National Labor Relations Board v. Joseph Magnin Company

The National Labor Relations Board petitions for enforcement of its order finding the Joseph Magnin Company in violation of sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1), (3), and ordering that affected employees be made whole. We enforce the Board’s order. FACTS

Joseph Magnin Company, Inc. operates retail stores in California and other western states. It currently has seven locations within San Francisco, including its O’Farrell Street store (Store No. 1). Prior to 1977 the company had voluntarily extended recognition to Department Store Employees Local 1100 and extended the collective bargaining agreement to each of its newly opened stores in San Francisco. However, its locations outside the city remained unorganized. In 1977 Magnin opened the Embarcadero store in San Francisco without extending recognition.

The company has a policy, which first appeared in written form in 1977, of not transferring hourly employees between locations, with exceptions only for employee relocations or promotions. When the Embarcadero store opened, the company refused to transfer employees from organized locations but did allow some transfers from unorganized…

concurring in part and dissenting in part:

I concur in part I of the majority opinion, which enforces the Board’s decision on the section 8(a)(1) and section 8(a)(3) charges, and in part IIIA, which upholds the Board’s transfer remedy. I dissent from part II of the majority opinion, which upholds the Board’s refusal to defer to the arbitrator’s denial of backpay to the seven union employees. As a result, I find it unnecessary to reach the merits of the backpay issue, which are discussed in part IIIB.

Although the Board is granted wide discretion in its decision whether to defer to an arbitration award, see Alfred M. Lewis, Inc. v. NLRB, 587 F.2d 403, 407 (9th Cir.1978); Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir.1976), cert. denied, 431 U.S. 965 , 97 S.Ct. 2921 , 53 L.Ed.2d 1061 (1977) (Hawaiian Hauling), it abuses that discretion “if it fails to follow its own deferral standards or if the standards themselves are invalid.” Ad Art, Inc. v. NLRB, 645 F.2d 669, 675 (9th Cir.1980) (Ad Art); NLRB v. Max Factor & Co., 640 F.2d 197, 201 (9th Cir.1980), cert. denied, 451 U.S. 983 , 101 S.Ct. 2314 , 68 L.Ed.2d 840 (1981) (Max Factor); Hawaiian Hauling, supra, 545…

704 F.2d 1457 113 L.R.R.M. (BNA) 2476 , 97 Lab.Cas. P 10,101 NATIONAL LABOR RELATIONS BOARD, Appellee, v. JOSEPH MAGNIN COMPANY, Appellant. No. 82-7165. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1982. Decided May 3, 1983. Jerrold J. Wohlgemuth, Washington, D.C., for N.L.R.B. Kathleen M. Kelly, Littler, Mendelson, Fastiff & Tichy, Roland C. Davis, Davis, Cowell & Rowe, San Francisco, Cal., for Joseph Magnin Co. On Application for Enforcement of an Order of the National Labor Relations Board. Before WALLACE and FERGUSON, Circuit Judges, and GRANT, * District Judge. FERGUSON, Circuit Judge: 1 The National Labor Relations Board petitions for enforcement of its order finding the Joseph Magnin Company in violation of sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 158 (a)(1), (3), and ordering that affected employees be made whole. We enforce the Board's order. FACTS 2 Joseph Magnin Company, Inc. operates retail stores in California and other western states. It currently has seven locations within San Francisco, including its O'Farrell Street store (Store No. 1). Prior to 1977 the company had voluntarily extended…