National Labor Relations Board, Petitioner, v. Hans J. Hvide et al., Respondents, 315 F.2d 376 (5th Cir. 1963)

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US Court of Appeals for the Fifth Circuit - 315 F.2d 376 (5th Cir. 1963) April 4, 1963

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Counsel Gen., Allan I. Mendehsohn, Atty., N.L.R.B., Washington, D. C., Stuart Rothman, Gen. Counsel, Warren M. Davison, Jules H. Gordon, Attorneys, National Labor Relations Board, for petitioner.

Cody Fowler, Granville M. Alley, Jr., Glenn L. Greene, Jr., Tampa, Fla., Raymond J. Malloy, Tampa, Fla., and William F. Leonard, Ft. Lauderdale, Fla., Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel, and Coleman, Leonard & Morse, Fort Lauderdale, Fla., for respondents.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.


There is ample evidence in the record as a whole to sustain the findings of the Board that respondents discharged Joseph C. Moschetto because of his union membership and activities in violation of Section 8(a) (3) and (1) of the Act. There is also sufficient evidence to sustain the finding of the Board that by this act and others testified to, respondents interfered with, restrained and coerced its employees in violation of Section 8(a) (1) of the act. We find no substantial evidence on the record as a whole to support the Board's finding that the respondents refused to bargain with the union which had been designated as a bargaining agent by a majority of the employees prior to the commencement of the proceedings now before the Court. This is so because the written notice which was intended to be sent to respondents demanding recognition and a bargaining session was not actually received by respondents until approximately the day before the date set by the employees seeking recognition. We think the failure to go forward with a meeting on such short notice could not under the circumstances here present constitute a violation of Section 8(a) (5).

The order of the Board will be enforced in all respects except as it relates to the alleged violation of Section 8(a) (5) as to which enforcement is denied.