Higgins, Inc.

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.