Amicus Brief — Pioneer Finishing Corp. v. National Labor Relations Board

No. 81-2162

Supreme Court of the Anited States

Octoser Term, 1981

PIONEER FINISHING CORPORATION,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ON PETITION POR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF

COUNCIL ON LABOR LAW EQUALITY

IN SUPPORT OF PETITION FOR CERTIORARI

RicHARD B. BERMAN

Councit On Lapor Law EQua.ity

Suite 400

3 East 44th Street

New York, N. Y. 10017

(212) 490-7718

Counsel for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .... « 1

SUMMARY OF THE ARGUMENT aot athe 4

REASONS FOR GRANTING THE WRIT... . 6

I. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF OTHER

CIRCUITS OVER WHEN THE BOARD

OUGHT TO DEFER TO AN

ARBITRATOR'S AWARD ....++ + 6

A. The Circuits Are Divided

Over Whether The Board

Ought To Defer To Any

Award Which Resolves The

Underlying Unfair Labor

Practice Issue Without

Discussing It As A

Statutory Issue ....+..1!

B. The Circuit Courts Are

Divided Over When The

Board Can Reject An

Arbitrator'’s Award as

"Repugnant To the Act". . . 15

II. THE FIRST CIRCUIT'S

REQUIREMENT THAT THE

ARBITRATOR HAVE SPECIFICALLY

ADDRESSED THE UNFAIR LABOR

PRACTICE ISSUE IS CONTRARY

TO THE ROLE ASSIGNED TO

ARBITRATION BY DECISIONS

OF THIS COURT * * > * . * * * 22

CONCLUSION 7 * . * . 7 > . . . . . * 3 2

ate

TABLE OF AUTHORITIES CITED

CASES

Bay Shipbutiging corps

>. oe . 80) eseeeneeeeee

Bloom v. N.L.R.B.,

. D.C. Cir. 1979) ee

District 1199E, National Union

Of Hospital & Health Care

Employees v. N.L.R.B., 613 F.2d

>. . Le e*eneee7e4ne9#8e#e

Douglas Aircraft Co. v. N.L.R.B.,

385 F.2d 352 (9th Cir. 1979) ...

G & H Products, Inc., 261 N.L.R.B.

No. 47, 110 L.R.R.M. 1036 (1982)

International Harvester Co.

(indtanapolis Works), 130 N.L.R.B.

( ) e*eneeeeeeeeneeeneeeeneeee

uor Salesmen's Union, Local 2

Vv > . > a. >

1981), ce t. denied sub nom.

Liquor Salesmen's Union v. Charmer

fndustiiles “Inc., sBelscWe

oSe y ’ 82) (No. 81-1544)

NLRB v. Motor Convo Inc.,

TOS L.R.R.M. 3201 (ath Cir. 1982) .

NLRB v. Pincus Brothers Inc., 620

i Le e*enee3eeee

Raytheon Co., 140 N.L.R.B. 883 (1963)

Li

Cir.

-ii-

PAGE

21

Roy Robinson, Inc. d/b/a Ro

Robinson Chevrolet, N.L.R.B.

(1 ) ccccccccesccscevecece

Sprerberg Manufacturing Co., 112

Suburban Motor Freight, 247 N.L.R.B.

( ) ccccvccccccsesccecees

United Steelworkers of America v.

Fee baa erecnee & Car Corp., 363

U. >. ) eee e@enseenseeneeeeneee

United Steelworkers of America v.

Warrior & Gulf Navigation Co.,

363 U.s. 574 ( 1960) eceoeeeeeees

MISCELLANEOUS

Comment, Judicial Review and the

Trend Toward More Stringent

NLRB Standards On Arbitral

Deferrals, 129 U. Pa. L.

ss 738 (1981) eeeeeeeeeee

Irving, Arbitration and the National

Labor Relations Board, 35

r > . e*eeeeeeeee

Kaden, Judges and Arbitrators:

servations on the § of

Judicial Review, 60 Colun

L. Rev. 267 CVORGk. odépeese

Loewenberg, An Arbitration Timebomb?,

37 Arb. J. 50 (1982) eeeeee

6 J. Corp. L. 399 (1981) eeeeeetceeee

“-iii-

21

23

23

20

29

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO. 81-2162

PIONEER FINISHING CORPORATION,

PETITIONER,

Vv.

NATIONAL LABOR RELATIONS BOARD,

AND KENNETH PACHECO, et al.,

RESPONDENTS.

On Petition For A Writ Of Certiorari To

The United States Court of Appeals

For The First Circuit

BRIEF AMICUS CURIAE ON BEHALF OF

COUNCIL ON LABOR LAW EQUALITY

IN SUPPORT OF PETITION FOR CERTIORARI

INTEREST OF AMICUS CURIAE*

The Council on Labor Law Equality

("COLLE") is a national association of

*Pursuant to Rule 36.2 of the Rules

of this Court, written consents of the

a Fe

large and small employers formed to

monitor the activities of the National

Labor Relations Board and other

developments relating to the NLRA and to

give support in those cases or on those

issues which affect a broad section of

industry. COLLE was formed in

recognition of the need for a specialized

and continuing business community effort

to provide assistance in the review of

NLRB and court decisions in order to

maintain a balanced approach in the

formation and interpretation of national

labor policy.

Pioneer Finishing Corporation's

Petition for Writ of Certiorari raises

the important question of when the

National Labor Relations Board should

defer to an arbitrator's award in a

matter which has give rise to both a

contractual grievance and an unfair labor

practice charge. Pioneer discharged an

employee for distributing without

permission a misleading leaflet

derogating the Company's safety record.

Wie Ny fen

An arbitrator upheld the discharge and

ruled that the grievant's unauthorized

distribution of the false leaflet and his

attempts to alter the collective bargain

were not “protected activity." The Board

refused to defer to the arbitrator's

award and found the employer in violation

of the Act, and the First Circuit

enforced the Board's order.

The issues of when an award is

repugnant to the Act and whether an

arbitrator must actually address the

statutory issue (rather than simply

dispose of the core statutory issue in

finding facts and resolving the

contractual dispute) are extremely

important to employers. The decision

below represents a serious threat to the

efficacy of the arbitration process, a

process which plays a major role in

national labor policy. Routinely

affording unions “another bite of the

‘apple” if they are disappointed with the

results of bargained-for arbitration will

seriously undermine the benefits to

employees of agreeing to a grievance

arbitration procedure in the first

x

place.

SUMMARY OF THE ARGUMENT

For almost three decades, the Board

has had a policy of deferring to an

arbitration award if (1) the proceedings

were fair and regular; (2) the parties

had agreed to be bound; and (3) the

arbitration award was not clearly

repugnant to the policies of the Act.

Spielberg Manufacturing Co., 112 N.L.R.B.

1080 (1955). In Suburban Motor Freight,

Inc., 247 N.L.R.B. 146 (1980), the Board

also revived a requirement that the

unfair labor practice issue must have

been presented to and considered by the

arbitrator.

In the case at bar, the Board

refused to defer to the arbitrator's

award and went on to find that Pioneer

had violated Sections 8(a)(1) and (3) of

the Act. The United States Court of

Appeals for the First Circuit enforced

the Board's order, upholding the Board's

refusal to defer on the grounds that the

arbitrator had not adequately addressed

the statutory issue and that the

arbitrator's decision was repugnant to

the purpose and policies of the Act.

oie

On the issue of when an

arbitrator's award is “clearly repugnant”

the decision of the First Circuit below

conflicts with the Third Circuit's

decision in NLRB v. Pincus Brothers,

Inc., 620 F.2d 367 (3rd Cir. 1980) and

with the Ninth Circuit's decision in

Douglas Aircraft Co. v. NLRB, 609 F.2d

352 (9th Cir. 1979).’ On the issue

of whether the arbitrator must

specifically address the unfair labor

practice issue, the Court below is in

conflict with the Second Circuit? and

land, indeed, it is inconsistent with

the recent position of the Board in Gé&H

Products, Inc., 261 N.LR.B. No. 47, 110

L. + oM. (1982)

2Liquor Salesmen's Union, Local No. 2

v. NLRB, F. r. )

cert. denied sub nom. Liquor Salesmen's

Union v. Charmer Industries, inc.,

5. May 17, 1982) (No.

81-1544).

the Fourth Circuit.3 purthermore,

the refusal of the Court below to defer

to an arbitrator unless he has specifi-

cally addressed the potential statutory

issue is contrary to national labor

policy as articulated in the decisions of

this Court. This split in authority and

the importance of assuring that the

arbitration process will continue to

serve national labor policy commend this

case to the attention of this Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF OTHER CIRCUITS OVER

WHEN THE BCARD OUGHT TO DEFER TO AN

ARBITRATOR'S AWARD

In Spielberg Manufacturing Company,

112 N.L.R.B. 1080 (1955), the National

Labor Relations Board enunciated a policy

of deferring to an arbitrator's award

3 NRLB v. Motor Conver Inc., F.2d

, ose Ne Me ir. 1982).

where: (1) the proceedings were fair and

regular; (2) the parties had agreed to be

bound by the arbitrator's decision; and

(3) the arbitrator's award is not

“clearly repugnant to the purposes and

policies of the Act.” Id. at 1082. The

Board adopted this deferral policy out of

its belief that "the desirable objective

of encouraging the voluntary settlement

of labor disputes will best be served by

our recognition of the arbitrator's

award.” Id.

A fourth deferral criterion has

developed over the years and has been

variously formulated. In Raytheon Co.,

140 N.L.R.B. 883 (1963), enforcement

denied on other grounds, 326 F.2d 471

(ist Cir. 1964), the Board declined to

defer where the arbitrator had been

precluded from considering the unfair

labor practice issue underlying the

contractual discharge grievance. In

Suburban Motor Freight, 247 N.L.R.B. 146

(1980), the Board announced that it would

not abide by an arbitrator's award unless

the unfair labor practice issue had been

both presented to and considered by the

Jo

eT F

aT : ‘

“at

arbitrator.4 However, in the

subsequent refusal to bargain case of Bay

Shipbuilding Corp., 251 N.L.R.B. 809

(1980), the Board deferred to the

arbitrator's award despite the

arbitrator's silence on the U.L.P. issue.

The award met the three Spielberg

criteria, and all the Board required of

the arbitrator was that he had made

factual findings which also resolved the

U.L.P. question. Id. at 810.5

4 Member Penello vigorously

dissented, arguing that unless unusual

circumstances had prevented the grievant

from raising the discrimination issue

during arbitration, the Board should

accept the arbitrator's award and avoid

"multiple litigation of the same set of

facts." 247 N.L.R.B. at 147.

Sin his concurring opinion, Member

Truesdale defined the critical question

for deferral purposes as “whether there

The Fourth Circuit has recently phrased

this fourth criterion as a requirement

that “the unfair labor practice charges

were resolved." NLRB v. Motor Convoy,

Inc., F.2d _, 109 L.R.R.M. 3201,

3202 (4th Cir. 1982).

In the case at bar, the ALJ felt

that the arbitrator had confined himself

to the contractual question. Since the

arbitrator's award “was not consisteat

with the determination the Board would

make," 247 N.L.R.B. at 1307, the ALJ

concluded that the award failed to meet

the third Spielberg standard (that an

award not be “clearly repugnant" to the

Act). The Board panel affirmed the ALJ

without discussion of this issue. The

Pirst Circuit read the ALJ's decision as

is a parallelism between the contractual

and statutory issues, such that, by

resolving the contractual issue, the

arbitrator implicitly resolved the unfair

labor practice." Id. at 811.

refusing to defer because the arbitrator

had not considered the statutory issues

and because the result he had reached was

not consistent with the Act. The Court

below accepted the Board's refusal to

defer, on the ground that the arbitrator

"did not adequately address the statutory

issue." [A-5]® ‘The Court also

observed that implicit in its finding

that the grievant had engaged in

protected activity is a judgment that the

result reached by the arbitrator was

contrary to the purpose and policies of

the Act. [A-7]

This decision of the First Circuit

conflicts with decisions of several other

Courts of Appeals regarding the necessity

that the arbitrator have addressed the

ULP issues and also regarding the proper

standard for rejecting an award as

Ssuch references indicate pages in

the Appendix to Pioneer's Petition for

Writ of Certiorani.

-10-

“repugnant to the Act”.

A. The Circuits Are Divided Over

Whether The Board Ought To Defer

To Any Award Which Resolves The

Underlying Unfair Labor Practice

Issue Without Discussing It As A

Statutory Issue

Arbitrator Robert A. Browning upheld

Pioneer's discharge of Mr. Pacheco,

ruling that his preparation and

unauthorized circulation of a

deliberately misleading leaflet was

beyond the scope of “protected

activity.” [A-110 to -111] Nevertheless

the Court below rejected the arbitrator's

award “because the arbitrator did not

adequately address the statutory issue."

[A-5]

The belief of the Court below that

in order for an arbitator's award to be

worthy of deference the arbitrator must

have addressed the statutory issue is in

conflict with the position taken by the

Second Circuit in Liquor Salesmen's

-<11<-

Union, Local 2 v. NLRB, 664 F.2d 318 (2d

Cir. 1981), cert. denied sub nom. Liquor

Salesmen's Union v. Charmer Industries,

Inc., 50 U.S.L.W. 3916 (U.S. May 17,

1982) (No. 81-1544). In that case, the

union claimed both in a contractual

grievance and in a U.L.P. charge that the

employer unilaterally changed collection

procedures for salesmen. The company won

at arbitration, but the soard refused to

honor that determination because the

arbitrator had not specifically disposed

of the U.L.P. allegation [§8(1)(5)

refusal to bargain]. The Board found a

violation, but the Second Circuit refused

to enforce the Board's order. The

circuit court held that in deciding the

contractual grievance, the arbitrator had

"in substance" decided the statutory

issue as well. Therefore, said the

court, the Board should have deferred to

the arbitrator's decision.

The Second Circuit recognized that

the arbitrator in Liquor Salesmen's

-12-

7x

had reached his decision on the basis of

contract interpretat on and past practice

but the court also realized that his

determination “was necessarily

dispositive of the statutory issue." 664

F.2d at 325. In language equally

applicable to the case at bar, the court

concluded:

Because both the contractual and

statutory issues rest on the same

factual determinations, the

arbitrator's better position and

expertise as a fact-finder

strengthen the case for deference to

his findings. ... Under these

circumstances, to insist here that

the arbitrator announce that his

resolution of the contractual

dispute is intended as a resolution

of the statutory issue as well is to

impose a purely formalistic

requirement.

Id. (citation omitted)

The Fourth Circuit has also held

that it was unnecessary for an arbitrator

to specifically address the U.L.P.

ate

issue, where resolution of the contract

issue discussed by the arbitrator

necessarily resolved the U.LP. issue.

NLRB v. Motor Convoy, Inc., P.2d Si,

109 L.R.R.M. 3201 (4th Cir. 1982). Motor

Convoy involved an arbitrator's decision

that the employer had had “just cause" to

discharge the grievant. Besides the

usual “just cause” requirement, the labor

agreement also contained a prohibition of

discrimination based upon an employee's

union activities. The Fourth Circuit

concluded that “inherent in [the

arbitrator's finding of just cause] was a

resolution of the question of whether

{the grievant] was fired for an illegal

or illicit cause, such as protected union

activities." Id. at 3203.

Since such guarantees against

discrimination for union activities are

quite common in modern labor

agreements, ’ a vast number of

Toft a sample of 400 contracts. 49%

contained guarantees against discrimina-

tion for union activities or

-14-

collective bargaining agreements will

generate grievance arbitration awards

which will be entitled to deference under

the Fourth Circuit's view but which will

not be accorded deference by the First

Circuit unless the arbitrator happens to

address himself to the statutory issue

which mirrors the contractual one.

B. The Circuit Courts Are Divided

Over When The Board Can Reject

An Arbitrator's Award as

"Repugnant To The Act"

The third deferral criterion

‘nunciated by the Board in Spielberg is

that the arbitrator's decision be "not

clearly repugnant to the purposes and

policies of the act.” 112 N.L.R.B. at

1082. In the case at bar, the ALJ ruled

that the arbitrator's award was repugnant

to the Act "[sJince I conclude that the

membership. 2 Collective Bargaining

Negotiations & Contracts [BNA] 95:5

(1979).

@13=

disposition made by the arbitrator was

not consistent with the determination the

Board would make." [A-55] The court below

agreed that the arbitrator's result was

contrary to the purpose and policies of

the Act. [A-7)®8 this easy equation

of any decision the Board might make

differently’ in a trial de novo with a

decision that is “clearly repugnant to

the purposes and policies of the Act” is

contrary to decisions of several other

Circuit Courts (and contrary to other

decisions by the Board itself).

The decision below is in direct

conflict with the decision of the Third

Circuit in NLRB v. Pincus Brothrs, Inc.-

Maxwell, 620 F.2d 367 (3rd Cir. 1980).

The facts of Pincus Brothers are

strikingly similar to the case

8However, the court based its

decision primarily on its conclusion that

the arbitrator had failed to adequately

address the statutory issue underlying

the grievance. [A-5]

@16-

at bar. The employer discharged an

employee for distributing during working

and nonworking time a leaflet which

intentionally misrepresented the facts

regarding the Company's employment

practices and products. The employee

grieved her disharge, and an arbitrator

ruled she had been discharged for “cause"

and that her conduct had been

unprotected. The Board refused to defer

to the arbitrator's decision and went on

to find that the firing had been an

unfair labor practice.

The Third Circuit denied

enforcement, holding that it was an abuse

of discretion for the Board to refuse to

defer to any award which is arguably not

inconsistent with Board policy. Id. at

374. The Third Circuit concluded that

where an arbitral result is only arguably

correct (and might be decided differently

in a trial de novo), the national policy

in favor of labor arbitration outweighs

the need for uniformity of results or

for correct resolution of every

individual dispute. Id. at 374. As the

court explained:

afJo

Deference by the Board to the

arbitration process, especially when

the award has already been rendered

and it is arguably consistent with

Board policy, will effectuate the

intent of the parties in the

collective bargaining agreement and

avoid the time, expense and

inconvenience of duplicative

proceedings. The parties accepted

the risk that arbitration results

could differ from Board decisions

when they elected to proceed by

arbitration and the Board recognized

the possibilities when it adopted

the policy to defer to an

arbitrator's award.

Id. at 374-75.

In Douglas Aircraft Company v. NLRB,

609 F.2d 352 (9th Cir. 1979), a case

relied on by the Pincus Brothers court,

the Ninth Circuit ruled that it was an

abuse of discretion for the Board to

refuse to defer where one of two readings

of an arbitrator's award would not be

repugnant to the Act. Spielberg calls

for acceptance of an award which is

-18-

"not clearly repugnant." The Court

pointed out a basic semantic fact

overlooked by the ALJ and the court below

in the instant case:

If the reasoning behind an award is

susceptible of two interpretations,

one permissible and one

impermissible, it is simply not true

that the award was "clearly

repugnant" to the Act. Nor can it

be said that such an award was

“palpably wrong."

Id. at 354.

In rejecting the arbitrator's

decision in the case at bar because the

Board would have decided the dispute

differently de novo, the Board and the

court below have thrown the basic

Spielberg doctrine out the window.?

9tndicative of the retreat from

Spielberg is a study of Board deferral

ecisions from 1977-80 which concluded:

"When faced with the choice of either

-19-

Pe

In Spielberg itself, the Board decided to

defer to the arbitrator despite the Trial

Examiner's finding that there had been an

unfair labor practice. The contrary

arbitrator's award was not “clearly

repugnant": “[T]he arbitration award is

not... at odds with the statute. This

does not mean that the Board would

necessarily decide the issue .. . as the

arbitration panel did.” 112 N.L.R.B. at

1082.

The Board itself quite recently has

returned to the spirit of Spieiberg, in a

decision which contradicts the position

which was taken by the ALJ in the case at

bar and endorsed by the Court below. In

deferring to an arbitrator's decision or

reviewing the case on its merits, then,

the NLRB ignored the arbitrator's award

about eighty-two percent of the time."

Comment, Judicial Review and the Trend

Toward More r en andards on

the instant case, the ALJ and court took

"not clearly repugnant" toc mean, in

effect, “is consistent with the decision

the Board would make." But in the recent

case of G & H Products, Inc., 261

N.L.R.B. No. 47, 110 L.R.R.M. 1036

(1982), the Board explained that “[iJn

determining if an arbitrator's award is

clearly repugnant under Spielberg, the

test to be applied is not whether the

Board would have reached the same result,

but whether the award is palpably wrong

as a matter of law.” Id. at 1036, citing

International Harvester Co. (Indianapolis

Works), 138 N.L.R.B. 923, 926 (1962).

The practical effect of following a

result-oriented deferral policy was

previously recognized and rejected by the

Board in Roy Robinson, Inc. d/b/a Roy

Robinson Chevrolet, 228 N.L.R.B. 828

(1977). Im that case, an ALJ had refused

to defer to the arbitration

process '° on the ground;

10 under Collyer Insulated Wire, 192

N.L.R.B. +s A 1) :

@21<

inter alia, that an arbitration

proceeding on the merits of the dispute

"might very well result in a dismissal of

the grievance, while a contrary result

would result under the Act." Id. at 838.

The Board instead chose to defer to

aritration and observed that “if the

Administrative Law Judge's reasoning were

accepted, deferral to arbitration would

be an exercise in futility." Id. at

829.

II. THE FIRST CIRCUIT'S REQUIREMENT THAT

THE ARBITRATOR HAVE SPECIFICALLY

ADDRESSED THE UNFAIR LABOR PRACTICE

ISSUE IS CONTRARY TO THE ROLE

ASSIGNED TO ARBITRATION BY DECISIONS

OF THIS COURT

In the case at bar, the ALJ's

decision that the arbitrator's award was

not entitled to deference was based in .-

part on his conclusion that “the

arbitrator's decision rests upon

principles of arbitral jurisprudence and

articles of the bargaining agreement."

{[A-54) Criticising an arbitrator for

fidelity to the contract from which he

draws his charter manifests a basic

misunderstanding of the everyday

functioning of industrial arbitration and

a departure from this Court's decisions

recognizing the essential role of

arbitration in today's industrial

society.

This Court has long recognized that

federal policy is to promote industrial

stabilization through collective

bargaining and that a “major factor in

achieving industrial peace” has been the

inclusion of arbitration provisions in

collective bargaining agreements. United

Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 578 (1969).

Arbitrators under such collective agree-

ments “are indispensable agencies in a

continuous collective bargaining

process." United Steelworkers of America

v. Enterprise Wheel and Car Corporation,

363 U.S. 593, 596 (1960). However, this

Court has also defined the limits within

which the arbitrator must confine himself

if his decision is to be ultimately

enforceable in federal courts:

-23-

es o —

Nevertheless,an arbitrator is

confined to interpretation and

application of the collective

bargaining agreement; he does not

sit to dispense his own brand of

industrial justice. He may of

course look for guidance from many

sources, yet his award is legitimate

only so long as it draws its essence

Erom the collective bargaining

reement. When the arbitrator's

words manifest an infidelity to this

obligation courts have no choice but

to refuse enforcement of the

award.

Id. at 597. (emphasis added)

Most labor agreements contain arbi-

tration provisions. '! A great many

contracts explicitly prohibit the arbi-

trator from adding to, subtracting

Mahe Bureau of Labor Statistics has

estimated that almost 97% of major

collective bargaining agreements contain

grievance arbitration clauses. U.S.

Bureau of Labor Statistics,

Characteristics of Major Collective

-24-

from or modifying the provisions of the

contract. The ALJ rejected the

arbitrator's decision in the case at bar

because “it rests upon principles of

arbitral jurisprudence and articles of

the bargaining agreement." [A-54] The

First Circuit reached the same

conclusion, finding that the arbitrator

had not adequately addressed the

statutory issue. [A-5] Yet this Court has

indicated that an arbitration award

"based solely upon the arbitrator's view

of the requirements of enacted legisla-

tion" would exceed the scope of an

arbitrator's authority and would not be

enforceable. Enterprise Wheel & Car, 363

U.S. at 597. Under the standard employed

below in the case at bar, few arbitration

decisions sustaining the employer's

position would prevent the losing union

from relitigating the same facts before

the Board. And to dilute the principle

Bergeining Agreements, Bulletin 2095

ngton, D.C.: U.S. Government

Printing Office, January 1980)

-25-

oe ee

of arbitral finality is destructive of

the entire arbitration process as a

cornerstone of industrial relations

peace.

As one commentator has observe, “the

parties have an institutional stake in

finality because the arbitrator is their

creation; he functions by their consent

and at their sufferance, and his powers

and roles can and should be molded by

them to suit their own purposes." Kaden,

Judges and Arbitrators: Observations on

the Scope of Judicial Review, 80

Colum.L.Rev. 267, 275 (1980). Another

observer has noted the factors leading to

the success of arbitration:

‘Parties may devise and control the

procedure, including the selection

and authority of the arbitrator.

The process provides an impartial,

final, binding decision to disputes.

- Arbitration awards are attuned to

"the law of the shop,” rather than

to legal points. The process is

generally quicker, cheaper, and

ar

7

more informal than resolution in the

courts. Arbitration as a final step

encourages parties to resolve

grievances before they reach

abitration.

Loewenberg, An Arbitration Timebomb?, 37

Arb. J. 50, 50 (1982).

The Board based its Spielberg

deferral policy on its belief that “the

desirable objective of encouraging the

voluntary settlement of labor disputes

will best be served by our recognition of

the arbitrator's award." 112 N.L.R.B. at

1082. As Member Penello stated in his

dissent in Suburban Motor Freight, Inc.,

247 N.L.R.B. 146 (1980), Spielberg

commits the Board to a purpose of

encouraging peaceful settlement of

industrial disputes. He cautioned that

"[s]uch a purpose can be fatally

frustrated by permitting voluntary

arbitration agreements to be avoided

through multiple litigation of the same

set of facts." Id. at 147.

The District of Columbia Circuit has

sounded the same theme, stressing that it

is important that disputants continue to

~27<

be attracted to arbitration for

resolution of differences that are

susceptible to arbitration. District

1199E, National Union of Hospital &

Health Care Employees v. NLRB, 613 F.2d

1102, 1109 (D.C.Cir. 1979). The court

indicated that "failure by the Board to

give appropriate consideration to an

arbitrator's construction of a collective

bargaining agreement could ‘thwart the

strong policy favoring private

dispute-solving mechanisms.'" Id.,

quoting Retail Clerks Local 588 v. NLRB,

565 F.2d 769, 777 n.20 (D.C.Cir. 1977).

The same court has also recognized that

if the disputants feel that the Board

will give de novo consideration t.

arbitrable issues, the arbitration of

controversies involving potential unfair

labor practices will be greatly

discouraged. Bloom v. NLRB, 603 F.2d

1015, 1019 (D.C. Cir. 1979).

Former NLRB General Counsel John S.

Irving, Jr. has urged that voluntary

arbitration should be actively

encouraged, rather than discouraged. He

also explained the ripple effect of a

tightened deferral policy:

The Spielberg area is extremely

important and should not be thrown

into doubt by the Board. The

fine-tooth-comb approach to

reviewing arbitration decisions will

do little to encourage private

resolution of disputes. Similarly,

if the Board raises questions

concerning the vitality of

Spielberg, the General Coun: el,

consistent with his perceived

responsibility to put issues to the

Board, will defer to awards less

often and will issue more

complaints. More cases will be

thrown unnecessarily into the

board's machinery and disputants

will be encouraged to use government

processes, rather than agreed-upon

private machinery.

Irving, Arbitration and the National

Labor Relations Board, 35 Arb. J. 5

(1980). The consequences for industrial

relations of such a disincentive to

arbitration are grave. As the Fourth

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Circuit warned, an employee whose

discharge grievance was being arbitrated

would be motivated to save his

discrimination argument for “appeal” to

the NLRB in case the arbitrator rules

against him, and “[a])rbitration would

become 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." NLRB v. Motor Convoy, Inc.,

F.2d _, 109 L.R.R.M. 3201 (4th Cir.

1982). Naturally, if employers begin to

perceive arbitration as a mere

preliminary to the “main event" before

the Board -- rather than as a consensual

procedure to arrive at final, binding

resolutions of disputes -- they will be

tempted to refuse to arbitrate cases with

U.L.P. potential, since they can't "win".

If that ever comes to pass, as Member

Penello has warned:

Individuals aggrieved by suspected

discrimination in their discipline

will then have no alternative but to

take their place in line with the

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burgeoning masses of charging

parties before the Board with claims

of discrimination in discipline or

discharge. These individuals will

wait, and wait and wait for the

protection of rights promised

them.

Surburban Motor Freight, Inc., 247

N.L.R.B. 146, 148. (1980) (Member

Pennello, dissenting). !?

The necessity that the Board give

“hospitable acceptance" !3 to the

arbitration process in order to

effectuate national labor policy, the

harm to the arbitration process

occasioned by “overzealous dissection of

125¢e also 6 J.Corp.L. 399, 411

(1581).

'3 international Harvester Co.

Indianapolis Works), 136 N.L.R.B. 923,

oF “ELE

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opinions by the NLRB" '4 and the

failure of the court below to appreciate

the proper role of the arbitrator

delineated in this Court's decisions all

recommended this case for consideration

by this Court at this time.

CONCLUSION

For the foregoing reasons, we ask

that the writ be granted.

Respectfully submitted,

Richard B. Berman

Council on Labor Law Equality

Suite 400

3 East 44th Street

New York, NY 10017

(212) 490-7718

Counsel for Amicus Curiae

June, 1982

>

14

Douglas Aircraft Co., 609 F.2d

352, t56 (9th Cir. 1979).

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