Opinion for the Court filed by Circuit Judge SILBERMAN.
Petitioner, Utility Workers Union of America, Local 246, AFL-CIO, challenges a National Labor Relations Board dismissal of a complaint alleging that Southern California Edison Co. violated § 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally implementing drug testing procedures for “red badge” employees working in the “Protected Area” of its San Onofre Nuclear Generating Station. In dismissing the charges, the Board deferrеd to an arbitrator’s determination that the parties’ collective bargaining agreement authorized the company to implement the testing program. We conclude that the Board’s decision to defer to the arbitrator’s award was a permissible exercise of its discretion and therefore deny the petition for review.
I.
The San Onofre Nuclear Generating Station is one of the nation’s largеst nuclear power plants. In September 1984, the Station’s operator, Southern California Edison Co., instituted a drug screening program for its “red badge” employees — those workers whose assignments require unescorted access to the Protected Area of the Station that
Shortly after learning of the company’s determination to institute drug screening, the union filed an unfair labor practice charge with the Regional Director of the Board. The charge alleged that by unilaterally implementing drug tests Southern California Edison had unlawfully refused to bargain in violation of §§ 8(a)(1) and (5) of the Act.
1
Pursuant to the Board’s policy of deferring the processing of unfair labor practice claims until the parties have exhausted their contractual arbitration procedures,
see Collyer Insulated Wire,
In April 1986, the union filed a grievance that eventually proceeded to final and binding arbitration. The question put to the arbitrator was whether Southern California Edison’s unilateral implementation of the drug screening program had violated the collective bargaining agreemеnt, which in turn had incorporated the parties’ bargaining obligation under the NLRA. After an exhaustive proceeding, the arbitrator determined that Southern California Edison was relieved of any continuing bargaining obligation on that question by virtue of its authority to implement reasonable safety rules under Article X, sections N(l) and (2) of the collective bargaining agreement, which state,
(1) The Company shall make reasonable provisions for the safety of employees in the performance of their work. The Union shall cooperate in promoting the realization of the responsibility of the individual with regard to the prevention of accidents.
(2) The Company reserves the right to draft reasonable safety rules for employees and to insist on observance of such rules. The Union may submit suggestions to the Company’s Labor Relations Division concerning plant safety conditions and revision and enforcement of safety rules.
In light of the parties’ bargaining history and past practices as well as the particular safety considerations attending the operation of a nuclear power facility, the arbitrator held that the drug screening policy was a reasonable safety rule within the meaning of the contractual language. As such, it was a proper exercise of contractually secured management prerogatives, and therefore did not violate the collective bargaining agreement.
By determining that the company’s imposition of the drug screening policy was authorized by the contract, the arbitrator perforce determined that the company had not violated its obligation to bargаin over the subject. The statutory and contractual questions were bound together in the single proceeding, and the answer to one was the answer to the other. There could be no unlawful refusal to bargain — under either the collective bargaining agreement or the Act — if the agreement had authorized the company to adopt the testing policy. “No such statutory violation lies,” the arbitrator observed, “where contractual language clearly grants to the employer the right, at its sole discretion, to [make and apply safety rules].”
After the arbitrator’s decision was finally issued in September 1989, Southern California Edison petitioned the Board’s Regional Director to dismiss the unfair labor practice charge that had been held in abeyance. The Regional Director opted to pursue the claim, however, and in May 1992 filed a complaint with the Board alleging that Southern California Edison had violated §§ 8(a)(1) and (5) in implementing the San Onofre drug screening procedures.
The only real dispute before the Board was whether the arbitrator’s award satisfied the last of the
Olin standards
— i.e., whether it was “clearly repugnant” to the Act.
Southern California Edison Co.,
310 N.L.R.B. No. 211, at 4,
The union then petitioned for review of the Board’s decision.
II.
“[T]he Board has considerable discretion to respect an arbitration award and decline to еxercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act.”
Carey v. Westinghouse Elec. Corp.,
Petitioner presents several arguments, all of which relate back to one critical contention: that the arbitrator’s award was inconsistent with existing Board precedent, and therefore “palpably wrong” as a matter of governing labor law. To defer under such circumstances, petitioner claims, is necessarily an abuse of discretion. If the Board would not, if deciding for itself, reach the same conclusion as did the arbitrator, it cаnnot accept such an outcome merely because it was first reached in arbitration but must explain why the difference does not amount to a palpable wrong.
Petitioner argues that Board deference is foreclosed in this case by
Johnson-Bateman Co.,
Petitioner maintains that the safety-rules clause upon which Southern California Edison relies no more establishes a “clear and unmistakable waiver” than did the “zipper clause” at issue in
Johnson-Bateman.
Indeed, the arbitrator did not even purport to apply the “clear and unmistakable waiver” standard in interpreting the scope of the employer’s contractual right under the safety-rules provision. As petitioner puts it, the Board actually conceded that the arbitrator’s decision was contrary to existing labor law principles in both its analytical method and its conclusion — and yet the Board sanctioned an outcome in this case at odds with its prior deсision, which it mentioned only in a footnote.
See Southern California Edison Co.,
310 N.L.R.B. No. 211, at 6 n. 4,
We agree with the Board, however, that petitioner’s description of its stated reasoning is inaccurate. Although hardly more than a cursory incantation of the arbitrator’s conclusions, the Board’s opinion below emphatically did not decide that the arbitrator’s decision was inconsistent with Board precedent. Nor for that matter did the Board determine that it wоuld have come to the same conclusion as did the arbitrator if deciding the ease de novo. It was enough, the Board held, to determine that the arbitrator had not been “palpably wrong” as a matter of labor law.
As the Board noted (admittedly, in a footnote), Johnsovr-Bateman was distinguishable in several respects. The more general “zipper clause” was less susceptible to an interpretation encompassing drug testing rules than the safety-rules clause at issue hеre, and the arbitrator had found that the Station was a “safety-critical” environment and that safety concerns had animated the company’s drug testing requirement. For these reasons we, like the Board, are satisfied that Johnson-Bateman does not foreordain what decision the Board would have reached in this case de novo. We therefore think that the Board reasonably concluded that the arbitrator’s conclusions wеre not “palpably wrong” as a matter of law.
Petitioner also claims that the Board’s deference to the arbitrator’s award in this case is inconsistent with prior decisions by the Board not to defer. The union points principally to
Bath Iron Works,
Petitioner alternatively argues that the Board’s “palpably wrong” standard is illegitimately employed to avoid required decisionmaking. According to petitioner, the Board has no warrant under the statute to defer to an arbitrator’s decision that is merely not “palpably wrong.” And, petitioner argues, since analytically the Board must first determine whether the arbitrator’s decision is wrong before it can conclude that the award is not palpably wrong, the Board may therefore appropriately defer to an arbitrator’s decision only if the Board concludes that the arbitrator correctly applied the NLRA. As an appellate court, we have little difficulty in rejecting petitioner’s logic. We must consider virtually every day whether a district court’s decision as to factual matters is “clearly erroneous,” and when we determine that that standard has not been met, we often never decide — even in our own minds— whether the court actually committed error.
Essentially, petitioner’s argument is nothing less than a broadside attack on the Board’s deference policy itself. Obviously, if the Board must determine whether the arbitrator decided the question exactly as the Board itself would have, it would not be deferring; it would be reviewing the arbitrator’s decision — and reviewing it de novo at that.
To be sure, this court has, as petitioner reminds us, expressed concern as to the doctrinal basis that underlies the Board’s deferral policy as well as its “palpably wrong” limitation.
See Darr v. NLRB,
In the case at bar, by contrast, whether or not the employer violated § 8(a)(5) of the Act (the obligation to bargain in good faith) depends entirely on what the collective bargaining agreement means. As we have noted, “[t]o the extent that a bargain resolves any issue, it removes that issue
pro tanto
from the range of bargaining.”
United Mine Workers 1974 Pension v. Pittston Co.,
In that same vein, although the Board certainly has authority to interpret collective bargaining agreements in the course of determining whether a party has committed an unfair labor practice,
NLRB v.
Be that as it may, whether or not the Board could
refuse
in a § 8(a)(5) ease to defer to an arbitrator’s award under its palpably wrong standard, it seems rather clear to us that the Board
can
do the opposite— defer to an arbitrator’s award that is not palpably wrong. Petitioner is, in a sense, correct in its claim that the Board’s “palpably wrong” standard is a vehiсle for the avoidance of decisionmaking. It is precisely that: the Board’s deference policy is motivated by an effort to conserve the Board’s resources and, where possible, to abide by the resolutions arrived at by the private mechanisms that are the primary and preferred adjudicators of contractual labor disputes. Arbitration is preferred for the simple reason that it is understood to be “a part of the continuous collective bargaining process” that lies at the heart of the NLRB.
United Steelworkers v. Warrior & Gulf Navigation Co.,
So ordered.
Notes
. Section 8(a)(5) provides:
It shall be an unfair labor practice for an employer ... to refuse to bargаin collectively with the representatives of his employees....
29 U.S.C. § 158(a)(5) (1988).
. The Board's
Collyer
deferral policy was approved by this court in
Hammontree v. NLRB,
. On remand the Board determined not to defer to the arbitrator's award after all, and so avoided answering the questions we put to it.
See Cone Mills Corp.,
. Petitioner also argues that review should be granted because the Board failed to consider its contention that the award proceedings were not "fair and regular," and thus not entitled to deference under Olin. Petitioner’s theory of irregularity and unfairness is based simply on its contention that the arbitrator refused to accept submissions after the close of the arbitration proceedings and thus did not consider important developments—namely, the Board's intervening decision in Johnson-Bateman. In other words, petitioner's unfairness claim merges with its argument that the award was inappropriate as a matter of law. We think the Board adequately addressed the fairness concern when it determined that the arbitrator's award was not "clearly repugnant" to Johnson-Bateman.
