National Labor Relations Bd. v. White Const. & Eng. Co.

• Decision Date: 14 August 1953
• Docket Number: No. 14137.,14137.
• Citation: 204 F.2d 950
• Parties: NATIONAL LABOR RELATIONS BOARD v. WHITE CONSTRUCTION & ENGINEERING CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

204 F.2d 950 (1953)

NATIONAL LABOR RELATIONS BOARD v. WHITE CONSTRUCTION & ENGINEERING CO., Inc.

No. 14137.

United States Court of Appeals Fifth Circuit.

June 5, 1953.

Rehearing Denied August 14, 1953.

Bernard Dunau, A. Norman Somers, Asst. General Counsel, David P. Findling, Assoc. General Counsel, George J. Bott, General Counsel, and Ruth V. Reel, Washington, D. C., for petitioner.

J. Tom Watson, Tampa, Fla., for respondent.

Before BORAH, RUSSELL and STRUM, Circuit Judges.

STRUM, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board, issued January 17, 1952, requiring respondent to bargain with a named union as the accredited representative of respondent's fabricating shop employees.

The Board found that respondent's refusal to deal with said union, which had been certified by the Board, constituted an unfair labor practice under section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158 (5) and (1). Respondent resists enforcement, and seeks a summary decree in its behalf, for the reasons hereafter discussed.

Respondent, White Construction and Engineering Co., carries on a general construction business in Florida. During the twelve month period ending April 28, 1950, it purchased building materials which cost $170,441.65, of which $81,314.52 was purchased outside the State of Florida and shipped to it within that state. During the same period, respondent received approximately $150,000 of a gross income of $352,000 from customers engaged in interstate commerce for whom respondent performed services and to whom it made sales.

Proceeding under section 9(c)(1) of the Act, a labor union petitioned, in April, 1950, for an election amongst the employees of respondent's fabricating shop to select a collective bargaining representative. The Board ordered an election, which was held on December 8, 1950. The petitioning union was selected, but respondent declined to recognize it, filing with the Board objections to the election. After hearing respondent, the Board overruled these objections on June 21, 1951, and certified the union as bargaining representative.

Respondent still refused to recognize the union, and on July 9, 1951, the union filed against respondent a charge of unfair labor practices because of such refusal. The Board on July 16, 1951, filed a complaint based upon this charge, which was sustained on January 17, 1952, and respondent ordered to bargain with the complaining union. That is the order here under review.

Respondent questions the Board's jurisdiction to issue both the certification and the bargaining order, upon the ground that respondent's activities are purely local and do not affect interstate commerce.

It is now well settled that imports into a state, as well as exports from it, constitute interstate commerce within the meaning of the National Labor Relations Act, 29 U.S.C.A. § 152(6, 7). If the flow of commerce is obstructed by labor disputes, it makes no difference in principle whether the interference is with the inward or outward flow of goods. Commerce is affected in either case. As respondent imported from other states almost fifty per cent of all materials used by it during the year ending April 28, 1950, valued at $81,314.52, and since for the same period it received approximately $150,000, almost fifty per cent of its gross income, from sales and services to customers engaged in interstate commerce, its business is subject to the Act and the Board has jurisdiction of the matter in controversy. Collins Baking Co. v. N. L. R. B., 5 Cir., 193 F.2d 483; N. L. R. B. v. Denver Building & Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; N. L. R. B. v. Mid-Co Gasoline Co., 5 Cir., 183 F.2d 451.

Respondent also objects to the election on the ground that the Board did not select an appropriate bargaining unit in which to hold an election. Pursuant to section 9 (b) of the Act, the Board designated as a bargaining unit all employees of respondent's fabricating shop, excluding six field men, guards, professional employees, and supervisors. Respondent's principal objection in this respect is the exclusion of the six field men. The Board found that the field men, whose work was under different supervision and working conditions, lacked sufficient community of interest with the shop employees to be included in the same bargaining unit.

The Board's determination of the appropriate bargaining unit involves a large measure of administrative discretion, which will not be disturbed unless abused. Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040; Pittsburg Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; May Dept. Stores Co. v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; N. L. R. B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575. We find no abuse here.

Respondent next asserts that the complaint filed against it by the Board on July 16, 1951, is barred because the unfair labor practice charge upon which it is based was filed July 9, 1951, more than six months after the unfair labor practice complained of, contrary to the provisions of section 10(b) of the Act, as amended, 29 U.S.C.A. § 160(b).

Respondent originally declined to recognize the union on December 8, 1950, immediately after the election, which was more than six months before the charge was filed. But it persisted in that refusal down to within eleven days of the filing of the complaint. As late as June 26, 1951, and again on July 5, 1951, respondent not merely failed, but specifically refused, to bargain with the designated union. The complaint, based on these refusals, was filed July 16, 1951.¹ Respondent's duty to deal with the certified union was a continuing one. Since its refusal continued well into the six month period immediately preceding the filing of the charge, the Board correctly held that the complaint was timely filed. N. L. R. B. v. Mexia Textile Mills, 339...