National Labor Relations Board v. Pincus Brothers, Inc.-Maxwell

paid keep up Company’s gotta 1. The on sleeve setters were a So Pincus tells us that we rate, styles, piece averaging have “our cus- with tomers” we to offer 25 coats an hour with a variety gotta hourly wage that we be FLEXI- $5.50. resultant The arbitrator styles. says BLE on the different He there’s wage average found this industry. to be above gotta prices going get a if we’re real need Well, concerned, as far raised. as he’s get we what us what NEEDis to means more bucks for him it takes day. being work And FLEXIBLE the next 2. The leaflet stated: slice and another WON’T SACRIFICE WE already stinking paychecks. off our Before FOR PINCUS’ PROFITS! it, you making know us he’ll have overcoats “family Tuesday, ato we were called Last you dept. style change, a in the vest know) Oust special Big some gathering” Four for . ! Serving of Cere- Master as announcements. Well, cut, forget get it! When a we we DeMee, our John circus was monies for this tell can’t the cashier at ACME or the spot- gave quickly Agent. He Business light company landlord or the insurance that we still the Days Pincus, sang “Happy Are who cut, got pay ’cause the bills are profits him), telling Again” (for us that Here same. things expanding, soaring, the business is shop in the Pincus tells us this is the best again that He us ever. told better than are we’re city. job! way have What a smoke The we work, bunch, good great we do any no different to work ain’t from other GREAT,patting us making on us thanks for stinking garment shop city. in this law. laid he down the back before thought It’s insult that he we’d fall for special Nat, called family. Forget What occasion bit we think we about the it. anyway? you speeches Valentine’s aren’t are. ones need more the dumb animals for those Lately you’re differ- Day? way! us on a lot of ’Cause the boss and we’re the No And, you operations need a that make rich. when we that we have seen ent it, money, gonna fight coats or we’re for price, double-breasted like on better plaids stiching lousy style making. we’re or saddle- whatever clothes to be matched have pads. THE GARMENT WORKER or bulkier shoulder trim for fighting Join the or- fight Garment Worker—Build that new the office to we So went workers, ganization garment us at: contact going wait for the price. weren’t And we 783—4242 rates the better We need in June. contract now. donated Labor ing a employment practices “circus” and characterized Pincus’ call and to certain busi- flexibility effectuating “pay cuts” policies product to ness status of the Com- already “our stinking pay checks.” The pany denigrating, in a disparaging fashion way leaflet further stated that we so as to unprotected constitute detrimental “[t]he have to work ain’t no different from disloyalty.” stinking garment shop city”

other in this While grievance was pending, Rich- “lousy style and referred to the of clothes” ardson filed a charge February 24, making. Pincus was alleging with the Board that Pincus Broth- February 18, 1977, 8(a)(1) On ers Richardson violated section the Act4 brought copies discharging her plant engaged leaflet to the because she in con- prior certed activities. The starting placed the 8 A.M. time General Counsel is- sued a complaint agreed some in the women’s restroom. also with the She Com- pany to gave a waive a decision by stack of the leaflets to another em- an Administra- Judge (AU) tive Law ployee, Ferraro, Joe and asked him submit to place question Board the them in of whether the men’s restroom. After reading should leaflet, defer to the one arbitrator’s award. up Ferraro tore stack he delegated given. authority had been to a Richardson also three- handed panel pursuant member 3(b) out to section plant leaflets elsewhere in the until panel the Act.5 The approximately relied on the 8:05 A.M. About 8:15 facts as A.M. found the arbitrator Pincus was and concluded it leafletting by informed of the would not defer Plant because Manager, Peter Matazzo. Richardson en- According gaged protected Matazzo, activity production and her disrupted dis- on the charge 8(a)(1), violated section work floor N.L.R.B. employees’ reading because of No. 159. The thereupon Board the leaflet. At remanded approximately 1:40 P.M. the case to an AU for a day, hearing. that He Pincus instructed Matazzo to dis- found that Pincus committed charge an unfair la- Richardson. Matazzo called Rich- practice bor discharging ardson and the Richardson and shop union chairman into his ordered the denial, Company to reinstate her. office. After an In a initial Richardson Supplemental Decision and Order of distributing April admitted the leaflet. Matazzo 9, 1979, the adopted discharged her ALJ’s find- questions without further or ings and conclusions. The Board then discussion. com- menced this action for enforcement of its Soon after the discharge the Union filed order.6 grievance which, on behalf of Richardson under the bargaining agreement, collective recognized The Board appli that the terminated in April arbitration. On cable standard for its deference to arbitral 1977, the decision, arbitrator3 rendered his awards was the standard enunciated in concluding that the discharge Co., was for Spielberg Manufacturing cause 112 N.L.R.B. because (1) Richardson working (1955). had abused Spielberg, the Board stated time, (2) and written a handbill which she it would defer to the arbitrator’s during distributed working (1) both and non- proceedings award where have been working time which “intentionally misrep- (2) regular; parties agreed fair and bound; resented or distorted (3) facts related to certain be the decision is not “clear- Stern, 3. The 5. 153(b) arbitrator was the late I. Herman § U.S.C. Temple University. Professor of Labor Law at 10(e) Act, Section of the 160(e) 29 U.S.C. § 8(a)(1), 158(a)(1) (1976) 4. Section 29 U.S.C. § (1976), grants the authority NLRB the peti- provides: tion the Appeals Court of for the circuit within (a) practice It shall be an unfair labor for an which the unfair occurred for employer— enforcement of its order. with, restrain, (1) to interfere or coerce em- ployees rights guaran- in the exercise of the teed section 157 of title this [Section Act; (1976); L.Ed.2d 1061 NLRB policies purposes ly repugnant” Co., 439 F.2d Horn & Hardart case, agree parties the Act. In this 1971).9 regular proceedings were fair that the parties agreed to be bound and that the to the merits of the Board’s We turn now that the The Board concluded arbitration.7 doctrine evolved as a The order. “clearly re- findings of the arbitrator were accommodating poli- the national means of Act and declined to defer. pugnant” to the of labor private resolution cy in favor Thus, in this en- the determinative issue arbitration.10 through consensual disputes petition forcement is whether expression finds Section That concluding erred in Act, 173(d) (1976), 203(d) 29 U.S.C. repugnant” to the Act. “clearly award was adjustment by a “Final which declares: here- upon by parties agreed method II. the desirable method by declared resolve is disputes arising The first issue we must grievance settlement of interpretation this court’s standard of review of over the agreement.” existing collective-bargaining Board’s refusal to defer to the arbitration company urges fully explained award. The that we review in International As more (1962), the a matter of N.L.R.B. 923 the Board’s refusal to defer as Harvester policy is root- the substantial source of the Board’s deferral law while the Board claims Supreme congressional ed in Court applicable. duty evidence rule is It is our both pronouncements. insure that the Board adheres to its estab clearly stated, lished criteria unless decides repeatedly as has been We, modify or alter those standards. there primarily designed promote industri- fore, prevailing adhere to the view that the encouraging the peace stability by al refusing to defer procedure decision of of collective bar- practice and only if the Board has gaining. Experience will be overturned has demonstrated Hauling collective-bargaining agreements abused its discretion.8 Hawaiian Service, binding final and arbi- provide Ltd. v. denied, 965, 97 disputes arising (9th Cir.), grievance tration of cert. Co., (1963), objective Raytheon the of en- 7. In 140 N.L.R.B. 883 believed “that desirable grounds, voluntary couraging enforcement denied on other 326 F.2d labor dis- the settlement of (1st 1964), require- by recognition putes 471 Cir. the Board added of the will best be served Spielberg must have ment to that the arbitrator award,” Co., Spielberg Mfg. supra, arbitrator’s practice issue and considered the unfair labor 1082, 112 N.L.R.B. at indicates that ruled on it. It is clear from the arbitration exercising Wheeling-Pitts- was discretion. See arbitrator com- decision in this case that the NLRB, burgh Corp. Steel v. 618 F.2d 1009 party plied requirement with this and neither (3d 1980). 1014 Cir. I at Because believe the Banyard argues generally v. otherwise. discretion, exercising was its I Board conclude 342, NLRB, 235, U.S.App.D.C. F.2d 347 164 505 to can its failure defer be reversed for an (D.C.Cir. 1974), another circuit has add- where abuse of that discretion. requirements must have ed the the issue “clearly compe- the been decided” and within tence of See also 88 Harv.L. the arbitrator. NLRB, Lewis, 587 Inc. v. M. Alfred See also 9. (1975), discussing Banyard. Rev. 804 700, 1978); Ma- (9th Local Cir. 407 F.2d (2d F.2d v. Union chinists concurrence, Garth, urges Judge that we 8. NLRB, 492 F.2d 1975); Press Associated Cir. under an error review the actions of the Board 1974); Rub- (D.C.Cir. v. Auburn NLRB agree of law I with that standard. do ber Spielberg position is a because I believe that discretionary and not administrative doctrine originates the A law law of Board deferral. Clerks, Market, Boys In Inc. v. Retail congressional grant from the constitutional 1583, 1593, 26 L.Ed.2d judicial delegation power of that and the (1970), Supreme ap- the its Court iterated power. There is no indication that the process characterizing proval arbitral it of the any delegated acting pursuant rulemak- to in the as “the central institution administration contrary, ing authority Spielberg. On the bargaining of collective contracts.” Spielberg that it was the Board’s statement deferring because it to the arbitration award repugnant pur- clearly award was thereunder, for industrial substitute “as a policies Act.11 poses at- significantly strife,” contribute . . statutory objective. (footnotes omitted). of this tainment Id. at 926-27 instru- Recognizing Wire, arbitration as an Collyer 192 N.L.R.B. Insulated In policy compos- applied ment of national labor differences, ing which when contract require contractual deferral “[t]he meaning lie at center ... other its in the imbedded found [Act] dispute.”12 explained The Board sources, the Su- legislation and [the] Federal rationale as follows: the United States Court of preme any party to compelling are not We meaningful substance. policy this given arising during disputes agree arbitrate important So role did term, giving are merely but a contract regard playing as Court arbitration agree- voluntary own full effect their stabilizing labor scheme “a national disputes arbi- to submit all such ments cases the Court in later influence” that tration, permitting such rather than courts in cautioned the lower Section side-stepped per- agreements to be the mer- passing on to refrain from suits mitting processes, of our substitution grievances its of the under guise contemplated a forum not their own determining question of arbitrability, agreement. but construe contractual arbitration are “stripping” party Nor we provisions expansively “congressional if long “statutory rights.” have The courts policy in favor disputes of settlement of recognized relations that an industrial parties through the machinery of which, may dispute conduct involve arbitration” is to.be realized. arguably, contravene both least complete If effectuation of the Federal agreement and our statute. collective achieved, firmly is to be we believe contractually com- parties When have with entrusted mutually agreeable mitted themselves to 'many of one resolving disputes the administration procedures for their contract, during period we facets of national labor policy, should procedures should of the view that those give hospitable acceptance to the arbitral to function. opportunity be afforded full process as “part parcel of the collec- itself,” tive bargaining process and volun- Id. at 842-43.

tarily authority withhold its undoubted issue similar This court has dealt adjudicate alleged unfair labor awards to arbitration judicial deference charges involving subject the same mat- under Section 301.13 context of suits ter, appears clearly unless it Fletcher, Ludwig Mfg. Co. Honold 1969), this court tainted proceedings were F.2d unfairness, public policy of en- fraud, collusion, recognized strong serious “the or indus- peaceful the settlement of couraging irregularities or that procedural Act, 185(a) 301(a) quoted language 29 13. Section of the U.S.C. 11. Some the above Carey Supreme (1973) provides: approval by in Court 261, 271, Westinghouse Corp., 84 375 U.S. v. an Suits violation of contracts between 401, 408, (1974). 320 11 L.Ed.2d S.Ct. organization represent- employer and a labor industry ing employees affecting com- in Collyer is as to There some debate whether 12. or merce as defined in this between Spielberg it was a may brought evolved from or whether organizations, in such any broader, new, generally having doctrine. See the United States district court of Sterlacci, Murphy A the Nation- respect Review of parties, jurisdiction of the without Policy, 42 controversy regard Labor Board's Deferral al Relations or without amount in Note, (1973); of Jur- Deference citizenship parties. Ford.L.Rev.291 See Textile by 448, Mills, Labor Relations Board the National isdiction 77 v. 353 U.S. Lincoln Workers Clause, Vand.L.Rev. 912, (1957). 25 Arbitration 1 972 L.Ed.2d (1972). 1057 waiver, with the national consistent tary the device of disputes by means of trial policy.15 we stated: Accordingly, arbitration.” that this means very At least Spielberg doc on the Board’s Based must arbitrators interpretation of labor action, judicial trine, deci congressional not long they as be disturbed so not well as this Supreme Court as sions of law, and disregard” of the in “manifest circuit, is an abuse of that it we conclude miscon- “whether the arbitrators Board to refuse defer discretion for the open the does not strued a contract” findings award where to an arbitration judicial review.14 award to arguably be charac may the arbitrator also omitted). See (footnotes Id. polic with Board terized as not inconsistent 6, Markets, Bakery & v. Local Acme Inc. words, reasoning y.16 In other “[i]f International Un- Confectionery Workers of two inter susceptible an award is behind ion, 1980). 613 F.2d 485 imper and one permissible one pretations, judicial and of both As a result missible, true simply it not awards, an Board deference to arbitration to the Act.” ‘clearly repugnant’ award was which is be sustained arbitral result could . Douglas Aircraft Co. would be only arguably correct and which differently in a trial de novo. The decided Board to the ar Deference policy favor of labor arbitration national process, especially when award bitration of arbi recognizes that the societal rewards argu it is already been rendered and uniformity of outweigh tration a need for will ef ably policy, consistent with Board dispute or a correct resolution result parties the intent of the fectuate injured every parties are not case. agreement and avoid bargaining collective because it is the by deference to arbitration time, expense, and inconvenience of du who have selected and parties themselves parties accept plicative proceedings.17 The proc the arbitration agreed be bound the risk that arbitration results could ed parties surren

ess. To the extent they decisions when differ from Board hearing right subsequent full der their proceed by elected to arbitration and court, volun- the Board or a is a before acknowledge 16. The Board seemed to this stan- 14. This court’s of deferral to holdings opinion a line of this from the dard of deferral in its case when awards follows Supreme commonly referred to Court cases it stated: Trilogy. United Steelworkers the Steelworkers recognize cases there We some Corp., Enterprise 363 U.S. Wheel & Car disagreement as to whether or be reasonable (1960); . United 80 S.Ct. 4 L.Ed.2d employee’s activity protected]. [an Co., Navigation Steelworkers v. Warrior & Gulf In such cases we will not refuse to . U.S. 80 S.Ct. L.Ed.2d simply be- defer to the arbitrator’s award Mfg. (1960); v. American United Steelworkers re- we would have reached a different cause 4 L.Ed.2d 80 S.Ct. sult. Comment, Employee (1960). generally 237 N.L.R.B. No. 159 at 4. Challenges Arbitral Awards: A Model Protecting Rights under the Collec- Individual alluded, already As we have Agreement. Bargaining U.Pa.L.Rev. tive Harvester, supra, interpreted the International stating doctrine it would refuse to arising adjudicate practice claims unfair labor Co., 415 Alexander v. 15. In Gardner-Denver contract from the same facts as an arbitrated 1022-25, 36, 54-60, dispute proceedings were unless the arbitration distinguished be- L.Ed.2d 147 the Court unfairness, fraud, collusion, seri- “tainted rights employees “conferred on collec- tween procedural irregularities the ous or processes bargaining” tively of to foster the clearly repugnant purposes to the award was may be waived the union in order to which gain policies The Board and of the Act.” Id. at 927. non-majoritarian benefits and economic “clearly repugnant” test stat- commented on its VII, rights, such as those under Title which questions ing on of an arbitrator’s conclusions subject The of the arbitra- cannot be waived. they “palpably unless were law would stand individual tion in this case concerns waivable wrong.” Id. at 929. rights. bargaining See 88 Harv.L. collective at 809. Rev. exclusively on the facts Board relied it The when possibilities such recognized concluding by the arbitrator to an arbitra- as found to defer policy adopted protected engaged was However, the arbitra- Richardson when tor’s award. language reconciled reexamined the arguably It activity.19 cannot be tion award Act, Board will arbitrator characteriz policies of the leaflet which the declining disloyalty” federal interest unprotected “detrimental vindicate ed as expression by em to defer.18 and concluded “[t]he working as to con opinions their ployees of III. ditions, speech, in colorful whether done found terms, the arbitrator here, In this case in more formal funda or “cause” was terminated that Richardson right under Section 7 of the Act.” mental wrote working time and abused because she No. 159 at 8. 237 N.L.R.B. The Board con the leaflet.

and distributed there are several rea We believe leafletting activity Richardson’s cluded that argu activities were why sons Richardson’s Act and 7 of the protected by section was First, employee an loses ably unprotected. to defer. We hold declined the Act where his or her protection refusing to defer to abused its discretion “deliberately maliciously statements or Richardson’s because arbitration award Texaco, NLRB, 462 F.2d 812 Inc. v. false.” unprotected activi leafletting arguably was 1008, cert. denied 409 U.S. (3d Cir.), “clearly repugnant” to ty and therefore (1972).20 Richardson’s 34 L.Ed.2d 302 the Act. 923, 925-26, pred- quoted Carey ingenious analysis N.L.R.B. v. West- of the dissent 18. The inghouse Corp., 261, 271, upon since the Labor the thesis that 84 S.Ct. icated Management (Taft-Hartley) Act Relations 11 L.Ed.2d 320 power review the has no 1947 the Board The dissent misconstrues the nature of the whether to of the General Counsel Board’s deferral as a failure to exercise labor what be an unfair initiate jurisdiction implementation rather than the Congress granted unreviewable case because prosecutorial policy expressed national labor in section Counsel. discretion to the General 203(d) trilogy. Steelworkers investigate prose- power But the broad cute Board’s ments for the jurisdiction Board does not decline to exercise impinges upon complaints way in no it when defers arbitration but it is accommo- agree- give private power to effect to dating parties’ voluntary choice of arbitra- disputes voluntary settlement proceedings tion to the extent that the are fair Spielberg, governmental intervention. without regular clearly repug- and the result is not to rein- involved the refusal decided in state five strike. policy. Despite rep- nant to national labor resentations of the dissent to the employees the conclusion of a at contrary, em- The trial examiner found that the Supreme accepted principle Court of Board engaged practices. ployer had unfair deference to arbitration practice disputes in unfair labor awards might though even it The Board concluded that not have decided the issue tion Carey Westinghouse as did the arbitra- n.7, Corp., supra 84 S.Ct. at 408 n.7. panel panel, was not the decision purposes clearly repugnant policies After determined that deferral Congress of the Act and it would defer. When inappropriate it remanded the case to an Reporting Labor-Management enacted the Disclosure Act Pub.L.No. findings ALJ for further on the unfair labor Act) (Landrum-Griffin practice charge. The ALJ concluded that Rich- 86-257, it did not cur- 73 Stat. discharge ardson’s of was not for both an abuse power to defer to arbitration tail the Board’s working leafletting time and the as found voluntary subject disputes awards in labor arbitrator, primarily the protected leafletting. but because of the contrary, empowered the On the arbitration. Board to decline jurisdiction disputes in labor involving any employers where the class of Workers, 20. See also Linn Plant Guard dispute commerce is not effect of the labor 657, 662, U.S. (1966), 15 L.Ed.2d 582 sufficiently exercise to warrant the substantial approved where Court jurisdiction. 29 U.S.C. intemperate, Board’s view sive, tolerates abu- years 164(c)(1) (1976). Speaking after five during inaccurate union statements the Board reiterated the Landrum-Griffin not, organization campaign but does even to re- established . . discretion its “well circumstances, protected under such view as spect to exer- and decline an arbitration award activity “by injury party prac- authority alleged intentional of a unfair labor cise its over defamatory insulting circulating material aims if to do so serve the fundamental tices will Harvester to be false.” International known of the Act.” protecting workers under section of the meeting plant semi-annual leaflet called the underly- instituting Act, was weaken the Congress said Pincus “did not a “circus” and stinking pay already of em- “pay loyalties cuts” to “our and ing contractual bonds that the Com stated checks.” She further employee.” Id. at ployer and “ain’t no differ working conditions pany’s supra, No. 177. In Local Union stinking garment shop any ent other from distrib- objectionable was leaflet held to be Company was city” that in this strike. during heat of a lawful uted clothes.” The making “lousy style any Here, neither a strike nor there was meeting was plant arbitrator found that Company disagreement between plant meeting, co periodic semi-annual agent and thus even bargaining the Union Company and the sponsored by the Union arguably objection- justification less for the constructive legitimate perfectly able leaflets. reasons; Company was not insti pro- “a found case the arbitrator In this cuts; average wages pay that its tuting any disloyal- of detrimental file average [Richardson] industry’s general exceeded the impeding the image tarnishing area; ty working that the condi the market Company goals of business among legitimate at Pincus Brothers were tions area; and its busi- employees Company’s and that the its other best in insofar as among were the finest He fur- garments concerned.” competitors are ness findings it industry. From the arbitrator’s “engaged in her that Richardson ther found arguable that appears at least Richardson’s create or incite primarily action course of “defamatory or leaflet can be labeled disgruntlement measure of a maximum false,” insulting known to be Linn material functioning and relating to the then friction Workers, 53, 61, v. Plant Guard ongoing take of standing give and long 657, 662, (1966), 15 L.Ed.2d 582 S.Ct. proc- relationship and bargaining collective unprotected thus be characterized as can leaf- plain language ess.” Given the Act. under view of the effect let and the arbitrator’s con- believe Richardson’s language we Second, arguable it is that Richardson’s as un- arguably be characterized duct could actions unprotected constituted disloyalty. disloyalty. protected In NLRB v. Local Union No. IBEW (Jefferson Standard), U.S. S.Ct. Third, that Richard arguable it is (1953), 98 L.Ed. upheld the Court because unprotected activity was son’s Board’s refusal to order the reinstate- poli fundamental who, with the ment of was inconsistent during workers a lawful strike, bar encourage issued a collective disparaging leaflet their em- cy of the ployer. flowing stability Court stated: and the industrial gaining Capwell Co. Emporium therefrom. 10(c)

Section Taft-Hartley Act Community Organization, Addition 160(c) (1976)] Western expressly pro- U.S.C. § [29 L.Ed.2d 12 vides that “No order of the Board shall 420 require the reinstatement of con any individ- affirmed the Court ual as an employee who has been sus- had no employees minority clusion that pended or discharged, or the payment to separate employer bargain with the right to him of pay, back if such individual right because bargaining from the Union’s suspended discharged for cause.” undermine would to hold otherwise There is no more elemental cause for bargaining. collective statutory purpose discharge of employee disloyalty than concluded arbitrator In this case the employer. to his to in were intended activities Richardson’s Id. at (footnote omitted; long-established 74 S.Ct. at Company’s with the terfere emphasis supplied). The relationship Court noted bargaining collective

377 repre- charge trial de novo. We hold that Richardson Union.21 Given arguable Union had a by interpre- and the that where there are two the Union sented bargaining award, permis- collective rela- one long and fruitful tations of an arbitration it we conclude tionship Company, impermissible, with sible and one Board must arguable Richard- to characterize is at least the arbi- defer to the decision rendered unprotected interference activity as son’s trator.22 bargaining process.

with the collective IV. Finally, arguable that Richardson it concerted, protected engaged in was not . its We conclude that the Board abused in NLRB v. activity under our deferring discretion in to the arbitra- Metal, (3d 1971). 440 F.2d 881 Cir. Northern peti- Accordingly, award. tion employee Metal an was dis In Northern tion enforcement will be denied. charged his continued assertion because of against petitioner. Costs taxed holiday pay for that he was entitled to to enforce the Day. Labor We refused GARTH, Judge, concurring. Circuit action, finding- holding Board’s of concerted agree opinion Judge I with Rosenn’s that acting alone is not single employee that a Board’s National Labor Relations refus- within engaged in “concerted action” award in al to defer to the arbitration favor Hugh meaning of the NLRA. In H. Wilson fully I also of Pincus must be reversed. NLRB, (3d 1969), Corp. 414 F.2d 1345 Cir. III, agree analysis part holding with his cert. denied “clearly was not that arbitral award (1970), manage we held that L.Ed.2d policies repugnant” purposes must know or have reason to know ment Act. I the National Labor Relations there- disputed action is “concerted” be agree fore with his conclusion that 8(a)(1). also fore it can violate section under its compelled Board was Service, NLRB, Inc. v. Truck Tri-State to defer to the arbitrator’s award. doctrine 1980). Cir. F.2d however, Judge part company, I Ro- in the instant The arbitrator concluded designation senn in his standard of case that Richardson’s actions were moti- Appeals must review which Court evi- by personal pique. vated There no when it examines the Board’s deci- adhere employee any other was in dence sion whether or not to defer to an arbitra- fact, leafletting. In way involved with the agree I Spielberg. tion award under do not attempted gain Richardson the aid when may only that we reverse the Board for an Ferraro, he employee, of another Joe tore abuse of discretion. I believe up reading the leaflets after one. Under deference decisions must be re- Board’s arguable these facts it is at least that Rich- legal error. viewed under a standard engaged was not in concerted activi- ardson ty. I. holding that Richardson’s conduct was

In a more limited play The federal courts unprotected express opinion we no arguably merits of reviewing role in the substantive this court or the Board would decide on how than the National La- the unfair an arbitrator’s award the merits of leaflet, acknowledged Doyle, 429 U.S. 97 S.Ct. 50 L.Ed.2d Richardson her tra- contract between Pincus Brothers and the the Board cannot adhere supra. position See n.2 Union was in effect until June. “mixed-motive” ditional in so-called discharge cases that where the was in even considerations, unnecessary part by permissible to decide Pincus 22. We find it motivated Brothers’ other contention that the arbitration at all if motivated is nevertheless unlawful generally protected should stand because the arbitrator award Western Ex- conduct. See discharge NLRB, both Rich- found the was caused Co. v. 565 F.2d terminator working distri- abuse of time and her 1977); ardson’s Furniture v. Coletti’s Company argued the leaflet. The bution of (1st City Healthy District v. that after ML School 174 v. (1970); Teamsters Local L.Ed.2d 199 Supreme Court Board. bor Relations enforce Flour a court must Lucas decreed that (1962); draws its es long as it United Steelworkers award “so L.Ed.2d 593 arbitral agree 593, bargaining Corp., 363 from the collective & Car U.S. Enterprise sence Wheel Enterprise ment,” (1960); 1359, United Steelworkers United 4 1424 80 L.Ed.2d S.Ct. 597, 593, 80 Corp., 363 U.S. Navigation Wheel & Car & Gulf Warrior Steelworkers (1960). The 1358, 1361, 1424 4 L.Ed.2d S.Ct. 1347, 574, 4 L.Ed.2d Co., 80 363 U.S. S.Ct. as the that “so far held Court has further v. Ameri- (1960); 1409 United Steelworkers concerns construction decision arbitrator’s 564, Co., 80 Manufacturing 363 U.S. can contract, business have no the courts of 1343, (1960). gen- 4 1403 L.Ed.2d S.Ct. interpretation overruling him because their Sympa- Freed, Injunctions Against erally, Id. from his.” the contract is different of Forge, Buffalo In Defense of thy Strikes: Thus, courts have 80 at 1362. S.Ct. (1979). congres- These 54 N.Y.U.L.Rev. 289 not to deciding whether or no discretion en- declarations Supreme Court sional award; it if they must enforce enforce Board to accord substantial courage the up by the the standards set it satisfies “submis- awards: deference to arbitration Accordingly, a Court of Supreme Court. proceed- grievance and arbitration sion a district court Appeals will review might involve unfair ings disputes of which standard; legal error in such a case under substantially dis- practices would be labor not one of abuse of discretion. thought disputants couraged if the however, so limited in The is not consideration to give would de novo Supreme Court has its function. As the might re- the issue which the arbitrator noted, trilogy . “the Steelworkers NLRB, 492 Press v. F.2d solve.” Associated relationship of courts to arbi dealt with the (D.C. award is under trators when hand, has also Congress On the other agreement employer’s review or when the power] pre- provided that “The Board[’s . . The question. is in . arbitrate un- any person engaging vent from of the Board to the arbitration relationship be . . . shall not fair labor quite different order.” process is of a adjustment of by any other means affected Co., Acme Industrial NLRB v. prevention may has been or be or that 565, 568, 17 (1967). L.Ed.2d 495 law, by agreement, or other- established juris original Because the Board alone 160(a) (1976). wise.” 29 U.S.C. § charges unfair labor diction to resolve the inherent It must be conceded that Rela practices under the National Labor principles these two of our tension between Act, (1976), tions U.S.C. § confers, an initial courts, policy national labor subject conflicting unlike the formulat-, matter, the Board in pressures reviewing when an arbitrator’s discretion on ing position award. on deference to arbitration writing for Judge Feinberg, awards. As hand, Congress has stated On the one Circuit, said in NLRB v. Horn & Second agreed adjustment by that “Final a method 1971), “it F.2d 674 Hardart upon by parties is declared to be the remembering is worth griev- desirable method for settlement of all, deference, are self-im- rules on after disputes arising application ance over the healthy hints posed although it has followed interpretation existing collective-bar- of an at 679. Supreme from the Court.” Id. 173(d) gaining agreement.” 29 U.S.C. § undoubtedly are limits on the While there Supreme Court has also em- discretion, I can assume for original Board’s phasized the central role that arbitration Board’s purposes opinion this See, plays policy. e. our national Thus, large. be discretion is g., Mine Work- Gateway Coal Co. v. United approach power adopt within its ers, 38 L.Ed.2d U.S. S.Ct. decisions when- Markets, it will defer to arbitration (1974); Boys Inc. v. Retail concludes, Union, in the exercise of Clerks 26 ever it discretion, which the Courts of Appeals is not incon- are to review that such deference National Labor Relations Board’s of its It with the standards. sistent probably Board would policy Act. And the content the deference that, power assuming within its declare appli- must determine manner always regularity, will defer procedural cation of the is reviewed. This is alleged resolving vio- to arbitration awards instance, true of all rules law. For Act, 8(a)(5) Labor lations § district courts are bound to United States 158(a)(5) (1976) (refusals to bar- § U.S.C. rule that follow the “[c]ross-examination gain) and will never defer to awards resolv- subject matter of should be limited alleged 8(a)(3) ing violations and matters affect- examination the direct 158(a)(3) (1976) (discriminatory 29 § U.S.C. credibility the witness.” F.R. of ing the discharges).1 also bound to follow 611(b). They are Evid. by in seized a State evidence However, the rule that the once Board undertakes to is Amendment of Fourth contravention the the resolve inherent tension noted above ap- However, of the review 160(a) 29 and 29 inadmissible. between U.S.C. U.S.C. § gov- is 173(d), in this these rules original plication its discretion field the first of of § standard, displaced. is the Once Board discretion by erned the abuse of “announce[s] arbitration, policy regarding a deference to of the while review of the it, blithely ignore thereby lead cannot] legal [it a error stan- governed by is second ing astray litigants who depended on it.” application of the dard. This is so because 439 NLRB Horn & Hardart F.2d regarded is as com- cross-examination rule 1971).2 Rather, 679 Cir. the like of the district to the sound discretion mitted agencies, regu all is bound to to the adhere court, exclusionary purely the rule is while and lations decisions that it announces.3 Thus, we refer to of law. must matter policy deference the content of the Board’s Concluding that the is to Board bound of re- policy its to the standard applicable follow announced deference determine does not, course, of view. determine the standard original hypothetical fairly Collyer,

1. These rules are after to the deference Board adhered member, position currently Murphy, Collyer approach. close the actual Board The fifth appointed independent, takes when it is asked not review an arbitra- in out an staked issued, already tion award but to withhold its swing position. Board hold that the She wouid proceedings own arbitration that has not the outcome of an await charging defer interfer- should never in cases completed. yet been 8(a)(3) rights, such as § ence with individual cases, position sharp This current is the result may rights ade- such receive because among differences bers and the Board views of the mem- pro- quate protection in arbitration a union changing composition of the Murphy approve ceedings. deferral would Board. dispute employer and where the is between Miller, members, Brown, Kennedy Three rights are the implicated, and where no individual union Collyer principle in 1971 sulated established In- cases, 8(a)(5) such as because the § Wire, 192 NLRB 837 that the likely press vigorously. union is such cases Board will await an award where among light split In ing the 2-2 remain- four dispute interpretation centers on Board, Murphy’s of the vote effec- members contract, where there is evidence of anti-un- no Thus, tively most cases. decides animus, parties long ion and where the have a hypo- position close current productive relationship bargaining and tested tration. 192 NLRB at 842. The set forth in the text above. thetical rules grievance machinery providing for arbi- dissenters, greater discussed detail 2. Horn & Hardart is Fanning, argued Members Jenkins and that the II, infra. section uncompleted pro- defer Board should never ceedings. Dulles, See, g., 77 3. Service v. e. 1977, changes composition (1957); Accardi v. L.Ed.2d S.Ct. Shaughnessy, produced approach, Board a new announced in 347 U.S. Corp., Transportation General American Brown, (1954); Geiger v. L.Ed. 681 Chevrolet, Roy (1977) NLRB 808 228 Robinson (D.C. 1969) App.D.C. F.2d Collyer NLRB The two dissen- Valley (per curiam); Sangamon Television original ters their view that adhered to deferral (D.C. States, Corp. F.2d 221 v. United members, appropriate. never Pe- Two other Walther, appointed nello who were three-part up the first of set test. It announced that adopted had If the Board suggested defer to decision policies deference it would an arbitrator’s hypothetical appears it con- proceedings it will defer where where have above—that “[1] cludes, exercise of its discretion, that been fair and regular, ^[2] all parties had doing so will not inconsistent with the agreed to be bound, ^[3] the decision is perfect- Relations Act—it panel clearly repug- Labor the arbitration is not National appropriate standard ly clear that purposes policies nant to the of discretion would be abuse review here parties Act.” Id. at The have discretion on confers standard. agreed that the two elements this first very terms. Since satisfied, we are not re- test are and thus policy, under this has discretion quired to determine the standard of review be reversed Board’s Nevertheless, of such determinations. abused. the discretion has been where involve appears these two elements fact, questions of mixed law and confer however, adopted the If, the Board had Thus, the no discretion on the Board. sub- poli- hypothetical deference second sidiary factual of these components deter- always it will suggested above—that cies minations would be reviewed under sub- 8(a)(5) defer in cases and never defer test, stantial evidence with the ultimate (see, supra) e. 8(a)(3) g., cases note § —it legal legal under a conclusion reviewed er- appropriate that stan- equally is clear g., Sons, Joseph Lupowitz ror standard. E. legal would error. of review be one of dard Commissioner, (3d Inc. v. 497 F.2d on the policy confers no discretion The Commissioner, 1974); Cir. Kaltreider v. the Board must hear and determine Board: (3d 1958); F.2d Lehmann cases and must to the arbitral some defer Acheson, 206 F.2d in others. If the Board refused to award Packer, The E. A. 140 U.S. 8(a)(3) complaint employee an hear the of 11. § 794, 795, (1891). 35 L.Ed. 453 The that he S.Ct. discharged claimed had been who test, third element of the whether deci- union, his supporting and whose claim rejected arbitrator, clearly repugnant sion is to the Labor had been an. is, course, pure a of law. In question of could not it had the contend that evaluation, must making its the Board dis- to defer to discretion the arbitrator’s deci- legal arbitrator’s deci- Appeals of cern the basis of the sion. A Court would undoubted- law, sion, ly Board to determine relevant direct the hear and resolve the because, clearly repug- decide whether the complaint, former adopting the defer- standard, too, here, nant to the latter. This con- policy hypothesized ence the Board Board, and, fers no discretion on the since it would have its renounced discretion cases; Board is 8(a)(3) is a matter of law that the decid- it have bound itself § would of ing, appropriate standard review to hear and determine such a case rather necessarily legal Thus, that of error. must be particular than defer. content of policy compels this deference the conclusion Thus, argument may be summarized only appropriate of re- standard light follows. In inherent tension of the legal view of a deference is that of decision law precepts between the two of labor em- error. 160(a) and 29 bodied in 29 U.S.C. U.S.C. § Turning to the 173(d), Board’s actual deference the Board in formu- has discretion policy, Spielberg lating policy that announced in Manu- on deference Co., Once, facturing however, NLRB 1080 it awards. the Board an- again that the dis- policy policy, original clear confers no nounces its its discretion has equally cretion on the Board. clear displaced; It is been the Board is bound fol- appropriate that the standard of review is low the adopts unless until it legal Spielberg, explicitly changes policy.4 that of error. Whether Transportation Corp., appears change policies American on The Board its 228 NLRB 808 Chevrolet, (1977); Roy regularity. See General deference with some Robinson NLRB 1974); 784, 786, Ramsey doc- of its deference application the Board’s denied, Cir.), of by an abuse cert. trine should be reviewed legal stan- or a error 12 L.Ed.2d Those discretion standard go depends engage analysis content of the doctrine. invariably dard on the that do in an assert, on the If the confers discretion part They doctrine only way. the one Board, of it application the Board’s hand, has discretion that the Board in decid of only reversed for abuse discretion. ing to defer an arbitrator’s whether however, doctrine, does not con- Spielberg assert, other, on the They also award. Rather, fer Board. it re- discretion on the Board’s exercise of Spielberg governs quires determine whether each the Board to course, no quarrel I have discretion. Of parts Spielberg threo test is I employ point, to this with the analysis satisfied, ultimately of which involves each myself. But these cases analysis the same nondiscretionary question law. Neces- question of how critical never reach the sarily, then, Spielberg the Board’s discretion, e., i. they this Spielberg governs legal must be reviewed under standard of Spielberg leaves sub never discuss whether error. the hands stantial discretion in Spielberg application such that II. can under abuse of be reviewed I freely acknowledge that all rather, standard, or, discretion whether courts expressed that have themselves on doc Spielberg a fixed deference establishes issue have indicated trine, should be application doctrine is re- legal reviewed error standard. under a viewed under an abuse discretion stan- is the Tenth Circuit Typical of these cases I compelling. dard. of them find none In- decision in NLRB v. Auburn Rubber deed, a cases review of these reveals that (10th 384 F.2d 1 The court there Cir. all, they analysis no engage either more, stated, that: merely without dixit, relying ipse mere employ their or In has the discre- opinion our the Board analysis stops that short of critical the to, reject, to tion defer or decision question. and, determining of the arbitrator Many cases reflect an abuse of discretion properly whether discretion has been that only through standard as- unelaborated exercised, by Spiel- the tests announced sertion that the Board’s deference decision berg are pertinent. discretion, will be reversed for abuse omitted). (footnote F.2d at 384 3 by phrasing question presented as whether Hauling Board has abused discre- The in Hawaiian its Ninth Circuit See, Service, NLRB, g., (9th tion. 545 F.2d e. International Ass’n of Ma- Ltd. v. 674 NLRB, denied, 1976), 965, 431 Local 530 F.2d Cir. cert. chinists (9th 1976) (1977), (per curium); Lodges Cir. 53 L.Ed.2d in sub 700, 743, 1746, scribing standard, International Ass’n of Ma- of discretion an abuse NLRB, chinists v. 525 F.2d nevertheless its rationale in describes terms 1975); 246 (2d suggestive v. more of legal Cir. Associated Press a standard er NLRB, 662, 666, (D.C. Cir. ror. The court stated that: Wire, (1977); Collyer Corporation, (1977)”), Insulated 192 NLRB 228 NLRB 808 enforce- supra. (1971); granted part, part note 1 There even has been ment denied in Ser- vair, suggestions recently (9th some from the Board that Inc. LRRM 2705 Cir. Spielberg 1979), granted, doctrine come in for some reh. 78-2791 Nov. No. Servair, Inc., 19, 1979). question modification. 236 NLRB is no But there (1978) governed wholly (“Accordingly, 1278 n. 1 we find it Board by case found the instant determine, doctrine; unnecessary Spielberg the Board’s defer- these circum stances, Spielberg explicitly Spielberg ence quotes whether our decision in cites any sug- Manufacturing Company, three-part without NLRB 1080 standard way gestion applicable. longer is in our recent no Pincus affected that it is Brothers, Inc., Transportation decision in General American 99 LRRM calling our it abuse of without criteria to Board has established ... original extent self- discretion.” Since and to this

guide its decision deference among various discretion to select limit its discretion. imposed restraints standards, has discretion unquestionably we must insure that reviewing the change its own and thus they change its mind to its own standards until it adheres course, that, is not the standard. But changed by the Board. We properly are question And on question that we face. deny enforcement unless will not review presented its own stan- clearly departs Board from —our of clear are themselves in- Board’s dards or its standards —it minimal provides Hardart that Horn & valid. Hardart, like Au- guidance. Thus Horn & omitted).5 (footnotes 545 F.2d at 676 Hauling, simply Rubber and Hawaiian burn opinion in Similarly, the Circuit’s Second advanced analysis undercut does not NLRB v. Horn & Hardart 439 F.2d 674 legal error. a standard support here in 1971), upon by Judge which is relied support Rosenn in of an abuse of discretion III. standard, my analysis in contrary is not for the opinion his Judge Rosenn in support legal of a error standard. The ex- view Court, n.18, rejects the at 375 court there stated: that the Judge dissent pressed in Gibbons’s remembering But it is worth to defer to power has no generally Board deference, all, Board’s rules on after agree I whole- proceedings. self-imposed although it has followed position. I Rosenn’s heartedly Judge healthy Supreme hints from the Court. emphasize thoughts only my add own Nevertheless, know, so far as we in no scholarly that, Judge Gibbons’s despite case has the Court directed accept his conclusion. I cannot analysis, award, defer to an arbitration . Gibbons, arguing that while Judge respect so that its discretion in this must defer, does power to generally has no regarded large. suggest We do not time, limited defer- accept, at least at this policy the Board can announce a 8(a)(5) and section in “section ral regarding deference to arbitration and interpreta- involving it, 8(b)(3) cases contract blithely ignore thereby leading then interpretation astray in which the litigants depended upon who it. tion matters upon method change agreed But it can its mind or alter its the contract predicate respects standards for deference in some eliminates the effect Overall, though, he necessarily engaging 399). without in conduct (At charge.” blameworthy justify calling gravest so reser- as to our he has the plain makes authority abuse of discretion. to defer the Board’s vations about case, exception of in with the sole (citation omitted). 439 F.2d at 679 juris- unions, among for which disputes dictional Hardart, excerpt This from Horn de- & authority for deferral. statutory there is spite the reference in the last sentence to 160(k)(1976). See U.S.C. § discretion,” not, fact, sup- “abuse of does in Judge Gibbons’s reserva- port Spielberg the view that determinations I do not share to defer. As may only power the Board’s be reviewed under an abuse of tions about noted, in Board discretion discretion I have I believe standard. The Horn & Hardart the tension inevitably from analysis reviewing is not concerned with this area flows national labor Spielberg, two elements of our Board’s of but rather between hand, centrality of the one power change Spiel- policy: with the Board’s peace, maintaining industrial berg can alter its arbitration in standard: “[the Board] and, other, continuing on the the Board’s respects standards for deference in some analyses Douglas (9th 1979), granted, 5. Similar in Air- Cir. are found reh. No. 78-2791 NLRB, (9th 1979); craft Co. v. 609 F.2d 352 Servair, NLRB, (9th Inc. v. 102 LRRM 2705 Carey, in in practice comes from a case which the authority to resolve unfair any independent dis- Board deferred to an arbitration in charges regardless of .award agreed upon volving, part, charge discriminatory in of by resolution mechanism pute 8(a)(3). treatment in Deference to arbitration under violation parties. Co., International Harvester three-prong test contributes NLRB 923 Ramsey nom. elements, enf’d sub (1962), significantly to the first of these denied, cert. Cir.), encouragement of arbitration as a crit- 327 F.2d 784 12 L.Ed.2d 1052 labor-management relations. U.S. ical factor in Thus, Judge would find Judge of what Gibbons Gibbons these while much posi- present his circumstances the least defensi says persuasive, is I do not believe deferral, yet Supreme weight impor- to the ble case for gives tion sufficient International Harvester arbitration, Court, expressed quoting as tance Trilogy suggestion Steelworkers Supreme approval, and other with makes ho inappropriate.6 supra. deferral in that case was Court cases. See at Court, And like the the Board as an institu Further, Judge posi- I Gibbons’s believe authority tion has never denied its own largely by Supreme foreclosed tion doctrine, promulgate despite a deferral doc- plain approval of the deferral Court’s of its dissents of two members who have Westinghouse Electric Carey trine in employed many arguments of the same 270-72, Corp., by Judge made Gibbons here. 408-409,11 (1964). Judge Gib- L.Ed.2d Carey Thus, it, as I see I properly points up bons out would sum as unquestionably of deferral to arbitra- follows: The Board has the presented an instance jurisdictional dispute power legislative poli- context. tion establish rules and doctrine, Carey’s approval cy. policy of the deferral One such established however, way was in no limited to these Board that of deferral to arbitration Indeed, established, any stage. statement such a policy cases alone. Board’s Once defer, discretionary authority operates require its as a deferral matter quoted approval by particular which is with the Court law in the areas identified suggestions opinion pears proceedings 6. There are other that the arbitration were fraud, collusion, limiting approval proce- that the Court was not the Board’s deferral tainted or serious policy statutorily irregularities to the dural clearly repugnant or that the award was jurisdictional dispute poli- purposes authorized context. The quoted approval opin- Court is true that Inter- cies national the Act.” While it Raley's Inc., Harvester, ion 143 NLRB 256 as as other cases in well awards, which the Board extended its deferral which the Board honored arbitration practice practice proceedings, from the unfair labor context to the involved unfair labor we believe that representation dispute portion context. In the the same considerations Raley’s Court, quoted by of wrote: which moved the Board to honor arbitration awards in unfair labor cases acceptance equally persuasive to a similar recently In the decided International Har- pro- process representation the arbitral in a Company case, majority vester Thus, ceeding such as the instant one. give “hospita- Board indicated that it would where, here, question inter- of contract acceptance process” ble to the arbitral issue, parties pretation thereto is in and the promote peace order “to industrial and sta- up agreement arbitration in their bility by encouraging have set machinery practice proce- the and disputes aris- for the settlement of bargaining.” Relying dure of collective contract, ing already and an award has statutory provisions, under the particularly various 203(d) which meets Board been rendered Management Section of the Labor Re- applicable Act, 1947, requirements awards, to lations United States and on decisions of the would further the Supreme we think that it recog- Court which promote objectives underlying of the Act to nize arbitration as “an instrument of national stability peace give policy composing and to effect industrial labor contractual differ- ences,” the Board concluded thereto. that would omitted), quot- (footnotes authority adjudi- withhold its undoubted at 258-59 143 NLRB Westinghouse Corp., practice charges Carey give Electric cate unfair labor effect same ed n.7, n.7, involving arbitration awards the U.S. L.Ed.2d subject clearly ap- matter “unless it not reserve Court, policy And if does recognizing chosen. Supreme The Board. Board, Spiel- as discretionary power to the rela- advantage of consensual the inherent not, nature does berg very terms and management, by its tionships between labor of the rather, applications we review but, ought has not denied, endorsed has never retains the policy if it did. The Board power estab- as encouraged Board’s the original its discretion in power to reclaim Similarly Con- a deferral doctrine. lish by abandoning Spielberg this set- been field have blind which could not gress, ting new standard. But has up doctrine since Board’s deferral do what yet ought so. We not legislated has done Spielberg in adoption in do, e., i. fit to Board itself has not seen power to estab- Board’s against neither the pre-Spielberg Board’s discre- policy reinstate the against the policy, nor lish such by reviewing its decisions tionary policy, itself. of discretion standard. under an abuse Board, in the Accordingly, if exercise began I Thus, analysis this as legisla- I conclude to its expertise, pursuant of its decisions, stem- it: deference mandate, policy, the Board’s a deferral tive announces self-im- ming do from the Board’s they as the Board exercises then those over whom policy, by reviewed upon poli- posed deferral should be authority rely are this entitled Appeals a standard of Likewise, to the Courts of under cy. courts are entitled legal policy, will follow its error. expect that Board discretion, as, Board’s until such time in the abandoned, dissenting. GIBBONS, Judge, is revoked either Circuit short, by live modified. must require petition petition The cross that it It is in this

the rules establishes. directly for first this to consider court urged opinion that I context have this Spielberg-Col- highly time the controversial policy, that the Board’s once established and Labor Rela- lyer doctrine of National changed, reviewed a mat- until must be as doctrine, entirely tions Board. law, and ter of not discretion. even in product and which of the Gibbons, Judge position a result of the unanimous as never that tribunal has achieved takes, question that he address the some does not it is in- approval, proper, is that appropriate stances, standard of review. He an adjudicate unfair to refuse only that charge, practice labor originally possessed in this field and de- filed an unfair position policy making, necessary a not to take a definitive clares a of its own we have controversy pur- for all duty on their side of the to hold Board to the it has stripped of the functions of say investigating here to case. It suffices in this poses practice labor prosecuting and unfair cases. Spielberg-Collyer may merit that whatever (comparing id. at 1664-77 1935and See a narrow class of applied to have when Acts) Compare National Labor Relations charge in this practices, the labor unfair 1935, 372, 9,10, 3, Act of ch. Stat. 449 §§ that class. Defer- not fall within case does (1935) Management with Labor Relations ral, view, have a violation my would been in 1947, (Taft-Hartley) Pub.L.No.101, ofAct did not err Act. A fortiori the Board of the 3, 9, 10, 61 Stat. 136 Those §§ refusing to defer. in functions, under section 3 of the Taft-Hart- 153(d), assigned were ley 29 U.S.C. § I. Counsel, ap- the General who was to be entirely are powers of the Board pointed approval the President with the by considering whether a statutory. When Senate, by of the rather than the Board. within or outside given action is authority with respect The Board’s to un- agen- statutory powers of a administrative practices fair therefore pri- labor became essential, starting point cy good, if not an adjudicatory. The decision to marily vest statute, here the Labor governing is the prosecutorial discretion in the General originally Act. As Management Relations one, Counsel was conscious related to the National Labor Rela- enacted in by Congress decision made the same pro- Act on the Board all-em- practices tions conferred scribe unfair labor by unions as separate by employers in two areas: well as under bracing authority section 8 of the 8) Act.1 Under the statute (section currently and elec- practices unfair labor codi- fied, the Board investigative retains both (section 9). representation matters tion or decisionmaking representa- functions in signifi- Taft-Hartley In Act made pursuant tion cases filed to section but changes respect with to unfair labor cant these functions are divided between the History of practice Legislative cases. See Board and the office of the General Counsel Act of Management the Labor Relations respect to section 8 unfair prac- labor (comparing at 1935 and 1947 charges. tice Acts) Legislative History]. [hereinafter the Board left with all-embrac- practice While today an unfair labor cases, representation it was case is ing authority by filing initiated a charge Report true, charges 1. The of the House Committee cause to believe such original prosecute Board, complaints version the bill studied the House such before the revamp stated that the decisions to to make to the courts for enforce- independent investigating investigate create an ment of orders of the prosecuting representation petitions official and the decision to add the conduct elec- practices 8(b) union unfair labor of section tions under section and to exercise such prevent by both served to the Board from render- other functions as on him are conferred ing arbitrary prejudicial decisions and to this Act. prevent repeating (1947), “the new Board from Cong., old H.R.3020 80th 1st Sess. § H.R.Rep.No.245, reprinted Board’s mistakes.” 80th Legislative History at 173-75. (1947), reprinted Cong., Legis- Thus, 1st Sess. 6-7 the drafters of the House bill first intend- History lative at 297-98. Both the House and investigatory prosecuting ed to divorce the general Senate bills evidenced dissatisfaction decisionmaking functions from the role of the operation with the of the Board. The House making Board and to ensure unbiased bill, H.R.3020, replaced would have the NLRB by requiring appointment impartial Board members, by appointed with a Board of three H.R.Rep.No.245, Cong., members. See 80th 1st the President with the advice and consent of 19, 25-26, Legisla- reprinted Sess. Senate, which would have been vested with 316-17, History (describing tive solely quasi-judicial powers. The bill would administrator). functions new Board and completely independent also have created a ex- Although acknowledging also the shortcom- administrator, agency by ecutive headed ings original Senate bill appointed who would have been the Presi- remedy supposed sought excess- Board’s Senate, dent with the and consent of the advice members and es the addition of four new and whose functions would have been reporting requirement. imposition of a (1947), reprint- Cong., investigate charges prac- S.1126 80th 1st Sess. of unfair tices, History Legislative complaints at 106-07. to issue if he has reasonable ed 386 practice, unfair person ing any a such labor by regional office of

a findings then the Board shall state its charge aggrieved. The is claiming cause to be of facts shall issue and representative, and investigated field a by a requir- person an order served on such by Regional the Director made decision and desist ing person such to cease will issue. A determi- complaint a whether and to practice, from labor such unfair not to issue by Regional the Director nation including take such affirmative action appealed to the General complaint may be a with or employees of reinstatement who, statute Counsel the pay, without as will effectuate back behalf of authority, shall have final * * * subchapter: If policies this of investigation respect of the the the testimo- upon preponderance the of un- charges complaints of and issuance of be of the ny taken Board shall not the title,2 in re- this der section 160 of opinion person named the such com- spect prosecution of the engag- complaint engaged in or has plaints before the Board. ing practice, any such unfair labor Counsel’s 153(d). The General 29 U.S.C. § findings then the Board shall state its complaint a or not issue decision whether of fact shall issue an order dismiss- E.g., Sipes, Vaca v. is unreviewable. ing complaint. the said 903, 171, 912, 17 L.Ed.2d plain 10(c) language in- section NLRB, (1967); Newspaper v. Guild Congress dicates that the has authorized Electri United 1973); (3d F.2d Cir. responses the Board to make one of two Ordman, Ass’n cal Contractors 366 F.2d complaint brought when it has heard (2d 1966) curiam), cert. (per Cir. it determine General Counsel: must denied, occurred, it either or that that a violation Northrup see & Leeds (1967); L.Ed.2d 674 express has not. We find no authoriza- Co. 533-35 statutory for the language tion 1966) (distinguishing between unreviewable deciding Board to from whether abstain re complaint decision not to issue Act. Apparently conduct violates the settle). viewable Given “as will believes that words' Congress granted prose has unreviewable subchapter” effectuate policies this Counsel, cutorial to the General discretion it qualify only obligation to issue is hard to in the structure of the Act find duty remedial but also its to decide orders authority guess for the Board to second whether has occurred. We a violation case exercise of that discretion. In a it think clear that the clause on which Board had asserted had Board relies modifies its discretion to power pass upon to decline an unfair or- scope determine the of such remedial practice charge the General filed negative may der as it issue and does not Counsel, Judge McCree wrote: de- statutory mandate that it “shall” We whether begin inquiry our vel non charged cide existence decline to decide if conduct violation. find no authorization We complained by the General Counsel is the statute for the Board’s abstention Act, by prop- unfair labor under the complaints from its decide duty to examining language brought of the it. erly statute. before 10(c), 160(c), Section reads in U.S.C. § Union, Aero. & United Auto. International pertinent part: NLRB, Agrie. Implement Workers v. upon preponderance If of the testi- That F.2d 1331-32 mony be of taken Board shall with the analysis entirely seems consistent opinion any person named in the It be con- ought structure the Act. complaint engaged engag- trolling power respect in or is claimed title, U.S.C. is section 2. Section 160 which deals Svith the prevention practices. unfair labor defer, (noting hearings or of this court to that all witnesses in called the Board to of another tribunal un- upon acquisition deferral to federal control of work insist for elsewhere, authority, statutory strikes; there is providing injunctions less for and arbi- authorizing deferral. 2, tration); Cong., 80th S.Rep.No.105, pt. 18, reprinted Legislative History 1st in Sess. authority, only but with

There is such views) (agreeing poli- (minority at 480 respect single specific to a unfair labor or arbi- cy prompt disposition by of Board 10(k) provides: the Act practice. Section of tration); H.R.Rep.No.245, Cong., 80th 1st charged any person it is Whenever 23, History at reprinted Legislative in Sess. engaged practice in an unfair labor acquisition strike un- (noting that work paragraph (4)(D) meaning within the is fairly employer). victimizes innocent It title, 158(b) this the Board is of section to the Board’s Section 9 intimately related empowered and directed to hear and de- representation jurisdiction,3 jurisdiction dispute termine the out of which such arisen, over which the Counsel does not General practice unfair labor shall have unless, authority prosecutorial have to exercise dis- days within ten after notice filed, assignment cretion. The line between work charge parties has been to such disputes representation disputes is of- dispute such submit to the Board satisfac- adjusted, tory they have or ten difficult to discern and the direction to evidence that 10(k) voluntary for the the Board in section to defer to arbi- agreed upon methods of, dispute. adjustment charge tration rather than decide the special consistent with the Act’s treatment 160(k). prac- The unfair labor 29 U.S.C. § jurisdictional disputes. Notably, in the 10(k) is a strike tice to which section refers Supreme instance in which the Court object other coercion an of which is or spoke of Board deferral to arbi- approvingly forcing requiring any employer or to as- jurisdictional-repre- tration it did so in a sign particular employees work to Carey v. West- dispute sentational context. organization particular labor 271-72, 261, Corp., inghouse 375 u!s. employees in another labor rather than to 401, 408, (1964). 11 L.Ed.2d 320 Nei- S.Ct. organization . . . unless such em- deferring that case nor Board cases to ther ployer failing or to conform to an order 8(b)(4)(D)4 arbitral solutions of section determining certification of deferring to arbi- charges, nor Board cases bargaining representative employ- eligibility to vote in respect tration with performing ees such work. cases,5 support lend to an representation 158(b)(4)(D). That U.S.C. unfair labor § abstain from ad- general power assumed practice striking acquisition— for work — charges. judicating practice unfair labor awas critical issue addressed the Taft- See, statutory grant authority Hartley e.g., S.Rep.No.105, Act. 80th One other 7-8, jurisdiction Cong., reprinted Legislative 1st abstain from the exercise of Sess. S.1126) History (accompanying mentioning. at 413-14 bears In the Landrum-Griffin bill, prohibition pute); 3. In each on NLRB v. Southern Dist. version Calif. Council striking Laborers, 220, acquisition (9th 1971) tied for work 443 F.2d 221-23 Cir. representation Compare (if parties agree voluntary section 9 section. means of settle- H.R.3020, 2(15), Cong., jurisdictional dispute, §§ 80th 1st Sess. ment of ac- must 12(a)(3)(A), History reprinted Legislative at cept); cf. NLRB v. Local Int’l Union S.1126, (original Bill) 80th House Operating Eng., 1969) 8-9 Cong. 8(b)(4), reprinted Legisla- 1st Sess. voluntary § (party private method of settle- version) History (original tive Senate 112-13 8(b)(4)(D) dispute challenge § ment of cannot (Taft-Hart- Management with Labor Relations Board), grounds, result before rev’d on other ley) 1947, Pub.L.No.101, 8(b), Act of 61 Stat. § 27 L.Ed.2d 136, reprinted Legislative History at 6-8 (1971) (approving 8(b)(4)(D) result). amendment). (adopting House bill with Senate Inc., (1963); Raley’s, 5. 143 N.L.R.B. 258-59 IBEW, Corp. E.g., Louisiana-Pacific Pacific Tile 137 N.L.R.B. & Porcelain 1979) (deferral F.2d 224-26 1365-67 assignment in work dis- two arbitration awards 1959, Congress 14(c), to decide an unfair labor added section decline Act of gives charge 10(k). the Board discretion de falling within section “[to] jurisdiction over to assert labor cline employ dispute concerned category involving any dispute class er’s refusal reinstate four strikers where, opinion employers, had lost in arbi misconduct. The strikers dispute the effect of such filed tration but General Counsel had sufficiently is not substantial to commerce 8(a)(1) 8(a)(3) charges on their section and jurisdiction.” warrant exercise of Recognizing that was behalf. it not bound Labor-Management Reporting and Disclo award, never any arbitration the Board (Landrum-Griffin) sure Act of Pub.L. to held that it would defer an arbi theless 257, 701(a), 519, currently 73 Stat. No.86 — trator's award the award fulfilled three if 164(c)(1) at The codified 29 U.S.C. § The Spielberg Board’s decision in criteria.6 14(c) to confirm the effect section was Har was not reviewed. International assumption, evidenced in Hol Board’s first Co., (1962), 138 enf’d vester N.L.R.B. 923 Co., low Tree Lumber 91 N.L.R.B. 635 NLRB, sub 327 784 Ramsey nom. v. F.2d (1950), power to decline to exercise denied, (7th Cir.), cert. 84 377 U.S. jurisdiction, under section 8 section (1964), S.Ct. L.Ed.2d 1052 not employers over classes of believed to Board to the decision of an arbi deferred significant have a effect on commerce. Of employee properly trator an was dis NLRB, Employes fice Int’l Union dues, charged nonpayment for of union 313, 320, U.S. S.Ct. L.Ed.2d though employee given even not (1957) (acknowledging Board discretion participate notice and not did jurisdiction to decline assert over local hearing, though and even his arbitration employers affecting interstate com not proc and of the union which interests those merce); Leedom, see Employees Hotel grievance essed were arbitration (1958) (Board’s (per curiam) Counsel’s sec congruent. not The General jurisdiction refusal to exercise over hotel 8(aX3) charge against employer tion industry comport fails standards 8(b)(2) charge against and section the union approved Employes Office Int’l Union v. at were 138 N.L.R.B. therefore dismissed. 318-20, at 802- Spielberg In both and Internation 928-29. 10(k), express But as with section cases, Harvester, al in other the Board as power cov authorization of to exclude from completed deferred to arbitral decisions ad erage employees, classes of on the basis of charging party verse in the unfair effect, commerce, an insubstantial is no practice labor In Dubo Manufactur case. support general for a policy deferral (1963), ing Corp., 142 N.L.R.B. contract arbitration in unfair labor represented posi an in the Board’s advance where, here, cases plainly commerce is tion, deferred, temporarily, pending provision affected. No other Act proceeding. but arbitration unresolved authorizes either deferral to arbitration or however, the Board decided Subsequently, jurisdiction by exclusion from the Board. Mfg. v. Dubo charges. NLRB II. 1965) Corp., F.2d 160-61 curiam) petition enforce (per (granting there apparent statutory Thus is no basis Wire, ment). Collyer Insulated Finally in general policy. Board Never- deferral a sec theless, (1971), faced with 192 N.L.R.B. 837 Spielberg since its Manu- employer had facturing Co., 8(a)(5) tion that an charge 112 N.L.R.B. 1080 working conditions unilaterally changed asserted that it has discretion to defer to the the Board employment, decision of an arbitrator and and the terms of Co., Spielberg Mfg. bound, 6. 112 N.L.R.B. at 1081-82. decision of arbitration [ 3] panel clearly repugnant pur The three criteria set the Board to the forth are: is not poses policies the Act. proceedings appear been fair have [ 1] Id. at 1082. regular, parties agreed all had to be [ 2] case, it would defer to the seminal indi- for the first time held that procedure had arbitration completed contract cated that deferral even to a Two yet been invoked. Id. at 843. was far from automatic. members, Jenkins, Fanning dis Board held that it defer if it would vigorously, sented have adhered proceedings concluded that the arbitration position rarely appropriate that deferral regular, parties were fair and that all had ever since. agreed to be bound by the arbitration clearly award and that the result was not striking presented anomalies Several repugnant Mfg. to the Act. Spielberg Spielberg-Collyer doctrine. The first Board al- 112 N.L.R.B. at Thus the produces doctrine ways power assumed that it a residual had time, savings no effort or cost in the disregard Collyer en- award. When process. administrative In unfair contract larged of deference to practice cases the Board never hears testi- to, procedures yet arbitration resorted rarely argument. hears It not mony and oral of that reviews a written decision an administra- the Board reconfirmed the existence of judge in the power by including tive law and a record made before residual a clause not judge. It is until what amounts over reserving jurisdiction deferral order stage of appellate completion the administrative the case until arbitration. of process that the decision to defer to an Wire, at 843. Collyer Insulated 192 N.L.R.B. process or to arbitration award the arbitral That clause has now become a standard one By regional then a office has made. orders. reasons for the in deferral The investigation charge conducted an of the examining of policy Board’s arbitration Regional and either the Director or the compliance for with the Act are not awards or, complaint has General Counsel issued a First, itself hard to find. the statute if Regional Director dismissed the responsibility for charges the Board with charge, the has reviewed General Counsel of the interpretation enforcement investigation the results of and made 10(a) 160(a). Act. 29 Section § U.S.C. prosecuting charge, in favor of provides pow- the Act thus gone prosecution charge and the of the engaging in any person from prevent er “to through hearing forward and decision.7 . . shall practice labor . any unfair None of the time and effort thus invested means of by any be affected other charge recapturable, and the or prevention has been adjustment or apparent effect of the deferral decision at law, or agreement, be established stage Regional this late is to deter Id.; Mfg. Krump see Dreis & otherwise.” deciding Director General Counsel from Co. v. F.2d prosecute charges future rather than to defer on 1976) refusal (upholding Board’s relegate charging contract party to a employ- would violate ground that award remedy of arbitration. gener- rights.) Although one ee’s 7§ encour- is the possible exposes underlying the Act policy policies That deterrent al settling labor anomaly Spielberg-Collyer peaceful means agement second 151,173(d) (1976), U.S.C. disputes, doctrine. As the has been formu- see 29 §§ doctrine the Act Board, part of to read that lated it has been is a mistake and as it settle- encourages such applied, provides specifically no effective control over authority vested in altering the prosecutorial the General Counsel’s discre- ments as section 10(a). Neither tion, section the result Board in because of its trilogy8 so-called Steelworker’s any given entirely case is nor the unpredictable. v. American (1979) (§ 160(a) of America 7. United Steelworkers §§ 29 C.F.R. 101.2 to .8 unfair Co., Mfg. S.Ct. 4 L.Ed.2d practice procedure); 363 U.S. labor id. 102.15 to .51 § (§ compel (1960) 301 suit to (1979) (§ 160(a) proce- unfair labor grievances); of America United Steelworkers dure). Navig. Gulf v. Warrior & (§ (1960) suit to 4 L.Ed.2d 1409 protection no majori- ty, example, may afford by the mandates the result reached dis- 203(d), potential other victims of similar ty in U.S.C. this case. Section voluntary crimination, could af- 173(d), encourages peaceful, while a Board order of a Finally, in the context inasmuch protection. means of settlement ford such pre- arising pre- in the course dispute required an arbitrator is not even bargaining and is limited contract collective fact, may be instanc- findings of there pare through disputes such decision, to the settlement of his es in which the reasons for Nor Mediation use of Federal Service.9 behind consistency policies with the thus its trilogy require auto- does Steelworkers and unknowable. the Act are both unknown awards. matic Board deferral to arbitration would be A of absolute deferral opinions solely with The deal Steelworkers public Board’s plainly inconsistent with the authority of courts to re- the federal token, the responsibilities. by the same But quire parties reluctant to adhere to af- consequences waiting until practical However, agreement contract arbitrate. deciding ter an award has been made before sec- authority enforcement under ultimate or not defer is to make whether Act tion 8 of the rests with the largely irrelevant deferral decision 203(d) gener- neither section nor the Court’s A charging decision. General Counsel’s arbitration in al endorsement contract charging party charge by the must be made the statuto- trilogy the Steelworkers alters complained of. within six months of the acts ry scheme. 160(b). charging party U.S.C. § engaged statutorily often have been Second, performs public poli- will with the protected activity which conflicts not cy by function served an arbitration. designated held, majority in the Supreme Court interests of the As the may not be bargaining agent, collective . . exist for Board . does not [t]he remedy will fully confident that a contract “adjudication private rights;” of the rights. In minority protected vindicate public give capacity “acts in a to effect to many charge instances the will be filed public policy of the Act to the declared concerning proceeding an prevent before arbitration to in- eliminate obstructions grievance been com- employee’s the has by encouraging terstate commerce collec- charge may be bargaining.” menced. In other cases the tive stage prolonged a multi- filed at some of Corp. NLRB, Phelps Dodge 313 U.S. procedure which has not stage grievance 845, 852, 85 L.Ed. 1271 that yet culminated in arbitration. At quoting National Licorice Co. Office, which is point Regional neither the 569, 575, 60 S.Ct. 84 L.Ed. 799 investigation, nor the Re- responsible for Obviously a by an remedy selected Director, gional may decide to file a who processing griev- in an arbitrator individual Counsel, who complaint, nor the General wholly may inadequate be to enforce ance ultimately responsible for the decision to against prac- public the unfair labor complaint, any way anticipat- of file a single tices. Reinstatement of a victim of engaging protected ing in activi- whether or not the arbitrator’s decision discharge concerning existing collective-bargaining agree- compel dispute of an mean- of contract); ing United Steelworkers of Amer- ment. The Service is directed to make its of Enterprise Corp., Wheel & ica v. 593, Car conciliation and mediation services available (1960) (§ disputes L.Ed.2d 1424 grievance in the settlement of such compel compliance only exceptional suit with arbitrator’s as a in last resort and cases. contract). of 173(d). construction simply 29 U.S.C. This section means methods, privately agreed upon settlement (establishing §§ 171-183 9. See 29 U.S.C. Feder- arbitration, including preferred are to be over Service). al Mediation Conciliation Sec- by mediation the Federal Mediation and Concil- 203(d) provides tion nothing Service. The section does iation adjustment agreed upon change method Final discretion and en- the distribution of parties is authority declared to the desirable the be 9 and 10 of forcement sections grievance disputes settlement of method the Act. arising interpretation over or legal regardless be made of the in- satisfy prevent- cannot public’s will interest practices. public in- ing terpretation of contract’s terms. unfair labor require with, in- generally restraining, seem or Charges interfering terest would the infor- prosecution while vestigation and employees in violation sections coercing are available. Even mation evidence 8(b)(2), 8(b)(1), charges of retalia- 8(a)(1), concerns, evidentiary aside from these 8(a)(4), or of section tion in violation Counsel must Regional Director or General charges or interference in of domination anticipate least arbitrator’s 8(a)(2) to mind as of section come violation inadequate for the vindica- award dispute. examples category latter They also must public tion of interest. public interest transcends such cases the position have an administrative (cid:127)be in parties to a collective interest of the for Board re- judge’s law decision available parties can- agreement. Those bargaining view, inadequate, be- should the award be illegal agree that which is permit juris- independent no cause the Board has bargain away and cannot under the awards. The to review arbitration diction by insisting on public remedies interest Spielberg-Col- its can exercise inadequate for its vindication. that are re- lyer discretion connection instances, and many probably Moreover judge’s law deci- view of an administrative is, case, if not an actual con- in this there judge, law sion. The administrative interest, of congruity at least a lack flict course, Collyer reliance on rights interests between the individual might But unless Re- choose defer. 8(a)(1), 8(a)(2), 8(a)(4), by sections protected gional Director or the General Counsel has rights 8(b)(1), 8(b)(2),and the collective charging and has first made a decision duty protected by bargain collective- obtained a from an administrative Collyer majority When was decided ly. judge, law will never have an point possibly valid if the made the opportunity the arbitration to consider practice charge depends solely unfair labor public interest. light award it is not meaning on the of the contract difficulty practical Aside from that the chosen unfair to insist arbitrator Spielberg-Collyer decision to defer al- meaning and fill parties construe inevitably is made at the end rather most before the Board gaps the contract beginning than at the of the administrative posi- to that acts. Had the Board adhered process, agency there is the further anoma- tion, Regional at least the Director and the ly to that while the Board claims be exercis- have had some dis- General Counsel would discretion, ing governing its the standards policy against cernible which measure readily that exercise have not been discerni- their and the Board’s discretion. But the practice charges ble. Unfair labor are not Collyer al- purportedly line drawn had predicate fungible. In some cases the ready Spielberg, a been breached in case dependent charge may entirely upon be involving picket arguably pro- line conduct bargaining meaning of a con- collective tected section of the Act. Charges tract. of unilateral action viola- post-Collyer In the of National Radio case duty bargain collectively typi- tion of a Co., (1972), the Board de- 198 N.L.R.B. 527 cally of issue. If the ac- present this sort a process ferred of arbitration in case complained tion of not violate the terms did 8(a)(3) discrimination involving a section agreement was not unilateral and of the 8(a)(5) claim and a unilateral action section 8(a)(5) employer could no there section claim, although the administrative law 8(b)(3) violation. In such a section union no con- judge had found that substantive case, pure dispute, which involves a contract Moreover, dispute. provisions were in tract are deter- once the terms of the contract spite possibili- the Board deferred in public mined interest the matter cases, however, employer could ty even acts if ends. other to “no breach remedy the conduct amount contract is available [the contract] nevertheless independently illegal, agreement, and but complained of is [which would] dropped charge pursued less he prohibited by the Act because under- [be] motive.” Id. at discriminatory grievance taken for a contract remedies. The General Jenkins, Fanning dis- 530. Members complaint, the employer Counsel filed a Co., pointed out senting in Radio National remedy. sought deference to the contract majority’s action amounted decision, significant three mem In a “subcontracting nothing less than a bers, Fanning, Jenkins and Chairman Mur private tribunal of the determination phy, required. held that deferral was not solely rights guaranteed conferred and Fanning Members and Jenkins wrote that (Fanning at the statute.” 198 N.L.R.B. public rights no enumerated under the Act Jenkins, dissenting). & relegated privately could be to a selected Taking the National Radio Co. case at N.L.R.B. at 808-09. Dissent tribunal. 228 value, apparently face find the Board would ing Penello and Walther reiterat members legal provision whereby the un- contract position Radio Co. ed Board’s National members, waived, ion of its their behalf charge could any unfair labor right complain practices, of unfair labor result in deferral to contract arbitration. relegated them forum. to an arbitral Id. 814-16. The critical vote that of at holding, Given the National Radio Co. there Collyer Murphy, Chairman who reassessed legal category was no issue its to cases not within its identify falling Counsel could as General original scope. drew the distinction She Spielberg-Collyer outside the doctrine. At legality between of which turns conduct the same time continued to ad- the Board interpretation on an of the contract and jurisdiction position, here to its retention of which, pro from contract conduct aside to, reserving, properly it had the authori- visions, statutorily protected interferes ty to award and examine fairness cases, rights. group In the latter she policies consistency with the Act. wrote, will not defer resolu since See National Radio 198 N.L.R.B. at 532 dispute tion of the must turn on an inter jurisdiction (retaining dismissing while pretation of the not the contract. Id. circumstances, complaint). Given these Recognizing purpose at 810-11. that the guidance there was no effective those to. protection the Act was the of the free flow responsible exercising prosecu- officers through of commerce both collective bar Comparing torial under the Act. discretion gaining private dispute contractual res prior the numerous instances to 1977 olution, telling point she made the that both which the Board chose not to defer with policies depend ultimately upon assurance defer, those instances in which it elected of “full freedom of Id. association.” I have been unable to discern consistent 811-12, citing Corp. Mastro Plastics majority rationale. 270, 279-80, significant year 1977 is because in 356, (1956); L.Ed. 309 see 29 U.S.C. year the Board decided General Ameri- Act). (purposes public 141 interest Transportation Corp., can 228 N.L.R.B. 808 vindicating right, in this most fundamental (1977). case, The General American like wrote, precluded she deferral to contract Radio, statutorily pro- National involved 812; Note, remedies. 228 N.L.R.B. at see charging tected party, activities. The Per- 1978 98. therefore held S.Ill.Univ.L.J. She ry Jr., Soape, complained that he was dis- Co, proge that National Radio and all of its charged engaging protected activi- ny an “unwise Col were extension ties, including taking time off to attend lyer deferral into area which negotiations, filing area contract preeminence the Board should retain its complaint Occupational Safety with the 228 N.L.R.B. at 811. should reversed.” Soape Health Administration. declined posi- on Murphy Chairman elaborated her grieve discharge and arbitrate his and in- Robinson, Inc., Roy 228 N.L.R.B. 828 regional stead tion charge filed a with the office (1977), day decided on the same as General representative Board. A union ad- joined vised Roy him that it would him un- American. In Robinson she not assist dismissing only the Board has deferred and Walther in Since members Penello to. yet twice to arbitration not resorted deferring to arbitration complaint America, See Croatian Fraternal Union reasoning Her yet not invoked. procedures (1977) (upholding decision 232 N.L.R.B. 1010 presented a was that the facts for deferral defer); Roy judge law of administrative suited to “particularly issue pure contract Inc., (1977) Robinson, 228 N.L.R.B. 828 issues process although these the arbitral (holding judge law erred administrative charge under give rise to a. also [sec- defer). Both these cases refusing' 8(a)(5) 8(b)(3) of the Act.” Id. at tions] charges of unilateral action under involved reasoning in her Gen- Relying 831. 8(a)(5) pure involved section and thus both concurrence, she identified eral American questions that would be resolved contract 8(a)(3), 8(a)(1), violations sections reaching the unfair labor without 8(b)(2) 8(b)(1)(A) inappropriate issue. Croatian Fraternal Union America, (1977) case, (employ- 232 N.L.R.B. 1010 subsequent Id. In a she deferral. and ban er’s decision to subcontract work 8(a)(5) noted that section further although Robinson, calls); employee telephone Roy charges generally appropriate cases for Inc., (1977) (employer’s 228 N.L.R.B. 828 arbitration, involving charges under a case body shop to close of automobile sections, which is a several one of -type dealership). every Collyer other 8(a)(5) charge, frag- section should not be case, process where the arbitration had not mented, heard the Board. but should be filing prior been invoked Texaco, Inc., (1977). It is N.L.R.B. charge, the Board has held that deferral noting that also in 1977 the worth inappropriate. The Board has been Penello and Walther dissent- with members in cases involv- especially reluctant defer involving ing, held that case a sec- rights,10 section 7 ing charges of violation of 8(aX4) charge tion the Board would not and cases in which for some reason the defer, completed even to a arbitral award might congruent union’s interests not be employee’s.11 with the protection against Spielberg, under because 8(a)(4) duty section violations is cases, Since Associates, Inc., alone. Filmation already resulted in an arbitration award, (1977). the results have been mixed.12 Un- 227 N.L.R.B. 1721-22 Contractors, Texaco, E.g., proceeding); Inc., Melones 241 N.L.R.B. No. 10. (1979); (1977) (Murphy, Chairman, N.L.R.B. 375 100 L.R.R.M. 1477 Loomis Courier concur Serv., enf. denied on ring) (employer unlikely 235 N.L.R.B. to adhere to arbitral (9th 1979); grounds, other 595 F.2d 491 C Co., award); Angeles cf. Los Marine Hardware Serv., Inc., (1977); H Tire 230 N.L.R.B. 1173 & (1978) (Penello, concurring) 235 N.L.R.B. 720 Co., City Mfg. N.L.R.B. North Eastern Okla. (deferral appropriate employer repu where enf'd, bargaining agreement), diated collective Serv., E.g., United Parcel 228 N.L.R.B. 1060 11. (Penello Walther, concurring); (1977) & cf. Airlines, Inc., Compare Inc., Sugar Coop. Pacific Southwest Helvetia (1978) (employees trying 234 N.L.R.B. 638 decertify (1979) union and N.L.R.B. No. 101 L.R.R.M. 1366 bargain); Quality employer Packers, (deferral Spielberg) Sioux refusal under and United States (1977) (Walther, Serv., 228 N.L.R.B. 1034 Postal 241 N.L.R.B. No. concurring) (substantial delay (1979) (defer of union in seek- L.R.R.M. to award where ing appropri- originally process) refusal arbitration makes to defer had deferred to ate). (1978) City Kansas Star 236 N.L.R.B. 866 Penello, (Murphy, adhering and Truesdale likely more to refuse to The Board is also Spielberg general; Fanning in Jenkins and appears employer defer if it that the would concurring result) See, with Melones Contrac- any to adhere to arbitral award. refuse tors, 3, Inc., 241 N.L.R.B. 100 L.R.R.M. 1477 e.g., Anodizing Plating, No. Precision & 244 (1979) (refusing (1979) to defer to award because § N.L.R.B. No. 102 L.R.R.M. 1399 arbitration) 8(a)(3) (Truesdale, concurring) (employer’s issue not reached in and conduct so Max Factor & 239 N.L.R.B. 100 No. and that arbitration hostile to union probably contract (1978) (refusing issue); Joseph’s to defer to L.R.R.M. 1023 St. would not resolve right (refusal post-hearing Hosp., (1977) 7 not of re- award because 233 N.L.R.B. 1116 Inc., Gould, necessary considered) N.L.R.B. spondent and 238 No. information for to furnish 394 Board rationality of applica- awaited indication January year, of

til this applying drawing purpose for the of Spielberg test had line part the three tion of Collyer. not and I do Spielberg to awards even both While in Board deferral resulted remaining the to resolve the was that arbitrator in this case have where it not clear Murphy between presented dispute unfair labor area of Chairman had been with Jenkins,14 January, Fanning Board I can and and practice claim.13 Members prior permitting logic Murphy’s appreciate its of Chairman’s overruled although Perhaps deferral position. and noted that result General American administratively economi- might interpret have been when not contracts should cal, delegation impermissible it also designated “an another inter- parties have jurisdiction under the Board’s exclusive of inter- preter.15 plainly But Board must 10(a) Motor of the Act.” Suburban Section pret public and what the decide Inc., 2,No. 103 L.R. Freight, 247 N.L.R.B. requires by way of sanction interest (1980). The Board further R.M. 1114 Second, statutory rights. violations of with that extended experience noted that reject panel majority chosen has “promote[d] the application Spielberg, of majority position, to em- Board’s current encouraging statutory purpose collective- posi- brace National Radio Co. the overruled derogate[d] but bargaining relationships, tion, practical purposes for all to make and equally important purpose protecting analysis Radio Co. National deferral rights employees in exercise of their discretionary. than Nei- mandatory rather Act.” This under Section 7 of the Id. gone any ther nor has ever court may signal latest decision of the that far. recognition the line Board’s drawn pure contract General American between III. statutorily-protected rights and questions Spielberg Thus far I have discussed the applied should not properly issues Collyer developed doctrine as cases, Collyer Spielberg cases but noted this court has and have as well. yet issues it directly addressed presents. Carey things apparent Two to me from this I have also noted First, Corp., dis- 375 84 analysis. Westinghouse the General American 401, 11 interpretation (1963), contract is- L.Ed.2d 320 a case sometimes tinction between long approval issues an across the statutory rights sues and is a to as an referred ferral; suggesting accommodation) (1978) (refusing 99 doctrine L.R.R.M. 1705 defer Implica- Teple, unfair because Deferral Arbitration: arbitration). Policy, (1974) (gen- not considered tions of NLRB 65 Arb.J. deferral) Zimmer, erally favoring Wired Reproduction Corp., 13. See Serv. Electronic Rationalizing Collyer: For NLRB and Arbitra- overruled, N.L.R.B. Suburban Jurisdiction, (1973) (gener- tion 48 Ind.L.J. 141 Inc., Freight, N.L.R.B. Motor L.R.R.M. No. deferral; ally favoring favoring National Radio Schatzki, Collyer approach) A Co. over Getman, Response to Professor 49 Ind.L.J. Fanning 14. Members and Jenkins would over- (1971) (responding well, to criticism of his favorable Collyer grounds rule on the that it does deferral) Getman, Collyer statutory protection rights view Insulat- ensure not results Modesty, Misplaced ed A Case of Wire: added administrative costs because Collyer analysis. (1973) general) timing (opposing Ind.L.J. 55 deferral in Getman, Collyer at Insu- N.L.R.B. 810. A Little Bit onMore Wire, (1973) (responding to lated 49 Ind.L.J. 80 See, Antoine, e.g., Judicial Review of St. Schatzki; noting results Professor deferral Labor A Arbitration Awards: Second Look efficiency) no increase in administrative Enterprise Progeny, Wheel and 75 Mich.L. Atelson, Disciplinary Discharges, Arbitration however, (1977). Commentators, Rev. have not reached Deference, and NLRB 20 Buffalo L.Rev. consensus on either the (opposing deferral; arguing (1971) excessive benefits, any, Spielberg-Col- wisdom lyer if outweighs any cases bene- harm to individual fits). Covington, Compare doctrine. Arbitrators Relationship, and the A N.C.L. Board: Revised (favoring Spielberg (1978) de- Rev. 128-36 involved a when the Board refused policy, actually to defer. Until the board deferral matter, two, as to jurisdictional-representational majority opinion, every instance but provi- separate statutory charged party per was unsuccessful in which there suading appeals before ad- a court of that deferral sions. This court twice Spielberg-Collyer policy Compare, e.g., of de- should be ordered. Alfred dressed NLRB, 403, ferral, opinions neither of con- M. Lewis v. 407-08 but those 587 F.2d (9th 1978) analysis propose. (upholding that I Cir. refusal to defer flicts with the School, issue) First, process Television to in Radio Technical arbitration on a contract 1973), NLRB, (3d Hauling Serv., NLRB, F.2d v. Cir. and Hawaiian Inc. v. Inc. 674, (9th 1976) finding (uphold we Board’s F.2d 675-76 enforced the order Cir. ing an arbitral to to award on spite unfair labor refusal defer arbitration denied, contrary. rights issue), there noted statutory decision to the We cert. was a Spielberg policy 53 L.Ed.2d 1061 (1977) to defer voluntary Krump Mfg. one and the refusal and Dreis & Co. v. NLRB, (7th 1976) de- appropriate was because the arbitrator’s 544 F.2d Cir. long to ignored (upholding cision line of Board refusal defer to arbitration repugnant statutory grounds) and thus to precedent court was award on and T.I.M.E. NLRB, 294, 302-03 required DC, (5th to which the Board was Inc. v. F.2d 1974) enforce. Id. at 460-61. The issue Cir. and NLRB v. Brotherhood of was a holiday gift Clerks, whether a bonus was a or Railway, Steamship Airline & part wages (5th 1974) not one which (uphold of one’s was 1109-10 F.2d Cir. solely to the could be resolved reference ing process refusal to defer to arbitration contract and thus Board’s refusal issue) statutory rights on and Office & 461. appropriate. was id. at Union, NLRB, defer Empl. Int’l 425 v. Prof. Local NLRB, Second, Stores, in Food Fair Inc. v. (D.C. 1969) (up 419 F.2d 317-20 Cir. 1974), again upheld we 491 F.2d 388 proc refusal to defer arbitration holding defer,16 there, process refusal to issue) statutory Douglas ess on Air rather than award. Id. at to an NLRB, (9th craft Co. We noted that the Board should 395 n.9. 1979) (denying Board enforcement of required to defer as an abstract not be ground on should have order mandatory because deferral proposition statutory deferred to arbitration award on First, cases would be undesirable. in some Servair, rights issue) Inc. might parties not choose to arbitrate L.R.R.M. 2706-10 Cir. Oct. Second, not be forced and should to do so. 1979) (denying of Board order enforcement made, not be the deferral should ground that Board defer to arbi on should we agreed, presenta- in the absence of full statutory trator’s award contract or is appropriate tion of the facts to the deferral sue), petition rehearing granted, No. Therefore, prior Id. decisions of decision. 1980). In a number (9th Cir. 78-2791 against man- this court militate the broad Spiel the courts refer cases these ma- datory deferral endorsed this and conclude doctrine berg-Collyer case, however, squarely Neither jority. of discretion commit an abuse did not presented opportunity this court with an proceeding refusing to defer and original propriety either the assess charge. Counsel’s General adjudicate validity Spielberg- continued Board’s in such cases of the doctrine The discussion policy. Collyer deferral to us however, helpful not, particularly appeals I Looking to the other courts of no occasion courts had because those guidance. power do much There are a negative not receive the source of analyze charged fair number of eases which the affirm already acted Board had when the parties review order sought of a Board atively. Fair, parties ly had amicus curiae In Food the contract because it raised in an defense, deferral as an brief. not raised affirmative Collyer brief- the court addressed the issue but the sociated Press involved both a contract in cases which from those in

Aside order terpretation dispute, refused to is the issue appeals have which courts dealt, has deferral, Spielberg-Collyer doctrine the Nabisco court with which cases in courts in several statutory rights before those dispute employees’ been over objected charging party which dues checkoff authorizations. terminate of the doc- early approval An deference. 186(c)(4). But the court See 29 U.S.C. Hays’ in Judge opinion trine is found of at noted that the effectiveness also (2d NLRB, Nabisco, 479 F.2d Inc. v. dispositive was tempted dues revocations not discuss the 1973). opinion does That practice labor contractual unfair and the Gener- of the Board respective roles Thus the statu charges. 492 F.2d at 666. involved, however, an The case al Counsel. as to which deferral was tory rights issue charged union with employer who to the con approved intimately was related change of contract in violation unilateral so, question it is at least tract issue. Even 8(b)(3), the case therefore section majority the current Board able whether meaning of the con- solely on the turned question on the would defer to arbitration was deemed Id. at 772-73. Nabisco tract. for dues checkoffs whether authorizations in Local controlling in the Circuit Second in accordance with had been terminated 700, Aero. Wkrs. Int’l Ass’n of Machinists & Nabisco, Inc., As in the District statute. NLRB, 237, 525 F.2d sepa did not discuss the Columbia Circuit approved In case the court rate role of the General Counsel. Assor charges of defer even on anti- decision to in Local dated Press case was followed re- union while the court harassment. But Electric), (Western IBEW v. NLRB Board’s deferral deci- fused to overrule the U.S.App.D.C. 494 F.2d sion it noted and Local IBEW v. (D.C.Cir.1974), n.2 if does not mean that an arbitrator [t]hat Wisconsin), U.S.App. (Malrite NLRB to have finds an unfair (D.C.Cir. D.C. committed, may not im- been of unilateral 1974), involving charges both pose remedies available to it un- further of the contracts. allegedly breach actions Act. The can and should der the case, however, introduced what The Malrite remedies, own notwithstand- fashion its beginning of a refinement award, ing where an arbitration cases cases Spielberg-Collyer approach taken determines, discretion, it in its that such Circuit. by the District of Columbia carry appropriate, remedies are out its on a Malrite, approving deferral while statutory mandate to correct unfair labor arbitrator, decided contract issue practices. to defer Board’s decision rejected court at 246. As member of the Id. Second events charges respecting respect case, panel in the Local 700 I felt Circuit the arbitration place took after which Nabisco, precedent. bound Inc. Subsequently, 494 F.2d at 1139. hearing. however, then, recog- I Since have come NLRB, U.S.App.D.C. Banyard interpretation issues and nize that contract the Dis (D.C.Cir.1974), 505 F.2d 342 rights quite differ- statutory present issues Circuit discussed trict of Columbia therefore ent considerations criteria, and then held that Spielberg three Nabisco, controlling. Inc. was not Spielberg prerequisites the three [t]o The District of Columbia Circuit has also already listed in Local Union 715 [Mal- objections considered to deference ... we would add rite] charging party. The first consideration only applies if the ar- doctrine objections by such that court was in Associ- (A) bitral is- clearly tribunal decides the U.S.App.D.C. ated Press v. urged sue on later (D.C.Cir.1974). Writing 492 F.2d 662 court, deference, (B) Judge give Judge Wright upon relied Board should Nabisco, an issue Hays’ opinion, Inc. 492 F.2d at 668 arbitral tribunal decided within n.24, explicitly recognizing competence. that As- without Banyard arose dispute involving at 347. The stances section 8 Id. both and section activity protesting abnor- issues, of concerted out the court held that refusal to defer conditions, working pro- mally dangerous 8(a)(1) to a section award was an abuse of by section arguably protected tests discretion because it was raised before the 502, 29 157 and section U.S.C. U.S.C. § an party. unaffected third As to between con- Noting 143. the difference 8(a)(3) award, the section the court af rights the court rights statutory tract firmed the Board’s refusal to defer because observed antagonistic union was to the affected approval employees, preferred of the who therefore Board’s deferral un- have [o]ur Spielberg der statutory rights issues to arbi- their determined the Board. Id. tral along resolution with contractual is- Krump at 3-4. In Dreis Manufacturing & sues is upon conditioned the resolution Co., (7th 1976), 544 F.2d 320 Cir. the Sev congruent the arbitral tribunal of statu- approved Spielberg enth Circuit policy, tory and contractual issues. In that situ- rejected also analysis, petition without but ation “the arbitration award becomes the argument er’s deferral was remedy sole for both contractual and mandated, relying on the Board’s non-dele statutory present violations.” If in the gable duty 10(a). under section The court case the applied Joint Committee upheld therefore the Board’s refusal to de issue before it a standard correct under permitted fer to an award that would have judicial the contract but not under inter- employee’s violation of the section 7 rights. pretation of section then it cannot be In Enterprise Publishing Id. Co. v. said that the statutory issue was decided NLRB, (1st 1974), 493 F.2d 1024 Cir. by the Joint Committee. In that event rejected employer’s First an Circuit chal goes the Board’s beyond abstention defer- lenge to a deferral decision on a ral approaches abdication. dispute which, statutory dues checkoff as in case, 505 F.2d at quoting closely the Associated Press relat Local IBEW v. NLRB, 494 F.2d at dispute. 1138. The ed to a contract The First Circuit court re- manded to the Press, Board with a opinion direction to on id. at relied Associated decide the charges rather than defer. Thus n.l, conclusory approved Collyer a present position of the District of Co- manner, of the and addressed none issues lumbia Circuit appears to be that it will discussed herein. The Ninth Circuit’s initial approve deferral statutory rights issues rejection challenge Spielberg-Collyer of a only if there is an congruence exact be- issued a cryptic; was even more that court tween contractual rights and statutory citing paragraph per opinion two curiam rights. Whether, in view of the General Nabisco, Provision Inc. v. NLRB. American majority position, NLRB, v. House Local 247 Wkrs. Union go would even this far is a specu- matter of denied, (9th Cir.), F.2d cert. lation. clearly But the District of Columbia Since 42 L.Ed.2d is far indeed from position major- of the pursued then the Ninth has not Circuit ity case, in this that deferral on non-con- NLRB, v. policy. Stephenson consistent In gruent statutory rights issues is not (9th 1977), it noted and 550 F.2d 535 Cir. authorized required. but re adopted the added to the refinements equation by view the District of Columbia Other circuit courts have addressed Circuit, to the Board and referred the case Circuit, Spielberg-Collyer issue. The Tenth Id. at 538. In for decision on the merits. decision, Spiel- very early approved in a Servair, 102 L.R.R.M. 2705 Inc. the Board’s berg test as a valid exercise of (9th 1979), petition for rehear Cir. Oct. proper analysis of the discretion without ing granted, 78-2791 1980), No. (9th roles of the General Counsel. Board and the purporting to distinguish Stephenson, NLRB Auburn Rubber case dealing 1967). Reviewing alleged discriminatory discharges, the award in circum- court noted refusal to defer to the arbiter, agreement dispute, analysis, with the under the Ninth Circuit’s [i]f parties, completely, resolves an issue dispositive public therefore becomes disregarded that decision should not be of re- majority’s interest. The standard simply capable because the issue is view, requiring deference whenever the ar- being perceived statutory question. “arguably bitrator’s decision is correct” is Only when the arbiter has not resolved an perhaps rigid less than that Servair- ambiguous ca- issue should issue be court, Douglas may require deference pable being raised anew before the whether the award is correct or not. Nei- statutory Board as violation. test, however, ther takes into account the Douglas Id. at 2709. Aircraft Co. v. fact that more is at stake in the resolution 1979), 609 F.2d 352 the practice charges of unfair than the labor further, Ninth holding Circuit went rights private ought not parties. We the Board should have deferred to an am- permit resulting an deference to biguous plau- arbitration award “because a interpretation in an a contract is sible interpretation of the . . . award illegal. If, the union forced example, was consistent with the Act.” Id. at 355. clause, employer accept cargo the a hot Thus, Douglas Aircraft and Servair are the illegal 8(e), a clause re- under section or only two cases ever to majority do what the subcontracting thereby stricting proposes do, by to reverse a decision the violation, amounting to an antitrust see deference, Board not to defer. With I Connell Constr. Co. v. Plumbers & Steam- think both the Ninth Circuit major- and the 616, 623-26, fitters Local ity have stood the Act on its head. Even in 1830, 1835-36, (1975); 44 L.Ed.2d 418 the days when the gave Spielberg- Board cf. Express, Consolidated Inc. v. New York Collyer its reading, broadest tribunal Ass’n, Shipping 511-19 never completely responsibili- abdicated its 1979), gave an arbitration award which ty to decide what remedy required is in the effect to such a contract could not be en- public interest when statutory violations of courts, forced the Board or the even rights have occurred. The District of Co- though it as a fairly could be characterized lumbia Court of Appeals in Banyard held the contractual issue. In the face that it will tolerate deference to arbitration emerging trend in the decisions of the only where congruence there is between the Board and the District of Columbia Circuit contract statutory issues. The Second cutting back on the deferral and the Circuit in Local recognized that even in trend in expanding the Ninth Circuit the cases of deference the Board reserves the mandated, cases in which deferral will be right to scope reconsider the of the remedy. we, who the yet spoken have not defer- The Seventh Circuit in Dreis & Krump re- issue, ral carefully analyze pur- should the fused to order deferral where section 7 poses of the Act and the role of the General rights were involved. But the Ninth Cir- taking Counsel before sides. cuit, Servair, a case dealing not with rights contract but with discharges alleged IV. to have been the result of an attempted area, 10(k) domination or Outside the section where the interference with the forma- it, tion or grave I have union, statute authorizes doubts administration of a proscribed 8(a)(2) section power of the Board to review the to have about the been discrimi- natory in charging violation of decision of the General Counsel in section 8(a)(3), held if an Moreover, arbitration has an case. place taken unfair the doctrine, not Spielberg-Collyer entertain a the even as a charge. That court, same Douglas, required possible interpretation deference to an arbitrator’s decision no other reason than that an undesirable one if for employ- discharge ee’s was not in nightmare law it has violation of his administrative section rights. 609 F.2d at spawned. power recog- 355. The But if such is to be arbitrator’s resolution of a private confined, contract at least be as the nized it should ceeding it, appears because it that she was to section majority now confines organize 8(b)(3) involving attempting rump group cases 8(a)(5) section union, in which interpretation matters this court should opposition contract by the of the contract interpretation Mandatory not force the Board to defer. eliminates in effect agreed upon method force the Board ab- deferral here would I not share charge. do predicate for the statutory duty protect employ- dicate its enthusiasm for con- majority’s eloquent rights ees in exercise of their section protecting as a means for tract arbitration impermissibly negate prose- and would minority members. rights of statutory cutorial discretion vested the General congruence of inter- first with no place, Counsel under statute. majority and minorities est between the merits, Board’s decision that a On the unit, bargaining provisions Richardson en- discharge occurred because inevitably, not re- usually, contract if will activity supported gaged protected Second, typical majority flect concerns. in the record as a substantial evidence grievance-ar- places control of contract majority whole. I do understand the practical control bitration mechanism otherwise, suggest although they probably again to the employer, or the union employer’s favorably view case more minority protection detriment of I I enforce the than do. would Board’s judicial arbitra- rights. Finally, review of order. awards, with Board deci- tion as contrasted sions, narrow to amount almost so as Mfg. Co. v. Ludwig

no review. Honold

Fletcher, 1969). By panel extreme majority’s

virtue of the deferral, expres- Spielberg-Collyer

views on viewpoint will minority’s sions INC., TEEN-ED, trading Jersey as New any protection future if from receive little Organ Appellant Piano and approve We de- judiciary. should 79-1324, No. involving charges ferral interference on statutory rights. We with non-contractual permit should never the Board to abdicate INC., INTERNATIONAL, KIMBALL privately to a tribunal the decision selected Individually trading Cohen, Edward questions to those respect of law with Factory. Piano rights. that in We should at least insist all power to has the deter- instances TEEN-ED, INC., trading Jersey as New whether, statutory having mine violation Organ Piano Co. great- occurred, public demands interest er the arbitrator has relief than INTERNATIONAL, INC., and KIMBALL all, not substi- we should afforded. Above Cohen, Individually trading Edward judgment tute for that of both the our Factory, Cross-Appellant as The Piano by insisting General Counsel and in No. 79-1325. arbitration when on deference to contract be in neither considers deference 79-1324, Nos. 79-1325. public interest. Appeals, United States Court Third Circuit. V. case, then, where the

On the facts of this Argued March judge law found Rich- administrative 23, 1980. April Decided protected engaging ardson activ- was arguably ity leafletting, where pro-

union less than enthusiastic about pro-

tecting rights her in the arbitration notes a Board decision not to the General charge by labor filed practice decision, past defer should reversed a Court Counsel, never be and to defer to the Appeals (At 399). Without Due to the differ- or prospective, of arbitrator. necessarily approach, disagree ences in our I of Board de- acknowledging that issue position. practice with this ferral to arbitration unfair significantly cases contro- any instance IV. versial, that the majority first assumes ap- should be Spielberg-Collyer I have reviewed here the cases that ad- doctrine majority question proved by the standard review this court. But the dress goes only It what one Spielberg which a decision should be much further. does before, Appeals. appeals other has ever done reviewed Courts of Since court where analysis holding none of these undertakes an that there instances cases only question regard I crit- Board decline hear an unfair labor must ical, unpersuaded by charge I am their declarations made the General Coun- of its sel. I share the doubts of Board While Fanning and about doctrine can be reversed for an abuse members Jenkins legality Spielberg-Collyer discretion. I doctrine in am convinced once in which the Counsel voluntarily limits the discretion it case General

Case Details

Case Name: National Labor Relations Board v. Pincus Brothers, Inc.-Maxwell

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 12, 1980

Citation: 620 F.2d 367

Docket Number: 79-1690

Court Abbreviation: 3rd Cir.