National Labor Relations Board v. Smythe

• Decision Date: 06 May 1954
• Docket Number: No. 14737.,14737.
• Citation: 212 F.2d 664
• Parties: NATIONAL LABOR RELATIONS BOARD v. SMYTHE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 664 (1954)

NATIONAL LABOR RELATIONS BOARD v. SMYTHE et al.

No. 14737.

United States Court of Appeals Fifth Circuit.

May 6, 1954.

A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., David P. Findling, Assoc. Gen. Counsel, N. L. R. B., Louis Schwartz, Atty., N. L. R. B., George J. Bott, General Counsel, John C. Rohrbaugh, Attorneys, N. L. R. B., Washington, D. C., for petitioner.

M. U. S. Kjorlaug, Houston, Tex., Boyles & Billingsley, Houston, Tex., for respondent.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

RUSSELL, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board requiring respondent to bargain collectively with Oil Workers International Union, C.I.O., herein referred to as the Union, as the exclusive representative of its employees in the following unit:

"All petroleum inspectors of respondent\'s Houston District operations at Houston, Freeport, and Texas City, Texas, also known as Stations Nos. 23, 24 and 25, respectively, excluding all other employees and supervisors as defined in the Act."

Respondent does not deny that it refused to bargain with the Union as the exclusive representative of the described unit and, in effect, concedes that its refusal to do so violated sections 8(a) (1) and (5) of the National Labor Relations Act, as amended,¹ if the certified unit is an appropriate unit for collective bargaining purposes within the meaning of section 9(b)² of the Act. However, in opposition to the enforcement of the order, respondent urges that the certified unit does not constitute an appropriate unit for collective bargaining and the determination of the Board to the contrary is based solely upon the extent to which its employees had organized, in violation of section 9(c)(5) of the Act.³ The impetus of respondent's argument is that under the evidence the Board was not justified in determining that a comparatively small segment of its inspectors constituted an appropriate bargaining unit when, in the opinion of the respondent, a broader unit, including all of the petroleum inspectors in its Gulf Coast Division, would constitute an appropriate unit for that purpose.

The evidence shows that respondent is a partnership with its main office in Elizabeth, New Jersey. It is engaged in the business of inspecting petroleum products and the conveyances used to transport them to ascertain the quantity and quality of the product and the suitability of the conveyance, usually a ship or barge, to carry the particular grade of petroleum. To perform this service it employs inspectors at various places throughout the world, including a number of port cities within the United States where it maintains offices. Within the United States, the respondent operates what it has classified as the Atlantic, Pacific and the Gulf Coast Divisions. The Gulf Coast Division, which is involved here, extends geographically from Brownsville, Texas, to Jacksonville, Florida, and includes offices located at Brownsville, Corpus Christi, Freeport, Texas City, Houston and Port Arthur, Texas; Lake Charles, Baton Rouge and New Orleans, Louisiana; Jacksonville, Florida, and Tampico, Mexico. Generally, each of these offices is under the management, or supervision, of an appointed employee who has limited authority to deal with local problems. They are all under the supervision of a divisional general manager.

There are approximately 46 inspectors employed in the various offices within the Gulf Coast Division, 16 of whom are employed at Houston, Freeport and Texas City. The inspectors usually work within the confines of the territory encompassed by their respective offices, although on occasions they are required to travel to more distant points. Interchange of personnel and inter-office transfers are infrequent. Of the three offices included in the approved unit, Houston is the largest. Most of the assignments for work at Freeport and Texas City come through the Houston office because that office has a teletype and the other two do not. H. H. Carpenter, the manager of the Houston office, causes to be prepared and circulated among respondent's customers a current list of the names, addresses and telephone numbers of the inspectors located at Houston, Freeport and Texas City. This list is captioned "Houston District Personnel" and at its foot there is inserted a notation to the effect that all correspondence regarding "our inspection service" should be directed to the "Houston District Office."

In determining the appropriateness of the approved unit, the Board recognized that a broader unit would not be inappropriate, but giving consideration to the geographical area involved and its remoteness to the other offices; the infrequent...