NATIONAL ACADEMY OF ARBITRATORS
53RD ANNUAL MEETING LUNCHEON ADDRESS
NLRB DEFERRAL TO ARBITRATION: STILL ALIVE
John C. Truesdale*
Chairman, National Labor Relations Board
June 3, 2000
Fairmont Hotel, San Francisco, California
The views expressed are those of Chairman
Truesdale, and do not
necessarily reflect those of the Board or other Members
I am honored to have been invited to address the National
Academy of Arbitrators. I am also honored to share this dais with your distinguished
Academy officers and other guests, and particularly Chief Judge Harry Edwards, whose court
has for so long played such a prominent role in the life of the NLRB.
It is a pleasure to be here and to address the Academy at
this, its 53rd annual meeting. It was 54 years ago that I first came under the sway of
Jean McKelvey, who was my teacher at the Cornell ILR school beginning in 1946. I am one of
Ms. McKelvey's boys, and proud of it. She became my mentor, and friend, through all the
years that followed. I believe it was in 1970, the year she became the Academy's first
woman president, that I attended an Academy meeting for the first time as her guest. In
the intervening years, I often attended your open sessions, like so many others as a guest
of the Academy. I was at the Academy's 50th anniversary meeting in Chicago where you
honored Jean McKelvey as one of the founders of the Academy. I was grateful for the
opportunity to see her once again, as it turned out, for the last time. She was a
wonderful person, brilliant, innovative, warm, and caring. And I dedicate my remarks here
today to her.
When I attended my first Academy meeting so many years ago,
it was beyond the wildest stretch of my imagination that I would ever return some day as
NLRB Chairman. And it was still beyond that wildest stretch when I retired from the Board
in 1996, and put a toe in the arbitration waters as a member of the AAA,
FMCS, and Oregon
ERB labor panels. But, an early morning call from the White House nearly three years
later, a last minute confirmation vote by the Senate the following year, and, presto, I
appear before you today as Chairman of the National Labor Relations Board. Alfred, Lord
Tennyson said "a man is man and master of his fate."1
But, as Shakespeare said, "fortune brings in some boats that are not
steer'd."2 In my case, Shakespeare is the more apropos.
Of course, while this is my first life as Board Chairman, I
have also had several prior lives as a Board Member. Indeed, I have been appointed to the
Board so many times that I often feel like the Bill Murray character in the movie
"Groundhog Day", who keeps living the same day over and over again. Not only do
I sometimes see the same issue that I ruled on in one of my previous lives as Board
Member, unfortunately, I have also sometimes seen the same case that I ruled on, but which
failed to issue before my term expired.
A good example was a case involving the Mississippi Power
Company. Mississippi Power was an old and difficult election case involving the
supervisory status of dispatchers who coordinate switching sequences during emergency
power outages. The Regional Director's decision in the case issued in September 1993, and
I must have reviewed the Director's decision and voted in the case at least once or twice
during my recess appointments to the Board in 1994 and 1995. And I can't tell you how
happy I was that I wouldn't have to deal with that case anymore when I retired in early
Well, I'll never forget when I returned to the Board in
December of '98 and I got on the elevator and there was one of the Board's staff attorneys
who immediately turned to me and said, "Oh, John, we're so glad you're back. Now we
can get Mississippi Power out!" My heart just sank. I could not believe the case was
We did finally get the case out in July of last year,3 along with many other extremely old cases that were pending
when I returned. But, I'll come back to more about that later.
In thinking over what I would talk to you about today, I
remembered an old speech I gave way back in 1978, during my very first term as Board
Member. It happened to be my very first published speech as a Board Member, and was
provocatively titled "Is Spielberg Dead?"4 Spielberg,5 of course, is the 1955 case that defined the Board's policy on
review of arbitral awards in unfair labor practice cases. Another case, Collyer6 later defined the Board's policy on deferring decisions in
unfair labor practice cases until after parties have been through the grievance
arbitration procedure. Together, these cases are the foundation stones for the Board's
pre-arbitral and post-arbitral deferral doctrine.7 They
represent the Board's attempt to reconcile its statutory duty to prevent unfair labor
practices8 with the Federal labor policy favoring private
In 1978, in that first speech, my answer to the question
was "no"; that Spielberg is not dead and remained a firmly entrenched
doctrine. Now, 22 years later, and in what will surely be my last tour on the Board, it
seems appropriate to revisit the subject of the Board's relationship to private dispute
Spielberg itself is still quite alive. I can state
that with even greater conviction today than I did in 1978. At that time, there was
considerable controversy within the Board itself about the deferral doctrine. In Spielberg
situations, debate centered on what the Board should require to assure that an arbitrator
has adequately considered and decided an unfair labor practice issue while resolving a
grievance. In Collyer situations, debate centered on whether deferral should be
limited to cases alleging unilateral changes or other violations of Section 8(a)(5) of the
Act, or should also include cases involving allegations of discrimination or threats in
violation of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2).
The pendulum of precedent on the deferral doctrine swung
back and forth as Board membership changed.10 However, it
finally came to rest in 1984 with the issuance of Olin Corporation,11
and United Technologies Corporation.12
Citing the strong national policy favoring voluntary
arbitration, the Board majority in Olin adopted the more flexible approach taken in
two earlier Spielberg deferral cases in which I participated in the late 1970s.13 The majority held that it "would find that an arbitrator
has adequately considered the unfair labor practice if: (1) the contractual issue is
factually parallel to the unfair labor practice issue, and (2) the arbitrator was
presented generally with the facts relevant to resolving the unfair labor practice."14 The Board also reaffirmed the three other Spielberg
requirements for deferring to an arbitrator's decision: the arbitral proceedings were fair
and regular; all parties agreed to be bound by the result; and the arbitrator's decision
was not clearly repugnant to the Act. However, the Board clarified the repugnancy standard
as meaning not "'palpably wrong' i.e., . . . not susceptible to an interpretation
consistent with the Act."15 And the Board placed the
burden on the party seeking to defeat deferral to prove that the Spielberg/Olin
criteria had not been met.16
In the second case, United Technologies, the Board
majority reaffirmed the Collyer criteria favoring pre-arbitral deferral. That is,
the Board held that it will defer to the parties' grievance/arbitration machinery when:
the dispute arises within the context of a longstanding bargaining relationship; there is
no claim that the employer generally opposes the employees' exercise of protected rights;
the bargaining agreement provides for arbitration in a broad range of disputes; the
arbitration clause encompassed the dispute; the employer was willing to arbitrate; and the
dispute was well-suited to resolution in arbitration.17 Most
significantly, however, the Board held that it was appropriate to Collyerize unfair
labor practice cases alleging discrimination and other conduct in violation of Sections
8(a)(1) and (3) and 8(b)(1)(A) and (2).18 Thus, again, the
Board adopted a more flexible policy favoring deferral.
The Board completed its makeover of deferral doctrine a
year later in the 1985 Alpha Beta case.19 The issue in
that case was whether to defer to a pre-arbitral settlement agreement as the basis for
resolving an unfair labor practice case. The Board abandoned prior restrictive approaches
to this issue, applied criteria similar to those in Spielberg/Olin, and deferred to
The Board's revised deferral doctrine has survived, albeit
tenuously at times,20 over the last 15 years. This relatively
long period of stable precedent has at least given the Board, practitioners, and the
judiciary a real opportunity to appraise the doctrine and to suggest alternatives to it.
There certainly have been critics.21 The most familiar
criticisms echo some of the arguments made in the dissenting opinions in Olin and United
Technologies. They protest undue delegation to arbitrators of the authority to decide
statutory issues. They also claim inadequate protection of individual employee statutory
In the judicial realm, only one Federal court of appeals,
the 11th Circuit, has expressly rejected any aspect of the revised deferral doctrine.22 All other courts of appeals have approved, applied, or cited
without comment the revised deferral doctrine in the circumstances presented.23
In a significant trio of cases,24
the D.C. Circuit has expressed general approval of the Board's deferral doctrine, but has
questioned its rational underpinnings. Most notable was the case of Marie
discharged union steward. An arbitrator found that Darr's employer had discharged her
without just cause. He also found that Darr's union activity was "the primary
motive" for discharging her. The arbitrator nevertheless awarded Darr only
reinstatement, without backpay, a lesser remedy than she would have received for a
discriminatory discharge under the Act. Still, the Board found that the award was not
"clearly repugnant" under the Spielberg/Olin standard, and it deferred to
Darr challenged the Board's dismissal of her unfair labor
practice case in the D.C. Circuit. On review, the court found the Board's justification
for deferring inadequate. The court perceived "at least four separate theories
supporting deferral" under the Spielberg/Olin doctrine: collateral estoppel; a
quasi-appellate review concept; the notion of deference to the determinative contract
interpretation; and, finally, the "theory that the parties have waived the statutory
rights that the Board is empowered to enforce and instead rely on a different body of
contract law."26 The court stated that it was unable to
discern the reasons for the Board's deferral to the arbitration award. It therefore
remanded the case for the Board to clarify its reasoning for deferral.
On remand, however, the Board reversed itself, found that
Darr's arbitral award was repugnant, and decided not to defer.27
Consequently, despite the urging from the D.C. Circuit,28 the
Board did not make a full response to the broader deferral questions posed by the court's Darr
From the bench and in scholarly articles, Chief Judge
Edwards of the D.C. Circuit has clearly expressed his preference for a waiver theory of
deferral. The theory is, in his words, "a possible way out of everlasting confusion
at the NLRB."29 In his view, the Act permits a union
bargaining representative to waive individual statutory rights in a collective-bargaining
agreement as long as it does not breach the duty of fair representation.30
He reasons that when parties negotiate a contract with provisions for arbitration,
"they have waived many of their statutory rights under the NLRA" and their
"agreement, in essence, supplants the statute as the source of many employee rights
in the context of collective bargaining."
With limited exception, the waiver theory would seem to lop
the "repugnancy" branch off the Spielberg tree. Under that theory, it
would seem that, as long as it appears that the parties have agreed to substitute their
dispute resolution system for the Board's on a particular employment issue, it would not
matter if the resultant award contradicts statutory law. Of course, I must withhold my
specific view on an open issue that may someday come before the Board.
Should the Board directly address this waiver theory, it
will likely have to consider the kind of waiver language that would suffice to justify
deferral. Moreover, that consideration will have to take into account the Supreme Court's
holding in the 1998 Wright decision that any waiver in a collectively-bargained
arbitration provision of employees' rights to pursue statutory claims of employment
discrimination in a judicial forum must be "clear and unmistakable."31
Turning from theory to practice, I note that one criticism
of the revised deferral doctrine was that it would result in excessive and automatic
deferral of unfair labor practice issues.32 It is hard to say
from a legal standpoint what number or percentage of deferrals would be
"excessive." If the deferral theory is valid and the individual deferral
decisions properly apply the theory, then the implications to be drawn from the number of
cases deferred seem more practical than legal.
As a practical matter, from the Board's side, more
deferrals to private dispute resolution facilitate case handling and conserve resources.
According to preliminary figures provided by the General Counsel's Division of Operations
Management, over the last two fiscal years approximately 2600 unfair labor practice cases
have been deferred to the parties' grievance/arbitration process under Collyer, or
about 1300 cases per year. It would be interesting to hear from the arbitration side of
the fence whether there is any perception that the revised deferral doctrines have
overburdened contractual grievance arbitration systems.
Of course, the vast majority of deferral decisions are
actually made by the General Counsel through the Regional Directors, rather than by the
Board itself. The General Counsel's refusal to issue complaint, for deferral or any other
reason, is essentially unreviewable by the Board or courts.33
At least at the Board decisional level, experience under
the revised deferral doctrine has demonstrated that deferral is not as broad or automatic
as some critics had feared. There have been a number of cases in which the Board has
declined to defer to an arbitration award or to the arbitral process. My own survey of
Board cases from the past decade revealed 43 decisions with specific comment by the Board
or an individual Board member about a contested deferral issue. Of these, the Board
deferred in 19 cases34 and denied deferral in 23 others.35 In the remaining case,36 the
Board deferred some issues and denied deferral on other issues.
In addition, both before and after the watershed 1984
precedent, there have been several situations in which the Board, as a policy matter, has
consistently declined to defer to grievance arbitration. One such example where the Board
generally will not defer are cases alleging that a party has failed to meet the statutory
obligation to provide information relevant to the collective-bargaining process in
violation of Section 8(a)(5) or 8(b)(3).37
This last policy presents an interesting practical
conundrum. The Board itself has no pre-hearing discovery procedure. The traditional
pattern in private labor arbitration has likewise provided for little or no pre-hearing
discovery. Under well-established Board precedent, however, a party (most often an
employer) must generally provide requested information that is relevant to the processing
of a grievance.38 So, in an unfortunate interplay, it is
entirely conceivable that the Board may defer a substantive unfair labor practice issue
for initial resolution in grievance and arbitration, only to have the contractual
proceeding delayed while the parties come back to the Board to contest in a separate case
the obligation to produce information requested for the grievance.39
Delay may result even if there is no unfair labor practice
charge parallel to a grievance. Late last year, for instance, the Board decided a
difficult information request issue in Metropolitan Edison Company.40
The facts of that case dated back to the December 1992 discharge of an employee for
stealing food from the plant cafeteria. The employee's union representative grieved the
discharge and requested the names of two informants whose information led to surveillance
and observation of the employee's theft. Expressing legitimate concerns about
confidentiality and plant security, the employer refused to provide the names. The union
then filed an unfair labor practice charge.
Ultimately, after balancing the competing interests of the
employer's concern for confidentiality against the union's need for information, the Board
decided that the company had unlawfully failed to bargain about how to accommodate the
union's request. The Board did not require the Company to actually turn over the
informants' names. Rather, consistent with prior Board decisions involving union requests
for confidential information, the Board directed the company to sit down and bargain with
the union to see if there was an alternative way to satisfy the union's need.41
In the meantime, of course, years had passed. The high rate
of Board Member turnover and vacancies during that period, as well as the Agency's budget
problems, were undoubtedly a significant cause of the delay in issuance of the Board's
decision. Fortunately, the parties had long since settled the grievance. Had they not done
so, the only options were for the union to proceed to arbitration without the requested
information or for the parties to wait until the Board ruled.
This case history and the potential for adverse impact on
arbitral proceedings illustrates one of the many reasons why the five-Member Board must
reduce delay in issuing decisions in cases. During my present term as Chairman, my
colleagues and I have dedicated ourselves to this effort. Although the Members are often
at polar opposites in terms of their legal philosophy or interpretation of the Act, it is
a "friendly polarization" which has not prevented us from working together in a
collegial way to reduce the backlog of cases.
Our primary success so far has been in reducing the number
of the very oldest unfair labor practice and election cases. These were cases which, like Metropolitan
Edison and the Mississippi Power case I mentioned earlier, had been pending on
appeal in Washington for several years or more when I returned as Chairman in December
1998. Again, there are certainly a variety of internal and external reasons why these
cases got so old, but chief among them was clearly the high rate of Board Member turnover
and vacancies. Since March of last year, however, during a period of relative stability on
the Board, we have issued over 90 percent of the oldest cases that we had targeted.
But, our goal is to also get out the newer cases faster,
and to reduce the overall number of pending cases. To date, we have done very well in this
regard with respect to pending election cases. We have reduced the total number of such
cases before the Board by more than half. And we hope to make good progress on the unfair
labor practice cases as well by the end of the fiscal year.
Nevertheless, even with reduced Board delay, the statutory
scheme may inevitably lead to more delay in resolving a pre-arbitral information dispute
than the parties might anticipate at the time the unfair labor practice charge is filed.42 Fortunately, most of these information disputes get worked
out by the parties without any involvement by the Board.
Finally, as you all know, the hot topic of the last decade
has been mandatory alternative dispute resolution in the non-union workforce. The EEOC,
which can act on its own initiative in this regard, has expressly opposed the notion that
individuals may be forced to agree to mandatory arbitration of their statutory rights as a
condition of employment.43 The Board has remained on the
sidelines, as it must do until a case is properly brought to it through the filing and
litigation of an unfair labor practice charge.
It seemed that an opportunity to rule would arise after
former General Counsel Feinstein issued complaints in four cases in 1994.44
In Bentley's Luggage, for instance, the complaint alleged that the employer
violated Section 8(a)(4) of the Act by firing an employee who refused to sign an agreement
requiring binding third party arbitration of any legal action regarding employment or
termination of employment. Bentley's and the other cases settled, however, and any
unfair labor practices issues arising from mandatory arbitration in the non-union setting
remain open. I must therefore refrain from any specific comment about these issues.
So while the Board's deferral doctrine is still quite
alive, there remain many deferral issues, both anticipated and unanticipated, that the
Board will have to address in the future. A few of these may arise during the remainder of
my time as Chairman, but most will of course come later. If and when the issues do arise,
it is my hope and expectation that the Board will address those issues, not only carefully
but expeditiously, ever mindful of the important role that private dispute resolution
plays in effectuating our Federal labor policy.
As I suggested earlier, a key element in the Board's
ability to act expeditiously will depend on solving the problem of high Board Member
turnover and vacancies. This is a topic I will be addressing in more detail in a
forthcoming article to be published in the Labor Lawyer. As I discuss more fully in that
article, a number of reasons have been suggested for this problem. Some cite the
polarization of views and lack of consensus and cooperation in the labor-management
community. Others cite the absence of any provision in the statute allowing Board Members
to continue serving beyond their terms until a replacement is nominated and confirmed.
Such provisions are included in statutes covering various other agencies.
But whatever the reason, it is clear that constant turnover
and extended vacancies have a severe impact on Board productivity. If there is one thing
that would help the Board more than any other to permanently reduce the backlog of
cases--and to tackle the tough issues that everyone wants to be decided in a timely
manner--it would be for the labor-management community to work together to eliminate this
problem; to make sure that the Board at all times is fully staffed with 5 Members for full
5-year terms. If that could be accomplished, history indicates that the rest should take
care of itself; that the 5-Member Board will be able to harness its resources and
expertise to decide the cases in a timely fashion--and hopefully with a little wisdom as
# # #
*Chairman, National Labor Relations Board, Washington, D.C.
Chairman Truesdale wishes to acknowledge the assistance of James R. Murphy, assistant
deputy chief counsel on his staff, in preparing his remarks.
1 Tennyson, "The Marriage of Geraint"
(l. 355), The Idylls of the King, 1859-1885.
2 Shakespeare, Cymbeline, 4.3.46 (1609).
3 328 NLRB No. 146 (July 26, 1999).
4 Address by NLRB Member John Truesdale Before
New York University's 31st National Conference on Labor. BNA Daily Lab. Rep. No. 116:E-1
5 Spielberg Manufacturing Company, 112
NLRB 1080 (1955).
6 Collyer Insulated Wire, 192 NLRB 837 (1971).
7 The Board will also hold an unfair labor
practice case in abeyance where the parties have already voluntarily initiated the
grievance arbitration process. See Dubo Manufacturing Corp., 142 NLRB 431 (1963).
8 29 U.S.C. § 160(a).
9 See 29 U.S.C. § 173(d). See also the
Steelworkers Trilogy: United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960);
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578 (196); United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960).
10 For pre-arbitral deferral, see National
Radio Co., 198 NLRB 527 (1972), overruled by General American Transportation, 228
NLRB 808 (1977). For post-arbitral deferral, see Electronic Reproduction Service
Corp., 213 NLRB 578 (1974), overruled by Suburban Motor Freight, 247 NLRB 146
11 268 NLRB 573, overruling Suburban
12 268 NLRB 557, overruling General
13 Kansas City Star Co., 236 NLRB 866 (1978);
and Atlantic Steel Co. 245 NLRB 814 (1979).
14 268 NLRB at 574.
17 268 NLRB at 558.
18 Id. at 559.
19 Alpha Beta Company, 273 NLRB 1546 (1985), enforced
sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987).
20 See Mobil Oil Exploration &
Producing, U.S., 325 NLRB 176, 179 fn.14 and 180-181 (concurring opinion)(1997), and
Tri-Pak Machinery, Inc., 325 NLRB 671, 673 fn. 4 (1998).
21 See, e.g., Berendt and
Continuing Controversy Over Labor Board Deferral to Arbitration--An Alternative Approach, 24
Stetson L. Rev. 175 (1994); Craver, Labor Arbitration as a Continuation of the
Collective Bargaining Process, 66 Chi.-Kent L. Rev. 571, 6-5-629 (1991);
Arbitration and Private Settlement in NLRB Deferral Policy, 44 U. Miami L. Rev. 341
(1989); Lynch, Deferral, Waiver, and Arbitration Under the NLRA: From Status to
Contract and Back Again, 44 U. Miami L. Rev. 237 (1989); Edwards, Deferral to
Arbitration and Waiver of the Duty to Bargain: A Possible Way Out of Everlasting Confusion
at the NLRB, 46 Ohio St. L.J. 23 (1985).
22 Taylor v. NLRB, 786 F.2d 1516 (11th Cir.
1986)(holding that Olin relinquished too much of the Board's responsibility under the Act
and did not sufficiently protect employees' statutory rights to the extent it presumes,
until proven otherwise, that the arbitration proceeding considered and decided the unfair
labor practice issue).
23 See, e.g., Bakery, Confectionery and
Tobacco Workers v. NLRB, 730 F.2d 812, 815-816 (D.C. Cir. 1984); Hammontree v. NLRB, 925
F.2d 1486 (1991)(en banc); NLRB v. Aces Mechanical Corp., 837 F.2d 570 (2d Cir. 1988);
Nevins v. NLRB , 796 F.2d 14, 19 n. 1 (2d Cir. 1986); NLRB v. Yellow Freight Systems, 930
F.2d 316, 321 (3d Cir. 1991); Equitable Gas Co. v. NLRB, 966 F.2d 861 (4th Cir. 1992);
NLRB v. Ryder/P.I.E. Nationwide, 810 F.2d 502, 506 (5th Cir. 1987); Grand Rapids Die
Casting v. NLRB , 831 F.2d 112, 115-116 (6th Cir. 1987); Doerfer Engineering v. NLRB, 79
F.3d 101 (8th Cir. 1996); NLRB v. Roswil, Inc., 55 F.3d 382 (8th Cir. 1995); Garcia v.
NLRB, 785 F.2d 807, 809-810; Mahon v. NLRB, 808 F.2d 1342, 1345 (9th Cir. 1987); NLRB v.
United States Postal Service, 906 F.2d 482, 488-490 (1990); Harberson v. NLRB, 810 F.2d
977, 984 (10th Cir. 1987).
24 Plumbers and Pipefitters Local Union No. 520
v. NLRB, 955 F.2d 744 (1991); Hammontree v. NLRB, supra; Darr v. NLRB, 801 F.2d
25 Cone Mills Corp., 273 NLRB 1515 (1985).
26 Darr, supra at 1408.
27 Cone Mills Corp., 298 NLRB 661 (1990).
28 Plumbers and Pipefitters Local Union No. 520,
supra at 755-756. See also Utility Workers Union of America, Local 246,
AFL-CIO v. NLRB, 39 F.3d 1210 (1994).
29 Edwards, supra; Plumbers and
Pipefitters Local Union No. 520, supra at 751-752, and 754-755.
30 Edwards, supra at 40 fn. 39.
31 Wright v. Universal Maritime Service Corp.,
119 S. Ct. 391, 396 (citing Metropolitan Edison v. NLRB, 460 U.S. 693 (1983)).
32 See Olin, 268 NLRB at 581 (dissenting
33 The General Counsel does not regularly
maintain detailed statistics on deferral decisions. An empirical study of casehandling
activity in two of the Board's regional offices indicated a substantial jump in the
percentage of deferrals in the immediate wake of Olin's issuance. See Greenfield, The
NLRB's Deferral to Arbitration Before and After Olin: An Empirical Analysis, 42
Industrial and Labor Relations L. Rev. 34 (1988). The jump is not surprising and, as I
have suggested, not undesirable on its face. The author of the study contended that the
statistics prove substantive fault in the Regional Offices' analysis of arbitration
awards. On the basis of such a limited study, I am unwilling to draw any such broad
34 Tri-Pak Machinery, Inc., 325 NLRB 671 (1998);
Mobil Oil Exploration & Producing, 325 NLRB 176 (1997); McDonnell Douglas Corp., 324
NLRB 1202 (1997); Zurn Nepco, 316 NLRB 811 (1995); Derr & Gruenewald Construction, 315
NLRB 266 (1994); Public Service Company of Oklahoma, 319 NLRB 984 (1995); Southern
California Edison Co., 310 NLRB 1229 (1993); Textron, Inc., 310 NLRB 1209 (1993); August
A. Busch & Co., 309 NLRB 714 (1992); Bethenergy Mines, Inc., 308 NLRB 1242 (1992);
Hoover Co., 307 NLRB 524 (1992); United Parcel Service of Ohio, 305 NLRB 433 (1991); Motor
Convoy, 303 NLRB 135 (1991); Bath Iron Works Corp., 302 NLRB 898 (1991); 15th Avenue Iron
Works, Inc., 301 NLRB 878 (1991); Catalytic, Inc., 301 NLRB 380 (1991); Teledyne
Industries, Inc., 300 NLRB 780 (1990); United States Postal Service, 300 NLRB 196 (1990);
Inland Container Corp., 298 NLRB 715 (1990).
35 Avery Dennison, 330 NLRB No 56 (1999);
Nationsway Transport Service, 327 NLRB No. 184 (1999); Hallmor, Inc., 327 NLRB No. 61
(1998); United States Postal Service, 324 NLRB 794 (1997); St. Mary's Medical Center, 322
NLRB 954 (1997); Roswill, Inc., 314 NLRB 9 (1994); Cirker's Moving & Storage Co., 313
NLRB 1318 (1994); R.T. Jones Lumber Co., 313 NLRB 726 (1994); McDonnell Douglas Corp., 312
NLRB 373 (1993); Advance Transportation Co., 310 NLRB 920 (1993); Everlock Fastening
Systems, 308 NLRB 1018 (1992); Stevens & Associates Construction Co., 307 NLRB 1403
(1992); Columbian Chemicals Co., 307 NLRB 592 (1992); Sillcocks/Miller Co., 306 NLRB 607
(1992); ABF Freight System, 304 NLRB 585 (1991); Equitable Gas Company, 303 NLRB 925, 927
(1991); United States Postal Service, 302 NLRB 918 (1991) Wabeek Country Club, 301 NLRB
694 (1991); Big Track Coal Co., 300 NLRB 951 (1990); Haddon Craftsmen, Inc., 300 NLRB 789
(1990); United Cable Television Corporation, 299 NLRB 138 (1990); Barton Brands, 298 NLRB
976 (1990); Cone Mills Corp., 298 NLRB 661 (1990).
36 Clarkson Industries, 312 NLRB 349 (1993).
37 E.g., United States Postal Service,
302 NLRB 918 (1991); Worcester Polytechnic Institute, 213 NLRB 306, 309 (1974). The Board
will also not defer on questions involving statutory questions of representation,
accretion, or appropriate unit. E.g., St. Mary's Medical Center, supra; Marion
Power Shovel, 230 NLRB 576 (1997). It will also not defer contractual issues that are
related to nondeferrable statutory questions, such as the lawfulness of an employer's
withdrawal of recognition from the union. E.g., Avery Dennison, supra; Sheet Metal
Workers Local 17 (George Koch Sons), 199 NLRB 166, 168 (1972). It will not defer Section
8(a)(4) allegations of discharge or discrimination against an employee who seeks access to
the Board. E.g., Equitable Gas Company, 303 NLRB 925, 927 (1991), enforced in
relevant part, 966 F.2d 861 (4th Cir. 1992); Filmation Associates, Inc., 227 NLRB 1721
(1977). And it will not defer in circumstances where the union representative's interests
are at odds with the grievant's interests. E.g., Regional Import & Export
Trucking, 306 NLRB 740, 741 (1992); Kansas Meat Packers, 198 NLRB 543 (1972).
38 See, e.g., NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
39 See Furlong, Fear and Loathing in
Labor Arbitration: How Can There Possibly Be a Full and Fair Hearing Unless the Arbitrator
Can Subpoena Evidence?, 20 Willamette L. Rev. 535, 536-537 (1984).
40 330 NLRB No. 21.
41 Id. at slip op. 3-4.
42 See Cooper, Discovery in Labor
Arbitration, 72 Minn. L. Rev. 1281, 1294 (1988)(noting that that the Agency's internal
procedures usually require an investigation by the Regional office and a hearing before an
administrative law judge before the case is decided by the five-Member Board, and the
Board's order may be appealed to the courts of appeals).
43 EEOC Policy Statement on Alternative Dispute
Resolution, No. 915.002, Daily Lab. R. No. 137:E-13 (1995).
44 Bentley's Luggage, Case 12-CA-16658; Bingham
Toyota, Case 31-CA-13604; Great Western Bank, Case 12-CA-16886; and Raytheon, E-Systems
Greenville Division, Case 16-CA-17970. For a discussion of the General Counsel's theory of
violation in Bentley's Luggage, see 24 Advice Memorandum Rep. 212 (Aug. 21, 1995).