Retail Clerks Union, Local No. 1179, Retail Clerks International Association, Afl-Cio v. National Labor Relations Board

376 F.2d 186 RETAIL CLERKS UNION, LOCAL NO. 1179, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 20781. United States Court of Appeals Ninth Circuit. March 28, 1967. Roland C. Davis, Philip Paul Bowe, Carroll, Davis, Burdick & McDonough, San Francisco, Cal., for appellant. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Lawrence M. Joseph, Attys., N.L.R.B., Washington, D. C., Roy O. Hoffman, Director, N.L.R.B., San Francisco, Cal., for appellee. Before HAMLEY and JERTBERG, Circuit Judges, and BYRNE, District Judge. HAMLEY, Circuit Judge. 1 This matter is before us on a petition to review and set aside an order of the National Labor Relations Board (Board), dismissing a complaint against John P. Serpa, Inc. (Serpa), the employer. The petitioner is Retail Clerks Union, Local No. 1179, Retail Clerks International Association, AFL-CIO (Union). The Board's decision and order are reported at 155 NLRB No. 12 . 2 At issue in the Board proceedings was whether Serpa unlawfully refused to bargain, upon request, with the Union. Such a…

This matter is before us on a petition to review and set aside an order of the National Labor Relations Board (Board), dismissing a complaint against John P. Serpa, Inc. (Serpa), the employer. The petitioner is Retail Clerks Union, Local No. 1179, Retail Clerks International Association, AFL-CIO (Union). The Board’s decision and order are reported at 155 NLRB No. 12 .

At issue in the Board proceedings was whether Serpa unlawfully refused to bargain, upon request, with the Union. Such a refusal would be an unfair labor practice under sections 8(a) (1) and (5) of the National Labor Relations Act (Act), 49 Stat. 452 , 453, as amended, 29 U.S.C. § 158 (a) (1) and (5) (1964). The Board, adopting the fact findings, credibility resolutions and conclusion of the Trial Examiner, found and concluded that Ser-pa had not unlawfully refused to bargain with the Union, and dismissed the complaint. The Union then instituted this review proceeding.

The Trial Examiner found the essential facts to be as follows: Serpa is a California corporation with retail automobile sales operations at Martinez and Concord, California, and a service operation at Martinez. In 1958, Serpa, along with a number of…

(dissenting) :

I would deny the petition to review and set aside the Board’s order. In my view the evidence is woefully insufficient to establish that the employer’s failure to recognize the Union was motivated by bad faith.