298 F.

2d 169

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.
8

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.

10

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.

11

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.

12

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.
13

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.

14

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

15

"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."

16

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

17

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.
18

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
representatives. They were congratulated on their election and advised that
thereafter they could discuss their grievances with Blum at any time.

19

It appears from the testimony of Calabrese, corroborated by the testimony of

Cuneo, that at the meeting the activities of the employees on behalf of District
50 were inquired into and discussed. There is a conflict in the testimony as to
the substance of the conversations, but there was testimony, which the Trial
Examiner apparently found credible, that Buitoni openly expressed his
opposition to "a union in the shop" and threatened to "close the plant down and
go back to Italy * * * before he would recognize District 50." The witness
Calabrese insisted on the right of the employees to union representation
notwithstanding the formation of the grievance committee.

20

There is ample evidence that the grievance committee was a labor organization
within the meaning of Section 2(5) of the Act, 29 U.S.C.A. 152(5); it was
admittedly organized for the purpose of dealing with the grievances of the
employees concerning wages, hours, and conditions of employment. N. L. R.
B. v. Cabot Carbon Co., 360 U.S. 203, 210, 79 S.Ct. 1015, 5 L.Ed.2d 1175 et
seq. (1959); Pacemaker Corp. v. N. L. R. B., 260 F.2d 880, 883 (7th Cir.1958);
N. L. R. B. v. Stow Mfg. Co., 217 F.2d 900, 904 (2d Cir. 1954), cert. den. 348
U.S. 964, 75 S.Ct. 524, 99 L.Ed. 751. There is also ample evidence that the
organization of the committee was instigated, sponsored and dominated by the
representatives of management. Their conduct violated Section 8(a) (1) (2) of
the Act. Ibid. The management representatives disclaimed all responsibility for
the committee, but a reasoned evaluation of the evidence as a whole belies the
disclaimer.

21

The organization of the grievance committee was not an isolated occurrence but
was consistent with a course of conduct pursued for many weeks by the
representatives of management. There is testimony that while the employees
Keating and Calabrese had been engaged in their organizational activities, first

on behalf of Local 165 and later on behalf of District 50, they were questioned,
warned, and at times threatened with the possible loss of their jobs. The threats
of reprisals may have been subtle but they were nevertheless clear in their
implications. The described course of conduct violated Section 8(a) (1) (2) of
the Act. H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 518 et seq., 61 S.Ct. 320,
85 L. Ed. 309 (1941); N. L. R. B. v. Saxe Glassman Shoe Corp., 201 F.2d 238,
243 (1st Cir.1953); N. L. R. B. v. Kanmak Mills, 200 F.2d 542, 543, et seq.
(3rd Cir. 1952); Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d
732, 740 (D. C.Cir.1950). It is reasonable to infer that the grievance committee
was designedly organized to influence, discourage and thwart further union
activities.
22

The Trial Examiner found, and the Board adopted the findings, that
"management conduct clearly rendered illegal assistance to a labor
organization, and interfered with, restrained, and coerced employees in the
exercise of their right, under the Act, to select their own bargaining
representative." The evidence as a whole, including the circumstances under
which the election was held and the occurrences which preceded and followed
it, convincingly supports these findings of fact.

Strike
23

The members of the grievance committee summoned the employees to a

meeting which was held after working hours on June 16, 1958. When the
employees were informed by Calabrese that Buitoni would not recognize
District 50, they voted to strike. The strike was organized on the following day,
and on June 18th the employees commenced picketing in front of the
respondent's premises. The strike was abandoned on June 20th, and Cuneo was
informed of the employees' willingness to return to work. The employees were
told not to return to work until notified, and this was confirmed by telegram
addressed to each of them on the following day. The services of Calabrese,
Keating and others were summarily terminated and they were so notified by
telegram on July 9th.

Discriminatory Discharges
24

The Trial Examiner found that Keating and Calabrese had been discriminatorily
discharged because of their union activities and concluded that the conduct of
the respondent violated Sections 8(a) (1) (3) of the Act. The validity of the
findings, separately made as to each employee, are disputed by the respondent
on the ground that they are not supported by substantial evidence. It was argued
at the hearing before the Trial Examiner, as it is strenuously argued before this

Court, that these employees were discharged for good and sufficient reason, to
wit, the lack of competence and efficiency in the performance of their work.
The argument of General Counsel was, and is, to the contrary.
25

We observe preliminarily that where, as here, contradictory reasons for the

discharge of an employee are advanced, it is the responsibility of the Board to
weigh the evidence and resolve the factual conflict. N. L. R. B. v. W. T. V. J.,
Inc., 268 F.2d 346 (5th Cir.1959); N. L. R. B. v. West Point Mfg. Co., 245 F.2d
783, 786 (5th Cir.1957); N. L. R. B. v. Wagner Iron Works, 220 F.2d 126, 135
(7th Cir.1955), cert. den. 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 850; N. L. R.
B. v. Whitin Machine Works, 204 F.2d 883, 885 (1st Cir.1953); N. L. R. B. v.
Electric City Dyeing Co., 178 F.2d 980, 982 (3rd Cir.1950). There is clearly no
obligation on the Board to accept at face value the reason advanced by the
employer. The concurrent existence of an otherwise valid reason for the
discharge of an employee does not preclude a factual determination that his
discharge was discriminatory if it appears from a preponderance of evidence,
and the reasonable inferences drawn therefrom, that the discharge was in fact
motivated by the employer's opposition to the employee's union activities. Ibid.

26

There can be little doubt that the Trial Examiner gave careful consideration to
the evidence offered by the respective parties in support of their arguments. His
intermediate report contains a detailed analysis and discussion of the relevant
evidence and the inferences drawn therefrom, and manifests a perceptive
evaluation of the evidence as a whole. The facts as found by the Trial Examiner
are amply supported by the evidence.

27

The employees Hirsch, Reyes and MacDonald were summarily discharged

shortly after the strike had been abandoned, and were so notified by telegram. It
was contended before the Trial Examiner, as it is before this Court, that the
discharges of these employees were warranted because they had engaged in
"acts of violence" while on the picket line. The evidence as a whole, considered
in the light most favorable to the respondent, does not support the contention.

28

The misconduct of these employees was not so serious as to warrant their

summary discharges. N. L. R. B. v. Wallick, 198 F.2d 477, 485 (3rd Cir.1952).
Hirsch and Reyes approached a fellow-employee and attempted to persuade
him not to abandon the strike. A brief minor scuffle ensued. Their conduct may
have been disorderly but to describe it as violent is a gross exaggeration. The
incident in which MacDonald was involved was trivial; the mere mention of the
incident in this opinion lends to it a degree of importance to which it is clearly
not entitled. The evidence as a whole amply supports the Trial Examiner's
determination that the named employees were "discriminatorily discharged."

Alleged Breach of Strike-Waiver Clause

29

The employment relationship between the employees and the respondent was
governed by the agreement of November 1, 1956, which covered hours, wages,
and conditions of employment. The agreement contained a clause (Article
XVII) which defined a grievance procedure for the settlement of disputes
arising from either the agreement or conditions of employment and, as a
concomitant, a typical strike-waiver clause (Article XIX). The parties disagree
as to the binding effect of the latter clause after the formation of the grievance
committee; however, resolution of this disagreement is unnecessary. We shall
assume for the purpose of decision that the clause continued in effect.

30

The respondent argues that the strike was a breach of the strike-waiver clause
and that the discharged employees, as active participants, forfeited their
respective rights to reinstatement. The argument is untenable. There is ample
evidence that the strike was in protest against the unfair labor practices of the
respondent and particularly the adamant refusal to recognize District 50 as the
bargaining agent of the employees. The strike was therefore a protected activity
not within either the inhibition of the strike-waiver clause or the prohibition of
Section 8(d) (4) of the Act. Mastro Plastic Corp. v. N. L. R. B., 350 U.S. 270,
76 S.Ct. 349, 100 L.Ed. 309 (1956), affirming N. L. R. B. v. Mastro Plastics
Corp., 214 F.2d 462 (2d Cir.1954); N. L. R. B. v. Wagner Iron Works, supra,
220 F.2d 140, 141.

Modification of Examiner's Recommendation

31

The collective bargaining agreement of November 1, 1956, between Local 102

and the respondent, contained a clause (Article VIII) under which the right of
the employees to paid holidays was made conditional upon the length of their
union membership. The provision was admittedly never enforced and was
eliminated upon renewal of the contract in September of 1958. The Trial
Examiner correctly decided that the clause was discriminatory and illegal but
concluded that remedial action was not necessary to "effectuate the policies of
the Act." The Board concluded otherwise and incorporated appropriate
remedial provisions in the cease and desist order. The respondent objects to
these remedial provisions, but the objection is not well taken.

32

The enforcement of the Labor Management Relations Act has been entrusted to
the Board, and it is therefore the function of the Board to determine what relief,
if any, is necessary to undo the effects of an unfair labor practice and to insure
future compliance. N. L. R. B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567,
70 S.Ct. 826, 829, 94 L.Ed. 1067 (1950); N. L. R. B. v. Newspaper & Mail Del.

Union, 246 F.2d 62, 65 (3d Cir.1957); Red Star Exp. Lines of Auburn v. N. L.
R. B., 196 F.2d 78, 80, 81 (2d Cir.1952). "A Board order imposes a continuing
obligation; and the Board is entitled to have the resumption of the unfair
practice barred by an enforcement decree." N. L. R. B. v. Mexia Textile Mills,
Inc., supra.
33

A decree for enforcement of the order of the Board may be submitted.