Tama Meat Packing Corp

TAMA MEAT PACKING CORP Tama Meat Packing Corp and Chauffeurs, Team sters and Helpers, Local Union No 238, affili ated with International Brotherhood of Team sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Case 18-CA-10081 November 14 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 31 1988 Administrative Law Judge William L Schmidt issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief' and has decided to affirm the judge s rulings findings 2 and conclusions to the extent consistent with this Deci sion and Order and to adopt the recommended Order as modified The judge found that the Respondent violated Section 8(a)(5) and (1) by failing to supply the Union with the financial information the Union had requested There is no dispute that the Respondent maintained during negotiations that it could not afford any increase in wages or fringe benefits The Respondent accordingly was required to allow the Union the access to the Respondents financial records that the Union had requested 3 The Union had arranged for the services of James Winikates a certified public accountant (CPA) from the accounting firm of Peat Marwik & Main to conduct the inspection of the Respond ent s books and records The Respondent agreed that an accountant from that firm would be accept able In its instructions to the CPA the Union indi cated it was not seeking an audit of each and every minute record of the company nor was it looking for a total review of the Company s finan cial records 4 When Winikates telephoned the Re 1 The Respondent s request for oral argument is denied as the record exceptions and brief adequately present the issues and the positions of the Respondent 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings s NLRB v Truitt Mfg Co 351 U S 149 (1956) * The Union estimated the cost of this proposed review would be ap- proximately $2000 657 spondent to make arrangements to inspect the records he indicated the general nature of the in spection he intended The Respondent i on the other hand indicated that it wanted the Union to conduct a full scale audit in accordance with the American Institute of Certified Public Accountants (AICPA) standards 5 and that nothing less would be acceptable Winikates realized that the expects tions of the Union and the Respondent were in compatible and he ended the conversation The Respondent has maintained throughout this proceeding that its refusal to permit the union des ignated CPA access to its financial records for any inspection less comprehensive than an AICPA audit is justified by precedent The judge found that the Respondents insistence on an AICPA audit is not warranted in the circumstances of this case We agree and affirm his findings that the Re spondent violated Section 8(a)(5) and (1) by not supplying the information requested 6 In this regard we affirm the judge s conclusion that Truitt' and its progeny do not require that an AICPA audit be performed On the contrary the Board has ruled that an employer must furnish those records necessary to substantiate its claim of inability to pay, but has not specified the format in which this information is to be obtained Winikates testified that based on his experience as a CPA he could have conducted an initial ex animation of the Respondents financial books and records if those records were made available to him and then rendered a meaningful opinion to the Union concerning the Respondents ability to pay increases in wages or benefits Winikates further testified that in his opinion, it would not be neces sary initially to conduct an audit in accordance with AICPA standards in order to render a mean ingful and useful opinion to the Union 8 He stated that if the Company already has financial state ments prepared by some well recognized firm, and those statements were made available to him, that he very definitely could have informed the Union of the financial status of the Company In fact he said that he could do so without an AICPA audit because an AICPA audit in that case An AICPA type audit would cost the Union approximately $2000 6 In reaching this conclusion we disavow the judge s statement in his discussion of the remedy in this case that the Respondent s argument re garding the need for an AICPA audit was a sham advanced in bad faith 7 NLRB v Truitt Mfg Co supra, 351 U S 149 a Winikates agreed that it is possible that under some circumstances after the initial inspection of books and records it would be necessary to make a more detailed examination He stated that this could happen where it was evident for a variety of reasons or whatever reason there were some inaccuracies in the books and records and the financial state ment information needed to be verified which is essentially what you do in an audit 291 NLRB No 77 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would be redundant Nevertheless the Respond ent refused to make any books and records avail able to the Union or its accountant insisting that only a full scale AICPA audit would be accepta ble We find that there is an insufficient basis for the Respondent to insist on requiring a full scale AICPA audit First it is relevant to consider the nature of the financial information available to the Respondent at the time it made the claim to the Union that it was unable to pay increases in wages and fringe benefits The Respondent would have been able to rely only on its unaudited records in asserting that increases were not feasible because a full scale AICPA audit as the judge points out had not been conducted by the Respondent since 1984 long before the Respondent first claimed an inability to pay on February 24 1987 Therefore it is apparent from the Respondents actions that it considered it possible to form an opinion regarding its financial condition without the benefit of an AICPA audit Furthermore there is no evidence that the Union would have refused to make a fur ther investigation if Wmikates discovered after looking at the Respondents books and records that his initial work was insufficient to provide the necessary information regarding the Respondent s financial status We note that the initial review sought by Winikates was estimated by the Union to cost $2000 and that the audit which the Respond ent insisted that the Union undertake in the first in stance would cost 10 times that figure The Re spondent has provided no convincing evidence that the information the CPA had initially sought to obtain would have been inadequate Moreover if the Respondent thought that its current figures needed additional explanation, the Respondent was free to furnish that information to the Union Therefore based on the foregoing we conclude that the Respondent failed to meet its obligation to bargain in good faith with the Union AMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec tion 8(a)(5) and (1) of the Act by unlawfully refus Ing to provide the Union with requested financial information and insisting that the Union conduct an AICPA standards audit in order to substantiate its claimed inability to pay wages and benefits pro posed by the Union we shall order that the Re spondent cease and desist and take certain affirma rive action designed to effectuate the policies of the Act 9 We shall order that the Respondent bargain col lectively with the Union and on request make available to a professional accountant designated by the Union all books and records containing finan cial information relevant to its claim that it is finan cially unable to meet the Unions wage and eco nomic demands We shall not accept the judge s recommendation that we further order that the Re spondent reimburse the Union for its CPA and at torney fees and expenses if the Union establishes during the compliance stage of these proceedings that the Respondents claimed inability to pay is a sham advanced in bad faith In rejecting this aspect of the judge s proposed remedy we decline to pro vide a remedy for a violation-bad faith claim of inability to pay-that was neither alleged nor found to have been committed ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Tama Meat Packing Corp Tama Iowa its officers agents successors and assigns shall take the action set forth in the Order as modified 1 Delete paragragh 2(b) and reletter the remain ing paragraphs 2 Substitute the attached notice for that of the administrative law judge 9 The General Counsel has requested a visitatonal provision authonz ing the Board for compliance purposes to obtain discovery from the Re spondent under the Federal Rules of Civil Procedure subject to the su pervision of the United States court of appeals enforcing this Order In the circumstances of this case we find it unnecessary to include such a clause See Cherokee Marine Terminal 287 NLRB 1080 (1988) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection TAMA MEAT PACKING CORP 659 To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain in good faith with Chauffeurs Teamsters and Helpers Local Union No 238 affiliated with International Broth erhood of Teamsters Chauffeurs Warehousemen and Helpers of America, AFL-CIO as the exclu sive bargaining representative of our employees in the following appropriate unit All full time and regular part time production and maintenance employees employed at our Tama Iowa facility, including plant clerical employees and yard drivers excluding cattle' buyers meat graders shag drivers, salesmen, office clerical employees professional employ ees, guards and supervisors as defined in the Act WE WILL NOT insist that the Union conduct an audit of our financial records in accord with the professional standards of the American Institute of Certified Public Accountants in order to substanti ate our claimed inability to pay wage and benefit increases proposed by the Union WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL on request furnish the Unions ac countant with all books and records containing fi nancial information to substantiate our claim that we are financially unable to meet the Union s wage and economic demands TAMA MEAT PACKING CORP Act (the Act) by refusing since late April or early May 1987 to make available certain financial books and records for audit by the Union On 1 July 1987 Respond ent filed a timely answer admitting certain allegations of the complaint denying others including the alleged unfair labor practices and interposing an affirmative de fense discussed in detail below On the basis of the record my observation of the wit nesses who testified and my careful consideration of the beefs filed by the General Counsel the Union and the Respondent I make the following FINDINGS OF FACT I THE ALLEGED UNFAIR LABOR PRACTICE A Background The Respondent an Iowa corporation slaughters wholesales and distributes livestock from its Tama Iowa facility 2 On 25 April 1985 the Union3 was certified by the Board as the exclusive bargaining agent for Respond ent s production and maintenance employees 4 Shortly thereafter negotiations commenced for a collective bar gaining agreement By the summer of 1986 the parties had met on 20 separate occasions without concluding an agreement Following the 20th bargaining session the union negotiators-who had been without legal coun sel-held a strategy session in Chicago with Attorney David Ulemen Ulemen reviewed the 70 or so proposals put forth by Respondent He advised the union negotia tors to agree to all of them even one that the Union re garded as illegal if Respondent refused to alter its pose tion 5 provided Respondent made some added concession on wages and insurance benefits 6 The Union accepted Ulemen s advice and requested his assistance and pres ence for future bargaining Ulemen arranged the 21st bargaining session with Re spondent Attorney Joseph Carey It eventually occurred Robert V Johnson Esq for the General Counsel Joseph P Carey Esq of White Plains New York and Rex J Ryden Esq of Marshalltown Iowa for the Respondent Neil A Barrick Esq of Des Moines Iowa for the Charging Party , DECISION STATEMENT OF THE CASE WILLIAM L SCHMIDT Administrative Law Judge I heard this matter on 30 and 31 July 1987 at Tama Iowa Local 238 (the Union)' filed the underlying charge against Tama Meat Packing Corp (Respondent) on 18 May 1987 On 1 July 1987 the Regional Director for Region 18 of the National Labor Relations Board (the Board) issued a complaint alleging Respondent violated Section 8(a)(1) and (5) of the National Labor Relations ' On 1 November 1987 the Teamsters International Union was readmit ted to the AFL-CIO Accordingly the name of the Union has been cor rected to reflect that change a During the calendar year ending 31 December 1986 Respondent sold and shipped products goods and materials from its Tama facility valued in excess of $50000 directly to points outside Iowa it also purchased and received products goods and materials at its Tama facility valued in excess of $50 000 directly from points outside Iowa Based on this buss ness activity I find Respondent is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act as Respondent meets the Board s announced direct inflow and direct outflow standards for exercising its statutory jurisdiction over nonretail enterprises I fur ther find that it would effectuate the purposes of the Act for the Board to exercise that jurisdiction in this case a The Union is a labor organization within the meaning of Sec 2(5) of the Act 4 The certified unit is All full time and regular part time production and maintenance em ployees employed by the Respondent at its Tama Iowa facility in cluding plant clerical employees and yard drivers excluding cattle buyers meat graders shag drivers salesmen office clerical employ ees professional employees guards and supervisors as defined in the Act 5 Specifically the Union regarded Respondents proposal to exempt 10 percent of the bargaining unit from any agreement reached with the Union as patently unlawful 5 Ulemen also advised the Union to request Respondent to redraft its proposals into contract language form in advance of the next bargaining session When this request was made Respondent refused 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on 24 February 1987 This case resulted directly from that session At the 24 February bargaining session the discussion eventually focused on wages and benefits Essentially the Respondent asserted that it was financially unable to increase wages and benefits above the level previously proposed and-purportedly for the fifth time-offered to make its financial records available for audit by a profes sional auditor from a nationally reputable firm designated and paid for by the Union to substantiate its claim In connection with the audit offer the Respondent claims the Union through Ulemen agreed on 24 February that its accounting representative would conduct an audit in accord with standards established by the American Insti tute of Certified Public Accountants (AICPA) but later reneged on this agreement B The Dispute In NLRB v Truitt Mfg Co 351 U S 149 (1956) the Supreme Court concluded that it was not unreasonable for the Board to find that the statutory duty to bargain in good faith is violated when an employer mechanical ly repeats a claim of inability to pay without making the slightest effort to substantiate the claim Accordingly the Truitt court held that the lower court of appeals erred in refusing to enforce a Board order requiring that employer to supply its employee bargaining representa tive with such information as would substantiate the Respondents position of its economic inability to pay the requested wage increase Truitt provides that each case must be analyzed on its own facts to determine whether to provide financial information amounts to bad faith bargaining Whether Respondent complied with the Truitt principle and its progeny is the central issue pre sented by this case Respondent rejected numerous economic proposals by the Union at the parties last bargaining session on 24 February 1987 claiming it could not afford the Union s proposals Attorney Carey however one of Respond ent s spokespersons at this meeting offered to permit an independent CPA employed by a nationally reputable CPA firm designated by the Union to audit Respond ent s financial records to substantiate the claimed inabil ity to pay the increases proposed by the Union Ulemen accepted on the Union s behalf and subsequently retained James Winikates a partner in the Chicago office of Peat Marwick & Main a nationally reputable accounting firm The following is Winikates charter provided by Ulemen in a letter dated 8 April 1987 This will confirm our previous telephone conver sation in which we discussed the audit of Tama Packing Company This company took the position in collective bargaining with the union that it simply could not afford any increase in wages for the employees whatsoever By pleading poverty the employer is obligated under the National Labor Relations Act to produce its books and records for union audit The purpose of the audit is to either confirm or deny the employers assertion that it cannot afford any wage increase for the employees The union is not looking for an audit of each and every minute record of the company nor are we looking for a total review of the company s finan cial records I believe you mentioned that your company has had experience in this type of case and can give us a pretty good idea of what was happening after looking at the records for a couple of days Based on their discussion Ulemen estimated that Wini kates fee would be approximately $2000 for this engage ment In another letter also dated 8 April 1987 Ulemen pro vided the names of Respondents representatives for Winikates use In yet a third letter of the same date Ulemen informed Winikates that Respondent Attorney Carey had declined to forward a financial statement in advance of Winikates visit to Respondents Tama Iowa facility as Winikates requested through Ulemen Instead Ulemen reported It is [Carey s] understanding that you will find the financial statement when you do the stand alone audit 7 Shortly thereafter Winikates telephoned Carey to make arrangements to visit Respondents facility Wini kates described their telephone conversation and his per ceptions as follows Q What was your conversation with Mr Carey? A Again after introducing myself and who I was and who I was working with I had a conversa tion with Mr Carey He asked me what we would be doing what my understanding was we would be doing I indicated to him that we were going to do an analysis of the Company s records for the pur pose of advising the Union regarding these labor ne gotiations He then talked to me about AICPA standards for audits compilations and reviews which are technical terms Q For purposes of this record what does AICPA stand for? A AICPA stands for the American Institute of Certified Public Accountants It s a professional or ganization for CPAs a national organization It is also the organization that sets standards for the pro fession Q Continue relating what your conversation was with Mr Carey A He specifically as I recall asked me whether we were going to do an audit review or compila tion I indicated it was probably not necessarily any of those but it was probably closer to a compilation than any of the other two He also talked about a case that I was unfamiliar with a labor case re garding a company and a union And basically the decision in the case as I recall the conversation was that nothing less than I think the term AICPA audit would be accceptable It became apparent to me in this conversation that there was a difference of opinion between Mr ' Ulemen said that the words stand alone were used by Carey when they discussed the requested financial statement TAMA MEAT PACKING CORP Carey and Mr Ulemen as to exactly what we were expected to do And at that point I somewhat ter minated the conversation Q Who raised the term AICPA audit during this conversation you had with Mr Carey? A Mr Carey Q Was it Mr Carey that contended that this case to which he referred required that an audit to AICPA standards was required? A I believe he did say that yes Q Do you recall the name of the case that he mentioned? A No I do not recall the name of the case Q Was the case familiar to you? A No it was not Q In your prior conversation with Mr Ulemen had he said anything-that is Mr Ulemen-about an audit in accordance with AICPA standards? A No he never used that terminology When a CPA is associated with a financial report as an auditor the AICPA professional standards require a clear indication about the degree of responsibility the CPA is taking To this end the AICPA has developed standards for three types of reports which the CPA audi tor may issue in connection with providing accounting and auditing services The three types of reports differ in the degree of work performed by the CPA auditor and the level of assurance provided Under AICPA standards the highest level of service is called an audit The CPA must perform sufficient proce dures specified in the AICPA standards to express a positive opinion concerning the financial statements The opinion rendered can be unqualified qualified or adverse whether the information shown in the audited statements conform to generally accepted accounting principles The next level of service under the AICPA standard is called a review The AICPA standards specify the pro cedures to be followed for a review and permit the CPA to indicate to the reader following the performance of those procedures that the financial statements are or are not materially misstated The third and lowest level report is called a compilation To perform a compilation the CPA essentially assembles a financial statement from the client s books and records specifies that the financial statement is a compilation and states that the CPA ex presses no form of assurance 8 Winikates categorized the work specified by Ulemen as more in the nature of a management advisory service which is altogether different than AICPA type auditing and accounting service Fundamentally he perceived the mission assigned by Ulemen was limited to reviewing the existing financial statements so he could provide informa tion that would be helpful to the Union in formulating a decision to pursue its economic demands In this role- which Winikates performs from time to time for other clients-no CPA certification of the reviewed financial statements is provided The AICPA auditing standards 661 are not applicale to such work as the CPA is not func tioning as an auditor Subsequently Winikates reported his conversation with Carey to Ulemen Winikates suggested that Ulemen clarify his assignment with Carey as he believed the par ties were not in agreement about the matter Winikates estimated that the cost of an audit conforming to AICPA standards would be $20 000 or more an expenditure Ulemen believed excessive under the circumstances Phillip Adams Jr a CPA who is partner in the Touche Ross & Company Chicago office had audited Respondents financial records since 1980 Respondent s parent the New York firm Kane Miller is a client of the Touche Ross Stamford Connecticut office The Touche Ross Stamford office utilized personnel in its Chicago office to perform the auditing work at the Tama facility According to Adams between 1980 and 1984 a bond issue involving Respondent required a full scope audit which permitted Touche Ross to render an opinion on the financial position and operating results at the Tama facility In 1985 and 1986 however only limited proce dures-specified by the Stamford office-have been per formed at Tama 9 Those limited procedures in 1985 and 1986 were not sufficient to permit a positive assurance opinion C Evidence Concerning an Agreement for an AICPA Audit The Respondents affirmative defense states At all times material herein the Respondent in the course of collective bargaining has offered to the Union to have its financial records audited by an independent CPA at the Unions expense to verify its claim that it can not afford to pay the in creases proposed by the Union On or about Febru ary 24 1987 at a collective bargaining session the Union finally accepted the Respondents offer of audit The undersigned [Carey] specified that such audit must comply with American Institute of Certi fled Public Accountants (AICPA) Standards and the Union agreed Thereafter a representative of Peat Marwick & Mitchell [sic] pursuant to such ar rangement contacted the undersigned to arrange a time when he could perform what he described as an analysis of the Respondents financial records The undersigned asked such representative how an analysis compared with such AICPA standards to which he responded that an analysis is roughly comparable to a compilation and that that was the extent of his assignment from the Union Upon learning that the Union was unwilling to comply with the above agreement at the bargaining table that only an AICPA Standards Audit be per formed Respondent informed such representative of Peat Marwick & Mitchell [sic] that it would only consent to have performed an AICPA Standards Audit This was unacceptable to the Union which 8 The preceding two paragraphs are a compilation of explanations pro vided Wmikates and Phillip Adams Jr a CPA called by Respondent Both are CPAs licensed to practice in Illinois 9In 1985 Adams performed the specified procedures In 1986 the specified procedures were even more limited and were performed by a lower level staff person in Adams office 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD insists upon conducting only an analysis of the Respondents records as above described Stated succinctly Respondent affirmatively defends its admitted refusal to permit Winikates to examine its finan cial records in the manner requested by Ulemen on the ground that the Union agreed to perform an AICPA standards audit Respondent called three witnesses Rex Ryden Robert Bristol and Lyle Baer Jr to support its claim that the Union specifically agreed to an AICPA standards audit All three said the audit arrangements occurred at the conclusion of the 24 February bargaining session during an exchange between Carey and Ulemen Attorney Ryden one of Respondent s spokesmen at the 24 February meeting recalled that Ulemen made some comment about [Respondent s] bargaining position and [Carey] responded that if the Union had any doubt or question about Respondents ability to pay that the Union was welcome to perform an audit Ulemen responded We might just take you up on that Then according to Ryden Carey specified that any audit would have to be by an independent certified public ac countant and that it would have to be a Truitt type audit Ryden said Carey also made some reference that the audit would have to be prepared in accordance with some sort of CPA standards Ryden remembered that Carey used two other initials in connection with his men tion of CPA standards but Ryden was not familiar with their meaning at the time Ryden later came to under stand that the reference was to the AICPA standards Ryden acknowledged that his contemporaneous notes re flect that the audit would be performed in accord with the Truitt case but do not refer to CPA standards Ryden explained that he made no reference to an AICPA standards audit in his notes because I felt some what I guess embarrassed that I didn t recognize what the reference was Nevertheless Ryden remembered that Ulemen appeared to agree with those comments There followed a discussion about which individual at Respondents place of business should be contacted to schedule the audit On this latter point Ryden recalled that an arrangement was first made for the Union desig nated accountant to contact Bnstol about scheduling the audit but before the meeting adjourned it was left that the accountant would contact Mr Carey to make those arrangements Bristol Respondents director of industrial relations and personnel manager recalled the following Very near the conclusion of the meeting things were getting a little heated and Mr Carey offered the Union again the option of Why don t you conduct an audit of the Company books? And at that time Mr Ulemen I believe says We just may take you up on that Bristol said Carey then stipulated that it had to be a complete audit that [Respondent] would not settle for anything less Bristol further remembered the word Truitt -which did not mean anything to Bristol-was mentioned by Carey Carey also stated according to Bristol that the audit had to be conducted by CPA standards Bnstol who is not an accountant and has never studied accounting recalled there were other mi tials used by Carey when he made the reference to a CPA standards audit but he did not recall what they were until he later learned the reference was to the AICPA Bristol s recollection was that the union desig nated accountant would contact him to arrange the scheduling of the audit For that purpose Bristol walked to the Union s table and provided Ulemen with his bust ness card Baer works in Respondents accounting department and is studying accounting He attended the 24 February bargaining session and at the time of the audit discus sion was taking notes or minutes on Bristol s behalf Baer recalled the audit discussion began in the following manner When the subject of an audit came up it was around the financial ability to meet the proposals of the Union The Union wondered if they could have an audit and Mr Carey said Yes we ve been open to an audit we are open to an audit now we ve been open to audits in the past We howev er want the audit to be under strict guidelines of the Association of Independent CPAs Baer recalled that the word Truitt was mentioned sev eral times in the Carey Ulemen exchange but as it had no meaning to him he did not enter that designation in his notes Instead Baer made the following entry in his notes about the audit discussion The Union and the Company is at impass [sic] Discussion was totally around wages & insur ance When can the Company expect to here [sic] from the independent CPA? About 1 week they will be contacting Bob Bristol Once the contact is made Union & Company will [AICPA institute standard audit] work out ground rule for audit Next meeting will be set up after the proposed audit Baer recognized the reference to AICPA standards from his accounting class Baer said Carey used the term sev eral times during the discussion apparently making sure that the attorney for the Union understood exactly what he meant Purportedly Ulemen accepted the audit offer and said that he would contact the Respondent at a later date to establish guidelines However when cross exam fined by the General Counsel Baer testified Q Who stated that for the Union that they wanted to see the books? A Mr Ulemen did Q Is it your testimony that Mr Carey placed a condition on looking at the books on permitting the Union to look at the books that it had to be an AICPA type audit? A Yes sir Q Did Mr Carey say he would permit any other kind of examination of the books? A No sir TAMA MEAT PACKING CORP 663 Q It had to be an AICPA type audit? A Yes sir Q And then if I understand you correctly it is your testimony that with that condition that being the condition Mr Ulemen said All right in sub stance t A That was my understanding yes Q And they also agreed that it had to be a certi feed public accountant? A Yes sir that s written down just above the previous statement Q Did they [sic] said anything about the ac countant having to be from an independent account ing firm not affiliated with the Union in any way? A That s correct sir and it s stated there also Q But the condition was that it had to be an AICPA audit? A Yes sir Q And that being the condition in order to see the books the Union accepted Is that right? A Yes sir that was my understanding As Baer understood the arrangement Ulemen-not the accountant-was to contact Carey to work out the audit ground rules The General Counsel called three witnesses Ulemen Robert Schorg and Charles See who testified about the Carey Ulemen exchange concerning an audit on the night of 24 February Ulemen s recollection of the dis puted exchange was as follows And Mr Schorg said Well what can you do for these people in terms of the insurance and the money? And it was met with a rejection Q By whom? A By Mr Carey Q What did he say? A There was no possibility that the Company could afford to pay additional wages or increase the insurance benefits for these people Q Is that what Mr Carey said? A Yes words to that effect And he made it very clear that the Company could not afford to pay it And at this point there was some conversa tion about looking at the books Now I cant re member exactly how that came about whether Mr Carey said We offered to let you look at the books before and you turned us down and I said Okay we re going to take you up on it this time So then the conversation went something like this Mr Carey said You understand it will not be one of your Teamster auditors and no auditor that is connected with the pension funds It has to be an independent certified public accountant from one of the nationally recognized accounting firms Q What did you say in response? A I said We agree we 11 do that Then Mr Carey said You understand that this is a Truit [sic] Manufacturing type of audit Q Were you familiar with the Truit [sic] case at the time? A All I knew about Truit [sic] was the U S Su preme Court decision that said that if a company pleads poverty you have (a right to look at their records So I said Okay it s a Truit [sic] Manufac turing type of audit that s fine And that was basi cally what it was So the one detail left was after I selected the auditor how was he going to handle this So I said Okay when I get him 111 have him call you Mr Carey He said No have him call Mr Bristol And I wrote down- Q What was Mr Bristol s position? A Mr Bristol was-well I called him the labor relations man-I think he s the director, of industrial relations or something like that Q At Tama? A At Tama Q Tama Meat A And I wrote down in my notes Mr Bristol s name and his telephone number And then Mr Bns tol got up and he walked over from his table over to mine and gave me his card And I stapled that card onto my notes Q His business card? A His business card And that was the end of it The meeting broke up 10- 10 30 something like that at night Q Did you set another date for a meeting at that time? I A No The understanding was that there was no point in us meeting until we saw what our account ant was going to say about their books Ulemen emphatically denied that either the phrase stand alone audit or the phrase AICPA audit was used in connection with the pertinent discussion that night Rather Ulemen said Carey concentrated very much that this had to be a Truitt Manufacturing audit Ulemen told Carey Sure I understand Truitt to be the leading case on the subject and that s exactly what we 11 do According to Ulemen he and the Union certainly were not in the initial stages even considering a com plete and total audit simply a review of [Respond ent s] records whatever [Respondent was] relying on to make [its] assertions Further Ulemen stated What we were going to do which is similar to what my experience is [sic] is we were going to have Mr Winikates look at whatever records [Re spondent was] relying on to make the assertion that no wage increase could be given to these employ ees Whatever records [Respondent was] relying on to make that statement he was going to review Now after he made that review to us we would get some kind of an indication from him whether he was confident that [Respondent was] accurate in [its] assessment or he would say to us I can t tell from what they showed me I would have to go deeper Or he would say from the monthly re ports or whatever financial reports [Respondent] makes to its holding company that owns it I think there s some room there for a wage increase or some room for some insurance improvements We would get that information from him and we would have to act based on what he told us If he t 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told us there s no hope this Company is in such bad shape that it s impossible well we would without any question in my mind would accept what he told us If he told us that he cant tell from the review of the material [Respondent] gave him then we would have to decide whether we re going to go deeper In Ulemen s view a complete and total certified public accounting audit of [Respondent] was totally unnec essary for purposes of this bargaining 10 Robert Schorg the Union s chief executive officer and principal spokesman at the 24 February meeting remem bered that a discussion developed between Carey and Ulemen about auditing Respondents financial records His recollection was that Carey and Ulemen agreed that there would be a Truitt audit Schorg said he was not familiar with the meaning of Truitt but that word was mentioned several times between the two lawyers He further recalled that once a CPA was agreed that person was to contact Bristol to schedule the work Schorg claimed that he heard no discussion of AICPA standards during the Carey Ulemen exchange that night Charles See an employee at Respondents Tama facile ty and the Unions chief steward was present at the Union s table the night of 24 February He recalled that toward the end of the session Respondent offered their books for an audit See said there was a discussion be tween Carey and Ulemen on how they would conduct the audit and which books would be open He said Ulemen insisted on having all the books available and that Carey and Bristol stressed several times that the Union had to use an independent CPA not affiliated with the Union do the work See recalled no mention of the word Truitt during the exchange nor did he recall any reference to an AICPA audit or the American Insti tute of Certified Public Accountants The following day Respondents president prepared a report in letter form concerning the 24 February session with Carey and Bristol s assistance and mailed it to all employees In pertinent part the letter states We also reminded the union that on July 23 1985 we offered to have our financial records ex amined by an independent Certified Public Ac counting firm but the union refused We told the union the offer still stands The union may accept the offer quoted so management can prove that there is not enough money to pay their demands Whether or not-is not the question There will be no other sessions scheduled with the union until after union obtains their independent CPA audit The union has the right to strike at any time over our continued impass [sic] on money and other eco nomic disputes Management has the right to per manently replace all striking employees with people 10 Ulemen professed to be unfamiliar with the term AICPA audit until preparations for the hearing However he was familiar with the scope of an audit necessary for a CPA to provide positive assurance report from his experience with benefit fund clients who will be willing to accept jobs with Tama Meat Packing Corporation YOU DECIDE' The union cannot force you to strike D The Argument The General Counsel argues that (1) the Union made a proper request to inspect Respondents financial records (2) following Respondents claimed inability to pay the Union was entitled to make such an inspection and (3) Respondent has unlawfully refused to make its fi nancial records available for inspection Accordingly based on the Truitt principle the General Counsel claims Respondent refused to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act The General Counsel asserts Respondents insistence that the Union agree to conduct an AICPA standards audit is clearly an unlawful condition The General Counsel characterizes Respondents claim that the Union agreed to conduct an AICPA standard audit as a red herring raised as an afterthought by Respondent to avoid producing its financial records According to the General Counsel the Union only agreed to have an inde pendent CPA unaffiliated with the Union inspect or audit Respondents records to determine the truthfulness of Respondents plea of poverty Used in its proper context here the General Counsel argues that the word audit refers to its everyday ge neric sense and not its technical meaning as defined by the AICPA This is so the General Counsel asserts be cause with the possible exception of Carey no one present on 24 February even understood the term AICPA audit or the term audit in the technical sense used by CPA s Accordingly the General Counsel believes that even if the Union had unwittingly agreed to conduct a complete audit in accordance with AICPA standards as a condition for examining Respondents fi nancial records before it understood the potential costs and undertaking involved Respondents continued insist ence an AICPA standards audit constitutes bad faith bar gaining The General Counsel requests a remedial order direct ing Respondent (1) to immediately make its financial records available on request by the Union and (2) to post the appropriate notice in cases of this type In adds tion the General Counsel asks for such other relief deemed just and proper and that the remedial order provide for a visitatorial clause The Union requests that the Respondent be ordered to submit to an audit as requested by the Union and that the costs of the audit should now be paid for by the Re spondent due to its imposition of unreasonable and illegal demands before it would allow such an audit to take place In support of this latter request the Union cites the discretion granted the Board under Section 10(c) of the Act to issue remedial orders that restore the parties to the same status as existed before the unfair labor prac tice occurred and that are designed to prevent further violations Respondent sees two broad issues in this case The first issue from Respondents viewpoint is whether the TAMA MEAT PACKING CORP 665 Union faced with Respondents asserted inability to pay [may] unilaterally impose on the Respondent criteria for the Union CPA s examination of the Respondents finan cial records which criteria would be a violation of Sec tion 8(a)(5) were the Respondent to attempt to impose the same criteria on the Unions CPA and [whether] the Respondents opposition to such criteria [is] a violation of Section 8(a)(5)? The second issue posed by Respondent is whether the Union in any event agreed to conduct its examination pursuant to the Truitt standard and the AICPA standards? Citing a number of post Truitt cases' i Respondent argues that a union-like an employer-may not lawfully restrict the scope of a Truitt audit if a double standard is to be avoided Here Respondent notes the Union en gaged Winikates only for an initial evaluation of Re spondent s records and not an audit Hence Winikates by his own admission could not and would not confirm the accuracy of Respondents claimed inability to pay under such an engagement To provide such confirmation Re spondent argues Winikates would be required to perform an audit If Winikates as a CPA performs an audit he must adhere to his own professional standards as speci feed by the AICPA Therefore the Respondents logic concludes a Truitt audit really means an audit con ducted in accord with AICPA standards Respondent urges that any other holding in this case would subject it to legal and economic risks According to Respondent the Union s refusal to believe Respond ent s claimed inability to pay produces a climate of sus picion in the workplace This climate Respondent argues is not necessary because were proof of the ac curacy of [Respondents claimed inability to pay] con tained in a positive assurance report of audit the pnnci pal obstacle to a settlement would be removed Finally Respondent argues on the basis of the testimo ny of its witness and documentary evidence that Ulemen specifically agreed on 24 February to conduct an AICPA standards audit Accordingly Respondent was 'i The cases cited are B L. Montague 116 NLRB 554 ( 1956) (refusal to permit inspection of books after pleading poverty held unlawful) Yakima Frozen Foods 130 NLRB 1269 (1961) (offer by employer to permit an audit by a CPA paid by union held not unreasonble) Metlox Mfg 153 NLRB 1388 ( 1965) (insistence that union designated accountant provide only a yes or no answer after inspecting employers records to substantiate a claimed inability to pay held unlawful) NLRB v West ern Wirebound Box 356 F 2d 88 (9th Cir 1966) (refusal to permit union designated accountant inspect records to substantiate claim that a pay de crease was necessary to make employer competitive held unlawful) Tony s Meats 211 NLRB 625 (1974) (refusal to permit union-designated CPA to inspect employer records to substantiate a claimed inability to pay larger increases than offered by employer held unlawful) Telepromp- ter 227 NLRB 705 (1977) enfd 570 F 2d 4 (1st Cir 1977) (providing only corporatewide profit information to support wage freeze claim while refusing to furnish profit information at three local operations in volved in negotiations held insufficient to meet duty to bargain in good faith) Latimer Bros 242 NLRB 50 (1979) (flat refusal to permit union to inspect financial records after employer plead poverty held unlawful) Harvestone Mfg 272 NLRB 939 (1984) enfd 785 F 2d 570 (7th Cir 1986) (same holding as Latimer supra) St Joseph s Hospital 269 NLRB 862 (1984) (refusal to permit union-designated CPA inspect records be cause CPA lacked specific qualifications insisted on by employer held un lawful) and Can Do Inc 279 NLRB 819 (1986) (refusal to provide union with sufficient information to audit in policing and administering a collective bargaining agreement held unlawful) justified in refusing to permit the type of inspection pro posed by Winikates E Further Findings and Conclusions Section 8(a)(5) of the Act provides that it is an unfair labor practice for an employer to refuse to bargain col lectively with the representatives of his employees 29 U S C § 158(a)(5) Section 8(d) of the Act de fines collective bargaining as the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages hours and other terms and conditions of employment 29 U S C § 158(d) By refusing Winikates the union designated CPA access to its financial records to substantiate its claimed inability to pay the increases proposed by the Union Re spondent has refused to bargain in good faith In reach ing this conclusion I reject Respondents arguments that Truitt and its progeny requires the Union to conduct an AICPA standards audit to independently establish that Respondent cannot afford the union proposed increases and that Union Negotiator Ulemen agreed to conduct such an audit on the night of 24 February Respondents claim that Truitt requires an audit con forming to AICPA standards is more the product of se matical gamesmanship rather than a fair reading of that case and those of a similar vein following it Respondent seizes on words such as audit substantiate and verify used in the legal decisions it cites and applies an auditors definition to those words to reach the conclu sion it advances In so doing Respondent in effect com pares apples and oranges Truitt addresses the concept of good faith bargaining rather than auditing and accounting principles Thus the Truitt court stated 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 im portant enough to present in the give and take of bargaining it is important enough to require some sort of proof of its accuracy And it would certainly not be farfetched for a trier of fact to reach the conclusion that bargaining lacks good faith when an employer mechanically repeats a claim of inability to pay without making the slightest effort to sub stantiate the claim We agree with the Board that a refusal to attempt to substantiate a claim of inability to pay increased wages may support a find ing of a failure to bargain in good faith The Board concluded that under the facts and circumstances of this case the respondent was guilty of an unfair labor practice in failing to bargain in good faith We see no reason to disturb the findings of the Board We do not hold however that in every case in which economic inability is raised as an argument against increased wages it automatical ly follows that the employees are entitled to sub stantiating evidence Each case must turn upon its 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD particular facts The inquiry must always be wheth er or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met [Fns omitted ] Following this guidance the ultimate assessment in all the cases Respondent cites is whether the refusal to pro vide union access to financial records to determine the honesty of the inability to pay claim supports a finding of bad faith bargaining In Metlox and Teleprompter the Board stated [T]he prime consideration is not the bare refusal to furnish data but whether under the circum stances in a case the employer by his [sic] conduct is doing violence to the principles of good faith bargain ing From the perspective of collective bargaining sharing financial information when relevant in bargaining has a prophylatic effect Reasonable assurance that a poverty plea is honest provides the employee representative with a meaningful information that employees may have to scale back their expectations faced with establishing the honesty of such claims may also cause an employer to adopt a more compromising attitude or risk being labeled skinflints by its work force and the communities where they exist Undoubtedly the quality of an employers financial records will have a bearing on the honesty of its claims If in the unlikely event an employer chooses to rely on financial records that do not accurately portray its true financial condition to assert its inability to pay the hon esty of its claim is immediately open to question On the other hand if an employers records are reasonably accu rate then both the employer and the union are in a post tion to make their own policy assessment concerning the ability to pay issue In either case conditioning the shar ing of relevant financial information on the employee representative engaging an auditor to obtain an inde pendent positive assurance report in accord with AICPA standards that the employers records do do not or par tially reflect its true financial position in accord with generally accepted accounting principles strikes me as an attempt to erect artificial barriers and resort to patent technicalities to obfuscate the bargaining process Such barriers and technicalities are not compatible with good faith bargaining NLRB v Western Wirebound Box supra at fn 7 This seems especially true when as here the employer itself has not caused such an audit to occur since 1984 or the entire period covered by the bargain ing Respondents claim that the Truitt progeny reflects a slow evolution in the law to the point where a AICPA audit is now required completely lacks merit From B L. Montague to St Joseph s the Board has held that an employer need furnish for inspection only those records necessary to substantiate its poverty plea None of the cases Respondent cites suggests that an AICPA audit is required or even logical for bargaining purposes Likewise the evidence does not support Respondent s affirmative defense Ulemen an experienced negotiator categorically denied that the Union agreed to perform an AICPA audit I credit that denial in the circumstances here However contrary to the recollection of the union witnesses I am satisfied that there was some mention of an AICPA audit in the Carey Ulemen exchange on 24 February Baer s contemporaneous but ambiguous notes Carey s telephone exchange with Winikates and Re spondent s legal argument here all suggest strongly that there was some reference to an AICPA audit On the otherhand the testimony of Ryden and Bristol suggests with equal strength that any such reference was in some manner related to the holding in Truitt and thereby served to obfuscate the whole issue 112 At the very least the Ryden Bristol testimony shows there was no ex tended discussion of an AICPA audit so as to enlighten anyone unfamiliar with the term such as Ulemen Ryden and Bristol In these circumstances the conclu sionary testimony of Ryden and Bristol suggesting that Ulemen agreed to an AICPA audit becomes highly ques tionable In these circumstances Carey s failure to testify is in explicable It may be reasonably assumed that Carey was aware in preparing Respondents case that only he would be able to articulate the proposal he purportedly made and recite the unqualified acceptance by Ulemen which provided the basis for the claimed agreement in the of firmative defense Hence the fact that Carey did not tes tify is an additional factor supporting the conclusion reached here 13 In addition Baer s reference in his notes to the estab lishment of subsequent audit guidelines is puzzling There is agreement that the Union accepted responsibil ity for selecting and paying a professional from a nation ally reputable accounting firm and as Baer s notes other wise allude to the arrangement for the Union s account ant to gain access to the financial records the fact that the notes further refer to guidelines yet to be agreed on detracts from a finding that the parties agreed to an AICPA audit Finally I find that it is highly improbable that an ex perienced negotiator such as Ulemen woula undertake a much more massive audit of Respondents records than necessary Ulemen s subsequent charter to Winikates is consistent with the probabilities extant here Nevertheless Respondents brief suggests that the Union abandoned the agreement only on learning the cost of an AICPA audit If that were so it would be rea sonable to expect some support for that proposition in the initial Ulemen Winikates exchange Having carefully examined Winikates testimony for any such suggestion I have concluded this argument lacks merit Notwithstand ing their business affiliations in this case both CPAs who testified impressed me with their candor professionalism and objectivity Accordingly as there is no suggestion in Winikates testimony that Ulemen raised the subject of an AICPA audit in any manner at the time he was re tained by Ulemen I find Ulemen s initial charter to Wini 12 Winikates testimony about his conversation with Carey contains a similar suggestion 13 Because Ryden Carey s co-counsel testified I am satisfied that ethi cal considerations were not paramount I stress however that no judg ment or implication is made here concerning the ethics of an attorney tes tifying on behalf of a client TAMA MEAT PACKING CORP 667 kates to be quite probative concerning Ulemen s state of mind The fact that there is no hint of an AICPA audit in the Ulemen Winikates exchange strongly supports Ulemen s denial For the foregoing reasons I find Respondent has not carried the burden of proving the alleged affirmative de fense In summary Respondent rejected all the Union s sig nificant economic proposals saying they were economi cally impossible or that it could not afford the pro posals In letters sent to employees Respondents presi dent asserted that as early as July 1985 Respondent was offering all it could afford claimed that in the past Re spondent was losing millions of dollars each year and although these losses had been stopped it was only now breaking even After the 24 February meeting Re spondent s president offered to prove that there is not enough money to pay [the Unions] demands Coupled with these assertions were provocative and taunting statements concerning the Unions right to strike and managements right to replace strikers In light of these repeated assertions Respondents insistence that the Union conduct an AICPA standards audit at the cost of $20 000 or more-which even it has not done since 1984-to verify the honesty of its economic claims is un reasonable and evidence of its bad faith Accordingly I conclude Respondent refused to bargain in good faith as alleged and thereby violated Section 8 (a)(1) and (5) of the Act II THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activities of the Respondent set forth above oc curring in connection with the Respondents business op erations have a close intimate and substantial relation ship 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 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All full time and regular part time production and maintenance employees employed at its Tama Iowa facility including plant clerical employees and yard drivers excluding cattle buyers meat graders shag drivers salesmen office clerical employees profes sional employees guards and supervisors as defined in the Act 4 By refusing since April 1987 to make available to the Union all financial records that support its claim that it cannot afford to pay the wage and benefit increases proposed by the Union during negotiations for a collec tive bargaining agreement Respondent has refused to bargain in good faith and thereby engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act 5 The unfair labor practice specified in Conclusions of Law 4 above affects commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY As Respondent unlawfully insists that the Union con duct in AICPA standards audit to substantiate its claimed inability to pay wages and benefits proposed by the Union Respondent will be required to cease and there from and take certain affirmative action to effectuate the purposes of the Act In cases of this nature the Board typically provides of firmative relief requiring the offender to (1) bargain col lectively (2) provide on request its financial record in formation and other data which will substantiate its claimed inability to pay and (3) post a notice to employ ees concerning the matter See B L Montague supra at 558 and other cases cited in fn 7 Such relief will be or dered here The Union however seeks additional relief reim bursement of its CPA expenses necessitated by the in spection ordered here For reasons detailed below I find the requested relief is overly broad and premature Nev ertheless the ultimate object of Respondents unlawful conduct clearly was to compel the Union to make the maximum possible expenditure to acquire the information the Union was legally entitled to receive Having ex posed such an object added affirmative relief designed to preclude related conduct in connection with this sub ject is in my judgment warranted Accordingly to pro tect the efficacy of the general requirement to bargain collectively which the recommended Order provides I have included in the recommended Order an additional requirement that Respondent reimburse the Union for its CPA and attorney fees and expenses in the compliance stage of this proceeding if the Union establishes that Re spondent s claimed inability to pay is like its AICPA audit argument a sham advanced in bad faith The Board has not provided the type of added relief here THe relief however such relief is well within the discretion provided the Board in Section 10(c) of the Act Thus the Board has ordered reimbursement of liti gation and bargaining costs where an employer frivo lously (by raising meritless defenses involving no credi bility issues) challenges a union s certification by refusing to bargain or willfully defies its statutory obligation to bargain J P Stevens 239 NLRB 738 773 (1978) Tudee Products 194 NLRB 1234 (1972) More recently the Board has ordered unions to reimburse employees for a variety of direct costs incurred in defending themselves against unlawful internal union charges Machinists Local 575 283 NLRB 881 (1987) Laborers District Council 275 NLRB 278 (1985) The recommended relief devised here differs from that provided in these prior cases in that it is provisional and designed to effectuate other relief meas ures clearly warranted The Board has plainly indicated that decisions such as those cited are not intended to lock in concrete any past precedent in fashioning re 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD medial policy Hecks Inc 215 NLRB 765 768 (1974) Clearly therefore the restrained additional relief provid ed does no violence to established remedial policy and is amply justified where-as here-Respondent disrupted the bargaining process at a critical stage This added relief is essential to prevent the other re medial provisions in this case from becoming as a practi cal matter a penalty on the Union Where as here Re spondent has long proclaimed at the bargaining table and publicly to its employees that it cannot afford the Union s proposed wage and benefit increases the Union is presented with the choice of accepting the declaration at face value or expending substantial sums to obtain an independent substantiation of that claim Having now gotten over the sham hurdle erected at a critical point in negotiations by Respondent that it must conduct an AICPA standards audit the Union should not be left without recourse if it discovers it has been led on a wild goose chase all along Respondent conceived and perpet uated at great length its baseless argument concerning the legal necessity for an AICPA audit mystifying even one of its own attorneys in the process That it did so to distract the Union from pursuing an unsupportable pov erty plea cannot now be excluded from the realm of pos sibility Because the added relief is directed solely at this potential result it serves to protect the integrity of the order to bargain collectively-which by definition means in good faith-in the compliance stage of this proceed ing Respondent suffers no loss from this added relief if as Truitt contemplates its claims are honest or if it with draws its poverty plea before the Union expends its time and resources pursuing the validity of that plea The Unions expenditures to examine Respondents financial records are legitimate costs it should-and agreed to- bear if the examination results provide an arguable basis for Respondents claim But if Winikates or whoever the Union designates in the compliance stage of the proceed ing discovers that Respondent is in the parlance of the financial world a cash cow fully capable of making con cessions above those already made then the Union may be heard to complain legitimately that Respondent con tinues to pervert the duty to bargain in good faith to its direct financial detriment All that is eliminated by this added relief is further related bad faith claims which the Union must pay to expose As devised the added relief shifts the cost burden from the Union to the Respondent for additional wrongdoing with this particular subject matter during the compliance stage of the proceeding By doing so the purposes of the Act-here good faith bargaining-are effectuated by this provisional relief As the added relief is limited to actual expenditures it is not punitative Procedures established in the Board s Rules and Regulations assure Respondent a hearing and other due process protections in the event such a claim is made in the compliance stage Because there is substantial interest on the Union s part in policing compliance with the recommended Order fashioned here I find the General Counsels request for a visitatorial clause unnecessary in this case Cherokee Marine Terminal 287 NLRB 1080 (1988) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed14 ORDER The Respondent Tama Meat Packing Corp Tama Iowa its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to bargain collectively in good faith with Chauffeurs Teamsters and Helpers Local Union 238 of filiated with International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO as the exclusive bargaining representative of all employees in the following appropriate unit All full time and regular part time production and maintenance employees employed at its Tama Iowa facility including plant clerical employees and yard drivers excluding cattle buyers meat graders shag drivers salesmen office clerical employees profes sional employees guards and supervisors as defined in the Act (b) Refusing to furnish the Union with financial infor mation to substantiate its claim that it was financially unable to meet the Union s wage and other economic de mands (c) Insisting that the Union conduct an audit of its fi nancial records in accord with the professional standards of the American Institute of Certified Public Account ants to substantiate its claimed inability to pay wage and benefit increases proposed by the Union (d) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request make available to a professional ac countant designated by the Union all books and records containing financial information that substantiate its claim that it is financially unable to meet the Union s wage and economic demands (b) Reimburse the Union for its accountant and attor ney fees and expenses during the compliance stage of this proceeding if the Union establishes that Respondent s claimed inability to pay is without substance and in bad faith (c) Post at its Tama Iowa facility copies of the at tached notice marked Appendix 15 Copies of the notice on forms provided by the Regional Director for Region 18 after being signed by the Respondents au thorized representative shall be posted by the Respond 14 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 16 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board TAMA MEAT PACKING CORP 669 ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material i (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply f a 1 .s r I 4