Nat'l Labor Relations Bd. v. Holly Bra of California, Inc., 405 F.2d 870 (9th Cir. 1969). · Go Syfert
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Nat'l Labor Relations Bd. v. Holly Bra of California, Inc., 405 F.2d 870 (9th Cir. 1969). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1986 · …an employer cannot do constructively what the act prohibits his doing directly. at p. 872 ✓
29 citation events (3 in the last 25 years) across 9 distinct courts.
Strongest positive: Finch v. Greatland Foods, Inc. (alaska, 2001-05-04)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) Finch v. Greatland Foods, Inc.
Alaska · 2001 · confidence medium
Federal courts unanimously recognize a constructive discharge claim that prevents employers from creating intolerable work environments designed to force employees to resign. - See id. at 1349-50 n. 5 (citing Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 894 , 104 S.Ct. 2803 , 81 L.Ed.2d 732 (1984); Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975); N.L.R.B. v. Holly Bra of California, 405 F.2d 870, 872 (9th Cir.1969)); see also Watson v. Nationwide Ins.
discussed Cited as authority (rule) Beard v. Baum
Alaska · 1990 · confidence medium
However, the CBA states that "GRIEVANCES AT STEP THREE AND BEYOND MUST BE PROCESSED THROUGH APEA BUSINESS REPRESENTATIVES.” (Emphasis in original). 5 .See, e.g., Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 894 , 104 S.Ct. 2803, 2810 , 81 L.Ed.2d 732 (1984) (employer violates statute preventing retaliatory discharge for union involvement when "it purposefully creates working conditions so intolerable that the employee has no option but to resign — a so-called "constructive discharge."); Young v. Southwestern Savings and Loan Ass’n, 509 F.2d 140, 144 (5th Cir.1975) ("if the employer delibera…
cited Cited as authority (rule) Ford v. Alfaro
9th Cir. · 1986 · confidence medium
Sec. 158 (a)(3), "[a]n employer cannot do constructively what the act prohibits his doing directly." NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir.1969).
discussed Cited as authority (rule) Ford v. Alfaro
9th Cir. · 1986 · confidence medium
As this court has said, in the context of the analogous NLRA provision, 29 U.S.C. § 158 (a)(3), “[a]n employer cannot do constructively what the act prohibits his doing directly.” NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir.1969).
discussed Cited as authority (rule) Sure-Tan, Inc. v. National Labor Relations Board (2×)
SCOTUS · 1984 · confidence medium
P. Stevens & Co. v. NLRB, 461 F. 2d 490 , 494 (CA4 1972); NLRB v. Holly Bra of California, Inc., 405 F. 2d 870, 872 (CA9 1969); Atlas Mills, Inc., 3 N. L.
discussed Cited as authority (rule) National Labor Relations Board v. Haberman Construction Company (2×)
5th Cir. · 1981 · confidence medium
P. Stevens & Co. v. NLRB, 461 F.2d 490 , 494 (4th Cir. 1972); NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir. 1969); Montgomery Ward & Co. v. NLRB, 377 F.2d 452, 459 (6th Cir. 1967); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 339 F.2d 203, 204-05 (6th Cir. 1964).
discussed Cited as authority (rule) Ad Art, Inc. v. National Labor Relations Board
9th Cir. · 1981 · confidence medium
We agree with the AU that Wydner’s behavior was troubling. 11 Nonetheless, “the fact that the Board’s choice is one of two conflicting alternatives and that evidence and inferences exist to support the rejected choice is not a sufficient ground for refusing to order enforcement.” NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir. 1969).
discussed Cited as authority (rule) National Labor Relations Board v. Haberman Construction Company (2×)
5th Cir. · 1980 · confidence medium
P. Stevens & Co. v. NLRB, 461 F.2d 490 , 494 (4th Cir. 1972); NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir. 1969); Montgomery Ward & Co. v. NLRB, 377 F.2d 452, 459 (6th Cir. 1967); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 339 F.2d 203, 204-05 (6th Cir. 1964).
cited Cited as authority (rule) Kaynard v. Palby Lingerie, Inc.
2d Cir. · 1980 · confidence medium
Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972); NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir. 1969).
cited Cited as authority (rule) Kaynard v. Palby Lingerie
2d Cir. · 1980 · confidence medium
Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972); NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir. 1969).
cited Cited as authority (rule) Cartwright Hardware Company, Inc. v. National Labor Relations Board
10th Cir. · 1979 · confidence medium
B. v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th *271 Cir. 1969); N. L.
discussed Cited as authority (rule) The Chamber of Commerce of the United States of America for and on Behalf of Its Member Boise Cascade Corporation v. The National Labor Relations Board, Summit Valley Industries, Inc. v. The National Labor Relations Board, United Brotherhood of Carpenters & Joiners of America, Local Union 112, Afl-Cio v. National Labor Relations Board, and Chamber of Commerce of the United States of America, Intervenor
9th Cir. · 1978 · confidence medium
It is well settled that a reviewing court should not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488 , 71 S.Ct. 456, 465 , 95 L.Ed. 456 (1951); National Labor Relations Board v. Holly Bra of California, 405 F.2d 870, 872 (9th Cir. 1969). 45 From the context in which the letter arose and the contractors to whom it was sent, it cannot be said that the Board had no rational basis to support its c…
discussed Cited as authority (rule) Chamber of Commerce v. National Labor Relations Board
9th Cir. · 1978 · confidence medium
It is well settled that a reviewing court should not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488 , 71 S.Ct. 456, 465 , 95 L.Ed. 456 (1951); National Labor Relations Board v. Holly Bra of California, 405 F.2d 870, 872 (9th Cir. 1969).
cited Cited as authority (rule) Famet, Inc., & v. National Labor Relations Board, &
9th Cir. · 1974 · confidence medium
Co., 369 U.S. 404, 405 , 82 S.Ct. 853 , 7 L.Ed.2d 829 (1962); NLRB v. Holly Bra of Calif., Inc., 405 F.2d 870, 872 (9th Cir. 1969).
cited Cited as authority (rule) Dean K. Buckley v. National Labor Relations Board, and System 99, Intervenor
9th Cir. · 1970 · confidence medium
NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (CA 9 1969).
discussed Cited "see" Baker v. Tremco Inc. (2×)
Ind. Ct. App. · 2008 · signal: see · confidence high
See N.L.R.B. v. Holly Bra of Calif., Inc., 405 F.2d 870, 872 (9th Cir.1969) (“An employer cannot do constructively what the act prohibits his doing directly, and causing working conditions to become intolerable as a means of terminating employment is forbidden conduct”) (citation omitted).
cited Cited "see" National Labor Relations Board v. Auto Fast Freight, Inc.
9th Cir. · 1986 · signal: see · confidence high
See NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (9th Cir.1969).
discussed Cited "see" Hertzka & Knowles v. National Labor Relations Board
9th Cir. · 1974 · signal: see · confidence high
Famet, Inc. v. NLRB, 490 F.2d 293, 295 (9th Cir. 1973); NLRB v. Douglas & Lomason Co., 443 F.2d 291, 294 (8th Cir. 1971); NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369-1370 (9th Cir. 1969); see NLRB v. Holly Bra, Inc., 405 F.2d 870, 872 (9th Cir. 1969). 12 .
Retrieving the full opinion text from the archive…
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
HOLLY BRA OF CALIFORNIA, INC., Respondent
22543.
Court of Appeals for the Ninth Circuit.
Jan 16, 1969.
405 F.2d 870
1969 U.S. App. LEXIS 9312
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Paul A. Cassady, Director, N. L. R. B., Allison W. Brown, Jr., Allen J. Berk (argued), Los Angeles, Cal., for appellant., William B. Irvin, Beverly Hills, Cal. (argued), Joseph M. McLaughlin, Basil Feinberg, Los Angeles, Cal., for appellee.
Chambers, Barnes, Carr.
Cited by 29 opinions  |  Published
BARNES, Circuit Judge:

Petitioner, under section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), seeks enforcement of its order against respondent Holly Bra of California, Inc., a manufacturer of swim wear and women’s undergarments. (NLRB v. Holly Bra of California, Inc., 164 NLRB No. 151.)

The Board, on review of the trial examiner’s findings, found no prejudicial error, and affirmed his ruling that respondent had committed unfair labor practices violative of sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act and had engaged in misconduct affecting the results of an election. As a result, respondent was ordered to refrain from abridging section 7 guarantees and to compensate and rehire Dulce Fumero, an employee active in organizing for the union, who was found to have been discharged in a discriminatory manner.

Respondent does not challenge the findings and enforcement orders relating to its misconduct involving section 8(a) (1). Its objection is directed solely toward the determination involving employee Fumero.

It would avail little to here repeat the contentions of each side. The employer claimed the work Fumero did after the election was intentionally carelessly and poorly done, and hence rightly rejected by the employer. The employee claimed the employer unjustly found fault in her work. The trial examiner resolved this credibility conflict, as well as the ques[*872] tion of the quality of her work, in Fumero’s favor. (Examiner’s Opinion, p. 21.) The examiner concluded that the treatment received by Fumero was a management scheme to humiliate and harass her so as to force her into quitting her job. (Id. at 24.) The examiner rejected the employer’s contention that the employee was simply determined to perform her duties in an unsatisfactory manner in retaliation, allegedly, for her disappointment at the result of the election. The examiner’s recommendation was ratified by the Board.

Respondent’s argument before this court is that the Board’s order is not supported by substantial evidence and is so clearly erroneous that enforcement must be denied. In rejecting respondent’s position, and ordering enforcement, we rely upon fundamental principles of appellate review.

Clearly, if the facts are as the examiner found, respondent’s conduct, as a reprisal for Fumero’s union activities, constitutes a violation of section 8(a) (3). NLRB v. Monroe Auto Equipment Co., 392 F.2d 559 (5th Cir. 1968). An employer cannot do constructively what the act prohibits his doing directly, NLRB v. Vacuum Platers, Inc., 374 F.2d 866 (7th Cir. 1967), and causing working conditions to become intolerable as a means of terminating employment is forbidden conduct. NLRB v. Tennessee Packers, Inc., Frosty Morn Div., 339 F.2d 203 (5th Cir. 1964).

Respondent does not dispute the validity of these principles, but insists that this court should set aside the findings of the examiner and Board as totally without merit.

Concededly, it is within our power to reject such determinations, NLRB v. Elias Bros. Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964), but this is not an action we undertake casually (Fed.R.Civ.P. 52(a)), since we must accept the initial judgment unless it is not supported by “substantial evidence.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The fact that the Board’s choice is one of two conflicting alternatives and that evidence and inferences exist to support the rejected choice is not a sufficient ground for refusing to order enforcement. NLRB v. Certain-Teed Products Corp., 387 F.2d 639 (5th Cir. 1968); NLRB v. Camco, Inc., 369 F.2d 125 (5th Cir. 1966). [1]

The matter here hinges on credibility choices, the significant decision being the trial examiner’s acceptance of Fumero’s testimony as true and his downgrading of Yoshida’s and Young’s testimony as “embellished”, “self-contradictory” or “exaggerated”; and because Pinas showed a “lack of candor,” etc. On the record before us, we are not so omniscient as to declare this decision to be unsupported by substantial evidence. NLRB v. Waycross Sportswear, Inc., 391 F.2d 294 (5th Cir. 1968); Nabors v. NLRB, 323 F.2d 686 (5th Cir. 1963). The Board’s order is, therefore, enforced.

1

. We do not read McGowan v. United States, 296 F.2d 252 (5 Cir. 1961) to the contrary. That case was reversed and remanded “based * * * on two factors quite independent of any such run-of-the-mill credibility choice” (p. 255). The first factor was an erroneous “assumption” and the second an erroneous “mathematical necessity.” (Id. p. 255), which two factors do not here exist.