Opinion
No. 21074.
November 30, 1964.
Duane R. Batista, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washington, D.C., for petitioner.
Keith Nelson, Otis E. Nelson, Nelson, Montgomery Robertson, Wichita Falls, Tex., for respondent.
Before BROWN and WISDOM, Circuit Judges, and ESTES, District Judge.
In this proceeding to enforce the Board's order finding the Employer guilty of a § 8(a)(5) violation for failure to bargain by declining to furnish financial information, only two questions exist, neither of which presents any distinctive propositions of law. The first is the sufficiency of the evidence, NLRB v. Truitt Manufacturing Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027, that the employer was claiming financial inability to meet the Union wage demands. The other was the question whether the Union's reduced wage demand made a month later constituted a waiver. As to the first, it was a pure fact question and ends there. As to the second, bearing in mind the requirement that waiver of rights under the Act must be clearly established, NLRB v. Item Co., 5 Cir., 1955, 220 F.2d 956, 958-959; cf. Sinclair Refg. Co. v. NLRB, 5 Cir., 1962, 306 F.2d 569, 575, the Board's rejection of waiver was likewise sufficiently founded.
Enforced.