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NATIONAL ACADEMY OF ARBITRATORS
53RD ANNUAL MEETING LUNCHEON ADDRESS

NLRB DEFERRAL TO ARBITRATION: STILL ALIVE AND KICKING

Delivered by:

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 1996.

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 still there.

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 dispute resolution.9

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 resolution systems.

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 settlement.

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 rights.

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 Darr, a 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 the award.25

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 opinion.

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 well.

# # #


*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 (1978).

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 (1980).

11 268 NLRB 573, overruling Suburban Motor Freight.

12 268 NLRB 557, overruling General American Transportation.

13 Kansas City Star Co., 236 NLRB 866 (1978); and Atlantic Steel Co. 245 NLRB 814 (1979).

14 268 NLRB at 574.

15 Id.

16 Id.

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 Youngerman, The 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); Northrup, Distinguishing 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 1404 (1986).

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 opinion).

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 conclusion.

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).

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