National Labor Relations Board v. Max Factor and Company v. Luisa Gratz, Intervenor

The National Labor Relations Board and Intervenor Luisa Gratz petition under 29 U.S.C. Section 160 (e) for enforcement of the Board’s order against Max Factor and Co. (“Factor”). The controversy arose out of Factor’s discharge of Gratz, who then filed unfair labor practice charges under Sections 8(a)(1) and (3) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158 (a)(1) and (3). Shortly thereafter the union grieved the discharge under the collective bargaining agreement and took it to arbi *200 tration. After a hearing on the unfair labor practice charges, an administrative law judge (“ALJ”) found that Factor had violated the Act and ordered reinstatement. While the ALJ’s decision was pending before the Board on exceptions, the arbitrator, after hearing, issued his decision sustaining the discharge as having been for good cause. Factor’s subsequent request to the Board to defer to the arbitrator’s decision was rejected by the Board which adopted the ALJ’s decision. 1 We grant enforcement.

I. Facts

Gratz was chief union steward at Factor’s Los Angeles plant until February 3, 1977. In course of efforts to process a large backlog of grievances, an unsatisfactory…

(dissenting):

The Board’s conclusion that deferral to the arbitration award would engender a result repugnant to the purposes and policies of the National Labor Relations act is, as the majority opinion points out, unsupported by “analysis of the [Spielberg] repugnance criterion.” I suggest that we need to know why the Board thought the arbitration award was repugnant to the Act before we determine whether the Board abused its discretion in refusing to defer to the arbitration award. Accordingly, I vote to remand with instructions that the Board state the reasons for its conclusions of repugnancy.

640 F.2d 197 105 L.R.R.M. (BNA) 2765 , 89 Lab.Cas. P 12,232 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAX FACTOR AND COMPANY, Respondent, v. Luisa GRATZ, Intervenor. No. 79-7118. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 1980. Decided Sept. 9, 1980. Rehearing Denied Oct. 24, 1980. Certiorari Denied May 18, 1981. See 101 S.Ct. 2314 . Sandra K. Williams, Washington, D. C., argued, Elliott Moore, Washington, D. C., on brief, for petitioner. Elizabeth B. Spector, for intervenor and appellant. Stuart R. Korshak, Los Angeles, Cal., argued and on brief, for respondent. 1 Petition to Enforce Order of National Labor Relations Board. 2 Before GOODWIN and PREGERSON, Circuit Judges, and SCHWARZER, * District Judge. WILLIAM W SCHWARZER, District Judge: 3 The National Labor Relations Board and Intervenor Luisa Gratz petition under 29 U.S.C. Section 160 (e) for enforcement of the Board's order against Max Factor and Co. ("Factor"). The controversy arose out of Factor's discharge of Gratz, who then filed unfair labor practice charges under Sections 8(a)(1) and (3) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158 (a) (1) and (3). Shortly…