International Brotherhood of Boilermakers, etc.

National Labor Relations Board - Board Decisions

Mar 31, 1959

123 N.L.R.B. 492 (N.L.R.B. 1959)

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.