Compliance Status of Plaster Tenders

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All maintenance, production, and plant clerical employees of Respondent em- ployed at its Stratford plant, exclusive of executive, managerial, confidential, profes- sional, technical and office-clerical employees, department confidential clerks, time- study men, guards , watchmen, and all supervisors as defined in Section 2 (11) of the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since December 28 , 1952, the Union has been , and is now, the ex- clusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing on July 10, 1953, and at all times since, to furnish relevant and material information as requested by the Union as described heretofore the Re- spondent has refused to bargain collectively with Local 1010, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, and has thereby engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] COMPLIANCE STATUS OF PLASTER TENDERS, CONSTRUCTION, GENERAL AND SHIPYARD LABORERS' LOCAL UNION #802, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL. February 18,1955 Administrative Determination of Compliance Status and Order As part of the administrative investigation of the compliance status of Plaster Tenders, Construction, General and Shipyard Laborers' Local Union #802, International Hod Carriers, Building and Com- mon Laborers' Union of America, AFL, herein called Local 802, and in connection with a notice to show cause, a hearing was held in which Local 802 appeared and participated. Thereafter, the hearing officer issued a report ruling on motions made at the hearing by Local 802 and finding on the record there made that Local 802 had not complied with Section 9 (f) and (g) of the Act. George A. Yager, Acting Regional Director for the Twenty-first Region, National Labor Rela- tions Board, reviewed the report of the hearing officer and on the basis thereof issued on October 14, 1954, a report and order, a copy of which is attached hereto, determining that Local 802 has not been in com- pliance with Section 9 (f) and (g) of the Act for the years 1948 through and including 1953, and ordering in effect withdrawal of the letters of compliance issued during that period. Exceptions to the report and order were filed with the Board within the time provided therefor. The Board has considered the exceptions and the entire adminis- trative record in this matter, and hereby makes the following determination : 111 NLRB No. 104. COMPLIANCE STATUS OF PLASTER TENDERS 743 Section 9 (f) (B) (2) and (g) of the Act provides in pertinent part: (f) No investigation shall be made by the Board of any ques- tion affecting commerce concerning the representation of employ- ees, raised by a labor organization under subsection (c) of this section, no petition under section 9 (e) (1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless such labor organization . . . (B) can show that prior thereto it has- . . . (2) furnished to all of the members of such labor or- ganization copies of the financial report required by paragraph (1) hereof to be filed with the Secretary of Labor... . (g) It shall be the obligation of all labor organizations to file annually . . . reports bringing up to date the information re- quired . . . and furnished to its members annually financial re- ports in the form and manner prescribed in subsection (f) (B). No labor organization shall be eligible for certification under this Section . . . unless it can show that it . . . has complied with its obligation under this subsection. Pursuant to the above requirements, Local 802 filed annually with the Board for the years 1948 through 1953 on forms NLRB-1085 statements, certified to be true, that : The Union has given copies of the report to all its members in the following way(s) : We posted a copy in a conspicuous place at the headquarters and meeting hall of the local Union, and an- nounced at a regular meeting that copies were ready for distri- bution to all members. On the basis of these statements, among others, Local 802 received let- ters of compliance and as a result received certain benefits under the Act. In substance, Local 802's exceptions assert (1) that the Board is without jurisdiction (a) because it may not question the compliance statements filed by the Union and therefore has no authority to in- stitute this proceeding, and (b) because the Union is not in interstate commerce; (2) that there was no factual basis for the allegations sup- porting the show cause order; (3) that the report and order issued by the Regional Director is indefinite and vague; and (4) that the matter is now moot because Local 802 is presently willing to take whatever steps are necessary to come into compliance. As support for its contention that the Board may not question the truth of statements filed for compliance purposes, Local 802 relies upon the Fur and Leather Workers case.' As that case involved affi- davits filed under Section 9 (h) of the Act, we do not regard the IFur and Leather Workers v. Farmer, 117 F. Supp 35 (D C, D C.), (1953). Cert. de- nied 347 U S 943 (1954). 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD court's finding therein applicable to statements requested by the Board in determining compliance with Section 9 (f) (B) (2) and (g) of the Act. As a condition for obtaining certain benefits, the latter provi- sions, unlike Section 9 (h), impose upon a labor organization an affirmative obligation to do something other than a ministerial act. The stated obligation of any given union under Section 9 (f) and (g) to "show" to the Board that it has furnished financial reports to its members also necessarily obligates said union to do so in fact. As a matter of administrative convenience, the Board regards the filing of NLRB-1085 indicating compliance with Section 9 (f) (B) (2) and (g) as a prima facie showing of compliance with the statute. But the mere act of filing the prescribed form, irrespective of the truthfulness of the statements made, does not, as it cannot, per se, satisfy the statu- tory requirement that the Union must have furnished its members copies of its annual financial reports, and must also show to the Board that it has satisfied its statutory obligation as a condition precedent to valid compliance status. Thus, any labor organization which has obtained benefits under the Act by filing false statements on Forms NLRB-1085, has perpetrated a fraud upon the Board, thereby enabling itself to obtain benefits under circumstances specifically precluded. Consequently, in adminis- tering Section 9 (f) and (g), the Board deems that it has a continuing obligation under the Act wherever the truthfulness of a Union's state- ment of compliance therewith is seriously questioned, to determine the merits of the issue raised. Additionally, if it is thereafter demon- strated that a union already accorded compliance status by virtue of its voluntary assertions on Forms NLRB-1085, has in fact failed to fulfill its statutory obligations, the Board also deems it its obligation to protect its processes from such fraudulent abuse and to prevent labor organizations from retaining benefits which they were never entitled to under the Act. Inasmuch as Local 802 was accorded compliance on the basis of ex parte representations which have since been ques- tioned, the Board properly discharged its obligation by conducting a hearing after due notice to determine whether Local 802 had in fact complied with the statutory requirement of Section 9 (f) and (g). We also find no merit in Local 802's assertion that, because in its business operations it is not engaged in interstate commerce to an ex- tent which would meet the Board's announced standards for assert- ing jurisdiction, the Board has no authority to institute this proceed- ing. The Board's authority to determine the compliance status of a union does not depend upon whether the union itself is engaged in interstate commerce as Local 802 would read Section 1 (b) of the Act,' 2 Section 1 (b) reads in part : "It is the purpose and policy of this Act , in order to pro- mote the full flow of commerce , . . to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, .. . COMPLIANCE STATUS OF PLASTER TENDERS 745 but rather arises from the Board's obligation to administer the Act and to conduct "hearings and investigations, which in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10. . . ." 3 This is an administra- tive proceeding to determine whether a union which has petitioned the Board for a declaration of compliance status has met the statutory requirements prerequisite to compliance. Such a determination only relates to the issue of a union's privilege to participate for its own advantage in other statutory proceedings under the Act which depend themselves upon proof of Federal jurisdiction. No question of Fed- eral jurisdiction is involved in the administrative determination of whether a union has qualified to participate in those other proceed- ings. Under these circumstances we regard it as immaterial that this proceeding, which in effect is a continuation of the administrative pro- ceeding invoked by Local 802's petition for declaration of compliance, is not related to any particular pending complaint or petition for representation. We find no merit in Local 802's exceptions to the hearing officer's findings of fact that Local 802 failed to comply with its obligations under Section 9 (f) (B) (2) and (g), and that Local 802 has not shown the Board that it has fulfilled its obligations under those sections to make its financial reports available to its members. The hearing offi- cer, who saw and heard the witnesses, made credibility resolutions which, in the absence of circumstances not here present, will not be disturbed. Our own independent review of the record indicates that his findings of fact are amply supported by the entire record and they are hereby adopted. In its exception to the Acting Regional Director's report and order as indefinite and vague, Local 802 refers particularly to the phrase "and the Union shall be treated accordingly." We find no merit to this exception as it is clear from the context of the Order that Local 802 was thereby put on notice that whenever Local 802's compliance status for those years is involved in the process of administering the Act, it will be treated as not having attained compliance with the Act. More- over, this exception is not now material as the Board will hereinafter provide for its own Order. The final exception that the entire issue raised in this proceeding is moot because of Local 802's present willingness to perform whatever steps are necessary to come into compliance, is similarly without merit. Its current compliance status is relevant only to matters having their inception during the current period but has no bearing upon matters relating to the period with which we are here concerned. IT IS THEREFORE ADMINISTRATIVELY DETERMINED that Plaster Tenders, Construction, General and Shipyard Laborers' Local Union #802, Quoted from Section 11 of the Act. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Hod Carriers, Building and Common Laborers' Union of America, AFL, has not been in compliance with Section 9 (f) (B) (2) and (g) of the Act, for the years 1948 through and including 1953, and IT IS HEREBY ORDERED that any letters of compliance issued to Plaster Tenders, Construction, General and Shipyard Laborers' Local #802, International Hod Carriers, Building and Common Laborers' Union of America, AFL, by the Regional Director during such period be, and they hereby are, declared null and void and without effect. Acting Regional Director's Report and Order On August 23, 1954, Hearing Officer Robert V. Magor prepared and served on me his hearing officer's report on notice to show cause in the above -entitled proceed- ing, finding: 1. Local 802 did not post a copy of its financial report "in a conspicuous place at the headquarters and meeting hall of the Local Union " for the periods 1951, 1952, and 1953 as certified to be true in Board Form NLRB -1085 for those years; Local 802 did post a copy of its financial report for the years 1948, 1949 , and 1950, but such report remained posted for 2 or 3 days; 2. Local 802 did not announce at a regular meeting that copies of the financial report were ready for distribution to all members for the years 1948 through and in- cluding 1953 as certified to be true in Board Form NLRB- 1085 for those years. These findings are set forth in the above-mentioned hearing officer's report on notice to show cause which is attached hereto and incorporated herein. I have reviewed the rulings made by the hearing officer at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. The Union's motion to dismiss , reserved by the hearing officer to me for ruling, is hereby denied. I have considered the hearing officer 's report on notice to show cause and the entire record in the case and hereby adopt the hearing officer's findings. I conclude that the Union has not been in compliance with Section 9 (f) and (g) of the Labor Management Act, 1947, for the years 1948 through and including 1953. Order Upon the entire record in this matter it is hereby ordered that , unless exceptions to this report are filed with the Board within 10 days, the determination herein that the Union was not in compliance with Section 9 (f) and (g) of the Labor Management Act, 1947, shall become operative at once and become final , and the Union shall be treated accordingly. Hearing Officer's Report on Notice to Show Cause On March 16, 1954, the Regional Director for the Twenty-first Region, National Labor Relations Board, herein called the Board , issued a notice to show cause in which it was alleged, by the Regional Director , that after a preliminary investigation of allegations he had reasonable cause to believe that from 1948 to 1953 statements made and certified to be true in Board Form NLRB-1085 filed by Plaster Tenders, Construction , General and Shipyard Laborers' Local Union #802, International Hod Carriers, Building and Common Laborers ' Union of America, AFL, herein called Local 802, with the Board are in fact not true, ' and that Local 802 has failed to 1 See Board 's Exhibits Nos 2a through and including 2h Local 802 certified as follows in Board Form NLRB-1085: 1. The Union has filed with the Secretary of Labor its financial report for the fiscal year which ended [giving date]. 2 The Union has given copies of the report to all its members in the following way(s) We posted a copy in a conspicuous place at the headquarters and meeting hall of the local Union , and announced at a regular meeting that copies were ready for distribu- tion to all members COMPLIANCE STATUS OF PLASTER TENDERS 747 furnish to all its members copies of financial reports as prescribed in Section 9 (f) and (g) 2 of the Labor Management Relations Act, 1947, herein called the Act. The Regional Director ordered that Local 802 show cause in writing, with the Regional Director, on or before March 29, 1954, why the Regional Director should not ad- ministratively determine that Local 802 had failed to furnish all of its members copies of said financial report and that the aforesaid Local 802 was not in compliance with Section 9 (f) and (g) of the Act during all of the fiscal years in which copies of said financial reports were not furnished to all members of Local 802. On March 23, 1954, Local 802 filed with the Regional Director an answer and motion to dismiss in response to the order to show cause. Local 802 moved to dis- miss on the grounds: (1) Form NLRB-1085, filed by Local 802 for the period 1948 to and in- cluding 1953, correctly set forth the procedure followed by Local 802. (2) That such procedure has been followed and will continue to be followed by Local 802 in compliance with the Act, but denying that Local 802 or its mem- bers, or any work on which its members are employed, are within the purview of the provisions of the Act with respect to interstate commerce, but, in fact, under the decisions, are not subject to the Act; (3) That the Board has no jurisdiction of the matter, based on lack of inter- state commerce, and more recently on the statement of Guy Farmer, Chairman of the Board, made at Biloxi, Mississippi, on March 20, 1954, wherein he stated: The Board should limit its jurisdiction to disputes which have a real and substantial impact on interstate commerce. (4) That this action is but a continuation of other actions filed by dissident members who have created internal dissension and who have been involved in an intraunion fight with respect to intraunion matters; that all these matters came before a Trial Committee which ruled against the individuals, and there- after the action of the Trial Committee was ratified by the membership in overwhelming vote, and that the individuals have appealed to the International; that this action is not filed in good faith but with intent to harass and destroy the efficacy of the leadership and Local 802. Without admitting jurisdiction or the right to seek compliance, Local 802, in its answer, alleged in substance: (a) That on each year from 1948 to and including 1953, the financial data was prepared by the accountant and entitled "Regular Yearly Report" 3 (which stated that it was prepared to inform the membership of the financial activities of the Local under the Act), was printed in great quantities, and thereafter 2 Section 9 (f) provides : No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under sub- section (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless such labor organization and any national or international labor organization of which such labor organization is an affiliate or constituent unit (A) shall have prior thereto filed with the Secretary of Labor copies of its constitution and bylaws and a report, in such form as the Secretary may prescribe, . . . and (B) can show that prior thereto it has . (2) furnished to all members of such labor organization copies of the finan- cial report required by paragraph (1) hereof to be filed with the Secretary of Labor. Section 9 (g) of the Act provides It shall be the obligation of all labor organizations to file annually with the Secre- tary of Labor, in such form as the Secretary of Labor may prescribe, reports bring- ing up to date the information required to be supplied in the initial filing by subsec- tion (f) (A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f) (B). No labor organization shall be eligible for certification under this section as a representative of any employees, and no complaint shall issue under section 10 with respect to a charge filed by a labor organization unless it can show that it and any national or international labor organization of which it is an affiliate or con- stituent unit has complied with its obligation under this subsection. 8 See Union's Exhibits Nos. 1 through 5, inclusive, covering the Local periods 1949 through and including 1953. There was no contention that such reports had not been filed with the Secretary of Labor as required by the Act (Tr. 24-25). 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was posted on the glass of the Dispatch Window at the offices of Local 802, and remained there for a period from two to three months. This was the Dispatch Window to which members would come, and it was in plain view of each member; (b) That at a regular or special meeting following the completion of the financial report, annually, and after copies were printed, announcement was made at each such annual meeting following the preparation and printing of such annual reports advising the membership that such copies had been printed, had been posted, and were now available to all members desiring the same; (c) That at such meetings, after the announcement, with respect to such financial reports, members would request the same and did receive the same; that is, any member requesting it at that meeting or thereafter , would immedi- ately receive a printed copy of the financial report. On March 31, 1954, the General Counsel of the Board, on behalf of the Board, caused a notice of hearing to be signed by the Regional Director on the matters set forth in the notice to show cause. On April 21, 1954, pursuant to notice duly given, a hearing was held before the duly designated hearing officer, designated for said purpose, upon the matters set forth in the notice to show cause , at which time the Regional Director and Local 802, by their respective counsel and representatives , appeared and participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues . Subsequent to the hearing, Local 802 filed a brief which has been considered by the hearing officer. At the hearing, Local 802 appeared specially, and its argument and brief moved to dismiss on the grounds above mentioned, and on the additional ground: 1. That the Board, pursuant to the decisions of the United States Supreme Court, has no jurisdiction with respect to this compliance procedure? 2. That interstate commerce, within the purview of the Act, is not involved nor has it been established by the Board; that Local 802 is not subject to the benefits of the Act and hence may not be subject to the sanctions of the Act. 3. That filing of Distribution of Financial Data Certificate (Form NLRB-1085) is prima facie proof of compliance with Section 9 (f) and ( g) and cannot be con- tradicted in this proceeding. 4. That factually there was no basis for the allegations and the notice to show cause, and the action herein instituted should be dismissed. 5. That the entire matter is moot, since Local 802 desires to cooperate when in- dicated in accordance with the Act, and will follow whatever procedure may be out- lined by the Board to more effectively comply with the provisions of the Act and the Rules and Regulations of the Board, without thereby at any time admitting the juris- diction of the Board. The Regional Director addressed answers to two of Local 802's arguments in sup- port of their motion to dismiss : (a) That the matter is moot in that it is concerned with past compliance , whereas, not conceding there has been no compliance in the past, Local 802 stands ready to comply in the future upon such basis as the hearing officer or the Board should recommend ; and, (b) the effect of the Supreme Court's denial of certiorari in the cases involving 9 (h) of the Act. ( See footnote 4.) It is the Regional Director's position that although there is no matter currently be- fore the Board 5 which would make a decision in this case with respect to current com- pliance under these sections of the Act directly of importance, nevertheless the Board at any time it is called to its attention , may inquire to determine whether in fact there is compliance with Section 9 (f) and (g). With regard to the recent court decisions relative to Section 9 (h), it is the Regional Director's contention that statutory language of 9 (f) and ( g) as compared with 9 (h) is inapposite . Under 9 (h) it could be argued that the function of the Board is merely to determine whether there is a non-Communist affidavit on file. There- -'United Electrical Radio & Machine Workers , et al. v. Herzog, 211 F. 2d 36 (C. A., D C ), December 4, 1953 , affirming 110 F Supp 220 (D. C., D. C.), January 27, 1953 (permanently enjoining Board from requiring union officers to answer questionnaires cov- ering 9 ( h) affidavits ), 347 U S 943 , April 12 , 1954, Board's petition for cert. denied ; Fur and Leather Workers Union v. Farmer, 117 F Supp 35 (D. C, D C ), November 19, 1953 ( granting preliminary injunction against Board statement of policy on non-Com- munist affidavits ) (C A., D C.), December 4, 1953 ( denying Board application for stay of injunction), 347 U. S 943, April 12, 1954, Board petition for cert denied. 5 The Regional Director indicated , however, that there were pending unfair labor prac- tice charges against Local 802, involving contracts of said Local , the legality of which might be resolved by the instant hearing COMPLIANCE STATUS OF PLASTER TENDERS 749 after, the reference to section 35A of the criminal code, with respect to such af- fidavits, indicates that it is the function of the Attorney General to determine whether or not such affidavit is false. Whereas, the literal reading of Section 9 (f) and (g) indicates that a labor organization must show the Board that it has furnished to all its members copies of the financial report. In essence, it is the Regional Director's argument that the Board can inquire into the compliance with Section 9 (f) and (g) at any time the question is raised , in that this section provides that the Board must be shown that such sections have been complied with. At the hearing the hearing officer overruled Local 802's motion to dismiss, with the right to renew such motion . Such ruling is hereby reversed and the motion to dismiss is hereby reserved to the Regional Director for ruling. Upon the entire record in this case, including the brief, and from his observation of the witness, the hearing officer makes the following: FINDINGS OF FACT The issue raised by the notice to show cause is whether or not in fact the statements made and certified to be true by Local 802 in Board Form NLRB-1085, filed with the Board, are true, for the period 1948 through and including 1953. The Regional Director introduced into evidence Board Form NLRB-1085, referred to as "Distribution of Financial Data Certificate" (Board's Exhibits Nos. 2a to 2h, inclusive),6 covering the fiscal year periods (ending June 30) from 1947 through and including 1953. However, this hearing as limited by the notice to show cause is concerned only with the years 1948 up to and including 1953. The forms indicate as follows: 1. The Union has filed with the Secretary of Labor its financial report for the fiscal year which ended (giving date). 2. The Union has given copies of the report to all its members in the follow- ing way(s): (Put an "X" in the proper box. If you gave copies to the members in more than one way, check all proper boxes). D. [ X ] (This way may be used only by Local Unions.) We posted a copy in a conspicuous place at the headquarters and meeting hall of the Local Union, and announced at a regular meeting that copies were ready for distribution to all members. Each form contains substantially the following certification: I, an officer 7 of the Union, certify that this information is true to the best of my knowledge and belief. (Signed ) L. McClain, Financial Secretary. Charles Mercer, a witness called by the Regional Director, testified credibly that he had been a business representative for Local 802 from 1942 until August 1953, except for time spent in the military service during 1943 until 1945. He was also recording and corresponding secretary of Local 802 from the late fall of 1945 until July 1953. For the period concerned with herein, Mercer worked out of the main office of the Union except for a period in 1948 and 1949 when he worked out of the Lennox and Redondo Beach branch offices of the Union. However, during the pe- riod 1948 and 1949, Mercer reported to the main office of the Union about 2 or 3 times a week. On such occasions his work took him to both the dues and the dis- patch windows of the Union. During these periods of time he would work he would help dispatch in the morning, and if he were not dispatching he would help take dues at the dues window or some member's complaint. Mercer testified that he had occasion to approach either the dues window from the front side or the side on which the members reported to the windows. Mercer testified credibly that during this entire period he had never seen a financial report of the Union for any of the fiscal years concerned herein, posted at the dis- patch window, the dues window, or elsewhere on union premises at any of the union halls of Local 802. He stated that the first time that he saw any copies of the finan- cial reports (Union's Exhibits Nos. 1 through 5) was when he was in Washington in October 1953. He did, however, see a financial statement (the record does not dis- 6 Prior to August 1948 this form was entitled "Certificate." 4 Board's Exhibits Nos. 2a and 2b contain the words "duly authorized official." Board's Exhibits Nos 2c, d, and e contain the words "an official" ; thereafter the words "an officer" aie used 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close the date thereof) when charges were drawn up against Local 802 on or about July 1953. Mercer further testified that throughout the period concerned herein he had never seen a financial report of any character posted at any union hall occupied by Local 802. Mercer further testified that his duties as recording secretary required him to take the minutes of the meeting and to post the same in the minutes books. Meetings of the Union were held on the second Thursday of each month. To his recollection there were no special meetings of the membership during the period from 1948 until August 1953. Mercer attended all meetings with the exception of one, that being in July 1952. He testified that he took the minutes of the meeting in longhand, made notes, and later transcribed them, in his own handwriting, into the minutes book of Local 802, between the time of the meeting and the next regular meeting. Don San- tucci, in Mercer's stead, took the notes for the meeting of July 1952, later gave them to Mercer, who in turn posted them in the minutes book. Mercer testified that from January 1948 until August 1953 there was no announce- ment made at any of these meetings of the availability for distribution to members of the yearly financial report of Local 802. A monthly audit was read by the financial secretary. There was no announcement, however, of a written financial report for member distribution. Mercer admitted that he had never asked for any report. During this time, as an officer of the Union, Mercer signed certain non-Communist affidavits, which were forwarded to the officials of the Board. He stated that this was the only paper pre- pared and sent which he saw. He stated that he saw a stack of reports of some finan- cial status several years prior to July 1953, but did not recall what kind they were. According to Mercer, an interunion dispute or interunion fight arose sometime in June 1953 which resulted in charges being filed by Mercer later in the year against an officer of the Union. One of the charges was the fact that Local 802 had failed to comply with the Act. As a part of such charges Mercer stated he saw an annual financial report (the record does not disclose the date thereof), furnished by Congo, a member of Local 802. Such charges were heard by a trial board of Local 802. The report of the trial board, read to the membership, was that such officer "was cleared of everything." Prior to the notice to show cause, in this matter, unfair labor practice charges were filed individually by certain members of Local 802 whom Mercer assisted, and with whom Mercer came to the Board for the purpose of filing such charges, against Local 802, as charged party. (It was stipulated between the parties that information regarding the facts set forth in the Order to Show Cause was communicated in some fashion to the Wash- ington office of the National Labor Relations Board prior to December 1953, and the facts concerning the same were communicated to the Los Angeles office, Twenty-first Region, sometime in December 1953.) Don Santucci, a witness called by the Regional Director, testified credibly that he served as business representative for Local 802 from the first part of August 1950 until August 1953. The testimony of Santucci corroborates that of Mercer. In July 1952, due to the fact that Mercer was out of town, Santucci took his notes for the union meeting of that date. He testified that he attended all union meetings during the period that he was business representative. At the July 1952 meeting there was no announcement made of the availability of any written financial report for all members. Santucci further testified that there was no such announcement made at any meeting he attended throughout the period that he was business repre- sentative; nor did he see posted in the union hall any financial report. Santucci testified that as business representative he was asked to sign non- Communist affidavits for filing with the Board. He stated that this was the only paper that he saw or was shown; that he did not see any other papers which were to be filed with the Board for compliance purposes. The first time he saw an annual financial report was in July 1953, at which time charges were filed against the Union, in the interunion fight. When asked by a counsel for Local 802 if asked further questions in cross- examination as asked of Mr. Mercer, Santucci stated that his answers would be approximately the same. It was stipulated between counsel that if the following individuals who were present in the hearing room were called and sworn as witnesses, namely, Alvin L. Nelson, -Rudolfo Ramiro, Frank Cruz, -Jr., and James Yoeman, on behalf of the Regional Director, they would testify either in toto or in substantial part to the testimony given both on direct and cross-examination by Mercer and Santucci, with the added provision that the aforenamed individuals were not officers or employees of Local 802 during the years involved, had no duties in the union hall, but were COMPLIANCE STATUS OF PLASTER TENDERS 751 all members of said Local. It was further stipulated that the aforenamed individuals during the interunion affray were in accord with and on the side of Mercer and Santucci. It was further stipulated by the parties that if a Mrs. Santucci was called as a witness by the Regional Director , she would testify ( as given in affidavit form to the Regional Office of the Board ) that during the first 3 of the 6 years involved in the hearing (1948, 1949, and 1950), she worked in the office of the Union, that she was told to and did personally post the financial report in those 3 years, but that the report remained up, to her knowledge, only 2 or 3 days. Emerson Smith, a witness called by Local 802, testified that he is president of Local 802 and has been since July 1953. Prior to that time he had no official connection with the Union but has been a member of the Union since for approxi- mately 5 years, or from 1949 to the present time. On direct examination he testified that he saw the financial statement posted for the years 1949, 1950, 1951, and 1953. He stated that he was not "around the Local" for a few months of 1952 and did not recall seeing the report posted at that time, although he received a copy of such report, and saw "certain members" with it in their possession. Smith testified that he had attended meetings at Local 802 during those years and that the annual financial report was read in its entirety by the financial secretary. Smith related : "After the financial report was usually read, copies usually available, and called to the attention of the members attending ." Smith further testified that he had "received several copies" of the financial report, and that other members in his presence asked for and received copies of the financial report . During the years he was a member of Local 802, Smith stated that he had "several occasions" to go into the office of the Union, and saw printed copies of the financial reports in the office. On cross-examination Smith was asked where the 1953 report was posted. He stated that it was affixed to the glass window of the dispatching window. When questioned as to the period of time such report was posted, he stated, "I don't recall the specific dates " When asked whether it was in the summer or winter of 1953, he testified, "I believe it was in the winter of 1953. I am not positive." When asked at what monthly meeting in 1953 the announcement was made in which the financial report was read in its entirety, he replied, "That I could not say. I don't recall." Asked for more specified information as to when the financial report was read, Emerson Smith's testimony was as follows: Q (By Mr. Smith.) Well, I call your attention that the 1953 report carries the date of July 24, 1953. A That could have been Q Does that assist you as to when the report was read? A. I assume that it was read the same month that it came out. Q. Well, was that true in each of the several years that are involved here? A. I am assuming as much, yes.8 Q. Well, do you have any recollection that in these various years that the report was read at the next meeting after it was dated, or prepared? A. I don't have no specific recollection of the dates . I just under the assump- tion that they were read at the date they were released. When questioned, on cross-examination, as to the names of individuals that Smith had seen handed the reports , he answered as follows: A. I don't recall them by name; although I will get them for you. Q. (By Mr. Smith.) You can't recall any such name now, is that right? A. Well, I only know these people mostly by nicknames and face. We have some 2500. I don't remember every man's name. Q. Do you have a nickname of somebody who- A. Yes, I recall faces, largely, and not names. 8 On rebuttal Mercer testified : I am quite positive that August ( 1952 ) was the month that we were dark. Q. That there was no meeting? A. Yes The financial report for 1952 (Union's Exhibit No 4) bears the date July 22, 1952. Mercer testified that regular meetings are held the second Thursday of each month. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Do you recall a nickname? A. I will make them available to you as soon as- Q. But you don't have them now? A. I don't recall them at this moment, no. Smith further testified on cross-examination that he received his financial reports from Al McClain, the financial secretary (the individual who signed the various Board Forms NLRB-1085 in evidence). Smith testified that whenever he asked for a finan- cial report from McClain there was one available. The witnesses called by the Regional Director were forthright and direct in their testimony. Emerson Smith, president of Local 802, though positive when testifying on direct examination, on cross-examination indicated such a vagueness of recollec- tion, compounded with assumptions, that the hearing officer would not be warranted in attaching much weight to his testimony. True, it may be, that Smith asked for and received copies of the financial report during certain of the years of his member- ship, but this fact alone does not support a finding that the statements made and certified to be true by L. McClain, financial secretary, for the periods in question, are in fact true. McClain, who signed and certified to the truth of the information contained in Board Form NLRB-1085, was not called as a witness by Local 802. On the basis of the record herein, my appraisal of the witnesses, the arguments and briefs of the respective parties, I find as follows: (1) Local 802 did not post a copy of its financial report " in a conspicuous place at the headquarters and meeting hall of the Local Union" for the periods 1951, 1952, and 1953 as certified to be true in Board Form NLRB-1085 for those years; Local 802 did post a copy of its financial report for the years 1948, 1949, and 1950, but such report remained posted for 2 or 3 days. (2) Local 802 did not announce at a regular meeting that copies of the financial report were ready for distribution to all members for the years 1948 through and including 1953 as certified to be true in Board Form NLRB-1085 for those years. BALDWINVILLE PRODUCTS, INC. and STATIONARY LOCAL UNION No. 86, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, PETITIONER. Case No. 1-RC-3572. February 18,1955 Supplemental Decision, Order, and Direction of Election On March 4, 1954, the Petitioner filed the Petition in this case, seeking to sever a unit of firemen and engineers from the existing unit of production and maintenance employees at the Employer's plant in Baldwinville, Massachusetts. On June 15, 1954, the Board issued a Decision and Order 1 finding that the unit sought was not severable as a craft or departmental group under the American Pot- ash case.2 On July 7, 1954, the Petitioner filed a motion to reopen the record to take further evidence bearing on the appropriateness of the unit sought. On July 14, 1954, International Brotherhood of Paper Makers, AFL, filed opposition to this motion. Having duly considered the matter, the Board, on September 23, 1954, granted the Petitioner's motion and directed a further hearing to receive testi- mony bearing on the appropriateness of the unit sought. The hear- ing was held on October 14 and 15, 1954, before a hearing officer 1 Not reported in printed volume of Board Decisions and Orders. z Amerwan Potash d Chemscal Corporation, 107 NLRB 1418. 111 NLRB No. 119.