Boulevard Storage & Moving Co., Inc.

BOULEVARD STORAGE & MOVING CO., INC., ETC. 539 arrangements of the employers involved, and in which it is not possible to determine whether the picketing is violative of Section 8 (b) (4) (B)' or 8(b) (7). Boulevard Storage & Moving Co., Inc., Irving Kirsch Corporation, United Fire Proof Warehouse Co., Walsh Packing & Storage Co. and Chauffeurs, Teamsters & Helpers "General" Union Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 30-CA-471 (formerly 13-CA-6308). May 11, 1965 DECISION AND ORDER On November 30, 1964, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respond- ents had not engaged in certain unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. There- after, the General Counsel and the Union filed exceptions to the Trial Examiner's Decision and supporting briefs. Respondent United Fire Proof Warehouse Co. filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions and briefs, the Respondent's answering brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings and conclusions only to the extent consistent with this Decision and Order. Contrary to the Trial Examiner, we find that the Respondents vio- lated Section 8 (a) (5) and (1) of the Act by failing to produce certain financial data requested by the Union during collective-bargaining negotiations and by unilaterally reducing wages. The Respondents, individually referred to as Boulevard, Kirsch, United, and Walsh, are engaged in local and over-the-road hauling of household furniture. Since 1955, the Union has been in contractual relations with the Respondents covering all employees, including local and over-the-road drivers; since 1961, Respondents have bargained as a multiemployer group with the Union covering such employees. In 'At the hearing, the Trial Examiner granted the General Counsel 's motion to sever this case from Case No. 30-CB-15 152 NLRB No. 51. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January and February 1964, during collective-bargaining meetings to negotiate a contract to succeed the one which was due to expire Febru- ary 29, 1964, the Union proposed a wage increase for all employees and the Respondents counterproposed a 19-cent per hour reduction in wages. Respondents claimed that the local moving phase of their operations was not making any profit and that it was unable to stay competitive with the many nonunion moving companies in the area. Respondents' spokesman advised the Union of the unprofitable local moving situation by comparing the hourly charge to customers ($4.50 per hour) with the labor cost ($2.64 hourly wage rate plus $.58 fringe benefits) which amounted to 71 percent of the charge to customers, and the general overhead cost of 29.6 percent in the industry. The Union's chief negotiator, Henry Kucera, asked to see the Respondents' financial records pertaining to their overall operations, including the over-the- road hauling, but was willing to accept the records of any one of the Respondents for the purpose of determining "financial plight." Respondents rejected this request on the ground that the overall infor- mation was immaterial in the circumstances. Additional meetings were held between March 10 and May 25, 1964. On March 10, the Respondents offered to reduce their proposed wage cut from 19 cents to 15 cents an hour. This proposal was unacceptable to the Union and the Respondents advised the Union that the 15-cent cut would nevertheless be put in effect on March 15. The Union threat- ened strike action and the meeting ended. Wages of all employees of the Respondents, including those engaged in over-the-road hauling. were cut 15 cents per hour effective the following week. The parties next met on April 7. The Union again requested exami- nation of the Respondent's books relating to sales, costs, and earnings, and repeated the request in a letter to the Respondents on the following day. The Respondents replied by letter, repeating their cost figures as to local moving, complaining about the extent of nonunion competi- tion, and maintaining that these matters did not require an audit, of books for verification. At a meeting held on April 23, the Respondents finally agreed they would supply overall financial data of the four com- panies upon devising some means for preserving the confidentiality of the records. However, the employees went on strike on May 14, and no records were ever furnished. The strike had been authorized by the employees of all four companies at a meeting held on May 3, after the employees, concerned about the wage cut, had been informed by the Union's bargaining committee of its failure to obtain access to the financial records of the Respondents. A final meeting was held on May 25, when the Respondents offered to reinstate the wage rates of the expired contract, but the Union con- tinued to request a wage increase. A few days later, the Union reached BOULEVARD STORAGE & MOVING CO., INC., ETC. 541 a separate settlement agreement with Kirsch, providing for the retro- active restoration of the 15-cent wage cut and a 20-cent wage increase spread over the next 3 years. Thereafter, the group bargaining arrangement among the three remaining Respondents was formally dissolved. Boulevard and Walsh then entered into agreements with the Union on the same terms accepted by Kirsch. United alone has not reached an agreement with the Union and its employees were still on strike at the time of the hearing. 1. The failure to produce data: We agree with the Trial Examiner that the Act requires an employer engaged in collective bargaining to produce substantiating data, at the request of a union, where the employer pleads financial inability to pay a proposed wage increase 2 or takes a position that it is compelled to cut wages,3 and that an employer's claim that it could not grant an increase and remain com- petitive so as to avoid losses is equivalent to a plea of inability to pay .4 However, we do not agree with his conclusion to the effect that these Respondents made no such plea of inability to grant a wage increase as entitled the Union to examine more than the records relating to local moving costs, which records, the Trial Examiner found, "the Com- panies substantially disclosed." With respect to the nature of Respondents' position taken during negotiations, the record shows that, at the first meeting on January 22, Respondents' reply to the Union's proposed wage increase for all employees was that it could not be granted, according to the testimony of Thomas Neubauer of the Respondents' negotiating committee, because of the "very severe competitive and economic problems we were confronted with" concerning local hauling. At this meeting and at several subsequent ones, the Respondents rejected the Union's wage demands and countered with a proposed wage cut on the ground that unless an overall cut was made, they could not become competitive in their local moving as to which they were assertedly losing money. Manifestly, this was a plea of inability to take any action with respect to wages except to reduce them, albeit grounded upon the asserted ne- cessity for economic relief in one phase of Respondents' operation, such as called for the furnishing of substantiating data by one bargaining in good faith. Respondent's offer to certain local moving data scarcely suffices to satisfy this obligation. To adopt a contrary view would be to sanction Respondents' efforts to isolate their local moving from their total opera- tions and to regard their dispute with the Union, which related to the 2 N L R.B. v. Truitt Mfg. Co., 351 U. S. 149. S The Celotem Corporation, 146 NLRB 48. 4 Peerless Distributing Company, 144 NLRB 1510, 1514 ; Cincinnati Cordage and Paper Company. 141 NLRB 72, 77. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage rates of all employees, as confined to the local moving phase of their business. But this would be wholly unrealistic as local moving data alone would not permit of an intelligent evaluation of Respond- ents' declared necessity for an overall wage cut. For as already indi- cated, the Union was the bargaining representative of all employees of Respondents and not of the local drivers only, and it was engaged in bargaining for all the employees it represented. The wage increase requested by the Union was for all the employees and the wage cut which Respondents proposed and later instituted also affected' all- the employees. Clearly, local moving data alone would -have shed little light on Respondents' financial status in regard to the bargaining pro- posals affecting the overall complement.5 Upon the entire record, we find that Respondents, by refusing to furnish the Union with the overall financial data requested, failed to bargain in good faith in violation of Section 8(a) (5) and (1) of the Act. 2. The wage cut: Having found that the Respondents' failure to pro- duce records during bargaining negotiations was an unfair labor prac- tice, we also find, in the circumstances, that a bona fide impasse did not exist as of March 10, when the wage cut was announced. Although there were differences in the respective wage demands of the parties, it must be held that the Respondent's refusal to submit all relevant data contributed sib ificantly to any deadlock in negotiations which may have existed at that time. This conduct on the part of Respondents precluded any harmonious resolution of the wage dispute that might have taken place had meaningful bargaining been fostered by the fur- nishing of such data. It may well be that such data would have per- suaded the Union to modify its wage demands to a point which would have appeared more reasonable to Respondents or the Union might have been able to convince the Respondents that its proposed wage hike could be absorbed. Consequently, there was no good-faith impasse between the parties to warrant Respondents' unilateral actions We find that the Respondents also violated Section 8 (a) (5) and (1) of the Act by instituting the wage cut. 3. The strike: The complaint alleges that the strike, which began on May 14, 1964, was caused and prolonged by Respondents' unfair labor practices. We find that this allegation has been sustained, as the rec- ord shows that the strike was caused or prolonged in part by the 5 With respect to the local moving data which was provided, the general industry over- bead cost figure of 29 6 percent was not, of course , the precise overhead costs of these Respondents 8 Bethlehem Steel Company ( Shipbuilding Division ), 147 NLRB 977 . The Trial Exam- iner has noted that if Respondents ' failure to furnish the data required herein were an unfair labor practice , "I should agree that the `impasse' of March 10 did not warrant the companies' action in instituting a wage cut; the 'impasse' would have been occasioned, at least in part, by the unfair labor practice." BOULEVARD STORAGE & MOVING CO., INC., ETC.: 543 Respondents' unlawful refusal to furnish financial' data and their -unlawful wage cut 7 Consequently, the striking employees are entitled to reinstatement upon application. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondents set forth above, occur- ring in connection with the operations of the Respondents, have a close, intimate, and subst antial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing- commerce and the, free flow of commerce. THE REMEDY We have found that the Respondents have engaged in unfair labor practices, but the General Counsel, with the Union's approval, has requested that a remedial order be issued only against Respondent United, as settlement agreements have been reached between the Union and the other three Respondent companies. In the circumstances herein, we shall honor -this request. Having found that Respondents refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act by refusing to fur- nish financial records as to their overall operations, and by unilaterally cutting-,wages, we shall order Respondent United, who is no longer engaged in group bargaining with the other employers, to supply such information as to its operations, to restore the wage rates that existed prior to its unilateral action, and to make whole each of its employees, with interest at 6 percent per annum, for any loss of pay each may have suffered as a result of the wage cut. Having also found that the striking employees are unfair labor prac- tice strikers, and as the record does not establish that the employees of Respondent United have abandoned the strike or are unavailable for reemployment, we shall order that Respondent United offer the strikers reinstatement to their former or substantially equivalent posi- tions, upon application therefor, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after May 14,1964, the day the strike started, to replace the strik- ing employees. We shall also order that United make whole • those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of United's refusal, if any, to reinstate them, upon request, by, payment to each of them, of a sum of money equal to that which he normally would have earned as wages, with interest at 6 per- cent per annum, during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of '7The,Trial'Examiner found that "If either the wage reduction or the refusal to produce the books is held an unfair labor practice, the strikers are 'unfair labor practice strikers' as the strike was caused or prolonged by an unfair labor practice." 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and the inter- est to be computed in the manner set forth in Isis Plwmbing c0 Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2 (2) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By refusing to bargain in good faith with the Union, the Respond- ents have engaged in unfair labor practices within the meaning of Sec- tion 8(a) (5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, United Fire Proof Warehouse Co., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Chauffeurs, Teamsters R Helpers "General" Union Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the appropriate unit, by refusing to furnish financial records dealing with its overall opera- tions, and by instituting unilateral changes in wages or other terms or conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which it is found will effec- tuate the purposes of the Act : (a) Upon request, provide the Union with financial records pertain- ing to its overall operations. BOULEVARD STORAGE & MOVING CO., INC., ETC. 545 (b) Revoke the unilateral wage changes instituted on March 15, 1964, and revert to the wage rates existing immediately prior thereto. (c) Make whole its employees for any loss of pay they may have suffered by reason of the unilateral wage changes, in the manner set forth in this Decision and Order. (d) Upon application, offer to its striking employees immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges, and make them whole, if necessary, in the manner set forth in this Deci- sion and Order. (e) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (f) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of back- pay due and the rights of reinstatement under the terms of this Order. (g) Post at its plant in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix." g Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting : I cannot agree that the Respondent's implementation of a 15-cent wage cut on March 15, 1964, constituted a refusal to bargain in light of Respondent's negotiations thereon in meetings on January 22, Feb- ruary 7, 19, and March 2 and 10, 1964. I agree with the Trial Exam- iner's conclusion that an impasse had been reached at the March 10 meeting based as it was on the wide difference between the parties on their respective wage proposals, and the fact that the Federal mediator involved had advised the employers that "he felt the entire situation 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." 789-730-66-vol. 152-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -was hopeless," that they "were awfully far apart and probably couldn't arrive at any solution to our problems," and that they had "reached a stalemate." At the time the March 10 meeting disbanded, the parties had made no arrangements to meet further. The Supreme Court has recently found a similar factual situation was an impasse.9 Nor does the Respondent's failure to produce financial data about -the profitable portion of its operations, over-the-road-trucking, consti- tute a refusal to bargain. As the Trial Examiner succinctly stated : But the Union has no inherent right to such records. If for exam- ple, an employer grounds his refusal to give an increase on a sheer reluctance to pay employees more money, the Union cannot compel him to produce his books to- support its contention that he can afford to pay more. So here, the companies' position that because of local moving competition they wanted to reduce labor costs may have been a non sequitur, in .the sense that it was an insufficient reason for a wage cut, but it did not entitle the Union to examine any general records of profitability, except only those relating to local moving costs, and those the Company substantially disclosed. Secondly, the companies and the Union-were in the process of work- ing out some means of producing the records when the Union struck and at this point the matter was abandoned. The overall context of -this case clearly establishes that the parties, who had for years previ- ously been involved in strike disputes over wages, were in substantial -disagreement over wage proposals and the strike which resulted was -simply an economic strike. I would, therefore, affirm the Trial Examiner's dismissal of the .complaint. O Local 374, International Brotherhood of Boilermakers, etc. (American Shipbuilding Company) v. N.L.R.B., 380 U.S. 300, in which the Supreme Court found an impasse when "after extended negotiations, the parties separated, without having resolved substantial differences on the central issues dividing them and without having specific plans for fur- ther attempts to resolve them-a situation which the Trial Examiner found was an -impasse " In connection with the wage increase, compare N.L.R B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, and N.L.R B v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736 See also Empire Terminal Warehouse Company,, 151 NLRB 1359 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations i3oard, and, in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Chauffeurs, Teamsters & Helpers "General" Union Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- BOULEVARD STORAGE & MOVING CO., INC., ETC. 547 ers of America, as the exclusive bargaining representative of our employees by refusing to provide it with financial records pertain- ing to our overall operations , or by instituting unilateral changes in wages or other terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the aforesaid Union or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Sec- tion 7 of the Act, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, furnish to the Union financial records pertaining to our overall operations. WE WILL revoke the unilateral wage changes instituted on March 15, 1964, revert to the wage rates existing immediately prior thereto, and make whole our employees for any loss of pay they may have suffered by reason of the wage cut. WE WILL offer to all strikers , upon their application , immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired after May 14, 1964. UNITED FIRE PROOF WAREHOUSE CO., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NOTE.-We Will notify the above-named employees if presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 744 Northern Fourth Street , Milwaukee , Wisconsin , Telephone No. 272-8600, if they have any question concerning this notice or com- pliance with its provisions. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, heard before Frederick U. Reel in Milwaukee, Wisconsin, on Septem- ber 30 and October 1, 1964,1 following a charge filed March 24 and a complaint issued June 5, presents primarily the question whether the employers' reduction of the Act because the impasse followed the failure of the employers to produce certain wage rates following an impasse in bargaining violated Section 8(a)(5) and (1) of the act because the impasse followed the failure of the employees to produce certain substantiating data requested by the Union. At the outset of the hearing counsel for the Charging Party moved to withdraw the charge against all the named Respondents except United Fireproof Warehouse Co. This motion was opposed not only by General Counsel but also by counsel for Respondents, and I therefore denied it. General Counsel stated, however, that no, relief was being sought against any Respondent except United. Upon the entire record in this proceeding, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondents, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS AND THE LABOR ORGANIZATION INVOLVED Boulevard Storage & Moving Co., Inc. (herein called Boulevard), Irving Kirsch Corporation (herein called Kirsch), United Fire Proof Warehouse Co. (herein called United), and Walsh Packing & Storage Co. (herein called Walsh) are Wis- consin corporations engaged at Miuwaukee in storing and moving household furni- ture and other goods, Boulevard, Kirsch, and United each receives annual revenues in excess of $50,000 from the transportation of household furniture and other goods from Milwaukee directly to places outside the State. Those three companies are therefore engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Since, as appears below, Walsh was associated with them, at least at the time of the events here in question, in a single multiemployer bargaining group, Walsh was engaged in an activity affecting commerce within the meaning of those sections. The Charging Party, herein called the Union, is a labor organization which at least since 1955 has been the statutory bargaining representative for the drivers, helpers, packers, and warehousemen employed by Boulevard, Kirsch, United, and Walsh. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-bargaining history prior to 1964 Since at least as far back as 1955 the Union has been the bargaining representa- tive of the employees of a number of Milwaukee furniture moving companies, but there are also a number of companies in the same industry and locality at which the employees are not represented by a labor organization. In 1955, following a strike, the Union executed a single 3-year contract with the more than 20 moving firms whose employees it then represented. In 1958, after bargaining and after a strike at each of the companies involved, the Union executed separate but identical 3-year agreements with some 12 to 15 companies, including the 4 named as Respondents in this proceeding. The 1958 agreements, although identical to each other, were executed on different dates, as first one company and then another would reach agreement with the Union on the terms eventually common to all. In 1961 the number of negotiating employers was further reduced, but it continued to include, inter cilia, the four here involved, who bargained as a group through a single repre- sentative (Attorney Wiedemann), and who at that time (and without a strike) signed separate but identical 3-year agreements with the Union due to expire February 29, 1964. In late December 1963 the Union wrote each of the companies with whom it had a contract, including the four named in this proceeding, stating that it desired to make changes in the contract, enclosing a list of proposed changes, and requesting that the Company suggest a meeting date. The four companies here involved again agreed among themselves to bargain as a group, prepared a countrproposal, and arranged with the Union for a meeting at the Union's offices on January 22, 1964. 'Except where otherwise noted, all dates herein refer to the year 1964. BOULEVARD STORAGE & MOVING CO., INC., ETC. 549 B. The bargaining to an "impasse," and the March 15 wage cut The January 22 meeting was devoted primarily to a discussion of the employers' ,complaint that their nonunion competitors in the local moving business were oper- ating at much lower labor costs and presented a serious problem to the industry.2 They urged the Union to organize the unorganized, stating that in view of the increase in nonunion companies, a wage increase could not be granted, and a wage decrease would probably be advisable. The employers expressed the view that their labor costs in local moving were so high that their local moving business "was being subsidized by the rest of [their] business ...." Union President Lane replied that cartage labor cost per revenue dollar was between 50 and 51 percent, and he believed the labor costs of this group to be approximately the same. The employers responded that they believed otherwise but would check into it further. The next bargaining meeting was held at the union office on February 7. Either at that meeting, or at the meeting of January 22, the employers presented their counterproposal, which called, inter alia, for a 19-cent per hour reduction in wages, as contrasted with the 50-cent increase proposed by the Union. At the February 7 meeting the employers advised the Union that the labor cost on local moving was 71 percent of the revenue dollar, a figure derived by dividing the charge to the customer ($4.50 per man-hour) into the labor cost ($2.64 per hour wage rate plus $.58 per hour cost of fringe benefits). The employers further advised the Union at this meet- ing that an industry publication showed that the average general overhead cost in the industry was 29 6 percent of the revenue dollar. These figures, the employers stated, established that they were making no profit out of the local moving aspect of their business. They expressly stated that they were not expressing a view as to the overall profit or loss of their operations. According to the testimony of Henry Kucera, the Union's chief negotiator, he asked the employers on February 7, as well as at subsequent meetings on February 19 and March 10, to let the Union examine the financial records of any one of the companies "to show the financial plight of the company," and the employers' spokes- man replied that they would not do this and the Union "would have to take their word for it." Company witnesses denied that their spokesman ever resorted to the phrase just quoted. As they remembered the matter, whenever Kucera asked to see the books, the response was that all the employers were discussing were the costs of local moving, that their overall financial position was not in issue, and that their books would therefore shed no light on the issue. Company witnesses also did not corroborate Kucera's claim that he mentioned looking at the books on the three dates mentioned above, but agreed that he mentioned it at the February 7 meeting, and one of their number testified to Kucera's bringing up the subject on "one or two occasions." General Counsel called no witnesses to corroborate Kucera although other union representatives had attended the bargaining sessions. Relying on that circumstance as well as on the demeanor of the witnesses and what I regard as the inherent probabilities, I find that Kucera at the February 7 meeting, and again at one other session prior to March 15, made some reference to the Union's desire to examine the companies' records, but that the response to those requests was couched in terms of the books' not shedding light on the issues rather than in terms of "tak- ing the employers' word for it." The February 7 meeting was devoted to the problems of labor cost and the need for organizing the other moving companies. The parties next met on February 19; this and subsequent meetings through May 21 were held at the office of the Federal Mediation and Conciliation Service. In these meetings the parties spent part of the time in face-to-face negotiations and part of the time meeting separately with a federal mediator. The opponents stated their respective positions to the mediator ,on February 19, the Union contending that wage cuts would not help them to organ- ize the unorganized workers, and noting that the 3 largest companies (all but Walsh) were engaged primarily in over-the-road hauling so that local moving competition was not a serious factor.3 At a second meeting with the mediator on March 2 the Union presented new demands, substantially reduced from those stated in their origi- nal proposal, e.g., a wage increase of 15 cents, not 50 cents, an hour. A critical session was held on March 10 First meeting face-to-face the parties reiterated their conflicting positions as to the wage picture. The parties then met separately with the mediator, who reported that they were far apart and probably S The record indicates that there are over 70 moving companies in Milwaukee, that over 20 were unionized in 1953, and that that figure had shrunk to 7 by 1964. 3 The record indicates that Walsh derives 50 percent of its revenue from local moving, and that Boulevard derives about 25 percent of its rei enue from that source 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could not reach amicable agreement. The employers offered to reduce their pro- jected wage cut from 19 cents to 15 cents an hour. This information, given to the mediator, was relayed by him to the Union; the Union's copy of the original pro- posal, introduced in evidence, contains a notation in ink of the rates proposed on March 10 which is prefaced by the notation "thru Kurtz" (the mediator). The pro- posal of a 15-cent cut was not acceptable to the Union, which continued to insist on a wage increase. The employers, upon being so advised, caucused again and determined to institute the 15-cent cut on March 15. The parties again met face-to- face, and the employers' spokesman informed the Union that the wage cut would take effect March 15, the following Sunday. The Union retorted that this was a good means of forcing a strike, and the meeting ended. Wages of all employees (including those not engaged in local moving operations) were cut 15 cents per hour effective the following week. C. Subsequent bargaining sessions; the Union's formal demand for corporate records; the strike and its partial settlement The parties met again at the mediator's office on April 7, a meeting at which the employers presented a proposed new health insurance and welfare plan which the Union said it would study. At this meeting union counsel, who had not attended the previous bargaining sessions, asked the employers to let a union auditor exam- ine their books including their sales earnings, costs, and whatever might have a bearing on their position. This request was repeated in a letter dated April 8 from Kucera to the employers' counsel. The reply, dated April 14, restated the employers' position that with respect to local moving their labor cost under the recent contract had been over 71 percent of the revenue dollar, that the national average general overhead was 29.6 percent of the revenue dollar, that in their judgment any signifi- cant increase in their rate to customers was out of the question because of the extent of nonunion competition in the local moving industry, and that none of these mat- ters required an audit of the companies' books for verification. At the next meeting held April 23 the Union stated that it did not consider the proposed insurance plan a satisfactory substitute for the plan existing under the previous contract, and offered to supply a written analysis of its objections. Union, counsel then repeated the demand for corporate records, particularly those pertain- ing to sales, costs, and earnings . The employers raised a question of confidentiality with respect to each other's records, and the Union indicated that it could work out some means of taking each company individually and preserving the confidentiality of the data. Although the April 23 meeting ended with the mutual understanding that the parties would meet again, the Union went on strike against all four companies on May 14.4 On May 25 the parties met again and the employers offered to reinstate the wage rate existing under the expired contract, but the Union continued to press, for a wage increase. A few days later the Union reached a settlement with Irving Kirsch Corporation, the terms including retroactive restoration of the 15-cent wage cut, and a 20-cent increase spread over the next 3 years. Shortly thereafter, early in July; the three remaining employers dissolved their agreement to act as a group, and promptly thereafter two of them settled with the Union on the same terms accepted by Kirsch. The remaining employer, United, is the employer against whom relief is sought in this proceeding. D. Concluding findings In his brief, as in the complaint and throughout the proceeding, General Counsel alleges two violations of the employers' bargaining obligation: a "unilateral" wage change on March 15, and a refusal to produce corporate books and records to sub- stantiate positions taken in bargaining For reasons indicated below, I sustain the employers' positions on both counts. 1. The wage cut: General Counsel contends that when an employer proposes a wage cut to a union, and thereafter effectuates a lesser wage cut never offered to the union , his unilateral action is violative of his bargaining obligation, just as the uni- lateral effectuation of an increase larger than that offered the union would violate the Act. I am inclined to agree with General Counsel that unilateral action which * The employees had authorized the strike at a meeting on May 3, when the employees "were up in the air" about the wage cut, and when the union bargaining committee reported its failure to obtain access to corporate records If either the wage reduction or the refusal to produce the books is held an unfair labor practice, the strikers are "unfair labor practice strikers" as the strike was caused or prolonged by an unfair labor practice. BOULEVARD STORAGE & MOVING CO., INC., ETC. 551 gives the employees more advantageous terms than those offered the union tends, at least in theory, to undermine collective bargaining just as much when the "advan- tage" is a lesser cut as when it is a bigger increase As applied in this case, however, I cannot find that the action was "unlateral" in the sense of never being offered, for as I read this record, the "offer" of a 15-cent, rather than a 19-cent, cut was made to the Union and rejected by `it, before the employers announced that they would institute it. To be sure, the "offer" of the 15-cent reduction, its rejection, and the announcement that it would be instituted all occurred at the same bargaining ses- sion, and followed each other in rapid order. On the other hand the Union's con- tinued demand for a wage increase (eventually modified some weeks later to an increase spread over 3 years) leaves no room for doubt that any longer considera- tion of the acceptability of the 15-cent cut would have been pure window dressing. Cases of this nature cannot be decided as if they were abstract mathematical propo- sitions; the result here might well be different if the wage cut offered at the last conference and immediately effectuated had differed more substantially from that originally rejected by the Union General Counsel also contends that no impasse had been reached at the time of the change in wage rates. To be sure the parties had met only five times when the wage cut was announced, and further meetings were contemplated. But the federal mediator had advised the employers that "he felt the entire situation was hopeless," that they "were awfully far apart and probably couldn't arrive at any solution to our problems," and that they had "reached a stalemate." In the light of his statements, and in view of the gulf separating the parties with respect to wage rates ( one insist- ing on increases and the other on decreases), I find that an impasse had been reached at the March 10 meeting when the wage cut was announced. Finally, General Counsel urges that the "impasse" was not the result of bona fide collective bargaining, as in his view the companies were in default of their obliga- tion to produce the data substantiating their position in the bargaining. This, of course, leads us directly to the second prong of General Counsel's basic attack-the alleged violation inherent in the companies' failure to produce such data. If this position of General Counsel should be sustained, I should agree that the "impasse" of March 10 did not warrant the companies' action in instituting a wage cut; the "impasse" would have been occasioned, at least in part, by the unfair labor practice. Industrial Union, of Marine and Shipbuilding Workers (Bethlehem Steel Co.) v. N.L.R B., 320 F. 2d 615, 621 (C.A. 3). But, as shown below, I do not find that the failure to produce corporate books and records prior to March 10 (or even there- after) violated the statutory bargaining obligation. 2. Failure to produce data. The law is well settled that where an employer in the course of collective bargaining pleads financial inability to grant a wage increase, his statutory obligation to bargain in good faith embraces a requirement that he pro- duce, at the union's request, the relevant books and records on which he relies for his claim of inability. N.L.R.B. v. Truitt Mfg. Co, 351 U.S. 149. In Cincinnati Cordage and Paper Company, 141 NLRB 72, 77, the Board sustained my view that the principles of Truitt require that same result where an employer contends that he could not grant a wage increase and "stay competitive." The same result would follow in cases where the employer's position is that he is compelled to decrease wages. But these general principles, although relevant here, are not dispositive of this case, for each case in this area necessarily turns on its peculiar facts. See Truitt, supra, at 153-154, and compare The Celotex Corporation, 146 NLRB 48, Tennes- see Coal & Iron Division, United States Steel Corporation, 122 NLRB 1519, and Pine Industrial Relations Committee, 118 NLRB 1055, afd. sub nom. International Woodworkers of America, Local Unions 6-7, and 6-122, et al., 263 F. 2d 483 (C.A.D.C.). In the instant case, the employers did not claim financial inability to grant a wage increase, or even that they could not grant an increase and "stay competitive." What they claimed was that their labor cost for local moving was too high a percentage of the revenue for local moving The employers freely proffered the "data" upon which this analysis rested-their billing rates and their wage costs. The latter amounted to 71 percent of the former, a figure the employers regarded as excessive. In addition the employers mentioned an "overhead" cost of 29.6 percent of the revenue dollar. This figure they admittedly took from an industry publication, and the factors in their individual cases might well have varied from each other and from that national norm. In essence, however, their position was that the labor cost for local moving was so high as to render that aspect of their business unprofitable, and they believed the pressure of nonunion competitors prevented an increase in the rate to customers. Faced with these contentions , the union representative , Kucera, made occasional desultory references to examination of company records "to bear out their conten- 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion that they were financially in trouble." This, of course, was not their contention, and beyond these vague references to company records,5 the Union did not pursue the matter until Kucera's letter of April 8. In my judgment, the employers' failure to produce books and records was not a factor contributing to the impasse in bargaining. The employers stated, and the Union was aware of, the facts underlying the employers' claim that their local mov- ing operations were not profitable and that nonunion competition rendered a price increase inadvisable. This is not to say that the employers' position was funda- mentally sound. It may well be that the high labor cost of local moving was not a sound excuse for cutting wages, as the overall profitability of the business might well warrant operating a necessary part of it at marginal conditions. But the Companies claimed only that the labor costs for local moving were so excessive as to make that operation unprofitable, and they produced the data on which they relied for that narrow claim: It would be the merest quibble to state that their individual over- heads might have varied somewhat from the claimed national average of 29.6 per- cent, for producing such data, if it existed, would not basically have affected their claim that the 71 percent labor cost was out-of-line, particularly in the light of nonunion competition which they believed rendered inadvisable an attempt to raise prices. The counterarguments of General Counsel are of considerable weight. An employer who, particularly in an era of rising labor and other costs, presses for and institutes a wage cut may reasonably be expected to produce the data on which he relies to justify his action, and the data should reflect the state of his entire business and not merely of one integral department thereof. This would seem particularly the case when his wage cut affects all employees, and not merely those in the mar- ginal department. Also, when a union is asked to accept a wage cut, it is surely reasonable to produce the data through which the union can determine whether to resist or accept a cut, and if the latter, in what amount. But the short answer is that the employers in this case claimed only that their local moving, considered sepa- rately, was unprofitable. The Union could well argue that this fact did not warrant a wage reduction, and that full analysis of company records would support the Union's position. But the Union has no inherent right to such records. If, for example, an employer grounds his refusal to give an increase on a sheer reluctance to pay employees more money, the Union cannot compel him to produce his books to support its contention that he can afford to pay more. So here, the companies' position that because of local moving competition they wanted to reduce labor costs may have been a non sequitur, in the sense that it was an insufficient reason for a wage cut, but it did not entitle the Union to examine any general records of profita- bility, except only those relating to local moving costs, and those the Companies substantially disclosed. The basic impression derived from this record is that both the Union and the Companies were engaged from the outset in a bitter economic struggle which could only eventuate, as it had repeatedly in the past, in a testing of economic strength through a strike. The federal mediator obviously came to the same conclusion. In the course of their struggle, each side sought to invoke the Board's aid; the Union filed the charge in this proceeding (neither the original charge on March 24 nor the amended charge of April 27 so much as mentioned a failure to give data), and the Companies filed a charge on June 4, since dismissed, alleging that the Union had violated Section 8(b)(3) by bargaining separately with one member of a multi- employer unit. The statute, of course, is equally operative whether the parties are far apart and headed toward a strike or are close together and trying to avoid con- flict. But this rcord furnishes considerable support for the concluding statement in Respondent's brief: "A showing of the books, quite obviously, was as far from being a material matter in these negotiations as anything could possibly be." G 6Kucera testified that he was not sure that he named any records but that the dis- cussion had centered around the Companies' costs and earnings, and he was " sure we asked for the records that would establish their financial plight" O Assuming, arguendo, that the Union's written request for data on April 8 and its renewal of this request at the April 23 meeting stand on a stronger footing than Kucrea's earlier forays in this area, the record establishes that the Companies and the Union were in the process of working out some means of producing the records when the Union struck. At this juncture the matter was abandoned, just as the Union abandoned its undertaking to supply an analysis of its objections to the Companies' proposed insurance plan This case, in short, does not turn on the events following the March 15 wage reduction but on whether prior to the impasse that culminated in that action the Union had demanded, and the Companies had refused, data to which the Union was entitled under the Truitt Mfg Co , case, supra KAMINSKI BROTHERS , INC. 553 CONCLUSION OF LAW Respondents have engaged in no conduct violative of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed. Local Union No. 542-A, -B, -C, International Union of Operating Engineers, AFL-CIO [Kaminski Brothers, Inc.] and District 50, United Mine Workers of America . Case No. 4-CP-69. May 12, 1965 DECISION AND ORDER On a charge filed March 24,1964, by District 50, United Mine Work- ers of America (referred to herein as District 50), the General Coun- sel for the National Labor Relations Board by the Regional Director for Region 4 issued a complaint and notice of hearing on May 11, 1964, against Local Union No. 542-A,-B,-C, International Union of Operating Engineers, AFL-CIO, herein referred to as Respondent or Local 542, alleging that Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(b) (7) (C) of the National Labor Relations Act, as amended. Copies of the complaint and notice of hearing were there- after duly served upon the Respondent. The Respondent filed its answer on May 26, 1964. A hearing was held on June 17, 1964. Thereafter, on January 29, 1965, Respondent, District 50, and the General Counsel of the Board entered into a stipulation in which the parties agreed that the formal papers, the exhibits, and the transcript of testimony in the matter before the United States District Court for the Middle District of Pennsylvania, entitled "Bernard Samoff, Regional Director for the Fourth Region of the National Labor Relations Board, Petitioner, and Local Union No.>542-A,-B,-C, International Union. of Operating'En- gineers, AFL-CIO, Respondent," Civil No. 8460, together with briefs filed with Trial Examiner, shall constitute the entire record in the case. The parties waived the making of findings of fact and conclu- sions of law by a Trial Examiner and the issuance of a Trial Exam- iner's Decision and submitted the case to the Board for decision. By an order dated February 4, 1965, the Board ordered that the stipulation be approved and made a part of the record herein, and fur- ther ordered the proceeding transferred to and continued before the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of a Decision and Order. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 152 NLRB No. 54.