FRUIT AND VEGETABLE PACKERS & WARE. LOCAL 760 v. NLRB

• Citation: 114 US App. DC 388,316 F.2d 389
• Decision Date: 28 February 1963
• Docket Number: No. 16959.,16959.
• Parties: FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN LOCAL 760 Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

114 US App. DC 388, 316 F.2d 389 (1963)

FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN LOCAL 760 Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16959.

United States Court of Appeals District of Columbia Circuit.

Argued December 17, 1962.

Decided February 28, 1963.

Mr. Herbert S. Thatcher, Washington, D. C., for petitioner. Mr. David Previant, Milwaukee, Wis., was on the brief for petitioner. Mr. Hugh Hafer, Seattle, Wash., also entered an appearance for petitioner.

Miss Vivian Asplund, Atty., N. L. R. B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin Pollack, Atty., N. L. R. B., were on the brief, for respondent. Mr. Warren M. Davison, Atty., N. L. R. B., also entered an appearance for respondent.

Before BAZELON, Chief Judge, and EDGERTON and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

The petitioner Union asks us to set aside an order of the National Labor Relations Board dismissing an unfair labor practice complaint filed against George Mick, d/b/a Yakima Frozen Foods. The Union represents workers who had been employed in the Yakima Company's cannery, and the charge preferred by the Union was that certain actions of the Company violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 61 Stat. 140-41, 29 U.S.C. § 158(a) (1) and (5) (1958).

In February 1959, following a consent election, the Board certified the Union as the representative of the Company's maintenance, production, and transportation workers, and the Union presented the Company with a proposed contract. During March a series of bargaining sessions took place. The Company steadfastly contended that, because of its precarious financial condition, it could not agree to any provisions that would increase current labor costs. In support of this contention, the Company submitted to the Union a copy of its 1957 balance sheet. It explained that the audit of its books for 1958 had not yet been undertaken, and that the figures contained on the 1957 balance sheet were the latest available. The Union was not satisfied with the information submitted and demanded further proof of the Company's claimed financial weakness, suggesting an audit of the books by the Union's auditor. In response to this, the Company offered to make its books available upon certain conditions, namely:

"1. That the books and records be examined here in our office.

"2. That no information pertaining to whom sales were made or from whom purchases were made would be taken out of the office.

"3. That any questions concerning any aspect of the statement or records would be directed to * * * our accountant.

"4. Whatever accountant the Union desires to appoint would be a Licensed Public Accountant or C.P.A.

"5. Any costs arising from this audit would be borne by the Union."

The Union rejected conditions 3 and 4, making the following statement:

"We are not obligated to do this. We are not willing to agree to your stipulations because we don\'t have to. We agree that they are not unreasonable but we will not agree to them. The Union insists on being present when the books are audited."

The Trial Examiner found the Company's conduct to be a violation of Section 8(a) (5), but the Board disagreed.

The Union argues that the position taken by the Board on this issue contravenes the spirit, if not the precise holding, of National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956), and reduces it to a dead letter. We cannot agree. The Truitt case involved an absolute refusal to substantiate claimed financial inability to accept a wage increase, and the Court was careful to disclaim any broader holding than was there required. Id. at 153-154, 76 S.Ct. at 756, 100 L.Ed. 1027. As Justice Frankfurter stated in a separate opinion in Truitt, "The previous relations of the parties, antecedent events explaining behavior at the bargaining table, and the course of negotiations constitute the raw facts for reaching * * * a determination as to good faith in bargaining. The appropriate inferences to be drawn from what is often confused and tangled testimony about all this makes a finding of absence of good faith one for the judgment of the Labor Board, unless the record as a whole leaves such judgment without reasonable foundation." Id. at 155, 76 S.Ct. at 757, 100 L.Ed. 1027. What degree of cooperation is to be required, under any particular set of circumstances, from the parties at the bargaining table, is largely a matter for the Board's expertise. In this case the Company offered to make its books available under certain specified conditions. Clearly there may be circumstances under which a businessman is justified in circumscribing the manner in which he makes his records available for inspection, and in this instance the Union's own representative admitted that the...