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

728 F.2d 1254 100 Lab.Cas. P 10,947 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAV-ON DRUGS, INC., Respondent. CA No. 81-7428. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 11, 1984. Decided March 21, 1984. Peter Winkler, Elliott Moore, N.L.R.B., Washington, D.C., for petitioner. Thomas S. Kerrigan, Timothy F. Ryan, McLaughlin & Irvin, Los Angeles, Cal., for respondent. On Application for Enforcement of an Order of the National Labor Relations Board. Before BROWNING, Chief Judge, CHOY, GOODWIN, HUG, SKOPIL, SCHROEDER, FLETCHER, FARRIS, FERGUSON, CANBY, and BOOCHEVER, Circuit Judges. FARRIS, Circuit Judge: 1 The National Labor Relations Board petitions for enforcement of its order requiring Sav-On Drugs, Inc. to reinstate and pay back wages to 61 discharged employees. The panel refused to enforce the petition. NLRB v. Sav-On Drugs, Inc., 704 F.2d 1147 (9th Cir.1983). We reconsidered the petition en banc. We order enforcement. FACTS 2 Sav-On operates a chain of retail drug stores in California, Texas and Nevada. In mid-1978, employees in approximately three-quarters of its California stores were covered by identical collective bargaining agreements…

The National Labor Relations Board petitions for enforcement of its order requiring Sav-On Drugs, Inc. to reinstate and pay back wages to 61 discharged employees. The panel refused to enforce the order. NLRB v. Sav-On Drugs, Inc., 704 F.2d 1147 (9th Cir.1983). We reconsidered the petition en banc. We order enforcement.

FACTS

Sav-On operates a chain of retail drug stores in California, Texas and Nevada. In mid-1978, employees in approximately three-quarters of its California stores were covered by identical collective bargaining agreements with locals of the United Food and Commercial Workers International Union, AFL-CIO. These agreements had an expiration date of June 30, 1978, and covered all employees in the stores, including pharmacists and pharmacist managers.

Beginning May 1, 1978, the Guild for Professional Pharmacists, seeking to represent all pharmacists employed by Sav-On in its California stores, filed petitions with the National Labor Relations Board. The regional director dismissed the petitions on the ground that pharmacist managers were supervisors and that the Guild was not a labor organization within the meaning of the National Labor Relations Act. See 29 U.S.C.…

dissenting:

The power of the United States Court of Appeals to enforce an order of the NLRB is equitable in nature and should be exercised only when consistent with principles of equity. C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1092 (3d Cir.1974); Morrison-Knudsen Co. v. NLRB, 275 F.2d 914 , 918 (2d Cir. 1960); NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir.1953). We review Board orders for consistency with the National Labor Relations Act (NLRA), and we generally give the Board’s interpretation of the Act considerable deference. Precision Striping, Inc. v. NLRB, 642 F.2d 1144, 1146 (9th Cir.1981). This case, however, does not involve administrative expertise in the construction of the NLRA; it involves equity, purely and simply, which judges are just as competent to apply. See Kingston Cake Co., 206 F.2d at 611 ; see also Thompson v. Clifford, 408 F.2d 154, 167 (D.C.Cir.1968). Furthermore, an administrative interpretation is entitled to no deference if it is not consistent with the congressional purpose. E.g., Morton v. Ruiz, 415 U.S. 199, 237 , 94 S.Ct. 1055, 1075 , 39 L.Ed.2d 270 (1974); Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94-95 , 94 S.Ct. 334, 339-340 , 38…