NLRB v. Merner Lumber and Hardware Company
| Decision Date | 22 June 1965 |
| Docket Number | No. 19349.,19349. |
| Citation | 345 F.2d 770 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MERNER LUMBER AND HARDWARE COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, William Wachter, Attys., N.L.R.B., Washington, D. C., for petitioner.
Grant A. Winther, San Francisco, Cal., for respondent.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
The National Labor Relations Board seeks enforcement of its order directing Merner Lumber and Hardware Company to cease and desist from certain asserted unfair labor practices and to take specified corrective action. The order in question resulted from agency proceedings in which it was found that the company had engaged in two unfair labor practices.
One of these unfair labor practices, the Board found, was in refusing, on December 7, 1962, to extend recognition to, and bargain with, Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO (Union), as the representative of sales personnel and clerical workers at the company's hardware store in Palo Alto, California. This was held to be a violation of section 8(a) (5) and (1) of the National Labor Relations Act (Act), 49 Stat. 452 (1935), as amended, 29 U.S.C. § 158(a) (5) and (1) (1958).
The other unfair labor practice, the Board found, was the action of the company in discharging four employees on December 8, 1962, and one on December 10, 1962. All of these employees, the Board found, had been active in promoting the organizing attempt of the Union at the Palo Alto store. The Board concluded from this that the company discriminated in regard to the hire and tenure of employment of these employees to discourage membership in the Union. This was held to be a violation of section 8(a) (3) and (1) of the Act, 29 U.S.C. § 158(a) (3) and (1) (1958).
The Board order requires the company to cease and desist from engaging in such practices, requires the company to post the customary notices, and directs the company to reinstate and make whole four of the discharged employees, the fifth having been reinstated shortly after his discharge and having thereafter resigned.
Resisting the petition for enforcement, the company argues that the trial examiner's findings of fact, adopted by the Board, are not supported by substantial evidence on the record considered as a whole. Quite to the contrary, the company asserts, the substantial evidence required findings that: (1) the company refused to bargain because of its good faith doubt...
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