Phillips Petroleum Co. v. National Labor Relations Bd., 14248.
| Citation | 206 F.2d 26 |
| Decision Date | 30 September 1953 |
| Docket Number | No. 14248.,14248. |
| Parties | PHILLIPS PETROLEUM CO. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Edgar Waite Clark, Bartlesville, Okl., S. E. Floren, Jr., Muskogee, Okl., Rayburn L. Foster and Harry D. Turner, Bartlesville, Okl., for petitioner.
Robert T. McKinlay, Atty., A. Norman Somers, Asst. Gen. Counsel, and David P. Findling, Associate Gen. Counsel, Washington, D. C., George J. Bott, Gen. Counsel, Frederick U. Reel, Ruth C. Goldman, Attys., N.L.R.B., Washington, D. C., for respondent.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
In this proceeding Phillips Petroleum Company petitions this court1 to review and set aside an order of the National Labor Relations Board finding that it had committed an unfair labor practice2 by refusing upon request to bargain collectively with International Union of Operating Engineers, A. F. of L., hereafter referred to as the union, after it had been certified by the Board as the bargaining representative of what the Board determined was an appropriate unit of Phillips employees. In its answer, the Board prays that its order3 be enforced. The only issue in the case, however, concerns the challenge to the Board's former decision and direction of election in the representation proceeding.4 Phillips concededly refused to bargain with the union as a representative of all employees within the unit thus designated by the Board and suffered the finding of the unfair labor practice as was necessary in order to challenge the antecedent action of the Board in designating the bargaining unit.5
Specifically the issue is whether the Board could properly determine that fifteen of Phillips' employees who are engaged in operation and maintenance work at the Phillips Apartment Hotel in Bartlesville, Oklahoma, should be included in the bargaining unit along with the operation and maintenance personnel of Phillips who worked in eleven other buildings in Bartlesville, which Phillips either owns or leases and which are occupied in carrying on its interstate petroleum industry activities. This finding of the Board was made in its consideration of a representation proceeding which was instituted by petition of the union claiming to be the bargaining representative of approximately two hundred employees "engaged in * * * operation and maintenance work under the Building Division of the Treasury Department of the Phillips Petroleum Company at Bartlesville, Oklahoma * * *." Following an election within the unit in which the union received 134 to 59 majority of the ballots cast, the Board certified the union as the exclusive bargaining representative of the employees in the unit.
The cleaning and maintenance of all of the buildings occupied by Phillips at Bartlesville,6 whether owned or leased, are under supervision of what is designated as the Building Division of Phillips Treasury Department which is headed by Building Division Manager, P. S. Benz.7 The hotel has its own manager who exercises his own judgment in administrative matters in the day to day operation of the hotel, although he is under the general supervision of the Division Manager. The hotel manager can hire replacements of hotel employees, but authorizations to hire additional members to the staff of the hotel must come from Division Manager Benz. The clerical work in connection with the hiring of hotel employees is performed by the Building Division personnel. Employee transfers from the hotel to other parts of the Building Division must be passed upon by the Building Division Manager, as well as by the hotel manager. From time to time since the apartment hotel has been in operation employees from various sections or departments of the Building Division have been sent to the apartment hotel to perform specified operational or maintenance tasks under the supervision of their regular foreman. While they were so engaged their time was charged to the apartment hotel for accounting purposes, but they were paid their regular salaries through their respective departments. When exceptional maintenance problems are encountered by the hotel manager he calls upon Benz to furnish the necessary personnel. Upon such occasions Benz will either send employees from the Building Division to assist in the matter or secure the services of an independent contractor.
There are approximately 310 employees in the Building Division, 35 of whom are employed in the apartment hotel, and 15 of these were classified as operation and maintenance employees and were included in the bargaining unit. All of these employees have the same retirement plan, insurance benefits, transfer preferences, and certain other benefits offered by Phillips. With the approval of appropriate company officials, employees may be transferred between the apartment hotel and the other branches of the Building Division. When such a transfer is made the employee retains his seniority, which, as is true with all of Phillips' employees, dates from the time of the original employment and not from the time of the transfer from another branch or department. The record shows several instances of the transfer of maids from the hotel to work of the same type at the office building and their return to the hotel on emergency occasions. Maintenance employees from other parts of the Building Division are likewise sent to the hotel in an emergency and, on one occasion, some of the night cleaning crews from the office building were sent to the hotel. Other instances were shown which disclosed that employees in the various branches of the Building Division could be quickly shifted to and from each other's jobs.
Petitioner contends here, as it did before the Board in the representation proceeding and the unfair labor practice proceeding, that the activities of the maintenance and operation employees at the hotel are not in, nor do they affect, commerce within the terms of the statute and are therefore beyond the jurisdiction of the Board; that in any event, since the Board has refused jurisdiction of such employees in the hotel industry in general, the adoption of different standards for application in this case is arbitrary; and finally, that the Board acted contrary to the Act and abused its discretion in including the...
To continue reading
Request your trial
-
NLRB v. Air Control Products of St. Petersburg, Inc.
...Bros. Contracting Co. v. NLRB, 5 Cir., 1956, 235 F.2d 37; NLRB v. Dallas Concrete Co., 5 Cir., 1954, 212 F.2d 98; Phillips Petroleum Co. v. NLRB, 5 Cir., 1953, 206 F.2d 26; NLRB v. Sidran, 5 Cir., 1950, 181 F.2d 671; NLRB v. Quincy Steel Casting Co., 1 Cir., 1952, 200 F.2d 293; NLRB v. Worc......
-
NLRB v. Central Power & Light Company
...where no abuse of that discretion has been shown. NLRB v. Yale Mfg. Co., 1st Cir. 1966, 356 F.2d 69, 71; Phillips Petroleum Co. v. NLRB, 5th Cir. 1965, 206 F.2d 26, 30; Metal Blast, Inc. v. NLRB, 6th Cir. 1963, 324 F.2d 602, 604. In Fant Milling, supra, the Supreme Court approved a Board de......
-
NLRB v. Southern Airways Company
...4 Cir., 1958, 257 F.2d 235, 241; N. L. R. B. v. American Steel Buck Corp., 2 Cir., 1955, 227 F.2d 927, 929; Phillips Petroleum Co. v. N. L. R. B., 5 Cir., 1953, 206 F.2d 26, 30; N. L. R. B. v. Worcester Woolen Mills Corp., 1 Cir., 1948, 170 F.2d 13, 16; N. L. R. B. v. West Kentucky Coal Co.......
-
Texas Pipe Line Company v. NLRB
...R. B. determination. Pittsburgh Plate Glass Co. v. N. L. R. B., 1941, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; Phillips Petroleum Co. v. N. L. R. B., 5 Cir., 1953, 206 F.2d 26. 2 The representation in these divisions was disputed by the parties below, and the matter was not definitely set......