NLRB v. Belcher Towing Company

• Decision Date: 22 November 1960
• Docket Number: No. 18288.,18288.
• Citation: 284 F.2d 118
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BELCHER TOWING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

284 F.2d 118 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BELCHER TOWING COMPANY, Respondent.

No. 18288.

United States Court of Appeals Fifth Circuit.

November 22, 1960.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick Manoli, Associate Gen. Counsel, Stuart Rothman, Gen. Counsel, Rosanna A. Blake, Donald J. Bardell, Attys., N. L. R. B., Washington, D. C., for petitioner.

Erle Phillips, Fisher, Phillips & Allen, Atlanta, Ga., for respondent.

Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

TUTTLE, Circuit Judge.

This petition to enforce an order of the National Labor Relations Board draws in question the correctness of the Board's designation of the bargaining unit and of its ruling on eligibility of employees to vote in a representation election.

It is not disputed that the respondent refused to recognize the union as the bargaining representative and that it refused to enter into collective bargaining with it. It is clear that, unless these refusals were justified on the basis of respondent's contentions, they amounted to a violation of Section 8(a) (5) and 8(a) (1), of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (1, 5).

The respondent's refusals were based on two contentions: (1) that the bargaining unit was not an appropriate bargaining unit as contemplated under the Act because it arbitrarily excluded the six tugboat captains, and (2) the board improperly sustained challenges to four ballots, which, if counted, might have changed the result of the election.

Respondent is engaged in the transportation of petroleum products along the southeast coast of Florida and in connection therewith operates six tugboats. On January 19, 1959, the Board conducted an election of a unit consisting of all unlicensed tugboat employees exclusive of "captains" and supervisors as defined by the act. The total number of ballots cast in the election was eighteen; eight ballots were cast in favor of the union and six against it; four were challenged by the union and these challenges were sustained by the Board, establishing the union's victory in the election. Thereafter, upon request of the union to enter into collective bargaining, the respondent refused, relying upon its contention that the election was invalid on the grounds above set out.

Although the respondent itself did not take a firm position, at the time of the election and the Board's determination of the appropriateness of the bargaining unit, that the captains should be included in the unit, it did preserve its right to urge this point and it now, as it did in the hearing before the Board on the unfair labor practice charge, urges that the exclusion of the captains was not justified. This it says is so because each of respondent's tugboats usually carries a crew of three, none of whom is "licensed" in the sense that he has a captain's license and the captain does pretty much everything on board that is done by the other members of the crew. It is undisputed, however, that the captain is actually in charge of the tugboat and that his decisions and orders must, therefore, occasionally be inconsistent with what the other members consider to be to their best interest.

This court has repeatedly said that Congress has authorized the Board to make the determination as to what is an appropriate bargaining unit and that in the making of this determination a wide discretion has been vested in the Board. N. L. R. B. v. White Construction & Engineering Co., 5 Cir., 204 F.2d 950; N. L. R. B. v. Smythe, 5 Cir., 212 F.2d 664; N. L. R. B. v. West Texas Utilities Co., 5 Cir., 214 F.2d 732. Clearly the Board here might properly have included these captains in an appropriate bargaining unit, but just as clearly we must refrain from interfering with the Board's determination that the unit without the captains is an appropriate bargaining unit.

The second attack by respondent on the validity of the representation proceedings raises a somewhat more difficult question. However, the Board's decision relating to the exclusion of four employees from the balloting is based on findings of fact which we do not feel it proper to overturn, since we cannot say that these findings are not based on substantial evidence on the record as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456.

One of the employees whose ballot was challenged, a part-time employee named Sharpe, was found by the Board not to have sufficient continuity of employment as to have more than "little, if any community interest with the regular full-time employees."¹

Although the record also discloses that 9 days after the cut-off date Sharpe did become a full-time employee, we do not feel that this Court can find clearly erroneous the Board's decision that Sharpe had no community of interest with the regular employees in working conditions, hours and rates of pay, in light of the fact that he had worked only 43 days the previous year, and only 24 days in 1958.

The two employees, Siefert and Lawson, whose ballots were successfully challenged,...