Loney Davenport

National Labor Relations Board - Board Decisions

Oct 21, 1969

173 N.L.R.B. 232 (N.L.R.B. 1969)

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