J. Ray McDermott & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1962

136 N.L.R.B. 331 (N.L.R.B. 1962)

McDERMOTT FABRICATORS, DIV. J. RAY McDERMOTT & CO. 331
Construction Company, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Claude Everett Construction Company, a Texas corporation , is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent committed unfair labor practices within the meaning of Sec-
tion 8(b)(7)(C) of the Act by picketing Claude Everett Construction Company
since March 16, 1961 , with an object of forcing or requiring Claude Everett Con-
struction Company to recognize or bargain with the Respondent as the representa-
tive of its employees , and forcing or requiring the employees of Claude Everett
Construction Company to accept or select it as their collective -bargaining representa-
tive, although the Respondent was not then certified as the representative of Claude
Everett Construction Company's employees and did not file a petition under Section
9(c) of the Act within 30 days from the commencement of its picketing.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
McDermott Fabricators , a Division of J. Ray McDermott & Co.,
Inc. and International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO,
Charging Party. Cases Nos. 15-C^1-1442 and 15-Cf1-1530.
March 16, 1960
DECISION AND ORDER
On March 31, 1960, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in his Intermediate Report. The Trial
Examiner also found that Respondent had not engaged in certain
unfair labor practices alleged in the complaints. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
136 NLRB No. 20.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
briefs, and the entire record in these cases.
Respondent contends that the Board lacks jurisdiction to adjudge it
guilty of the unfair labor practices complained of because the Inter-
national was not in compliance with the filing requirements of Section
9(f), (g), and (h) of the Labor Management Relations Act of 1947.1
In support of its position Respondent offered to litigate both the fact
and the necessity of compliance of the International and of various
of its subordinate organizations. It sought, by appropriate motion,
and by requests for subpenas, to compel Board officials to produce
documents, and officials of the International and its subordinate organi-
zations to give testimony, relating to the compliance status of these
organizations. The motion to produce was denied and the subpenas,
with one exception, were revoked by the Trial Examiner.
In his Intermediate Report, the Trial Examiner finally denied Re-
spondent's motion to dismiss the complaints for lack of compliance
on the grounds that the International was a party in interest and had
filed the charges in furtherance of such interest; it was not fronting
for a noncomplying organization; 2 and it had been found to be in
compliance at all times material hereto by the Board in Compliance
Status of International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, 123 NLRB
492.3
Respondent excepts to that ruling on the ground that, as it was not
a party to that case, the decision therein is not binding on it, and that,
in any event, the Board erred in finding the International to be in
compliance. It therefore renews its motion to dismiss the complaints.
Further Respondent cites decisions of the Fifth Circuit Court of
Appeals in N.L.R.B. v. Plant City Welding & Tank Co.,' as requiring
dismissal of the complaints herein.
We agree that the complaints must be dismissed. In the cited deci-
sions the court granted a respondent company's motion for review of
1 These provisions were repealed on September 14, 1959 (Labor-Management Reporting
and Disclosure Act of 1959, 73 Stat 519, Title II, Sec 201(d)). They apply, however, to
complaint proceedings in which the complaints issued prior to that date.
2 Inasmuch as there is ample support in the record for this finding and as it is well
established that organizations subordinate to an International need not be in compliance
in order for the International to be adjudged in compliance, we deny Respondent's motion
to dismiss insofar as it is based on the alleged lack of compliance of organizations sub-
ordinate to the International
8 Therein, the Board, Member Fanning dissenting, found that the International was in
compliance during its fiscal years 1953 through 1957, notwithstanding that it filed form
NLRB-1085, stating it had distributed copies of the financial report filed with the Depart-
ment of Labor, prior to the time such copies were actually distributed by publication in
its Journal, and notwithstanding that fewer copies of the Journal were published than the
number of members on its rolls
* 275 F. 2d 859 (1960 ) ; 281 F. 2d 688 (1960).
McDERMOTT FABRICATORS, DIV. J. RAY McDERMOTT & CO. 333
the Board's administrative determination of the compliance status of
the International.' In so doing, it stated that :
It is well settled that the non-compliance of the complaining
union may be asserted as a defense to enforcement of a Board
order adjudging the respondent guilty of unfair labor practices.
Labor Board v. Coca-Cola Bottling Co., 1956, 350 U.S. 264;
Labor Board v. Highland Park Co., 1951, 341 U.S. 322. Conse-
quently even though we-agree that this rule . . . possibly does
not permit inquiry into the accuracy of reports filed pursuant
to Section 9(f) and (g), it certainly does permit inquiry into the
sufficiency of those filings. For the Coca-Cola case, supra, held
that the fact of filing is open to inquiry, and the sufficiency of a
filing goes to the question of whether, in law, there has been a
filing.
Accordingly, the court ordered the Board to file with it a more definite
certified list adequately describing the various documents, exhibits,
and testimony involved in the compliance determination. The Board
filed such a list, and it appearing therefrom that the Board had not
itself reviewed all such materials but had instead relied upon the
report of the administrative investigation submitted by its Regional
Attorney, the court remanded the case to the Board to pass upon
the sufficiency of the filings.
Thereafter the Board did review the materials forming the basis of
the "report of administrative investigation." It concluded that though
such materials showed that the International was in compliance at all
times up to June 30, 1957, it was not in compliance during its fiscal
year ending June 30, 1958. The basis for that determination was the
lack of anything "in the record to suggest that the International took
any actions designed to make available to its members copies of the
financial report on the form required by the new regulations [of the
Department of Labor]." 8 As under Section 9(f) and (g) the Board
had no discretion to accept anything less than the availability to the
union membership of the financial report in the form required by the
Department of Labor, the Board there concluded that it could not find
the International to be in compliance for the fiscal year ending June 30,
1958. Accordingly, it dismissed the complaint in the Plant City Weld-
s The motion was made as a cross petition to the Board 's petition for enforcement of
its Order
"This failure was crucial with respect to the publication of the financial report cover-
ing the fiscal year ending June 30, 1957, but not of previous reports, because in 1957 the
Department of Labor issued new regulations prescribing a new mandatory form - on which
the fiscal reports required by Section 9(f) were to be made, doing away with the old
procedure which permitted the filing of the annual financial report prepared by most unions,
in lieu thereof . Though the International had filed the new report form with the Depart-
ment, it had also filed its annual report and made only the latter available to its members
by publication in its Journal.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing case,? because it had issued at a time when the International, the
Charging Party, was not in compliance.
In the instant case, the complaints issued on February 25, 1959, and
May 11, 1959, at a time when the Board had administratively deter-
mined that the International was in compliance for the fiscal year im-
mediately following the one involved in the Plant City Welding case.
This determination was based, in pertinent part, on the Board's receipt
of a Department of Labor postal card stating that the International
had filed a financial report on the form required by the Department of
Labor regulations, and the filing of NLRB Form 1085 by the Inter-
national, stating that it filed the necessary financial report with the De-
partment of Labor, sand had made it available to its members by publi-
cation in its Journal.' Examination of the October 1958 issue of its
official Journal' reveals, however, that in 1958, as it had done in pre-
vious years, the International had published only a summary of its an-
nual financial report. The published report entitled "Financial Report
1957-1958" consisted of four sections entitled "Summary of Funds
(July 1, 1957 to June 30, 1958)," "Building Funds," "National Tran-
sient Members Fund," and "National Transient Members Field Dues."
The accompanying letter to the members stated that the summary of
the annual financial report appears in order that the International
may fully comply with the intent and purposes of the filing require-
ments of the Act and that every member is at liberty to examine the
detailed financial report in the possession of his financial secretary.
Thus it appears that, in 1958, the International followed the same
practice and procedure that it had followed in 1957 and the years pre-
vious. That procedure suffered the same defect in 1958 as in 1957,
namely that nowhere does it appear that the International made avail-
able to its members copies of its financial reports on the form required
by Department of Labor regulations. Accordingly, as the Board has
determined that it cannot accept as compliance anything less than the
availability of financial reports on the forms required by the Depart-
ment of Labor, and as the court has determined that the sufficiency of
the filing, upon which the Board's administrative determinations of
compliance are based, are subject to review, we are constrained to find
that the International was not in compliance with the filing require-
ments of Sections 9(f) and (g) at the time the complaints herein
issued. We shall therefore dismiss the complaints.
[The Board dismissed the complaints.]
7 Plant City Weldsng and Tank Company , 133 NLRB 1092
8 The International had received an additional 30-day extension of time in which to file
the above reports and NLRB Form 1085 in order to enable it to publish "copies" of the
financial report in its October issue of its Journal
9 Boilermakers Blacksmiths Journal, October 1958, vol 70 , No. 10 , pp 22-23.