National Labor Relations Board v. Sav-On Drugs, Inc.

704 F.2d 1147 113 L.R.R.M. (BNA) 2466 , 97 Lab.Cas. P 10,097 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAV-ON DRUGS, INC., Respondent. No. 81-7428. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 9, 1982. Decided April 28, 1983. Rehearing Granted Sept. 1, 1983. Elliott Moore, Washington, D.C., Roger W. Goubeaux, Los Angeles, Cal., for petitioner. Thomas S. Kerrigan, McLaughlin & Irvin, Los Angeles, Cal., for respondent. On Application for enforcement of an Order of the National Labor Relations Board. Before CHAMBERS, WALLACE and NORRIS, Circuit Judges. CHAMBERS, Circuit Judge: 1 The National Labor Relations Board (the Board) petitions for enforcement of its order issued December 18, 1980, requiring Sav-On Drugs, Inc. (Sav-On) to reinstate and pay back wages to approximately sixty employees it terminated, on the ground the terminations violated section 8(a)(3) and (1) of the National Labor Relations Act (the Act). 2 Sav-On operated a chain of retail drug stores in California, Texas and Nevada. In mid-1979, Sav-On operated approximately 123 stores in California, some three-quarters of which were covered by identical collective bargaining agreements…

The National Labor Relations Board (the Board) petitions for enforcement of its order issued December 18, 1980, requiring Sav-On Drugs, Inc. (Sav-On) to reinstate and pay back wages to approximately sixty employees it terminated, on the ground the terminations violated section 8(a)(3) and (1) of the National Labor Relations Act (the Act).

Sav-On operated a chain of retail drug stores in California, Texas and Nevada. In mid-1979, Sav-On operated approximately 123 stores in California, some three-quarters of which were covered by identical collective bargaining agreements with various locals of the United Food and Commercial Workers International Union, AFLCIO, formerly the Retail Clerks International Union (the Union). The contracts had an expiration date of June 30,1978, and covered all of the employees in these stores, including the pharmacists and pharmacist managers.

Beginning May 1, 1978, petitions were filed with the Board by the Guild for Professional Pharmacists (the Guild) seeking to represent all pharmacists employed by SavOn in its California stores. Eleven petitions were consolidated for a hearing after which, on September 26, 1978, the regional director issued a…

dissenting:

Rather than treating this matter as a routine case of enforcement of a Board order which is based upon findings supported by substantial evidence in the record as a whole, NLRB v. World Evangelism, Inc., 656 F.2d 1349, 1352 (9th Cir.1981); Stephens Institute v. NLRB, 620 F.2d 720 , 726 (9th Cir.), cert. denied, 449 U.S. 953 , 101 S.Ct. 358 , 66 L.Ed.2d 217 (1980), the majority refuses to enforce the Board’s order by invoking, without citation of authority, some vague and unarticulated doctrine of fairness.

I

It is well established that an employer violates section 8(a)(3) and (1) of the Act when it discharges employees because of their union activities. See NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596 , 599 & n. 1, 600 (9th Cir.1979), cert. denied, 445 U.S. 915 , 100 S.Ct. 1275 , 63 L.Ed.2d 599 (1980); Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 729 (9th Cir.1969). Here, Sav-On stipulated that pharmacist managers Kunysz and Fogel were discharged because of their activities on behalf of the Guild, and it did not challenge the administrative law judge’s conclusion, based on the Board’s decision in the representation case, that Kunysz and Fogel were employees, not…