National Labor Relations Board v. Wenatchee Thrifty Drugs, Inc.

(dissenting) :

I would enforce the Board’s order as: to the § 8(a) (1) violation, feeling that the Board’s determination is supported by substantial evidence upon the record as a whole.

378 F.2d 363 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WENATCHEE THRIFTY DRUGS, INC., Respondent. No. 21109. United States Court of Appeals Ninth Circuit. May 26, 1967. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Harold B. Zanoff, Melvin J. Welles, Attys., NLRB, Washington, D.C., Thomas P. Graham, Director, NLRB, Seattle, Wash., for appellant. Jon H. Phelps, Engst, Phelps & Young, Wenatchee, Wash., for appellee. Before POPE, MERRILL and KOELSCH, Circuit Judges. PER CURIAM: 1 The National Labor Relations Board petitions for enforcement of its order issued against respondent November 15, 1965, 151 N.L.R.B. 752 ; 155 N.L.R.B. 843 . 2 Respondent contends that the Board's determination that its assertion of jurisdiction would in this case effectuate the purposes of the National Labor Relations Act runs counter to its own self-imposed jurisdictional standards, since the record does not support the Board's ruling that respondent and another concern, together, constituted a single employer for purposes of determining gross revenue. We reject this contention under the facts of this case for…

The National Labor Relations Board petitions for enforcement of its order issued against respondent November 15, 1965, 151 N.L.R.B. 752 ; 155 N.L.R.B. 843 .

Respondent contends that the Board’s determination that its assertion of jurisdiction would in this case effectuate the purposes of the National Labor Relations Act runs counter to its own self-imposed jurisdictional standards, since the record does not support the Board’s ruling that respondent and another concern, together, constituted a single employer for purposes of determining gross revenue. We reject this contention under the facts of this case for the reasons assigned in NLRB v. Carroll-Naslund Disposal, Inc., 359 F.2d 779 (9th Cir. 1966).

Respondent contends that the record does not support the Board’s determination that respondent had threatened employees with economic reprisals if a union were selected to represent them. We agree.

The Board’s order is entitled to enforcement as to the § 8(a) (5) violation, based on refusal to bargain. It is. not entitled to enforcement as to the § 8 (a) (1) violation, based upon threats to an employee.