National Labor Relations Board v. Transcontinental Theaters, Inc.

dissenting:

The majority, it seems to me, crosses the line between review and de novo determination. The Board’s judgment is not accorded the deference that is its due. It is the Board’s function, not the courts’, to accommodate the employer’s right to transfer his business and the union’s right to a stable collective bargaining relationship, and, as part of that task, to evaluate the bona fides of a particular transfer of a particular business. See NLRB v. Lewis, 246 F.2d 886 (9th Cir. 1957).

It is improper for a reviewing court to displace the Board’s “choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 , 71 S.Ct. 465 (1951). See also NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369 (9th Cir. 1969); Suprenant Manufacturing Co. v. NLRB, 341 F.2d 756, 760 (6th Cir. 1965). The Board has made such a choice in this instance. Indeed, a brief consideration of the law and facts will demonstrate that the Board’s view of the record is more reasonable than that adopted by the majority.

The Board did not find that respondent and Cynatron…

The National Labor Relations Board (NLRB) seeks a judgment granting enforcement of the Board’s order in the within matter. The Board’s decision and order are reported at 216 NLRB 1110 .

The Transcontinental Theaters, Inc. (respondent), is a Delaware corporation engaged in the general business of operating movie theaters in various states, including California. The respondent admits it is engaged in interstate commerce. It operates eight theaters in the San Francisco area and the theater here involved is a twin-screened theater (the theater) near San Francisco, in Fremont, California.

Cynatron Enterprises (Cynatron) is a general partnership, formed November 12, 1973, and licensed November 14, 1973, composed of partners Douglas Krutilek and Robert Shaw. Krutilek and Shaw have operated the theater pursuant to a one-year sublease between respondent and themselves, executed November 26, 1973, to take effect November 28, 1973. The Board agrees that Cynatron alone would not meet the Board’s jurisdictional standards and unless it is a joint employer with respondent or operates the theater with respondent as a single enterprise, the Board would not assert jurisdiction over Cynatron.

The…

568 F.2d 125 97 L.R.R.M. (BNA) 2595 , 83 Lab.Cas. P 10,346 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSCONTINENTAL THEATERS, INC., Respondent. No. 75-2505. United States Court of Appeals, Ninth Circuit. Sept. 27, 1977. As Amended Jan. 12, 1978. Michael D. Stein, N. L. R. B., Washington, D. C., argued, for petitioner. George King, of Boornazian, King & Schulze, Oakland, Cal., argued, for respondent. Michael B. Roger, Levy, VanBourg & Hackler, San Francisco, Cal., argued, for intervenor International Assoc. of Theatrical & Stage Employees. Before BROWNING and ANDERSON, Circuit Judges, and CRARY, * District judge. PER CURIAM: 1 The National Labor Relations Board (NLRB) seeks a judgment granting enforcement of the Board's order in the within matter. The Board's decision and order are reported at 216 NLRB 1110 . 2 The Transcontinental Theaters, Inc. (respondent), is a Delaware corporation engaged in the general business of operating movie theaters in various states, including California. The respondent admits it is engaged in interstate commerce. It operates eight theaters in the San Francisco area and the theater here involved is a twin-screened theater (the…