(concurring in part and dissenting in part).
While I differ with the majority and agree with the Board and with the examiner that evidence of the conversation between Megginson and Caldwell and that between Winkler and Herrin was relevant in support of the allegations of interference, restraint and coercion made in general terms in the complaint, I do not consider our difference on that score material because I concur with the majority that those conversations do not constitute unfair labor practices.
I concur in all of the other parts of the opinion except the part relating to the bargaining conference in July, 1949. I think that the Board correctly appraised respondents’ conduct at that final conference as the last in a long series of bad faith negotiations. As I understand the Board’s opinion, 96 N.L. R.B. 1263, especially the part relating to the July, 1949 conference, the Board gave no indication of an intention to arrogate to itself any authority to compel an agreement on any provision of a contract. Instead, it called attention to respondents’ illegal insistence upon a performance bond,1 to its refusal to furnish the financial information essential to further bargaining,2 and to the background of six previous fruitless conferences.3 Agreeing as I do with the Board’s conclusion that Respondents’ conduct at the July, 1949 conference constituted a violation of Section 8(a) (5), I respectfully dissent as to the part of the opinion dealing with that conference.
Rehearing denied: RIVES, Circuit Judge, dissenting.
. “ * * * tlie Respondents’ insistence concerning the performance bond had been the source of the impasse at the June, 1948 conference and in the subsequent correspondence. At the July, 1949 conference, the Respondents refused to state that they were not still insisting on such a performance bond as a condition precedent to an agreement. Instead, by asserting that the cases holding such insistence to be unlawful were not controlling the Respondents clearly revealed that a performance bond was still a condition precedent to an agreement. By such insistence, we find that the Respondents violated Section 8(a) (5) and (1) of the Act.”
The Board cites in support of that proposition the following: “See Tower Hosiery Mills, 81 N.L.R.B. 658, enforced 4 Cir., 180 F.2d 701, certiorari denied 340 U.S. 811, 71 S.Ct. 38, 95 L.Ed. 596. Cf. International Brotherhood of Teamsters, etc., (Conway’s Express), 87 N.L.R.B. 972.” See also, N. L. R. B. v. Taormina, 94 N.L.R.B. 884, enforced 5 Cir., 207 F.2d 251; cf. N. L. R. B. v. Dalton Telephone Co., 5 Cir., 187 F.2d 811, 812.
. “ * * * the Union clearly brought the wage issue into focus by its demand for an increase, and the Respondents’ answer referred to their inability to pay such increase. The Union was therefore . entitled to financial information upon which the Respondents based their position, in order intelligently to proceed with further bargaining on this issue. The Respondents’ refusal to furnish this information so essential to further bargaining by the Union was per se violative of the Act.”
Again, I think the Board’s position is in accord with well settled law. N. L. R. B. v. Jacobs Mfg. Co., 2 Cir., 196 F.2d 680, 684; N. L. R. B. v. Yawman & Erbe Mfg. Co., 2 Cir., 187 F.2d 947, 948-949; N. L. R. B. v. J. H. Allison & Co., 6 Cir., 165 F.2d 766, 770, 3 A.L.R.2d 990; Aluminum Ore Co. v. N. L. R. B., 7 Cir., 131 F.2d 485, 487, 147 A.L.R. 1.
. “The July, 1949 conference was not the first, but the seventh of a series of conferences extending over a period of over two and one-half years. During this period, as the Trial Examiner himself recognized, the Respondents had engaged in mere surface bargaining and had amply demonstrated their lack of good faith. Certainly at this seventh conference, the Union was entitled to specific answers from the Respondents as to the latter’s position on bargaining issues.”
I think that the Board properly considered the previous conferences as background evidence. F. T. C. v. Cement Institute, 338 U.S. 683, 705, 68 S.Ct. 793, 92 L.Ed. 1009. See also, N. L. R. B. v. Clausen, 3 Cir., 188 F.2d 439, 443; cf. Local 74, United Brotherhood of Carpenters & Joiners of America v. National Labor Relations Board, 341 U.S. 707, 713-714, 71 S.Ct. 966, 95 L.Ed. 1309.