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

> Court of Appeals for the Third Circuit · June 12, 1980 · 620 F.2d 367

URL: https://www.frixlaw.com/law-library/cases/9466689

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PINCUS BROTHERS, INC.-MAXWELL, Respondent
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 12, 1980
- **Citations:** 620 F.2d 367
- **Precedential status:** Published
- **Opinion:** Concurrence by Garth
- **Judges:** Gibbons, Rosenn, Garth
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466689

## How later opinions describe it (automated extraction)

- noting that the parties “accepted the risk that arbitration results could differ from Board decisions when they elected to proceed by arbitration” and “the Board recognized such possibilities when it adopted the policy to defer to an arbitrator’s award”
- acknowledging national policy in favor of the private resolution of labor disputes through consensual arbitration

## Opinion text

GARTH, Circuit Judge,
concurring.
I agree with Judge Rosenn’s opinion that the National Labor Relations Board’s refusal to defer to the arbitration award in favor of Pincus must be reversed. I also fully agree with his analysis in part III, holding that the arbitral award was not “clearly repugnant” to the purposes and policies of the National Labor Relations Act. I therefore agree with his conclusion that the Board was compelled under its Spielberg doctrine to defer to the arbitrator’s award.
I part company, however, with Judge Ro-senn in his designation of the standard of review to which a Court of Appeals must adhere when it examines the Board’s decision whether or not to defer to an arbitration award under Spielberg. I do not agree that we may only reverse the Board for an abuse of discretion. I believe that the Board’s deference decisions must be reviewed under a standard of legal error.
I.
The federal courts play a more limited role in reviewing the substantive merits of an arbitrator’s award than the National La *378 bor Relations Board. The Supreme Court has decreed that a court must enforce an arbitral award “so long as it draws its essence from the collective bargaining agreement,” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 , 80 S.Ct. 1358, 1361 , 4 L.Ed.2d 1424 (1960). The Court has further held that “so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Id. at 599 , 80 S.Ct. at 1362 . Thus, courts have no discretion in deciding whether or not to enforce the award; they must enforce it if it satisfies the standards set up by the Supreme Court. Accordingly, a Court of Appeals will review a district court decision in such a case under a legal error standard; and not one of abuse of discretion.
The NLRB, however, is not so limited in its function. As the Supreme Court has noted, “the Steelworkers trilogy . dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer’s agreement to arbitrate is in question. . . . The relationship of the Board to the arbitration process is of a quite different order.” NLRB v. Acme Industrial Co., 385 U.S. 432, 436 , 87 S.Ct. 565, 568 , 17 L.Ed.2d 495 (1967). Because the Board alone has original jurisdiction to resolve charges of unfair labor practices under the National Labor Relations Act, 29 U.S.C. § 160 (1976), the Board, unlike the courts, is subject to conflicting pressures when reviewing an arbitrator’s award.
On the one hand, Congress has stated that “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U.S.C. § 173 (d) (1976). The Supreme Court has also emphasized the central role that arbitration plays in our national labor policy. See, e. g., Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 , 94 S.Ct. 629 , 38 L.Ed.2d 583 (1974); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 , 90 S.Ct. 1583 , 26 L.Ed.2d 199 (1970); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 , 82 S.Ct. 571 , 7 L.Ed.2d 593 (1962); United Steelworkers Enterprise Wheel & Car Corp., 363 U.S. 593 , 80 S.Ct. 1359 , 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960); United Steelworkers v. American Manufacturing Co., 363 U.S. 564 , 80 S.Ct. 1343 , 4 L.Ed.2d 1403 (1960). See generally, Freed, Injunctions Against Sympathy Strikes: In Defense of Buffalo Forge, 54 N.Y.U.L.Rev. 289 (1979). These congressional and Supreme Court declarations encourage the Board to accord substantial deference to arbitration awards: “submission to grievance and arbitration proceedings of disputes which might involve unfair labor practices would be substantially discouraged if the disputants thought the Board would give de novo consideration to the issue which the arbitrator might resolve.” Associated Press v. NLRB, 492 F.2d 662 , 667 (D.C. Cir. 1974).
On the other hand, Congress has also provided that “The Board[’s power] to prevent any person from engaging in any unfair labor practice . . . shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” 29 U.S.C. § 160 (a) (1976).
It must be conceded that the inherent tension between these two principles of our national labor policy confers, as an initial matter, discretion on the Board in formulat-, ing a position on deference to arbitration awards. As Judge Feinberg, writing for the Second Circuit, said in NLRB v. Horn & Hardart Co., 439 F.2d 674 (2d Cir. 1971), “it is worth remembering that the Board’s rules on deference, after all, are self-imposed although it has followed healthy hints from the Supreme Court.” Id. at 679 . While there undoubtedly are limits on the Board’s original discretion, I can assume for purposes of this opinion that the Board’s discretion is large. Thus, the Board may be within its power to adopt the approach that it will defer to arbitration decisions whenever it concludes, in the exercise of its *379 discretion, that such deference is not inconsistent with the National Labor Relations Act. And the Board would probably be within its power to declare that, assuming procedural regularity, it will always defer to arbitration awards resolving alleged violations of § 8(a)(5) of the Labor Act, 29 U.S.C. § 158 (a)(5) (1976) (refusals to bargain) and will never defer to awards resolving alleged violations of § 8(a)(3) of the Act, 29 U.S.C. § 158 (a)(3) (1976) (discriminatory discharges). 1
However, once the Board undertakes to resolve the inherent tension noted above between 29 U.S.C. § 160 (a) and 29 U.S.C. § 173 (d), its original discretion in this field is displaced. Once the Board “announce[s] a policy regarding deference to arbitration, [it cannot] blithely ignore it, thereby leading astray litigants who depended on it.” NLRB v. Horn & Hardart Co., 439 F.2d 674, 679 (2d Cir. 1971). 2 Rather, the Board, like all agencies, is bound to adhere to the regulations and decisions that it announces. 3
Concluding that the Board is bound to follow its announced deference policy does not, of course, determine the standard by which the Courts of Appeals are to review the Board’s application of its standards. It is the content of the deference policy that must determine the manner in which application of the policy is reviewed. This is true of all rules of law. For instance, the United States district courts are bound to follow the rule that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” F.R. Evid. 611(b). They are also bound to follow the rule that evidence seized by a State in contravention of the Fourth Amendment is inadmissible. However, review of the application of the first of these rules is governed by the abuse of discretion standard, while review of the application of the second is governed by a legal error standard. This is so because application of the cross-examination rule is regarded as committed to the sound discretion of the district court, while the exclusionary rule is purely a matter of law. Thus, we must refer to the content of the Board’s deference policy to determine the applicable standard of review.
*380 If the Board had adopted the first of the hypothetical deference policies suggested above — that it will defer where it concludes, in the exercise of its discretion, that doing so will not be inconsistent with the National Labor Relations Act — it is perfectly clear that the appropriate standard of review would be an abuse of discretion standard. The policy confers discretion on the Board by its very terms. Since the Board has discretion under this policy, the Board’s decision may be reversed only where the discretion has been abused.
If, however, the Board had adopted the second of the hypothetical deference policies suggested above — that it will always defer in § 8(a)(5) cases and never defer in § 8(a)(3) cases (see, e. g., note 1 supra) — it is equally clear that the appropriate standard of review would be one of legal error. The policy confers no discretion on the Board: the Board must hear and determine some cases and must defer to the arbitral award in others. If the Board refused to hear the § 8(a)(3) complaint of an employee who claimed that he had been discharged for supporting his union, and whose claim had been rejected by an. arbitrator, the Board could not contend that it had the discretion to defer to the arbitrator’s decision. A Court of Appeals would undoubtedly direct the Board to hear and resolve the complaint, because, by adopting the deference policy hypothesized here, the Board would have renounced its discretion in § 8(a)(3) cases; it would have bound itself to hear and determine such a case rather than defer. Thus, the particular content of this deference policy compels the conclusion that the only appropriate standard of review of a deference decision is that of legal error.
Turning to the Board’s actual deference policy, that announced in Spielberg Manufacturing Co., 112 NLRB 1080 (1955), it is again clear that the policy confers no discretion on the Board. It is equally clear that the appropriate standard of review is that of legal error. In Spielberg, the Board set up a three-part test. It announced that it would defer to an arbitrator’s decision where “[1] the proceedings appears to have been fair and regular, [2] all parties had agreed to be bound, and [3] the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act.” Id. at 1082 . The parties here have agreed that the first two elements of this test are satisfied, and thus we are not required to determine the standard of review of such determinations. Nevertheless, it appears that these two elements involve mixed questions of law and fact, and confer no discretion on the Board. Thus, the subsidiary factual components of these determinations would be reviewed under a substantial evidence test, with the ultimate legal conclusion reviewed under a legal error standard. E. g., Joseph Lupowitz Sons, Inc. v. Commissioner, 497 F.2d 862, 865 (3d Cir. 1974); Kaltreider v. Commissioner, 255 F.2d 833, 837 (3d Cir. 1958); Lehmann v. Acheson, 206 F.2d 592, 594 (3d Cir. 1953). See The E. A. Packer, 140 U.S. 360, 364, 11 . S.Ct. 794, 795, 35 L.Ed. 453 (1891). The third element of the test, whether the decision is clearly repugnant to the Labor Act, is, of course, a pure question of law. In making its evaluation, the Board must discern the legal basis of the arbitrator’s decision, determine the relevant labor law, and decide whether the former is clearly repugnant to the latter. This standard, too, confers no discretion on the Board, and, since it is a matter of law that the Board is deciding, the appropriate standard of review must necessarily be that of legal error.
Thus, the argument may be summarized as follows. In light of the inherent tension between the two precepts of labor law embodied in 29 U.S.C. § 160 (a) and 29 U.S.C. § 173 (d), the Board has discretion in formulating a policy on deference to arbitration awards. Once, however, the Board announces its policy, its original discretion has been displaced; the Board is bound to follow the policy it adopts unless and until it explicitly changes that policy. 4 Whether *381 the Board’s application of its deference doctrine should be reviewed by an abuse of discretion standard or a legal error standard depends on the content of the doctrine. If the doctrine confers discretion on the Board, the Board’s application of it may be reversed only for abuse of discretion. The Spielberg doctrine, however, does not confer discretion on the Board. Rather, it requires the Board to determine whether each of the threo parts of the Spielberg test is satisfied, each of which ultimately involves a nondiscretionary question of law. Necessarily, then, the Board’s Spielberg decision must be reviewed under a standard of legal error.
II.
I freely acknowledge that all of the courts that have expressed themselves on the issue have indicated that the Board’s application of the Spielberg doctrine is reviewed under an abuse of discretion standard. I find none of them compelling. Indeed, a review of these cases reveals that they either engage in no analysis at all, relying on their mere ipse dixit, or employ an analysis that stops short of the critical question.
Many cases reflect an abuse of discretion standard only through the unelaborated assertion that the Board’s deference decision will only be reversed for abuse of discretion, or by phrasing the question presented as whether the Board has abused its discretion. See, e. g., International Ass’n of Machinists Local 1309 v. NLRB, 530 F.2d 849 , 850 (9th Cir. 1976) (per curium); Lodges 700, 743, 1746, International Ass’n of Machinists v. NLRB, 525 F.2d 237, 239, 244, 245, 246 (2d Cir. 1975); Associated Press v. NLRB, 492 F.2d 662 , 666, 668 (D.C. Cir. 1974); Ramsey v. NLRB, 327 F.2d 784, 786, 788 (7th Cir.), cert. denied, 377 U.S. 1008 , 84 S.Ct. 1988 , 12 L.Ed.2d 1052 (1964). Those that do engage in an analysis invariably go only part way. They assert, on the one hand, that the Board has discretion in deciding whether to defer to an arbitrator’s award. They also assert, on the other, that Spielberg governs the Board’s exercise of discretion. Of course, I have no quarrel with the analysis to this point, for I employ the same analysis myself. But these cases never reach the critical question of how Spielberg governs this discretion, i. e., they never discuss whether Spielberg leaves substantial discretion in the hands of the Board, such that its application of Spielberg can only be reviewed under an abuse of discretion standard, or, rather, whether Spielberg establishes a fixed deference doctrine, the application of which should be reviewed under a legal error standard.
Typical of these cases is the Tenth Circuit decision in NLRB v. Auburn Rubber Co., 384 F.2d 1 (10th Cir. 1967). The court there merely stated, without more, that:
In our opinion the Board has the discretion to defer to, or to reject, the decision of the arbitrator and, in determining whether that discretion has been properly exercised, the tests announced by Spielberg are pertinent.
384 F.2d at 3 (footnote omitted).
The Ninth Circuit in Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674 (9th Cir. 1976), cert. denied, 431 U.S. 965 , 97 S.Ct. 2921 , 53 L.Ed.2d 1061 (1977), in subscribing to an abuse of discretion standard, nevertheless describes its rationale in terms more suggestive of a standard of legal error. The court stated that:
*382 The Board has established criteria to guide its decision and to this extent self-imposed restraints limit its discretion. In reviewing the Board, we must insure that it adheres to its own standards until they are properly changed by the Board. We will not deny enforcement unless the Board clearly departs from its own standards or its standards are themselves invalid.
545 F.2d at 676 (footnotes omitted). 5
Similarly, the Second Circuit’s opinion in NLRB v. Horn & Hardart Co., 439 F.2d 674 (2d Cir. 1971), which is relied upon by Judge Rosenn in support of an abuse of discretion standard, is not contrary to my analysis in support of a legal error standard. The court there stated:
But it is worth remembering that the Board’s rules on deference, after all, are self-imposed although it has followed healthy hints from the Supreme Court. Nevertheless, so far as we know, in no case has the Court directed the Board to defer to an arbitration award, . so that its discretion in this respect must be regarded as large. We do not suggest that the Board can announce a policy regarding deference to arbitration and then blithely ignore it, thereby leading astray litigants who depended upon it. But it can change its mind or alter its standards for deference in some respects without necessarily engaging in conduct so blameworthy as to justify our calling it abuse of discretion.
439 F.2d at 679 (citation omitted).
This excerpt from Horn & Hardart, despite the reference in the last sentence to “abuse of discretion,” does not, in fact, support the view that Spielberg determinations may only be reviewed under an abuse of discretion standard. The Horn & Hardart analysis is not concerned with reviewing the Board’s application of Spielberg, but rather with the Board’s power to change the Spielberg standard: “[the Board] can alter its standards for deference in some respects without ... our calling it abuse of discretion.” Since the Board has original discretion to select among various deference standards, it unquestionably has discretion to change its mind and thus change its own standard. But that, of course, is not the question that we face. And on the question that is presented — our review of the Board’s application of Spielberg — it is clear that Horn & Hardart provides minimal guidance. Thus Horn & Hardart, like Auburn Rubber and Hawaiian Hauling, simply does not undercut the analysis advanced here in support of a standard of legal error.
III.
Judge Rosenn in his opinion for the Court, at 375 n.18, rejects the view expressed in Judge Gibbons’s dissent that the Board generally has no power to defer to arbitration proceedings. I agree wholeheartedly with Judge Rosenn’s position. I add my own thoughts only to emphasize that, despite Judge Gibbons’s scholarly analysis, I cannot accept his conclusion.
Judge Gibbons, while arguing that the Board generally has no power to defer, does accept, at least at this time, a limited deferral policy in “section 8(a)(5) and section 8(b)(3) cases involving contract interpretation matters in which the interpretation of the contract by the agreed upon method in effect eliminates the predicate for the charge.” (At 399). Overall, though, he makes plain that he has the gravest reservations about the Board’s authority to defer in any case, with the sole exception of jurisdictional disputes among unions, for which there is statutory authority for deferral. See 29 U.S.C. § 160 (k) (1976).
I do not share Judge Gibbons’s reservations about the Board’s power to defer. As I have noted, I believe Board discretion in this area flows inevitably from the tension between two elements of our national labor policy: on the one hand, the centrality of arbitration in maintaining industrial peace, and, on the other, the Board’s continuing *383 authority to resolve unfair labor practice charges regardless of any independent dispute resolution mechanism agreed upon by the parties. Deference to arbitration under the three-prong Spielberg test contributes significantly to the first of these elements, the encouragement of arbitration as a critical factor in labor-management relations. Thus, while much of what Judge Gibbons says is persuasive, I do not believe his position gives sufficient weight to the importance of arbitration, as expressed in the Steelworkers Trilogy and other Supreme Court cases. See at 378, supra.
Further, I believe Judge Gibbons’s position is largely foreclosed by the Supreme Court’s plain approval of the deferral doctrine in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 270-72 , 84 S.Ct. 401, 408-409 , 11 L.Ed.2d 320 (1964). Judge Gibbons properly points out that Carey presented an instance of deferral to arbitration in the jurisdictional dispute context. Carey’s approval of the deferral doctrine, however, was in no way limited to these cases alone. Indeed, the Board’s statement of its discretionary authority to defer, which is quoted with approval by the Court in Carey , comes from a case in which the Board deferred to an arbitration .award involving, in part, a charge of discriminatory treatment in violation of § 8(a)(3). See International Harvester Co., 138 NLRB 923 (1962), enf’d sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert. denied, 377 U.S. 1003 , 84 S.Ct. 1938 , 12 L.Ed.2d 1052 (1964). Judge Gibbons would find these circumstances to present the least defensible case for deferral, yet the Supreme Court, in quoting International Harvester with approval, makes ho suggestion that deferral in that case was inappropriate. 6 And like the Court, the Board as an institution has never denied its own authority to promulgate a deferral doctrine, despite the dissents of two of its members who have employed many of the same arguments made by Judge Gibbons here.
Thus, as I see it, I would sum up as follows: The Board unquestionably has the power to establish rules and legislative policy. One such policy established by the Board is that of deferral to arbitration at any stage. Once established, such a policy operates to require deferral as a matter of law in the particular areas identified by the *384 Board. The Supreme Court, in recognizing the inherent advantage of consensual relationships between labor and management, has never denied, but, rather, has endorsed and encouraged the Board’s power to establish a deferral doctrine. Similarly Congress, which could not have been blind to the Board’s deferral doctrine since its adoption in Spielberg in 1955, has legislated against neither the Board’s power to establish such a policy, nor against the policy itself.
Accordingly, if the Board, in the exercise of its expertise, and pursuant to its legislative mandate, announces a deferral policy, then those over whom the Board exercises authority are entitled to rely upon this policy. Likewise, the courts are entitled to expect that the Board will follow its policy, until such time as, in the Board’s discretion, the policy is either abandoned, revoked or modified. In short, the Board must live by the rules that it establishes. It is in this context that I have urged in this opinion that the Board’s policy, once established and until changed, must be reviewed as a matter of law, and not discretion.
Judge Gibbons, as a result of the position that he takes, does not address the question of the appropriate standard of review. He notes only that a Board decision not to defer should never be reversed by a Court of Appeals (At 399). Due to the differences in our approach, I necessarily disagree with this position.
IV.
I have reviewed here the cases that address the question of the standard of review by which a Spielberg decision should be reviewed in the Courts of Appeals. Since none of these cases undertakes an analysis of the only question that I regard as critical, I am unpersuaded by their declarations that the Board’s application of its Spielberg doctrine can be reversed only for an abuse of discretion. I am convinced that once the Board voluntarily limits the discretion it originally possessed in this field and declares a policy of its own making, we have a duty to hold the Board to the policy it has chosen. And if that policy does not reserve discretionary power to the Board, as Spielberg by its very terms and nature does not, we ought not review applications of the policy as if it did. The Board retains the power to reclaim its original discretion in this field by abandoning Spielberg and setting up a new standard. But the Board has not yet done so. We ought not do what the Board itself has not seen fit to do, i. e., reinstate the Board’s pre-Spielberg discretionary policy, by reviewing its decisions under an abuse of discretion standard.
Thus, I conclude this analysis as I began it: the Board’s deference decisions, stemming as they do from the Board’s self-imposed deferral policy, should be reviewed by the Courts of Appeals under a standard of legal error.
. These hypothetical deference rules are fairly close to the actual position the Board currently takes when it is asked not to review an arbitration award already issued, but to withhold its own proceedings to await the outcome of an arbitration that has not yet been completed. This current position is the result of sharp differences among the views of the Board members and the changing composition of the Board.
Three members, Miller, Kennedy and Brown, in 1971 established the principle in Collyer Insulated Wire, 192 NLRB 837 (1971), that the Board will await an arbitration award where the dispute centers on interpretation of the contract, where there is no evidence of anti-union animus, and where the parties have a long and productive bargaining relationship with tested grievance machinery providing for arbitration. 192 NLRB at 842. The dissenters, Members Jenkins and Fanning, argued that the Board should never defer to uncompleted proceedings.
In 1977, changes in the composition of the Board produced a new approach, announced in General American Transportation Corp., 228 NLRB 808 (1977) and Roy Robinson Chevrolet, 228 NLRB 828 (1977). The two Collyer dissenters adhered to their original view that deferral is never appropriate. Two other members, Pe-nello and Walther, who were appointed to the Board after Collyer, adhered to the original Collyer approach. The fifth member, Murphy, appointed in 1975, staked out an independent, swing position. She wouid hold that the Board should never defer in cases charging interference with individual rights, such as § 8(a)(3) cases, because such rights may not receive adequate protection by a union in arbitration proceedings. Murphy would approve deferral where the dispute is between the employer and the union and where no individual rights are implicated, such as § 8(a)(5) cases, because the union is likely to press such cases vigorously. In light of the 2-2 split among the four remaining members of the Board, Murphy’s vote effectively decides most cases. Thus, the Board’s current position is in practice close to the hypothetical rules set forth in the text above.
. Horn & Hardart is discussed in greater detail in section II, infra.
. See, e. g., Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954); Geiger v. Brown, 136 U.S. App.D.C. 132, 419 F.2d 714 (D.C. Cir. 1969) (per curiam); Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959).
. The Board appears to change its policies on deference with some regularity. See General American Transportation Corp., 228 NLRB 808 (1977); Roy Robinson Chevrolet, 228 NLRB *381 828 (1977); Collyer Insulated Wire, 192 NLRB 837 (1971); note 1 supra. There even has been some suggestions from the Board recently that the Spielberg doctrine may come in for some modification. See Servair, Inc., 236 NLRB 1278 , 1278 n. 1 (1978) (“Accordingly, we find it unnecessary to determine, in these circumstances, whether our decision in Spielberg Manufacturing Company, 112 NLRB 1080 (1955), is in any way affected by our recent decision in General American Transportation Corporation, 228 NLRB 808 (1977)”), enforcement granted in part and denied in part, Ser-vair, Inc. v. NLRB, 102 LRRM 2705 (9th Cir. 1979), reh. granted, No. 78-2791 (9th Cir. Nov. 19, 1979). But there is no question that the Board found the instant case governed wholly by the Spielberg doctrine; the Board’s deference decision explicitly cites Spielberg and quotes its three-part standard without any suggestion that it is no longer applicable. Pincus Brothers, Inc., 99 LRRM 1099, 1100 (1978).
. Similar analyses are found in Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979); Servair, Inc. v. NLRB, 102 LRRM 2705 (9th Cir. 1979), reh. granted, No. 78-2791 (9th Cir. 1979).
. There are other suggestions in the opinion that the Court was not limiting its approval of the Board’s deferral policy to the statutorily authorized jurisdictional dispute context. The Court quoted with approval the Board’s opinion in Raley's Inc., 143 NLRB 256 (1963), in which the Board extended its deferral policy from the unfair labor practice context to the representation dispute context. In the portion of Raley’s quoted by the Court, the Board wrote:
In the recently decided International Harvester Company case, a majority of the Board indicated that it would give “hospitable acceptance to the arbitral process” in order “to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining.” Relying on various statutory provisions, particularly Section 203(d) of the Labor Management Relations Act, 1947, and on decisions of the United States Supreme Court which recognize arbitration as “an instrument of national labor policy for composing contractual differences,” the Board concluded that it would withhold its undoubted authority to adjudicate unfair labor practice charges and give effect to arbitration awards involving the same subject matter “unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.” While it is true that International Harvester, as well as other cases in which the Board honored arbitration awards, involved unfair labor practice proceedings, we believe that the same considerations which moved the Board to honor arbitration awards in unfair labor practice cases are equally persuasive to a similar acceptance of the arbitral process in a representation proceeding such as the instant one. Thus, where, as here, a question of contract interpretation is in issue, and the parties thereto have set up in their agreement arbitration machinery for the settlement of disputes arising under the contract, and an award has already been rendered which meets Board requirements applicable to arbitration awards, we think that it would further the underlying objectives of the Act to promote industrial peace and stability to give effect thereto.
143 NLRB at 258-59 (footnotes omitted), quoted in Carey v. Westinghouse Electric Corp., 375 U.S. 261 , 270 n.7, 84 S.Ct. 401 , 408 n.7, 11 L.Ed.2d 320 (1964).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466689. Public record. Not legal advice.