Monsanto Chemical Co.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gasoline, or diesel driven shovels, bulldozers, euclid loaders, cranes, backhoes, graders, rollers, scrapers, 27-E pavers; and stone spreaders, subgraders, and cement bin operators; but excluding office clerical employees, professional employees, guards, watchmen, carpenters, truck and euclid drivers, and 11 supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RoDGERS took no part in the consideration of the above De- cision and Direction of Election. Monsanto Chemical Company (John F. Queeny Plant) and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Number 562, AFL-CIO,' Petitioner. Case No. 14-RC-2701. March 7,1956 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William F. Trent, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .2 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer a 3. The Board has decided to dismiss the instant petition because of the failure of the Petitioner to renew its compliance with Section 9 (g) of the Act. This seems, therefore, to be an appropriate occasion to review and clarify the Board's policies relating to the administration of Section 9 (g).4 1 As the AFL and CIO have merged since the hearing in this case , we are amending the Petitioner's and the Intervenor's designations accordingly. n In view of our decision in this case , we find .it unnecessary to pass upon the motions of the parties referred to the Board by the hearing officer. The Intervenor, Local Number 16 , International Chemical Workers Union ,. AFL=CIO, was permitted to intervene in this ' proceeding on the basis of its existing contractual interVg. 4 P it statutory language of Section 9 (g) of the Act, as amended, provides: "It shall be the obligation of all labor organizations to file annually with the Secretary of Labor, in such form as the Secretary of Labor may prescribe , reports bringing up to date the .information required to be supplied in the initial filing by subsection (f) (A) of. this sec- tion, and to file with the Secretary of Labor and furnish to its members annually finan- cial reports in the form and manner prescribed in subsection ( f) (B). No labor organiza- tion shall be eligible for certification under this section as the representative of any em- ployees, 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 or- ganization of which it is an affiliate or constituent unit has complied with its obligation under this subsection," 115 NLRB No. 102. MONSANTO CHEMICAL COMPANY 703 Where a labor organization has a case pending before the Board, it is the Board's practice to give such organization 30 days' advance notice in writing of the pending expiration of its compliance status.' The purpose of this notification is to remind labor organizations of their filing obligations and to advise them that, in order to allow reasonable time for the preparation and filing of the required data, they may receive, in the Board's discretion, a 90-day extension beyond the end of their fiscal year to renew their compliance, during which time the Board will continue to process cases in their behalf. A union which desires to be granted this grace period must file with the Board, prior to the end of its fiscal year, a certificate of intent to renew its fil- ing obligations within such 90-day period.' Upon a labor organization's filing of a certificate of intent, the Board, for a period of 90 days after the end of its fiscal year, will continue to receive and process cases brought by the union, or accord the union a place on the ballot in elections held during that period. However, in the event that a union has not completed its compliance with Section 9 (g) by the end of this 90-day grace period, all proceed- ings in which it is involved before the Board are subject to dismissal and any action taken by the Board on its behalf during the aforesaid 00^day period is subject to withdrawal or revocation.7 The only exception to this rule is that, where circumstances beyond the control of the union preclude timely renewal, such as when the failure to renew is due solely to delay by the Department of Labor in processing mate- rial filed with it prior to the end of the grace period, the Board will grant additional time. In reviewing our administrative policies in connection with Sec- tion 9 (g), we have carefully considered the holding and the rationale in the Faweett-Dearing case," which involved the failure of an inter- vening union to effect compliance with Section 9 (g) within the 90-day grace period. The Board held there that Section 9 (g'), unlike Section 5 Form NLIIB-4227 However , the responsibility for maintaining compliance with the Act rests solely upon the labor organizations themselves, and failure of the Board to give such notice does not relieve them of this responsibility 0 In lieu of a certificate of intent, a labor organization may file a letter with the Board stating that (1) the required data will be filed with the Department of Labor within 90 daysliifter,the expitatign date-of its fiscal year, (2) the union will furnish copies of its financial statement to its membership within the 90-day period, and (3 ) the union will furnish proof that such distribution of its financial statement has been made to its nieni- bernhip by filing a Foim NLRB-1085 with the Board within the 90-day period. The certificate of intent, or letter in lieu thereof, like all other documents to he filed with the Board, should be filed with the appropriate Regional or Subregional Office of the Board by local unions, and^with the Board in Washington, D C., by national or inter- national unions The final paiagraph of the certificate of intent in use prior to December 1955 stated 'that "It is understood that any action taken in behalf of this organization during the aforesaid 90 days is subject to withdrawal it compliance with Section 9 (f) and (g) has not been i'newed by the end of the 90-day pen and " This paragraph in the revised form presently in use contains the additional phrase that " . all niatteis being processed by the Board in behalf of this organization may be subject to immediate dismissal. e Fawcett-Deal iny Pi intuip Company, 106 NLRB 12-19. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9 (f) and (h), does not proscribe the Board from investigating and processing a question concerning representation , but merely-precludes the Board from certifying as exclusive bargaining representative a union which is temporarily out of compliance with this subsection." Although this decision was within the ambit of the Board's adminis- 'tr"ative discretion,- the perpetuation of such a policy is ' not, in our opinion; conducive to the achievement of the objective of Section 9 (g). That objective is "to insure the responsible administration- of- union. funds by 'requiring that labor organizations make a periodic account- iiig to their members of their financial stewardship . If' the Board were `to permit excessive delays in making such accounting, the 'efficacy of Section 9 (g) would be substantially impaired in carrying out'tl>_.e congressional purpose. Accordingly, insofar as it stands for the prin- ciple that the Board will not invoke against a labor organization which permits its compliance with Section 9 (g) to lapse , any sanction save that of withholding a certificate from such union pending renewal of compliance, Fawcett-Dearing is hereby overruled. In the instant case and in all future cases our policy will be as fol- _lows : (1 ) Upon the expiration of a union 's fiscal year, the Board, in its 'discretion, may grant the union 90 days in which to comply with Section 9 (g). This grace period may be granted only upon the union's filing with the 'Board, prior to the end of its, fiscal year, a cer- tificate of intent to renew its compliance or, in lieu thereof , a letter to that,effect. 10_ (2) In the Board's discretion , it may grant additional time beyond 'this 90-day period only in instances where circumstances beyond the union's control prevent timely compliance , such as where a labor organization has filed the required data with the Department of Labor and has otherwise taken all steps necessary to effect compli- ance prior to the expiration of the grace period, and the failure to achieve compliance is attributable solely to a delay in clearance by the Department of Labor. The failure of a petitioner to comply with these requirements }vill result in the dismissal of its petition , and the failure of other labor organizations involved in Board proceedings so to comply will result in the immediate denial to them of the privilege of using the Board's U Section 9 (f) and (h) provide "No investigation shall be made by the Board of any question affecting eomnieice con- cerning the iepresentation of employees " iaiced by a union which is not in compliance with the filing iequiienients of those subsections In contiast, Section 9 ( g) piovides that "No labor organization shall be eligible for certification " until that union has coin- plied with filing requirements of this subsection 33The Boiud sill continue its policy of infouumg unions 80 days before the end of their fiscal year of the impending expiration of then compliance status However, the Board's failure to give such notice shall in no way relieve it union of its responsibility to renew its compliance, of to timely file a certificate of intent or letter in lieu thereof if it desires to be granted the 90-day glace period. GEORGIA HIGHWAY EXPRESS, INC. 705, processes." In all cases, under these circumstances, any action taken by the Board on behalf of a union during its 90-day grace period will be immediately withdrawn or revoked. Turning to the instant case, Board records show that the Petitioner's fiscal year ended on September 30, 1955. The Regional Office, on Au- gust 29, 1955, notified the Petitioner by letter that its compliance with Section 9 (g) would expire on September 30, 1955. On September 1, 1955, the Petitioner filed a certificate of intent with the Regional Office and was granted a 90-day extension beyond the end of its fiscal year, specifically, to December 29, 1955, within which to comply with Sec- tion 9 (g) of the Act. At the end of thi's 90-day period; however, the Petitioner had not filed with the Board proof of its distribution of its financial statement to its membership. The Petitioner advised the Regional Director that the delay in publishing its financial statement resulted from the fact that its bylaws require that such publicizing take place at a regular union meeting, and the Petitioner's next regu- lar union meeting was not scheduled until approximately 3 weeks after the expiration of its grace period. Unfortunate though the situ- ation may be, the responsibility for this delay-and the responsibility for not having released this information at a prior union meeting- -rests entirely upon the Petitioner, and constitutes insufficient basis for the Board to waive its administrative requirements. Experience has proven that the 90-day grace period allowed a union to renew its compliance normally affords adequate time for the preparation and auditing of the required data, for filing it with the Department of Labor, and for distribution of financial statements to all members of the union. In conformance with the policy enunciated above, we shall dismiss the instant petition. [The Board dismissed the petition.] t.This policy daps not apply to unions before the hoard in decertification proceedings. The hoard will continue it4 past piactice of placing noncomplying unions on the ballot in deer! "tifica'tion cases aF'to do otheiwispxwould , in effect, - immunize a noncomplying union against decechfication 1 1, ` Georgia Highway Express, Inc. and Olice L. Rutledge. Case No. 10-CA-2333. March 7 ,1956 DECISION AND ORDER On September 21, 1955, Trial Examiner Louis Plost issued his Intermediate Report in the above entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged 115-NLRB No. 106. 390609-56-vol 115-46