UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: November 14, 1974.
C-B BUICK, INC., PETITIONER,
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Seitz, Chief Judge, 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.*fn1 The violation found by the Board was petitioner's refusal to furnish certain financial data requested by the Union*fn2 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.*fn3 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.
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 after-hours 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).*fn4
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,*fn5 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 Buick 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, 100 L. Ed. 1027, 76 S. Ct. 753 (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 [Buick'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.*fn6 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*fn7 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.
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*fn8 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] adamancy in refusing to furnish the requested financial data."*fn9
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, 100 L. Ed. 1027, 76 S. Ct. 753 (1956). In Truitt, the Union demanded a 10 cents per hour wage increase. Truitt, the respondent, offered a 2 1/2 cents per hour increase, claiming that it could not afford to pay more and that any amount above 2 1/2 cents 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. 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 152-53 (footnote omitted).
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, 95 L. Ed. 456, 71 S. Ct. 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 to know, the factual basis substantiating the employer's assertion of economic inability. NLRB v. Truitt Mfg. Co., 351 U.S. at 152-153. If it were otherwise, the collective bargaining processes would be frustrated. Here, if the Union could not meaningfully evaluate Buick's economic claims it could not determine whether the claims of financial inability were valid or spurious. Thus, absent Buick's compliance with the Truitt mandate, the Board was justified in holding that Buick failed to bargain in good faith.*fn10
Our task, however, has not been completed with our determination that Buick's refusal to furnish financial information was properly held to constitute a violation of the Act. We must still resolve the question of whether we should presently enforce the Board's disclosure order.
Our power to enforce Board orders is equitable in nature and is properly invoked only when the relief sought is consistent with principles of equity. NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953). Accordingly, where the power of this Court is to be exercised for the enforcement of a Board order requiring the disclosure of financial data, the order must be appropriate for present enforcement. NLRB v. Eanet, 85 U.S. App. D.C. 371, 179 F.2d 15, 17, 21 (1948), reh. denied, 85 U.S. App. D.C. 371, 179 F.2d 15 (1949). See also New Standard Publishing Co., Inc. v. Federal Trade Comm., 194 F.2d 181, 183 (4th Cir. 1952). When enforcing Board orders our function is not to put our stamp of authority automatically upon whatever request is made of us, NLRB v. Eanet, supra, nor should we enter an enforcement decree ". . . in the absence of any showing whatever, based on reasonably recent inquiry that a decree of court is appropriate or necessary." NLRB v. Eanet, 179 F.2d at 22. An order of the Board when judicially confirmed must ". . . like the injunction order of a court, state with reasonable specificity the acts which the respondent is to do or refrain from doing . . . ." NLRB v. Express Publishing Co., 312 U.S. 426, 433, 85 L. Ed. 930, 61 S. Ct. 693 (1941).
With these teachings in mind, we direct our inquiry first to Buick's contention of "mootness" and then to the controlling issue of relevance.
Buick asserts that even if it is held to have committed an unfair labor practice in refusing to furnish requested financial data to the Union (as we so hold), the Board's order requiring disclosure should be denied enforcement. Buick argues that the three-year collective bargaining agreement executed after Buick failed to make disclosure of its books renders present disclosure moot. Buick claims that any information it could be obliged to furnish now has been made stale by the passage of time and can serve no useful purpose to the Union either in its role as a bargaining agent or in its role administering the new collective bargaining agreement.
On the other hand, the Board contends that the subsequent execution of the collective bargaining agreement does not "moot" its disclosure order. The Board argues that the forced production of Buick's economic information would prevent Buick from profiting from its unfair labor practice. Such information, says the Board, could also be used by the Union in "(1) implementing, enforcing or modifying the current agreement; (2) proposing additional requests; (3) formulating future demands or requests; and/or (4) evaluating and assessing the credibility of Respondent's assertions and claims or the viability of its bargaining position during future negotiations and meetings."*fn11
We requested additional post argument briefing, concerning the effect of implementing the Board's proposed order at this time, during the period of the existing agreement;*fn12 and at its termination.
A Board order, lawful when made, does not become moot*fn13 solely "because changing circumstances indicate that the need for it may be less than when made." NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 82 L. Ed. 831, 58 S. Ct. 571 (1938); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S. Ct. 1547, 26 L. Ed. 2d 21 (1970). Indeed, under the circumstances presented here, we reject Buick's contention that the signing of a collective bargaining agreement subsequent to a Truitt violation by the employer automatically renders moot a Board order under review which pertains to the refusal to furnish relevant information. We regard Buick's proscribed conduct as being capable of repetition in some relevant context with the Union. Cf. Allee v. Medrano, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566, 42 U.S.L.W. 4736, 4738 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L. Ed. 2d 1, 42 U.S.L.W. 4507, 4510 (1974). The significance of the contract execution on March 13, 1973 must therefore be measured by considerations of relevancy (see our discussion infra) rather than by considerations of mootness.
An essential ingredient in establishing an unfair labor practice under the doctrine announced in Truitt is that the information withheld be relevant. Relevance, in this case, should be measured with respect to the Union's statutory functions (the negotiation and administration of the collective bargaining agreement, NLRB v. Acme Indus. Co., 385 U.S. 432, 437, 87 S. Ct. 565, 17 L. Ed. 2d 495 (1967); International Tel. & Tel. Corp. v. NLRB, 382 F.2d 366, 371-72 (3d Cir. 1967), cert. denied, 389 U.S. 1039, 19 L. Ed. 2d 829, 88 S. Ct. 777 (1968)) and with respect to the on-going relations of the parties.
Based on the record presented, there is no showing that the information requested during the period of contract negotiations in July and August 1972 is relevant or can be of use to the Union in carrying out its statutory responsibility as an exclusive bargaining agent. While the provision of the Board's order here challenged does not delineate the period of time for which records must be produced, the Board has conceded in its supplemental brief that its order pertains only to those records of Buick which were in existence and available on or before July 19, 1972. There are no pending bargaining negotiations between Buick and the Union. On this record we find it difficult to understand how the financial data requested by the Union on July 19, 1972 and on August 2, 1972 is now relevant to a present negotiating or bargaining issue, even though we hold that such relevance once existed. We have not been shown and we will not speculate that the disclosure of Buick's 1971 or 1972 financial data*fn14 at this time can serve any useful collective bargaining purpose. Cf. NLRB v. Eanet, supra. In so holding, we reject the Board's contention that if Buick's records indicated that Buick could have afforded higher labor costs, the Union could presently modify the existing agreement's wage or benefit provisions by an action under § 301 of the Act. 29 U.S.C. § 185.*fn15
We have been shown no authority where during the term of a collective bargaining agreement, modifications of that agreement's contractual provisions have been permitted as a result of a pre-contract Truitt violation. § 301 applies to actions for the violation of contracts. An unfair labor practice does not necessarily result in a contract violation which would invoke the jurisdiction of federal courts pursuant to § 301, cf. Adams v. Budd Co., 349 F.2d 368 (3d Cir. 1965); Procter & Gamble Independent Union v. Proctor & Gamble Manufacturing Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 10 L. Ed. 2d 1053, 83 S. Ct. 1872 (1963), especially where, as here, no necessary or sufficient connection is shown between the unfair labor practice and the contract.*fn16 Moreover, nowhere has it been claimed that the Union has sought to modify the present contract, or wage or benefit provisions any time after the execution of the contract on March 13, 1973.
B. Union Administration
The record is also silent with respect to the Union's needs for such financial information in order to "administer" the collective bargaining agreement. We realize that a union is entitled to information necessary to prosecute grievances. NLRB v. Acme Indus. Co., supra, but there is no showing that the information requested has any present or future relevance to such a situation. Indeed, we are not aware of any grievances past or present pending under the present contract provisions. There is no indication that the Union's obligation to "administer" the collective bargaining agreement might be affected by the information sought. See International Tel. & Tel. Corp. v. NLRB, 382 F.2d at 371-72. The predictions of the Board as to how such information may be employed by the Union are mere speculation. As such, no demonstration of relevance has been shown. Absent such a showing, we cannot say that present enforcement of the Board's financial disclosure order would achieve ends "fairly said to effectuate the policies of the Act." See NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953).
C. During Term of Contract
Although the record discloses no pending grievances or issues, it is conceivable that under the existing agreement a problem may arise in a context where Buick's financial information may become relevant. We cannot know at this time: (a) whether Buick will plead economic inability;*fn17 (b) whether if such plea is made, Buick will then refuse disclosure of its substantiating data; (c) whether under the circumstances then existing Buick's conduct would constitute an unfair labor practice; (d) whether the records which are subject to the Board's September 17, 1973 order (i.e., pre-July 1972 records) and the only records with which we are concerned here, would have any relevance whatsoever to the particular issue then disputed; and (e) whether the collective bargaining provisions of the existing contract would have any effect on the dispute. The mere cataloging of the myriad issues to be faced, as to which neither of the parties can have knowledge at this time, fortifies our view that the enforcement of the Board's order would be inappropriate. We cannot anticipate from Buick's past conduct that it will take unlawful action in the future, nor will we grant enforcement of an order to restrain the possible future commission of a new violation unrelated to that with which Buick was here charged. See NLRB v. Express Publishing Co., 312 U.S. 426, 435-37, 85 L. Ed. 930, 61 S. Ct. 693 (1941).
In light of this discussion, we refrain from comment on the potential application of the Truitt doctrine to any viable issue that might arise during the course of the present agreement.*fn18 It is sufficient for our purposes here to recognize that the record is deficient, both with respect to the relevance of a Truitt violation during the term of the contract, and the relevancy of pre-July 1972 financial information to an issue which has not now and may never arise.
D. Termination of Contract
The collective bargaining agreement executed on March 13, 1973 does not expire by its terms until March 1976. We cannot know now whether Buick will claim inability to meet Union demands when and if a renewal of that contract is negotiated. We do not and cannot know from this record whether Buick if asked for financial data, will refuse to furnish such information. "Thus, while the Board's discretion in ordering affirmative action is wide and should not lightly be disturbed, it has its limits. Certainly, a Court of Appeals has some responsibility for the effects of its own decree . . . ." NLRB v. Kingston Cake Co., 206 F.2d at 611. We cannot, consistent with our equitable role, defer to the Board's discretion in ordering affirmative action by Buick without knowing the context within which a subsequent violation might arise -- or if indeed a subsequent violation will ever occur. (See our discussion under Part V.C., supra). As a court of equity, we will not engage in such a vain endeavor.*fn19
We are fully cognizant of those cases in which orders have been enforced after a change in circumstances. See, e.g., NLRB v. Raytheon Co., 398 U.S. 25, 26 L. Ed. 2d 21, 90 S. Ct. 1547 (1970); NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6th Cir. 1963) (enforcement of order despite the employer having discontinued operations and having gone out of business). But an examination of those cases reveal that in each instance the Board's order provided a "cease-and-desist" sanction which would subject the employer to contempt proceedings if the acts constituting the unfair labor practice were to be resumed. Here, there is no such proposed cease-and-desist sanction in the Board's remedial order as it respects the production of financial information. As the Board recognizes in its supplemental brief, its order would not subject Buick to contempt proceedings with respect to future collective bargaining conduct. Thus, the Board recognizes, as do we, that under certain limited circumstances a violation of the Act may go unpunished. Our objective, however, is to effectuate the policies of the Act,*fn20 and not necessarily to impose punitive sanctions where the "punishment" may not be relevant to correct the violation committed.
We emphasize again that our refusal to enforce the Board's order is prompted by the dilution in relevancy occasioned by the passage of time and the execution of the present collective bargaining agreement. In respect to remedial orders for Truitt violations, it is our view that to effectuate the policies of the Act, the information to be furnished by the employer must have current relevancy both to the Union in the proper performance of its functions and to the issues involved.*fn21 We consider the execution of the new agreement under the circumstances then existing, to be but one factor in establishing the relevance of the information to be supplied to the Union for carrying out its functions.
Accordingly, so much of the Board's order as requires the disclosure of Buick's financial data will be set aside and enforcement as to that portion of the September 17, 1973 order will be denied. Enforcement will be ordered as to the remainder of the Board's order. Each party shall bear its own costs.