[B]efore deferral can be held proper ... the arbitral tribunal must have clearly decided the unfair labor practice issue which the Board is later urged to give deference.... ”
How later courts described this case
- [B]efore deferral can be held proper ... the arbitral tribunal must have clearly decided the unfair labor practice issue which the Board is later urged to give deference.... ”
- “case law is settled . . . that the Board has considerable discretion to accept an 23 arbitrator's award and decline to exercise authority over an alleged unfair labor 24 practice.”
- broader criteria described as "illogical” and an unjustified extension of deferral policy
Written by the judges who cited it.
The opinion
KUNZIG, Judge, *
dissenting:
I respectfully dissent from the conclusion of the majority. Despite oral argument by Government counsel which was of little or no assistance in this important matter, I am persuaded that the decision here should be in favor of the National Labor Relations Board (NLRB).
The majority places its reliance on Ban-yard v. NLRB, 164 U.S.App.D.C. 235 , 505 F.2d 342 (1974), and, in fact, adopts this decision of the District of Columbia Circuit. I would not so extend the decision of the *542 NLRB in Spielberg Manufacturing Co., 112 NLRB 1080 (1955).
In 1955, Spielberg came upon the scene and approved deference to arbitration if: (1) The proceedings appear to be fair and regular; (2) all parties had consented to be bound by the arbitrator’s decision; and (3) the award was not repugnant to the purposes and policies of the Act. In the instant matter it is conceded by the majority that the Spielberg requirements have been met. In addition, the arbitration panel decided in favor of plaintiff, thus emphasizing that the procedures were fair and regular. (It should be noted that the employer has not objected to the arbitration award.) Thus it is not difficult to hold that here the arbitration board by clear implication passed on the question of whether there was or was not an unfair labor practice committed.
There is no need to move into the area of Banyard. To put more requirements on top of Spielberg may well make effective use of the arbitration process extremely difficult. In my opinion, the court in Banyard could easily have reversed the grievance committee decision by an application of Spielberg’s requirement number three. There the arbitration decision was against plaintiff and, it appears, repugnant to the purposes of the Act. This makes Banyard clearly distinguishable from the instant case. The criteria of Spielberg are sufficient to prevent undue deference by the Board to an arbitrator’s decision.
I am seriously concerned with the damage Banyard can do to the vitally important arbitration process. I would not embrace Banyard’s concepts. There exists too much possibility for game playing with judicial processes. A plaintiff can hold back some of his material issues, carefully preserve an important argument, and then (if he loses in arbitration) claim the panel failed specifically to pass on this point and start all over again.
This “second bite at the apple” trick can seriously cripple effective arbitration and review. In my view, Banyard aids and abets “second bite” game playing, instead of helping to make it impossible.
In the instant case, three tribunals have already decided and reviewed the issues involved. The arbitration panel held Stephenson improperly discharged and stated that he should return to work. An administrative law judge affirmed and this decision was in turn upheld by the NLRB based on the practice established in Spielberg. Now the majority in the Circuit Court would remand for yet another decision.
I am convinced justice has already been served here. I would put more faith in the innate ability of the NLRB, its Boards and law judges to solve this type of problem. The arbitration process is too vital in the effective conduct of labor relations. It should not be weakened nor have its strength diluted. Above all, game playing with judicial processes should at all times be discouraged and prevented. I believe Banyard and the decision of the majority in the instant case will lead inevitably to the opposite result.
In summary, the Spielberg decision establishes sufficient criteria for determining when the NLRB should or should not defer to an arbitration decision. The Banyard decision, on the other hand, by greatly restricting the NLRB’s discretion, fosters judicial game playing' that will only prolong and complicate the orderly settlement of labor disputes.
Therefore I respectfully dissent and would affirm the decision of the NLRB below.
The Honorable Robert L. Kunzig, U. S. Court of Claims, Washington, D. C., sitting by designation.