358 F.2d 94 (5th Cir. 1966), 20522, N. L. R. B. v. Charley Toppino & Sons, Inc.

CourtUnited States Court of Appeals (5th Circuit)
Citation358 F.2d 94
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHARLEY TOPPINO AND SONS, INC., Respondent.
Docket Number20522.

Page 94

358 F.2d 94 (5th Cir. 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

Page 95

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 Board 1 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 decree 2 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 Order 3 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, $1,881.06; 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.

Page 96

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...

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22 practice notes
  • 405 F.2d 787 (3rd Cir. 1968), 16638, Buncher v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (3rd Circuit)
    • 27 Junio 1968
    ...(1956), enforced 255 F.2d 284 (5th Cir. 1958), or the 'representative employee earnings test,' N.L.R.B. v. Charley Toppino and Sons, Inc., 358 F.2d 94, at 97 (5th Cir. 1966), may be adaptable to the facts in this case, particularly in some combination with a seniority system that conforms m......
  • 95 Cal.App.3d 961, 18253, Butte View Farms v. Agricultural Relations Bd.
    • United States
    • California California Court of Appeals
    • 13 Agosto 1979
    ...evidence in support Page 970 of the Board's determination. (Ibid.; see also N.L.R.B. v. Charley Toppino and Sons, Inc. (5th Cir., 1966) 358 F.2d 94, 96-97.) We have mentioned that the Board has wide discretion in fashioning remedies under the Agricultural Labor Relations Act and that a deci......
  • 604 F.2d 375 (5th Cir. 1979), 79-1174, N.L.R.B. v. Pilot Freight Carriers, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • 11 Octubre 1979
    ...Valley Iron & Steel Co. v. N. L. R. B., 410 F.2d 1161, 1177 n.28 (5th Cir. 1969); N. L. R. B. v. Charley Toppino & Sons, Inc., 358 F.2d 94, 97 (5th Cir. 1966); N. L. R. B. v. East Texas Steel Castings Co., Inc., supra. The use of Johnston's average weekly earnings for the seven week......
  • 555 F.2d 304 (2nd Cir. 1977), 867-869, Bagel Bakers Council of Greater New York v. N. L. R. B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • 23 Marzo 1977
    ...projection of average earning formula," has previously received judicial approval. See NLRB v. Charley Toppino and Sons, Inc., 358 F.2d 94 (5th Cir. 1966). 3 In framing a remedy, the Board has wide discretion, subject to limited judicial scrutiny. We can reverse only if we find that th......
  • Request a trial to view additional results
23 cases
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Court of Appeals (5th Circuit)
    • 22 Noviembre 2021
    ...not arbitrary in the selection of [its backpay] formula, its choice may not be rejected." NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 97 (5th Cir. Despite the discretion afforded to the Board, it does not receive a blank check. The court must ensure that the Board's factual ......
  • 95 Cal.App.3d 961, 18253, Butte View Farms v. Agricultural Relations Bd.
    • United States
    • California Court of Appeals
    • 13 Agosto 1979
    ...evidence in support Page 970 of the Board's determination. (Ibid.; see also N.L.R.B. v. Charley Toppino and Sons, Inc. (5th Cir., 1966) 358 F.2d 94, We have mentioned that the Board has wide discretion in fashioning remedies under the Agricultural Labor Relations Act and that a decision of ......
  • 604 F.2d 375 (5th Cir. 1979), 79-1174, N.L.R.B. v. Pilot Freight Carriers, Inc.
    • United States
    • United States Court of Appeals (5th Circuit)
    • 11 Octubre 1979
    ...Valley Iron & Steel Co. v. N. L. R. B., 410 F.2d 1161, 1177 n.28 (5th Cir. 1969); N. L. R. B. v. Charley Toppino & Sons, Inc., 358 F.2d 94, 97 (5th Cir. 1966); N. L. R. B. v. East Texas Steel Castings Co., Inc., supra. The use of Johnston's average weekly earnings for the seven week......
  • 405 F.2d 787 (3rd Cir. 1968), 16638, Buncher v. N.L.R.B.
    • United States
    • United States Court of Appeals (3rd Circuit)
    • 27 Junio 1968
    ...(1956), enforced 255 F.2d 284 (5th Cir. 1958), or the 'representative employee earnings test,' N.L.R.B. v. Charley Toppino and Sons, Inc., 358 F.2d 94, at 97 (5th Cir. 1966), may be adaptable to the facts in this case, particularly in some combination with a seniority system that conforms m......
  • Request a trial to view additional results

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