National Labor Relations Board v. Akin Products Co.
| Decision Date | 22 December 1953 |
| Docket Number | No. 14544.,14544. |
| Citation | 209 F.2d 109 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. AKIN PRODUCTS CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Norman Somers, Asst. Gen., N.L.R.B., David P. Findling, Assoc. Gen. Counsel, Washington, D. C., Maurice Alexandre, Atty. Gen., George J. Bott, General Counsel, Frederick U. Reel, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.
Scott Toothaker, Ewers, Cox & Toothaker, McAllen, Tex., of counsel, for respondent.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
Respondent, a Texas corporation, is engaged at and near Mission, Hidalgo County, Texas, in the buying, processing and canning of vegetables which are grown in the lower Rio Grande Valley in Texas.
Finding it guilty of discouraging membership in Citrus, Cannery and Food Processors Union No. 24473, A. F. of L., in violation of Sec. 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1, 3), the board issued its order requiring respondent to cease and desist from these violations and to take affirmative remedial action with respect to the employees found to have been discriminated against.1
Respondent, pressing here the several motions and objections which it pressed below and insisting that, on the merits, the board's order is without support in the evidence, resists enforcement.
A careful consideration of the record and the findings of examiner and board in the light of the arguments and briefs, convinces us that the motions and exceptions were and are without merit, and that the findings of examiner and board, that respondent has actively sought to discourage, and has discouraged, membership in the union, are sustained by overwhelming, evidence. We are also of the same opinion as to the discriminatory discharges and refusals to employ on which examiner and board are in agreement. But for the fact, therefore, that, as to many of the employees claimed to have been discriminated against, the examiner found that the board did not sustain its burden to make out its case, while the board found as to all of them except Alvardo and Farias that it did, we should, without further comment, direct enforcement of its order.
The respondent insists that, in finding as he did, the examiner, paying not lip service but full fealty to the rule established by statute and decision, that the board has, and must sustain, the burden of proving the charges made in its complaint, has correctly interpreted the record. So insisting, it urges upon us that, since he saw the witnesses and their demeanor on the stand and was able to judge of their credibility and truthfulness, his findings should be accepted rather than those of the board.
The board, on its part, in its decision and in its brief insisting: that there is no question here of conflict in the evidence and its resolution by credibility tests; that indeed the examiner's findings of fact are in substance the same as its own; urges upon us that what is for decision here is merely whether the examiner has applied a correct rule of...
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