Southern Waste Material Co., Inc.

National Labor Relations Board - Board Decisions

May 4, 1956

115 N.L.R.B. 1273 (N.L.R.B. 1956)

SOUTHERN WASTE MATERIAL CO., INC. 1273
5. By said acts the Respondents have interfered with, restrained , and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean -
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Southern Waste Material Co., Inc. and United Packinghouse
Workers of America, AFL-CIO, Petitioner. Case No. 16-RC-
1842. May 4,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William H. Renkel,
Jr., hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
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 organization involved claims to represent certain em-
ployees of the Employer.
3. The Board has decided to dismiss the instant petition because
of the failure of the Petitioner to effect timely compliance with Sec-
tion 9 (g) of the Act, which, inter alia, requires labor organizations
to file with the Secretary of Labor and publish to their members
certain financial reports relating to their operations during the prior
fiscal year.
In Monsanto Chemical Company (John F. Queeny Plant),' the
Board recently set forth its procedure in cases involving failure of,
a union to comply with Section 9 (g) by the end of its fiscal year.
The Board there stated that, upon the filing by such a union of a
certificate of intent or other appropriate indication of its intent to
meet the requirements of Section 9 (g) within 90 days after the ex-
piration of its fiscal year, the Board, in its discretion, would grant
the union a grace period of 90 days from the end of its fiscal year
within which to meet such requirements. The Board stated further:
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 com-
pleted its compliance with Section 9 (g) by the end of this 90-
1115 NLRB 702.
115 NLRB No. 201.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day grace period, all proceedings 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 90-day period is subject
to withdrawal or revocation. 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 material
filed with it prior to the end of the grace period, the Board will
grant additional time.
Thus, in effect, the Board announced in the Monsanto case that the
failure of a petitioning union to comply with Section 9 (g) within
such grace period as the Board might allow would result in dismissal
of its petition.
The foregoing procedure and policy, was adopted by the Board in an
effort to accommodate (1) the statutory objective of securing the
responsible administration of union funds by requiring the prompt
filing of the financial reports and other data prescribed in Section
9, (g), and (2) the practical necessity for allowing labor organizations
a reasonable time after the end of their fiscal year within which to
prepare such reports. The Board's experience has shown that the
90-day grace period is an adequate time for preparing, filing, and
publishing the necessary data. The Petitioner herein does not con-
tend otherwise, but seeks to bring itself within the exception provided
for in Monsanto, where noncompliance is due to circumstances beyond
the union's control. In the alternative, Petitioner seeks an enlargement
of that exception to, encompass cases where failure to comply during
the grace period is due to inadvertence.
Compliance by the Petitioner with the filing obligations of Section
9 (g) of the Act expired December 31, 1955. Prior thereto, on Decem-
ber 5,,1955, the Petitioner filed a certificate of intent, upon receipt of
which the Board, following its usual practice, granted Petitioner a
grace period of 90 days after the end of its fiscal year to renew its filing
obligations. This period was to expire on March 30, 1956. Also, in
accordance with its usual procedure the Board,, on March 19, 1956,
sent Petitioner a letter reminding it of the March 30 deadline. How-
ever, the Petitioner failed to file the required material with the Secre-
tary of Labor by March 30.
The petition in, this proceeding was, filed February 27, 1956, and a
hearing thereon was held March 20, 1956. This action was taken in
reliance upon a presumption that the Petitioner would satisfy the filing
requirements of the Act within the uniformly allotted. grace period in
accordance with its certificate of intent.
In an affidavit submitted to the Board, the Petitioner's secretary-
treasurer related that the failure to achieve timely compliance was due
SOUTHERN WASTE MATERIAL CO., INC. 1275
to the inadvertent neglect of one of its employees to file the required
data with the Secretary of Labor. The affidavit fails to explain why
no action was taken by the Petitioner upon the Board's letter of March
19,1956, referred to above.
We do not believe that the circumstances of this case warrant grant-
ing the Petitioner any extension of time beyond the 90-day period.2
Even if we overlook the failure of the Petitioner to act upon the
March 19 letter mentioned above, and accept its explanation for its
tardy compliance, we do not regard such inadvertence as a circumstance
beyond the Petitioner's control within the meaning of that phrase as
used in the Monsanto case. There we gave as an illustration of such
a circumstance delay by the Department of Labor in processing ma-
terial filed with it prior to the end of the grace period. Obviously there
is nothing approaching such a situation here or showing that the
failure to file within the grace period was due to circumstances be-
yond the control of the Union. Any construction or enlargement of
the class of exceptional cases provided for in Monsanto to embrace
situations such as the instant case where inadvertence or negligence
is the reason for the failure to file timely would, for all practical pur-
poses, nullify the requirement of complying within the 90-day grace
period.
Accordingly, we shall vacate all action taken upon the instant
petition during the 90-day grace period and dismiss the petition be-
cause of the Petitioner's failure to bring itself into compliance with
Section 9 (g) of the Act during that period.
[The Board dismissed the petition.]
MEMBER PETERSON, dissenting :
I must emphatically dissent from this harsh action of my four col-
leagues, which in my judgment is not required by the letter or spirit of
the Act, our recent Monsanto Chemical decision, or any consideration
of sound policy.
Until the short lapse in compliance here involved, the Union has
been in continuous compliance with the filing requirements of Sec-
tion 9 (g) since the spring of 1948. The lapse here is, wholly inad-
vertent, as fully explained in a letter from the Union's general counsel;
supported by an affidavit from the Union's International secretary-
treasurer. Well in advance of the expiration of the grace period, the
Union had completed its audit and made full publication of its finan-
cial statement to its members, thereby complying with the substance
of the statutory objective. However, the material was'no€,filed with
the'Department of Labor or the Board notified, as required, because
2 A letter of April 5, 1956, from the Union's' general counsel reqpests that such exten-
sion be granted none pro tune or that , in the alternative, the Board' grant oral' argument.
Both requests are hereby denied
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a new employee did not understand that it was her responsibility to
transmit the already completed data to these agencies. When they
became aware of this clerical mistake on Tuesday, April 3-the
second working day following the expiration of the grace period-
the Union's officials completed the necessary filing requirements by
the afternoon of the following day. -
The effect of the Board's action is not confined to this case, but
also applies to other pending cases brought by the Union or one of
its locals, as well as to cases in which the Union or one of its locals was
certified during the 90-day grace period. Thus all pending petitions
will be dismissed and certifications issued during the grace period will
be vacated. For years the Board has extended the grace period upon
good cause. shown and where no purpose to evade the Act's filing re-
quirements appeared. Indeed, in the Monsanto case it was stated that
the Board in its discretion "may grant additional time beyond this
90-day period." There is not the slightest indication that the Union
sought to evade or ignore its obligations under Section 9 (g). I am
fully persuaded that in the proper exercise of our discretion, and in
keeping with the statutory objective of promoting stability in collec-
tive bargaining, this. lapse in compliance should be excused. Any
language in the Monsanto decision that seems to require the fantasti-
cally rigid application of the filing requirements here made should
be clarified.
Hawley & Hoops, Inc. and Local 68, International Union of Op-
erating Engineers , AFL-CIO, Petitioner. Case No. 9-RC-7995.
May 4,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Leonard J. Lurie, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of four licensed powerhouse em-
ployees classified as boiler and refrigeration men. The Employer con-
115 NLRB No. 203.