United States Steel Corp.

National Labor Relations Board - Board DecisionsFeb 18, 1959

122 N.L.R.B. 1519 (N.L.R.B. 1959)

TENNESSEE COAL & IRON DIVISION, U.S. STEEL CORP. 151% economic situation, the Employer nevertheless made it clear wit.h- defmite finality that if a majority voted for the Independent, it would move the plant to another locality. By conditioning the re- moval of the plant upon the outcome of the election, we find that. the Employer, in effect, threatened the employees with economic re prisal and thereby interfered with the free choice of the employees. to select a bargaining representative.2 Accordingly, we adopt the- Regional Director's recommendation and shall set aside the election. and order a new one 3 [The Board set aside the election held on September 19, 1958.] [Text of Direction of Second Election omitted from publication.]; See, e . g., Lloyd A. Fry Roofing Company, Incorporated , 116 NLRB 1300; Norris- Thermador Corporation , 117 NLRB 1340 ; Stretch-Tea, Co., 118 NLRB 1359 ; New England' Upholstery Co., Inc., 121 NLRB 234. 3In light of this disposition we find it unnecessary to answer the other issues raised, by the parties. Tennessee Coal & Iron Division, United States Steel Corpora- tion and United Steelworkers of America , AFL-CIO. Case No. 10-CA-3273. February 18, 1959 DECISION AND ORDER On September 24, 1958, Trial Examiner A. Bruce Hunt issued his. Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair- labor practices and recommending that it cease and desist therefrom. and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exception to the Intermediate Report and a supporting brief.. United Steelworkers of America, AFL-CIO, the Charging Party herein, filed a brief in support of the Intermediate Report.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error has been com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with modifications as indi- cated below.2 1 As the record, exceptions , and briefs adequately present the issues and positions of the parties herein, the Respondent 's request for oral argument is hereby denied. , In affirming the Trial Examiner ' s finding that the Respondent violated Section 8 (a) (5) of the Act, we do so only on the ground that the Respondent refused to furnish to the Union data necessary to substantiate its claim that it was operating its zinc mine at a loss . We interpret the Respondent 's position as pleading an "inability to pay" within. 122 NLRB No. 177. 1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tennessee Coal & Iron Division, United States Steel Corporation, Jefferson City, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all the Respondent's production and maintenance employees at its Jefferson City, Tennessee, Zinc Mine Works, excluding office clerical and office janitorial employees, watchmen and/or guards, professional em- ployees, and supervisors as defined in the Act. (b) In any like or related manner interfering with the efforts of said Union to bargain collectively on behalf of the employees in the aforesaid bargaining unit. 2. Take the following affirmative action which the Board funds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all its employees in the aforesaid bargaining unit, with respect to wages, rates of pay, hours of employment, or other conditions of employ- ment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Upon request, furnish said Union with such record informa- tion and other probative material as will substantiate the Respond- ent's claim that its Zinc Mine Works has been operated at a loss. (c) Post at its Zinc Mine Works in Jefferson City, Tennessee, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized repre- sentative of the Respondent, be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. the meaning N.L.R.B. v. Truitt Manufacturing Co., 351 U . S. 149, by asserting its inability to meet the Union's economic demands from the operations of its zinc mine. In so doing, we expressly do not adopt any implication in the Intermediate Report that an employer's more assertion of an unwillingness to grant a union's economic demands, if unrelated to a claim of inability to pay, imposes an obligation on the employer to furnish such informa- tion as that requested herein. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." TENNESSEE COAL & IRON .DIVISION, U.S. STEEL CORP. 1521 (d) Notify the Regional Director for the Tenth Region in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : . WE WILL upon request, bargain collectively with United Steel- workers of America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described below, with respect to wages, rates of pay, hours of employment, or other conditions of employment. The bargaining unit is: All production and maintenance employees at our Jeffer- son City, Tennessee, Zinc Mine Works, excluding office clerical and office janitorial employees,. watchmen and/or guards, professional employees, and supervisors as defined in the Act. WE WILL, upon request, furnish United Steelworkers of Amer- ica, AFL-CIO, with such record and other probative material as will substantiate our claim that our Zinc Mine Works has operated at a loss. TENNESSEE COAL & IRON DIVISION, UNITED STATES STEEL CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the duly issued complaint of the General Counsel and the answer of the Respondent, Tennessee Coal & Iron Division of United States Steel Corporation, a hearing in this matter was conducted by the duly designated Trial Examiner in Knoxville, Tennessee, on July 23 and 24, 1958. The complaint alleges, and the answer denies, that on January 7, 1958, and continuously thereafter, the Respond- ent refused to bargain collectively with the Union, United Steelworkers of Amer- ica, AFL-CIO, in violation of Section 8(a)(5) of the National Labor Relations Act, 61 Stat. 136. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. All parties filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 505395-59-vol. 12 2-9 7 1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT United States Steel Corporation , a New Jersey corporation , is engaged in nation- wide operations in various industries . Some of these operations are conducted by its Tennessee Coal & Iron Division and we are concerned here with one such operation , a zinc mine at Jefferson City, Tennessee . During 1957 the Corporation shipped goods valued at over $100,000 from the zinc mine directly to points out- side Tennessee . There is no dispute , and I find, that the Corporation is engaged in commerce within the meaning of the Act. II. THE UNION United Steelworkers of America, AFL-CIO, is a labor organization admitting to membership employees of the corporation. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement The complaint alleges, the answer admits, and I find, that (1) all production and maintenance employees at the zinc mine, excluding office clerical and office janitorial employees, watchmen and/or guards, professional employees, and super- visors as defined in the Act, constitute an appropriate bargaining unit; and (2) on December 23, 1957, the Regional Director certified the Union, effective on Janu- ary 1, 1958, as the exclusive bargaining representative of all employees in the unit. During January and February 1958, at bargaining sessions, the Corporation re- jected the Union's demand that the latter be shown data to substantiate the Corpo- ration's claim that the zinc mine was being operated at a monetary loss and that the mine likely would be closed if the Union's demands were met. The General Counsel and the Union contend that the Corporation's refusal to produce the sub- stantiating data was a refusal to bargain in good faith under the doctrine of various cases including N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149. On the other hand, the Corporation contends that its rejection of the Union's wage demands was not based upon a plea of inability to pay, but unwillingness to pay; that, therefore, the Union was not entitled to see substantiating data; and that this case is governed by the second portion of the Board's Decision in Pine Industrial Relations Com- mittee, Inc., et al., 118 NLRB 1055 at 1059-61. The facts will be recited. B. The facts The particular property of the United States Steel Corporation which is involved here is a zinc mine at Jefferson City, Tennessee. The zinc mine is the only mine of its kind which is operated by the Corporation. The ore therefrom is not used in any of the Corporation's businesses but is sold to other zinc mining concerns. The Union represents employees at various operations of the Corporation and, on January 1, 1958, following a consent election, it became the representative of employees at the zinc mine, succeeding Oil, Chemical & Atomic Workers. On January 7 and 16, representatives of the Corporation, who were headed by J. H. Williamson, met in negotiations with representatives of the Union, who were headed by M. C. Weston. An impasse developed, however, and negotiations were suspended. At the solicitation of the Mediation and Conciliation Service, the representatives met again on February 24 but this meeting also was unfruitful on the main point in issue and negotiations ended. The principal facts surrounding the negotiations are undisputed although, as reflected in the next footnote, there are a few disagreements whether a negotiator made a particular point at one meeting or another. Since these disagreements are relatively minor, the negotiations of January 7 and 16 will be discussed together in large measure. First, however, it should be noted that on January 7, when it developed that there was substantial opposition to the Union's demands, William- son proposed that the Corporation and the Union execute agreements with identi- cal terms and conditions of employment as had existed in agreements between the Corporation and the employees' earlier representative, Oil, Chemical & Atomic Workers. There was accord to some extent and, at the January 16 meeting, pen- sion and insurance agreements, to expire in 1959, were executed. A third agree- ment, which continued in effect for about 1 month the wage rates and certain other provisions of a basic agreement with the predecessor union, also was executed. At the opening of negotiations on January 7, Weston, speaking for the Union, said that the Corporation was aware of the Union's policy of seeking uniform TENNESSEE COAL & IRON DIVISION, U.S. STEEL CORP. 1523 benefits for the Corporation's employees whom it represents and he asked that the approximately 200 employees at the mine become a part of the United States Steel "family." Weston then gave detailed proposals which amounted to a request that the employees at the mine be given the terms and conditions of employment, including wage rates, insurance, pensions, and supplementary unemployment com- pensation, as are set forth in contracts between the Union and the Corporation covering employees at iron ore mines and limestone quarries in Alabama. Wil- liamson, for the Respondent, replied that the Union's demands, if granted, prob- ably would result in the mine's being closed. There followed, in the approxi- mately 3'/a hours of negotiations on January 7 and 16, a number of arguments and counter arguments, not all of which can be stated in chronological order. Williamson said that the zinc mine was being operated at a loss and that the Corporation was unwilling to add to that loss. He said too that the mine was being operated on a month-to-month basis. The Union's representatives expressed disbelief that the mine was being operated at a loss, asserting that recently the supervisory personnel had been given large increases in pay, that the wage scale for the production and maintenance employees was 44 cents below the national average in the zinc industry, and that the ore being mined was of a high grade so that, in view of these facts, it was inconceivable that the mine was losing money. Williamson asserted that the increased earnings of supervisory personnel were due to an incentive plan and that the Union's predecessor, Oil, Chemical & Atomic Workers, had rejected an incentive plan for the production and maintenance em- ployees. Moreover, he disagreed that the mine's employees were being paid at 44 cents hourly below the national average in the zinc industry. The Union's representatives argued, however, that the cost of granting the Union's demands for 200 employees would not be "a drop in the bucket" to United States Steel Corpo- ration, that the cost could not be found "on the books" of the Corporation, that the cost largely "could be written off in taxes," and that it was not unusual for one branch of a business organization to make up the losses of another branch. Williamson said, on the other hand, that the question whether to operate the mine at a loss was a "management problem," that the Corporation was engaged in many businesses, and that each business stood on its "own feet in regard to wage rates and other matters." Williamson said also that the mine's employees were being paid as well or better than employees of other local zinc mining companies, and the Union expressed disagreement. Williamson said further that the zinc industry was in a poor economic condition, and Weston answered that the Union was aware of the industry's condition and would take the fact into consideration in bargaining. Williamson said too that the Corporation' s zinc mining operations were a minor part of the industry, that the Corporation sold the ore to other companies in the industry, and that the granting of the Union's financial demands might upset the Corporation's relations with the other companies and thereby result in the loss of places to sell the ore. With this factual situation, we now approach our legal issue . On January 16, if not also on January 7. Weston said that he did not believe that the mine was being operated at a loss and he asked the Corporation to produce data to support its claim of losses.' Williamson replied that the Corporation was not asserting an inability to pay the amounts involved in the Union's demands, but was assert- ing an unwillingness to add to the losses already being sustained in operating the mine,, and that since inability of the United States Steel Corporation to pay was not in issue, the Union was not entitled to see the financial data about the mine. The Corporation's refusal to produce such data gives rise to this case. On January 16, after the meeting ended, Weston wrote to Williamson, saying that (1) although Williamson had said that the Corporation was financially able to meet the Union's demands, he had said also that the zinc mine was being oper- ated at a loss and that any increase in the cost of operation might result in closing the mine; (2) the mine's employees were being paid 44 cents per hour less than the average rate for the zinc industry, that the supervisory personnel recently had received pay increases exceeding $100 per month and, therefore, the Union doubted seriously that an accurate financial statement would support the Corpora- tion's claim that the mine was being operated at a loss; and (3) the Corporation in effect had pled an inability to pay and, in accord with the Union's rights under the Act, the latter demanded a financial statement for the mine. 1 At the hearing the Corporation asserted, contrary to the General Counsel's contention, that on January 7 the Union did not ask to be shown such data. Since, however, the Corporation agrees that on January 16 the Union did ask to see such data , I do not believe that the dispute need be resolved, but it may be noted that the Corporation's answer admits that on January 7 the Union made such a request. 1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 24 Williamson replied , enclosing financial statements for the whole United States Steel Corporation which shed no light on the issue whether the mine was unprofitable, and saying that the Corporation was quite able to meet the Union's demands and that it had not pled an inability to do so but, instead, an unwillingness to do so. The letter said also: What we have been trying to express to the union in these negotiations is that the present conditions in the zinc mining industry do not in the company's judgment warrant incurring an increase in costs at this time. Whether the company would continue to mine zinc with increased costs is a matter of business judgment based upon many complex factors, only part of which are involved in or affected by these negotiations. Many of these factors are changing from day to day and hence the company cannot tell definitely at any given time whether it would be desirable to maintain operations at a future date or not. Your own discussions in the negotiating sessions concern- ing foreign imports and talks to members of Congress about relief for the zinc industry indicate that you are not entirely unfamiliar with the breadth of the factors involved in making management decisions as to whether to continue operations or to close down in light of future prospects. It may be noted that while Williamson wrote in the letter of a possibility that the Corporation would shut down the mine, he did not write of something else which he acknowledges having said orally in negotiations, namely, that the mine was being operated at a loss and that it stood on its "own feet in regard to wage rates and other matters." On February 24, at the solicitation of the Mediation and Conciliation Service, the representatives met once more. The Corporation again refused to produce a financial statement in support of its claim that the mine was unprofitable and Weston, for the Union, said that Williamson was being unfair to put the Union's representatives in a position where they could not convey needed information to the employees, that the only way in which to test the accuracy of the Corpora- tion's claim was to close the mine by a strike, in which event, if the claim proved to be a truthful one, the mine might remain closed and the employees would have lost their jobs. Weston reiterated that the Union's representatives were entitled to have probative information to relay to the employees. During this meeting the Union also made detailed and revised demands which, in the words of William- son, were "considerably less" than the original demands, but Williamson's answer was that no demand would be met if it involved an increase in the cost of oper- ating the mine. He also reiterated some reasons given at the earlier meetings for refusing the Union's original demands. Williamson offered a written basic con- tract which in most respects was like the one that had been in effect between the Corporation and Oil, Chemical & Atomic Workers and which contained no new monetary benefits for the employees. The Union rejected the proposed contract. As recited above, on January 16 the representatives had signed three agreements. 'The third of those agreements, the basic contract, had expired by February 24 so .that, as of the date of the final meeting, there was no basic contract in effect. The Union offered to continue the basic contract on a day-to-day basis, saying that it intended to file a charge with the Board, and there was discussion of a notice to the Corporation if the employees should decide to strike. The meeting ended with Weston's remark that "we'll see you in court. I would like to try everything else before we shut [the mine] down [by a strike]." Following the last meeting, the Corporation gave two cost-of-living increases to the employees after informing the Union of its intention to do so. Those in- creases were based upon the formula which had been a part of the Corporation's contract with Oil, Chemical & Atomic Workers. C. Conclusions At this point it should be noted that we do not have any contention that the data requested by the Union was too broad in scope or that its compilation would have placed an undue burden upon the Corporation. Nor is there any contention that the Union's request was not made in good faith. As we have seen , the data requested was limited to the claim advanced by the Corporation that the mine was being operated at a loss and that any increase in costs likely would result in a decision to close it. The Corporation refused to produce the data on the ground that the Union was not entitled to see it. The General Counsel asserts that this case is governed by Truitt, supra, in which the Court upheld a determination of the Board that "an employer has not bar- gained in good faith where the employer claims that it cannot afford to pay higher TENNESSEE COAL & IRON DIVISION, U.S. STEEL CORP. 1525 wages but refuses requests to produce information substantiating its claim." On the other hand , the Corporation places reliance upon Pine Industrial, supra, where the Board held that "the employer's ability to pay must be brought into issue before a refusal to furnish information relating thereto can be found to be viola- tive of the Act" and that the employers in that case "never claimed inability-to- pay" the wage demands of the labor organizations . We have seen here that the Corporation never said to the Union in precise words that it was financially unable to meet the demands. Instead , the Corporation said that it was able but unwilling to meet them . But the Corporation said more than just that , and our initial ques- tion is whether, realistically and in substance, the Corporation pled inability to pay. As set forth above, the Corporation listed various reasons for its refusal to make any monetary concession to the mine 's employees , namely, the mine was being operated at a loss, the Corporation would not increase the loss, to grant the Union's demands likely would cause the mine to be closed, the mine had to stand on its own feet instead of being supported by any of the Corporation's varied businesses , the employees were being paid wages equal to or better than those received by employees of other zinc mines nearby, the zinc industry was in poor condition, and the Corporation's operations were a small part of that industry and the Corporation would not jeopardize its relationships with customers of the mine by establishing conditions of employment which were well beyond the scale in the area. Of those reasons, the one which received major attention and which brought an end to negotiations was the Corporation's unsupported assertion that the mine was being operated at a loss and that an increase in its costs likely would cause it to be closed. According to the General Counsel: when the Respondent admittedly told the Union's negotiators that the zinc mine was operating at a loss, that the employer would not increase that loss by giving wage increases [and other benefits], that to grant the requested wage increase would result in the mine being shut down, and that the amount of the requested wage increase could not be absorbed by more profitable units' of Respondent's operations because "each operation had to stand on its own feet," Respondent has most effectively entered a plea of financial inability-to- pay the requested wage increases. According to the Union: The Company was, of course, free to bargain and to make its decisions on the basis of the economic position of the United States Steel Corporation. The Union urged that it should [when the Union presented the original pro- posals that the mine's employees receive the same benefits as employees else- where]. But the Company's unalterable position was that decisions concerning the wages to be paid at this mine had to be made just as though it were a separate business. Nothing could be given because of the mere coincidence that the mine was owned by United States Steel Corporation. Everything had to be justified on the basis of the zinc mine. But the minute the union asked for the supporting data necessary for intelligent bargaining on that basis, the Company changed its position-the only relevant economic data, the Company said, was as to the ability to pay of the whole United States Steel Corporation. On the other hand, the Corporation argues: In order to rule that the Respondent plead financial inability to pay at the Jefferson City Zinc Ore Mine, the Trial Examiner will have to do something that the Board has never done before, namely, find that a corporation which operates many plants and which admittedly was itself financially able to pay, plead financial inability at one operation , because it alleged during negotia- tions that the operation under discussion was losing money. It is the conten- tion of the Respondent that this finding cannot validly be made, for to do so, the Trial Examiner would have to look solely at one minute segment of the corporation's business, closing his eyes to the corporation as a whole. Palpa- bly, this test of financial ability to pay is erroneous, for it is the corporation considered in toto, which is, or is not, financially able to pay. I am in accord with the contentions of the General Counsel and the Union. It is unrealistic, I believe, to say that the Corporation did not in effect plead in- ability to pay. The ore which is mined by the employees is not used in the Corporation's other businesses; it is sold. Thus, the mine is operated as a separate enterprise, and when the Corporation gave as a reason for rejecting the Union's monetary demands the alleged unprofitable operation of the mine, the Corporation in effect pled inability to pay. If this conclusion is founded in a "look solely at one minute segment of the corporation 's business" in disregard of "the corporation 1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a whole," the short answer is that I am looking precisely where the Corpora- tion looked when it gave its reasons for refusing new monetary benefits to the mine's employees. I conclude further that even if, under the circumstances set forth, the Corpora- tion's "unwillingness" to pay were not to be equated with "inability" to pay, the Truitt case nevertheless is applicable here and that the Corporation's reliance upon Pine Industrial is misplaced. In Truitt the employer said that it was financially unable to pay the increase requested, in part because of business statistics which it alone possessed. Here the Corporation said that it was financially unwilling to pay any increase, in part because of business statistics which it alone possessed. I see no material difference from the standpoint of whether the Corporation has fulfilled its obligation to bargain collectively. Surely the employees here are in no different position than the employees of Truitt in having to determine blindly whether to accept the employer's unsupported assertions or to reject the assertions and to engage in a strike which the Act seeks to prevent and which might, if the unsupported assertions be true, result in loss of jobs by closing of the mine. Surely too the right which the Act gives to employees to see financial data possessed only by their employer does not depend upon the employer's financial inability, as dis- tinguished from financial unwillingness, to pay increased benefits when, in either instance, an obstacle to informed bargaining has been raised by the employer's un- supported assertion that the product of the employees' labor is not sufficiently profitable to warrant increased benefits. As the Court said in Truitt, "If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy." Moreover, the information requested was clearly necessary to enable the Union to properly and intelligently perform its bargaining functions. As the Board said in B . L. Montague Co., 116 NLRB 554, 557: ... The Union in turn could not determine whether the Respondent' s claims were honest claims. It could not intelligently decide whether to continue to press for a wage increase or to make an alternative request. It was forced to negotiate in the dark without regard to the economic realities. It was not even able to make an informed report to its own members as to the merits of their demands. It was thus handicapped in carrying out its responsibility to inform and advise the employees whom it represents. We turn to the Pine Industrial case, upon which the Corporation relies, and to that portion of the Board's Decision in which it held that the employers were not required to produce certain sales and production data requested by the labor organi- zations. There the employers had pled "inadvisability," rather than "inability," to pay the wages demanded. Unlike the situation here where the Union demanded that the Corporation offer proof of the Corporation's claim that the mine was being operated at a loss, in Pine Industrial the labor organizations' request for the data was made in advance of negotiations with some 600 employers including the particular respondents in the case. The data was requested, not to ascertain the bona fides of any claim made by any employer but in order to enable the labor organizations to determine what size wage demands to make and thereafter, if the occasion arose, to refute any rejection of a demand because of inability to pay. The Board said: In deciding this case we have not been unaware of the consideration that possession at the outset of bargaining of the facts about the employer's eco- nomic position may be helpful to the union in tailoring its wage demands to what the employer can reasonably pay and thereby make bargaining, perhaps, more realistic and successful. But our duty under the Act is here to deter- mine whether the obligation of good-faith bargaining has been met rather than to establish ideal bargaining conditions. . . . Consequently. if we were to hold that it is had-faith bargaining for an employer to withhold from a union at the outset facts about its economic position, whether or not a claim of inability to pay has been made, the result would be that in every wage case the em- ployer would automatically have to disclose his financial status in whole or in part upon request. We would thus be doing by indirection what. under the Truitt decision, we may not do by direction. That we are not willing to do. [Emphasis supplied.] Moreover, in Pine Industrial, the labor organizations, having been unable to obtain the reauested data from the respondents, asked for a wage increase of 121/z cents per hour. The respondents rejected this request, said the Board, upon the ground of "'inadvisability' in view of the market and economic trends within the lumber industry as a whole, and cited some general data by way of substantiating this TENNESSEE COAL & IRON DIVISION, U.S. STEEL CORP. 1527 position." According to the Trial Examiner in that case, "Respondents, it may be noted, were never confronted with a demand to prove that they could not afford these costs items." Here, on the other hand, the Union expressed disbelief that the mine was being operated at a loss, asserted that there was evidence to the contrary, and asked the Corporation to prove its claim. Obviously, the facts in Pine Indus- trial differ substantially from those here and the Board's disposition of the particu- lar issue there is not an applicable precedent. The next point for determination is whether the fact that the Corporation ad- vanced several reasons for rejecting the Union's monetary demands relieved it of any obligation to support by facts and figures its claim that the mine was being operated at a loss and likely would close if there were an increase in costs. Inso- far as I am aware, there is no case which holds that the Truitt doctrine is appli- cable only where an employer advances inability to pay as the sole reason for denying a labor organization's monetary demands. In various cases, additional reasons were advanced but the obligation to support a claim nevertheless remained. Cf. B. L. Montague, supra. I agree with the General Counsel that: No Board decision, and no court, has even hinted that such obligation exists only if the assertion whose accuracy is questioned is the only issue in the bargaining. To adopt such position would completely destroy the doctrine that he who asserts in bargaining negotiations must upon request attempt to substantiate his statement, especially where, as here, the truth of the matter is within the sole knowledge of the asserter .. . And I agree with the Union that: An employer who asserts that he will not grant a wage increase because of the economic condition of the operation cannot refuse to support the assertion just because he also throws in a lot of additional reasons. For the critical fact which the union must know [in order to bargain intelligently] is whether his assertion as to the economic facts peculiarly within his knowledge are true, as Mr. Weston [for the Union] so clearly stated in his testimony. We come to the final issue, whether, under all the circumstances, it can be said that the Corporation did not bargain in good faith. In the Truitt case, the Court said: We do not hold, however, that in every case in which economic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to substantiating evidence. Each case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met. With this rule in mind, the Corporation points out that it offered to execute with the Union contracts like those formerly existing between the Corporation and Oil, Chemical & Atomic Workers and that, to the extent that the Union accepted these offers, contracts were executed. Thus, there was a basic labor agreement of a few weeks duration and there are pension and insurance agreements to expire in 1959. The Corporation points out too inter alia that it also processed grievances with the Union, a few of which were arbitrated, that it granted two cost-of-living increases, that it always was willing to meet and to discuss matters with the Union, and that it discussed the Union's proposals which it rejected. The Corporation asserts fur- ther that it was "willing and ready at all times to bargain on all issues" including its "unwillingness to increase costs." Of course, the Union sought to bargain concerning the Corporation's "unwilling- ness to increase costs." But it was the Union's inability to discuss that matter intelligently, due to the Corporation's refusal to substantiate a claim, which caused the breakdown in negotiations. The Corporation's refusal was based upon the ground that the Union was not entitled to see the substantiating data. But we have seen that in Truitt the Court said: "If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some proof of its accuracy." The Court said too: "Section 204(a)(1) of the Act admonishes both employers and employees to `exert every reasonable effort to make and maintain agreements concerning rates of pay, hours and working con- ditions.' In their effort to reach an agreement here both the union and the com- pany treated the company's ability to pay increased wages as highly relevant." In our case the Union and the Corporation treated "as highly relevant" the ability of the mine to support additional benefits to the employees. I agree with the General Counsel's assertion that the obligation to produce economic data encom- passes the obligation to remove from the path of free collective bargaining the 1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obstacles of one's own creation . Here real bargaining became impossible with the Corporation 's refusal to divulge data which , it insisted , precluded monetary changes in the employees' working conditions . Applying here a holding of the Court in Truitt : "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 . . . without making the slightest effort to substantiate " it, that the opera- tion in which the employees are engaged is too unprofitable to warrant improved wage or other monetary working conditions. For the reasons stated, I find that the Company refused to bargain in good faith in violation of Section 8(a)(5) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. In particular, I shall recommend that, upon request by the Union , negotiations between it and the Respondent be renewed and that the Respondent furnish to the Union such record information and other probative material as will substantiate the Respondent's claim that the zinc mine has been operated at a loss and likely would be closed if the employees were granted improved monetary working conditions. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All the production and maintenance employees of the Respondent 's Zinc Mine Works at or near Jefferson City, Tennessee, excluding office clerical and office janitorial employees , watchmen and/or guards , professional employees , and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union, on January 1, 1958 , was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive represen- • tative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in'unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By interfering with , restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in- unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Mastic Tile Corporation of America , Petitioner and Inter- national Chemical Workers Union Local No. 1, AFL-CIO. Case No. f1-RM.-5. Febi'ua'y 18, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Norman H. Greer, 122 NLRB No. 178.