C-B Buick, Inc. v. N.L.R.B.

• Decision Date: 14 November 1974
• Docket Number: No. 73-2068,C-B,73-2068
• Citation: 506 F.2d 1086
• Parties: 87 L.R.R.M. (BNA) 2878, 75 Lab.Cas. P 10,454 BUICK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 1086

506 F.2d 1086

87 L.R.R.M. (BNA) 2878, 75 Lab.Cas. P 10,454

C-B BUICK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73-2068.

United States Court of Appeals, Third Circuit.

Argued Sept. 6, 1974.

Decided Nov. 14, 1974.

H. David Rothman, Pittsburgh, Pa., for petitioner.

William H. DuRoss, III, Atty., Peter G. Nash, Gen. Counsel, John S. Jrving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., for respondent.

Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Petitioner C-B Buick, Inc. (Buick) appeals from that portion of the September 17, 1973 order of the NLRB (Board) which held that the petitioner had committed an unfair labor practice by violating Section 8(a)(5) and (1) of the National Labor Relations Act. ¹ The violation found by the Board was petitioner's refusal to furnish certain financial data requested by the Union ² during collective bargaining sessions. On this appeal we are asked by petitioner to set aside that provision of the Board's September 17, 1973 order which requires Buick to furnish the Union with the requested data. The Board has filed a cross-petition to enforce its entire order. ³ For the reasons set forth below we decline to enforce so much of the Board's order as would require Buick at this time to furnish the financial data previously sought by the Union.

I.

In 1971, the Union was certified as the exclusive bargaining representative for eight service-and-parts department workers employed by Buick. Thereafter, Buick and the Union entered into a one-year collective bargaining agreement which expired on June 30, 1972. Prior to the expiration of this agreement, the Union's business representative submitted certain demands to Buick relevant to a new agreement. Some four days prior to the first bargaining session (which had been scheduled for July 19, 1972) Buick's president unilaterally met with the employees and informed them that Buick could not afford the Union's demands and that if these demands had to be met Buick might be forced to close. This meeting, and a subsequent afterhours meeting at which Buick's supervisor advised against union representation, led to the finding by the Board that Buick had violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act). ⁴

At the first two bargaining sessions held on July 19, 1972 and August 2, 1972, the Union's demands were discussed. Buick's position at both sessions was that it could not afford to meet the various Union proposals. The Union thereupon asked to see Buick's profit and loss statement, ⁵ to determine for purposes of further contract negotiations whether Buick's plea of poverty could be substantiated. Buick denied this request at the same time as it submitted counter proposals. Before the August 2, 1972 session ended however, Buick, without abandoning its position that the Union could not see its books, gave the Union an oral statement of Buick's 'pre-tax profits' for the preceding year. This session, like the first, ended without agreement on any issue.

On August 9, 1972 the Union filed with the NLRB an unfair labor practice charge against Buick, claiming (1) that Buich had bypassed the Union and dealt directly with its employees and had threatened them, and (2) that Buick had refused to disclose to the Union relevant employer financial data after asserting that Buick could not afford the Union contract proposals. The Administrative Law Judge who conducted the NLRB hearing on November 20, 1972, concluded that although Buick violated Section 8(a)(5) and (1) by its direct dealings with and threats to its employees, Buick had not committed an unfair labor practice in failing to bargain collectively when it refused to provide the Union with the financial data requested during the bargaining sessions. The NLRB's General Counsel filed limited exceptions to the Law Judge's conclusions urging the Board to conclude that Buick's conduct in refusing to furnish the Union with financial information constituted an unfair labor practice. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). On September 17, 1973, the Board, with one dissent, reversed the Administrative Law Judge's conclusion and amended his order to require, inter alia, Buick to furnish the Union, 'on request and within a reasonable time, that information sought by the Union relating to the respondent's (Buich's) claimed inability to pay the wage increases and other benefits requested by the Union.' (see footnote 3, supra).

Between the hearing conducted by the Administrative Law Judge on November 20, 1972 and the Board's order of September 17, 1973, negotiations between Buick and the Union had continued and on March 13, 1973 the parties entered into a new collective bargaining agreement. ⁶ Buick thereupon petitioned the Board for reconsideration and for a stay of enforcement of the financial disclosure portion of the order, arguing that the signing of a new collective bargaining agreement mooted this issue. Buick's petition was denied by the Board, with one dissent, on November 15, 1973. Thereupon, Buick sought this review ⁷ of the Board's order contending that so much of the order requiring disclosure of financial data should be set aside. Buick argues that the Board erred in finding Buick's conduct to constitute an unfair labor practice, and that the disclosure issue is now moot in light of the existing collective bargaining agreement. The Board opposes such action and requests enforcement of its September 17, 1973 order.

II. TRUITT VIOLATION

Buick argues, inter alia, that its refusal to supply the requested financial data was not a violation of the Act inasmuch as the Union was not bargaining in good faith and was the intransigent party. See, e.g., Boston Herald-Traveler Corp. v. NLRB, 223 F.2d 58, 63 (1st Cir. 1955). In support of this contention, Buick relies on the Administrative Law Judge's finding ⁸ that the Union, as the 'intransigent' caused the breakdown in negotiations. Buick claims that the Board acted arbitrarily and in disregard of the Administrative Law Judge's credibility determinations when it concluded that the breakdown in negotiations 'was not so much due to intransigence on the part of the Union . . . as it was due to Respondent's (Buick's) adamancy in refusing to furnish the requested financial data.' ⁹

In reviewing Buick's bargaining posture, the Board correctly recognized that Buick's refusal to furnish the information requested of it must be examined in light of the Supreme Court's decision in NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). In Truitt, the Union demanded a 10cents per hour wage increase. Truitt, the respondent, offered a 2 1/2cents per hour increase, claiming that it could not afford to pay more and that any amount above 2 1/2cents would 'put it out of business.' The employer refused to permit an examination of its books when the Union asked for substantiation of its claimed inability to pay. The Supreme Court sustained the Board's position that 'an employer has not bargained in good faith where the employer claims it cannot afford to pay higher wages but refuses requests to produce information substantiating its claim.' 351 U.S. at 150, 76 S.Ct. at 754. In so holding, the Supreme Court stated:

'In their effort to reach an agreement here both the union and the company treated the company's ability to pay increased wages as highly relevant. The ability of an employer to increase wages without injury to his business is a commonly considered factor in wage negotiations. Claims for increased wages have sometimes been abandoned because of an employer's unsatisfactory business condition; employees have even voted to accept wage decreases because of such conditions.'

'Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.'

351 U.S. at 152-153, 76 S.Ct. at 755.

This Court has held that it is a per se violation of the Act for an employer to refuse to furnish relevant requested information in the Truitt context. Curtiss-Wright Corp., Wright Aeronautical Division v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). Buick's conduct and the record as developed therefore must be examined in light of these principles. The Board's findings with respect to these facts bearing on its disclosure order will not be set aside if supported by 'substantial evidence on the record considered as a whole.' 29 U.S.C. 160(e). We adhere to this standard even in instances, where as here, the Administrative Law Judge and the Board may differ. International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, 273 F.2d 243, 247 (3d Cir. 1959). The record reveals that the Board's conclusion is in accord with law and rests upon findings which are supported by substantial evidence. Hence, on review, we will not disturb the Board's conclusion that a Truitt violation occurred. NLRB v. Truitt Mfg. Co., supra; see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, supra.

Buick, however, is not obliged to disclose to the Union its profit and loss data and its 'books' merely because they might be helpful to the Union. See United Furniture v. NLRB, 388 F.2d 880 (4th Cir. 1967). It is only where an employer, in asserting its financial inability to meet the demands of the union refuses to disclose its relevant financial data that the Truitt doctrine is applicable. Under such circumstances an employer must disclose, and a union must be permitted...