Compliance Status of Cigar Makers, Etc.

National Labor Relations Board - Board Decisions

Mar 28, 1957

117 N.L.R.B. 856 (N.L.R.B. 1957)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. In accord with the agreement of the parties," we find that all
production' employees at the Employer's Tampa, Florida, plant, in-
cluding shipping department employees and the janitor, but excluding
the plant engineer, mechanics, office employees, watchmen, executives,
foremen, and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.13
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
'2 The Petitioner originally proposed a unit excluding teachers and janitors. When the
Employer stated that it had no employees classified as teachers, that foremen were
primarily responsible for training new employees, and that the foremen were supervisors,
the Petitioner agreed with the Employer that the reference to teachers should be omitted
Further, when the Employer stated that it had only one janitor, that he was sometimes
replaced by other employees, and that he did other kinds of work in addition to his
janitorial duties, the Petitioner agreed with the Employer that the janitor should be
included. The parties agreed to the exclusion of mechanics, who are highly skilled
employees trained in the maintenance of cigar machinery. Routine maintenance work
is done by production employees.
13 The Employer moved to dismiss on the ground that the Petitioner, if certified, would
not represent all the employees in the unit but only those who became members of the
Petitioner. The evidence does not establish that the Petitioner intends, if certified, not to
represent all employees in the unit. If it should fail to do so, its certificate would be
subject to revocation.
Compliance Status of Cigar Makers International Union of
America, AFL-CIO. March .8,1957
ADMINISTRATIVE DETERMINATION OF
COMPLIANCE STATUS
In connection with Case No. 12-RC-8, a representation proceeding
involving its employees, Standard Cigar Company, herein called the
Employer, has filed a motion for an administrative determination of
the compliance status of Cigar Makers International Union of
America, AFL-CIO, herein called the Union.
In the Decision and Direction of Election issued in the representa-
tion case, the Board reiterated its policy that "the fact of compliance
by a labor organization required to comply may not .be litigated in
Board- representation or complaint proceedings," and, further, that
the parties to such proceedings must "seek an administrative investi-
gation of those compliance matters which the Board may properly
decide in collateral proceedings." In this regard, the Board stated
further as follows :
... the parties had no right to litigate in the present hearing the
adequacy of the Petitioner's compliance with the filing require-
117 NLRB No. 130.
COMPLIANCE STATUS OF CIGAR MAKERS, ETC. 857
ments of Section 9, and the hearing officer erred in permitting any
evidence to be presented with respect to such compliance questions.
We are aware that in a few cases where hearing officers have
similarly disregarded Board policy and permitted such questions
to be litigated, the Board, while reaffirming the non-litigability
of such questions, nevertheless, because of special considerations,
has considered the evidence, and passed upon the issues, assuming,
arguendo, that the questions were litigable or that the issue was
properly before it in a collateral proceeding. [Citations.] As a
result, perhaps, of these exceptional situations, some hearing
officers have continued to disregard the Board's reiterated policy
in such cases.
Under all the circumstances of this case, we shall grant the
Employer's Motion for an Administrative Determination of the
questions raised regarding the Petitioner's compliance. In the
administrative determination we have considered the evidence
erroneously adduced in this case. This is, however, the last such
exception to be granted. In all future cases, we shall apply our
policy strictly, and require the parties to present such compliance
issues for administrative determination completely separate and
apart from the representation or complaint proceedings. Where
motions for administrative determination are filed, the Board
decides whether a hearing and receipt of evidence is necessary to
dispose of the motion. Any evidence which may be adduced in
any other proceeding contrary to this policy will be disregarded
for all purposes.
Accordingly, the Board has granted the Employer's motion and
redetermined the Union's compliance status on the basis of its motion
and supporting documents as well as the evidence adduced in
Case No. 12-RC-8, and hereby makes the following administrative
determination :
(a) The Employer maintains that the Union failed to distribute
copies of its financial report to all its members, in violation of Section
9 (f) and (g).
The evidence presented shows that the Union's annual financial
statement, as well as its monthly financial statements, are printed in
the Union's monthly "Cigar Makers' Official Journal." Azpeitia,
president of the Union, testified that supplies of these Journals are
sent to each local, in whatever quantities the locals request, with
instructions from him that the Journals are "to be distributed to the
most members." The locals then determine their own methods of
distribution. They post the Journals on their bulletin boards every
month, and copies are available for any members who want them.
As experience has shown that many members have no interest in
obtaining copies, the Union prints fewer Journals than it has members,
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sends locals, in accord with their instructions, fewer copies than
they have members, with the express understanding that the locals
may obtain more copies upon request. We are satisfied that the
Union has met the requirements for filing and distributing its financial
reports pursuant to Section 9 (f) and (g) of the Act.
The Employer also argues that the financial statements furnished
the members are less comprehensive than those filed by the Union with
the Secretary of Labor. We find, however, that the Union made
available to its membership the financial data required by Section
9 (f) (B).
The Employer also contends that it appears that the AFL-CIO, with
which the Union is affiliated, does not furnish financial reports to the
members of the Union, and the Union's compliance is therefore de-
fective.' We find no merit in these contentions as it is sufficient that the
AFL-CIO financial reports are furnished to the Union, and as we are
administratively satisfied that the AFL-CIO is in compliance with
Section 9 (f) and (g).
(b) The Employer maintains that a number of individuals, although
not designated in the Union's constitution as officers, are nevertheless
officers who should be required to file Section 9 (h) non-Communist
affidavits. The Union's present constitution provides, under the head-
ing "International Officers, Nomination and Election," in relevant part,
as follows :
SEC. 11. The officers of the CMIU shall consist of a president,
first, second, third, fourth, fifth, sixth, seventh, eighth, and
ninth vice presidents, who are hereby constituted the international
executive board.
In ensuing sections, the constitution establishes an eligibility require-
ment for officers of continuous membership in good standing for at least
5 years; provides for terms of office of 4 years; and sets forth the meth-
ods for nominating and electing officers, for filling vacancies that occur
during the term of office by successorship anc' executive board elections,
and for impeachment of officers. The constitution also spells out the
broad administrative, executive, and appointive powers to be exer-
cised by the president and the executive board.
The Employer contends that, in addition to the president and the
vice presidents, the secretary is an officer. The constitution provides,
under the heading "Secretary," as follows :
SEC. 26. The international president shall appoint, subject to
the confirmation of the international executive board, a secretary,
whose duty it shall be to keep a correct record of the proceedings of
all conventions, a copy of which shall be kept on file in the inter-
I The hearing officer properly refused to permit the Employer to litigate the compliance
of the AFL-CIO with Section 9 (f) and (g).
COMPLIANCE STATUS OF CIGAR MAKERS, ETC. 859
national office, and submit a true and correct copy of all amend-
ments and resolutions adopted by the convention to local unions
within 30 days after the close of the convention.
He shall, under the supervision of the international president,
keep a record of all receipts, expenditures, and accounts of the
International Union, and he shall be held strictly accountable for
the correctness of same.
He shall prepare for publication a monthly report of the receipts
and expenditures of the International Union as provided for in
these laws, and attend to such correspondence and perform such
other duties as the international president may direct.
It thus appears that the constitution does not designate the secretary
as an officer or as a member of the executive board; that the secretary is
appointed and not elected; and that the eligibility requirements, term
of office, impeachment procedures, powers, duties, responsibilities, and
other constitutional provisions applicable to the officers are not ap-
plicable to the secretary. Clearly, therefore, the secretary is not an
officer of the Union under the Board's "constitutional" test, which the
Supreme Court has approved as a "reasonable, if indeed not a compel-
ling construction of the statute." 2
The Employer argues, however, that this constitutional test should
not be applied here because (1) the Union's president, Azpeitia, testi-
fied that he considered the secretary to be an officer, and (2) Azpeitia
had signed a Section 9 (f) form designating the secretary as an officer.
It is true that Azpeitia testified that he considered the secretary to be
an officer. However, although he was not evasive about this matter, he
was evidently confused about it. He testified, for example, that the
secretary is also the treasurer, although there is no designation in the
constitution of an international secretary-treasurer; and he also testi-
fied that the secretary prepares the financial reports, and distributes
them as well, as "our union is a small one . . . we have only one em-
ployee besides the Secretary-Treasurer of the union, another girl who
does secretarial work." Further, he indicated at various points in his
testimony that international representatives and delegates to AFL-
CIO conventions are officers, but later testified, as to the representa-
tives, that they were considered to be officers when they are also vice
presidents, "and when they are only representatives they are only
employees," and, as to the delegates, that he personally did not con-
sider them to be officers "because you see we consider officers, at least
we do, the Vice-Presidents, because we are deciding in meetings to-
gether." We note also that the Petitioner's Journals, which are dis-
tributed to the membership, list the names and addresses of the of-
ficers, but do not include the secretary. Finally, although Azpeitia
2 N. L. R B. v. Coca - Cola Bottling Co. of Louroavelle , Inc., 350 U. S. 264.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the secretary had filed a Section 9 (h) affidavit, Board
records show that this is not so.
It is also true, as the Employer points out, that the secretary was
designated as one of the Union's three principal officers in a form,
-required by Section 9 (f) and (g) to be filed with the Department
of Labor, which was signed by Azpeitia and submitted to the Depart-
ment of Labor with a covering letter signed by the secretary.' When
questioned about signing particular forms, Azpeitia testified
that "I am supposed to sign every one, and I think I am the one who
signed it. I don't think any other one signed it. I have to sign a lot
of things when I get to Washington. I do a lot of travelling, and
many times I have it on my desk, and when the Secretary gives it to
me I sign it . . . I sign so many papers, you know, there are too many,
that I really am confused sometimes. I don't know . . . it might be
[the secretary], it might be me, I don't know. I don't know. I am
worried to say that I am, when maybe I am not." 4
We find no merit in the Employer's claim that the Union failed to
designate all its officers in the constitution in order to circumvent the
filing requirements of Section 9 (h). The provisions as to officers in
earlier constitutions of the Union, including those in effect before
Section 9 (h) was added to the Act in the 1947 amendments, were
identical with the present designation of officers, with the one excep-
tion that there were 7 vice presidents until 1952, when the number
was increased to 9.
Under the circumstances of this case, we do not deem Azpeitia's
,testimony and the form designating the secretary as an officer of
sufficient probative weight to overcome the clear and unequivocal
:terms of the constitution,
The Employer also contends that the Union's delegates to the AFL-
CIO convention, its international representatives, and its interna-
tional auditors are officers required by Section 9 (h) to file affidavits.
The constitution, however, does not designate these groups as officers.
With regard to the delegates, while it is true that some of the con-
stitutional provisions for eligibility, for their nomination and elec-
tion, and for their replacement if a vacancy occurs, are similar to
those provided for officers, they are clearly not officers under the
Board's constitutional test. It is likewise clear that the international
representatives and the international auditors are presidential ap-
pointees with none of the attributes of officer status. Under all the
circumstances, therefore, we find that the delegates to the AFL-CIO
, This form lists the president, the first vice president, and the secretary, where the
form calls for the manner of selection, it designates the first two as "In convention"
and the secretary as "Appointment by president " It sets forth their compensations as
$10,513 77, $7,488.38, and $5,300 00 respectively.
4 Azpeitia and the secretary are located in Washington, D C The vice presidents are
located in Pennsylvania, Florida, Massachusetts, and Virginia
AUDUBON CABINET COMPANY, INC. 861
convention, the international representatives, and the international
auditors are not officers required by Section 9 (h) to file affidavits.
(c) Finally, the Employer contends that an affidavit filed under
Section 9 (h) by one of the Union's vice presidents is false. Investi-
gation of the truth and validity of affidavits filed under Section 9 (h)
is a matter within the jurisdiction of the Department of Justice .5
Accordingly, the Employer's final contention cannot affect the Union's
compliance status.
IT IS THEREFORE ADMINISTRATIVELY DETERMINED that Cigar Makers
International Union of America, AFL-CIO, is in compliance with
Section 9 (f), (g), and (h) of the Act.
MEMBER RODGERS took no part in the consideration of the above
Administrative Determination of Compliance Status.
5 See General Furniture Corporation , 109 NLRB 479.
Audubon Cabinet Company, Inc. and Period Tables, Inc. and
United Furniture Workers of America , AFL-CIO, and its Local
235
Period Tables , Inc. and Audubon Cabinet Company, Inc. and
United Furniture Workers of America , AFL-CIO, and its Local
235
Audubon Cabinet Company, Inc. and United Furniture Workers
of America , AFL-CIO , and its Local 235
Period Tables , Inc. and United Furniture Workers of America,
AFL-CIO, and its Local 235. Cases Nos. 35-CA-637,35-CA-643,
35-RC-1164, and 35-RC-1182. March 28, 1957
DECISION AND ORDER
On August 31, 1956, Trial Examiner James A. Shaw issued his In-
termediate Report in the above-entitled proceeding, finding that Audu-
bon Cabinet Company, Inc. and Period Tables, Inc., herein referred
to as the Respondents, had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. He further found that
Respondents had interfered with an election conducted among their
employees by the Board on August 24, 1955, to determine representa-
tives for the purpose of collective bargaining, and recommended that
the election be set aside. The Trial Examiner also found that Re-
spondents had not engaged in certain other unfair labor practices al-
leged in the complaint and recommended that those allegations be dis-
117 NLRB No. 128.