NLRB v. Charley Toppino and Sons, Inc., No. 20522.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN and BELL, Circuit , and HUGHES
Citation358 F.2d 94
Docket NumberNo. 20522.
Decision Date24 March 1966
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHARLEY TOPPINO AND SONS, INC., Respondent.

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.


358 F.2d 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 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.

358 F.2d 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...

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13 practice notes
  • UNITED IND. WKRS. OF SEA. IU v. Board of Tr. of Galveston Wh., No. 25081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 1968
    ...period23 less any net interim earnings computed on a quarterly basis with interest.24 See NLRB v. Charley Toppino & Sons, 5 Cir. 1966, 358 F.2d 94. Of course, a discharged employee is under a duty to make a reasonable effort to secure interim employment to mitigate the damages resulting fro......
  • N.L.R.B. v. Haberman Const. Co., No. 79-1120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 3, 1981
    ...S.Ct. 188, 58 L.Ed.2d 174 (1978); Trico Products Corp. v. NLRB, 489 F.2d 347, 353 (2nd Cir. 1973); NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 96 (5th Cir. 1966); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 11 We need no......
  • N.L.R.B. v. Haberman Const. Co., No. 79-1120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1980
    ...S.Ct. 188, 58 L.Ed.2d 174 (1978); Trico Products Corp. v. NLRB, 489 F.2d 347, 353 (2nd Cir. 1973); NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 96 (5th Cir. 1966); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 The key issue......
  • N.Y. Party Shuttle, L. L.C. v. Nat'l Labor Relations Bd., No. 20-61072
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2021
    ..."was 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. 1966). Despite the discretion afforded to the Board, it does not receive a blank check. The court must ensure that the Board's fact......
  • Request a trial to view additional results
14 cases
  • UNITED IND. WKRS. OF SEA. IU v. Board of Tr. of Galveston Wh., No. 25081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 1968
    ...period23 less any net interim earnings computed on a quarterly basis with interest.24 See NLRB v. Charley Toppino & Sons, 5 Cir. 1966, 358 F.2d 94. Of course, a discharged employee is under a duty to make a reasonable effort to secure interim employment to mitigate the damages resulting fro......
  • N.L.R.B. v. Haberman Const. Co., No. 79-1120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 3, 1981
    ...S.Ct. 188, 58 L.Ed.2d 174 (1978); Trico Products Corp. v. NLRB, 489 F.2d 347, 353 (2nd Cir. 1973); NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 96 (5th Cir. 1966); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 11 We need no......
  • N.L.R.B. v. Haberman Const. Co., No. 79-1120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 2, 1980
    ...S.Ct. 188, 58 L.Ed.2d 174 (1978); Trico Products Corp. v. NLRB, 489 F.2d 347, 353 (2nd Cir. 1973); NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 96 (5th Cir. 1966); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 The key issue......
  • N.Y. Party Shuttle, L. L.C. v. Nat'l Labor Relations Bd., 20-61072
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 22, 2021
    ..."was 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. 1966). Despite the discretion afforded to the Board, it does not receive a blank check. The court must ensure that the Board's fact......
  • Request a trial to view additional results

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