Higgins, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1953

106 N.L.R.B. 845 (N.L.R.B. 1953)

HIGGINS, INC. 845
ushers (also known as hostessess ), head waiters ( also known
as captains to head hostesses ), head candy sales girls, head
counter clerks ( also known as head soda men and head fountain
men), serving room heads , and store maintenance employees,
but excluding temporary and seasonal employees, employees
in the repair department, commissary employees, guards,
watchmen , managerial personnel , head hostesses , senior
ushers ( also known as assistant head hostesses ), and all other
supervisors as defined in the Act, constitute aunit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act. 14
[Text of Direction of Election omitted from publication.]
14Except for the categories discussed herein, the parties are in agreement as to the job
classifications covered by the unit description.
HIGGINS, INC. and INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, LOCAL 37, AFL, Petitioner. Case No. 15-RC-
886. August 21, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On April 24, 1953, pursuant to the Board's Decision and Di-
rection of Election,' an election by secret ballot was conducted,
under the direction and supervision of the Regional Director for
the Fifteenth Region, among the employees of the Employer in
the unit designated in the Decision and Direction of Election, to
determine whether or not they wished the Petitioner to represent
them for the purposes of collective bargaining. Thereafter, a
tally of ballots was furnished to the parties which shows that 956
eligible employees, 730 cast ballots, of which 506 were for the
Petitioner, 182 were against the Petitioner, 5 were void, and 37
were challanged. The challenges are insufficient in number to
affect the results of the election.
On May 22, 1953, the Employer filed timely objections to the
election, contending that: (1) The Petitioner electioneered within
close proximity to the polling booths; (2) the Petitioner made
illegal promises of benefits to the employees participating in the
election; (3) the Petitioner threatened and coerced the said em-
employees; (4) the handbills circulated by the Petitioner were
both scandalous and inflamatory; (5) the Petitioner's address
to the employees over loudspeakers on the morning of the
election deprived the Employer of an equal opportunity to ad-
dress the employees ; and (6 ) by reason of all of the foregoing the
election was not conducted under the proper laboratory con-
ditions.
1104 NLRB 364.
106 NLRB No. 145.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter , pursuant to Section 102.61 of the Board ' s Rules
and Regulations , the Regional Director conducted an investi-
gation and on June 5, 1953 , issued and duly served upon the
parties his report on objections. He found that the objections
raise no material issues with respect to conduct affecting the
election and recommended that they be overruled and that the
Petitioner be certified as the bargaining representative of the
employees in the appropriate unit. On June 5 , 1953 , the Em-
ployer filed exceptions to the Regional Director ' s report which,
in effect , reiterated the contentions raised in its objections to
the election.
The Board has reviewed the Employer ' s objections to the con-
duct of the election , the Regional Director ' s report and the ex-
ceptions thereto , and, like the Regional Director , we do not find
that the objections raise material or substantial issues with
respect to the election for the following reasons:
It appears that the election was conducted in a sales building
located on the Employer ' s plant premises , about 60 feet inside
the gate 2 entrance to the plant. The representatives of the
Petitioner distributed handbills ,' sample ballots, and pencils at
the gate during the entire election, but not inside the gate on the
Employer ' s premises or within the voting area. As no union
representative entered into the plant or voting area during voting
hours, we do not find that this activity interfered with the con-
duct of the election.'
It further appears that the Petitioner , during the initial 20
minutes of the first of 3 separate , 2-hour voting periods, used
sound trucks to disseminate campaign propaganda. The sound
could be heard in all parts of the plant and in the voting area.
However , upon reuqest of the Board ' s representative , the Pe-
titioner discontinued the use of the sound trucks, which were not
heard again during the balance of the day."
Whatever deviation from election practice may have occurred
with respect to electioneering by use of the sound trucks, such
use was confined to a relatively short period of time and was
discontinued immediately upon request of the Board agent. We
find , therefore , that the use of the sound trucks did not have a
sufficiently substantial effect upon the election to constitute
interference nor did the Petitioner ' s use of the sound trucks,
under the circumstances of this case , constitute wilful or con-
temptuous disregard of the Board ' s rules, policies , and regu-
2 As the handbills did not contain any coercive , threatening , or intimidating statements we
find them to be in the category of campaign propaganda . Absent threat or coercion, the
Board does not undertake to police union campaigns or censor campaign material. Burka,
100 NLRB 2; Gray Drug Stores , Inc., 95 NLRB 171. For like reason , we do not consider as
interfering with the election the Petitioner 's preelection campaign promises of wage raises
and better working conditions and reduction of union initiation fees during the preelection
period . Burka , 100 NLRB 2; The De Vilbis Company, 102 NLRB 942; J. J Newberry Co.,
100 NLRB 84.
9Marinette Knitting Mills , 93 NLRB 365; cf. Linde Air Products Division, 94 NLRB 640;
J. I. Case, 85 NLRB 576.
4Only 50 to 60 voters cast their ballots during the 20-minute broadcast period.
HIGGINS, INC. 847
lations with regard to the conduct of elections .' We do not
agree with our dissenting colleagues that our failure to find
interference herein sets a precedent approving the use of sound
trucks as an acceptable tactic to be used without risk until
ordered stopped . We adhere to and indeed reaffirm the Board's
long established election policy which does not generally permit
the use of sound trucks or any other means or device by which
campaigning may be effectively conducted within the voting area.
Our finding that in this instance the use of such device was not
effective and therefore not interference is confined to the facts
presented by the record herein.
Moreover , because we do not find that the broadcast affected
the election , we do not find it necessary to consider the Em-
ployer ' s contention that the Employer was denied an equal
opportunity to address the eligible employees.
Accordingly , we find that the conduct of the Petitioner did
not interfere with the election or impair the free choice of the
employees therein. The Employer' s exceptions to the report on
objections are hereby overruled.
As the tally of ballots shows a majority of the ballots were
cast for the Petitioner , we shall certify that labor organization
as the collective - bargaining representative of the employees in
the appropriate unit.
[The Board certified International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America , Local 37,
AFL, as the designated collective - bargaining representative of
the employees of Higgins , Inc., at the shipyard located at High-
way 90 and Industrial Canal , New Orleans , Louisiana.]
Chairman Farmer dissenting:
We are all in agreement that the use of a sound truck by a
participant in a Board - conducted election to project propaganda
into the polling place should be and henceforth shall be pro-
hibited . This, of course , is because this form of electioneering
constitutes a clear breach of the Board ' s long - standing rule,
which appears in every election notice , against electioneering at
or near the polling place . However, since the sound truck was
physically outside the voting area and not specifically referred
to as interdicted , the majority of the Board has decided to let
this election stand , particularly, as I understand their view, be-
cause the voters were importuned for only 20 minutes, while
only 50 or 60 employees voted and the sound was silenced upon
request of the Board agent conducting the election.
5J. I. Case Company, 85 NLRB 576 ; cf. Alliance Ware, Inc.. 92 NLRB 55, where the
Board found interference in that the union continued to broadcast during the entire election
period over the protests of the Board 's representatives
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am wholeheartedly in agreement with prohibiting the use of
sound -projecting devices, since I can think of no more effective
means of violating the Board ' s salutary rule against election-
eering at the polls . But, I would also apply the rule in this case.
Our prohibition of the use of sound trucks is not a new rule, but
merely a specific application of our existing prohibition against
electioneering at or near the polling place which appeared in
the election notices and was therefore known to the parties in
the case . The projction by mechanical devices of voice propa-
ganda into the actual voting booths was obviously a deliberate
and not an inadvertent or casual act. Whether intended to violate
our rule or not, it clearly had that effect . I do not believe that
we should condone or excuse a violation of our published election
rules by any party under these circumstances. Nor do I believe
that we should attempt to evaluate the impact of the infringement
on the employees or to assess the probable influence of the un-
lawful propaganda on election results . I would set the election
aside.
Member Murdock dissentin :
I would set the election aside. There is a fundamental
issue here , all too lightly bushed aside by my colleagues of
the majority whether the Board should countenance as an
electioneering device the use of loudspeakers penetrating into
the polling booths while the election is actually being conducted.
These facts are not disputed , that the Petitioner broadcast from
sound trucks outside both polling areas, immediately preceding
and during the actual voting by the employees, continuing cam-
paign propaganda which could be heard in all parts of the
plant.
In a previous case," with facts not as compelling as those be -
fore it here, the Board unequivocally disposed of this issue,
holding where there was no evidence , as there is here , that the
broadcasting entered the environs of the polling areas, that such
conduct was a violation of a "material and salutary election
rule." The decision there was expressly turned on "the imme-
diacy of the voice of the electioneering broadcaster to the eli-
gible voters as they approached the polling place . . . ."
(Emphasis added ). There was no suggestion in that case of
the fine variation or distinction drawn by the present majority
that the holding would have been different if the objectionable
conduct had been of shorter duration or was promptly halted
when requested by the Board agent . But, in any event , the im-
portant fact which cannot be overlooked in that case as well as
in this one was the clear prohibition stated in the Board's own
notice of election that "Voters will be allowed to vote without
interference , restraint , or coercion . Electioneering will not be
permitted at or near the polling place." ( Emphasis added.)
It seems to me that the employment of sound trucks as an
electioneering tactic in the general area of the polling place is
6 Alliance Ware, Inc.. 92 NLRB 55.
HIGGINS, INC. 849
essentially an invasion of the proper safeguards the Board is
obligated to guarantee in an election. It would follow that if other
means of electioneering within a "no electioneering zone,"
usually in effect during an election, are considered sufficient
grounds for voiding an election, the more potent and penetrating
technique of the loudspeaker should certainly be treated similar-
ly, whether or not there has been a fixed zone proscribed.
The rule against electioneering in reasonable proximity to the
polling place which is the basis for the practice of erecting "no
electioneering zones " should, in my view, automatically exclude
the use of loudspeakers. Of this I am convinced particularly
under the facts here, where the audible haranguing of sound
trucks reached into the voting areas and into the booths where
the employees were casting their ballots. Realistically, the
Petitioner's conduct is no less objectionable than if its elec-
tioneering agents were personally stationed in the heart of the
polling places while voting was under way, conduct my col-
leagues would surely concede to be improper.
Moreover, in my opinion, this type of decision provides a
questionable precedent. It invites the use of loudspeakers during
an election as an acceptable tactic until such time, if at all,
that the Board agent on the premises makes his request that
it be stopped.
My basic objection to the conduct here permitted to stand, is
that it runs counter to the principle that the time and place for
electioneering has ended when the voter approaches the polling
place and that he should be permitted to search his conscience
and mark his ballot in a quiet, orderly atmosphere, free from
importuning by any and all parties. Nevertheless, I also note
that the effect of the majority decision is to deny equality of
opportunity for voters to hear both sides under substially simi-
lar circumstances, as the Employer obviously had no opportu-
nity to counter with similar sound-truck invasion of the polling
place. Under the doctrine of Bonwit-Teller' and later cases the
Board has placed great emphasis on equality of opportunity to
speak at crucial times and places and has set aside numerous
elections where the employer has timed a last-minute speech
on company time and property to foreclose an opportunity for
the union to reply under equal circumstances.' Plainly, when
voters are about to mark their ballots in a polling place is a
very crucial time and place at which to reach them, and I do not
think that a fair election can be said to have been held when only
one party has had this opportunity, even though the conduct did
not continue during the entire election period.
For the foregoing reasons, I would find that the Petitioner's
electioneering from sound trucks effectively interfered with the
conduct of the election.
7 96 NLRB 608.
8E. g. Foreman & Clark, 101 NLRB 40.