STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-27 Issued: February 17, 1994 ___________________________________ ) ) PORTLAND SCHOOL COMMITTEE, ) ) Complainant, ) ) v. ) ) INTERIM DECISION AND ORDER PORTLAND TEACHERS ASSOCIATION, ) MAINE TEACHERS ASSOCIATION, and ) MAINE TEACHERS ASSOCIATION ) BENEFITS TRUST, ) ) Respondents. ) ) ___________________________________) On March 17, 1993, the Portland School Committee ("School Committee") filed a prohibited practices complaint with the Maine Labor Relations Board ("Board") alleging that the Portland Teachers Association ("PTA") and the Maine Teachers Association ("MTA") had violated section 964(2)(B) of the Municipal Public Employees Labor Relations Law, 26 M.R.S.A. 964(2)(B) (1988), by refusing to provide experience rating information for teachers employed by the School Committee and covered by Blue Cross/Blue Shield health insurance through the MTA Health Plan in the parties' collective bargaining agreement. Both respondents denied the allegation and asserted the six-month time limitation for filing claims as an affirmative defense. Shortly thereafter, MTA moved for summary dismissal of the complaint against it, on the grounds that the Board has jurisdiction to entertain refusal-to-bargain charges only against bargaining agents, and that MTA is not the bargaining agent for the unit of teachers employed by the School Committee. The executive director declined to rule on the motion, and Chair Peter T. Dawson convened a prehearing conference on May 10, 1993. At that time, -1- MTA again raised the issue of its motion, and the prehearing officer deferred making a ruling in light of the questions of fact and law raised, ordering that the motion be considered in connection with the evidentiary hearing. Chair Dawson's Pre- hearing Memorandum and Order, dated May 18, 1993, is incorpo- rated in and made a part of this decision and order. After reviewing material provided by MTA, on June 15, 1993, the School Committee filed a courtesy copy of an amended complaint, which amendment added the Maine Teachers Association Benefits Trust ("Trust") as a party and alleged that as an agent, ally and alter ego of PTA and MTA with control over the experience rating information, the Trust is a necessary party.1 The School Committee also filed a request for subpoenas duces tecum to be issued to each of the respondents. In addition to their answers to the amended complaint, each respondent filed a motion to dismiss the amended complaint and objections to the request for subpoenas.2 On August 18, 1993, the Board held a hearing on all pending motions. Alternate Chair Pamela D. Chute presided over the hearing, accompanied by Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson. Harry R. Pringle, Esq., represented the School Committee, Donald F. Fontaine, Esq., represented PTA, Shawn C. Keenan, Esq., repre- sented MTA, and Charles W. March, Esq., represented the Trust. The motion to amend the Prehearing Memorandum and Order was granted without objection. Parties presented oral argument on all remaining motions, and at the close of argument the Board met to consider the arguments. Because it appeared to the Board that _________________________ 1The amendment was formally filed on June 17th. 2PTA also filed a motion to correct the Prehearing Memo- randum and Order in connection with witness lists. -2- resolution of certain threshold factual issues was necessary in order to rule on the motions, the Board ordered a preliminary evidentiary hearing on two issues: 1) whether the Trust is an ERISA trust3; and 2) whether either PTA or MTA possesses claims information, for either the teachers employed by the School Committee, or for the larger, state-wide group of teachers covered by the MTA Health Plan.4 On September 9, 1993, the Board received a stipulation from the School Committee that the Trust is subject to ERISA. On the basis of that stipulation, the Trust renewed its motion to dismiss the amended complaint, and the School Committee opposed it. On September 16, 1993, the Board reconvened for the purpose of holding an evidentiary hearing on issue 2 (regarding claims information). The parties, represented by counsel who appeared at the motions hearing, were given the opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make argument.5 At the close of the hearing, the parties agreed to provide the Board with an authoritative document regarding the identity of the current contract/policyholder of the MTA Health Plan. That document was provided on October 10, 1993. Briefs and reply briefs on all outstanding motions to dismiss were filed by all parties, the last of which was received on November 10, _________________________ 3That is, a trust established under and subject to the Employee Retirement Income Security Act of 1974. 4On the first issue, the School Committee was given the option of obtaining any further information it might feel necessary, and submitting a stipulation regarding the status of the Trust under ERISA. 5At the close of the hearing, counsel for PTA and the Trust requested that they be permitted to cross-examine a School Committee witness at a later date, due to the unexpected nature of her testimony. The request was taken under advisement. -3- 1993. The Board held deliberations on the motions on December 17, 1993, and January 20, 1994. JURISDICTION The Portland Teachers Association is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for the Portland School System teachers' bargaining unit. The Portland School Committee is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1993), of the employees in that unit. The jurisdiction of the Board to hear this case and to render a decision and order lies in 26 M.R.S.A. 968(5)(A)-(C) (1988 & Supp. 1993). STIPULATIONS The following stipulations have been reached: Between the School Committee and the Trust 1. The Portland School Committee agrees that the MTA Benefits Trust is subject to the Employee Retirement Income Security Act of 1974 ("ERISA"). All parties 2. It is the opinion of Chief Counsel to Blue Cross/Blue Shield of Maine that the Maine Teachers Association Benefits Trust is the contract/policy holder of the benefit plans which cover the members of the bargaining unit concerned in the present case. FINDINGS OF FACT Upon review of the entire record, the Board makes the following findings of fact: 1. The most recent collective bargaining agreement for the teachers' unit, signed on October 10, 1990, was in effect from September 1, 1990, through August 31, 1993 ("90-93 agreement"). -4- Article IX of the 90-93 agreement reads as follows: A. The Committee agrees to pay 96% of the cost of BC-BS, UCR Plan insurance at whatever level (single subscriber, adult with child or children, two person, or family) is appropriate for all teachers for the 1990-91 and 1991-92 school years except as provided in Article II, Section 9. Employees involved in job sharing shall receive a combined total of one hundred percent of the benefits to which one employee would be entitled for performing the same job function. Employees whose work day is reduced involuntarily shall continue to receive full benefits. B. The Committee's participation as set forth in Section A will be continued for the ensuing policy summer quarter for a teacher resigning at the end of the school work year. C. Notwithstanding anything contained herein, the Committee reserves the right to institute a new program of insurance providing benefits substantially equal to or superior to those referred to in Section A above, provided that the teacher's contributions under such new program shall not exceed the amount, if any, she/he would have been required to pay under the program referred to in A. D. The Committee agrees to establish a direct reimbursement plan for dental costs, as permitted by statute, and to contribute the amount of $8.28 per teacher per month for the term of this Agreement to provide single employee coverage thereunder. 2. In a contract proposal dated June 5, 1990, the School Committee proposed that the following language be placed in the insurance provision: Accordingly, as a condition precedent to payment by the School Committee of the insurance benefits set forth in Paragraph A above, the Association shall provide the Committee with the actual Blue Cross/Blue Shield experience rating applicable to the Portland School Department no later than January 1, 1991. At that time, PTA did not request that MTA make the experience -5- rating available, knowing from informal conversations that it would not be available. 3. In the spring of 1992, during 92-93 reopener negotiations conducted pursuant to the reopener provision of Article XXXII of the 90-93 agreement, the School Committee again raised the issue of the experience rating with PTA. PTA informed the School Committee that the information was not available; it did not request the information from MTA. 4. By letter dated October 7, 1991, the Portland School Department ("Department") requested that MTA provide the experience rating for its teachers under the MTA Health Plan, in order that it be able to "make certain that its teachers are receiving the most comprehensive and cost-effective insurance plan we can find." The Department also requested that MTA provide written authorization for Blue Cross/Blue Shield to release a health insurance proposal to the Department, in order that it have the opportunity to negotiate directly for coverage. Having received no response, by letter dated December 13, 1991, the Department reiterated its requests. 5. By letter dated December 23, 1991, MTA responded to the Department as follows: Thank you for your letter of inquiry regarding the MTA Health Plan. The MTA Health Plan is the largest group plan in Maine. The growth and the continued excellence of the Plan is the result of both careful management, innova- tive cost containment, and community rating. The community rating provision protects both the Plan participants and all individual school systems from the fluctuation of bad risk experiences. It has enabled the MTA Health Plan to consistently maintain the best coverage at the lowest premium costs of any of the Blue Cross/Blue Shield major group plans. It has -6- also prevented the national problem of uninsurability facing many individual school systems that do not have the protection of a group plan that is community rated. For these reasons, our claims experience is calculated only for the group as a whole, and not by individual districts. We do not engage in the practice of having our carrier bid against any part of the group. Over the past two years, we have formulated an advisory council of national health experts to insure the continued growth and excellence of the Plan. Educators in many other states are turning toward the MTA Health Plan as a model for their states. I would be happy to provide your committee with one of the consultants assigned to the MTA Health Plan to further explain our excellent features, new pro- visions, and cost containment measures. 6. By letter dated July 17, 1992, the Department requested that Blue Cross/Blue Shield provide a direct quote for health insurance for the Department's employees, for a plan with the same benefits as offered through the MTA Health Plan. The Department reiterated its request by letter dated September 18, 1992, having received no response to its first letter. By letter dated October 13, 1992, Blue Cross/Blue Shield responded as follows: Sally Saunders asked that I respond to your letter regarding a direct quote for Portland Public Schools. The Maine Teachers Association Health Plan is the largest group plan in the State of Maine. The Plan integrates careful management, innovative cost containment, and sound underwriting principles to provide long-term financial protection for its participating individual school systems. To maintain the Plan's integrity, Blue Cross and Blue Shield of Maine and the MTA have agreed that Blue Cross would not bid against any part of the MTA, which includes the Portland Public Schools. The MTA Health Plan provides teachers, support staff, -7- and school administrators like yourself an exceptional program which includes benefits such as our Health Manager Newsletter, Baby Benefits, a Pre-Natal Education Program, and statewide healthclub discounts. It offers benefit plan options, such as the "Alternate Plan" available through individual teacher negotia- tions, and it implements a long-range strategy developed through the nationally represented Health Advisory Council. Joline, the Portland Public Schools, as a participant in the MTA Plan, benefits through risk being spread over 15,000+ members covered through Blue Cross and Blue Shield of Maine. While Portland Public Schools might find lower rates "on their own" for the short term, the pooled risk of the Portland population, compared to the entire MTA, would not afford them long- term low rates combined with superior coverage. I appreciate your concern and suggest that either you, your Superintendent, or the President of the Portland Teachers Association contact Mr. David Reinke, MTA Executive Director with your recommendations for enhancing your health plan. I am sorry that I could not respond more favorably to your request. However, if I can be of help to you in any way, please contact me. Sally Saunders would be happy to explain our efforts toward containing health care costs in Maine, as well as the value of this benefit to Portland Public Schools. 7. By letter dated November 4, 1992, the Department requested that Blue Cross/Blue Shield provide a copy of the agreement with MTA not to bid against any part of the MTA Health Plan for health insurance coverage. 8. By letter dated July 22, 1992, the Department requested that MTA provide access to the health insurance experience rating for Department employees covered by the MTA Health Plan. The letter referred to an alleged statement made recently by an MTA employee in connection with negotiations in another school district, that MTA could provide experience ratings by district but was choosing not to do so. The Department threatened to file a prohibited practices complaint if the information was not -8- provided for use in upcoming negotiations. 9. In November of 1992, MTA met with the Department to discuss how to resolve the issue of providing the local experience rating. By letter dated November 18, 1992, the Department expressed its appreciation of the quandary posed by its request -- that releasing local experience ratings could jeopardize the state-wide plan -- but reiterated its desire to have the information necessary to determine whether its health care dollars were being used wisely. In letters dated December 7 and December 21, 1992, and February 2, 1993, the Department again raised the issue of access to the experience rating with MTA. 10. In a letter dated February 16, 1993, MTA responded to the Department as follows: It was disappointing to receive another demand letter from you, after it seemed we had made signifi- cant progress toward a better mutual understanding of the issues you have raised. I had hoped the Portland School Committee would agree that preserving a community rated plan will continue to advance the best interests of those whom we both represent. In the event the Portland School Committee should prevail in its anticipated prohibited practice liti- gation, they should be prepared to accept the conse- quences of obtaining an adverse experience rating. The impact on other municipalities, as well as its own constituents, will surely include higher premium costs in the long term. By law, the Portland group includes a substantial proportion of retirees, who must be included in any realistic appraisal of insurance rates by a competitor. The current MTA plan remains in the vangard (sic) of every major trend in health care insurance reform, which includes the evolving legislative and public policy favoring the largest possible community rated groups. -9- It is difficult to understand how any employer would believe that they were not getting the best price if they would diligently compare benefits and rates with any other group plan in the Northeast. I would implore the Portland School Committee to reconsider its desire to force a showdown merely because of its perception that short-term savings might be obtained. 11. On April 5, 1993, during successor negotiations, a negotiator for the School Committee made a verbal request to the PTA that it provide the disputed experience rating. On April 12, 1993, the same request to PTA was made in writing. The reason given for the request was that the School Committee desired to obtain bids from other insurance companies "in order to determine whether viable alternatives exist for the delivery of a health insurance program." PTA did not request that MTA make the experience rating available. 12. On March 20, 1993, the Board of Directors of MTA voted to establish the Maine Teachers Association Benefits Trust. On April 10, 1993, the Trust was established, through a trust agreement, for the benefit of current and future participants in the MTA Health Plan and other benefit programs offered under that trust agreement. The Trust was created to qualify under the applicable provisions of ERISA and as a voluntary employees' beneficiary association ("VEBA") under section 501(c)(9) of the Internal Revenue Code of 1986. 13. On May 17, 1993, an assignment agreement assigned all of MTA's rights and obligations in its health insurance contract/ policy with Blue Cross/Blue Shield to the Trust. On May 23, 1993, the following section was added to the Trust Agreement by amendment, effective immediately: -10- 5.07 Fiduciary Authority. The Trustees shall have absolute discretion and authority to make all fiduciary decisions, plan provision interpretations and construc- tions, and other determinations under this Trust and any plans maintained under the Trust, except as specifically delegated to the Plan Administrator in writing; including, without limitation, decisions relating to the use and dissemination (if any) of the participant claims experience data under any plan maintained by the Trust. 14. During all relevant times until May 17, 1993, MTA was the contract/policyholder for the Blue Cross/Blue Shield health insurance plan referred to in Article IX of the 90-93 agreement (MTA Health Plan). 15. PTA does not have, and has never had, experience rating information in its possession, either for the Portland teachers or for the state-wide group. 16. MTA does not have, and has never had, experience rating information in its possession for a local school district or other employment unit. MTA has never requested that Blue Cross/ Blue Shield provide such information. Blue Cross/Blue Shield has provided yearly state-wide claims experience data to MTA in the past, most recently for the period July 1, 1988, through June 30, 1989. State-wide data for more recent years was provided to an insurance consultant for MTA, who used the information to negotiate insurance premium rates for the state-wide plan. (He also negotiated benefit levels on behalf of MTA.) MTA has never requested local experience ratings from its consultant. The consultant is now retained by the Trust. 17. Only the contract/policyholder is entitled to obtain local claims experience information from Blue Cross/Blue Shield. MTA has not sought local experience ratings from the Trust, the current contract/policyholder. PTA has asked the Trust whether the information is available, and has been told that it is not. -11- 18. The Trust has stated on the record that it does not have local claims experience information, and that if it did have that information, it would not be provided. 19. The current executive director of MTA has never seen or heard of an experience rating for a local unit. 20. According to a consultant for the School Committee, experience ratings are used in two ways: to establish the premium to be paid, and to study the design of an insurance plan to make sure that benefits fit employees' needs. Blue Cross/Blue Shield does provide experience ratings to individual employers, at the request of some private sector employer associations, even though premiums are based on claims experience for the whole group. According to the consultant, the associations themselves recognize that they will not be able to attract member employers if those employers are not able, once they join, to compare the benefits and premiums offered by the association with other plans in the marketplace. In the public sector, the Maine School Management Association releases local experience ratings to its employer members. (The MSMA plan is not a Blue Cross/Blue Shield plan.) 21. Claims of individual participants in a group Blue Cross/Blue Shield plan are tracked by group number, subgroup number and individual participant number. All three numbers appear on the explanation of benefits that participants receive after filing a claim. -12- DISCUSSION Employees of the Portland School Department are covered by a Blue Cross/Blue Shield UCR health plan administered and originally set up by MTA ("MTA Health Plan"). The MTA Health Plan, which covers over 15,000 members across the State, is a "pooled risk" plan, the premiums for which are based on a state- wide community experience rating rather than the claims experi- ence of local school departments. At issue in this case is whether the failure to provide local experience rating infor- mation to the Portland School Committee in connection with that health plan is a prohibited practice. All three respondents have filed motions to dismiss the School Committee's original and/or amended complaint. Asserted procedural/jurisdictional grounds will be addressed first. Procedural/jurisdictional arguments PTA argues that 1) under the Board's rules, the School Committee had no right to file its amended complaint; and 2) the School Committee did not request local experience rating information from PTA during the six months before the original complaint was filed. Neither argument is persuasive. Rule 4.06(B) provides that a complaint may be amended once as a matter of course before a responsive pleading is filed.6 Implicit in that limitation is that additional amendments may be made with the consent of the Board, and motions for leave to amend are granted in appropriate circumstances.7 We are presented with such a circumstance here, since the Trust, which is the subject of the amendment, did not even exist at the time _________________________ 6It also permits amendments in response to a notice of errors and insufficiencies. 7For instance, amendments are not uncommon where new, related prohibited practices are alleged to have occurred after a complaint is filed. -13- the original complaint was filed and therefore could not have been included in that complaint. Although the School Committee should have filed a motion for leave to amend rather than simply filing the amendment, it would serve no purpose to dismiss the amendment on that ground; the School Committee could simply file a separate complaint against the Trust, after making a request for the experience rating that it seeks. Consequently, we will treat the School Committee's amendment as a motion to amend and hereby grant that motion. In response to PTA's second argument for dismissal, we point out first that the School Committee did request the experience rating from PTA in April of 1993, before the amended complaint, which reiterated the complaint against PTA, was filed. Each new request for information, as long as the information is still needed by the party requesting it, is a new event that triggers the duty to provide it. Requiring the School Committee to file a new complaint against PTA rather than an amended complaint would serve no purpose. Moreover, if the evidence shows that MTA is an agent of PTA for the purposes of collective bargaining, then PTA would be liable for any violation by MTA of the duty to provide information, even in the absence of a direct request to PTA for that information. Construction and General Laborers Local Union No. 146, 267 NLRB 1123 (1983) (unlawful threats of district council regarding work jurisdiction attributable to local, since council acting as agent for local on subject of work juris- diction); United Steelworkers of America, 223 NLRB 1184 (1976) (international union that is bargaining agent liable for local's failure to process grievance, since local is agent of inter- national for implementation and enforcement of contract and for processing of grievances). MTA states one procedural ground for its motion: that the School Committee has not alleged in its complaint that MTA is an agent of PTA, the exclusive bargaining agent and only entity with -14- the duty to provide information for collective bargaining. The complaint, as amended, does allege only that MTA and PTA are both bargaining agents. However, according to the School Committee the issue of agency was discussed at length at the prehearing conference, and at hearing the School Committee did volunteer to amend its complaint to specifically allege agency if the Board found that to be necessary. Once again, since the School Committee could make a new request for the information and then file a new complaint, we see no point in refusing to allow the amendment alleging agency and dismissing the complaint against MTA on this ground. The amendment will be permitted. The Trust also offers one procedural ground for its motion to dismiss: that the alleged agency relationship between MTA and the Trust must be asserted in a federal forum. We know of no basis for the Trust's position. Preemption applies no more nor less to this Board than it applies to the National Labor Relations Board. The information is not being sought under ERISA, a federal statute. It is being sought under the MPELRL, in the context of collective bargaining. It is in that context that the Board has the authority to decide whether an agency relationship exists between MTA and the Trust. Merits PTA requests dismissal on the ground that it is the exclu- sive bargaining agent with the duty to provide information, and it does not have and never has had the local experience rating information that the School Committee is seeking. MTA's motion to dismiss is based on three grounds: 1) documents in the record show that MTA is not an agent of PTA; 2) MTA does not now have, and never has had, local experience rating information, and therefore would have no duty to provide it even if it were an agent of PTA; and 3) MTA itself has no use for the information sought by the School Committee and, more particularly, has never used local experience rating information in negotiations (the -15- implication apparently being that if MTA has no use for it in negotiations, the School Committee can have no use for it). The Trust argues that 1) the requirements for an ERISA trust to provide information are determined by ERISA law; 2) in the labor arena, there is a presumption that the Trust is acting on behalf of its beneficiaries and not on behalf of MTA; 3) generation and release of local experience ratings to employer participants would not be in the interest of beneficiaries, because the integrity of the health plan depends on use of the statewide community experience rating rather than local experience ratings; and 4) a requirement that local experience ratings be provided by the Trust would create divided loyalties for the trustees of the Trust that ERISA was designed to avoid. Three major issues are presented by the respondents' motions: 1) whether the local experience rating should be furnished to the School Committee, if available; 2) the potential sources of the rating; and 3) whether agency relationships exist that would require MTA and/or the Trust to furnish the infor- mation being sought. 1. Whether information should be furnished, if available The duty to bargain includes the duty to provide information relevant to the bargaining process. MSAD No. 45 v. MSAD No. 45 Teachers Association, No. 82-10, 5 NPER 20-13028 (Me.L.R.B. Sept. 17, 1982). That duty flows not only to the employer, but to the bargaining agent as well. City of Bangor v. Bangor Firefighters Association, No. 83-06, 6 NPER 20-14033 (Me.L.R.B. Aug. 2, 1983). The duty extends to information requested in order to administer contracts once they are negotiated or "intelligently to seek their modification." OCAW Local 6-418 v. NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983). However, the right to relevant information is not absolute; where there are competing interests, the interests of both -16- parties should be accommodated if possible. Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (in connection with grievance proceeding, employer's legitimate and substantial interest in test security accommodated by requiring employer to furnish test battery and answer sheets to neutral expert rather than directly to union for assessment of test fairness; requirement that employer disclose aptitude test scores of individual employees conditioned on receiving their consent); International Union of Electrical, Radio and Machine Workers v. NLRB, 648 F.2d 18 (D.C. Cir. 1980) (in connection with union's enforcement of antidiscrimination clause in contract, disclosure requirement limited to compilation of numbers, types, dates and alleged bases of discrimination complaints received by employer, in order to protect privacy interests of complaining employees); Pennsylvania Power and Light Co., 301 NLRB 1104 (1991) (summary of informants' statements, and not identities of informants, required to be provided in order to protect employer's interest in drug-free workplace where workplace is inherently dangerous). The School Committee seeks the experience rating for its own teachers in order that the "cost, effectiveness and coverages" of the health plan can be analyzed. More specifically, it alleges that the information is needed to consider changes in plan design, to review the validity of proposed premium increases, and to compare rates of other insurance companies for comparable coverage. Without that information, the School Committee asserts, the parties are locked into the MTA Health Plan. The concern of the Trust, and of MTA when it was the policyholder for the MTA Health Plan, is that releasing local experience ratings to employers participating in the plan would conflict directly with the pooled risk, community rating concept on which the MTA Health Plan is based, and therefore would harm -17- the plan itself and its participants and beneficiaries.8 Although an evidentiary hearing will be necessary for the Board to be able to thoroughly understand and evaluate the competing interests in this case, both interests appear to us to have at least some validity. Unfortunately, we see no way that the interests of both parties can be accommodated -- that is, there is no way to require disclosure of the local experience rating while at the same time protecting the respondents' interest in keeping the information confidential. Should we reach this issue, the Board will have no choice but to weigh the competing interests of the parties and determine which interest should prevail. Chicago Tribune Co. v. NLRB, 965 F.2d 244 (7th Cir. 1992); OCAW, 711 F.2d at 362; U.S. Postal Service, 306 NLRB 474 (1992). 2. Potential sources of information The evidence elicited thus far suggests that the local experience rating information that the School Committee seeks is potentially available, directly or indirectly, from all three respondents. PTA Although uncontroverted testimony shows that PTA does not have and never has had the information, the School Committee suggests that the rating could be generated by PTA from claims _________________________ 8Presumably, this is because in school departments where the local claims experience is lower than the statewide average, employers will leave the plan and purchase insurance from other providers at a lower rates. In those cases where the local experience rating is higher than the average, employers will stay in the plan in order to take advantage of premiums based on the statewide average. As the pool of participants gets smaller and the experience rating for the pool rises, insurance premiums for participants will increase, defeating the purpose of the plan -- which is to spread risk as widely as possible. -18- information obtained from members of the bargaining unit.9 Since an accurate experience rating can only be generated if informa- tion on all claims made by all unit members is available, the School Committee's suggestion is unrealistic for two reasons. First, unit members would be under no obligation to provide PTA with such information, and for reasons of privacy, it would not be surprising if some refused to do so. Second, the likelihood that all unit members have even kept all of the Explanation of Benefits forms that they have received is virtually zero. MTA MTA is a second potential source of the local experience rating sought by the School Committee. Uncontroverted evidence shows that MTA does not have and has never had local experience ratings for any employer participants in the MTA Health Plan. However, we agree with the National Labor Relations Board that the obligation to provide relevant information extends to information that can reasonably be obtained from a third party with whom the party has a relevant business relationship. Congreso de Uniones Industriales de Puerto Rico v. NLRB, 966 F.2d 36 (1st Cir. 1992). It is likely that Blue Cross/Blue Shield could generate and provide MTA with local experience ratings for at least some time periods during which MTA was the policyholder for the MTA Health Plan. Several questions arise in this regard: How long does Blue Cross/Blue Shield keep claims information? Will it provide that information to prior policyholders? What, if any, charge would there be? Who should be required to pay the charge? How useful are less-than-current local experience ratings for getting insurance quotes from other insurance providers? An evidentiary hearing will be required to answer _________________________ 9According to the School Committee, Explanation of Benefits forms that are provided to employees each time a claim is made contain the information needed to generate an experience rating. -19- these questions.10 Trust Finally, the Trust is a potential source of the local experience rating that the School Committee seeks. Although the Trust, as the current policyholder for the MTA Health Plan, has not requested that Blue Cross/Blue Shield generate local experi- ence ratings for this purpose or any other, it could do so.11 3. Agency MTA As the exclusive bargaining agent, it is PTA that has the duty to provide relevant information that the employer requests. In order for MTA to be liable for its refusal to furnish the local experience rating information to the employer, it must be established that MTA is an agent of PTA. That agency relation- ship must be specific to the dispute at hand; where illegal conduct has occurred, agency principles are applied to determine whether, in the particular circumstances, that conduct can be attributed to another. NLRB v. Local No. 64, 497 F.2d 1335 (1974) (where failure to issue work permits at issue, agency relationship must exist regarding work permits); United Brother- hood of Carpenters and Joiners of America, 224 NLRB 1144 (1976) (agency relationship established for purposes of dues collec- tion). Thus, MTA must be shown to be the agent of PTA for the _________________________ 10We do not mean to suggest that this list is exhaustive. The parties are free to present evidence on other relevant questions. 11As with MTA, the question of the cost of generating the information and of who should pay that cost would have to be addressed. -20- particular purpose of collective bargaining.12 Although evidence submitted to date does not appear to establish the requisite agency relationship between MTA and PTA, an evidentiary hearing will be necessary for the Board to make this determination. Trust Since the Trust is not the exclusive bargaining agent, any duty it has to provide the information must also flow from its relationship with PTA and/or MTA. The School Committee has not brought its complaint against the Trust on the basis of past, illegal conduct (the failure to provide information); rather, it seeks to establish a relationship so that the Trust will be required to act -- to provide the information. The amended complaint alleges that the Trust is an "agent, ally and alter ego" of both MTA and PTA. The concepts of agency and alter ego are somewhat different, although related.13 An agent acts on behalf of another. An alter ego is the other. In the private sector, the principle of alter ego is most often used to defeat the attempt of an employer to avoid its collective bargaining obligations. CEK Industrial Mechanical Contractors v. NLRB, 921 F.2d 350 (1st Cir. 1990). The factors used to make an alter ego determination include unlawful motive or intent and "substantially identical" management, business purpose, operation, equipment, customers, supervision and ownership. Advance Electric, 268 NLRB 1001, 1002 (1984). "No one factor is controlling, and all need not be present to support a finding of alter ego status." CEK, 921 F.2d at 354 (citations omitted). _________________________ 12That is so because the duty to provide information in the first instance flows from the duty to bargain. 13We know of no "ally" principle, separate and apart from the principles of agency and alter ego, that would operate to make the Trust liable for providing information. -21- The only agency relationship between the Trust and PTA that would be relevant, if established, would be the same relationship that must be established between MTA and PTA -- the Trust must be shown to be an agent of PTA for the particular purpose of collective bargaining. Neither the agreement setting up the Trust nor any other evidence presented to date even remotely suggests such a relationship. Nor is there any evidence, thus far, that the Trust is an alter ego of the PTA. Absent the presentation of any such evidence, the Trust's obligation to provide information must hinge on its relationship with MTA, if MTA is an agent of PTA. The parties have stipulated, and the evidence shows, that the Trust is subject to ERISA. The U.S. Supreme Court has made it clear that for trusts subject to ERISA, each trustee has a fiduciary duty to beneficiaries that "must overcome any loyalty to the interest of the party that appointed him." NLRB v. Amax Coal Co., 453 U.S. 322, 334 (1981). Thus, as the Trust points out, there is a presumption that trustees are acting on behalf of trust beneficiaries. Although trustee appointments for private sector employee benefit trust funds must be equally divided between employers and unions,14 we know of nothing to suggest that the Amax presumption should be different where all of the trustees are appointed by a union (ERISA itself does not specify who may appoint trustees). In order to overcome the presumption that trustees are acting in their fiduciary capacities, there must be specific evidence to the contrary. NLRB v. Teamsters Local 449, 728 F.2d 80 (2nd Cir. 1984); NLRB v. Teamsters, Local 582, 670 F.2d 855 (9th Cir. 1982); United Food and Commercial Workers Union Local 1439, 268 NLRB 780 (1984). In the case now before us, the Trust _________________________ 14 29 U.S.C. 185(c)(5)(B) -22- agreement setting up the Trust gives sole authority to the Trust itself to make decisions "relating to the use and dissemination (if any) of the participant claims experience date under any plan maintained under the Trust." Therefore, the Trust has acted within its express authority in deciding that local experience ratings will not be furnished if requested. Moreover, the goal of the Trust -- to protect the integrity of the plan as a pooled risk, community rated plan -- is a legitimate goal for the Trust to pursue. That the Trust's goal and MTA's goal correspond does not make the Trust an agent of MTA. NLRB v. Teamsters Local 449, 728 F.2d at 87. However, our inquiry does not end there. Just as nothing in Amax forecloses a finding of agency where the evidence demon- strates conduct in a nonfiduciary capacity, we are not foreclosed from finding that the Trust is an alter ego of MTA where the requisite motive is shown. While overlap in trustee/directors and identity of such factors as business purpose would not be sufficient, those factors in combination with an unlawful motive for creating the Trust would, in our estimation, be sufficient to show that the Trust is an alter ego of MTA. An evidentiary hearing will be needed to make this determination. In sum, we believe that dismissing the School Committee's complaint against any of the respondents at this point would be premature. Accordingly, we will convene an evidentiary hearing to address the issues laid out above. For issues 1 and 2 below, a decision would in at least one alternative finally dispose of the case. In addition, it is possible that the evidence will be clear enough on issue 1 that a ruling can be made at the close of the evidence on that issue. Consequently, the parties should be prepared to address the issues at hearing in the following order: -23- 1. Whether MTA is an agent of PTA for the purposes of collective bargaining. 2. Whether the interests of the School Committee in obtain- ing the local experience rating outweigh the interests of the respondents in keeping the rating confidential. 3. Whether the Trust is an alter ego of MTA. 4. The usefulness of less-than-current experience rating information; miscellaneous questions related to obtaining information from Blue Cross/Blue Shield. 5. Other Subpoenas At the time the School Committee amended its complaint, it also requested the issuance of subpoenas duces tecum for all three respondents, and respondents opposed the request. At the hearing on August 18, 1993, the issue of subpoenas was addressed but the Board made no rulings. It is appropriate that we do so now. The following portions of the School Committee's subpoena request will be granted: To PTA: A1; A2(a); A2(b), to the extent that the materials relate to the relationship between PTA and MTA; A2(c). To MTA: B1; B2(a)(i), except the portion of the agreement that reflects any service fees paid or to be paid thereunder; B2(b); B2(c). To the Trust: C1. Persons are subpoenaed to appear at the evidentiary hearing. Subpoenaed documents are to be produced at the offices of Drummond Woodsum Plimpton & MacMahon no later than two weeks from the date of receipt of the subpoena. -24- ORDER On the basis of the foregoing facts and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(5) (1988 & Supp. 1993) and the Board's Rules and Procedures, it is hereby ORDERED: That the motions to dismiss of the Portland Teachers Association, the Maine Teachers Association and the Maine Teachers Association Benefits Trust are denied. Issued at Augusta, Maine, this 17th day of February, 1994. MAINE LABOR RELATIONS BOARD /s/_________________________ Pamela D. Chute Alternate Chair /s/_________________________ Howard Reiche, Jr. Employer Representative /s/_________________________ George W. Lambertson Employee Representative -25-