Robert Atkinson, Jr. v. NLRB
20-1680
| 3rd Cir. | Jul 8, 2021Background
- Robert Atkinson filed an unfair-labor-practice charge against UPS alleging discrimination for participating in a "Vote No" campaign; the NLRB deferred to a dispute-resolution panel that upheld UPS and dismissed Atkinson’s charge.
- The Board re-adopted the Olin deferral standard, which requires (1) fair and regular arbitration, (2) parties agreed to be bound, (3) factual parallelism between contractual and unfair-practice issues, (4) arbitrator had relevant facts, and (5) award not clearly repugnant to the Act.
- Atkinson challenged (a) the Board’s adoption of the Olin standard, (b) deferral given an unresolved June 20 discharge grievance, and (c) whether the panel proceeding was "fair and regular."
- The Third Circuit affirmed the Board’s re-adoption of the Olin standard as rational and consistent with the NLRA and reviewed deferral decisions for abuse of discretion.
- The court held the June 20 grievance was moot because the panel’s October 28 decision conclusively ended Atkinson’s employment, so deferral was proper as to the operative result.
- The court vacated and remanded in part because the Board failed to address Atkinson’s specific allegations that the panel proceeding was not "fair and regular," and the Board must articulate findings and reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board erred in adopting the Olin deferral standard | Atkinson: Board should not readopt Olin; standard improper | Board: Olin is rational, consistent with NLRA objectives and encourages contractual dispute resolution | Affirmed — adoption is rational and consistent with the Act |
| Whether an unresolved June 20 discharge prevents deferral of October 28 decision | Atkinson: June 20 was not final, so cannot defer closely related October 28 decision | Board/UPS: June 20 grievance became moot after October 28 decision conclusively ended employment | Held for Board — June 20 grievance moot; deferral not erroneous |
| Whether the dispute-resolution proceeding was "fair and regular" | Atkinson: Panel biased or tainted (communications by panelist and union rep); proceeding unfair | Board: General Counsel controls complaint; Atkinson did not properly present issue before Board; alternatively, allegations speculative | Vacated and remanded — Board failed to address and explain its conclusion on fairness; must make findings |
| Whether a charging party may raise Board exceptions independent of General Counsel | Atkinson: He may file exceptions to ALJ decision directly | Board: General Counsel typically controls theory of the case | Held for Atkinson — parties (including charging party) may file exceptions; Board cannot ignore such filings without explanation |
Key Cases Cited
- NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775 (1990) (agency rule upheld if rational and consistent with statute; deference to Board even if policy departs from prior positions)
- NLRB v. Yellow Freight Sys., Inc., 930 F.2d 316 (3d Cir. 1991) (deferral decisions reviewed for abuse of discretion)
- Olin Corp., 268 N.L.R.B. 573 (1984) (formulation of five-part deferral standard)
- Hoffman Air & Filtration Sys., 312 N.L.R.B. 349 (1993) (Board will not defer when a closely related nondeferrable claim exists)
- Local 467, Upholsterers’ Int’l Union v. NLRB, 419 F.2d 179 (3d Cir. 1969) (Board must state reasons and factual findings to support exercise of discretion)
- Dist. 1199P, Nat’l Union of Hosp. & Health Care Emps., 864 F.2d 1096 (3d Cir. 1989) (remand required when Board fails to explain its findings)