TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

114 Twenty-sixth Annual Report of the National Labor Relations Board
nancial information may constitute a violation of Section 8(a) (5)
depending on the facts of the particular case, the ultimate inquiry
being 'whether or not under the circumstances of the particular case,
the statutory obligation to bargain in good faith has been met' "
In one case during the past year, the Board found that an employer
did not refuse or fail to substantiate its claim of inability to pay by
refusing to permit the union to make a general inspection of its books
and records 54 It noted that the employer's offer of its most recent
balance sheet to permit "verification" of such balance sheet by a
"licensed accountant or C P A ," and its offer to submit its records
to a full audit in its office by a "Licensed Public Accountant or a
C P A" designated by the union, provided the union paid the cost
of the audit, were reasonable and not unduly burdensome or restrictive
on the union Finding that tlus employer had satisfied his obligation
to bargain and furnish information as enunciated by the Supreme
Court m the Truztt case,55 the Board pointed out that "the obligation
to furnish substantiating evidence does not 'automatically' follow a
claim of inability to pay, nor is the employer obligated to substantiate
the claim, it is enough if the employer in good faith attempts to
substantiate "
(b) Waiver
Although a bargaining representative may waive its right to e-
quested information, evidence of such waiver must meet the Board's
"clear and unequivocal" waiver test 58 Thus, a panel maprity held
that a union had not waived its right to receive a requested seniority
list of employees in the bargaining unit—for the purpose of pi opeily
administering the seniority provisions of its contract—merely because
it had executed a contract that incorporated the employer's seniority
proposal which lacked any expressed provision for the employer to fin -
nish such a list, rather than its own initial proposal which would have
specifically provided for such a list 57 The maprity relied particularly
on the fact that the furnishing of a seniority list, per se, was not
a bone of contention in the bargaining negotiations preceding the
execution of the contract, and that there was no provision in the contract
itself that no such list need be furnished 58
63 Yakima Frozen Foods, 180 NLRB 1289, citing and quoting from NLRB v Truitt
M fg Co , 351 U S 149, 153-154 (1958)
54 Yaktma Frozen Foods, above The Board rejected the trial examiner's statement that
an employer is obligated "to bare his books" to a union, or to any other employee rePPP
sentative
55 Above, footnote 53
55 Gulf Atlantic Warehouse Co • 129 NLRB 42 See also The Item Co. 108 NLRB 1834
1640 (1954), enforced 220 F 2d 956 (C A 5, 1955), certiorari denied 850 US 838 (1955)
rehearing denied 350 US 905 (1955)
IP Gulf Atlantis Warehouse Co. above Member Rodgers dissenting
a See also American Sugar Refining (Jo, 180 NLRB 834, where an employer was re
gulred to furnish the union with existing job descriptions of the job classifications in the