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,
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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
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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.
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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,
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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.
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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").
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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
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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
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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,
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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
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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.
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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:
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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)
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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:
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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.
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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
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