“[W]e will not require [that the] evidence that the unfair labor charge was presented and considered be in written form_”
How later courts described this case
- “[W]e will not require [that the] evidence that the unfair labor charge was presented and considered be in written form_”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
Because I believe that the majority unjustifiably restricts the use of arbitration, I respectfully dissent.
As the majority observes, the question of deferral by the National Labor Relations Board to arbitration awards has created a split in the circuit courts. On the one hand, the Third, Ninth and District of Columbia Circuits have shown a decided reluctance to compel deferral. See NLRB v. General Warehouse Corp., 643 F.2d 965 (3d Cir. 1981); Stephenson v. NLRB, 550 F.2d 535 (9th Cir.1977); Banyard v. NLRB, 505 F.2d 342 (D.C.Cir.1974). On the other side, the Fourth Circuit has taken a much more expansive view of the res judicata effects of arbitration. See NLRB v. Motor Convoy, Inc., 673 F.2d 734 (4th Cir.1982).
In Motor Convoy, supra, the collective bargaining agreement that constituted the basis for arbitration explicitly prohibited the company from discharging workers for union activities. The court accordingly held that the statutory unfair labor practice issue and the contractual discharge issue were identical: “Resolution of one is necessarily a resolution of the other.” Id. at 736 . Similarly, the contract in the instant case provided that:
There shall be no discrimination ... in regard to ... discharges, or other conditions of employment as set up in this Agreement on account of ... union activity ....
In order for the arbitrator to conclude that the company had “just contractual cause” to discharge Vivian Knutson, he was required to consider whether any “unjust” cause — including union activity — in fact prompted the discharge.
The majority imposes a rule that directly contradicts the Supreme Court’s admonition regarding arbitration of labor disputes. It holds that “any doubts regarding the propriety of deferral will be resolved against the party urging deferral,” whereas in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 , 80 S.Ct. 1347, 1352-1353 , 4 L.Ed.2d 1409 (1960) — the second case in the landmark Steelworkers Trilogy — the Supreme Court stated:
An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage, [emphasis supplied]
The Supreme Court’s willingness to establish a clear presumption in favor of arbitration reflects the sound purpose of ensuring the availability and finality of that dispute resolution device to the participants in the collective bargaining process. In the final Steelworkers Trilogy case, the Supreme Court reiterated its intention to preserve the finality of arbitration decisions. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960). Citing that case in his dissent from the Third Circuit’s holding in General Warehouse Corp., supra, Judge Aldisert observed that “the Supreme Court has ordered the federal judiciary and the federal administrative agencies to avoid nit-picking arbitral opinions, thereby diluting the power of arbitrators and discarding the finality due consensual arbitration.” Id. at 965 (Aldisert, J., dissenting).
Moreover, the majority’s rule encourages litigants like Knutson to withhold their unfair labor practice claims from arbitration proceedings and thereby preserve a “second bite” before the Board, should the arbitrator’s decision prove unsatisfactory. Arbitration thus becomes “nothing more than a costly extra step in the march to federal court rather than the cost efficient and rapid resolution of disputes it is designed to be.” Motor Convoy, supra, at 736-37 . It is worth noting that in the instant case, Knutson did not file her unfair labor practice charges until the very day of the adverse arbitration decision.
*815 In direct opposition to the majority, I would adopt the rule that where, as here, unfair labor practice charges and a wrongful discharge challenge arise from the same set of occurrences, the Board should presume that the arbitrator considered both sets of issues in reaching his ultimate decision. Provided the remaining Spielberg criteria are met, the Board should then defer to the arbitrator’s decision. Such a rule would further the national policy of obtaining the swift and final resolution of labor disputes.