International Brotherhood of Boilermakers, etc.

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT engage in, or induce or encourage the employees of Davison Construction Company, Inc., or of any other em- ployer to engage in, a strike or a concerted refusal in the course of their employment to perform any services, where an object thereof is to force or require Davison Construction Company, Inc., or any other employer, to cease doing business with Joseph R. Cianchette or any other employer or person. BANGOR BUILDING TRADES COUNCIL, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) HOISTING AND PORTABLE ENGINEERS LOCAL 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) LOCAL 1377, INTERNATIONAL HOD CAR- RIERS , BUILDING AND COMMON LA- BORERS' UNION OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof,, and must not be altered, defaced, or covered by any other material. Compliance Status of International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers, and Help- ers, AFL-CIO, and Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO. March 31, 1959 ADMINISTRATIVE DETERMINATION OF COMPLIANCE STATUS On April 14, 1958, Plant City Welding and Tank Company, an Employer in interest in certain proceedings pending before the Board, filed a petition with the Board for an administrative deter- mination of the compliance status of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, hereinafter referred to as the International, and Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, hereinafter referred 123 NLRB No. 70. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 493 to as the Local. An administrative investigation was thereafter con- ducted on behalf of the Board. Since the facts are not in substantial. dispute, it would serve no useful purpose. to order. a hearing. in, this matter. The Board has considered the entire administrative record herein and hereby makes the following determination : The International's Compliance Status The Employer alleges that the International has failed to meet the requirements of Section 9(f), (g),' and (h) of the Act in five respects. 1. The Company maintains that in violation of Section 9(f) (B) (2) the International furnished financial statements to its members for the fiscal years 1947 through 1957 which did not contain all the information required by the Act and which were not copies of the statements filed with the Secretary of Labor. The International admits that the published financial statements were not the complete reports filed with the Secretary of Labor but contends that this allegation should be rejected because (a) each of the Journals in which the annual "Summary of Funds" was published also contains a letter from the International president and Inter- national secretary-treasurer which states : "All members are hereby notified that every Financial Secretary is in possession of a detailed financial report, prepared and certified to by Certified Public Ac- countants. Any member desiring to examine these reports is at liberty to do so by requesting the Financial Secretary of your Local Union-to provide a copy of same"; (b) the fund headings, according to the International, adequately show in. themselves the sources of income and purposes of disbursements, and there is no statement of assets and liabilities, as such, because all assets shown consist of cash and investments, it has no liabilities except transitory insurance premiums payable and a few benefit claims receivable; and (c) in addition to the detailed financial report, it has furnished to the Secre- tary of Labor each year a printed copy of the Journal showing the "Summary of Funds" distributed. Under these circumstances, and particularly the fact that the ex- hibits accompanying the Employer's motion clearly establish that the above letter did appear with each summary, we are satisfied that the International made available to its membership the financial data required by Section 9(f) (B).1 2. The Company also contends that the International has failed to meet the requirements of the Act in that the copies of the financial statements were furnished to fewer than its total membership. 1 See Compliance Status of Cigar Makers International Union of America, AFL-CIO, 117 NLRB 856. 494 .' DECISIONS OF NATIONAL LABOR RELATIONS BOARD We ate satisfied that the International has taken reasonable steps to reach as many members as possible,' and therefore conclude that it has. met the statutory requirement in this regard.' We do not believe that a union can be expected to search out each and every member in order to deliver a * copy of its financial report before it may qualify under Section 9(f) and (g). To impose so strict a requirement would undoubtedly have the effect of nullifying the rights of unions to file petitions and charges under the Act and would prevent em- ployees from having the opportunity to select a union to represent them, inasmuch as it is doubtful whether this standard could ever be met. We do not believe that Congress intended such a result. 3. The Employer also takes the position that there was a lapse in the International's compliance in that its financial statement for the fiscal year 1957 was distributed several days after the expiration of the 90-day grace period granted when it filed a certificate of intent,, and therefore, under the Board's decision in Monsanto Chemical Company, 115 NLRB 702, all pending proceedings should have been dismissed, and that 4. the International's forms NLRB-1085 for the fiscal years 1953 through 1957 were executed and filed at times when the financial statement had not yet been distributed; therefore, they contained false statements and the Board should find, on the authority of Compliance Status of Plaster Tenders, Construction, General and Shipyard Laborers' Local Union #803, International Hod Carriers,. Building and Common Laborers' Union of America, AFL, 111 NLRB. 742, that the International is not in compliance with Section 9(f and (g).4 . Near the end of each of the fiscal years in question, the Inter- national filed a certificate of intent to renew compliance under Section 9(f) and (g) and was granted a 90-day extension of time in which. to do so. Since the fiscal year ends on June 30, the 90-day grace, period expired September 28 each year. Sometime in September- of each of the years under consideration, the International filed its form NLRB-1085 certifying that it had published its financial state- ment in its Journal which was distributed to its members. How- ever, the actual publication was in the October issue of the Journal, which was not distributed until October 1 or shortly thereafter. It thus appears that the facts alleged by the Employer are accurate. Nevertheless, we do not believe that the findings advocated by the Employer are warranted under the circumstances here present. 2'The facts supplied by the International with respect to the number of copies furnishect• and the steps taken to reach its members are set forth in Appendix A, attached hereto. 3 Ibid. ' Allegations 3 and 4 are discussed together, since they relate to the same facts. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , ETC. 495. During the investigation the International advised the Regional. Office that it had delivered the financial reports to the printer for printing and mailing prior to the execution and filing of the form NLRB-1085 and before the expiration of the 90-day period. More- over, we note that the International's past history clearly manifests an intent to achieve full compliance.' Accordingly, we reject these contentions of the Employer. 5. The Company maintains that a number of individuals, although not designated in the International's constitution as officers, are never- theless officers who should be required to file Section 9(h) non- Communist affidavits. The International's constitution provides as follows, in article III, headed "International Officers" : Section 1. The International officers shall consist of an Inter- national President, International Secretary-Treasurer, Editor and Manager of the official Journal, and sixteen (16) Inter- national Vice Presidents.. . The Employer contends that, in addition, the incumbents of the positions of president emeritus, trustee, international representative, district representative, business manager, member of the executive council, "Delegate to A.F. of L.," and delegate to the Trade and Labor Congress of Canada are officers. However, it is clear that these positions are not designated as offices by the constitution. Therefore, none of the incumbents is an officer of the International within the Board's "constitutional" test, which the United States Supreme Court has approved as a "reasonable, if indeed not a com- pelling construction of the statute." 6 Moreover, even if we were to apply the interpretation of the con- stitutional test adopted by some U.S. Courts of Appeals I ( i.e.,. "identification" in the constitution by virtue of description of duties, manner of selection, etc., associated with a person holding office), we would be compelled to reach the same conclusion. Thus, the president emeritus and business manager are clearly not within that interpretation, since they are not even mentioned in the constitution, 5 This situation is, therefore, unlike that in either Monsanto Chemical or Plaster Tenders. In the former case, there was a delay of 3 weeks during which the financial statement was in the hands of the union , but distribution was delayed until its next regular meeting, whereas in the instant situation the distribution was within the control of the printer and the delay was insubstantial . In the Plaster Tenders case, the union stated in its form NLRB-1085 that it had posted copies of its financial report at its headquarters and had announced at a regular meeting that copies thereof were ready for distribution but in fact it had done neither of these things at any time, whereas here the statements in the form NLRB-1085 were substantially accurate. 6 N.L.R.B. v. Coca-Cola Bottling Co. of Louisville, Inc., 350 U.S. 264. And see Com- pliance Status of Cigar Makers, supra. 7 See, e.g., Goodman Manufacuring Company v . N.L.R.B ., 234 F. 2d 775 ( C.A. 7), cert. denied 352 U.S. 872; and Shoreline Enterprises of America, Inc. v. N.L.R.B ., 262 F. 2d 933 (C.A. 5). 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and there is complete silence as to their powers and duties as well as to those of trustees, international. representatives, district representa- tives, and delegates. In an analogous situation the U.S. Court of Appeals for the Fifth Circuit has held 8 that the incumbent of such a position is not an "officer." Furthermore, even if executive council members were held to be officers under this interpretation, such members also hold other international offices 9 and have filed affidavits as the incumbents of such positions, thus satisfying the requirements of Section 9(h). The Local's Compliance Status The allegations relating to the Local's compliance approximately parallel those set forth above but are different as to detail. 1. The Company contends that the Local has failed to comply with Section 9(f) and (g) in that the financial reports distributed by it for the fiscal years 1955, 1956, and 1957 were not sufficiently compre- hensive because they did not contain all the necessary information and were not copies of the reports filed with the Secretary of Labor; they were not posted as set forth in the forms NLRB-1085 filed with the Board; and they were distributed to fewer than its total member- ship. The Local's fiscal year ends December 31. Each year the Local has certified to the Board that copies of its financial report were distributed by "[posting] a copy in a conspicuous place at the head- quarters and meeting hall of the Local Union and [announcing] at. a regular meeting that copies were ready for distribution to all members." With respect to the Local's compliance at the close of its fiscal year 1955, the Local admitted during this investigation that because of the peculiar circumstances at that time copies of the report were, in fact, not distributed, although the details thereof were discussed at a meeting, the report was posted during the course of the meeting, and the members approved the report. It is apparent that the steps taken with respect to this 1955 financial statement were insufficient to meet the requirements of the Net. Section 9(f) (B) (2) provides for distribution and leaves the Board no discretion to accept anything less. Accordingly, we must conclude that the Local's compliance at the end of fiscal 1955 was insufficient and its compliance had lapsed during the calendar year 1956. This is not true, however, with respect to the Local's conduct at the end of its fiscal years 1956 and 1957. The Local, at those times, announced at a regular meeting that copies of its financial statement e Shoreline Enterprises v. N.L.R.B., supra. The constitution provides that the executive council is to be composed of the Inter- national president and the 16 International vice presidents. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC 497 would be available to the membership at the next meeting, made such copies available at that meeting to all members who wished them, and posted a copy thereof during the course of the meeting but removed the posted copy at the end of the meeting because the meeting hall is used by 16 other unions and the Local has no head- quarters of its own. Under these circumstances, we are satisfied that the Local's compliance for the fiscal years 1956 and 1957 was sufficient to meet the requirements of the Act. 2. The Company maintains that the Local was also out of com- pliance with Section 9(f) and (g) in that it did not distribute its financial statement for the fiscal year 1957 until March 10, 1958, although this was within the 90-day grace period granted by the Board after the Local had filed a certificate of intent to renew its compliance, since the Board's action in granting such an extension "is contrary and in derogation to Section 9(f) and (g), improper and beyond the authority of the NLRB" or "assuming, arguendo, that such action is within the authority of the NLRB, the NLRB has failed to properly promulgate, establish or authorize this policy, rule, or regulation." We reject this position as without merit. We have previously held that the procedure for securing an extension of time to renew compliance is applicable in circumstances such as these,10 and have also had occasion more recently to reject this same contention by the instant Employer 11 as well as by another employer.12 3. The Company further maintains that the positions of chief steward, representative steward, sick steward, and member of negoti- ating committee, although not listed in the Union's constitution as officers, are nevertheless officers who should be required to file Section 9(h) non-Communist affidavits. What we have said above with respect to the Employer's allega- tion concerning additional International officers is equally applicable to the instant contention. The subordinate lodge constitution, in article II, contains the following provision : Section 1. The officers of each Subordinate Lodge shall con- sist of a President, Vice President, Treasurer, Inspector, Inside Guard, Outside Guard, Recording Secretary, Financial Secre- tary, Corresponding Secretary, a Board of Trustees . . ., and a Business Manager where one is considered necessary.... This section of the constitution further provides that "stewards" are to be appointed, and "sick stewards" and "committeemen" may be elected or appointed as each lodge shall determine but are not 10 Monsanto Chemical Company, supra. 11 Plant City Welding and Tank Company, 118 NLRB 280 , 283 (footnote 9). 12 Technicolor New York Corporation, 118 NLRB 588 , 5'89 (footnote 1). 50'8 8'89-60-vol. 123-33 498. DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be considered officers. However, no duties are described for any of these positions. Accordingly, the incumbents clearly are not "officers" under the Board's "constitutional" test or under the in- terpretation thereof adopted by some of the U. S. Courts of Appeals.13 IT IS THEREFORE ADMINISTRATIVELY DETERMINED that International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, is in compliance with Section 9(f), (g), and (h) of the Act, and that Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, was not in compliance with Sec- tion 9(f) (B) (2) and (g) of the Act during the calendar year 1956 but has been in compliance thereafter, and IT IS IIEREBY ORDERED that any letters of compliance issued to Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, during the. calendar year 1956 be, and they hereby are, declared null and void and without effect. MEMBER FANNING, concurring in part and dissenting in part : I concur in the majority's conclusion that Local 609 was not in. compliance with Section 9(f) (B) (2) of the Act during calendar year 1956 and that letters of compliance issued to that organization for that year are null and void. I must dissent, however, from the majority's conclusion that the International itself was in compliance with the statute. Section 9(f) (B) (2) requires that the processes of the Board shall, be available only to those unions which furnish their members with "copies of the financial report" they are otherwise required to file with the Secretary of Labor. Similarly, the Board's Rules and Regulations, Series 7, provide that a complying labor organization must execute a declaration stating that it has furnished ."to all of its members copies of the financial report filed with the Depart- ment of Labor . . ." (Section 102.13). In its "Guide for Labor Organizations to the Filing Requirements of the Labor Management Relations Act, 1947" the Board states on page 6: "Section 9(f) (B) (2) of the Act requires that you furnish to all the members of your organization copies of the financial report filed with the Department of Labor. . . ." And, in further implementation of the Act, the Rules and Regulations, and the Guide, Form NLRB 1085, "Distribution of Financial Report Certificate," among other things, contains-the statement that the Secretary of Labor has ac-' cepted the financial report of the Union and that "The union has furnished copies of that report to all its members. . . ." The 13 See footnote 7, supra. INTERNATIONAL ' BROTHERHOOD OF BOILERMAKERS , ETC. 499 instructions 'on the reverse side of the form, in pertinent' part, require that "Copies furnished members must be copies of the report finally accepted by the Secretary of Labor." It appears abundantly clear that the Act and the Board's Rules and Regula- tions and outstanding instructions to unions preclude the Board from finding compliance with Section 9(f) (B) (2 ) on the basis of the distribution of any financial statement other than the full report filed with and' approved by the Secretary of Labor. No requirement of the statute is more simply or clearly stated. The facts set forth in the majority's opinion reveal that the International did not furnish its members with "copies" of the financial report submitted to the Department of Labor. Rather, it is admitted that the International merely published a "summary" of that report in its annual Journal, informing its members that they could secure a copy by requesting the financial secretary of the Local Union to provide one. This procedure was not, in any opinion, compliance with Section 9(f) (B) (2 ). A copy is a copy. It is not an approximation, an abbreviation, or a summary. In con- chiding that the International made available to its membership the financial data required by Section 9(f) (B) the majority relies particularly upon the letter which was published with the summary. This letter informed the members that a detailed financial report was in the po'sses 'sion of , the financial secretaries and that "Any member desiring to examine these reports is at liberty to do so by requesting the Financial Secretary of your Local Union to provide a copy of same...." In effect the majority, while admitting that the com- plete report was not furnished the members , is, at the same time, stating. that this procedure was tantamount to furnishing the mem- bership the complete statement . It seems to me that this is precisely the kind of "furnishing" the statute attempts to prevent. To furnish is to give-not to give upon request. Union members quite eager to examine a copy of their Union's financial report might be under- standably reluctant to demand that the financial secretary provide them with one. Accordingly, I conclude that the International failed. to comply with the filing requirements of the Act. In reaching this conclusion, I am, of course , aware of the fact that for some years the practice has been prevalent among some unions to provide their members with a "summary " rather than a "copy" of their financial reports. Despite the specific language of the statute and the Board's Rules and Regulations , the Board ap- pears to have acquiesced in this practice in Cigar Makers Interna- tional Union of America, AFL-CIO, cited above. I was not a, member of the Board at the time that decision issued. I believe it was wrongly decided. Nevertheless, I recognize that this Inter- national and other labor organizations may have been misled into 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believing that the Board's Rules did not require furnishing actual copies of their financial reports to members. Except as indicated .herein, the International has followed the requirements for com- pliance with Section 9(f) and (g) of the Act. There is no evidence that it has been guilty of either neglect or an attempt to evade the requirements of the Act. If there is any blame to be assessed, it is not with this labor organization, but elsewhere, possibly with the Board's administration of the pertinent requirements of the Act. The Board has in certain instances exercised its discretion in the application of the requirements of the pertinent section of the Act by granting certain periods of grace. (See, for example, Marshall and Bruce Company, 75 NLRB 90; Simplicity Pattern Company, 102 NLRB 1283, and Monsanto Chemical Company (John F. Queeny Plant), 115 NLRB 702.) I do not believe the Board should un- stabilize labor relations with the resultant disturbances and the future unwarranted expenditure of public funds in reprocessing these cases through the Board's procedures, by forthwith revoking certifications in a situation such as that presented here. Nor do I believe that, considering the equities involved and the effectuation of the purposes of the Act as a whole, we would be justified in re- voking the Boilermakers' certification without permitting that or- ganization an opportunity to comply with the Act. Accordingly, I would allow the International and other labor organizations simi- larly situated a reasonable grace period to take steps to comply with the literal requirement of Section 9(f) (B) (2). APPENDIX A The International submitted the following information bearing on the number of Journal publications containing yearly financial statements : Year Financial Report Contained in Journal Number of Copies Mailed Member- ship Less NTM* Net Member- ship 1948_ ____________________________ Apr. 1949 issue ________________ 81,000 87,569 1,917 85,652 1949_____________________________ Dec. 1949 issue________________ 78,000 85,567 2,108 83,459 1950____________________ Oct. 1950issue ------ --------- -- 79,000 87,939 1,938 86,001 1951__________________ Oct. 1951 issue_________________ 113,500 112,650 1,741 110,909 1952___ ________________ Oct. 1952 issue ________________ 132,000 138 , 780 1 , 864 136,916 1953________________ __ Oct. 1953 issue _________________ 138,000 144,149 2,463 141,686 1954_____________________________ Oct. 1954 issue _________________ 126,000 125 , 410 2 , 792 122,618 1955______________ __ Oct. 1955 issue _________________ 114,500 120,796 2,483 118,313 1956____________________ Oct. 1056 issue_________________ 113,000 121,929 2,280 119,645 1957 __________________ Oct. 1957 issue _________________ 119,300 134 , 246 2,785 131,461 *NTM-National Transit Members who have no permanent address. The International asserts that the Journal office always has less Journals printed than there are members for several reasons : BOSTON WOVEN HOSE AND RUBBER COMPANY 501 1. If a member moves and does not send into the Journal his new forwarding address, the Post Office Department notifies the Journal accordingly, and that name is stricken from the Journal mailing list; 2. Withdrawn and retired members are carried on the membership roll but must pay $1.20 per year to receive the Journal; at the time of the 1957 convention, there were approximately 5,000 retired members. (The International submitted no information on how many sub- scribed to the Journal.) 3. The names of newly accepted members are not immediately placed on the Journal mailing list due to clerical delays. 4. A number of National Transit Members of the International have no permanent address. The International estimates this figure varies from 2,000 to 2,700 members. The International maintains that the Journal office does, in some instances, send 8 to 10 bundles containing 300 to 350 Journals each to various stewards for distribution to the membership on the site of the job. There are also some 10 or 12, Subordinate Lodges who ask for bundles for distribution at the Subordinate Lodge Head- quarters. These extra bundles for Subordinate Lodges and National Transient Members contain approximately 1,200 to 1,500 copies. In addition, the International sends copies of the Financial Report filed annually with the Secretary of Labor to the Financial Secretary of each Subordinate Lodge. The Journals refer to this Report, and give notice that such is available for membership inspection on request. Boston Woven Hose and Rubber Company, Division of American Biltrite Rubber Company, Incorporated ' and Local 25, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case No. 1-RC-5477. March 31, 1959 DECISION AND ORDER Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 1 The name of the Employer appears as corrected at the bearing. 123 NLRB No. 76.