Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.
National Labor Relations Board, by its petition pursuant to § 10(e) of the National Labor Relations Act, as amended,*fn1 has asked us to enforce its order issued November 27, 1962 against Robert S. Abbott Publishing Company, an Illinois corporation, respondent.*fn2
Respondent is engaged in Chicago in newspaper publication and printing. The Board found that respondent violated § 8 (a)(1) and (5) of the Act, by failing to bargain in good faith with the Union. This ultimate finding was based on subsidiary findings that respondent: (1) did not make a good faith effort to substantiate its claimed inability to grant a wage increase to all the employees in the nonmechanical units, (2) engaged in dilatory tactics in failing to schedule bargaining meetings with respect to the mechanical unit, and (3) contracted out the work performed by the mechanical unit without bargaining with the Union about this decision. There was a finding that respondent also violated § 8 (a)(1) and (3) by refusing to reinstate unfair labor practice strikers upon their unconditional application for reinstatement. The evidence upon which the Board based these findings is summarized below.
As to the Nonmechanical Unit .
Until November 1, 1960, respondent and Chicago Newspaper Guild, Local 71, AFL-CIO, herein called the Union, were parties to collective bargaining agreements which covered respondent's employees in the non-mechanical unit. On September 21, 1960 the Union submitted proposals for a new contract to replace one which was to expire on November 1. Until February 27, 1961, there were "approximately five or six" negotiating meetings, during which respondent submitted a job reclassification proposal for about 20 of the 45 unit employees. This was not intended by it as a general offer to increase pay. However, respondent thereafter withdrew this proposal, for the reason that its auditor had said that the offer should not have been made because "there just was not any money available to give increase."
By the time the collective bargaining sessions began for the new contract for the nonmechanical employees respondent had experienced financial difficulties characterized by serious shortcomings in its bookkeeping department. It so informed the Union.
At a meeting on December 21, 1960, Kenneth Byrd, who, according to the report of the trial examiner, was executive director of the Union and its chief spokesman at most of the bargaining sessions, and Eleanor Pino, a member of the bargaining committee, conferred with respondent's president, its personnel director Pratt and James Parsons, its attorney (since inducted as a judge of the United States District Court for the Northern District of Illinois).It became clear that the chief issue was a demand for a salary increase "across the table".
After the collective bargaining sessions began to the date until they were ended by the filing of the Union's first charges on April 25, 1961, approximately 14 meetings were held.
Respondent's representatives repeatedly informed the Union that it was unable to grant a wage increase. The Union representatives demanded that respondent prove its inability. In attempting to meet these Union demands, respondent's president on March 17, 1961 offered to produce the weekly profit and loss statements, informed the Union representatives of the difficulty in obtaining information from its auditors because the bookkeeping department was in the process of being revised, and offered to release from their confidential obligation to respondent Union members who worked in the bookkeeping department, so that they could reveal to the Union officials the financial condition of respondent. These offers were refused by Byrd. The rejection was based on the ground that these workers in the bookkeeping department were merely "bookkeepers * * * not qualified people to determine" respondent's alleged inability to pay wage increases.
Byrd said that the new contract must contain some increase in wages but that the Union would be willing to extend the existing contract if respondent would "prove to us some way that you don't have the money".Respondent's president replied that it was in dire financial condition and was currently in the process of conducting executive meetings to determine methods of meeting "this emergency situation". He anticipated that it would be necessary to make a reduction in force on or about April 1 and that he was having difficulty in obtaining information from his auditors as to respondent's financial condition, because of the reorganization of the entire bookkeeping department.
In response to Byrd's request, the president refused to release the books for inspection, on the ground that he did not want the books "made public, because it is a bad thing if the public knows that a company is not in good financial condition". He referred to Byrd's request as a "fishing expedition" into the books.
Further, on April 19, 1961, respondent's president offered to furnish the Union a profit and loss statement for the period ending June 1960 (which was subsequently received by him from respondent's Detroit accountants with covering letter dated April 22, 1961).
General counsel for the Board asserts now in his brief that the president did not inform the negotiators that he had an interim audit report furnished him on September 15, 1960, which contained a comparative statement for profit and loss for 6 months periods ending June 30, 1959 and June 30, 1960. However, we find from the record that the fact is otherwise. It was not ...