Higgins, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1952

100 N.L.R.B. 829 (N.L.R.B. 1952)

HIGGINS; INC. 829
All sales of the supermarket are made locally. For the 12-month
period ending June 30, 1952, the Employer purchased approximately
$28,000 worth- of fruits and vegetables outside the State of Maine.
During the same period, the lessee shipped to Lewiston from its
Boston, Massachusetts, warehouse products valued at approximately
$290,000.1 Direct out-of-State purchases, therefore, amount to
$318,000, or 63.6 percent of the minimum amount of $500,000 necessary
for the assumption by this Board of jurisdiction over the Employer's
enterprise.2
The Employer purchased $234,000 worth of meats and poultry dur-
ing the above 12-month period. All these purchases were made
locally, although most of the products had an out-of-State origin-'
These purchases constitute 23.4 percent of the minimum jurisdictional
amount of $1,000,000 established by the Board in indirect inflow cases.4
Inasmuch as the direct and indirect out-of-State purchases for
this supermarket, either alone or in combination, do not meet the
minimum jurisdictional standards adopted by the Board,' we find
that it would not effectuate the policies of the Act to assert juridic-
tion over the Employer herein. Accordingly, we shall dismiss the
petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
1 For the purposes of this decision only, we shall take into account the out - of-State
purchases of the lessee in determining whether to assume jurisdiction over the Employer.
2 Federal Dairy Co , Inc , 91 NLRB 638
' The record discloses that a "substantial " amount of the meats and poultry had a local
origin For the purposes of this decision , however, we shall assume that all of these local
purchases had an out-of-State origin
* Dorn's House of Miracles, Inc., 91 NLRB 632.
6 See MacFarlane's Candies, 91 NLRB 1264 , and cases cited in footnotes 2 and 4, supra.
HIGGINS, INC. and MARINE SHOP AND SHIPYARD LABORERS, LOCAL 821,
AFL, PETITIONER
HIGGINS, INC. and LOCAL 1244, BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS, AFL, PETITIONER . Cases Nos. 15-RC-700 and
15-RC-705. August 27',1952
Decision and Order
On July 3, 1952, Acting Regional Director Paul A. Cassady issued
his report on objections, a copy of which is attached hereto , sustaining
the election objections filed by the two Unions here involved, and
recommending that the elections be set aside. Thereafter, the Em-
ployer filed exceptions to the report on objections.
100 NLR$ No. 134.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has considered the report on objections, the exceptions
thereto, and the entire record in this case, and finds that the exceptions
do not raise any substantial or material issues with respect to the
elections. Accordingly, the Board hereby adopts the Acting Regional
Director's findings, conclusions, and recommendations, with the fol-
lowing additions :
The Employer argues in its exceptions that no request for an op-
portunity to address the employees was made by either of the two
Unions in this case. However, the Employer admits that, shortly
before the holding of. the elections requested by these two Unions and
six other AFL local unions as well, it received a letter from Curtis C.
Luttrell, who signed in his capacity as an officer of the New Orleans
Metal Trades Council, AFL. In the letter Luttrell, with authority of
the two Unions, stated that "the A. F. of L. petitioning Local Unions"
requested an opportunity to, address the employees at such time and
place as the Employer might choose for any preelection address of
its own. Moreover, the Employer does not contest the Acting Re-
gional Director's finding that its reply asserted that it was a "company
rule not to allow union activity . . . during working hours," and
that it therefore must refuse the request. Nevertheless, the Employer
made a preelection address to its employees during working hours,
urging them to vote against the unions involved in the elections.
Particularly because the Employer refused the request without ques-
tioning Luttrell's authority, we think the Employer was not misled
by Luttrell's statement at a preelection conference, that in agreeing
to a change in the place of elections he was acting for one of the other
unions. Accordingly, we find no merit in this argument of the
Employer.
The Employer also argues that the Bonwit Teller case cited in the
report on objections is not controlling, particularly because here the
unions had access to the Employer's cafeteria to address the employees
on their own time, and thus the employees could reasonably have
heard both sides. In addition, the Employer points out that the other
unions involved in the elections either won or accepted defeat without
filing objections; and it argues that this shows the absence of interfer-
ence in the two present cases. We find no merit in this argument. As
we said in the Bonwit Teller case, we do not find illegal what the
Respondent said, or the manner in which it assembled its audience.
We do find that the Employer, by its address to the employees urging
an antiunion vote while refusing the Unions' request for a similar
opportunity to urge a prounion vote, enforced its rule against union
1 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 Herzog and
Members Houston and Murdock].
I HIGGINS, INC. 831
activity during working hours in a discriminatory manner, and there-
by interfered with the elections. The Employer cannot escape the
consequences of its discrimination by arguing that the Unions might
have utilized nonworking hours to attempt to counteract the discrim-
ination, or that in other cases the discrimination was not successful,
or that in still other cases no objections were filed alleging interference.
Accordingly, we shall order the elections set aside, and shall direct
new elections at such time as the Regional Director advises of the
existence of conditions permitting a free choice.
Order
IT IS HEREBY ORDERED that the elections conducted on March 19,
1952, in Cases No. 15-RC-700 and 15-RC-705 be, and they hereby are,
set aside.
Report on Objections
Pursuant to stipulations for certification upon consent election executed on
March 17, 1952, elections were held on March 19, 1952, in Cases Nos. 15-RC-700
and 15-RC-705 among certain employees of Higgins, Inc., hereinafter referred
to as the Employer, to determine whether, in Case No. 15-RC-700, the employees
wished to be represented for purposes of collective bargaining by Marine Shop
and Shipyard Laborers, Local 821, AFL. hereinafter referred to as the Laborers,
and whether, in Case No. 15-RC-705, the employees wished to be represented for
purposes of collective bargaining by Local 1244, Brotherhood of Painters, Decora-
tors and Paperhangers, AFL, hereinafter referred to as the Painters. A tally
of ballots served upon the parties, in Case No. 15-RC-7.00, shows the following
results :
Approximate number of eligible voters_____________________________ 62
Void ballots-------------------------------------------------------- 3
Votes cast for Marine Shop and Shipyard Laborers, Local 821, AFL___ 25
Votes cast against participating labor organization----------------- 31
Valid votes counted________________________________________________ 56
Challenged ballots------------------------------------------------- 2
Valid votes counted plus challenged ballots___________________________ 58
The challenges were not sufficient in number to affect the results of the election.
The Laborers failed to receive a majority of the valid votes cast.
A tally of ballots served upon the parties, in Case No. 15-RC-705, shows the
following results :
Approximate number of eligible voters____________________________ 12
Void ballots------------------------------------------------------ None
Votes cast for Local 1244, Brotherhood of Painters, Decorators and
Paperhangers , AFL--------------------------------------------- 4
Votes cast against participating labor organization _______________ 8
Valid votes counted______________________________________________ 12
Challenged ballots -------------------------------------------------
Valid votes counted plus challenged ballots________________________ 15
The challenges were not sufficient in number to affect the results of the election.
The Painters failed to receive a majority of the valid votes cast.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 24, 1952, the Laborers filed timely objections to the election in
Case No. 15-RC-700. The objections were as follows :
1. On March 14, 1952 Mr. Curtis C. Luttrell by authority of Marine
Laborers' Local #821, officially requested the Higgins, Inc. to grant this
Local Union an opportunity to speak to the Higgins employees if the
Company Representatives delivered any pre-election speeches, though Mr.
Andrew Higgins, Sr. did deliver a pre-election address opposing all Unions
on the afternoon of March 18, 1952. The Higgins, Inc. through Mr. M.
Macheca refused to grant Marine Laborers' Local # 821 this same privilege.
Copies of evidence of this Local in the above charge and its contentions
is herewith enclosed. It is the firm belief of this Local Union that the
pre-election address delivered by Mr.,Andrew Higgins, Sr. as aforestated
did have sufficient effect on the election to seriously harm this Local Union's
chances for a fair and impartial election.
2. Other companies' activities which were not in our opinion, in conformity
with rules and regulations as defined by the act covering a Board Election
for representation.
On March 26, 1952, the Painters filed timely objections to the election in Case
No. 15-RC-705. The objections were as follows :
1. On March 14, 1952, Mr. Curtis C. Luttrell, by authority of the Painters
and Decorators Local Union #1244, officially requested the Higgins, Inc., to
grant this Local Union an opportunity to speak to the Higgins employees,
if the Company Representatives delivered any pre-election speeches ; though
Mr. Andrew J. Higgins , Sr., did deliver a pre-election address, opposing all
Unions, on the afternoon of March 18, 1952. The Higgins, Inc., through
Mr. M. Macheca, refused to grant the Painters and Decorators Local Union
#1244 this same privilege.
2. Copies of evidence of this Local in the above charge and its contentions
is herewith enclosed: It is the firm belief of this Local Union that the pre-
election address delivered by Mr. Andrew J. Higgins , Sr., as aforestated,
did have sufficient effect on the election to seriously harm this Local Union's
chances for a fair and impartial election.
Acting pursuant to Section 102.61 of the Rules and Regulations of the Na-
tional Labor Relations Board, the undersigned has investigated said objections
and reports as follows :
During January, February, and March 1952, separate petitions, eight in number,
were filed by Carpenters Local 584, I. B. E. W. Local 130, Pipefitters Local 60,
Boilermakers Local 37, Machinists Lodge 37, Laborers Local 821, and Painters'
Local 1244. Two petitions were filed by Carpenters Local 584. The petitions
were filed each in the name of a local union and were handled by officials of
the various local unions. Three conferences between Board, union, and com-
pany representatives resulted in a stipulation for certification upon consent
election being signed in each case on March 17, 1952. The elections were held
on March 19, 1952.
By letter dated March 14, 1952, Curtis C. Luttrell, business agent of Carpenters
Local 584 and secretary-treasurer of the New Orleans Metal Trades Council,
AFL, made the following request upon the Employer:
In the event that you or representatives of Higgins Inc., plan scheduled
pre-election addresses to your employees we, the A. IF. of L. petitioning Local
Unions are herewith respectfully requesting that we be given an opportunity
to also address your employees at such time and place any such pre-election
addresses are delivered.
HIGGINS, INC. 833
Trusting that you will accept this as an official request, and with kindest
personal regards, I am, .. .
Luttrell's letter was directed to the attention of Mr. M. Macheca, secretary-
treasurer of the Employer.
. By letter dated March 18, 1952, Michael Macheca, secretary-treasurer of the
Employer, replied to Luttrell's letter of March 14, 1952, stating as follows :
Receipt of your letter of March 14th, 1952 is hereby acknowledged.
This is to advise that it is a company rule not to allow union activity on
company property during working hours.
We, therefore, must refuse your request contained in your letter, as we
cannot make an exception in this case.
At a conference between Board, union, and company representatives on March
17, 1952, there arose a problem as to the place of the elections having been changed
without the knowledge or consent of some of the unions involved. Upon being
questioned as to the authorization for making such change, Luttrell stated that
he acted in behalf of the two groups of employees covered in the petitions filed
by Carpenters Local 584. He stated that he acted in behalf of those two crafts.
The New Orleans Metal Trades Council was not a party to any of the cases. At
the time Luttrell was, and still is, an international advisor of the Laborers.
The letter written by him on March 14, 1952, to the Employer was written under
authorization granted to him by each of the seven unions, with the exception
of Boilermakers Local 37. The Laborers and the Painters had each authorized
Luttrell to make the request contained in the letter in their behalf.
During the afternoon of March 18, 1952, an announcement was made over
the Employer's public address system that all employees were to attend a meet-
ing on the Employer's property, at 4 p. in. that afternoon, to hear a speech by
Andrew J. Higgins, president of the Employer. The speech started at approxi-
mately 4: 05 p. m. and lasted about 15 minutes. Shift-ending time for all em-
ployees on the day shift was 4:15 p. in. Other employees were reporting for
work at that time. The speech does not appear to have exceeded Section 8
(c) of the Act. No reference was made in the speech to any of the unions
involved in the elections. Higgins voiced his general opposition to unions and
stated that the Employer did not want the employees to vote for the unions.
The elections began at 6: 45 a m. on March 19, 1952, the day following that
on which the speech was made by Mr. Higgins.
Before the elections, the Laborers, the Painters, and the other petitioning
unions were allowed access to the cafeteria located on the Employer's premises
and operated as a concession by an individual. They were permitted to solicit
employees who entered the cafeteria during their nonwork time. Solicitation
was not permitted on company property during working hours.
The Board, in Bonwit Teller, Inc., 96 NLRB 608, laid down the rule that,
"An employer who chooses to use his premises to assemble his employees and
speak against a union may not deny that union's reasonable request for the same
opportunity to present its case, where the circumstances are such that only by
granting such request would the employees have a reasonable opportunity to
hear both sides." In the cases under consideration, the Employer utilized em-
ployer time and property to make an antiunion speech, while at the same time,
denying the Laborers and the Painters permission to present their cases under the
same circumstances.
The undersigned is of the opinion that the Employer, by refusing the request
of the Laborers and the Painters the use of the same form utilized by the
Employer, denied to the employees a reasonable opportunity to hear both sides
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the issue on which they were about to vote and thereby interfered with the
employees' freedom of choice in the election.
The undersigned , therefore , finds that the objections to the elections raise
material issues with respect to the conduct affecting the results of the elections,
and recommends to the Board that the objections filed by the Laborers and by
the Painters be sustained, and that the elections conducted in Cases Nos . 15-RC-
700 and 15-RC-705 on March 19, 1952 , be set aside.
SMITH TRANSFER COMPANY, INC. and BIRMINGHAM GENERAL DRIVERS
LOCAL UNION No. 612, INTERNATIONAL BROTHERI-IOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case
No. 15-CA-360. August 27,196
Decision and Order
On December 29, 1951, Trial Examiner Alba Martin issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at thehearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case,2 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications going to the refusal-to-bargain issues.
We agree with the Respondent that in computing the Union's ma
jority for purposes of determining the refusal-to-bargain issues, the
unit to be utilized is that claimed by the Union to be appropriate at
the time of the request rather than that found appropriate at this
time, assuming the two to be different in scopes and assuming also
1 Pursuant to the provisions of Section 8 (b) of the Act the Board has delegated its
powers in connection with this case to a three -member panel (Chairman Herzog and
Members Murdock and Peterson].
9 we find no merit in the Respondent 's claim that the Trial Examiner relied upon the
affidavit submitted by Respondent 's president , John A . Smith , to a field examiner of the
Board , for the purposes of making substantive findings of fact. For, as we read the
Intermediate Report, the Trial Examiner 's reference to the affidavit was solely for the
purpose of determining the credibility of Smith's testimony-a reference and use which
is clearly proper . See Quest-Shon Mark Brassiere Co. v. N . L. R. B., 185 F. 2d 285
(C. A. 2). In any event , our adoption of the Trial Examiner 's substantive findings rests
wholly on so much of the testimony adduced at the hearing as was credited by the
Examiner and not upon anything contained in the affidavit.
8 Barlow-Many Laboratories, 65 NLRB 928, hereafter referred to as the Barlow-Many
case ; The C . L. Bailey Grocery Company, 100 NLRB 576, hereafter referred to as the
Bailey case.
100 NLRB No. 116.