Latimer Brothers

Cl)'I(ISIONS OF NAIO()NAL LABOR REI.AIIONS BOARD James G. Latimer and Dale Latimer, Partners, d/b/a Latimer Brothers and United Mine Workers of America. Case 6 CA 11124 May 7, 1979 [)FDCISION ANT) ORD)ER BY (CIAIRMAN FANNING ANI) M MBIRS JNKINS ANt) PN tI.o On February 28, 1979, Administrative Law Judge Bernard Ries issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and a motion for in camera inspec- tion of financial records, and/or motion for protective order. The Union filed an answering brief to Respon- dent's exceptions, and an answer to the motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, James G. Latimer and Dale Latimer, Partners, d/b/a Latimer Brothers, New Alexandria, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. I Respondent has excepted to certain credibility findings made by the Ad- ministralive Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enid. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings I Respondent's motion for in camera inspection of financial records and/or motion for protective order is hereby denied as lacking in merit. The Admin- istrative L.aw Judge's recommended Order requiring Respondent to furnish the Union, upon request. the financial information and records relevant to Respondent's claim of financial inability advanced in March 1978 is proper. and Respondent offers no reasons why in camera inspection or a protective order is necessary. APPENDIX NolI( l To EMI'I.(YF;IS PosI' D BY ORI)ER OF IIIF- NA I ()ONAI. LAB(OR RE.A I I()ONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence, the National abor Relations Board has decided that we violated the National La- bor Relations Act, as amended, and has ordered us to post this notice. WtL WIL. Not refuse to bargain with the United Mine Workers of' America by denying the Union access to our books and records to investigate any claim made by us that we cannot afford to meet the Union's bargaining proposals. WE WILL NO in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. WtE will, upon request and within a reason- able time, furnish to the Union the financial in- formation and records relevant to our claim ad- vanced in March 1978 that we were financially unable to meet the Union's bargaining demands. JAMES G. LATIMER AND DAI.E LA1IMI R. PARTNERS. D/B/A LALIMER BRO()IHERS DECISION SIAIIMiNi Of- ItE CASI BI-RNARI) Rills, Administrative Law Judge: This matter was heard at Pittshurgh. Pennsylvania, on December 15, 1978. The issue presented is whether Respondent. in viola- tion of Section 8(a)(5) of' the Act. refused to permit the Union access to its books and records. As developed by the complaint and answer, as amended, assertion of the Board's jurisdiction is appropriate, and the Charging Party is a statutory labor organization. Respondent, a small mining concern headquartered in New Alexandria, Pennsylvania. has bargained collectively with the United Mine Workers since 1970. Their most re- cent bargaining agreement expired in December 1977, and their efforts to consummate a new one give rise to the in- stant controversy. The following findings of fact are based on a synthesis of the credited testimony of General C('ounsel's three witnesses, Ronald Zera. Leon Yablonski, and Joseph Volensky, all impressive witnesses. To the extent that the testimony of Dale Latimer, a partner in Respondent and its sole witness, contradicts that given on behalf of General Counsel, I did not consider Latimer convincing and therefore do not credit him. Beginning in December 1977. Ronald Zera, attorney fbr the Union, with an occasional colleague, met on five occa- sions with Dale Latimer to negotiate a new bargaining con- 242 NLRB No. 23 50 I.ATIMFER BRO'IIIRS tract. By March 29. 1978, the Union had presented a com- plete package of proposals. and there had been tentatise agreement on some issues. Respondent had also advanced certain proposals of particular interest to it. One such pro- posal would have altered past practice by substituting a workday of 8 hours fr the existing 7-1/4-hour day, with remaining time worked at overtime scale, provided for by previous agreements. Another proposition by Respondent. made to Zera not long before March 29. was the establish- ment of Respondent's own pension program in lieu of the UMW pension plan to which Respondent had theretofore been a party. The March 29 meeting was held 2 days after the Mine Workers had settled the National Bituminous Coal Owners Association contract. It began with some conversation about a tonnage calculation problem and then evolved into a discussion of Dale Latimer's desire to create an indepen- dent pension plan. Zera had questions about some figures contained in a draft proposal on this topic earlier given him by Latimer. and then said that "that was an item that needed reference to an insurance company how that came to be." Zera. however, expressed doubt about the fact that the proposed plan predicated contributions on profits, con- sidered by him to be "too tenuous" a foundation for a pen- sion plan. A discussion of wages followed. Respondent had previ- ously proposed a 7-percent increase: the Union's demand. made on an earlier occasion and repeated on this one, was for a larger amount. In connection with this issue, the par- ties also discussed Respondent's continued desire to pay overtime only after 8 hours and the Union's proposal to maintain the existing 7-1/4-hour workday, with overtime compensation thereafter. After Zera made some computations as to the cost to Respondent of "our first, second and third year demands. along with the pension.' that's when Dale said there's no way he can afford that." Zera thereupon asked to see Re- spondent's books, to "verify" that claim. Latimer replied that he only. and grudgingly at that, allowed "the IRS and the State" to examine his books. Zera then asked that the Union's accountant be allowed to examine the records, to which Latimer responded, "No. you'll have to take my word for it." The Union representatives then caucused, with Zera rec- ommending to Yablonski and Volensky that they ask again for production of the records: "He's saying that he can't pay the demand that we're making on a seven and a quarter hour day, maybe he's right. Let's ask to see the books again." When they repeated the request, however. Latimer again stated that the Union "would have to take [his] word for it." Further perfunctory discussion ensued: at some point, according to Zera. Dale Latimer (or his brother James, who had arrived late for the meeting) stated that the proposed 7-1/4-hour day was "not out of the question." Betfore the meeting ended, according to Yablonski, Zera said that he would look further into Respondent's pension proposal and would "be in touch with the company ... in a short period." Two days later. Zera filed the charge under- I The "pension" referred to was the Utnion's demand fir contlnuation of its existing pension program lying this proceeding. and no further negti.itions ere held. The duty to bargain required of an crmplo er h Section (a)(5) includes the obligation to urnish to a union infor- mation necessary or relevant to the representatitte functions of the union. N.L.R. R. .. 4c n Idusri l ( o., 385 :.S. 432 (1967). In the normal course, an employer's finanlcial rec- ords are not presumptively relevant to the union's require- ments and need not be produced upon demand. But an employer ma make such data rele ant to negotiltions bh asserting, as a reason for rejecting a union's demands, that it is unable to afford them. N. L. R. B. - *Iritt lfi. (' . 351 U.S. 149 (1956). At that point, unless the union is able to reviesx the rec- ords in an effort to prove or disprove the claim. it is placed in an untenable position. It cannot itself de,elop evidence to dispute the contention. as it might do Alth alilost an other objective argument made hb the emplo)er, and it can- not very satisfactorily explain to its constituents that they must lower their sights and accept as an article of faith a tfact often doubted by workingmen that their employer is in financial straits. Moreover, the assertion of poverty, cou- pled with a refusal to substantiate that claim, might often engender a climate of suspicion inimical to peacetul settle- ment of labor disputes. As the Supreme C(ourt stated in ruitt Mi. (o., upra, 351 U.S. at 152 153. Good faith bargaining necessarily requires that claims made bh either bargainer should e honest claims. This is true about anL asserted inability to pa' an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is impor- tant enough to require some sort of proof of its accu- rac. On the findings made above. the negotiations had. after four previous bargaining sessions, jelled to a point at which the Uinion's preferred package was clear enough. Although the ULnion had not rejected out of hand the pension pro- posal made b Respondent, it had plainl_ indicated that continuation of its own program wvas thought to be more desirable. The Union had advanced, as well a specific wage proposal, and it also wanted to maintain the 7-1/4-hour day, contrary to Respondent's request for a revision of that practice. There may, indeed, have been room in the Union's strategy fior eventual adjustment of any or all of these key items, but that possibility is not relevant to the principle 2 Dale Latimer corroborated, at least in part. the tesnmon gen hs Zera. Yablonski. and Volensk) as to he critical issue of the statement made hb him which prrioked the Union's request for access to Respondent's records He said that he "reiterated to everyhod that was there .that we couldn't meet those exorbitant demands., and that, :ou knoiw. we were willing to continue negotiations. hut we couldn't meet what thes asked for and ex- pected some movement on their part" This concessiln that he said Respon- dent "couldn't meet" the demands. implsing an inablhts to par.. led Zera. as Latimer agreed. to ask that the books he made aailahle ttiweser. accord- ing to Latimer. when Zera. Io explain this request, asserted that Latimer was pleading poert . .atimer. testllving that Zera was trsing " t st ms words around," issued a "correcled statenlent" hat he w.ls sasing that "e wiuld not agree Io meet thoise particular demands. not that we were unahle to meet those demands" But the lact s, its the oregoing indicates. Zera as not trying to "t ist" atimner's words. How. in the face of .allmer's own testi- mns. he could den5 at the hearing tha3t he had "eser indicateldl that L.ati- mer Brothers had the nalhits .to pa a age offer" is inexplicable I discredit Iatimer's testimitis ihail he inade the pur.ported la.rlticallon 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved. What counts here is that, in response to a com- plete set of proposals whose acceptance was earnestly sought by the Union, Respondent stated that it could not afford to meet such a combination of demands. That is suf- ficient to invoke the principle discussed above. While the initial assertion of poverty, request for records, and refusal had a certain casual and spontaneous air, I think the Union's second request, and Latimer's second refusal, left no doubt in the minds of the parties that they were engaged in an issue of some substance.' Accordingly, I conclude that Respondent violated Sec- tion 8(a)(5) of the Act on or about March 29, 1978, by refusing to provide the Union with access to its relevant books and records, as alleged in the complaint. CONCIUSIONS OF LAW 1. Respondent James G. Latimer and Dale Latimer, Partners, d/b/a Latimer Brothers, is an employer engaged in commerce within the meaning of the Act. 2. United Mine Workers of America ("the Union") is a labor organization within the meaning of the Act, and is the exclusive representative for purposes of collective bargain- ing of the following employees of the Respondent: All employees employed by the Respondent, excluding office clerical employees and guards, professional em- ployees, and supervisors as defined in the Act. 3. By refusing, on or about March 29, 1978, to provide the Union with access to books and records relating to Re- spondent's claim of financial inability to meet the Union's demands, Respondent violated Section 8(a)(5) and (I) of the Act. 4. The unfair labor practice found above affects com- merce within the meaning of the Act. THE REMEDY Having found that Respondent violated the Act as de- tailed above, I shall recommend appropriate remedial re- lief, including the issuance of a cease-and-desist order and the posting of traditional notices. General Counsel's brief requests an order requiring Re- spondent, inter alia, "to provide the Union with access to its books and financial records." This request, as stated, does not clarify the specific relief sought. Is the Union entitled to see the books as they existed on March 29, 1978? Is it enti- tled to see the books as they now exist? Or is it entitled only to examine Respondent's records if, in the future, Respon- dent should again claim an inability to pay? The orders normally issued in these cases seem to require that the employer make available to the union the specific information sought in the past, e.g., Stanley Building Spe- cialties Co., a Subsidiary of the Stanley Works, 166 NLRB 3Latimer's statement that he was not wedded to the 8-hour-day proposi- tion does not alter my conclusion. That he displayed some potential flexibil- ity on one of the disputed issues does not vitiate the fact that he rejected the Union's total set of demands by claiming inability to afford those demands. thus giving rise to the Truitt obligation to corroborate the assertion upon request. 984, 987 (1967). That requirement certainly makes sense where the situation has not changed. If the union were enti- tled to the information when the request was made and the present circumstances were essentially the same, restoration of the relationship to what it would have been, absent the refusal, would dictate that the information previously re- quested should be furnished now. A question as to the appropriateness of such a remedy arises in this case because of the position taken by Latimer at the hearing that he had told the Union that "we would not agree to meet those particular demands, not that we were unable to meet those demands." Despite my conclu- sion that Latimer did not in fact utter those words on March 29, 1978, his embracement of them at the hearing was, it may be argued, an effective retraction of the claim of inability to pay. And once that claim is withdrawn, it may be asked, why should the Union be afforded access to Re- spondent's records in order to substantiate a contention which is no longer being made? In C-B Buick, Incorporated v. N.L.R.B., 506 F.2d 1086 (3rd Cir. 1974), denying, in part, enforcement of 206 NLRB 6. the court considered a somewhat similar problem. There, the employer and the union had entered into a bargaining agreement after the employer had unlawfully refused to corroborate its claim of financial inability. Despite the ex- ecution of the agreement, the Board ordered that the union be furnished the information it had originally sought. After lengthy consideration, the court of appeals set aside so much of the Board's order as required disclosure of the financial data requested more than 2 years before, holding that, because of the "passage of time and the execution of the present collective bargaining agreement," the informa- tion required to be furnished had no "current relevancy both to the Union in the proper performance of its func- tions and to the issues involved." As the C-B opinion re- cites. the Board urged the court to enforce its disclosure order, giving five reasons why the disclosure was useful and appropriate, including that "the forced production of Buick's economic information would prevent Buick from profiting from its unfair labor practice." 506 F.2d at 1092. An analogous consideration seems to have appealed to the Court in Teleprompter Corporation et al. v. N.L.R.B., 570 F.2d 4, 12 (Ist Cir. 1977) which, in December 1977, after the execution of bargaining agreements by the parties, en- forced the production of profitability data requested in January 1975: "Were we to do otherwise, parties would be given an incentive to seek delay by litigating and the al- ready burdened resources of the courts and the Board would be further taxed by the need to reconsider and refine orders in light of constantly changing conditions." The court rejected the approach taken by the Third Circuit in C-B Buick, and further commented that "[t]he viability of the rule of limited enforcement presented in C-B Buick now seems questionable in its orginating circuit," citing N. L. R. B. v. International Union of Operating Engineers, Lo- cals 542, et al., (York Count)y Bridge, Inc.) 532 F.2d 902 (3d Cir. 1976). The positions taken by the Board in these cases, while not squarely on point here, seem to chart my course ade- quately. I deduce that the Board would require Respondent 52 LATIMER BROTHERS to furnish the pre-March 29 financial data,' even though Respondent appears to have shifted position from "couldn't" to "wouldn't" at the hearing. Allowing an em- ployer to plead its impoverished condition without docu- mentation, conduct which here resulted in a suspension of bargaining. and then to escape disclosure by changing its position at a hearing 9 months or a year later, would autho- rize the commission of low-cost havoc upon the bargaining process. It may be said, moreover, that even if Respondent has presently adopted a "wouldn't," rather than a "couldn't," stance, it would still be useful to the Union. for present bargaining purposes, to gauge precisely the degree of trust or mistrust to place in such representations by this Respondent, a consideration seemingly made relevant by the Truitt admonition that claims should be "honest" ones. Finally, as General Counsel might well contend, since Re- spondent did not say "wouldn't" in March 1978, its rejected contention at hearing to that effect does not sufficiently constitute an express change of position to preclude entry of what appears to be the customary remedy. Accordingly, I shall recommend that Respondent be re- quired to make available to the Union, if it so requests, the financial data which should have been furnished in 1978. On the basis of the foregoing findings of fact, conclusions of law, and the entire record, I hereby enter the following recommended: ORDER' The Respondent, James G. Latimer and Dale Latimer, In C-B Buick., 506 F.2d at 1093. the Board "conceded in its supplemental brief that its order pertains only to those records of Buick which were in existence and available on or before Jul) 19, 1972 [the request date];" and the court in Teleprompter, 507 F.2d at I 1, also limited the scope of the order. t In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Partners, d/b/a Latimer Brothers, New Alexandria, Penn- sylvania, its agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively with the United Mine Workers of America ("the Union"), by failing to fur- nish information requested by the Union to substantiate Respondent's claim of inability to afford the collective-bar- gaining proposals advanced by the Union. (b) In any like or related manner, restraining, coercing, or interfering with employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Furnish the Union, on request and within a reason- able time, the financial information and records relevant to Respondent's claim advanced in March 1978 that it was financially unable to meet the Union's bargaining demands. (b) Post at its place of business in New Alexandria, Pennsylvania, and at all locations at which employees in the bargaining unit are working, copies of the attached no- tice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 6, after hav- ing been signed by an authorized representative of Respon- dent, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment ol the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 53