Before HASTIE and FORMAN, Circuit Judges, and KIRKPATRICK, District Judge.
FORMAN, C. J.: Curtiss-Wright Corporation, Wright Aeronautical Division, Wood-Ridge, New Jersey (hereinafter called Employer) has petitioned to set aside the Order of the National Labor Relations Board (hereinafter called Board) of August 7, 1963. The Board has filed a cross-petition to enforce the Order.
For a number of years International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (AFL-CIO), through its Local Union 300 (hereinafter together called Union) has been and is now the representative for purposes of collective bargaining of salaried office, clerical and engineering employees, exclusive of supervisory, confidential and administrative employees*fn1 at plants of the Employer in the vicinity of Paterson and Wood-Ridge, New Jersey.
The facts are not in dispute.*fn2 In 1957 the Union estimated that there were 4500 to 4700 employees in the bargaining unit which it represented. Those excluded numbered about 2100. Over the years the proportion changed until those excluded numbered more than those in the unit. The Union had become apprehensive for it believed that the change was caused in part at least by employees classified as administrative actually doing work which should have been allocated to those in the bargaining unit. With this situation in mind, in April 1962, the Union requested the Employer to furnish it with a summary of job classifications, and/or titles of confidential and administrative employees of the Employer; of job descriptions and of duties and functions of the total number of confidential and administrative employees in each such job classification and/or title, as well as the regular rates of pay, including the grade or range for each such classification or title.*fn3
The Employer responded to the April request of the Union on May 9, 1962 by advising that it had given close attention to the administrative and confidential positions excluded by the contract; that it was then reviewing them for corrections of exclusion and would continue such review in the future stating that any incorrect exclusions that were found would be communicated to the Union and corrections made. The Employer, however, declined to furnish the requested information on the ground that a compilation thereof would be in such volume as to be unduly burdensome and not pertinent to pending grievances, administration by the Union of the contract or for the purpose of future negotiations.
On June 18, 1962, the Union filed an unfair labor practice charge against the Employer, the basis of which was that it had refused to disclose a summary of job classifitions, titles, job descriptions, rates of pay, hours, grades and ranges, and numbers of confidential and administrative employees, whereby it violated Section 8(a)(1) and (5) of the National Labor Relations Act (hereinafter called the Act).*fn4 This resulted in the issuance by the Board of a complaint on September 28, 1962, and an amended complaint on November 20, 1962.
The amended complaint alleged, among other things, that on or about April 2, 1962, September 10, 1962, and at various other times the Union had requested the Employer to furnish it with data heretofore set forth and that the Employer had failed and refused to comply with the request. The amended complaint claimed that the requested information was required by the Union to enable it to effectively police and administer the contract, to prepare it to process grievances and to bargain for a new contract intelligently.
Between the filing of the charges of June 18, 1962 and the date of the issuance of the amended complaint, November 20, 1962, negotiations had been proceeding between the Employer and the Union which resulted in the execution of a new three year contract on October 19, 1962 containing substantially the same provisions pertinent to the issues involved herein as were found in the preceding contract, which ran from its effective date, September 18, 1961 and expired September 30, 1962.
While the proceedings under the amended complaint were in process, but before hearing, the Employer addressed a letter dated December 14, 1962 to the Regional Director of the Board enclosing two copies of a list of the titles of the administrative jobs and the names of the individuals holding them. It expressed its understanding that one copy of the list would be forwarded to the Union. The submission was made by the Employer with the reservation that it neither be considered as a precedent nor as a waiver or abandonment of the Employer's rights or defenses.
On January 15, 1963, the Union narrowed the scope of its inquiry regarding the excluded personnel of the Employer and requested job descriptions and other summaries of duties performed under 80 specified job titles. Subsequent thereto the Employer met with the Union on several occasions to discuss the Union's inquiries concerning the job classifications cited in the Union's letter of January 15th. On these occasions the Employer disclosed the job descriptions, duties and functions of the job under discussion and arrived at some adjustments. Except in two specific instances, however, it declined to disclose the job evaluation factors.*fn5
On February 21, 1963, the Union again addressed the Employer asking for certain other information including the wage rates, and economic benefits other than wages received for each job classification or title. On March 12, 1963, the Union made an oral request to the Employer for a list of job evaluation factors for job classifications in addition to the job descriptions previously requested.
The controversy based on the November 20, 1962 amended complaint went to hearing before a Trial Examiner of the Board on July 8, 1963. After taking evidence he rendered his Intermediate Report*fn6 in which he concluded that the amended complaint could not be sustained in so far as it rested on the request of the Union for data concerning confidential employees. The Trial Examiner found that the record did not reflect that the Union had good cause to suspect misclassification of confidential employees and, therefore, part of the requested data had not been shown to have been reasonably relevant to the Union's role as bargaining representative. The Trial Examiner further found that the Union's "general shotgun" request, as he phrased it, in its letters of April 2 and September 10, 1962 was inappropriate because the facts known to the Union would have enabled it to have made more limited and specific requests.
He concluded, however, that by withholding certain specific data requested by the Union subsequent to the filing of the amended complaint of November 20, 1962 with respect to the job evaluation factors and wage rates for specific administrative jobs the Employer had committed an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7)*fn7 and Section 8(a)(1) and (5)*fn8 of the National Labor Relations Act.*fn9
The Employer thereupon filed with the Board its exceptions to the Intermediate Report and Recommended Order of the Trial Examiner together with arguments and authorities in support of said exceptions. The Union did not except to rulings adverse to it. A panel of the Board filed its decision in which it stated that it had considered the Intermediate Report of the Trial Examiner, the exceptions, briefs and the entire record in the case. On review of the rulings of the Trial Examiner it found that no prejudicial error was committed and adopted the findings, conclusions and recommendations of the Trial Examiner. The Board adopted the Recommended Order of the Trial Examiner as its Order. Thereupon the Employer sought this review of the Board's Order contending that the amended complaint ...