NLRB v. Buitoni Foods Corp.

• Decision Date: 15 January 1962
• Docket Number: No. 13534.,13534.
• Citation: 298 F.2d 169
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUITONI FOODS CORP., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

298 F.2d 169 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUITONI FOODS CORP., Respondent.

No. 13534.

United States Court of Appeals Third Circuit.

Argued October 3, 1961.

Decided January 15, 1962.

Margaret M. Farmer, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Rosanna A. Blake, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Joseph S. Oberwager, Newark, N. J., for respondent.

Before GOODRICH, STALEY and SMITH, Circuit Judges.

SMITH, Circuit Judge.

This is a proceeding under Section 10 (e) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 160(e), for the enforcement of a cease and desist order issued and served pursuant to Section 10(c) of the Act, 29 U.S.C.A. § 160(c). The jurisdiction of the Court is not disputed.

The Trial Examiner, after extensive hearings, found and concluded that the respondent, in violation of Sections 8(a) (1) (2) (3) (4), 29 U.S.C.A. § 158(a) (1) (2) (3) (4), interfered with, restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157; dominated and interfered with the formation of a grievance committee, a labor organization within the meaning of the Act; discriminated in regard to hire and tenure of five named employees; and, discriminated against one of the said employees because he had filed charges with the Board. The findings of fact and conclusions of law are fully set forth in the Intermediate Report.

The Board adopted the findings and conclusions of the Trial Examiner and thereupon entered an order which directed the respondent to cease and desist from the unfair labor practices therein enumerated and to reinstate and make whole the named employees wrongfully discharged. It should be noted that the Board reversed and modified one of the recommendations made by the Trial Examiner. This modification will be separately considered.

The petition for enforcement of the order is resisted by the respondent mainly on the ground that the findings of fact stated in the Intermediate Report are not supported by substantial evidence. It is urged that this Court should not accept the findings of fact as conclusive. The respondent, although solicitously avoiding a direct charge of bias, argues that the Trial Examiner uniformly gave credence and weight to the testimony of the employees and disregarded "the testimony of the opposing witnesses."

The latter argument, if supported by the record, would not warrant a rejection of the findings of fact. N. L. R. B. v. Pittsburgh S. S. Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 93 L.Ed. 1602, et seq. (1949); N. L. R. B. v. Newton Company, 236 F.2d 438, 444 (5th Cir. 1956); Sardis Luggage Co. v. N. L. R. B., 234 F.2d 190, 193 (5th Cir. 1956); N. L. R. B. v. Houston & North Tex. M. F. L., 193 F.2d 394, 397 (5th Cir. 1951), cert. den. 343 U.S. 934, 72 S.Ct. 771, 96 L.Ed. 1342; N. L. R. B. v. Robbins Tire & Rubber Co., 161 F.2d 798, 800 (5th Cir.1947). We cannot conclude that the findings of fact are not supported by substantial evidence merely because the Trial Examiner may have believed the testimony offered by General Counsel and rejected as unbelievable, or lacking in persuasive weight, the evidence offered by the respondent. Ibid. The case of Local No. 3, etc. v. N. L. R. B., 210 F.2d 325, at pages 329 and 330 (8th Cir.1954), upon which the respondent relies, is clearly distinguishable on its facts.

It is the function of the Board to find the facts and to draw the inferences of which the relevant evidence is reasonably susceptible. There is inherent in this function the responsibility to resolve issues of credibility. N. L. R. B. v. Local 420, etc., 239 F.2d 327, 328 (3d Cir.1956); N. L. R. B. v. Sun Shipbuilding & Dry D. Co., 135 F.2d 15, 25 (3d Cir. 1943); N. L. R. B. v. Ferguson, 257 F.2d 88, 90 (5th Cir.1958); Precision Fabricators, Inc. v. N. L. R. B., 204 F.2d 567, 569 (2d Cir.1953), and the cases cited hereinabove. The resolution of issues of credibility is clearly not for the Court.

The function of the Court is to determine whether or not, on a consideration of the record as a whole, the findings of fact are supported by "substantial evidence." Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We have examined the entire record in the instant case, bearing in mind the broad authority vested in the Board and the limited function of the Court.

We are convinced by our examination of the record that the findings of fact are based upon a thoughtful consideration of the evidence as a whole and a discriminating evaluation of the conflicting testimony. We are persuaded that much of the testimony which the respondent apparently considers contradictory of the testimony of the employees was negative, evasive, and lacking in probative value. The findings of fact stated in the Intermediate Report, as well as the conclusions therein summarized, are amply supported by substantial evidence.

The respondent was, and had been since 1944, a party to successive collective bargaining agreements with Local 102, Bakery and Confectionery Workers International Union, the exclusive representative of approximately 120 production and maintenance employees. Such an agreement was in force and effect during the period here in question and until September 1, 1958, when it was supplanted by a new contract.

A number of employees, having become dissatisfied with their representation by the union and the conduct of union representatives, initiated a movement to have Local 102 decertified as the exclusive representative. This movement, initiated some time in September of 1957, was spearheaded by the employees Keating and Calabrese as chairman and assistant chairman, respectively. A petition for decertification, authorized by a majority of the employees, was filed with the Regional Director for the Board on September 23, 1957, and in April of the following year an election was conducted pursuant to Section 9(c) (1) of the Act, 29 U.S.C.A. § 159(c) (1). The employees failed to elect a "collective bargaining representative," and written notice of their action was given the respondent.

It should be noted that on the day prior to the election ninety-six of the employees formally resolved to "disaffiliate from Local 102" but to "continue in full force and effect" the collective bargaining agreement of November 1, 1956. A copy of the formal resolution was forwarded to the respondent. It is clear from the evidence that the employees did not rescind the collective bargaining agreement.

While the petition for decertification was pending, and prior to the election, the employees Keating and Calabrese, together with several other employees, undertook the leadership of an organizational campaign on behalf of Local 165, American Bakery and Confectionery Workers International Union. They circulated authorization cards among the employees and obtained the signatures of a majority. After the decertification of Local 102 the business agent of Local 165 telephoned Cuneo, Vice President of the respondent, and requested a meeting. The successive efforts of the business agent, in April of 1958, to arrange a meeting were ignored.

When it seemed apparent that the endeavors of Local 165 to gain recognition had been effectively resisted by the executive officers of the respondent, the employees turned to District 50 United Mine Workers of America. This was in the latter part of May and in the early part of June of 1958. The employees Keating and Calabrese, and several others, met with a representative of District 50 on several occasions between May 21 and June 3, and thereafter commenced an organizational campaign on behalf of the union. They again distributed authorization cards among the employees and obtained the signatures of a majority.

The Regional Director of District 50, by letter of June 16th, notified the President of the respondent "that a substantial majority of the production-maintenance employees * * * had chosen District 50 * * * as their bargaining representative" and requested "recognition as the bargaining agent." The letter further stated:

"Should you entertain any bona fide doubt as to our union having been chosen by the majority of your aforementioned personnel, we propose an immediate conference for the purpose of resolving that doubt and will submit to any unbiased canvass of the situation. You know, of course, that we do not present petitions to the National Labor Relations Board."

The receipt of this unequivocal demand for recognition was acknowledged by an executive officer of the respondent, but for reasons which seem apparent was never acted upon.

Formation of Grievance Committee

There is undisputed testimony that at noon on June 13, 1958, Blum, personnel manager, and Davis, plant manager, summoned the production and maintenance workers to separate meetings held in the respondent's plant. When these meetings were called the representatives of management were fully aware of the activities of the employees on behalf of District 50. There is further testimony, which the Trial Examiner apparently found credible, that at the meetings the employees were informed that Buitoni, President of the respondent, had requested the election of a "three-man grievance committee," and that the election would be held at 2:30 o'clock in the afternoon. The election was conducted in the plant of the respondent and under the immediate supervision of Blum.

The results of the election were announced on the morning of June 16th, shortly after a tally of the ballots under the supervision of Blum had been concluded. The employees elected to the grievance committee were Calabrese, Morro and Leopardi. The members of the committee were summoned to the office of the president, where they met with Buitoni and Cuneo and other management...