Masonry Contractors Association of Houston

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 893 (N.L.R.B. 1979)

MASONRY CONTRACTORS ASSOCIATION OF HOUSTON
Masonry Contractors Association of Houston, Texas;
Houston Chapter Associated General Contractors
of America, Inc.; Construction Employers' Associ-
ation of Texas and Earl S. Booker and Bricklayers
and Masons International Union, Local Union No.
7, Party to the Contract. Case 23-CA-7086
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 27, 1979, Administrative Law Judge Rob-
ert A. Gritta issued the attached Decision in this pro-
ceeding. Thereafter, Respondent Masonry Contrac-
tors Association of Houston, Texas; Respondent
Houston Chapter Associated General Contractors of
America, Inc.; and Respondent Construction Em-
ployers' Association of Texas filed exceptions and
supporting briefs, and the General Counsel filed a
statement of limited exceptions, a brief in support
thereof, and a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondents except to the Administrative Law
Judge's findings that each of them violated Section
8(aX2 ) of the Act by negotiating a collective-bargain-
ing agreement with a union negotiating committee
which included a supervisor of one of the employer-
members of Respondent Masonry Contractors Asso-
ciation of Houston, Texas, herein referred to as
MCA, and that Respondent Construction Employers'
Association of Texas, herein referred to as CEA, vio-
lated Section 8(a)(2) because a supervisor of one of its
employer-members interfered with the Union's inter-
nal affairs by participating in a contract ratification
election. For the reasons stated below, we find merit
to certain of those exceptions.
The operative facts, which are essentially undisput-
ed, are fully described in the Decision of the Admin-
istrative Law Judge. Each Respondent is a multiem-
ployer association representing employer-members in
the construction industry for purposes of collective
bargaining. It is undisputed that the respective associ-
ations represent and act as collective-bargaining
agent only for those members who specifically have
assigned the association their bargaining rights.
Counsel for the General Counsel, however, offered no
evidence to show which employers each Respondent
association was authorized to represent in collective
bargaining. During March and April 1978,' Respon-
dents' negotiators met with representatives of the
Union for the purpose of negotiating a renewal of the
collective-bargaining agreement which expired on
March 31. The Union's negotiating committee con-
sisted of its two business agents, two rank-and-file
bricklayers, and Jimmy Moeller, a bricklayer fore-
man for Vernon Masonry, Inc. Moeller and the rank-
and-file bricklayers were elected to the negotiating
committee by their fellow union members. The nego-
tiating team for Respondents was composed of Wal-
ter Vernon, president of Vernon Masonry, Inc.; Jack
Peiffer, construction manager of J. T. Thorpe Com-
pany; John E. Leavesley, vice president of Leavesley
McCollum Incorporated; Walter Murphy, president
of Linbeck Construction Corp.; George Minor, pres-
ident of Minor-Dederick Construction Company;
and several other contractor-employers.
After agreement has been reached, the proposed
collective-bargaining agreement was presented to the
Union's membership for ratification. Present at the
ratification meeting were Paul Yeates, owner of
Yeates Enterprises; Frank Cooper, construction man-
ager of Leavesley McCollum Incorporated; Bob
Kingsbury, vice president of Marlin Masonry; and
Tommy LaJaune, another Marlin Masonry vice pres-
ident. Cooper, Kingsbury, and LaJaune participated
in the ratification election by casting ballots.2 The
proposed contract was turned down by the member-
ship. On April 3, a second ratification vote was held,
which resulted in the contract being approved by a
tally of 168 to 153. Yeates, Cooper, Kingsbury, and
LaJaune were again in attendance, and each cast a
ballot.3 Immediately after the tally, Brian Harthcock,
chairman of the Union's negotiating committee, de-
clared the vote illegal because of the participation of
the above-named individuals. The two union business
agents immediately telephoned the International
Union for advice, and were instructed to delete the
four votes cast by the employer representatives from
the highest number of the tally. They were further
advised that, if the result were unchanged after delet-
ing the four votes, the election was a legal vote. Since
the tally, as modified, still resulted in the contract
I Unless otherwise noted, all dates are 1978.
2 No objections were raised to the participation of Cooper, Kingsbury, and
LaJaune on this occasion.
Cooper testified that he participated in the ratification elections because
he was a "paid-up member," and he felt it was his right. He further testified
that he cast a blank ballot, because "the outcome didn't make any difference
either way" as far as he was concerned.
245 NLRB No. 114
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being approved, the ratification vote was allowed to
stand.
The proposed contract was executed thereafter.
Moeller and John Collins signed the contract on be-
half of the Union. Vernon signed on behalf of Re-
spondent MCA, M. M. Woodruff signed for Respon-
dent CEA, and Dick Lewis signed for Respondent
Houston Chapter Associated General Contractors of
America, Inc., herein referred to as AGC. In accord-
ance with longstanding past pratice, the collective-
bargaining agreement included, inter alia, provisions
setting the terms and conditions of employment for
bricklayer foremen, as well as for journeymen and
apprentices.
As stated above, the General Counsel alleged, and
the Administrative Law Judge found, that Respon-
dents unlawfully interfered with the administration of
the Union in violation of Section 8(a)(2) of the Act by
negotiating a collective-bargaining agreement with a
union negotiation committee which included a super-
visor of an employer-member of MCA. The record
reveals that Jimmy Moeller, admittedly a foreman for
Vernon Masonry, engaged in direct negotiations with
his employer, Walter Vernon, who was acting as Re-
spondents' spokesman and was the agent of Respon-
dent MCA for purposes of collective bargaining. In
Nassau and Suffolk Contractors' Association, Inc., et
al., 118 NLRB 174, 187 (1957), the Board, faced with
similar facts, stated:
Although we have rejected the Trial Examin-
er's finding that Respondent Association domi-
nated Respondent Union because 2 master me-
chanics employed by members of the
Association were on the 12-member union nego-
tiating committee, who do believe that it is im-
proper for supervisors, even those with predomi-
nantly union loyalty, to serve as negotiating
representatives of employees; and to the extent
that the employer acquiesces in such participa-
tion the employer is guilty of unlawful interfer-
ence with the administration of the Union. It is
true that we have held that the employers of
master mechanics are not responsible for the
roles played by the latter in the internal affairs of
the Union and that their participation in bar-
gaining negotiations in behalf of the employees
does not, under the circumstances of this case,
justify a finding of union domination by the em-
We find no merit to Respondent MCA's contention that no showing was
made to establish that Walter Vernon was representing both his company
and MCA in negotiations with the Union. In addition to engaging in nego-
tiations with the Union, Walter Vernon executed the resulting collective-
bargaining agreement on behalf of MCA. Accordingly, we affirm the Admin-
istrative Law Judge's finding that Walter Vernon was an agent of Respon-
dent MCA for purposes of collective bargaining.
ployers of such master mechanics. But participa-
tion in bargaining negotiations vis-a-vis the em-
ployer is not merely a matter of a union's
internal affairs, and, although conduct may fall
short of proving control, it may nevertheless con-
stitute unlawful interference with a union's ad-
ministration.
... Employees have the right to be represented in
collective-bargaining negotiations by individuals
who have a single-minded loyalty to their interest.
... [The employers] were under a duty, we think,
when confronted with a union negotiating com-
mittee which included their own agents, to pro-
test the composition of the committee and refuse
to deal with it because it was tainted with an
apparent employer interest. By failing to register
such protest and by actually dealing with the
committee as constituted, Respondent ... acqui-
esced in such appointments and to that extent,
we find, interfered with the administration of the
Union in violation of Section 8(a)(2) and (1) of
the Act.
In view of the foregoing facts and authority, we
agree with the Administrative Law Judge's conclu-
sion that Respondent MCA violated Section 8(a)(2)
and (1) of the Act as alleged. However, we cannot
agree with his conclusion that Respondents CEA and
AGC are also chargeable with that violation.
There is no evidence that Respondents CEA or
AGC knew or had reason to know of Moeller's super-
visory status. Moeller testified that when introduc-
tions were made at the negotiating sessions, there was
no mention of job titles or responsibilities and that
the participants merely identified themselves by
name, "as a person." Moreover, the record is devoid
of any evidence which might show any connection
between Moeller and Respondents CEA or AGC, or
any of their members. See Nassau and Suffolk Con-
tractors' Association, supra at 184 and fn. 36. In the
absence of any evidence that Respondents CEA and
AGC were in any way responsible for the conduct of
Moeller, we dismiss the allegations in this regard
against them. Additionally, since there is no evidence
that any supervisor of an employer-member of CEA
or AGC served on the Union's negotiating commit-
tee, we shall dismiss in its entirety the allegation that
CEA and AGC violated Section 8(a)(2) and (1) of the
Act by allowing a supervisor to serve on that commit-
tee and by bargaining with it.
The Administrative Law Judge also found that Re-
spondent CEA, but not Respondents MCA or AGC,
violated Section 8(a)(2) and (1) by virtue of Cooper's
attendance at, and participation in, the Union's con-
tract ratification meeting. The General Counsel ex-
cepts to the failure of the Administrative Law Judge
894
MASONRY CONTRACTORS ASSOCIATION OF HOUSTON
to find that Respondents MCA and AGC similarly
violated the Act, and Respondent CEA excepts to his
finding that it was liable for Cooper's actions at the
ratification meeting.
With regard to the issues raised by the General
Counsel's exceptions, a brief review of the facts is in
order. Paul Yeates, Bob Kingsbury, and Tommy
LaJaune attended and cast ballots at the Union's rati-
fication meeting. Yeates was the owner of Yeates En-
terprises, an admitted member of Respondent MCA.
Kingsbury and LaJaune were vice presidents of Mar-
lin Masonry, an affiliate member of Respondent
AGC. However, Respondents MCA and AGC denied
the complaint's allegation that Yeates Enterprises
and Marlin Masonry were agents of MCA and AGC,
respectively. These denials are unanswered by the
General Counsel. Moreover, the General Counsel did
not establish that either employer had delegated its
bargaining authority to the multiemployer associ-
ations.
While there can be no question that the individual
employers of Yeates, Kingsbury, and LaJaune are re-
sponsible for their actions in this regard, those indi-
vidual employers are not parties to this proceeding.
Nevertheless, the General Counsel argues that MCA
and AGC are chargeable with the conduct of the
high-level supervisors in question upon a theory of
derivative, chain responsibility. In support of his ar-
gument, the General Counsel relies on a portion of
the Administrative Law Judge's decision in Universal
Towing Company, 198 NLRB 1124, 1129 (1972), as
follows:
For a reading of Nassau-Suffolk shows clearly
that an employer's responsibility for... this type
of unfair labor practice necessarily rests upon the
actual and not the potential activity of his own
supervisors in the union's affairs or (as also ap-
peared in Nassau-Suffolk) upon a derivative,
chain responsibility (also grounded in respondeat
superior) for the improper activity of the supervi-
sors of other members of an employers' associ-
ation which negotiates a single, master contractfor
all its members. [Emphasis supplied.]
The problem apparent in the General Counsel's argu-
ment is that in the instant case the Respondent asso-
ciations did not "negotiate a single, master contract
for all [their] members." Rather, they only negotiated
such a contract for those members who specifically
delegated their bargaining rights to one of the Re-
spondents. Inasmuch as no evidence was presented to
show which employers delegated their bargaining
rights to Respondents, we hold that the doctrine of
derivative, chain responsibility is inapplicable to the
case at bar. Accordingly, we affirm the Administra-
tive Law Judge's finding that Respondents MCA and
AGC did not violate Section 8(a)(2) and (I), as al-
leged in paragraphs 18(c) and (e) of the complaint.
We also find, contrary to the Administrative Law
Judge, that Respondent CEA is not responsible for
Cooper's interference with the administration of the
Union. We agree with the Administrative Law
Judge's finding and conclusion that, by attending the
union meeting and casting a ballot on the question of
ratification of the contract, Cooper, as an agent of
Leavesley McCollum, unlawfully interfered with the
administration of the Union in violation of Section
8(a)(2) and (1) of the Act. However, we cannot agree
with his further finding that Leavesley McCollum, as
the employer of Cooper, and Respondent CEA, as
Leavesley McCollum's principal for collective bar-
gaining, are jointly liable for Cooper's actions.
In making this latter finding, the Administrative
Law Judge relied on the undisputed fact that John E.
Leavesley, an agent of Leavesley McCollum, was a
participant in the collective-bargaining negotiations
which resulted in the contract at issue. However, we
find no evidence in the record to support his implicit
finding that John Leavesley was present at the nego-
tiations as an agent of Respondent CEA. Indeed, the
Administrative Law Judge expressly found that Re-
spondent CEA was represented on Respondents' ne-
gotiating committee by Jack Peiffer, construction
manager of J. T. Thorpe Company. Moreover, there
is not even a showing that Leavesley McCollum had
delegated its bargaining rights to CEA. Thus, it is
entirely possible that John Leavesley was represent-
ing only his employer in the negotiations. In any
event, we must conclude that the General Counsel
failed to carry his burden to show that Respondent
CEA was in any way responsible for, or chargeable
with, Cooper's action in attending and participating
in the Union's contract ratification procedure.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Masonry
Contractors Association of Houston, Texas, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with the administration of Bricklay-
ers and Masons International Union, Local Union
No. 7, by bargaining with any union negotiating com-
mittee which includes a supervisor of one of its mem-
ber-agents.
(b) Giving effect to the collective-bargaining agree-
ment executed on April 25, 1978, with the Union,
provided, however, that nothing in this Order shall
require Respondent to rescind, vary, or abandon any
wage, hour, seniority, or other substantive feature of
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the relationship between the members of Respondent
and their employees which may have been established
in the performance of any contract between Respon-
dent and the Union, or to prejudice the assertion by
employees of any rights they may have thereunder.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Post, at its business office in Houston, Texas,
and at all jobsites now being operated by it or its
member-agents at which members of the Union are
employed, copies of the attached notice marked "Ap-
pendix."5 Copies of said notice, on forms provided by
the Regional Director for Region 23, after being
signed by an authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respon-
dent to insure that such notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allega-
tions in the complaint be, and they hereby are, dis-
missed.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice;
we intend to carry out the Order of the Board.
WE WILL NOT interfere with the administration
of Bricklayers and Masons International Union,
Local No. 7, by bargaining with any union nego-
tiating committee which includes a supervisor of
one of our member-agents.
WE WILL NOT give effect to the collective-bar-
gaining agreement executed on April 25, 1978,
with the Union, provided, however, that nothing
in the Board's Order requires us to rescind, vary,
or abandon any term or condition of employ-
ment established in the performance of any con-
tract between us and the Union, and provided,
further, that nothing in the Board's Order preju-
dices the assertion of any rights you may have
under that contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed in Section 7 of the
Act.
MASONRY CONTRACTORS ASSOCIATION OF
HOUSTON, TEXAS
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITIA, Administrative Law Judge: This case
was heard on November 20. 1978, in Houston. Texas,'
based upon a charge filed by Earl S. Booker, an individual.
on May 26, 1978. and amended on May 30 and June 21,
1978. A complaint issued by the Regional Director for Re-
gion 23 of the National Labor Relations Board on July 7,
1978.7
The complaint alleged that Respondents Masonry Con-
tractors Association of Houston, Texas (herein called
MCA), Houston Chapter Associated General Contractors
of America, Inc., (herein called AGC). and Construction
Employers' Association of Texas (herein called CEA), con-
ducted contract negotiations with Bricklayers and Masons
International Union, Local Union No. 7,2 (herein called the
Union), at a time when members of the Union's negotiating
and arbitration committee were supervisors of Respon-
dents; which resulted in rendering unlawful aid, assistance,
and support to the Union in violation of Section 8(a)(2) and
(I) of the National Labor Relations Act.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submitted
by the General Counsel and Respondents MCA, AGC, and
CEA and the Union. The Charging Party did not submit a
brief. All briefs were duly considered.
Upon the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and upon substantial, reliable evidence considered
along with the consistency and inherent probability of testi-
mony, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR ORGANIZAION-
PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, MCA admits, and I find that
MCA is a Texas corporation which represents its members
' George P. Reintjes Company was deleted and Bricklayers and Masons
International Union, Local Union No. 7, was added to the style of the case
by amendment from the General Counsel at the hearing.
2 All dates herein are 1978, unless otherwise specified.
896
MASONRY CONTRACTORS ASSOCIATION OF HOUSTON
and associate members engaged in the building and con-
struction industry, and in collective bargaining when prop-
erly authorized. Jurisdiction is not in issue. In the past 12
months, members and associate members of MCA. pur-
chased and received materials valued in excess of $50,000
from firms located outside the State of Texas, and such
materials were shipped direct to their facilities in Houston,
Texas. I conclude and find that MCA is an agent of Em-
ployers engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2). (6), and (7)
of the Act.
The complaint alleges, AGC admits, and I find that AGC
is a Texas corporation which represents its members and
associate members engaged in the building and construc-
tion industry, in collective bargaining when properly autho-
rized. Jurisdiction is not in issue. In the past 12 months,
members and associate members of AGC purchased and
received materials valued in excess of $50,000 from firms
located outside the State of Texas, and such materials were
shipped direct to their facilities in Houston, Texas. I con-
clude and find that AGC is an agent of Employers engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
The complaint alleges, CEA admits, and I find that CEA
is a Texas corporation which represents its members and
associate members engaged in the building and construc-
tion industry, in collective bargaining when properly autho-
rized. Jurisdiction is not in issue. In the past 12 months,
members and associate members of CEA purchased and
received materials valued in excess of $50,000 from firms
located outside the State of Texas and such materials were
shipped direct to their facilities in Houston, Texas. I con-
clude and find that CEA is an agent of Employers engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondents MCA, AGC. and
CEA admit, and I conclude and find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
I1. THE ALLEGED (AXI) AND (2) CONDUCT
A. Preliminary Complaint Allegations
The complaint alleges for each of the named Respon-
dents, inter alia, the following: Respondent is a nonprofit
Texas corporation with principal offices and place of busi-
ness located in Houston, Texas. It is authorized to represent
and act as collective bargaining agent for its members and
associate member construction firms and companies en-
gaged in the building and construction industry in Texas.
Respondents MCA and AGC denied the allegation
pleading that the respective association represents and acts
as collective bargaining agent only for those members who
have specifically assigned the association their bargaining
rights.
Respondent CEA admitted the allegation, but pointed
out in its brief that the association represents, for collective
bargaining purposes, whichever member has assigned their
bargaining rights with respect to a particular craft.
Additionally CEA denied allegations naming certain em-
ployers as members of their association and that the named
employers were acting on behalf of the association.
No evidence was offered to show the employer members
of the Respondent association CEA, nor was any evidence
offered to show which employers each Respondent associ-
ation was authorized to represent in collective bargaining.
The denials of agency for the employers involved also re-
main unanswered by the General Counsel.
B. Negotiations, Ratification. and Execution of the Contract
The uncontroverted facts are as follows:'
MCA, AGC, and CEA have engaged in negotiations
with the Union in preceding years and have been parties to
successive collective bargaining contracts. The most recent
contract, prior to that discussed here, terminated on March
31. Negotiations began prior to termination.
Three negotiating meetings were held, one each on
March 30, 31, and April 3. The Union's negotiating com-
mittee consisted of Jimmy Moeller, bricklayer foreman for
Vernon Masonry Company:; Brian Harthcock. bricklayer:
Jack Collins, bricklayer: and L. A. Bergeron and H. A.
(Pinky) Brown, both business agents of the Union. A sixth
member of the negotiating team was Bob Mason, business
agent from the Galveston bricklayers local. The negotia-
tions team for Respondents was composed of Walter Ver-
non, president of Vernon Masonry, Inc.; Jack Peiffer, con-
struction manager of T. J. Thorpe Company; John E.
Leavesley, vice president of Leavesley McCollum Incorpo-
rated: Walter Murphy, president of Linbeck Construction
Corp.: George Minor, president Minor-Dederick Construc-
tion Company, and several apparent contractor-employers
who are identified by name only.
Jimmy Moeller was present on the union negotiating
committee at all three sessions, whereas each employer rep-
resentative was absent from one or two of the sessions.
The parties' second meeting on March 31 culminated in
an agreement with the union committee to submit Respon-
dents' offer to the union membership for ratification. The
Union called a special meeting for the ratification vote. Pre-
sent at the union meeting were Paul Yeates, owner of
Yeates Enterprises; Frank Cooper, construction manager of
Leavesley McCollum; Tommy LaJaune, vice president of
Marlin Masonry; and Bob Kingsbury, vice president of
Marlin Masonry.' Of the employer representatives present,
Cooper, LaJaune, and Kingsbury actually cast ballots. The
tally was 160 "No" and 102 "Yes." As a result of the rejec-
tion, the parties met again on April 3 for further negotia-
tions. Again the union committee agreed to submit Respon-
dents' offer to the membership for ratification. April 3 was a
regular monthly meeting night which now included the sec-
ond ratification vote. Employer representatives Yeates,
Cooper, LaJaune, and Kingsbury were again in attendance
I There is no factual issue on any matenal fact, therefore no credibility
resolutions are necessary for my findings.
Although several other employer representatives were thought to be pre-
sent at one or the other ratification votes I have only considered those enu-
merated because of positive identification in the record and positive pleading
by the General Counsel.
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and cast ballots on the contract ratification. The tally was
168 "Yes" and 153 "No." Immediately after the tally, Brian
Harthcock, past superintendent and chairman of the union
negotiating committee, declared the vote illegal.
Harthcock considered the vote invalid because of the sta-
tus of the individuals objected to. Yeates is the owner of
Yeates Enterprises, an admitted member of MCA. Cooper
is the admitted construction manager of Leavesley McCol-
lum incorporated, but the corporation is denied as a mem-
ber of CEA. As construction manager, Cooper instructs su-
perintendents and gets them lived up on their jobs.
Depending upon the size of the job, the superintendent may
have foremen under him. Cooper is salaried and has been
for the last 6 years of his 13-year employment with the
Company. At present, the Company has five jobs under
Cooper's responsibility. Cooper, although having not seen
anything in writing, does know that John Leavesley. Pres-
ident of the Company, goes to CEA meetings, and Cooper
thinks the Company is a member of CEA. In March,
LaJaune was a salaried foreman for Marlin Masonry, an
affiliate member of AGC. He supervises the entire job, in-
cluding other foremen, if any. As of September !976, when
the president of Marlin died, LaJaune became a share-
holder in the Company. In June, LaJaune became vice
president of Marlin and functions as superintendent on the
job. Bob Kingsbury is and had been vice president of Marlin
Masonry and a shareholder since September 1976. As vice
president, Kingsbury functions as superintendent over all
the jobs the Company has going at any given time.
At the conclusion of the vote, business agents Bergeron
and Brown telephoned Wayne Carpenter of the Interna-
tional Union for advice. Harthcock spoke to Carpenter ex-
plaining the presence of the employer representatives in the
voting. Carpenter instructed Harthcock to delete the four
votes cast by the employer representatives from the highest
number votes counted. If the result was not changed by the
deletion, the election was a legal vote. Since the result was
not changed the ratification stood.
The contract was executed by the parties, with Jimmy
Moeller and John Collins signing in behalf of the Union.
Respondents executed the contract with Walter Vernon
signing for MCA, M. M. Woodruff signing for CEA. and
Dick Lewis signing for AGC. The agreement became effec-
tive on April 25 to be automatically renewed on March 31.
1979, unless terminated in accord with its terms.
Discussion and Conclusions
The issues to be decided are:
Whether Respondents and/or their member employers
violated Sections 8(a)(1) and (2) of the Act by negotiating a
collective-bargaining agreement with a union's negotiating
committee which included a supervisor of one of the em-
ployer members of a Respondent.
Whether Respondents and/or their member employers
violated Section 8(aXl1) and (2) when several employer offi-
cers and supervisors of employer members of one or more
of Respondents participated in the union's internal affairs.
The General Counsel does not claim nor does the record
contain any evidence that Respondents or any of their
member employers were responsible for placement of brick
foreman Moeller on the union negotiating committee. Nei-
ther does the General Counsel claim that Respondents or
their member employers attempted to manipulate or influ-
ence foreman Moeller to the detriment of the Union he
represented. In short, the alleged violation relative to the
negotiating committee rests entirely on Moeller's presence
on the committee during the three negotiating sessions.
Moeller's seat on the negotiating committee is unquestion-
ably the result of a free union membership vote.
Furthermore, the General Counsel does not claim nor
does the evidence show that the employer representatives
exercised or attempted to exercise any control or influence
over the union membership or the mechanics of the election
when casting their ballots on ratification. The evidence does
show that Respondents and the Union have engaged in the
suspected conduct for many years without incident or criti-
cism.
Jimmy Moeller. the brick foreman of Vernon Masonry,
an admitted member of MCA. was sitting on the union
negotiating committee at the behest of his fellow union
members. That is not to say his employer, Walter Vernon,
admittedly the president of Vernon Masonry, was surprised
to find Moeller representing the Union when Vernon ar-
rived to represent Respondents. However, Vernon did not
protest Moeller's presence on the committee, nor did he
refuse to negotiate with the union committee. As spokes-
man for the Respondents' negotiating committee it would
unquestionably have been Vernon's responsibility to protest
or refuse to bargain.
AGC admits that George Minor and Walter Murphy
were acting on behalf of AGC as members of Respondents'
negotiating committee.
CEA represented on the record that J. T. Thorpe was a
member of their association and Thorpe's construction
manager, Jack Peiffer, sat as a member of Respondents'
negotiating committee. CEA denied the membership of
Leavesley McCollum Incorporated, albeit construction
manager Cooper testified that he thought the Company was
a member of CEA.
Thus, negotiating team has been presented representing
the three named Respondents and consisted of employer
members of the individual Respondents. The team engaged
in direct negotiations with the Union negotiating commit-
tee, which included a foreman (Moeller) from the C'ompany
owned by the spokesman for Respondents' team.
General Counsel argues that the Board has a per se rule.
Where the representatives of the union are supervisors of
the employer and the employer participates in negotiations
with such supervisors, then unlawful interference in the
Union's internal affairs occurs.
Respondents individually and collectively argue that the
Board does not apply a per se rule, but rather views the
total circumstances to evaluate whether affirmative interfer-
ence has occurred.
All parties agree and I concur that Nassau and Suffolk
Contractors' Association, Inc. is controlling. However, the
General Counsel's anticipation of defenses and the defenses
raised by Respondents suggest that the application o the
Board rule is not altogether mechanical. Furthermore, the
cases cited by all parties to some measure create consterna-
tion when they are viewed toward a resolution. In view of
my conclusions and findings, a recapitulation of those cases
898
MASONRY CONTRACTORS ASSOCIATION OF HOUSTON
and arguments would appear superfluous. hut I am con-
strained to point to what I think must he ultimately consid-
ered.'
In the Nassau case, the Board had an association respon-
dent and an appendix to the caption, which included
named members of Respondent. Mere reading of the case
does not make one privy to the pleadings. In the present
case, the question of finding a member of an association
liable without evidenced assignment of collective bargain-
ing rights remains unanswered by Nassau. Does Nassau re-
quire that for an association respondent to be held in viola-
tion an employer member must be directly confronted by
his supervisor sitting on behalf of the Union? Nassau does
find that two named employer respondents were sitting with
their two supervisors and relegates the violation to each
respective employer, the association, and its members. Ex-
cept for the direct confrontation of one member, would the
association and all its members be in violation? In many
instances, a supervisor (union member) is elected to an of-
fice and by virtue of that office is a negotiator for the union.
In any case, the union's selection is usually based on expe-
rience and ability. On the one hand, a per se approach con-
struing vice in the composition of the negotiating commit-
tee automatically will deprive a union of choosing one of its
own whom it deems possesses the expertise necessary for
fruitful bargaining. On the other hand, when supervisors
are allowed to serve, a vice is created in that an employer
may. upon speculation that a certain member (with such
expertise) will be chosen by the union, simply elevate the
member to supervision, thus requiring the member to resign
his new position to serve his union. Either result is an inter-
ference with employees' rights.
Following careful reading of Nassau, it appears that even
in cases where General Counsel disclaims any theory or
fails to proffer any evidence to establish that the substantive
evils contemplated by Section 8(a)(2) exist. the holding of
Nassau (that there be protest and refusal to bargain), seem-
ingly would apply without exception. Nassau may allow an
employer unwillingly confronted by his agent-supervisor,
acting on behalf of the union, to only protest his agent's
presence in behalf of the union, thereby cleansing himself of
interference with the union's negotiations by putting the
union on notice. Bargaining histories do not reveal such
protests as being a prescription that employers regularly
follow. Yet it appears to be, at least, a part of the rule of
Nassau.
I am bound to apply Board law to the case. The evidence
is clear that Moeller is a supervisor (no matter how minor)
and sat on the Union's negotiating committee directly op-
posite his employer, Walter Vernon, owner of Vernon Ma-
sonry, Inc. Walter Vernon was representing both his com-
5
The cases in question are: The Powers Regulator Company. 149 NLRB
1185 (1964); Anchorage Businessmen's Association, Drugstore nit, and its
Member Employers, 124 NLRB 662 (1959); G H Towing Company, 168
NLRB 589 (1967); Jos. Schlitz Brewing Company, 139 NLRB 1466 (1962):
Local 636 of the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada. AFL -CIO
v. N.L.R.B., 287 F.2d 354 (D.C.Cir. 1961): Banner Yarn Dying Corporation,
139 NLRB 1018 (1962): Hertzka & Knowles 206 NLRB 191 1973). enfd. in
part 503 F.2d 625 (1974); E.E.E. Co., Inc.. 171 NLRB 982 (1968): Allied
Chemical Corporation, Wilputte Cake Oven Division, 175 NLRB 974 (1969).
pany and MCA in negotiations with the Union. As MCA's
representative. Vernon was the agent of both the associ-
ation and its members from whom he was negotiating.
Therefore, I conclude and find that MCA. Vernon Ma-
sonry, Inc., and those members of MCA who had assigned
their bargaining rights to MCA engaged in conduct consti-
tuting unlawful interference with the administration of the
Union in violation of Sections 8(a)(2) and (I) of the Act.
Furthermore, I conclude and find that Walter Murphy
and George Minor. admitted agents of AGC. interfered
with the administration of the Union in violation of Sec-
tions 8(a)(2) and (I) of the Act by negotiating with the
union negotiating committee comprised of foreman Moel-
ler. I additionally conclude and find Murphy and Minor to
be agents of the members of AGC. who had assigned their
bargaining rights to AGC, causing these members and
AGC to be in violation of Sections 8(a)(2) and (I) by un-
lawful interference with the administration of the Union.
I also conclude and find that J. T. Thorpe Company was
a member of CEA, and the company and Respondent CEA
were represented on Respondent's negotiating committee
by Jack Peiffer, construction manager of Thorpe. In view of
this dual representation, I find Peiffer to be an agent of
CEA and an agent of Thorpe, acting for the principals CEA
and its members who had assigned bargaining rights to
CEA. By such conduct, CEA and its members engaged in
bargaining with the Union and J. T. Thorpe unlawfully
interfered with the administration of the Union in violation
of Sections 8(a)(2) and (1), and I so conclude and find.
With regard to the officers, executives, and high level su-
pervisors participating in the internal affairs of the Union. I
reject all arguments of the suspect individuals' status as
union members. I do so because the vice complained of is
more than an uneventful balloting for union office or some
unrelated trivia. Here, eares., Cooper, LaJaune, and Kings-
bury were voting on ratification of the very contract that
was negotiated in violation of the Act. The conduct of each
was clearly an extension of the earlier vice, vis a vis the
negotiating teams, in an effort to insure acceptance of the
new contract. I note particularly that Yeares is an owner
and an admitted member of MCA; Cooper is construction
manager of Leavesley McCollum Inc.. an employer com-
pany I find to be a member of CEA: LaJaune and Kings-
bury are officers, shareholders. and supervisors of an em-
ployer I find to be a member of AGC. All concerned meet
the criteria for high-level supervision and I so find. As high
level supervisors, I find that each is an agent of their respec-
tive employer. However, on this record. I cannot find that
Yeares, Cooper, Lalaune, and Kingsbury are agents of any
other employer members of the named Respondents. Nei-
ther can I find that their respective employers have violated
the Act, since they are not before me.
As previously found, the named Respondents are liable
as principals for the acts of their employer members who
functioned as agents on the negotiating committee. Only
one of these employer agents is common to the negotiation
and the internal union election. The other employer mem-
bers are not agents of any named Respondent. and there-
fore their conduct is not chargeable to any Respondent. I
therefore conclude and find that by attending the union
meeting and casting a ballot on the question of ratification
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract, Cooper, as agent of Leavesley McCollum.
has unlawfully interfered with the administration of the
Union in violation of Sections 8(a)(2) and (1) of the Act. I
further find that Leavesley McCollum Inc., as the employer
of Cooper, and CEA as the principal of Leavesley McCol-
lum's agency for collective bargaining are jointly liable for
the acts of Cooper voting in the union election and thereby
interfered with the administration of the Union in violation
of Sections 8(a)(2) and (I) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
1. Each employer sitting on the Respondents' negotiat-
ing committee was acting as the agent of its respective asso-
ciation, and therefore each named Respondent unlawfully
interfered with the administration of the Union in violation
of Section 8(a)(2) and (1) of the Act by participating in
negotiations with a union committee containing a supervi-
sor of a Respondent association member-agent.
2. Each employer-member of each Respondent associ-
ation who had assigned bargaining rights to the association
and was bound by the agreement negotiated by the agents
of Respondents is a principal of this bargaining agency and
has thereby unlawfully interfered with the administration of
the Union in violation of Section 8(a)(2) and (1) of the Act.
3. Leavesley McCollum, in its capacity as bargaining
agent for Respondent CEA and as principal for supervisor
Cooper, is responsible for the unlawful interference in the
administration of the Union by Cooper's casting of a ballot
to ratify the contract negotiated for Respondent CEA and
its authorized members.
4. Respondent CEA, by virtue of Leavesley McCollum's
agency for collective bargaining with the Union, has unlaw-
fully interfered with the administration of the Union in vio-
lation of Sqftion 8(a)(2) and (I) of the Act through the
conduct of Leavesley McCollum's contruction manager,
Cooper.
5. 1 cannot, upon this record, find any employer-member
of any Respondent who had not assigned bargaining rights
to Respondents thereby binding themselves to the agree-
ment negotiated, liable for the conduct of a member-agent
of any Respondent.
6. The aforesaid violations constitute unfair labor prac-
tices affecting commerce within the meaning of Section
2(2), (6). and (7) of the Act.
III. Hi RMEID)Y
It having been found that Respondents have engaged in
and are engaging in unfair labor practices in violation of
Section 8(a)(2) and () of the Act, it will be recommended
that Respondent, and any of their member-agents cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
To make effective for the Union's members the guarantee
of rights contained in Section 7 of the Act, it will be recom-
mended that Respondents and their member-agents cease
and desist from it any manner infringing upon the rights
guaranteed by the Act.
[Recommended Order omitted from publication.]
900