the least The Hospital's em- ployees were covered by Plan B There is also another benefit plan known as the "direct pay" plan, which provides benefits for individuals who have lost coverage under the other plans because they have retired or otherwise left the employ of a contributing employer, but who make contributions on their own behalf into the Fund Presumably, the request in the Hospital's May 16 letter for information regarding "each other "person who made cOntnbutions to the National Benefit Fund" as well as employers referred to the direct pay contributors ` 322 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD received and that the trustees had, directed him to estab- lish a format for data to be forwarded whenever such re- quests were made to the Fund, and that he would notify Johnson as to the date when a report would be available and its cost. However, as of October the requested infor- mation had not been supplied and, in consequence, Hop- kins filed the charge in .Case 5-CB-3533 on October 3. On November 6 Lewart sent N. Peter Lareau, Hop- kins' counsel, various statistics relating to contributions to and payments by the Fund in 1978 and 1979. Specifi- cally, Lewart sent a , list of all employers who had made contributions to the Fund for those years and their ad- dresses, and in separate documents sent a listing of con- tributors, identified only by a code number which was not correlated with the names on the other list; the type of business in which the contributor was engaged; its av- erage number of employees; its annual gross payroll, its average gross payroll per employee; its annual contribu- tion; the percent of payroll contributed; percent of pay- roll contributed for each contract; 5 the type of benefit plan, listed as A, B,,C, or 0; and the amount in dollars of benefits paid by the Fund to employees of that em- ployer. Not all the information was provided with re'- spect to every contributor. For "type .of business," for example, a number of entries list only lothr," apparently meaning "other," and some entries are confusing and/or internally inconsistent. 8 No data was supplied for any part of 1980. After the information was received, but prior to No- vember 14, Lareau had a telephone conversation with Robert Moore, Respondees administrative organizer, and told him that the information provided was inad- equate because the Hospital needed: (1) statistical infor- mation correlated to the specific contributor by name and address; (2) the occupation or business of every entry listed as "other"; (3) 'the formula utilized to deter- mine the amount of contributions; (4) the specific de- scription of the benefit's provided for those beneficiaries whose plan type was not A, B, or C; (5) for those entries which showed that the contributor changed the contribu- tion rate in the course of a 'calendar year, the length of time for which each of the 'different percentages was in effect; (6) the rest of the statistical information for those entries as to which some data was not supplied; and (7) all of the information for the first 3 months of 1980. There is no eVidenee of what response, dilly, was made to Lareau in that conversation.' There is also no evidence that any of the alleged defects in the information sup- plied were ever remedied. 5 Apparently this item applies to those employers who had more than one collective-bargaining agreement requiring contributions to the Fund 6 For example, in the statistics provided for 1979, Employer 057157 is listed as having an annual gross payroll of 0, an average gross payroll per employee as 0, and 00 percent of payroll contributed, but the employer contnbution is listed as $120,486 In the 1978 statistics, Employer 057157 is similarly listed as having no annual gross payroll, average gross-payroll per employee, or percent- of payroll contnbuted, but is also listed as having , made a contribution of $116,010 The entry in the 1978 statistics for, Employer 012021 lists 0 for its annual gross payroll, average gross payroll per employee, percent of payroll contnbuted, and percent of pay- roll per contract, but also lists a contribution of $87,322 and benefits the amount of $94,494 C. The Bargaining The first bargaining session for a successor to the 1978 contract was held on October 6. -Around September 29 Respondent had sent its initial proposals for a new con- tract to the Hospital, including an increase in the contri- butions to the Fund to . 11.5 percent of gross payroll. Hopkins mailed its first proposal to Respondent on Octo- ber 13 and included in that proposal an amendment to the section of the contract regarding the Fund which stated that the Hospital would provide health, medical, hospitalization, and life' insurance benefits to its employ- ees; i.e., that the Hospital could withdraw from the Fund altogether. There were a total of approximately 13 bar- gaining sessions; until the seventh Session on November 28 7 there was no change in the position of either party regarding the Hospital's contribution to the . Fund. How- ever, at that session Sam Cook, one of the Hospital's at- torneys, told Respondent's negotiators that the Hospital was willing to retreat from its original position and pro- posed that Hopkins participate in the Fund but at a con- tribution rate of 8 percent of gross 'payroll. Cook also proposed language which would require the Fund to use Hopkins' contributions for the sole purpose Of providing the Hospital's employees with their current level of health, medical, hospitalization, and life insurance bene- fits, and specifying that none of the Hospital's contribu- tions would be utilized for the purpose of providing ben- efits to any other persons. At this point both Respond- ent's and the Hospital's negotiating teams caucused; after the caucus, according to Johnson, Hollie said that Re- spondent was not stupid enough to strike over the Fund contributions or the cost-of-living clause (anOther major item in the negotiations), and that .there would be no contract if those . two provisions "were tampered with." Apparently, there was no response to this comment; the negotiations continued but no agreement was reached that day: The next bargaining session began in the - morning of Sunday, November 30, and concluded at 5 a.m. the next day but no agreement was reached. The Hospital pro- posed a new index on which to base the cost-of-living al- lowance and reintroduced its proposal on the Fund. Ac- cording to Johnson, Hollie again said that there would be no contract if these two items were changed, 8 appar- ently referring to the clauses as they existed in the con- tract that was about to expire. At approximately 3 on December. 1, Respondent suggested maintaining the status quo; i e., a 10-percent contribution rate with no re- • strictions on the Fund's use of the money. The Hospital, however, rejected that suggestion and continued to insist upon its proposal. At 5 a.m. the Federal mediator in- volved in the negotiations declared an impasse and the strike began 2 hours /ater. The entire bargaining unit of some 1400 employees participated 9 The Union notified the Hospital on November 19 that a strike would begin at 7 a m December 1 . 8 I credit Johnson He appeared to be a straightforward witness and Billie, although called as a witneS's by Respondent, 'did not deny making the statements Johnson attributed to him - 9 The charge in Case 5-CB=3585, alleging that Respondent had unlaw- fully refused to bargain with the Hospital, was filed the next day HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 323 Negotiations continued -during the strike and in the course of a bargaining session which began on December 15 the parties reached agreement about 3 a.m. on De- cember 16. That agreement provides that -the Hospital will contribute a sum equal to 9 percent of gross payroll of employees - who have completed their probationary period to the Fund and that "such payments shall be used by the trustees of the Fund for the purpose of pro- viding said employees with health, medical, hospitaliza- tion and life insurance benefits and will remain at the level of benefits provided as of December 30, 1980, under the Fund's Plan B " 10 The strike ended that same day. Johnson testified that at the November 10 bargaining session, which was the first held after the information de- scribed above was received, Respondent contended that the Hospital had not provided requested information on the pension plan and the Hopkins' negotiators responded that the' information was being forwarded. At that point Cook or another Hospital negotiator stated that the in- formation which had been provided to the Hospital by the Fund was inadequate. Although the Hospital did not again contact the Fund to request the information, Hollie, a member of the Fund's executive committee and an officer of the National Union, was present at this bar- gaining session. 11 However, it is undisputed that the Hospital negotiators never said that they could not bar- gain unless they had more information from the Fund and, according to Hale's uncontradicted testimony, when the Hospital negotiators made their proposals as to what the contribution rate should be they produced fig- ures which they said were based on information from the Fund D The Board's Decision in Sinai Hospital; 2 Actions Subsequently Taken by Respondent and the Fund - Regarding Requests for Information 'About 2 months before Hopkins' request for informa- tion the Board had issued its- decision in Sinai Hospital of Baltimore, supra, which involved "a request by Sinai Hos- pital of Baltimore, Inc. (Sinai), for various statistical in- formation similar to that at issue in the instant case, i.e., the names and types of business of all contributing em- ployers, their gross payroll, the amounts contributed, contribution rates (both actual and required by contract),' the number of employees covered, average annual pay- roll per employee, and the type of plan under which ben- efits were provided by the Fund. Sinai, whose employees are represented by Respondent and who is a contributing employer to the Fund, had requested the information from William Taylor, who Was then and had been since '° The printed version of this portion of the agreement refers to bene- fits provided as of "November 30, 1980" but is otherwise the same as the handwritten agreement signed by the, negotiators on the morning of De- cember 16 " Johnson was substantially corroborated on this point by Hale, who testified that he thought that the comment about information on the pen- sion fund and the Hospital negotiators' comment that the Hospital had not received all the information It wanted from the Fund was made on November 27, but It may have been sooner " Hospital Employees (Sinai Hospital of Baltimore, Inc ), 248 NLRB 631 (1980), enfd in an unpublished decision by the United States Court of Appeals for the Fourth Circuit, December 10, 1981 1950 the Fund's executive director, and who had also been the National Union's executive vice president for a number of years 13 Taylor denied the request on grounds that the information was confidential and that too much time, effort, and cost would be required to provide it Sinai offered to reimburse the Fund for preapproved costs of assembling the information and had expressed in its initial request a , willingness to accept identification numbers in lieu of employers' names, but Taylor none- theless refused to supply any of the requested informa- tion. Subsequently, Sinai wrote to Hollie and to Leon Davis, who was then both president of the National Union and chairman of the Fund's board of trustees, re- questing them to instruct ,the Fund to provide the data, but they replied that the request should be addressed to the board of trustees. Thereafter, there was a vote by the trustees and the management trustees voted to supply the information and the union trustees voted not to; thus, the request was in effect demed.14 The administrative law judge found, and the Board agreed, that the information requested was relevant and necessary for Sinai's collective-bargaining purposes, that Taylor did not have a legitimate business justification for refusing to furnish . it, and, that his responses to the re- quests were not made in good faith. However, the ad- ministrative law judge further found that because neither the Fund nor its trustees were labor organizations within the meaning of the Act nor partisan agents of a particu- lar principal, the Fund had no obligation to respond to a collective-bargaining obligation of the union by furnish-- ing the requested information, and that the Board did not have jurisdiction over the Fund. The administrative law judge therefore recommended that the complaint be dis- missed. The Board disagreed, finding that Taylor was not acting solely in the interest of the beneficiaries of the Fund when he denied the request and that he was thus not refusing to furnish the information in his fiduciary capacity, or if he was acting in a fiduciary capacity, that that fiduciary duty did not preclude the furnishing_ of the information, and that Taylor, Davis, and Hollie "violated their affirmative obligation to make a reasonable effort to obtain the information; or to investigate reasonable alter- native means for obtaining it, or to truthfully explain or document the reasons for its unavailability, in violation of Section 8(b)(3) of the Act." 15 Thus, the Board held that "although Section 302 trustees may be expected to champion the interest of their respective principals, they must do so in a manner which is consistent with their fi- duCiary obligations rather than utilizing their alleged fi- duciary capacity as a pretext to circumvent bargaining obligations under the Act."16 It is undisputed that, in response to the complaint issued in Sinai Hospital, supra, in November 1978 em- ployer trustee William Abelow offered on behalf of 10 other management trustees and himself a resolution that 13 Taylor was paid by the Fund in his capacity as its executive direc- tor but served as the National Union's vice president without pay " At the time of the hearing in that case, the Issue had not been sub- mitted to arbitration 15 248 NLRB at 633 (Footnote omitted ) 5 248 NLRB at 634 (Footnote omitted ) 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Fund provide to either Respondent or Sinai the in- formation the latter had requested, "in a manner which will preserve the confidentiality of .each item with re- spect to any individual contributing employer," and pro- vided that the entity requesting the information reim- burse the Fund for all costs incurred in providing it. Thereafter, as found by the Board in Sinai Hospital, supra, management trustees voted for, and the union trustees voted against, supplying the Information. There is no evidence in this record of- any -further actions by the Fund's trustees in determining how to respond to such requests until May 20, 1980, when, -at an annual meeting of the full board of trustees, the employer trust- ees moved that the trustees adopt the resolution pro- posed by Abelow The resolution was tabled at the re- quest of the union trustees pending further opinion from counsel. Thereafter, on June 10 the executive committee of the trustees met and, noting that there were several pending information requests from employers asking for different versions of essentially the same data, voted to request a committee consisting of Abelow, -Lewart, and Donald Klein, counsel to the Fund, to develop a proposal to re- spond to all requests for data uniformly. On August 7 Lewart approved a computer job request for a Fund- wide statistical report at a cost of some $17,000, and at an executive committee meeting on September 9 Lewart reported that programing for a report on Fund-wide data was proceeding and that delivery was scheduled for No- vember. The $17,000 for the computer programing was approved by the executive committee at its meeting of October 14; at that same meeting the committee ap- proved a charge of $200 for each report to amortize the total cost of preparing the reports over the anticipated number of requests. At the November 11 executive committee meeting, Klein reported that representatives of the Board, appar- ently in the compliance stage of the Sinai Hospital case, had questioned him regarding the information furnished to Sinai Hospital with respect to the lack of information the -Hospital had requested for the years 1976 and 1977, a more detailed breakdown of the category of ,"other" of contributing employers, presumably the same problem faced by Hopkins in -the instant case, and an identifica- tion of employers by location. The trustees unanimously directed that information for 1976-77 and a more de- tailed breakdown be provided to Sinai if it were willing to pay the higher cost of developing this information, but the trustees—also unanimously—declined the request that employers be further identified by location, according to the minutes, "consistent with the principle of confiden- tiality with respect to the identity of individual employ- ers."17 17 In accord with this position, Lewart, in a letter dated November 12 to Richard Dorn, an attorney who represented the National Union in Sinai Hospital, supra, and is a member of the same firm as Klein, stated ' As to [Sinai's] request for additional identification of employers by location, the Trustees adopted the principle of confidentiality with respect to the Identity of individual employers as a premise and pre- requisite for making such a report available They are of the view that adding the location of each employer to the report would vio- late that principle of confidentiality In the meantime, the Board had filed an application for enforcement of its order in Sinai Hospital, supra, and the United States Court of Appeals for the Fourth Circuit granted enforcement of the Board's order in an unpub- lished decision dated December 10, 1981, in Case 80- 1499 There is no mention in the court- decision of the confidentiality issue other than a reference to Taylor's denial of the request for information on grounds that the data sought was confidential and the employer trustees' position that the information should be supplied with provision for protection of its "confidentiality." E Analysis and Conclusions 1. The parties' contentions The General Counsel and Hopkins contend at the outset that all of the information requested by Hopkins, including a matching of employers' names and addresses with the, statistical information regarding their contribu- tions _to the Fund, was relevant and necessary for pur- poses of collective bargaining The General Counsel and Hopkins further contend the information supplied was in- adequate because (1) there was no way Hopkins could identify which data referred to a specific contributor; (2) certain information was not provided, specifically: a de- scription of the occupation or business of contributors described as "other"; the formula by which an employ- er's contribution was determined; a description of those benefit plans other than Plans A, p, or C; and, for those entries where the contribution rate changed during the year, a breakdown of when each rate was in effect; (3) there were significant numbers of "blank" entries, i.e., entries where the only information reported was the con- tributor's code number and the amount of benefits paid, and (4) no information at all for 1980 was provided. The General Counsel and Hopkins assert that no justifiable explanation was presented regarding the failure to pro- vide the information, that the information sought should not be considered confidential, and that the fact that the Fund rather than Respondent is the repository of the re- quested information does not justify Respondent's failure to provide it Finally, the General Counsel and Hopkins contend that Respondent's failure to supply the informa- tion converted the subject of Hopkins' contribution to the Fund into a nonmandatory subject of bargaining; thus, by bargaining to impasse and striking over that issue, Respondent further violated Section 8(b)(3) of the Act. Respondent contends, on the other hand, that it cannot be found to have committed an unfair labor practice by failing to supply information it did not possess, asserting that, in the instant case, unlike Sinai Hospital, supra, Re- spondent made an effort to procure the requested infor- mation and the fact that it was not all supplied cannot be attributed to Respondent. Respondent also contends that the trustees' unanimous decision, that in order to pre- serve confidentiality the financial data should not be cor- related with the names and addresses of contributors, dis- tinguishes the facts of this case from the Board's finding in Sinai Hospital, supra, that the refusal to supply the in- formation was not made in good faith. HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 325 . 2. The relevance of the requested information The - duty of a participant- in collective bargaining to provide information to its opposite number-is well estab- lished, for There can be no question of the general obliga- tion of an employer to provide information that is needed by. the bargaining representative for the proper performance of its duties.18 It is also well established that a labor organization's duty to furnish information relevant for collective bargaining is parallel to that of an employer 19 In the instant case, Johnson credibly testified that in light of his conclusion that the Hospital had contributed more to the Fund than the employees had received in benefits for the years 1976 through 1978, and as Hopkins had sued the Fund and the Union alleging mismanagement, he realized that Hopkins' contributions to the Fund would be an issue in the nego- tiations , for a new contract. Clearly, in these circum- stances, information enabling Hopkins to compare its number of employees, amount of contribution, gross annual payroll, contribution formula, actual contribu- tions, number of employees eligible to receive benefits, type of plan, and total annual contributions, with similar data from other employers, would assist Hopkins -in for- mulating its bargaining position and supporting that posi- tion at the bargaining table. Respondent asserts that inasmuch as Hopkins had re- ceived its own experience reports and a copy of a letter from the Fund's actuaries indicating that a contribution rate of 9 6 percent was necessary to continue funding benefits at the same level, and had received the informa- tion described above pursuant to its May request, Hop- kins had sufficient information available to negotiate the collective-bargaining agreement. However, Hopkins was not required to "demonstrate that the information sought is certainly relevant or clearly dispositive of the basic ne- gotiating or arbitration issues between the parties. The fact that the information is of probable or potential rel- evance is sufficient to give rise to .an obligation on the part of [the Union] to provide it. The appropriate stand- ard in determining the potential relevance of information sought . . is a liberal discovery-type standard." 2° Cer- tainly, Hopkins 'was not required to rely on the conclu- sionary statement of the Fund's actuaries, but was enti- tled to obtain statistical data and reach its own conclu- sions. 21 In addition, the fact that Hopkins negotiated the collective-bargaining agreement without all of the infor- mation it requested does not establish that the informa- tion was not releliant: 22 Similarly, the fact that Respond- ent's failure to provide the information was not apparent- ly a major item for discussion at the bargaining table 18 NLRB v Acme Industrial Go, 385 U S 432, 435-436 (1967) 13 Graphic Communications Local 13 (Oakland Press-Go), 233 NLRB 994, 996 (1977) 20 Westinghouse Electric Corp. 239 NLRB 106, 107 (1978) 2i General Electric Co y NLRB, 466 F 2d 1177, 1183 (6th Cir 1972) 22 NLRB v Yawman & Erbe Mfg Go, 187 F 2d 947, 949 (2d Cir 1951) does not warrant a- finding that the information was not relevant for collective-bargaining purposes.23 Respondent also contends' that the Fund's practice of pooling contributions by geographical area rather than on a nationwide basis suggests that information as 'to all contributors in the pool is not relevant. This contention, however, ignores Klein's uncontroverted testimony that areawide pooling began in the spring and summer of 1980; thus this pooling method was apparently not in effect for the period for which Hopkins requested the data - Finally, with respect to the question of whether a cor- relation between specific contributors and the data re- garding their contributions was relevant, I agree with the General Counsel and the Charging Party that it was, both because Hopkins had no way of verifying the accu- racy of the statistical data without knowing how to match statistics and contributors, and also because, in light of the system of geographical pooling which was being implemented in 1980, as discussed above, Hopkins was entitled to information enabling it not only to com- pare its contributions and tile benefits received by its em- ployees with other contributors in the same pool, but also to compare contributions made by and benefits re- ceived by Members of its pool' with those in other geb- graphic areas. In light of these considerations, and in view of the Board's findings in Sinai Hospital, I conclude that the information requested in the instant case was rel- evant.24 3 Respondent's asserted inability to obtain _ information correlating the names and addresses of contributors with statistical data Respondent contends that no unfair labor practice can be found with regard to its failure to match the names and addresses of contributors with the statistical data re- lating to their contributions and the benefits received by them or their employees, because this information was in the possession of the Fund and the trustees of the Fund had declared this information to be confidential. It is un- disputed that at the November 11 executive committee meeting the trustees declined unanimously to identify specific employers with their contributions. In this regard, Respondent emphasizes that in Sinai Hospital, supra, the Board relied on the fact that the president of 23 White Farm Equipment Co'. 242 NLRB 1373, 1374 (1979) 24 In Sinai Hospital, supra, the Board found, Inter aim, that the names and addresses of contributing employers, the type of business in which the employer was engaged, the number of employees eligible to receive benefits, the employer's total annual contribution, and the type of benefit plan provided, all of which were also requested by Hopkins, were rele- vant, 248 NLRB at 632 In the instant case, Hopkins also requested other information which was not requested in Sinai Hospital, supra Significant- ly, the Board found that the charging party in Sinai Hospital was appar- ently willing to accept the statistical data without correlation to specific employers, and, thus, the Board did not pass on the question of whether Sinai was entitled to information which would permit such a correlation Inasmuch as the relevance of the information sought is established by the record, I find It unnecessary to determine whether all of the Informa- tion was presumptively relevant Cf East Dayton Tool & Die Go, 239 NLRB 141. 143 (1978), in which the Board stated that insurance is en- compassed within the concept of wages and that, therefore, information about Insurance is presumptively relevant 326 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD the National Union was chairman of the board of trust-_ ees and the executive vice president was the executive director of the Fund, and that the Board found that the latter had no- legitimate reason for refusing to provide the • information -and that his refusal was not made in good faith. In the instant case, by contrast, the executive director of the Fund-at the ,time of the negotiations be-; tween Hopkins and Respondent holds no position with either Respondent or the National Union, and it is undis- puted that the executive committee of the trustees voted unanimously to refuse to supply a correlation between specific contributors and '..their contributions and other statistical data. Clearly, to some extent these facts differ-. entiate the instant case from Sinai 'Hospital, supra. None-, theless, I find that these factual differences are not such as to excuse Respondent from its obligation to provide the requested data. 'a. The confidentiality defense Although the reCord i replete with references to the asserted confidentiality of the identities of specific con- tributors matched to data regarding their contributions to the Fund, there is no evidence whatsoever as to why this information should be deemed confidential Indeed, there_ is not even any evidence that employers were ever as- sured by the Fund that information about their contribu- tions and about the benefits received by their employees would not be disclosed. Obviously, the decision by the trustees on the executive committee to categorize the in- formation as confidential is not, by itself, dispositive as to whether the Board should direct that the information be provided. b. The defense that the Fund, 'not Respondent, possessed the information Respondent's contention, that its failure to match the names and addresses of contributors with the statistical data about their contributions was justified by the fact that this information was in the possession of the. Fund, misconstrues Respondent's obligation as a- party -to col- lective bargaining. Clearly, if information is shown not to exist, there is no obligation to provide it 25 However, where; as here, there is no dispute that the requested rel- evant information exists, there is an "obligation to make a reasonable effort to obtain this information, to investi- gate alternative means for obtaining this information, or to explain or document the reasons for its unavailabil- ity." 2 ,6 Respondent utterly failed to meet 'this obligation True, Respondent did forward the Hospital's letter re- questing the information to the Fund, but that is the only action Respondent took to supply the information. Thus, although twO members of the executive committee of the Fund's trustees, Hollie and Henry Nicholas, 27 were on Bendzx Corp, 242 NLRB 62 (1979) - 26 Borden, Inc , 235 NLRB 982, 983 (1978) 27 Nicholas did not testify, but it appears from minutes of executive committee meetings in evidence and from stationery letterheads that he was a union member of the executive committee and secretary of the board of trustees Respondent's negotiating team, there is no evidence whatsoever that either of them attempted to persuade the executive -committee or even the union trustees that the information should be provided Indeed, although Nicho- las was at the November 11 meeting where the trustees voted to treat the information as confidential, he did not vote to supply the data, and there is no indication in the minutes Of that meeting that he argued in-favor of pro- viding it At least, if the union tfustees had voted -to pro- vide the information and the employer trustees had voted against this action, the issue would have been sub-_ Mated to' the full board of trustees and, in the event of deadlock, to arbitration. Similarly, there is, not a scintilla of evidence that Re- spondent made any attempt to investigate alternative means for obtaining the information. In this regard, it-is noteworthy that Respondent has collective-bargaining relationships with some of the employers who are con-' tributors to the Fund, but, although presumably, by ex- amination of its records regarding these employers Re- spondent could have matched Some of the identities of the contributing employers with the statistics regarding their -contributions, 'Respondent did not offer to do so or suggest any other alternative means for obtaining the in- formation without recourse to the Fund. Finally, it is undisputed that Respondent did not prof- fer any explanation as to why the information was not supplied other than that the Fund's trustees considered it cOnfidential Having found that the information was not confidential and that Respondent did not make sufficient efforts to obtain the information either from the Fund or elsewhere, I conclude that Respondent also failed to ex- plain or document the reasons for the asserted unavail- ability of the information. 4. The failure to supply all the statistical data. - As diseussed above, there are significant -gaps in 'the statistical information which was provided to Hopkins and no information was provided for 1980. Klein testified without contradiction that when the Fund received a written complaint from Sinai about gaps in the informa- tion which was furnished to it after the Board's decision (and which was apparently similar to the information furnished to Hopkins), the Fund requested the actuarial service which had 'prepared the information to supply the missing data to the extent it could and the actuarial service did so Klein also testified that there was no simi- lar complaint to the Fund from Hopkins. Respondent im- plies that Hopkins' failure to make such a complaint ex- cuses the failure to attempt to supply more information. However, the parties stipulated that Lareau contacted Respondent's administrative organizer and specified what items, were missing from the information supplied in No- vember, but there is no evidence that Respondent subse- quently attempted to obtain the missing information from the Fund To summarize, in light of the foregoing, I find that all of the information requested by Hopkins was relevant, that not all of the requested information was supplied, and that Respondent has _asserted no sufficient justifica- tion for its failure to supply it. I therefore find that, by HOSPITAL EMPLOYEES DISTRICT 1199E (JOHNS HOPKINS) 327 failing -to provide the informâtion, Respondent violated Section 8(b)(3) of the Act. Having so found, I further conclude, in light of the Board's decision in Sinai Hospi- tal, supra, that by bargaining to impasse and striking over the issue of Hopkins' s contributions to the Fund while failing to supply relevant and necessary informa- tion abOut the Fund, Respondent further violated Section 8(b)(3) of the Act On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Johns Hopkins Hospital is an employer engaged in commerce within the meaning of Section' 2(2), (6), and (7) of the Act 2. National Union of Hospital and- Health, Care Em- ployees, District 1199E, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, is a labor oragamzation within the meaning of Section 2(5) of the Act. 3 All full-time and regular part-time service and main- tenance employees who work regularly twenty (20) or more hours in the workweek, -including dietary employ- ees and dietary cashiers, linen 'workers and housekeeping employees, aides, nursing assistants, nursing technicians, technical assistants or helpers, messengers, and mainte- nance department employees, pharmacy technicians, electronic technicians, apprentices, radiology mainte- nance technicians, fire safety mechanics, P.0 C. teacher assistants, uniform room attendants,, central supply tech- nicians, supply aides, physician's aides, nursing unit clerks, and dark room technicians, but excluding office clerical and all other clerks, physicians, dentists, regis- tered nurses, licensed practical nurses, technical and pro- fessional employees, temporary employees, guards, confi- dential employees, supervisory, administrative, and exec- utive employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material Respondent has been the exclu- sive bargaining representative of the employees in the aforementioned appropriate unit within the meaning of Section 9(a) of the Act. 5. By failing since about May 17, 1980, and at all times thereafter, to provide Johns Hopkins with relevant and necessary information pertaining to contributions by em- ployers and others to the National Benefit Fund for Hos- pital and Health Care Employees, and by failing its af- firmative obligation to make reasonable efforts to obtain the information, or to investigate reasonable alternative means for obtaining it, or to truthfully and in good faith explain or document the reasons for its unavailability, Respondent has failed to bargain collectively with Johns Hopkins Hospital and has thereby engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(b)(3) of the Act. The relevant information requested consists of: For the calendar years of 1978 and 1979 and the period January 1-March 31, 1980: (1) The name and address of each employer or other persons who made contributions to the Fund; (2) The business or occupation of each contributor; (3) The formula by which the amount of the required contribution was determined; (4) The date and actual amount of the contribution made on the most recent date prior to December 1, 1978, for 1978 listings, December 1, 1979, for 1979 listings, and April 1 for 1980 listings; (5) The number of employees .eligible to receive bene- fits from, the Fund on the dates stated in response to item (4), (6) The plan in which the covered employees were eli- gible to participate on the specified date;' (7) The benefits provided if the plan listed in response to item (6) .was other than Plan A, Plan B, or Plan C; (8) The' total annual contribution -6. By insisting to impasse and striking over a subject of bargaining about which it failed to supply relevant and necessary information, Respondent has engaged in fur- ther unfair labor practices within the meaning of Sec- tions 8(b)(3) and 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act Inasmuch as I have found that the information listed above and requested by the Hospital is relevant and nec- essary for purposes of collective bargaining, I shall rec- ommend that Respondent be ordered to request the Fund, in writing, to supply the requested information to the extent that the Fund has not already done so In the event the Fund refuses to make the information avail- able, I recommend that Respondent be ordered to make reasonable efforts to obtain the information from its own records or other sources or document why it cannot obtain the information. Consistent with the remedy pro- vided by the Board in Sinai Hospital, supra, if the infor- mation is not made available to the Hospital, I recom- mend that, if it so desires, the Hospital not be required to bargain with Respondent with respect to its Fund contri- bution until such time as it is provided with -the request- ed information. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER The Respondent, National Union of Hospital and Health Care Employees, District 1199E, Retail, Whole- sale and Department Store Union, AFL-CIO, Baltimore, Maryland, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to make reasonable efforts to obtain and provide to Johns Hopkins Hospital information relevant 2 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 328 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD for purposes of collective bargaining regarding contribu- tions to the National Benefit Fund for Hospital and Health Care Employees. (b) Bargaining to impasse or striking over a subject of bargaining about which it failed to supply relevant and necessary information. (c) In any like related manner refusing to bargain collectively with Johns Hopkins Hospital concerning contributions to the Fund. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Request, in writing, from the Fund, the requested information regarding contributions to the Fund to the extent that the information requested by Johns Hopkins Hospital in its letter of May 16, 1980, has not already been supplied, as set forth in the section of this Decision entitled "The Remedy." (b) In the event the Fund refuses to supply the infor- mation, make reasonable efforts tO obtain the information from it own records or other sources, as described else- where in this Decision or document why it cannot obtain the information. (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix "29 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's au- thorized _representative,. shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily 'posted. Rea- sonable steps shall be taken by Respondent to ensure that Said notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of the attached notice to the Regional Director for Region 5 for posting by Johns Hopkins Hospital, if said employer is willing, at all locations where notices to its employees are custom- arily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 25 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"