NLRB v. Charley Toppino and Sons, Inc.

• Decision Date: 24 March 1966
• Docket Number: No. 20522.,20522.
• Citation: 358 F.2d 94
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHARLEY TOPPINO AND SONS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.2d 94 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHARLEY TOPPINO AND SONS, INC., Respondent.

No. 20522.

United States Court of Appeals Fifth Circuit.

March 24, 1966.

James McConnell Harkless, Paul M. Thompson, Attys., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, NLRB, Washington, D. C., for petitioner.

Robert J. Berghel and Fisher & Phillips, Atlanta, Ga., for respondent.

Before GEWIN and BELL, Circuit Judges, and HUGHES, District Judge.

HUGHES, District Judge.

This case is before the Court on a motion of the National Labor Relations Board for enforcement of its supplemental decree issued upon the remand of its original petition to enforce.

The initial order of the Board¹ found that Charley Toppino and Sons, Inc., committed an unfair labor practice in discriminatorily discharging several employees for union activities. On June 11, 1964, this Court entered its decree² which, inter alia, directed respondent to offer employees Sam Cagnina, Raymond Beiro, and Leroy Jordan immediate and full reinstatement to their former or substantially equivalent positions and to make them whole for any loss of pay they may have suffered by reason of the discrimination against them.

On remand, a back pay hearing was held and on January 14, 1965, the Trial Examiner issued his Supplemental Decision. On April 13, 1965, the National Labor Relations Board issued its Supplemental Decision and Order³ adopting with slight modification, not material to this proceeding, the opinion of the Trial Examiner. A further clarifying order was issued on May 27, 1965. The Board directed the respondent, Charley Toppino and Sons, Inc., to pay to Sam Cagnina the sum of $6,564.81; Raymond Beiro, $1881.06; and Leroy Jordan the sum of $6,452.81 plus interest at the rate of 6 per cent per annum, less any lawfully required tax withholding. The Board has moved for entry of a supplemental decree enforcing its decision.

Respondent contends in this Court (1) that the amounts awarded each employee are erroneous for the reason that these employees were not needed after November 14, 1961, due to a decline in respondent's block business and would have been laid off for lack of work, and (2) that the method of determining back pay to the claimants was erroneous.

The principal question presented is whether substantial evidence in the record as a whole supports the Board's findings. Labor Management Relations Act Sec. 10(e), 61 Stat. 148 (1947), as amended, 29 U.S.C. Sec. 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We are convinced that all of the Board's findings are so supported.

The respondent, having its principal place of business on Stock Island, Florida, has been engaging in a number of business enterprises and operations, including: (1) the manufacture and sale of concrete blocks, crushed stone, readymix concrete, and rock fill; (2) a land development operation, employing crane operators, bull dozer operators, and drag line operators; (3) a maintenance department, employing mechanics and helpers; (4) a batching plant; (5) a portable plant; (6) building construction contracting operations; (7) the furnishing of building supplies and materials for construction of bridges and highways; and (8) a rock mining operation.

At the time of their unlawful discharge, the three employees were working in the cement block plant, Beiro and Cagnina as block strippers and Jordan as a forklift operator.

The evidence shows a decline in the output of the block plant operation in November 1961. For this reason respondent contends that there was no further need for the employment of the discriminatorily discharged employees and that back pay should be calculated only to that date.

Respondent has the burden of proving that discharged employees entitled to back pay would necessarily have been laid off for purely economic reasons wholly unrelated to their union activity.⁴ This burden has not been met.

The fact that there was a decline in the block plant operation does not necessarily establish less total production for the entire company. As a matter of fact the number of men in the company's employ did not decrease in 1961 — the estimated number being 80 to 85 in 1960, 85 to 95 in 1961, 80 to 85 in 1962, 90 to 95 in 1963, and about 95 in 1964. The record further shows that during the back pay period additional employees for the block plant were hired and men from other departments having less seniority than the discriminatees were transferred to perform block stripping.

The shifting of employees from one department to another was common in respondent's operations and it was customary for employees to be used in other departments when work in one department was slack. As a matter of fact during Beiro's employment he worked as a ready mix driver, truck driver, crane operator and in the block plant, where he had been assigned for only the month prior to his unlawful discharge.

Cagnina, whose latest date of hire was September 19, 1960, had worked as a forklift operator in the cement block plant and on an outside construction project as a dispatcher, as acting foreman of the cement block plant, and for two weeks prior to his unlawful discharge as a block stripper.

The mere fact that on November 14, 1961, respondent may not have had as many employees in the block plant as previously does not establish that...