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.
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 ...