1 - National Labor Relations Board

Enforcement Litigation 145
upheld the Board's finding that the employer violated section
8 (a) (5) and (1) of the Act by refusing to supply the requested
financial information, and the resulting strike was an unfair
labor practice strike.
On the other hand, in the Kroger case, 54 the Sixth Circuit rejected
the Board's finding of an unlawful refusal to bargain in
the employer's refusal to disclose to the union its operating
ratio program, which it used not only to estimate, and hence to
schedule, total hours of work for a given week in each of its
stores, but to make estimates for its whole marketing operation.
The court pointed out that the union's request for information
was very broad : the union had sought disclosure of the entire
program, including many aspects which bore no relationship to
the union's performance of its collective-bargaining function and
which were of great commercial value and could not be disclosed
without competitive damage. Moreover, in bargaining collectively,
the employer had not relied on the program in question to
deny benefits or refuse to adjust grievances. There were no pending
negotiations or unsettled grievances to which the requested
information was related. Consequently, the union's request for
information was considerably broader than what the law required
the employer to furnish it ; the employer was not required
to furnish all information which the union thought might conceivably
be helpful to it in collective bargaining or in the
processing of grievances. In view of these factors, and -the long
bargaining history without any current contract disputes or
unresolved grievances, the court declined to find a violation of
section 8 (a) (5) and (1) of the Act.
In Waycross Sportswear, 55 the Fifth Circuit sustained the
Board's finding that the employer, in addition to violating section
8(a) (1) of the Act in several respects and violating section 8(a)
(5) and (1) by a general failure to bargain in good faith, further
violated section 8(a) (5) and (1) by refusing to allow an in-plant
study by an expert in piecework analysis to obtain information
relevant to contract negotiations. The court pointed out that the
nature of piecework as a means of wage determination inevitably
involves the elements of incentive, fair compensation, and fair
standards of output, which, in turn, require that operational
methods be evaluated in the light of such factors as the level of
human skills and the adequacy or inadequacy of machinery. Evaluation
of these factors required opportunity for observation, sam-
54 Kroger Co. v. N.L R.B., 399 F.2d 455.
55 Waycross Sportswear v. N.L.R.B., 403 F.2d 832.