Loney Davenport

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Loney Davenport d/b/a Loney Davenport , Contractor and Cement Masons Local No . 812, a/w Operative Plasterers' and Cement Masons' International As- sociation of the United States and Canada, AFL - CIO. Case 15-CA-3274 October 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 15, 1968, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Decision and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Baton Rouge, Louisiana, on June 17, 1968,' pursuant to a charge filed on March 21 by Cement Masons Local No. 812, a/w Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, herein called the Cement Masons, and pursuant to a complaint issued on May 2. The primary issue is whether the Respondent, Loney Davenport, d/b/a Loney Davenport, Contractor, herein 1 All dates, unless otherwise indicated, refer to the year 1968. 173 NLRB No. 39 called Davenport, has given unlawful aid, assistance, and support to the Interested Party, Allied Federation of Unions Local 101, a/w National Federation of Independent Unions, herein called the Independent Union, in violation of Section 8(a)(1) and (2) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, Davenport, and the Independent Union, I make the following FINDINGS OF FACT 1. THE BUSINESS OF DAVENPORT AND THE LABOR ORGANIZATIONS INVOLVED Davenport, a contractor engaged in the business of cement finishing in the construction industry in East Baton Rouge Parish, Louisiana, is a member of the United Contractors Association, Inc., herein called the Association, which repre- sents Davenport and other employer-members in negotiating collective-bargaining agreements with various labor organi- zations, including the Independent Union. The employer- members of the Association annually receive materials valued in excess of $50,000 directly from outside the State. Davenport admits, and I find, that the Association and its members, including Davenport, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Cement Masons and the Independent Union are labor organizations within the meaning of the Act II. THE ALLEGED UNFAIR LABOR PRACTICES A Nonunion Job Picketed In December 1967, Davenport was engaged as a subcontrac- tor to do the cement finishing work on a warehouse job on River Road in the Parish of East Baton Rouge. Davenport himself worked as a cement finisher on the job, along with a crew of four other nonunion cement finishers. On March 7, Freddy Sewell, an assistant business agent for the Cement Masons, visited the jobsite and requested that Davenport use cement finishers for that AFL-CIO union. Davenport replied that the Cement Masons "wouldn't give me any of their men." (Davenport had been in a dispute with the Cement Masons concerning Davenport himself working with the tools, and his wanting to use union cement finishers only on larger jobs, like this one) Sewell promised to talk to Business Agent Elijah Jefferson about the matter. (Although Davenport is a Negro contractor, the refusal to furnish union men was apparently not racially motivated, Cement Masons Business Agent Jefferson also being a Negro.) The next day, March 8, the Cement Masons began picketing the job with signs reading: "L. Davenport, Sub-Contractor has violated Cement Masons Local Union 812 Contract." The picketing ceased several hours later when the prime contractor, Don H. Schmieder (president of Baton Rouge Wood Products, Inc.), replaced Davenport and his crew with cement finishers dispatched by the Cement Masons to the job. B. Joining Independent Union On the following day, Saturday, March 9, Prime Contractor Schmieder telephoned Davenport and invited him to the LONEY DAVENPORT 233 jobsite to discuss whether he and his employees should join the Independent Union to "get ourselves straight to do the job." Davenport immediately telephoned some of his employees, reported to them his conversation with Schmieder, and invited them to join him at Schmieder's office. They arrived at the jobsite shortly before noon. Prime Contractor Schmieder introduced Davenport to representatives of the Association and the Independent Union, who explained that the two organizations were parties to a collective-bargaining agreement, and that by joining them and signing the agreement, Davenport would be "union" on the job, and could thereby prevent further picketing by the Cement Masons. Davenport signed applications to join both organizations, signed the multiemployer agreement, and bor- rowed $220 from Schmieder to pay the Association a fee of $100, plus 12 months dues at $10 a month (The agreement contains a checkoff clause and a union-secunty provision requiring all employees to become union members "in accord- ance with the law." Article 17, section 3, of the Independent Union's constitution reads "Any member that moves into the status of an employer, shall not be eligible to attend meetings or vote in the affairs of the Union ") In the meantime, while Davenport was arranging for Schmieder to write out a check to the Association for the $220, the Independent Union representative was getting two of Davenport's employees to sign membership application and checkoff authorization cards. Instead of waiting for the $25 initiation fee and the first month's dues of $4 to be checked off from their wages, the two employees each borrowed $29 from Davenport to pay the fee and dues immediately. At Davenport's request, Prime Contractor Schmieder wrote out a check to the Independent Union for $87, to cover the fee and dues for Davenport and the two employees. (The following week, Davenport deducted the advances from the employees' wages.) Relying on Davenport's pretrial affidavits, the General Counsel contends in his brief that "Without leaving the room, Davenport and his four men signed authorization cards," and that Davenport gave the Independent Union representative "a check of $116 to pay the initiation fees and dues of his four employees." However, at the trial, Davenport credibly testified that only two of the four nonunion cement finishers joined; the parties stipulated that Davenport and two employees "signed a membership application and check-off authoriza- tion" on March 9, and that "a total of $87" was paid to the Independent Union, covering a $25 inititation fee and $4 in dues "for Mr. Davenport and the two employees"; and Davenport-offering to produce the checks to the Association and the Independent Union "if you want to see them"- credibly testified that it was Prime Contractor Schmieder who signed the check to the Independent Union. (It was clear that Davenport was advancing the money to the employees, whether he or Schmieder signed the check.) Furthermore, Davenport appeared on the stand to be attempting to recall accurately what had happened, and I credit his testimony that he was outside the room when the Independent Union representative was talking to the two employees who agreed to join and who requested Davenport to advance them the money. (Although Davenport's pretrial affidavits ordinarily would be considered admissions, I do not credit all the statements in them because (1) some of the statements-par- ticularly those concerning happenings on March 9-are abbre- viated to the point of being ambiguous, (2) the affidavits contain a number of inaccuracies, and (3) the penmanship is so poor that the affidavits are not readily legible.) Moreover, even if the statement in one of the affidavits were credited, that "Without leaving the room we all signed," the statement does not support the contention in the General Counsel's brief that Davenport not only joined the Independent Union himself, but "insisted that his employees also join " C. Contentions and Concluding Findings The complaint herein alleges that Davenport illegally supported the Independent Union by urging and soliciting his employees to join it, by paying dues and initiation fees to it on behalf of his employees, and by executing the collective- bargaining agreement with it at a time when it "was not the duly authorized representative of an uncoerced majority of its employees." In his brief, Davenport contends that the em- ployees joined the Independent Union voluntarily; that "there would be nothing unlawful in making the employees a loan," or an "advance," to pay the inititation fee and dues; and that the collective-bargaining agreement was lawfully executed under the provisions of Section 8(f) of the Act Although Davenport is engaged exclusively in the construction industry, the General Counsel's brief cites Board cases arising outside that industry, and ignores Section 8(f) of the Act. Section 8(f) provides, in part, that "an employer engaged primarily in the building and construction industry" may lawfully make an agreement with a labor organization in the construction industry, "covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry"-even though "the majority status of such labor organization has not been established" and the agreement contains a union security clause-provided the recognized labor organization is not illegally "established, maintained, or assisted " This statutory provision, concerning so-called prehire agreements in the construction industry, is clearly applicable. Therefore, the execution of the collective- bargaining agreement was lawful, even if the Independent Union did not then represent a majority, unless the Independ- ent Union was unlawfully "established, maintained or assisted" in violation of Section 8(a)(2) of the Act. The General Counsel has not sustained his burden of proving that Davenport illegally supported the Independent Union Even if it is assumed that Davenport would have been unlawfully assisting the Independent Union if he had "urged and solicited" his employees to join at the time he was signing the "prehire" agreement containing the union security clause, there is no evidence that he even requested the employees to join. He was not present in the room when the Independent Union representative spoke to the two employees who decided to join. Although they (and two others) were at the jobsite that morning at Davenport's invitation, to talk to the Independent Union representative "to get ourselves straight to do the job," these two employees who did join apparently acted voluntarily, wanting (like Davenport) to be "union" in order to be able to work on the job without a picket. Concerning Davenport's payment of the two employees' initiation fee and first month's dues, both employees signed lawful check-off authorization cards at the time, and requested Davenport to make them an "advance" for the required amount, to pay the fee and dues immediately. The deduction from their wages and the payment to the Independent Union 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were properly authorized by the employees. The General Counsel's final contention is that Davenport illegally supported the Independent Union by joining himself and participating in its affairs. There is no evidence that Davenport participated in its affairs, and the General Counsel cites no authority for the contention that Davenport, a working contractor, gave illegal support to the Independent Union by joining as an employer member The contention has no merit. The General Counsel has therefore faded to prove by a preponderance of the evidence that Davenport illegally sup- ported the Independent Union. CONCLUSIONS OF LAW Davenport has not engaged in conduct violative of Section 8(a)(1) or (2) of the Act Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act the issuance of the following ORDER The complaint herein is hereby dismissed in its entirety