National Labor Relations Board v. Taormina, 14362.

• Decision Date: 17 September 1953
• Docket Number: No. 14362.,14362.
• Parties: NATIONAL LABOR RELATIONS BOARD v. TAORMINA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

207 F.2d 251 (1953)

NATIONAL LABOR RELATIONS BOARD v. TAORMINA et al.

No. 14362.

United States Court of Appeals Fifth Circuit.

September 17, 1953.

Ruth V. Reel, Atty., David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, George J. Bott, Gen. Counsel, Elizabeth W. Weston, Atty., N. L. R. B., Washington, D. C., for petitioner.

Scott Toothaker, McAllen, Tex., Ewers, Cox & Toothaker, McAllen, Tex., of counsel, for respondents.

Before HOLMES, BORAH, and RIVES, Circuit Judges.

BORAH, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order of May 29, 1951, requiring respondents, E. A. Taormina, A. F. Taormina, Mrs. Madeline M. Taormina, Charles Messina and Frank Culucchia, co-partners, d/b/a Taormina Company, to bargain with the Citrus, Cannery Workers and Food Processors Union, Local 24473, AFL, and granting other related relief.¹

The respondents are engaged in the business of processing, canning, selling and distributing vegetables and tomatoes and have their principal office and place of business at Donna, Texas, where they operate a cannery plant approximately nine months a year, from October until July. They admit, and the Board found, that they are engaged in commerce within the meaning of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.

In the year 1949, the Union was engaged in organizing certain migrant workers, predominantly Mexican, who were employed by respondents and other cannery operators in the area in question. On February 21, 1949, the Union filed a petition with the Board seeking a representation hearing and eventual certification as a representative for all of the production and maintenance employees at respondents' Donna plant. This hearing was granted, and on May 13, 1949, the Board entered its decision and direction of election affirming the hearing officer's rulings and directing that an election be conducted to determine whether or not such employees desired to be represented by the Union for purposes of collective bargaining. At the election, held July 22, 1949, the Union obtained a majority of the valid ballots cast and on August 9, 1949, the Board issued its supplemental decision and certification of representatives certifying the Union as the exclusive representative of respondents' employees in an appropriate collective bargaining unit consisting of all production and maintenance employees at the Donna plant.

On December 19, 1949, E. C. DeBaca, general organizer for the American Federation of Labor, wrote to respondents' attorney and representative requesting that negotiations be opened between the Union and the respondents for a contract to cover the employees of the Taormina Canning Company in their appropriate unit, for wages and hours, rate of pay, and other conditions of employment. After some reasonable delay the parties met on February 1, 1950, and between that date and August 23, 1950, a number of bargaining conferences were held which were attended by representatives of the employer and the Union and various other interested parties representing the Federal Mediation and Conciliation Service, the American Federation of Labor, and the Texas Canners' Association.² However, the parties were unable to reach an agreement on all major issues and on June 15, 1950, the Union filed a charge with the Board against employer Taormina Company alleging that employer had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. More specifically the charge alleged that on June 8, 1950, and at all times since certification by the Board, the company by and through its officers and agents refused to bargain collectively with the authorized agents of the Union and that by such acts, and by other acts and conduct, the employer interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.

On August 23, 1950, and following the filing of the charge against the employer the parties met for the last time and again failed to reach an agreement. Thereafter, on October 26, 1950, the Board issued its complaint alleging that respondents refused and continued to refuse to bargain collectively with the Union as the exclusive representative of all production and maintenance employees, and by such acts respondents engaged in and were thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the Act. By answer filed, respondents admitted that a majority of their employees designated or selected the Union as their representative for the purposes of collective bargaining; denied the allegations charging unfair labor practices; and alleged that they were without knowledge as to whether or not the Union still represented the majority of such employees for collective bargaining purposes. A hearing was had before a duly designated trial examiner who issued his intermediate report finding that respondents had engaged in the aforementioned unfair labor practices in violation of Section 8(a) (5) of the Act. Further, that respondents by said acts had interfered with, restrained and coerced their employees in the exercise of rights guaranteed by Section 7 in violation of Section 8(a) (1) of the Act. The examiner recommended that they cease and desist therefrom and take certain affirmative action. Upon exceptions duly filed, the Board reviewed the rulings of the trial examiner and finding that no prejudicial error was committed affirmed the rulings and adopted his findings, conclusions, and recommendations.

On the basis of its findings, the Board ordered respondents to cease and desist from refusing to bargain collectively with the Union and from interfering in any other manner with the efforts of the Union to bargain collectively with the respondents on behalf of all production and maintenance employees at their Donna plant. Affirmatively, the order required respondents upon request to bargain collectively with the Union, to embody any understanding reached in a signed agreement, and to post the usual notices. This decision and order was served upon respondents and the Board thereafter brought its petition in this Court praying for a decree enforcing in whole its order and requiring respondents to comply therewith.

The respondents resist enforcement. In their answer they deny that they have engaged in or are engaging in any of the unfair labor practices as charged, that the Board's findings of fact are supported by evidence, and that any showing has been made that enforcement of the Board's order is presently desirable. In the alternative and in the event that this Court finds that the Board's findings of fact are supported by evidence, respondents apply for leave to adduce additional evidence³ to show that they have complied with the decision and order of the Board in that they have taken the affirmative action required therein and that the Union no longer represented a majority of the Taormina employees. The prayer is that this court set aside in whole the Board's order, or in the alternative that leave be granted to adduce additional evidence which it was impossible to have adduced at the hearing before the Board inasmuch as the events transpired subsequent to the hearing.

The first, and controlling, question is whether the Board's finding that respondents' conduct in its totality showed their bad faith in their bargaining negotiations with the Union is supported by substantial evidence. We think the record as a whole supports the finding.

The record shows clearly that from the first bargaining meeting on February 1, 1950, the respondents...