Arbitration Deferral Policy Under Collyer -- Revised Guidelines

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NATIONAL

LABOR

RELATIONS

B 0 ARD

OFFICE OF TllE GENERAL COUNSEL

Washington, D. G.

May 10, 1973

ARBITRATION DEFERRAL POLICY UNDER

COLLYER--REVISED GUIDELINES

Since first announcing in Collyer Insulated Wire, 192 NLRB

No. 150. its policy of deferring to the grievance and arbitration pro-

cedures of an existing bargaining agreement, the Board has issued a

number of decisions in which it has substantially extended and refined

this policy.

As I said in the introduction to the guidelines for regional

offices contained in the memorandum entitled "Arbitration Deferral Policy

under Collyer" which I issued on February 28, 1972, I welcome a policy

which encourages the expeditious and private settlement of industrial

disputes through deferral on the part of the Board to the arbitral pro-

cess.

For this reason I believe that the public interest will be well

served by the extension and development of the Collyer policy which is

embodied in the decisions which the Board has issued.

We do not yet know the extent to which the Collyer policy

will be successful in encouraging a gain in the prompt, fair and effective

settlement of industrial disputes through private contract procedures.

However, I feel that I must do all I can to insure that success by working

for the uniform and expeditious application of this policy at the regional

office level.

The Collyer policy has now been expanded by the Board to

apply to charges alleging violations of Sections 8(a)(l), (2) and (3) and

8(b)(l)(A) and (B) and 8(b)(2) and (3), in addition to Section 8(a)(S).

For this reason and because there are many cases, rather than one, from

which the whole of the policy must be drawn, I feel it time that the

February 28, 1972,guidelines should be revised and reissued to reflect

the Board's amplified views on the subject.

Consequently, I am issuing

l -

GC 73-31

(a)(l), (2) and (3) and

8(b)(l)(A) and (B) and 8(b)(2) and (3), in addition to Section 8(a)(S).

For this reason and because there are many cases, rather than one, from

which the whole of the policy must be drawn, I feel it time that the

February 28, 1972,guidelines should be revised and reissued to reflect

the Board's amplified views on the subject.

Consequently, I am issuing

l -

GC 73-31

the attached mem

ich supersedes my earlie

facilitate comparison with the Collyer guidelines issued February 28,

thia revised.memorandum follows a format similar to that of its pre-

decessor.

197~,

Where significant changes

the earlier guidelines were re-

quired by recent expressions of Board policy and by our experience in the

administrative application of the Collyer policy, the reasons for the

changes are discussed.

Some of these changes of particular note are:

Broadening the application of the Board's Collyer

doctrine to all cases in which (a) the issues are

susceptible to resolution under the contract grie-

vance-arbitration procedures, and (b) there is no

reason to believe that this machinery will not re-

solve the issues in a manner compatible with Spielberg

standards;

2. (a) Providtng the respondent an opportunity to express a

willingness to arbitrate the dispute and, thus, to

secure deferral of the chsrge under Collyer (where

all other requirements for deferral are met), prior

to a final determination of the regional office as to

the merits of the unfair labor practice charge;

(b) Requiring as a condition of deferral, that at the

latest, respondent express its wi l ll.ngness to arbi-

trate no more than 7 days after a regional office

communicates to the respondent its final determination

that the charge is meritorious;

3; (a) Refusing to defer under the Collyer policy in a dis-

pute dver a request for information relevant to grie-

vance processing even though the underlying grievance

is already before an arbitrator, and;

test, respondent express its wi l ll.ngness to arbi-

trate no more than 7 days after a regional office

communicates to the respondent its final determination

that the charge is meritorious;

3; (a) Refusing to defer under the Collyer policy in a dis-

pute dver a request for information relevant to grie-

vance processing even though the underlying grievance

is already before an arbitrator, and;

(b) Refusing to defer charges pertaining to the basic,

underlying grievance if deferral is inappropriate

as to a dispute over e request for information which

is relevant to that grievance;

Adopting special criteria for the deferral of charges

filed by individual employees, and;

Providing the charging party the right, under Board

Rule 102.19, to appeal a decision of the regional

office to defer action on a charge under the Collyer

polic~.

2 -

It is my hope that these revised guidelines will assist the

regional offices in carrying out the Collyer policy in a manner which

will best serve the parties who come before the Agency, will encourage

the proper disposition of disputes by private procedures and will ad-

vance the Board's basic objectives in its adoption and expansion of the

Collyer policy.

I would emphasize that these revised guidelines are intended

to provide broad, generalized criteria for the implementation of the

Collyer policy in the wide variety of cases to which it will apply.

Since these guidelines are, in part, generalizations derived from the

Board's published decisions and, in part, procedures for the application

of the Collyer policy which will be presented for the Board's consideration

and adoption or rejection on a case-by-case basis, they cannot be con-

sidered "rules" in the conventional sense.

Nor can they substitute for

the acumen which is necessary for the application of these guidelines to

the diverse facts of each particular case in a manner which will best

serve the basic essential purposes of the Collyer doctrine.

Peter G. Nash

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or the Board's consideration

and adoption or rejection on a case-by-case basis, they cannot be con-

sidered "rules" in the conventional sense.

Nor can they substitute for

the acumen which is necessary for the application of these guidelines to

the diverse facts of each particular case in a manner which will best

serve the basic essential purposes of the Collyer doctrine.

Peter G. Nash

3 -

TABLE OF CONTENTS

INTRODUCTION---------------------------------------------------------1-3

CITATION OF CASES

Collyer Cases-----------------------------------------------------6-7

Non-Collyer Cases-------------------------------------------------8-9

CIRCUMSTANCES RELEVANT TO DEFERRAL UNDER COLLYER

I. Character of the Dispute

(A) Type of violations charged--------------------------------10

(B) Relationship between the unfair labor practice

issues and the issues subject to arbitration--------------10-14

under the Act---------------------------------------------14

(D) Willingness to arbitrate the dispute----------------------15-18

(E) Good faith in the agsertion of privilege for the

disputed action-------------------------------------------19

(F) Disputes over special subject matters

1. Accretion Issues-------------------------------- ----19

2. Information lssues----------------------------------20-23

3. Obligation

to Recognize---------------~------------24

4. Frustration of Arbitration--------------------------24

5. Exist~nce of Contract-------------------------------24

6. Unlawful Contract Provisions------~-----------------25

7. "Interest", "Negotiabili.ty 0 and

11Unit

Elimination" Arbitration------------------... -------25

(G) Skills required in the resoL1tion of the dispute--------':.'.:'25

(H) Respondent's offer to discuss a disputed aharge in

working conditions before effectuation--------------------26

of Contract-------------------------------24

6. Unlawful Contract Provisions------~-----------------25

7. "Interest", "Negotiabili.ty 0 and

11Unit

Elimination" Arbitration------------------... -------25

(G) Skills required in the resoL1tion of the dispute--------':.'.:'25

(H) Respondent's offer to discuss a disputed aharge in

working conditions before effectuation--------------------26

II. Contract Provisions Concerning The Resolution of Disputes----- 26..27

(A) Requirement that the oontract procedures for the

resolution of the disputes lead to arbitration------------27-28

(B) Encompassment of the dispute by the arbitration

provisions------------------------------------------------28-30

charging party--------------------------------------------30

(D) The binding character of the arbitration result-----------31-32

(E) Obstacles to a quick and fair arbitral resolution

of disputes-----------------------------------------------32

4 -

III.

Special Considerations Concerning Charges Filed

by Individuals------------------------------------------------32-36

PROCEDURES FOR ADMINISTRATIVE DEFERRAL

I. Initial Disposition of Charges

(A) Investigation of the merits of the charge and

deferral circumstances in potential "Collyer"

and ''Dubo" situations-------------------------------------36-44

(B) Connnu~tion to the parties of the decision to

defer to arbitration--------------------------------------44-45

II.

Handling Before Issuance of an Arbitration Award

of Charges Deferred Administratively Under the Collyer

Policy--------------------------------------------------------46-47

III.

Handling After Issuance of an Arbitration Award

of Charges Deferred Administratively Under the Collyer

Policy--------------------------------------------------------47

----------------------------------44-45

II.

Handling Before Issuance of an Arbitration Award

of Charges Deferred Administratively Under the Collyer

Policy--------------------------------------------------------46-47

III.

Handling After Issuance of an Arbitration Award

of Charges Deferred Administratively Under the Collyer

Policy--------------------------------------------------------47

IV.

Litigation of the Collyer Deferral Question-------------------48

Appendix A··----------------------------------------------------------49-55

(Outline of Collyer Circumstances and Deferral Procedures)

Appendix B-----------------------------------------------------------56

(Sample initial "willingness" letter)

Appendix C-----------------------------------------------------------57

(Sample final "willingness" letter)

Appendix D-----------------------------------~-----------------------58-59

(Sample Collyer deferral letter)

Appendix E-----------------------------------------------------------60

(Sample Spielberg dismissal letter)

- 5 -

TIONS OF COLLYER CASES

CA~ES

FOOTNOTES IN

WHICH CITED

Abell, A. S. Co., The, 201 NLRB No. 5

3, 4

Anaconda Wire and Cable Co., 201 NLRB No. 125

Appalachian Power Co., 198 NLRB No. 7

10, 13

Associated Press, The, 199 NLRB No. 168

1, 5, 6, 8, 29, 34

Atlantic Richfield Co., 199 NLRB No. 135

8, 15, 31, 66

Bethlehem Steel Corp., 197 NLRB No. 121

4' 6' 34, 42, 43, 54

Borden, Inc., 196 NLRB No. 172

13, 29

Champlin Petroleum Co., 201 NLRB No. 9

Chase M:;nufacturi.ng, Inc,, 200 NLRB No. 128

11, 27

Collyer Insulated Wire, 192 NLRH No. 150

2. 6' 12, 13, 17, 27, 32, 34

35, 37, 52, 54, 57, 66

Continental Can Co., 202 NLRB No. 78

Coppus Engineering Corp., 195 NLRB No. 113

8, 10, 12, 33, 35

Eastman Broadcasting Co., 199 NLRB No. 58

2, 6, 12, 37, 42

Enterprise Publi,shing Co., 201 NLRB No 11'8

Gary-Hobart Water Corp., 200 NLRB No. 98

Great Coasts~ Express, 196 NLRB No. 129

4, 6, 13, 19, 35, 40, 44

Houston Chronicle Publishing Co., 199 NLRB No

35, 37, 52, 54, 57, 66

Continental Can Co., 202 NLRB No. 78

Coppus Engineering Corp., 195 NLRB No. 113

8, 10, 12, 33, 35

Eastman Broadcasting Co., 199 NLRB No. 58

2, 6, 12, 37, 42

Enterprise Publi,shing Co., 201 NLRB No 11'8

Gary-Hobart Water Corp., 200 NLRB No. 98

Great Coasts~ Express, 196 NLRB No. 129

4, 6, 13, 19, 35, 40, 44

Houston Chronicle Publishing Co., 199 NLRB No. 69

Hunter Saw Division of Asko, Inc., 202 NLRB No. 30

Kansas Meat Packers, 198 NLRB No. 2

Koch,George,Sons, Inc., 199 NLRB No. 26

Ladish Co., 200 NLRB No. 165

L.E.M. d/b/a Southwest Engraving

Co., 198 NLRB No. 99

McDonald Engineering Co., 202 NLRB No. 113

- 6 -

7' 9' 25,

5, 6,

15,

3, 4

41, 45, 56

30, 31, 58

10, 12, 13

34, 44, 50

Medical Manor d/b/a Community Convalescent

Hospital, 199 NLRB No, 139

National Biscuit Co., 198 NLRB No. 4

National Heat and Power Corp., 201 NLRB No. 150

National Radio Company,

Inc., 198 NLRB No. 1

Norfolk Portsmouth Wholesale Beer

Distributors Ass'n., 196 NLRB No. 165

Oak Cliff-Golman Baking Co., 202 NLRB No. 72

Patman,Urban N., Inc., 197 NLRB No. 150

Peerless Pressed Metal Corp., 198 NLRB No. 5

Radioear Corp., 199 NLRB No. 137

Ryerson, Joseph T. & Sons,

Inc., 199 NLRB No. 44

Southwestern

Bell Telephone Co., 198 NLRB No. 6

Titus-Will Ford Sales, 197 NLRB No.

12, 17, 28, 37, 63, 80

9, 13, 40, 51, 82

2, 4, 6, 7, 10, 11, 17, 34

37, 42, 44, 54, 56, 57

5, 6, 14, 15, 16, 17

34, 42, 44, so

16, 42, 44, 45, 50, 82

4, 18, 19, 37

2' 6. 7, 8, 23

28, 37' 42, 45, 54

35, 42, 44, 45, 82

Tulsa-Wisenhunt Funeral Homes, Inc,, 195 NLRB No. 20

40, 48, 51

Tyee Construction Co., 202 NLRB No. 4

4, 6, 42, 55, 56

United-Carr Tennessee a Division of TRW, Inc., 202 NLRB No. 112

Western Electric, Inc., 199 NLRB No. 45

Western Electric, Inc., 199 NLRB No. 49

42, 45, 49, 51

Wrought Washer Mfg. Co., 197 NIRB No. 14

4, 19, 44

7 -

28, 37' 42, 45, 54

35, 42, 44, 45, 82

Tulsa-Wisenhunt Funeral Homes, Inc,, 195 NLRB No. 20

40, 48, 51

Tyee Construction Co., 202 NLRB No. 4

4, 6, 42, 55, 56

United-Carr Tennessee a Division of TRW, Inc., 202 NLRB No. 112

Western Electric, Inc., 199 NLRB No. 45

Western Electric, Inc., 199 NLRB No. 49

42, 45, 49, 51

Wrought Washer Mfg. Co., 197 NIRB No. 14

4, 19, 44

7 -

OF NON-COLLYER CASES

CASES

Acme Industrial Co., N.L.R.B. v.,385 U.S. 432

Arlan's Department Store, 133 NLRB 802

Associated Building Contractors of Evansville,

Inc., 143 NLRB 678

Black-Clawson v. !AM, 313 F. 2d 179

Burns, William J. Detective Agency, 182 NLRB 348

Combustion Engineering, Inc., 195 NLRB No. 161

Crescent Bed Co., 157 NLRB 296

Denver-Chicago Trucking Co., 132 NLRB 1416

Dubo Manufacturing Corp., 142 NLRB 431

Fawcett Printing Corp., 201 NLRB No. 139

Heinz,H.J., Co. v. N.L.R.B., 311 U.S. 5ll,

Hershey Chocolate Corp., 129 NLRB 1052

Hilton-Davis Chemical Co., 185 NLRB No. 58

Houston 3heet Metal Contractors Ass'n., 147 NLRB 774

International Harvester Co,, (Indianapolis

Works), 138 NIRB 923

Jacobs 'r1:"ansfer, Inc., 201 NLRB No. 34

Mal rite of Wisconsin, Inc., 198 NLRB No. 3

Mastro Plastics Co. v. N.L.R.B., 350 U.S. 270

McLean Trucking Co., 202 NLRB No, 102

Modern Motor Express, Inc., 149 NLRB 1507

M~ntgQmery Ward & Co., 195 NLRB No. 136

Porter,H. K.,co., Inc, v. N.L.R,B., 397 U.S. 99

- 8 -

FOOTliOTES IN

WHICH CITED

27, 29

8, 29

63, 64. 65, 66

56, 57

57, 66

41, 57

53, 84

n, Inc., 198 NLRB No. 3

Mastro Plastics Co. v. N.L.R.B., 350 U.S. 270

McLean Trucking Co., 202 NLRB No, 102

Modern Motor Express, Inc., 149 NLRB 1507

M~ntgQmery Ward & Co., 195 NLRB No. 136

Porter,H. K.,co., Inc, v. N.L.R,B., 397 U.S. 99

- 8 -

FOOTliOTES IN

WHICH CITED

27, 29

8, 29

63, 64. 65, 66

56, 57

57, 66

41, 57

53, 84

Ranch-Way, Inc,, 183 NLRB No. 116

Republic Steel Corp. v. Maddox, 379 U,S, 650

Roadway Express, Inc,, 145 NLRB 513

Southwestern Bell Telephone Co, v, CWA, AFL-CIO

and Local 6222, 454 F. 2d 1333, 79 LRRM 2480

Spielberg Manufacturing Co., 112 NLRB No. 1080

Steelworker "trilogy"

Taft Broadcasting Co., 185 NLRB No, 68

Timken Roller Bearing Co., 70 NLRB 500

United Aircraft Corp., 188 NLRB No. 96

Wertheimer Stores Corp., 107 NLRB 1434

Western Electric Company, Inc., 180 NLRB 131

Youngstown Cartage Co., 146 NLRB 305

Yourga Trucking, Inc., 197 NLRB No. 130

9 -

2. 39. 5 7. 66

56, 57

CIRCUMSTANCES RELEVANT TO DEFERRAL UNDER

THE CCLLYER POLICY

Character of the Dispute

(A) Type of violations charged

The other conditions necessary for deferral being present,

charges alleging violations of Section 8(a)(l), (2), (3) and (5) and

Sections 8(b) (l)(A) and (B), and 8(b)(2) and (3) will be deferred for

arbitration under the Collyer policy. 1/

Charges alleging violations of

other sections of the Act in which a substantial question of deferral

under the Collyer policy is raised should be submitted to Washington

for advice.

(B) Relationship between the unfair labor practice issues and

the issues subject to arbitration.

Deferral of an unfair labor practice charge is warranted if

there is a reasonable probability that the unfair labor practice issues

raised by the charge could be considered and resolved under the con-

tract arbitration procedures in a manner consistent with the standards

of SJ2ielberg

for advice.

(B) Relationship between the unfair labor practice issues and

the issues subject to arbitration.

Deferral of an unfair labor practice charge is warranted if

there is a reasonable probability that the unfair labor practice issues

raised by the charge could be considered and resolved under the con-

tract arbitration procedures in a manner consistent with the standards

of SJ2ielberg. ];/ This is likely to be true if the unfair labor practice

issues and the arbitr.otion issues both turn on the meaning or application

of disputed contract provisions, and particularly so if the ~ontract

provisions amount to a "fleshing out" of statutory obligations. 3/

How-

ever, a dispute which is subject to the contract grievance and arbitration

l/ In The Associated Press, 199 NLRll No. 168, the charges deferred for

prospective arbitration under Collyer included alles;a-tions of vio-

lations of.both Section 8(a)(2) and Section 8(b)(2).

2/ In the discussion and remedy in the Collyer case itself the Board

made plain that it was retaining jurl.sdiction over the dispute in

part to insure against the possibility that the arbitration proceeding

would not meet the Board's test for deferral to arbitration pro-

ceedings already concluded which was established in Spielberg

Manufacturing Co., 112 NLRB 1080.

In National Radio Com12any, Inc.,

198 NLRB No. 1, the Board even more explicitly made the "crucial

determinant" of deferral policy the reasonableness of the assump-

tion that the arbitration procedure will resolve the dispute "in

a manner consistent with the stendards of SJ2ielberg."

The decision

in Eastman Broadcasting Co., 199 NLRB No. 58, referred, more generally,

to resolution of the dispute through arbitration "in a manner com-

patible with the purposes of the Act."

And in refusing deferral in

Joseph T. Ryerson & Sons, Inc., 199 NLRB No

the assump-

tion that the arbitration procedure will resolve the dispute "in

a manner consistent with the stendards of SJ2ielberg."

The decision

in Eastman Broadcasting Co., 199 NLRB No. 58, referred, more generally,

to resolution of the dispute through arbitration "in a manner com-

patible with the purposes of the Act."

And in refusing deferral in

Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44, the Board disclaimed

any practice of abstaining for prospective arbitration "in cases

which present issues which are irresolvable, in conformity with

Spielberg" in an arbitration proceeding.

Houston Chronicle Publishing Co., 199 NLRB No. 69; The A.S. Abell Co.,

201 NLRB No. 5.

10 -

procedures may be deferred even though it does not involve any sub-

stantive contract provisions and even though no reasonable construction

of the substantive provisions of the contract would preclude a finding

that the disputed conduct violated the Act. ~/ Deferral may, therefore,

be appropriate where the dispute raises issues of law 21 and is not

dependent upon any interpretation of ambiguous contract provisions. §_/

§_/

The Board does not contemplate the denial of deferral merely because

no construction of the contract would privilege the respondent's

conduct.

In Great Coastal Express, 196 NLRB No. 129, the employer

agreed that "all conditions of employment in his individual operation

relating to ••. general working conditions shall be maintained at

not less than the highest standard in effect at the time of the sign-

ing of this Agreement."

The contract contained no provision explicitly

pertaining to employee parking privileges.

The respondent unilaterally

revoked the right of the employees in the bargaining unit to park in

the company lot.

The trial examiner found the respondent's purported

justification for this change to be both belatedly expressed and spu-

rious

rd in effect at the time of the sign-

ing of this Agreement."

The contract contained no provision explicitly

pertaining to employee parking privileges.

The respondent unilaterally

revoked the right of the employees in the bargaining unit to park in

the company lot.

The trial examiner found the respondent's purported

justification for this change to be both belatedly expressed and spu-

rious.

The Board nevertheless deferred under the Collyer policy "in

order that the dispute between the parties may be decided by an arbi-

trator •.. "

See also Peerless Pressed Metal Corp., 198 NLRB No. 5;

National Radio Co., 198 NLRB No. 1 (as to the respondent's failure to

reinstate the employee awards program and to distribute copies of the

bargaining agreement); Bethlehem Steel Corp., 197 NLRB No. 121; Wrought

Washer Mfg. Co., 197 NLRB No. 14; Houston Chronicle Publishing Co.,

199 NLRB No. 69; The A. S. Abell Co., 201 NLRB No. 5; Tyee Construction

_££., 202 NLRB No.34.

But cf. Oak Cliff-Golman Baking Co., 202 NJ,RB

No. 72.

See, particularly, Norfolk Portsmouth Wholesale Beer Distributors

Assn., 196 NLRB No. 165; L.E.M. d/b/e Soiithwest Engraving Co., 198

NLRB Ho. 99; The Associated Press, 199 NLRB No. 168; Eni;erprise

Publishing Co., 201 llLRB No. 118.

In a section of the February 28, .1972, guidelines at page 203, entitled

"The contractual origin of the dispute," the regional offices were

instructed to defer for arbitration "otherwise meritorious 8(a)(5)

charges • . . if a reasonable construction of the substantive provi-

sl.ons of the agreement between the parties (other than the grievance

and arbitration provisions) would preclude a finding that the disputed

conduct violated the Act."

This instruction was based on the Board's

emph8Sis in Collyer Insulated Wire, l.92 NLRB No. 150, that '.'._th~ con-

tract and its meaning ... j_wer~/ at the center of .•. j_th~/ dispute."

In more recent cases, however, the Board has broadened the type

of dispute which ""'Y be deferred for prospective arbitration

provisions) would preclude a finding that the disputed

conduct violated the Act."

This instruction was based on the Board's

emph8Sis in Collyer Insulated Wire, l.92 NLRB No. 150, that '.'._th~ con-

tract and its meaning ... j_wer~/ at the center of .•. j_th~/ dispute."

In more recent cases, however, the Board has broadened the type

of dispute which ""'Y be deferred for prospective arbitration.

The

Board recognized in National Radio Co., 198 NLRB No. 1, that the

respondent's deferral contention there did .!!£!:. "rest on any presumed

primacy of an arbitrator to interpret an ambiguous or contested con-

tract provision."

Nevertheless, the Board found reasonable the

respondent's assumption that arbitration under the contractual confine-

ment

of discipline to "just cause" would lead to a resolution of

(contd.)

11 -

~~·

f!./

(continued) the dispute "which will not be 'repugnant to purposes

and policies of the Act'."

The Board saw the fundamental con-

siderations which were applicable to be the same as those in Collyer;

that is, the "asserted wrong is remediable in both a statutory and

a contractual forum."

The Board believed that the "crucial deter-

minant" of the warrant for deferral to arbitration is "the reason-

ableness of the assumption that the arbitration procedure will resolve

this dispute in a manner consistent with the standards of Spielberg."

Subsequently, in restating the Collyer rule in Eastman Broadcastl.ng

Co., 199 NLRB No. 58, the Board declared it applicable;

where two basic conditions have been met: (1) the disputed

issues are, in fact, issues susceptible to resolution under

the operation of the grievance machinery agreed to by the

parties, and (2) there is no reason for us to believe that

use of that machinery by the parties could not or would not

resolve such issues in a manner compatible with the purposes

of the Act

eclared it applicable;

where two basic conditions have been met: (1) the disputed

issues are, in fact, issues susceptible to resolution under

the operation of the grievance machinery agreed to by the

parties, and (2) there is no reason for us to believe that

use of that machinery by the parties could not or would not

resolve such issues in a manner compatible with the purposes

of the Act.

These Board statements of the basic determinar,ts or conditions for

deferral do not make a dispute over the meani.ng or application of

contested substentive te11ns of a contract a prerequisite to deferral

under the Collyer policy.

The significance of these Board's state-

ments of basic Collyer applicability is borne out in other cases.

ln Joseph T. RY,erson & Sons, Inc., 199 NLRB No. 44, the Board

saw the first dispute to be over whether the employee had in fact

violated a term of the contract, not whether the contract prohibited

the conduct ascribed to the employee.

In Bethlehem Steel Corp., 197

NLRB No. 121, although the administrative law judge found the contract

to be silent on the subject of subcontracting work, and respondent

justified its subcontracting only on a cla}m of inability to do the

work without referring to any contract pro~ision bearing on that

matter, the Board nevertheless deferred for arbitration,

In L. E.1'1.

d/b/a Southwest Engraying Co., 198 NLRB No. 99, there .fas no sub-

stantive contract provision which pertained to the dispute over the

hiri11g of an employee during a strike for empl~ent beginning after

the strike terminated, thereby denying reinstatement to an additional

striker

g to any contract pro~ision bearing on that

matter, the Board nevertheless deferred for arbitration,

In L. E.1'1.

d/b/a Southwest Engraying Co., 198 NLRB No. 99, there .fas no sub-

stantive contract provision which pertained to the dispute over the

hiri11g of an employee during a strike for empl~ent beginning after

the strike terminated, thereby denying reinstatement to an additional

striker. In the other dispute treated in that case the respondent

refused the union's demands for enforcement of a union security pro-

vision not because of any alleged ambiguity or illegality of the

provision itself but because it believed that union security discharges

effected during the pendency of a UD petition before the Board "'might

be construed as an unfair labor practice."' In Norfolk Portsmouth

Wholesale Beer Distributors Assn., 196 NLRB No. 165, the dispute arose

over respondent s claim that individual dues checkoff authorizations

relied on by the union violated Section 302(4) of the Act, not the

contract.

See also The Associated Press, 199 NLRB No. 168.

In Great

Coastal Express, 196 NLRB No. 129, the contract plainly required the

maintenance of "all conditions of employment ..• relating to ..•

general working conditions" and respondent in withdrawing parking lot

(contd.)

12 -

However, where the contract provisions pertaining to the

dispute provide or constitute criteria for resolution of the dispute

which are inconsistent with the criteria the Board would apply in

determining the unfair labor practice issues, deferral would not be

appropriate under the Collyer policy. ll

§)

(continued)

privileges asserted no contract provision to justify

the revocation of parking lot privileges, belatedly relying instead

on an alleged insurance consideration.

The dispute in Tyee Construction

.!:J:!.., 202 NLRB No. 34, turned on whether the employer had condoned

an unprotected work stoppage, a subject which was not dealt with in

the bargaining agreement

lyer policy. ll

§)

(continued)

privileges asserted no contract provision to justify

the revocation of parking lot privileges, belatedly relying instead

on an alleged insurance consideration.

The dispute in Tyee Construction

.!:J:!.., 202 NLRB No. 34, turned on whether the employer had condoned

an unprotected work stoppage, a subject which was not dealt with in

the bargaining agreement.

In sum, it appears that the Board intends to apply the Collyer

deferral policy

to disputes which are susceptible of resolution

under contract arbitration machinery in a manner conforming to the

purposes of the Act, regardless of whether questions of interpre-

tation of ambiguous substantive contract provisions are at the heart

of the dispute.

Application of the Collyer policy seems to turn,

therefore, on the availability of arbitration for resolution of the

dispute (See note 37, infra, and accompanying text) and the coin-

cidence between the issues which would be resolved in arbitration and

the issues which are raised by the unfair labor charge under con-

sideration.

Hence, the section of the February 28, 1972 guidelines

dealing with the contractual origin of the dispute has been omitted

from this revision of the Collyer guidelines.

The provisions of the contract in George Koch Sons, Inc., 199 NLRB

No. 26, appeared to privilege the union's strike to protest a super-

visor's working at less than the rates set for foremen by the con-

tract.

However, the Board concluded that since this kind of conduct

violates Section 8(b)(l)(B) notwithstanding s~ch contract provisions

and since the arbitrator would decide only the question of contract

privilege, the contract issue to be copsidered by the arbitrator in

deciding the dispute would not coincide with the unfair labor practice

issue which the Board would be required to decide.

The Board therefore

declined to defer to the contract arbitration machinery there

on 8(b)(l)(B) notwithstanding s~ch contract provisions

and since the arbitrator would decide only the question of contract

privilege, the contract issue to be copsidered by the arbitrator in

deciding the dispute would not coincide with the unfair labor practice

issue which the Board would be required to decide.

The Board therefore

declined to defer to the contract arbitration machinery there.

The Koch caae, considered in the context of other Collyer deci-

sions, seems to reflect the Board's assumption that although an

arbitrator will look beyond the confines of the contract and consider

such statutory principles as are necessary to a resolution of the

dispute (see note 5, supra, and accompanying text), an arbitrator

will not, in the event of a conflict between the provisions of the

contract and principles of law, depart from the requirements of the

contract.

In instances of such a conflict between the contract pro-

visions and statutory principles, therefore, the Board apparently

does not consider it rea~onable to assume that "the arbitration pro-

cedure will resolve Lth~/ dispute in a manner consistent with the

standards of Spielberg."

National Radio Co., 198 NLRB No. 1.

But

cf. Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44, note 1.

13 -

To the degree it is possible to define and identify separa·te

disputes, deferral policy should be applied on a "per dispute" basis.

Thus, where a charge or charges allege separate disputes over more than

one subject matter

and the dispute over one of these matters meets the

Collyer criteria for deferral, further action on the allegations per-

taining to that dispute shouldbe deferred for arbitration even though

either dismissal or formal Board proceedings are required as to the

remaining dispute

on a "per dispute" basis.

Thus, where a charge or charges allege separate disputes over more than

one subject matter

and the dispute over one of these matters meets the

Collyer criteria for deferral, further action on the allegations per-

taining to that dispute shouldbe deferred for arbitration even though

either dismissal or formal Board proceedings are required as to the

remaining dispute. ~/

On the other hand, if a single dispute or related disputes

give rise to more than one charge or alleged violation of the Act, fur-

ther action on all of these charges or allegations may be deferred if

deferral of one of these charges or allegations is appropriate under

the Collyer policy and the resulting arbitration is likely to resolve a

substantial issue common to all these charges or allegations. 2/

exception to this rule is the case in which one allegation pertains

to the refusal of the respondent to furnish information requested in

connection with the evaluation or processing of a grievance, as provided

at (F) 2,, below.

Deferral of charges for arbitration under Collyer is not

warranted where the overall history of the collective relationship

demonstrates significant employer enmity toward statutory rights.

Determination of whether general enmity exists which would preclude

deferral should be based on a consideration of the total bargaining

history, i.ncll\ding the duration and effectiveness of the collective

relBtionship and the cha:>:acter, frequency and remoteness of unfair labor

practices. 10/

A single, animu8-n.otivated unfaJr. labor practice would

10/

The Crescent Bed Co., 157 NLRB 296; Coppus Engineering Corp., 195

NLRB No. 113; Joseph T. Ryerson & So~s, Inc., 199 NLRB No. 144;

Atlantic Richfield Co., 199 NLRB No. 135; The Associated Press, 199

NLRB No. 168.

See also note 58, infra, and accompanying text

>:acter, frequency and remoteness of unfair labor

practices. 10/

A single, animu8-n.otivated unfaJr. labor practice would

10/

The Crescent Bed Co., 157 NLRB 296; Coppus Engineering Corp., 195

NLRB No. 113; Joseph T. Ryerson & So~s, Inc., 199 NLRB No. 144;

Atlantic Richfield Co., 199 NLRB No. 135; The Associated Press, 199

NLRB No. 168.

See also note 58, infra, and accompanying text.

In _National Biscuit Co., 198 NLRB-~4, the unio.n's fine of non-

cooperatj_ng members was not subject to an agreement to arbitrate.

But because the validity of the fines was dependent upon the union's

rights under the contract and because these union contracts rights

would be determined through arbitration of the dispute underlying

the refusal-to-bargain charge, the Board deferred both the contract-

modification S(b) (3) charge and the 8(b) (1) (A) fine charge.

Cf.

George Koch Sons, Inc., 199 NLRB No. 26.

The relevant factors were discussed in the February 28, 1972 guide-

lines at pages 14 and 15 under the heading "History of the Parties

and Their Relationship" a section of that earlier memo which is now

deemed to be relevant to this general consideration of employer

enmity and is, thus, not restated as an independent consideration.

The significance of these factors has been mentioned by the Board in

(contd.)

- 14 -

not necessarily make deferrnl inappropriate,but a pattern or a C1Jn-

tinuing history of such actions denoting general hostility to em-

ployee rights and a repudiation of the ba~gaining principle would

require rejection of the deferral procedure . .!,l/

Employer actions

motivated by economic or business considerations and union conduct

aimed at advancing legitimate union interests but which nevertheless

violates the Act

would be deferrable unless the reoccurrence of such

actions reflects a deliberate disregard or rejection of statutory obli-

gations

ation of the ba~gaining principle would

require rejection of the deferral procedure . .!,l/

Employer actions

motivated by economic or business considerations and union conduct

aimed at advancing legitimate union interests but which nevertheless

violates the Act

would be deferrable unless the reoccurrence of such

actions reflects a deliberate disregard or rejection of statutory obli-

gations.

(D) Willingness to Arbitrate the Dispute

Charges will not be administratively deferred for arbitration

under the Collyer policy unless the respondent is willing to submit all

aspects of the underlying dispute to arbitration. !11

Assuming that the

10/

(continued) Appalachian Power Co., 198 NLRB No. 7 and National

Radio Co., 198 NLRB No. 1.

The short duration of the bargaining

relationship will not, in itself, be determinative, as indicated

by Coppus Engineering Corp., 195 NLRB No. 113, and L.E.M. d/b/a

Southwest Engraving Co., 198 NLRB No. 99, where the Board deferred

disputes arising soon after the parties entered into their first

collective bargaining agreement •

.!,l/

National Radio Co., 198 NLRB No. l; Chase Manufacturing, Inc.,

200 NLRB No. 128.

12/ In the Collyer case itself the Board set out, as one of the cir-

cumstances which weighed heavily in favor of deferral, the fact

that the respondent had "credibly asserted its willingness to resort

to arbitration ... "

This same "willingness to have the dispute

resolved in this manner ... '' was noted by the Board in the next

decision in which the Collyer policy was applied.

Coppus Engineering

Corp., 195 NLRB No. 113.

In a subsequent decision the Board said that

one of the conditions of .deferral is t]le absence of any reason "to

believe that the use of /the grievance/ machinery by the parties

could not or would not r;solve such issues in a manner compatible

with the purposes of the Act.''

Eastman Broadcasting Co., 199 NLRB

No. 58

Collyer policy was applied.

Coppus Engineering

Corp., 195 NLRB No. 113.

In a subsequent decision the Board said that

one of the conditions of .deferral is t]le absence of any reason "to

believe that the use of /the grievance/ machinery by the parties

could not or would not r;solve such issues in a manner compatible

with the purposes of the Act.''

Eastman Broadcasting Co., 199 NLRB

No. 58.

This condition of deferral would seem to be necessarily

predicated on the willingness of the respondent to arbitrate the

dispute.

In cases in which the time limitation on grievance filing

has expired, as has sometimes been true in cases deferred by the

Board (e.g. L.E.M. d/b/a Southwest Engraving Corp., 198 NLRB No. 99),

this condition could not have been met unless the respondent had

been willing to arbitrate notwithstanding the expiration of time

limitations.

And finally, the Board's Collyer remedy of retaining

jurisdiction over the dispute to entertain a motion showing, inter

alia, the absence of a prompt arbitral submission obviously con-

templates the Board's revocation of deferral and issuance of a

decision on the merits of the complaint in the event a prompt arbi-

tral submission is defeated by the respondent's unwillingness to

(contd.)

- 15 -

respondent 'has timely expressed a willingness to arbitrate the dispul"

(and, where appropriate, has disclaimed any intention of asserting in

arbitrntion any procedural defenses based on the expiration of the t.ime

limitations for the filing, processing, or arbitration of grievances under

the contract, or on the expiration of the contract in effect when the

dispute arose), 13/ the following circumstances will not be regarded as

inc0nsistent with the respondent's expression of its willingness to arbi-

trate: (1) The respondent did not previously propose arbitration of the

dispute or contended that the charge should be deferred for arbitration; 14/

rbitration of grievances under

the contract, or on the expiration of the contract in effect when the

dispute arose), 13/ the following circumstances will not be regarded as

inc0nsistent with the respondent's expression of its willingness to arbi-

trate: (1) The respondent did not previously propose arbitration of the

dispute or contended that the charge should be deferred for arbitration; 14/

(2) the respondent previously refused a demand that the dispute be s,ub-

mitted to arbitration; 15/ and (3) the respondent intends to contest the

arbitrability of the und;rlying dispute in the arbitral forum, 16/ if,

upon determination that the matter is arbitrable, the respondent""is

willing to submit the merits of the dispute to arbitration."

12/

14/

15/

16/

(continued) arbitrate the dispute.

Thus, in Medical Manors, Inc.

d/b/a Community Convalescent Hospital, 199 NLRB No. 139, the Board

cautioned the respondent tha< jurisdiction was being retained

"against the contingency that Respondent might engage in further

foot-dragging in such manner that the disputes in issue are not

promptly submitted to arbitration.

Collyer Insulated Wire, 192 NLRB No. 150; L.E.M. d/b/a Southwest

Engraving Corp., 198 NLRB No.

99; National Biscuit Co., 198 NLRB

No. 4; Great Coastal Express, 196 NLRB No. 129; Appalachian Power

Co., 198 NLRB No. 7.

The disclaimer of intention to rely on

t;;°mporal limitations imposed on the filing or processing of grie-

vances by the contract or on expiration of the contract must obtain

as of the time the region issues the letter of deferral provided

for in PROCEDURES FOR ADMINISTRATIVE DEFERRAL, I(B), infra, and

must contemplate a continuation of said willingness for a period

during which an effort on the part of the charging party to

initiate or carry forward grievance proceedings leading to arbitra-

tion would be considered by the Board to be reasonably prompt

must obtain

as of the time the region issues the letter of deferral provided

for in PROCEDURES FOR ADMINISTRATIVE DEFERRAL, I(B), infra, and

must contemplate a continuation of said willingness for a period

during which an effort on the part of the charging party to

initiate or carry forward grievance proceedings leading to arbitra-

tion would be considered by the Board to be reasonably prompt.

Deferral is not appropriate, however

where the disputed conduct

took place at a time when no agreement was in effect making arbi-

tration procedures available for resolution of the dispute, not-

withstanding respondent's willingness to arbitrate.

Borden, Inc.,

196 NLRB No. 172.

(See note 64, infra, as to an~ hoc agreement

between the parties to arbitrate a dispute in such circumstances.)

Cf. Norfolk Portsmouth Wholesale Beer Distributors Assn., 196 NLRB

No. 165; Titus-Will Ford Sales, 197 NLRB No. 4.

L.E.M. d/b/a Southwest Engraving Corp., 198 NLRB No.

99; Norfolk

Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No. 165;

Western Electric, Inc., 199 NLRB No. 45; Atlantic Richfield Co.,

199 NLRB No. 135.

Norfolk Portsmouth Wholesale Beer Distributors Assn., 196 NLRB

No. 165; Urban N. Patman, Inc., 197 NLRB No. 150. (See note 46 ,

infra, and accompanying text.)

- 16 -

The respondent's willingness to arbitrate will not be pre-

sumed.

No case will be deferred for arbitration if the respondent

fails or refuses to express its willingness to submit the dispute to

arbitration before, or in response to, the region's inquiry on this

subject, as provided at PROCEDURES FOR ADMINISTRATIVE DEFERRAL, Sections

I A(4), (5) and (7), infra. 17/

1J_/

In exam1n1ng the warrant under the Act for abstention pending

arbitration in National Radio Co., 198 NLRB No. 1, the Board said

that "considerations arising from the increasing caseload before

this five-man Board ... should not be gainsaid ..

esponse to, the region's inquiry on this

subject, as provided at PROCEDURES FOR ADMINISTRATIVE DEFERRAL, Sections

I A(4), (5) and (7), infra. 17/

1J_/

In exam1n1ng the warrant under the Act for abstention pending

arbitration in National Radio Co., 198 NLRB No. 1, the Board said

that "considerations arising from the increasing caseload before

this five-man Board ... should not be gainsaid ... "

And the

Board expressed its belief that "the purposes of the Act are well

served by encouraging the parties to .L;rbitration agreement!./ to

resolve their disputes without government intervention."

(Emphasis

added.)

In the Collyer case itself, the Board saw its policy as

affording arbitration the opportunity to "resolve the underlying

dispute and make it unnecessary for either party to follow the more

formal, and sometimes lengthy, combination of administrative and

judicial litigation provided for under our statute."

It seems obvious that the Board cannot contemplate that this

minimization of the formalities and delays of governmental inter-

vention and the alleviation of its caseload is to be accomplished

through application of the Collyer policy only at the Board deci-

sional stage of a proceeding.

These objectives can be achieved only

through administrative deferral of charges for arbitration early

enough in the proceeding to avoid the expenditure of regional office

time and resources required to fully determine

the merits of a

charge, and to prepare and present the case before an administrative

law judge.

If effective deferral is to be achieved, respondent's

early expression of its willingness to arbitrate the dispute must be

required.

In formulating its Collyer policy, the Board has thus far

plBced little emphasis on the timeliness of respondent's Bssertion

of its willingness to arbitrate.

E.g., Norfolk Portsmouth ~fnolesale

Beer Distributors Assn., 196 NLRB No. 165.

Medical Manors, Inc ..

d/b/a Community Convalescent Hospital, 199 NLRB No. 139

rly expression of its willingness to arbitrate the dispute must be

required.

In formulating its Collyer policy, the Board has thus far

plBced little emphasis on the timeliness of respondent's Bssertion

of its willingness to arbitrate.

E.g., Norfolk Portsmouth ~fnolesale

Beer Distributors Assn., 196 NLRB No. 165.

Medical Manors, Inc ..

d/b/a Community Convalescent Hospital, 199 NLRB No. 139.

But these

cases for the most part were based on complaints issued and heard

before the Collyer policy had been fully developed and publicized

and before respondents had been given reasonable notice or the Boa~d's

change in deferral policy.

Certainly, in none of the cases in

which the Board deferred to arbitration had the respondent withheld

an indication of its willingness to arbitrate when administrative

deferral was proposed to the respondent earlier in the proceeding.

(contd.)

- 17 -

17/

(continued)

Now thatcc the Collyer policy has been more fully developed

and is better known, there is a greater warrant for the develop~

ment of orderly administrative procedures for application of this

policy in a manner best effectuating the objectives of the policy.

Assuming that the considerations which apply in a case after Board

deferral provide a guide to the administrative application of

deferral policy, it is significant that in Medical Manors, Inc.,

d/b/a Community Convalescent Hospital, 199 NLRB No. 139, the Board,

upon deferring for arbitration, cautioned respondent against "fur-

ther foot-dragging in such manner that the disputes in issue are

not promptly submitted to arbitration."

In light of these considerations it might be argued that a

respondent's refusal to express a willingness to arbitrate after

being informed that the preliminary investigation of the regional

office established an arguable violation, (See 61, infra.) should

be treated as a waiver of the right to do so and to secure deferral

thereafter in the unfair labor practice proceeding

ed to arbitration."

In light of these considerations it might be argued that a

respondent's refusal to express a willingness to arbitrate after

being informed that the preliminary investigation of the regional

office established an arguable violation, (See 61, infra.) should

be treated as a waiver of the right to do so and to secure deferral

thereafter in the unfair labor practice proceeding.

To so hold

would be consistent with the manner in which the Board handles

Collyer deferrals, since the Board does not determine the merits

of the alleged violation in deferring to contract arbitration pro-

cedures.

And deferral before the regional office has fully investi-

gated and finally determined the merits of the charge would preclude

any prejudice to respondent's position io the arbitration proceeding

which might occur if deferral always followed an administrative

finding that the charge is meritorious.

And finally, requiring

respondent to express its willingness to arbitrate at the earliest

possible time in the investigation of the charge would maximh.e the

saving in regional office time and resources necessary to process

charges in which deferral is appropriate.

It was concluded, however, that to impose this t'waiver;' policy

so early in the investigation would not be warranted at this time.

Until the Board has established some standards of waiver, it may be

counterproductive to litigate a number of cases based on this ea~ly

waiver policy, only to have these cases later deferred if the Board

ultimately selects a later time at which waiver occurs.

Moreover,

such a policy, may not in fact be necessary to meet the Board's ob-

jective of reducing the extent of agency intervention in Collyer

situations

established some standards of waiver, it may be

counterproductive to litigate a number of cases based on this ea~ly

waiver policy, only to have these cases later deferred if the Board

ultimately selects a later time at which waiver occurs.

Moreover,

such a policy, may not in fact be necessary to meet the Board's ob-

jective of reducing the extent of agency intervention in Collyer

situations.

Because of the potential impact even an administrative

determination that a charge has merit may have on any subsequent

arbitration, respondents may well prefer, in the vast majority of

cases, to express a 'villingness to arbitrate, and thus secure a

deferral, before the regional office makes a final determination of

the merits of the charge.

For the foregoing reasons, the instruction in the February 28,

1972 guidelines, that the regional office investigate and determine

fully the merits of the charge before deciding whether to defer, is

being revoked and the regional offices are now to defer before making

a final determination of the merits of the charge, or, in the dis-

cretion of the region, even before conducting a full investigation

(contd.)

18 -

(E) Good faith in the assertion of privilege for the disputed action

Failure of a party to assert a contract claim or other justi-

fication for its disputed action in the course of the development of

the dispute or after a charge is filed will not preclude deferral to

the contract arbitration procedures. 18/

However, if the justifications

which a party does assert for its disputed action are asserted in bad

faith, deferral would not be warranted.

Bad faith would be evidenced

by the fact that the asserted justifications are frivolous and the party

did not in fact rely on the asserted justification in taking its action. 19/

(F) J2isputes over special subject matters

arbitration procedures. 18/

However, if the justifications

which a party does assert for its disputed action are asserted in bad

faith, deferral would not be warranted.

Bad faith would be evidenced

by the fact that the asserted justifications are frivolous and the party

did not in fact rely on the asserted justification in taking its action. 19/

(F) J2isputes over special subject matters

Accretion Issues - Not suitable for deferral under the

Collyer policy are disputes over a contractual obligation to include in

an existing bargaining unit new facilities or operations acquired by the

employer. 20/

1:1.I

(continued) of the charge, if respondent expresses its willingness

to arbitrate at either of these points.

However, at least until

some experience is gained under the procedure outlined in the text

above, no contention should be made that respondent's willingness

to arbitrate was belatedly expressed unless the region has, in

writing, given the respondent notice that complaint will issue,

absent settlement, if respondent does not within 7 days notify the

region, in writing of its willingness to arbitrate the underlying

dispute.

See PROCEDURES FOR ADMINISTRATIVE DEFERRAL, Section I(6),

infra.

It should be noted that respondent's expression of its willing-

ness to arbitrate the dispute is considered an element of deferral

policy which is separate and distinct from respondent's affirmative

pleading of the Collyer defense in response to a complaint.

Thus,

cases dealing with the timely raising of the affirmative Collyer

deferral defense (see note 86, infra) are not considered relevant

to the question of belatedness in respondent's expression of its

willingness to arbitrate.

18/ Peerless Pressed Metal Corporation, 198 NLRB No. 5.

19/ See Peerless Pressed Metal Corporation, 198 NLRB lfo. 5, note 1.

But

cf. Wrought Washer Manufacturing Co., 197 NLRB No. 14; Great Coastal

Express, 196 NLRB No. 129.

20/ In Combustion Engineering, Inc., 195 NLRB No

are not considered relevant

to the question of belatedness in respondent's expression of its

willingness to arbitrate.

18/ Peerless Pressed Metal Corporation, 198 NLRB No. 5.

19/ See Peerless Pressed Metal Corporation, 198 NLRB lfo. 5, note 1.

But

cf. Wrought Washer Manufacturing Co., 197 NLRB No. 14; Great Coastal

Express, 196 NLRB No. 129.

20/ In Combustion Engineering, Inc., 195 NLRB No. 161, the Board refused

to defer to an arbitrator's decision that the employees of a faci-

lity newly established by the employer had been accreted to the

existing bargaining unit and covered by the bargaining agreement.

Former Board Member Brown, whose concurrence was necessary to the

majority decision in Collyer, expressed serious reservations about

surrendering bargaining unit determinations to private part~~s and

applying the Collyer principle to representation cases.

But cf.

Champlin Petroleum Co., 201 NLRB No. 9.

19 -

Information Issues - Disputes over a union's or

employer's request for information relevant and necessary to the

administration of the collective bargaining agreement 21/ or to the

eva·luation, processing and arbitration of grievances should not be

deferred for arbitration, 22/

even though (a) the contract contains

provisions pertaining to such requests for information and the contract

makes arbitration available to resolve disputes arising over the denial

JJJ

Cases involving application of Collyer deferral policy to disputes

over requested information relevant to contract negotiations should

be submitted to Washington for advice.

22/ See United-Carr Tennessee a Division of TRW, Inc., 202 NLRB No. 112.

In assessing the warrant for deferral in disputes over the refusal

to furnish information relevant to the evaluation and filing of a

potential grievance and information relevant and necessary to the

processing of a grievance already on file, the Court's decision in

N.L.R.B. v. Acme Industrial Co., 385 U.S

on for advice.

22/ See United-Carr Tennessee a Division of TRW, Inc., 202 NLRB No. 112.

In assessing the warrant for deferral in disputes over the refusal

to furnish information relevant to the evaluation and filing of a

potential grievance and information relevant and necessary to the

processing of a grievance already on file, the Court's decision in

N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 64 LRRM 2069, would

seem to weigh heavily against deferral for arbitration of a dispute

over such information.

The question presented in that case was the

obligation of an employer "to furnish information that. allows a union

to decide whether to process a grievance."

The Court stated that

"even if the policy of the Steelworkers cases /favoring arbitration/

were thought to spply with the same vigor to the Board as to the -

courts, that policy would not require the Board to absta1.n here."

After examination of the employer's obligation to furnish the grie-

vance-related information, the Court found the Board's order to

the employer to produce the information, "was consistent both with

the express terms of the Labor Act and with the national labor policy

favoring arbitration which our decisions have discerned as under-

lying that lsw."

(Emphasis added.) Further, the Court stated that,

"Far from intruding upon the preserve of the arbitrator, the Board's

action /In requiring that the information be furnished/ was in aid

of the ;rbitral process."

See Fawcett Printing Corp.-; 201 NLRB No. 139.

The Court's decision in Acme Industrial would hardly seem to

warrant a distinction, for the purpose of applying deferral policy,

between information requested for the purpose of deciding whether to

file a grievance and information requested for use in the processing

and arbitration of a grievance already on file.

In the Acme Industrial

case, the information was requested by the union only after the

grievance to which it pertained had been filed

em to

warrant a distinction, for the purpose of applying deferral policy,

between information requested for the purpose of deciding whether to

file a grievance and information requested for use in the processing

and arbitration of a grievance already on file.

In the Acme Industrial

case, the information was requested by the union only after the

grievance to which it pertained had been filed.

And the infor-

mation there would have manifestly been of use to the union in the

processing and arbitration of the grievance.

Moreover, the distinction between a party's requesting infor-

mation for the purpose of deciding "whether to process a grievance"

and a party's requesting information for the purpose of preparing

a grievance for presentation in the grievance-arbitration proce-

dures may be a tenuous one.

Even in a dispute in which a union has

(contd.)

- 20 -

of requests for such information, JJ.I

the request for information is pending

or (b) the dispute giving rise

in the arbitral forum. 24/

An unlawful refusal or failure to produce, upon request,

information relevant to the evaluation, processing and arbitration

of a grievance should not be severed from the dispute which gives rise

22/

(continued) already invoked the grievance procedures, addi tiona 1

information may cast doubt on the substantive merits of the grie-

vance and may contribute either to an adjustment of the dispute or

the abandonment of the grievance.

Fawcett Printing Corp., 201

NLRB No. 139.

23/

The Board's adoption of the Collyer policy of deferral may provide

an additional consideration which now weighs against deferral in

the instance of a dispute over information requested in connection

with a grievance even where the contract bears on the obligation to

furnish this information.

Clearly, the unlawful failure to provide

information relevant to the arbitration process strikes at the heart

of the process itself and inhibits full and fair use of that process

nal consideration which now weighs against deferral in

the instance of a dispute over information requested in connection

with a grievance even where the contract bears on the obligation to

furnish this information.

Clearly, the unlawful failure to provide

information relevant to the arbitration process strikes at the heart

of the process itself and inhibits full and fair use of that process.

The Collyer policy places a substantially greater reliance on pri-

vate dispute settlement procedures and therefore makes the full

availability of information relevant to the disposition of grievances

even more important.

Board enforcement of the duty to furnish

relevant information is an additional means of assuring that arbi-

tration awards will be supported by substantial evidence bearing on

the contractual and statutory issues raised by the dispute, thereby

minimizing the number of cases in which the arbitration fails to

meet the ''fair and regula~' test established by Spielberg.

Instructive

in this regard is the Board's observation in Joseph T. Ryerson &

Sons, Inc., 199 NLRB No. 44, that in "declining to intervene in dis-

putes best settled elsewhere we must assure ourselves that those

alternative procedures are not only 'fair and regular' but that they

are and were open, in fact, for use by the disputants.

These con-

siderations caution against our abstention on a claim that a respon-

dent has sought, by prohibited means, to inhibit or preclude access

to the grievance procedures."

24/

In disputes already before an arbitrator, the arbitrator may

on request require the production of relevant information.

Con-

ceivably, then, some disputes over the duty to furnish information

could be deferred for disposition by the arbitrator, with the

arbitrator's ruling on information requests being reviewed by the

Board in the post-arbitration assessment of the arbitration unde.r

the Spielberg standards.

Yet, upon reflection, it was concluded

that such an approach should not be adopted

evant information.

Con-

ceivably, then, some disputes over the duty to furnish information

could be deferred for disposition by the arbitrator, with the

arbitrator's ruling on information requests being reviewed by the

Board in the post-arbitration assessment of the arbitration unde.r

the Spielberg standards.

Yet, upon reflection, it was concluded

that such an approach should not be adopted.

Thus, it should be

recognized that in the dispute over requested information, deferral

for disposition by the arbitrator of the underlying dispute would

have a particularly anomalous effect in instances in which the

(contd.)

21 -

to the grievance in question and unfair labor practice charge. 25/

That is, if deferral is refused as to the dispute over the union's

reouest for information pursuant to the above guidelines, and that

24/

25/

(continued) requested information pertains to an underlying dis-.

pute (such as a mere breach of contract) which is not the subject

of an unfair labor practice charge.

If the charging party were

forced to arbitrate the underlying dispute while it lacked infor-

mation relevant thereto because the arbitrator refused to require

that i' be produced and if the charging party were to lose that

arbitration, the Board might then decide to proceed on the dispute

over the requested information (particularly if the respondent

has refused either to supply the information or to arbitrate its

refusal).

But this would provide small comfort to the charging

party, for even if the Board were finally to order that this infor-

mation be produced, the charging party would have, by that time,

already lost in the underlying dispute to which the information would

have been relevant.

Since the underlying dispute was not subject

to an unfair labor practice charge, the Board might be powerless

to rectify the result which may have flowed from the respondent's

unlawful refusal to provide the requested relevant information.

The Board's decision in George Koch Sons, Inc., 199 NLRB No

me,

already lost in the underlying dispute to which the information would

have been relevant.

Since the underlying dispute was not subject

to an unfair labor practice charge, the Board might be powerless

to rectify the result which may have flowed from the respondent's

unlawful refusal to provide the requested relevant information.

The Board's decision in George Koch Sons, Inc., 199 NLRB No. 26,

would seem to require that to the extent the allegations as to the

requested information cannot be deferred for arbitration, the

allJgations pertaining to the dispute to which the information is

relevant cannot be deferred for arbitration.

These allegations per-

tain to but two parts of a single dispute or at the least, to closely

related disputes which raise one or more common issues.

In the Koch case, the union was charged with the violation of

Section 8(b)(l)(B) for fining a supervisor and striking the employer

because the supervisor worked at terms below those set by the bar-

gaining agreement.

In refusing to defer for arbitration of the

strike under the contract, the Board said:

Furthermore, since we are in any event required to

take jurisdiction in order to determine the issue of

whether the fine was violative of our Act, there seems

less reason to defer the other issue raised by the com-

plaint; namely, the Union's conduct with respect to the

strike.

When an entire dispute can adequately be dis-

posed of under the grievance and arbitration machinery, we

are favorably inclined toward permitting the parties an

opportunity to do so.

One of our reasons for so doing

is to avoid litigating the same issues in a multiolicity of

forums.

But here, since we must perforce determine a part

of the dispute, there is far less compelling reason for

not permitting the entire dispute to be resolved in a

single proceeding. _[Emphasis added~/

(contd. l

22 -

e favorably inclined toward permitting the parties an

opportunity to do so.

One of our reasons for so doing

is to avoid litigating the same issues in a multiolicity of

forums.

But here, since we must perforce determine a part

of the dispute, there is far less compelling reason for

not permitting the entire dispute to be resolved in a

single proceeding. _[Emphasis added~/

(contd. l

22 -

information is relevant. to a dispute which is also the subject of a

separate unfair labor charge and potential grievance deferral of the

lRtter charge for arbitration should also be refused. 26/

251

26/

(continued)

Application of this policy would seem particularly appropriate

in disputes over requested information for yet another reason.

The

Board's deferral of the main or underlying dispute for arbitration,

while proceeding to litigate the charge based on the refusal to fur-

nish information about the main dispute, would put the chargin!! partv

in a difficult position and tend to delay unduly the resolution of

the main, underlying dispute.

Thus, the charging party would be re-

quired to proceed immediately to arbitration of the main dispute

while it lacked information relevant thereto to which it is entitled

--or the charging party would, in the alternative, be required to

secure a postponement in the arbitration proceeding until the infor-

mation issue is litigated in an unfair labor practice proceeding and

the Board, or an appellate court, issues an order compelling pro-

duction of the disputed information.

To put the charging party to

this choice would obviously tend to defeat the objectives of the

Collyer policy of encouraging the quick and fair resolution of dis-

putes

tponement in the arbitration proceeding until the infor-

mation issue is litigated in an unfair labor practice proceeding and

the Board, or an appellate court, issues an order compelling pro-

duction of the disputed information.

To put the charging party to

this choice would obviously tend to defeat the objectives of the

Collyer policy of encouraging the quick and fair resolution of dis-

putes.

Furthermore, if the Board holds that a disputed action

giving rise to a charge and a disputed refusal to furnish information

as to that action, also giving rise to a charge, cannot be separated

for the purposes of applying Collyer deferral policy, then the

respondent who seeks deferral of the charge as to the underlying dis-

pute may be encouraged to furnish information relevant thereto if

its failure to do so will operate to preclude deferral as to the

underlying disputes.

For example, if a charge or charges are filed alleging violations of

the Act based on the respondent's unilateral change of employment

conditions and the respondent's failure to produce requested infor-

mation relevant to the processing of a grievance challenging that

change, deferral of the charge based on the unilateral change would be

inappropriate if the information issue itself is not deferrable.

But if, after the region communicates to respondent its intention

to issue a complaint on the refusal of information charge, the

respondent supplies the information, the \inilateral change issue may

be deferred in accordance with the Collyer policy.

Otherwise the

region should proceed to a Section 8(a)(5) complaint on both the

unilateral change and information issues.

23 -

ot deferrable.

But if, after the region communicates to respondent its intention

to issue a complaint on the refusal of information charge, the

respondent supplies the information, the \inilateral change issue may

be deferred in accordance with the Collyer policy.

Otherwise the

region should proceed to a Section 8(a)(5) complaint on both the

unilateral change and information issues.

23 -

Obligation to Recognize - Deferral is not appropriate

in a dispute in which the employer's basic obligation or willingness

to recognize the union is contested. 27/

Frustration of Arbitration - Deferral is not appropriate

in a dispute in which respondent was attempting to foreclose or frustrate

resort to the arbitration procedure. 28/

Existence of Contract - Deferral is not appropriate in

a dispute where there is a substantial question as to the existence of

the contract as a whole at the time the dispute arose, as in instances

in which there is a substantial question whether the contract had been

agreed to, or had been extended or automatically renewed. 29/

28/

'!::}_/

For disputes of this type, see William J. Burns Detective Agency,

182 NLRB 348,

and Ranch-Way, Inc., 183 NLRB No. 116.

Member

Brown in his concurring opinion in the Collyer case expressed the

opinion that the Board should not defer to arbitration "where the

very process of bargaining, including grievance arbitration, has

been repudiated and is, in effect, nonexistent."

See also, Chase

Manufacturing, Inc., 200 NLRB No. 128.

In Joseph T. Ryerson & Sons, Inc , 199 NLRB No. 44, the Board

declined to defer to arbitration in a dispute involving an alleged

threat of retaliation made by the employer to a union committeemen

in connection with the latter's efforts to process a grievance.

The Board stated that the violation with which the employer was

charged, if committed, struck at the heart of the grievance and

arbitration machinery

erson & Sons, Inc , 199 NLRB No. 44, the Board

declined to defer to arbitration in a dispute involving an alleged

threat of retaliation made by the employer to a union committeemen

in connection with the latter's efforts to process a grievance.

The Board stated that the violation with which the employer was

charged, if committed, struck at the heart of the grievance and

arbitration machinery.

Deferral is warranted, the Board ruled,

only where the arbitral procedures are "fair and regular" and

where, in addition, they are in fact open to the disputants.

Mili-

tating against deferral was the fact that respondent was alleged

to have "sought by prohibited means, to inhibit or preclude access

to the grievance procedures."

But cf. Medical Manors, Inc., d/b/a

Community Convalescent Hospital, 199 NLRB No. 139.

For disputes of this type see William J. Burns Detective Agency,

182 NLRB

348;

The Crescent Bed Company, Inc., 157 NLRB 296;

and Associated Building Contractors of Evansville, Inc., 143 NLRB

678.

Cf. The Associated Press, 199 NLRB No. 168.

The Collyer policy of deferral having been predicated upon

the availability of contractual arbitration procedures, the re-

quisite basis for deferral would be lacking where there is sub-

stantial doubt as to the existence of the contract as a whole, or

the arbitration provisions thereof at the time the dispute arose.

Borden. Inc., 196 NLRB No. 172; Hilton-Davis Chemical Co .• 185 NLRB

No. 58. Cf. Taft Broadcasting Co., 185 NLRB No. 68. Deferral would

not become appropriate where the existence of a contract is disputed,

even if the region concludes that agreement between the parties had

been reached and is prepared to issue a complaint based on a Hein2

theory.

311 U.S. 514.

See also National Heat and Power Corp., 201 NLRB No. 150.

24 -

ton-Davis Chemical Co .• 185 NLRB

No. 58. Cf. Taft Broadcasting Co., 185 NLRB No. 68. Deferral would

not become appropriate where the existence of a contract is disputed,

even if the region concludes that agreement between the parties had

been reached and is prepared to issue a complaint based on a Hein2

theory.

311 U.S. 514.

See also National Heat and Power Corp., 201 NLRB No. 150.

24 -

Unlawful Contract Provisions - Deferral is not appropriate

in a dispute where the contract provisions governing the underlying dis-

pute are unlawful on their face, 30/ or by their express terms call for

a result inconsistent with Board policy under the Act. 31/

"I nterest

, "Negotiability" and "Unit Elimination"

Arbitration -

Casea involving (1) arbitration to establish terms and

conditions of employment, i.e., "interest" arbitration as distinguished

from "grievance" or "rights" arbitration, ]1_/ (2) arbitration of dis-

putes over a contractual obligation tO negotiate on a particUlar sub-

ject during the-contract term, and (3) disputed employer action resulting

in the substantial or total elimination of the bargaining unit, should

be submitted to Washington for advice. 33/

(G) Skills required in the resolution of the dispute

If deferral is otherwise appropriate, a dispute should be

deferred for arbitration even though the resolution of the dispute may

not require the "special skill and expertise" which an arbitrator might

possess. 34/

30/

George Koch Sons, Inc., 199 NLRB No. 26.

See note 7, supra.

31/ For example, a dispute over whether the discharge of employees for

striking in the face of a no-strike clause violated the Act should

not be deferred for arbitration where the region finds that the

strike was caused by serious employer unfair labor practices with-

in the meaning of Mastro Plastics Corp. v. N.L.R.B., 350 U. S. 270.

Nor should the unfair labor pract·ices over which the strike arose

be deferred.

See George Koch Sons, Inc., 199 NLRB No~ 26, where

the Board said "/s/ince

o-strike clause violated the Act should

not be deferred for arbitration where the region finds that the

strike was caused by serious employer unfair labor practices with-

in the meaning of Mastro Plastics Corp. v. N.L.R.B., 350 U. S. 270.

Nor should the unfair labor pract·ices over which the strike arose

be deferred.

See George Koch Sons, Inc., 199 NLRB No~ 26, where

the Board said "/s/ince .

. a part of the dispute /must be

determined by th-;-Boardf, there is far less compelli-;:;g reason for

~ot permitting the entire dispute to be resolved in a single pro-

ccedl ng."

However, where the region finds that the employer unfair

labor practices are not sufficiently serious to privilege the

strlke as a protected concerted activity (Arlan's Department Store,

133 NLRB 802), deferral of the entire dispute would be warranted

if all other conditions necessary to deferral are met.

Atlantic

Richfield Co., 199 NLRB No. 135.

32/

See Member Brown's concurring opinion in the Collyer case.

33/

See Coppus Engineering Corp., 195 NLRB No. 113, where_the Board

in deciding not to

11 exercise its authority to interpret contract

provisions where necessary to resolve unfair labor practice

issues", relied in part on "the minimal effect "hi ch the Respondent's

alleged unilateral conduct has had upon bargaining unit employees.··

34/

While in Collyer the Board said, "disputes such as these can be

better resolved by arbitrators with special skill and experience in

deciding matters arising under established bargaining relationship~

" the Board seems to have been describing

(contd.)

25 -

relied in part on "the minimal effect "hi ch the Respondent's

alleged unilateral conduct has had upon bargaining unit employees.··

34/

While in Collyer the Board said, "disputes such as these can be

better resolved by arbitrators with special skill and experience in

deciding matters arising under established bargaining relationship~

" the Board seems to have been describing

(contd.)

25 -

_,) Respondent's offer to di-uss a

conditions before effcctiultion

disputed change in \,>OrkinR

An employer's failure or refusal to discuss a disputed

;e in "-'Otking conditions before or after effectuating it does not

Lude deferral of a resulting charge for arbitration. 35/

Contract Provisions Concerning the Resolution of Disputes

An unfair labor practice charge will not be deferred for

.tration under the Collyer policy unless the contract makes binding

ltration available'to the charging party 36/ for resolution of the

(continued) an advantage of, rather than a condition precedent to,

deferral for arbitration.

The Board may have seen "disputes such

as thes~' as particularly suited to the special skills of arbi-

trators, but the Board did not suggest, and it i.-ould be anomalous to

infer, that the simplicity of the issues involved in the dispute

would "'eigh in favor of Board assertion of jurisdiction.

And the

Board .has not "'ithheld deferral even though the arbitrator \>as pre-

sented primarily a statutory issue.

Bethlehem Steel Corp., 197 NLRB

No. 121; L •. E.M. d/b/a Southwest: Engraving Co., 198 NLRB No. 99;

National Radio Co., 198 NLRB No. l; Norfolk Portsmouth Wholesale

Beer Distributors Assn., 196 NLRB No. 165; The Associated Press,

199 NLRB No. 168; Tyee Construction Co., 202 NLRB No. 34.

~/ See e.g. Collyer Insulated Wire, 192 NLRB No. 150; Southwestern

Bell Telephone Co., 198 NLRB No. 6; Great Coastal Express, 196

NLRB 129

No. 121; L •. E.M. d/b/a Southwest: Engraving Co., 198 NLRB No. 99;

National Radio Co., 198 NLRB No. l; Norfolk Portsmouth Wholesale

Beer Distributors Assn., 196 NLRB No. 165; The Associated Press,

199 NLRB No. 168; Tyee Construction Co., 202 NLRB No. 34.

~/ See e.g. Collyer Insulated Wire, 192 NLRB No. 150; Southwestern

Bell Telephone Co., 198 NLRB No. 6; Great Coastal Express, 196

NLRB 129.

An employer's having discussed or offered to discuss

such a change may bear on a determination of the employer's moti-

vation in making the change, as "'ell as on whether the employer

made the change unilaterally.

Cf. Coppus Engineering Corp., 195

NLRB No. 113.

The fact that the employer discussed or offered to

discuss the change would not, of course

bear on the question of

whether the change constituted a midterm contract modification

within the meaning of Section 8(d).

~/ The term "available" as used here refers to the encompassment of

the dispute by the arbitration procedures and the right of the

charging party to invoke these procedures generally. lt does not

refer to contract time limitations on the filing of grievances

and processing them to arbitration..

See cas·es cited in note 13,

supra.

Where the charging party is an individual employee, the con-

tract must make arbitration available to the party to the contract.

if any, whose interests are in substantial harmony with those of

the charging party in order to warrant deferral.

See the section

titled, "(C) Arbitration available at the insistence of the charging

party,

11 infra.

26 -

n..

See cas·es cited in note 13,

supra.

Where the charging party is an individual employee, the con-

tract must make arbitration available to the party to the contract.

if any, whose interests are in substantial harmony with those of

the charging party in order to warrant deferral.

See the section

titled, "(C) Arbitration available at the insistence of the charging

party,

11 infra.

26 -

underlying dispute 37/ and there are no obstacles to a quick and

fair resolution of the dispute through arbitration.

(A) Reouirement that the contract procedures for the

resolution of disputes lead to "arbitration"

Unfair labor practice charges will not be deferred for arbi-

tration unless the applicable contract procedures for the resolution of

disputes provide for "arbitration." 38/ In determining whether the

38/

The February 28, 1972 guidelines at pages 10 to 12 provided for

deferral administratively only where the contract made the grie-

vance and arbitration procedure the

11 exclusive

11 means for settle-

ment of the dispute.

This guideline was based on the Board's

reliance in the Collyer case on the express exclusivity of the

contract grievance arbitration procedures.

However, in subsequent

cases the Board has applied the Collyer policy in the absence of

any finding, such as was made in the Collyer case, that "the

parties intended to make the grievance and arbitration machinery

the exclusive forum for resolving contract disputes."

See, e.g.,

Medical Manors, Inc., d/b/a Community Convalescent Hospital, 199

NLRB No. L39, where the dispute was described as "cognizable" under

the contract procedures, and Peerless Pressed Metal Corp., 198

NLRB No. 5, where the grievance procedures leading to arbitration

were said to be "available" to either party.

Moreover, in setting

out the

11 crucial determinant" and the "two basic conditions" for

deferral in National Radio Co., 198 NLRB No. 1, and Eastman

Broadcasting Co., 199 NLRB No

pute was described as "cognizable" under

the contract procedures, and Peerless Pressed Metal Corp., 198

NLRB No. 5, where the grievance procedures leading to arbitration

were said to be "available" to either party.

Moreover, in setting

out the

11 crucial determinant" and the "two basic conditions" for

deferral in National Radio Co., 198 NLRB No. 1, and Eastman

Broadcasting Co., 199 NLRB No. 38, the Board did not include the

exclusivity of the contract arbitration procedures as a necessary

element of deferral.

See note 6, supra.

Rather, in the Eastman

case the Board called for deferral where the disputes issues are

"susceptible of resolution" under the contract grievance machinery.

Similarly, in Joseph T. Ryerson & Sons, 199 NLRB No. 44, the Board

described its Collyer policy as "our growing practice to abstain

from action where grievance and .arbitration procedures ~

available to resolve a dispute equally cognizable in either

forum." I (Emphasis added.) It seems clear, therefore, that the

Board predicates deferral on the availability of grievance-arbi-

tration procedures in otherwise suitable circumstances and not

on any express or implied agreement of the parties to employ only

those procedures in the settlement of their disputes.

Ladish Co., 200 NLRB No. 165, note 4.

27 -

person, persons or body provided in the contract for the last-stage

resolution of the dispute are arbitrators or arbitral bodies, and

that the contract therefore provides for "arbitration", the criteria

for this determination which have been developed by the Board in the

application of the Spielberg 39/ policy should be employed.

Thus,

the absence of a neutral member on a bipartite panel would not neces-

sarily preclude deferral. 40/

But where, in addition, it appears

that all members of the bipartite panel would be arrayed in interest

against the charging party, deferral would not be appropriate

is determination which have been developed by the Board in the

application of the Spielberg 39/ policy should be employed.

Thus,

the absence of a neutral member on a bipartite panel would not neces-

sarily preclude deferral. 40/

But where, in addition, it appears

that all members of the bipartite panel would be arrayed in interest

against the charging party, deferral would not be appropriate. 41/

(B) Encompassment of the dispute by the arbitration provisions

The grievance and arbitration provisions of the contract

must at least arguably encompass the type of dispute in question. 42/

A contract which subjects all disputes between the parties arising~

39/

40/

41/

42/

Spielberg Manufacturing Co., 112 NLRB 1080.

See note 2, supra.

Denver-Chicago Trucking Co., 132 NLRB 1416; Modern Motor Express,

Inc., 149 NLRB 1507.

The Board's reference in Tulsa-Wisenhunt

F,;;eral Homes, Inc., 195 NLRB No. 20, n. 1. to "a forum of third

parties" was not deemed sufficient to infer Board rejection of the

relevance of the Denver-Chicago principle to the Collyer deferral

policy.

See Great Coastal Express, Inc., 196 NLRB No. 129; National

Biscuit Co., 198 NLRB No. 4; Tyee Construction Co., 202 NLRB No. 34.

Roadway Express, Inc., 145 NLRB 513; Youngstown Cartage Co., 146

NLRB 305; Jacobs Transfer, Inc., 201 NLRB No. 34.

Cf. Kansas Meat

Packers, 198 NLRB No. 2. See note 56, infra.

Certain of the Board's decisions suggest that the dispute must be

clearly encompassed by the grievance and arbitration provisions,

i.e., must clearly be grievable or within the contractual definition

of a grievance, to warrant deferral under Collyer.

In determining

whether the "two basic conditions for deferral were met in

Eastman Broadcasting Co., 199 NLRB No. 58, the Board found that

"the grievance-arbitration procedures encompass 'any •.

ispute must be

clearly encompassed by the grievance and arbitration provisions,

i.e., must clearly be grievable or within the contractual definition

of a grievance, to warrant deferral under Collyer.

In determining

whether the "two basic conditions for deferral were met in

Eastman Broadcasting Co., 199 NLRB No. 58, the Board found that

"the grievance-arbitration procedures encompass 'any •.. dis-

pute' "arising under the contract and that "each of the issues

in this case revolves on matters ..• that come within the com-

pass of the agreed-upon procedures."

And in saying in Joseph T.

Ryerson & Sons, Inc., 199 NLRB No. 44, that "we have required as

a condition of such abstention that the dispute presented in our

proceeding be cognizable in the contractual forum," the Board

refused deferral, in part, because it did not "clearly appear

that the incident complained of . . . could form the basis of a

grievance cognizable under the contract."

(Emphasis added.) See

also Memorandum of the General Counsel entitled "Arbitration

Deferral Policy Under Collyer", issued February 28, 1972, notes 26,

27.

Cf. H.K. Porter Co., Inc. v. N.L.R.B., 397 U.S. 99.

(contd.)

28 -

42/

(continued)

In other cases, however, deferral was found warranted where

the dispute was "arguably", rather than "clearly", encompassed by

the grievance-arbitration procedures.

In Urban N. Patman, Inc.,

197 NLRB No. 150, controversies over wages were expressly excluded

from the grievance procedures, but the Board found the dispute to

be "arguably one of whether the contract covers the pre-cooked food

department employees," which would have been grievable. "Moreover,"

the Board said, "arbitrability of such disputes is properly deter-

minable by an arbitrator."

The grievance-arbitration provisions

in Southwestern Bell Telephone Co., 198 NLRB No. 6, encompassed "a

difference . . . regardiQg . . . the tru~ intent and meaning of

any specific provision /of the agreement/ or the application of any

provision ..

yees," which would have been grievable. "Moreover,"

the Board said, "arbitrability of such disputes is properly deter-

minable by an arbitrator."

The grievance-arbitration provisions

in Southwestern Bell Telephone Co., 198 NLRB No. 6, encompassed "a

difference . . . regardiQg . . . the tru~ intent and meaning of

any specific provision /of the agreement/ or the application of any

provision ... or the dismissal of any-employee ... " and ex-

cluded "prospective modifications or amendments of j_the agreemen.!:_7."

The Administrative Law Judge found that the contract did nd: deal

with the issues raised by respondent's having acted unilaterally

in establishing a separate work force at a new facility working

part-time on the basis of a separate seniority system.

The

Administrative Law Judge concluded that the new plan amounted to

a modification of the agreement and that the dispute over respondent',

unilateral action was therefore expressly excluded from arbitration.

The Board disagreed, finding that "this dispute arguably arises

fr2!!! the collective-bargaining agreement" and pointed out that

"jj)f the Union felt that Respondent took action that was outside

the contract, it could invoke the grievance procedure."

(Emphasis

added.)

See Southwestern Bell Telephone Co. v. CWA, AFL-CIO, and

Local 6222, 79 LRRM 2480, modifying the opinion at 78 LRRM 2832,

(C.A. 5, 1971),where,in determining the warrant for a Boys Market

injuretion, the Court applied a test of "arguable arbitrability."

Cf. Western Electric, Inc., 199 NLRB No. 49.

Finally, in Norfolk

Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No. 165, the

respondent had rebuffed the union s efforts to institute grievances,

apparently contending that the matter was not arbitrable because

the respondent's obligation to make dues deducrion was dependent upon

whether the individual checkoff authorizations in question violated

Section 302 of the Act

RB No. 49.

Finally, in Norfolk

Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No. 165, the

respondent had rebuffed the union s efforts to institute grievances,

apparently contending that the matter was not arbitrable because

the respondent's obligation to make dues deducrion was dependent upon

whether the individual checkoff authorizations in question violated

Section 302 of the Act.

The Board disagreed, finding that the

ultimate question of respondent's violation of the contract depended

upon the validity of the employee checkoff authorizations and that

this was "clearly a contract issue fully capable of resolution

under the contractual procedures for resolving such dispute."

The

Board concil!uded that although the respondent "asserted that the

validity of the cards is not arbitrable, this issue of arbitrability

should itself be submitted to the arbitrator, as has become the

near universal practice under collective-bargaining agreements."

See also such cases as Bethlehem Steel Corp., 197 NLRB No. 121;

National Radio Co., 198 NLRB No. 1, and Tyee

Construction Co., 202

NLRB No. 34.

(contd.)

29 -

during the term of the contract to arbitration is deemed to encompass

any dispute involving a term or condition of employment. 43/

A con-

tract which subjects disputes over the interpretation, application or

alleged violation of the contract to arbitration is deemed to encompass

any dispute involving the enforcement or attempted enforcement of any

contract provision or the alleged violation of any contract provision.44/

Contract clauses excluding designated subjects from the arbitration

agreement or limiting the scope of the arbitrator's review or remedial

powers should be narrowly construed

alleged violation of the contract to arbitration is deemed to encompass

any dispute involving the enforcement or attempted enforcement of any

contract provision or the alleged violation of any contract provision.44/

Contract clauses excluding designated subjects from the arbitration

agreement or limiting the scope of the arbitrator's review or remedial

powers should be narrowly construed. 45/

Deferral will not be pre-

cluded by the fact that a substantial question is raised as to the arbi-

trability of the dispute, arbitrability being "properly determinable by

an arbitrator." 46/

42/

(continued)

In sum, it would appear that the Board considers deferral under

the Collyer policy warranted if the dispute underlying the charge

is at least arguably encompassed by the grievance-arbitration of the

contract.

43/ In Bethlehem Steel Corp., 197 NLRB No. 121, although the Administrative

Law Judge found the contract to be silent on the subject of subcon-

tracting work, and the respondent justified its having subcontracted

work unilaterally only on a claim of inability to do the work,without

referring to any contract provision bearing on that subject, the

Board nevertheless deferred for arbitration under a grievance and

arbitration procedure which comprehended "any difference" between

the parties.

Presumably, a grievance-arbitration procedure which

encompassed "all disputes between the parties" would constitute a

basis for deferral even in instances in which an employer allegedly

refused to bargain during the contract term on an "open" subject of

bargaining or allegedly made a unilateral change in such a subject.

44/

Great Coastal Express, 196 NLRB No. 129; National Radio Co., 198

NLRB No. l; L.E.M. d/b/a Southwest Engraving Co., 198 NLRB No. 99;

Norfolk Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No.

165; Urban N. Patman, 197 NLRB No. 150; Wrought Washer Manufacturing

£2·, 197 NLRB No. 14; Southwestern Bell Telephone Co., 198 NLRB No. 6

llegedly made a unilateral change in such a subject.

44/

Great Coastal Express, 196 NLRB No. 129; National Radio Co., 198

NLRB No. l; L.E.M. d/b/a Southwest Engraving Co., 198 NLRB No. 99;

Norfolk Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No.

165; Urban N. Patman, 197 NLRB No. 150; Wrought Washer Manufacturing

£2·, 197 NLRB No. 14; Southwestern Bell Telephone Co., 198 NLRB No. 6.

Even though the grievance-arbitration provision of a contract

is confined to disputes over the application or violation of the con-

tract, an alleged unilateral change in an "open" subject of bargaining

would nevertheless be encompassed by the grievance-arbitration pro-

visions if the contract contained a broad "zipper" or management

prerogatives clause.

Radioear Corp., 199 NLRB No. 137.

45/

Urban N. Patman, 197 NLRB No. 150; Southwestern Bell Telephone Co.,

198 NLRB No. 6; Western Electric, Inc., 199 NLRB No. 49; Kansas

Meat Packers, 198 NLRB No. 2.

But cf. Joseph T. Ryerson & Sons,

Inc., 199 NLRB No. 44.

46/ $;;;; note 42, supra.

- 30 -

The grievance and arbitration provisions of the contract must

make arbitration available for resolution of the dispute at the in-

sistence of the charging party. 48/

Where the contract makes processing

of the dispute through the grievance procedures a prerequisite to arbi-

tration, the contract must permit the charging party both to file grie-

vances and to invoke arbitration upon exhaustion of the grievance pro-

cedure. 49/

However, arbitration will not be deemed unavailable to a

union ev~ though the contract provides for the filing of grievances;

which are a prerequisite to arbitration, only by employees, and no such

grievance has been filed

requisite to arbi-

tration, the contract must permit the charging party both to file grie-

vances and to invoke arbitration upon exhaustion of the grievance pro-

cedure. 49/

However, arbitration will not be deemed unavailable to a

union ev~ though the contract provides for the filing of grievances;

which are a prerequisite to arbitration, only by employees, and no such

grievance has been filed. 50/

Arbitration is to be considered available

to the charging party where, upon exhaustion of the grievance procedure,

arbitration procedures may be invoked by the charging party alone or by

management and union representatives other than the immediate disputants

but not where the arbitration procedures can be invoked only by mutual

assent of the immediate disputants. l!.I

(D) The binding character of the arbitration result

Unfair labor practice charges will not be deferred for arbi-

tration under Coll;,:er policy if the arbitration provisions of the con-

tract do not make the results reached in such proceedings "binding" or

"final and binding" on the parties. 52/

The term "binding" is con-

sidered to refer to a contractual obligation to abide by the terms of

the arbitration award or decision, which obligation may be inferred

even in the absence of the specific term "binding."

Contractual

reference to a party's right to judicial review of an award (as well

as "case law" or statutory right to such review) would not be con-

sidered inconsistent with a determination that the award is binding on

48/

49/

50/

l!.f

:g/

Where the charging party is an individual employee referred to in

III, infra, the term "charging party" as used in this section is

intended to include the party to the contract, if any, having

interests in substantial harmony with those of the charging employee.

Tulsa-Wisenhunt Funeral Homes, Inc., 195 NLRB No. 20; Gary-Hobart

Water Corp., 200 NLRB No. 98.

Western Electric, Inc., 199 NLRB No. 49, note 3.

L.E.M. d/b/a Southwest Engraving Co., 198 NLRB No

III, infra, the term "charging party" as used in this section is

intended to include the party to the contract, if any, having

interests in substantial harmony with those of the charging employee.

Tulsa-Wisenhunt Funeral Homes, Inc., 195 NLRB No. 20; Gary-Hobart

Water Corp., 200 NLRB No. 98.

Western Electric, Inc., 199 NLRB No. 49, note 3.

L.E.M. d/b/a Southwest Engraving Co., 198 NLRB No. 99, Norfolk

Portsmouth Wholesale Beer Distributors Assn., 196 NLRB No. 165;

Urban N. Patman, 197 NLRB No. 150.

National Biscuit Co., 198 NLRB No. 4; Tulsa-Wisenhunt Funeral Hornes,

Inc., 195 NLRB No. 20; Western Electric, Inc., 199 NLRB No. 49,

oote 3.

Coll;,:er Insulated Wire, 192 NLRB No. 150.

Several of the decisions

in which the Board has deferred under the Collyer policy do not

reflect whether the contract made the arbitral result binding on

the parties.

However, in none of these decisions does it affir-

matively appear that arbitration was not binding on the parties.

31 -

the parties. 53/

Contracts which make arbitration a prerequisite to the

resort to other means for resolution of a dispute, most often strikes,

should be submitted to Washington for advice.

(E) Obstacles to a quick and fair arbitral resolution of the

dispute

In cases in which a substantial claim is made that for prag-

matic, rather than formal, contractual reasons, the arbitration pro-

cedures do not in fact afford the charging party what the Board has

referred to as a "quick and fair means" for resolving the dispute, 54/

the matter should be submitted to Washington for advice.

Where

such a claim is predicated on a substantial number or backlog of pen-

ding arbitration cases, a comparison of the projected time for issuance

of an arbitration award with that for a Board order will be relevant

ct afford the charging party what the Board has

referred to as a "quick and fair means" for resolving the dispute, 54/

the matter should be submitted to Washington for advice.

Where

such a claim is predicated on a substantial number or backlog of pen-

ding arbitration cases, a comparison of the projected time for issuance

of an arbitration award with that for a Board order will be relevant.

Where such claims concern the cost of arbitration procedures and the

relative disparity of the financial resources available for this pur-

pose to the respective disputants, the number and kinds of issues

recently submitted to arbitration by the parties will be relevant.

Ill Special Considerations Concerning Charges Filed by Individuals

Charges filed by individual employees claiming to be

affected adversely by alleged violations of the Act (or filed on their

behalf of any person other than a party to the contract) will be

deferred for arbitration 55/ if the following conditions are met:

54/

55/

56/

The interests of the individual charging party

are in substantial harmony with the interests

of one of the parties to the collective bar-

gaining agreement, that party being willing to

invoke the contractual arbitration procedure

available to it and advocate the charging party's

position before the arbitrator. 5~/

Cf. Malrite of Wisconsin, Inc., 198 NLRB No. 3 in which the Board

deferred to the "entire arbitration process" where the charging

union had prevailed in arbitration and the employer refused to

comply with the award, on the ground that noncompliance with the

award was not a matter for the Board's concern.

Collyer Insulated Wire, 192 NLRB No. 150; Bethlehem Steel Corp.,

197 NLRB No. 121; National Radio Co., 198 NLRB No. l; Joseph T.

Ryerson & Sons, Inc., 199 NLRB No. 44.

Tyee Construction Co., 202 NLRB No. 34.

In Kansas Meat Packers, 198 NLRB No

itration and the employer refused to

comply with the award, on the ground that noncompliance with the

award was not a matter for the Board's concern.

Collyer Insulated Wire, 192 NLRB No. 150; Bethlehem Steel Corp.,

197 NLRB No. 121; National Radio Co., 198 NLRB No. l; Joseph T.

Ryerson & Sons, Inc., 199 NLRB No. 44.

Tyee Construction Co., 202 NLRB No. 34.

In Kansas Meat Packers, 198 NLRB No. 2, the Board refused to defer

to arbitration because "the interests of the Charging Parties- -the

alleged discriminatees--are in spparent conflict with the intersts

(contd.)

32 -

56/

(continued) of the Union and certain of its officials, as well

as with the interests of Respondent."

The Board concluded that:

Under all the facts and circumstances set forth above--parti-

cularly thf' apparent antagonism between the interests of the

discriminatees, on the one hand, and both parties to the

collective bargaining contract herein, on the other, and the

discriminatees' resultant election to refrain from seeking

redress through that contract's grievance procedures--we

conclude that it would be repugnant to the purposes of the

Act to defer to arbitration in this case as to do so would

relegate the Charging Parties to an arbitral process authored,

administered, and invoked entirely by parties hostile to

their interests.

See also Western Electric Company, Inc., lBO NLRB 131 and cases

cited therein; Hershey Chocolate Corp., 129 NLRB 1052.

The existence or lack of a harmony of interests between the

charging party and a party to the contract depends in part on

the circumstances under which the dispute arose and the conduct and

motives of the parties which gave rise to the dispute in question.

In the Kansas Meat Packers case the Board, in finding no harmony

of interests, relied on the evidence of antagonism between the

charging parties and agents of the union and on the employer's

acquiescence in the union's efforts to cause their discharge as a

consequence of this hostility

ch the dispute arose and the conduct and

motives of the parties which gave rise to the dispute in question.

In the Kansas Meat Packers case the Board, in finding no harmony

of interests, relied on the evidence of antagonism between the

charging parties and agents of the union and on the employer's

acquiescence in the union's efforts to cause their discharge as a

consequence of this hostility.

A finding that a harmony of interests exists which would

warrant deferral also requires that the contracting party in

question be willing to carry the dispute to arbitration and press

the charging party's position in that proceeding.

In determining

that such a harmony of interests was absent in Kansas Meat Packers

the Board pointed out that "/tihe Union, concededly, never investi-

gated the circumstances of these discharges, never filed a grie-

vance with respect thereto, and did not file unfair labor practice

charges."

Conversely, in finding a harmony of interests to exist

in National Radio Co., 198 NLRB No. 1, the Board assumed that "the

Union will be aware of its institutional interests in protecting

its officer and leading proponent against discipline which is

thought to restrict his activities on the Union's behalf."

(Emphasis

added.) It seem apparent, therefore, that the Board would not find

that a substantial harmony of interests exists where the contracting

party in question was adversely affected by respondent's conduct

in the dispute and is sympathetic to the position of the chnrging

employee but the interests of this party to the contract are not

sufficiently affected to cause it to undertake the protection of

the charging employee by invoking the arbitration procedures of the

contract and espousing his position therein

where the contracting

party in question was adversely affected by respondent's conduct

in the dispute and is sympathetic to the position of the chnrging

employee but the interests of this party to the contract are not

sufficiently affected to cause it to undertake the protection of

the charging employee by invoking the arbitration procedures of the

contract and espousing his position therein.

Therefore, the regional

office should take the position that one of the parties to the con-

tract must be willing to invoke the arbitration procedures of the

contract and support the individual charging party's claim therein

before the charge will be deferred administratively under the

Collyer policy.

Anaconda Wire and Cable Co., 201 NLRB No. 125.

Cf. Tyee Construction Co., 202 NLRB No. 34.

33 -

57/

The individual charging party, on his own

initiative, does not expressly object to,

or expressly refuse to be bound by, the

arbitration of the dispute underlying the

charge. 57/

It may be argued thst if a charge is filed by the aggrieved

employee and the requirement of "substantial harmony of interests"

is met, the charge should be deferred for arbitration under the

Collyer policy even though the individual charging employee

expressly objects to the arbitration of his claim.

To deny

deferral on the basis of an individual charging party's refusal

to be bound by arbitration would provide parties to bargaining

agreements a convenient means of avoiding deferral and circum-

venting the Board's Collyer policy.

Thus, a party to a contract

wishing to avoid arbitration in a dispute involving unlawful

coercion or discrimination against individual employees would,

instead of filing the charge itself, arrange for an individual

discriminatee to file the charge and communicate to the regional

office his opposition to the resolution of his claim under the

contract arbitration procedures

's Collyer policy.

Thus, a party to a contract

wishing to avoid arbitration in a dispute involving unlawful

coercion or discrimination against individual employees would,

instead of filing the charge itself, arrange for an individual

discriminatee to file the charge and communicate to the regional

office his opposition to the resolution of his claim under the

contract arbitration procedures.

In addition, following the Steelworkers "trilogy" in which

the Supreme Court placed greater emphasis on arbitration as an

integral element of Federal labor policy, the Court has sub-

stantially restricted the right of individual employees to seek

redress outside the grievance-arbitration machinery of the

collective bargaining agreements to which they are subject.

Republic Steel Corp. v. Maddox, 379 U.S. 650; Black-Clawson v.

IAM, 313 F. 2d 179 (C. A. 1).

And former Board Member Brown in

hiS Collyer opinion espoused the view that deferral is appropriate

for charges filed by employees and that although an employee may

oppose a union's action which violates its duty of fair repre-

sentation, an employee otherwise is bound by the acts of his bar-

gaining agent and the bargaining agreement to which he is subject.

Cf. International Harvester Co., 138 NLRB 923, enf'd sub. nom.,

Ramsey v. N.L.R.B., 327 F. 2d 784 (C. A. 7), cert. denied, 377

u.s. 1003.

McLean Trucking Co., 202 NLRB No. 102, note 5;

Continental Can Co., 202 NLRB No. 78.

On the other hand, the Board has indicated, in the cases cited

in note 6, supra, that Collyer deferral is dependent upon the like-

lihood that arbitration will resolve the dispute "in a manner con-

sistent with the standards of Spielberg."

National Radio Co., 198

NLRB No. 1

7), cert. denied, 377

u.s. 1003.

McLean Trucking Co., 202 NLRB No. 102, note 5;

Continental Can Co., 202 NLRB No. 78.

On the other hand, the Board has indicated, in the cases cited

in note 6, supra, that Collyer deferral is dependent upon the like-

lihood that arbitration will resolve the dispute "in a manner con-

sistent with the standards of Spielberg."

National Radio Co., 198

NLRB No. 1.

One of the requirements consistently included by the

Board in its statement of the Spielberg standards is the require-

ment that "a 11 parties had agreed to be bound" or "had acquiesced

in the arbitration proceeding." It has been concluded, therefore,

that in the absence of any contrary holding on the part of the

Board, administrative deferral to arbitration under the Collyer

policy is not now appropriate where it may be reasonably antici-

pated that the arbitration proceeding will not meet the "acquies-

cence" requirement of the Spielberg standards.

(contd.)

34 -

(continued}

This "acquiescence" requirement would preclude deferral

under the Collyer policy where the individual charging party

affirmatively expresses to the regional office his refusal to

be bound by, and opposition to, arbitration of the dispute under-

lying his charge.

In Wertheimer Stores Corp., 107 NLRB 1434,

deferra 1 was refused because the arbitration has been "carried

through by the Union over the opposition of Weiss."

In the

Spielberg case itself, the Board distinguished the Wertheimer

decision in a manner indicating its continued adherence to the

principle that deferral is to be denied where the arbitration

"had been carried out over the opposition of the individual in-

volved."

In Hershey Chocolate Corp., 129 NLRB 1052, the Board

denied deferral, finding that "none of the employees involved

herein agreed to be bound by the arbitration proceeding."

The

Board was there referring not merely to the absence of evidence

that the employees expressly agreed to be bound but to their

having "specifically advised the arbitrato

er the opposition of the individual in-

volved."

In Hershey Chocolate Corp., 129 NLRB 1052, the Board

denied deferral, finding that "none of the employees involved

herein agreed to be bound by the arbitration proceeding."

The

Board was there referring not merely to the absence of evidence

that the employees expressly agreed to be bound but to their

having "specifically advised the arbitrator of their intention to.

seek other legal recources should the arbitrator's decision be

unfavorable." See also Jacobs Transfer, Inc., 201 NLRB No. 34,

slip op., n. 2 and pp. 28-30 of the TXD in which a three member

panel of the Board, with Chairman Miller concurring on other

grounds, adopted the ALJ's refusal to defer to an arbitration

award on the ground, inter alia, that the charging party, an

individual employee, "did E.ot_voluntarily submit the dispute to

the contract procedures, Lani/ did not agree to be bound by the

result ... "

The Spielberg "acquiescence11 standard is not, however, con-

sidered to require solicitation of an affirmative expression on

the part of an individual charging party of his acquiescence in

the arbitration of his claim before administrative deferral under

the Collyer policy is warranted.

In applying this standard in

"Spielberg" cases, the Board has apparently presumed the acquie-

scence of the individual in the arbitration in the absence of

evidence to the contrary.

In those cases in which the individual's

absence from the arbitration hearing and the adequacy of the pre-

sentation of his position at the hearing are dealt with under the

"fair and regular" test of Spielberg, the Board sometimes refers

to the individual claimant's having "acquiesced" in the arbitration

proceeding even though nothing appears as to the individual's

having expressly done so.

E.g. Western Electric Company, Inc.,

180 NLRB No. 131.

itration hearing and the adequacy of the pre-

sentation of his position at the hearing are dealt with under the

"fair and regular" test of Spielberg, the Board sometimes refers

to the individual claimant's having "acquiesced" in the arbitration

proceeding even though nothing appears as to the individual's

having expressly done so.

E.g. Western Electric Company, Inc.,

180 NLRB No. 131.

Where two or more charges are based essentially on the

same underlying dispute or dependent upon resolution of a coonnon

issue, none of these charges should be deferred if one of these

related charges was filed by an individual employee and the special

considerations pertaining to such a charge preclude deferral. 58/

PROCEDURES FOR ADMINISTRATIVE DEFERRAL 59/

J. Initial Disposition of Charges

(A) Investigation of the merits of the charge and deferral

circumstances in poten,tial

11 Collyer

11 and "Dubo" situations 60/

Whenever, in the investigation of a charge alleging a vio-

lation of Sections B(a)(l), (2), (3) or (5) or B(b)(l)(A), (B), (2)

or (3) of the Act, it appears that the alleged violation took place

in a bargaining unit represented by an incumbent bargaining repre-

sentative, the region should proceed as follows:

(1) The region should fi.rst determine preliminarily whether

the allegations of the charge and the evidence submitted by the charging

party in support of the charge and any other evidence at hand establish

an arguable violation of the Act. 61/ If this preliminary determination

does not ~stablish such a violatio;-of the Act, i.e., the charge is

determined to be frivolous or clearly lacking in merit, the charge should

be dismissed in accordance with Section 102. 19 of the Board's Rules

and Regulations.

58/

George Koch Sons, Inc., 199 NLRB No. 26. See note 25, supra.

59/ Attached hereto as "Appendix A" is a general outline which may be

used by the regional offices as a checklist to assist in the in-

vestigation of arbitration deferral cases

ned to be frivolous or clearly lacking in merit, the charge should

be dismissed in accordance with Section 102. 19 of the Board's Rules

and Regulations.

58/

George Koch Sons, Inc., 199 NLRB No. 26. See note 25, supra.

59/ Attached hereto as "Appendix A" is a general outline which may be

used by the regional offices as a checklist to assist in the in-

vestigation of arbitration deferral cases.

60/

As the bases outlined in the February 28, 1972 guidelines for en-

couraging voluntary resort to arbitration under the heading

"Encouragement of Arbitration" are now substantially the reasons

for deferral under the Board's expanded Collyer policy, that

section has been omitted from these guidelines.

61/

Whether the charge and evidence at hand "establish an arguable

vio lstion c:Jf the Act," (i.e. , the degree of certainty that a

violation was corrmitted which must be established before deferral

under the Collyer policy is warranted) depends upon the answer to two

questions. First, given the character, credibility and weight of

the evidence at hand, what findings of fact are warranted on the

basis thereof (i.e., what state of facts does this evidence estab-

lish).

Second, does this state of facts establish an arguable

violation of the Act.

i.e., in the absence of further legal re-

search, analysis and necessary policy determinations, can it be

concluded, with confidence in the accuracy of the conclusion, that

this state of facts does ~

establish a violation of the Act.

- 36 -

basis thereof (i.e., what state of facts does this evidence estab-

lish).

Second, does this state of facts establish an arguable

violation of the Act.

i.e., in the absence of further legal re-

search, analysis and necessary policy determinations, can it be

concluded, with confidence in the accuracy of the conclusion, that

this state of facts does ~

establish a violation of the Act.

- 36 -

(2) Jf the preliminAry determination establishes an

arguable violation of the Act, the region should, either before,

during or after completion of R full investigation of the charge, 62/

but in any event before making a final determination of the merits~

of the charge, ascertain whether deferra 1 of further action on the

charge is warranted because the Collyer criteria for deferral to arbi-

tration, set forth in the proceeding sections of this memorandum, arp

met.

In conducting the investigation of the

circumstances

bearing on the warrant for deferral to arbitration under the Collyer

policy, the region should give the parties notice of the fact of this

investigation and of their opportunity to present evidence and views

on this subject.

In determining whether deferral is warranted under the Collyer

policy, the region should initiate and assume responsibility for investi-

gating and considering the

circumstances

which would establish prima

facie warrant for deferral.

These

circumstances

include the existence

of a contract between the parties which makes binding arbitration encom-

passing the dispute available to the charging party and the fact that the

dispute does not concern a special subject matter not suitable for deferral.

!jlf For the reasons discussed in note 17, supra, the usual course will

be to determine whether the Collyer criteria for deferral are met

before the charge is fully investigated

contract between the parties which makes binding arbitration encom-

passing the dispute available to the charging party and the fact that the

dispute does not concern a special subject matter not suitable for deferral.

!jlf For the reasons discussed in note 17, supra, the usual course will

be to determine whether the Collyer criteria for deferral are met

before the charge is fully investigated.

By doing so in instances

in which the Collyer criteria are met and respondent timely expresses

its willingness to arbitrate, deferral will in moat cases obviate

the necessity for completion of the full investigation and final

determination of the merits of the charge.

The purpose, however,

of this procedure is to facilitate the regions' processing of

Collyer cases and achieve a net minimization of regional efforts

in the ultimate disposition of these cases.

Accordingly, in in-

stances in which the region, for whatever reason, concludes that

these objectives would be better served by further investigation,

or by completion of the full investigation,of the charge before

determination of whether the Collyer criteria are met, the region

is authorized to follow this order in the processing of the case.

Thus, the investigation which might ultimately be required--parti-

cularly if deferral should finally prove to be either unwarranted

or ineffective in resolution of the dispute--may be eased by ob-

taining all evidence at once because of the travel distances in-

volved or the difficulty in reaching witnesses.

Further, the need

to obtain evidence which might not be available in a later investi-

gation, either through a diminished cooperation on the part of

witnesses and parties or through the disappearance of documents and

the attenuation of memory through time, may determine the extent of

the investigation to be conducted before deferral for arbitration

is considered.

- 37 -

reaching witnesses.

Further, the need

to obtain evidence which might not be available in a later investi-

gation, either through a diminished cooperation on the part of

witnesses and parties or through the disappearance of documents and

the attenuation of memory through time, may determine the extent of

the investigation to be conducted before deferral for arbitration

is considered.

- 37 -

Further, where

are filed by an individual em"oyee, the region

should promptly .,ascertain whether his interest are in substantial

harmony with those of one of the parties to the contract and whether

that party is willing to invoke the arbitration procedures of the .con-

tract and advocate the charging party's position therein.

The region

should not solicit the charging party's attitude concerning his willing-

ness to be bound by the arbitral result, but should, rather, consider

the unwillingness of the charging party to acquiesce in the arbitration

proceeding and award only if it is offered the region by the charging

party ~

sponte.

The region should also consider such evidence as is already

in its possession which pertains to the remaining circumstances

relevant to the question of deferral.

This evidence may include

regional office records and Board decisions concerning unfair labor

practice findings or settlements and evidence already obtained in the

investigation of the subject unfair labor practice charge pertaining

to a history or pattern of respondent enmity toward the union.

But

the region should investigate and consider any other evidence per-

taining to respondent's enmity, the responden.t' s good faith in its

assertion of privilege for its action, and obstacles to a quick and

fair arbitral resolution of the dispute, only in the event and to the

extent such evidence has been produced by the charging party in support

of a contention against deferral.

he union.

But

the region should investigate and consider any other evidence per-

taining to respondent's enmity, the responden.t' s good faith in its

assertion of privilege for its action, and obstacles to a quick and

fair arbitral resolution of the dispute, only in the event and to the

extent such evidence has been produced by the charging party in support

of a contention against deferral.

(3) If the grounds for deferral to arbitration under the

Collyer policy are determined not to exist, the region should determine

whether deferral is warranted under the Duba policy. 63/ If deferral

63/ In the February 28, 1972 guidelines at pages 16 to 18 and notes 33

and 35,deferral on the basis of the Dubo policy was described "as

a practice of deferring action on a charge when the 'grievance arbi-

tration procedure is being actively pursued .•• if it appears that

there is a substantial likelihood that the utilization of the pro-

cedure will set the dispute at rest."'

The regional offices were

instructed to consider the question of def erring under the Collyer

policy only after it had been concluded that deferral under the Dubo

policy was inappropriate.

Subsequently, the Board expanded its Collyer policy, and at

least by implication, narrowed the applicability of Dubo to situa-

tions where, despite the absence of conditions necessary for deferral

under Collyer, the dispute underlying the unfair labor practice

charge is the subject of a grievance proceeding leading to arbi-

tration,that would put the dispute to rest.

In Medical Manors, Inc.,

199 NLRB No. 139, the Board deferred for arbitration a Section 8(a)(5)

charge based on the employer's alleged unilateral change in wage

rates.

Although the union had already secured a court order com-

pelling arbitration of the dispute, the very situation involved in

Duba, the Board made clear that deferral was based on its Collyer

policy

ld put the dispute to rest.

In Medical Manors, Inc.,

199 NLRB No. 139, the Board deferred for arbitration a Section 8(a)(5)

charge based on the employer's alleged unilateral change in wage

rates.

Although the union had already secured a court order com-

pelling arbitration of the dispute, the very situation involved in

Duba, the Board made clear that deferral was based on its Collyer

policy.

Accordingly, omitted from these revised guidelines is the

instruction contained in the February 28, 1972 guidelines to con-

sider deferral under the Dubo policy first and only if deferral is

not warranted under that policy to consider deferral under the

Collyer policy.

38 -

is found warranted under the Dubo policy, 64/

further action on the

charge should be deferred pending completion of arbitration of the

underlying dispute. 65/

The right to appeal to the General Counsel

64/

65/

Deferral under the Dube policy is warranted in any dispute which

is being processed through grievance procedures leading to final

and binding arbitration in which it is likely that the dispute

will be, or it has been, submitted for arbitration and in which

the resulting arbitration award may meet the Spielberg standards

for deferral.

(See note 66, infra).

Deferral under the Dubo policy would be appropriate, for

example, where the contract grievance procedures do not encompass

the particular dispute in question but the parties have entered

into an ad hoc agreement to arbitrate this particular dispute.

too would'"deferral be appropriate notwithstanding a pattern of

respondent enmity toward the exercise of protected rights which

would preclude deferral under the Collyer policy but the union

intends nevertheless to carry the dispute to arbitration through

the contract grievance and arbitration procedures.

However, a

pattern of employer enmity would preclude deferral where it is the

employer who is carrying the dispute to arbitration over the

objection of the union.

United Aircraft Corp., 188 NLRB No. 96

ights which

would preclude deferral under the Collyer policy but the union

intends nevertheless to carry the dispute to arbitration through

the contract grievance and arbitration procedures.

However, a

pattern of employer enmity would preclude deferral where it is the

employer who is carrying the dispute to arbitration over the

objection of the union.

United Aircraft Corp., 188 NLRB No. 96.

After the region has deferred further action on a charge for

arbitration under the~ policy, the region should inquire

periodically concerning the status of the grievance-arbitration

proceeding.

Where, as a result of such an inquiry or of a party's

having brought the matter to the attention of the region, it appears

for any reason that the dispute will not be arbitrated or that an

arbitration award will not resolve the dispute underlying the charge

in a manner compatible with the Spielberg standards, the region

should reactivate the charge and, upon completing any necessary in-

vestigation, should issue complaint or dismiss the charge in

accordance with its final determination of the merits of the charge.

When a party, or the region's periodic inquiry, discloses

that an arbitration award has issued in a dispute in which the

charge was deferred for arbitration under the Dubo policy, the

award should be reviewed under the Spielberg doctrine and the

charge should be dismissed or complaint should be issued accord-

ingly.

Any question raised as to whether the relief provided far

in an a\vard in favor of the charging party adequately remedies

violations found by the region or as to whether the respondent has

refused to comply with the award should he submitted for advice.

39 -

award should be reviewed under the Spielberg doctrine and the

charge should be dismissed or complaint should be issued accord-

ingly.

Any question raised as to whether the relief provided far

in an a\vard in favor of the charging party adequately remedies

violations found by the region or as to whether the respondent has

refused to comply with the award should he submitted for advice.

39 -

the region's decision to defer is not accorded the charging party

when the deferral is ordered under the Dubo policy. 66/

66/ tn substantial measure the Dubo policy is premised on the same

considerations as the Spielberg policy.

In the Dubo case itself

the Board pointed out that in effectuating the intent of Congress

expressed in Section 203(d) of the LMRA, the Board has "recognized

existing arbitration awards" under the Spielberg policy and has

required resort in some instances to contract grievance and arbi-

tration procedures.

The Spielberg policy is,in turn, premised on a

"desirable objective of encouraging the voluntary settlement of

labor disputes," (International Harvester Co. (Indianapolis Works),

138 NLRB 923) and upon an unwillingness to afford a party two forums

for the litigation of essentially the same dispute.

In the Collyer

decision itself the Board presented the Spielberg case as a refine-

ment of the policy developed in earlier cases in which there had

been an arbitral award.

The Board cited as one such case Timken

Roller Bearing Co., 70 NLRB 500, in which the arbitral award had

already issued in favor of the respondent before the Board ruled.

The Board, in deferring to the awa·rd, said:

It is evident that the Union has concur-

rently utilized two forums for the purpose of

litigating the matter here in dispute

ier cases in which there had

been an arbitral award.

The Board cited as one such case Timken

Roller Bearing Co., 70 NLRB 500, in which the arbitral award had

already issued in favor of the respondent before the Board ruled.

The Board, in deferring to the awa·rd, said:

It is evident that the Union has concur-

rently utilized two forums for the purpose of

litigating the matter here in dispute.

Although

the arbitrator determined the issues before him

within the framework of the 1943 agreement and

expressly refrained from prejudicing the rights

of either party before the Board, it would not comport

with the sound exercise of our administrative dis-

cretion to permit the Union to seek redress under the

Act after having initiated arbitration proceedings which,

at the Union's request, resulted in a determination upon

the merits in favor of the respondent.

In the interest

of ending litigation and otherwise effe_£tuating the _

policies of the Act, we shall dismiss Lthe complain!/.

A more recent reflection of the Board's reluctance to

provide an additional forum for litigation of a dispute already

resolved by an arbitrator is to be found in Atlantic Richfield Co.,

199 NLRB No. 135.

The union had there resisted arbitration,

claiming that the broader contract issue had been resolved against

the employer in an earlier proceeding.

The Board def erred to the

more recent award, seeing "no need for this Board to serve as yet

a third forum in which an issue of contract interpretation should

be allowed to be presented . • . "

Under the Collyer policy, in the exercise of its dis-

cretion, the Board requires a charging party to resort to the

available grievance and arbitration procedures under the contract.

Under the Dube policy, the Board does not require such a resort

to these procedures; rather, it defers because one or the other

party to the contract is pressing the dispute to arbitration,

and because the Board is unwilling to provide a second forum

for the litigation of the same dispute

res a charging party to resort to the

available grievance and arbitration procedures under the contract.

Under the Dube policy, the Board does not require such a resort

to these procedures; rather, it defers because one or the other

party to the contract is pressing the dispute to arbitration,

and because the Board is unwilling to provide a second forum

for the litigation of the same dispute.

(continued)

- 40 -

If deferral under the Dubo policy (as well as the Collyer

policy) is found not to be warranted, then a full investigation and

final determination of the merits of the charge should be completed

and the charge disposed of in accordance with Section 102.15 et seq.

of the Board's Rules and Regulations, by dismissal of the charge,

settlement or issuance of complaint.

(4) If the region determines that deferral of further action

would otherwise be warranted under the Collyer policy, the region

should ascertain informally whether the respondent is willing to arbi-

trate the dispute underlying the charge pursuant to the grievance and

arbitration provisions of the applicable bargaining agreement, 67./ and

waive any contractual time limitations on the filing and processing of

grievances to arbitration, if the respondent has not earlier indicated

its willingness to arbitrate. 68/

66/

(continued) Under the Dubo policy, since it is not the Board which

is causing or requiring the charging party to arbitrate the dis-

pute, there is less reason than under the Collyer policy to provide

the right to appeal the deferral of action on a charge to the

General Counsel

ing of

grievances to arbitration, if the respondent has not earlier indicated

its willingness to arbitrate. 68/

66/

(continued) Under the Dubo policy, since it is not the Board which

is causing or requiring the charging party to arbitrate the dis-

pute, there is less reason than under the Collyer policy to provide

the right to appeal the deferral of action on a charge to the

General Counsel.

Nor has experience with the Dubo policY, in the

many years in which it has been applied administratively, demon-

strated the necessity for such an appeal, perhaps because in many

instances the concurrent unfair labor practice charge is filed

merely to preserve the charging party's right to resort to the Board

for review of the arbitration award under the Spielberg policy in

the event the charging party feels the arbitral proceeding or award

is unfair or conflicts with the Act.

Finally, the limited character

of the determination which is made by the region in finding deferral

warranted under the Dubo policy would also weigh against providing

a right of appeal.

f!l/ It is contemplated that respondent's assertion of its willingness

to arbitrate the dispute and its disclaimer of intention to rely

on contract time limitations imposed on the filing or processing

of grievances by the contract (or on the expiration of the contract,

if that has occurred) must be effective as of the time the region

defers further action on the charge by issuing the letter provided

for in (B) and Appendix D

ndent's assertion of its willingness

to arbitrate the dispute and its disclaimer of intention to rely

on contract time limitations imposed on the filing or processing

of grievances by the contract (or on the expiration of the contract,

if that has occurred) must be effective as of the time the region

defers further action on the charge by issuing the letter provided

for in (B) and Appendix D.

It must also be intended to continue in

effect for a period during which an effort on the part of the charging

party to initiate, or continue in, grievance proceedings leading to

arbitration would be considered by the Board to be made with "reason-

able promptness."

68/

At the time this informal inquiry with the respondent is made,

respondent should be informed that if it does not unequivocally

express its willingness to arbitrate the dispute (or if it con-

ditions its wi.llingness upon the region's final determination,

after full investigation, that the charge is meritorious and

complaint would otherwise be warranted), the region will complete

(contd.)

- 41 -

(a) If the respondent has earlier expressed, or at this

time expresses, its willingness to arbitrate, the region should defer

the charge for arbitration by issuance of the letter provided at (B)

and Appendix

below. 69/

Notwithstanding this defer:-al, however,

the region may, in its discretion conduct such further investigation

•

as may be warranted by the considerations indicated at note 62, supra.

ent has earlier expressed, or at this

time expresses, its willingness to arbitrate, the region should defer

the charge for arbitration by issuance of the letter provided at (B)

and Appendix

below. 69/

Notwithstanding this defer:-al, however,

the region may, in its discretion conduct such further investigation

•

as may be warranted by the considerations indicated at note 62, supra.

(b) If the respondent does not at this time express its

willingness to arbitrate, the region should complete the full investi-

gation and the final determination of the merits of the charge.

If,

as a result thereof, the charge is found to be without merit, it should

be dismissed in accordance with Section 102.19 of the Board's Rules and

Regulations.

If, on the other hand, the charge is found to warrant

issuance of complaint, then the region should proceed in accordance with

the instructions at (S)(b) below, beginning at the point indicated by

/xx!.

(5) If, notwithstanding the above instructions, grounds for

deferral to arbitration under the Collyer policy are found to exist

after a full investigation and final determination of the merits of the

charge establish that the charge warrants issuance of complaint, the

region should ascertain informally 70/ whether the respondent is willing

to arbitrate the dispute underlying the charge pursuant to the grievance

and arbitration provisions of the applicable bargaining agreement and

waive any contractual time limitations on the filing and processing of

grievances to arbitration, 71/ if the respondent has not earlier indi-

cated its willingness to arbitrate.

68/ (ccntinued) the investigation and will make a final determination

of the merits of the charge and will inform the parties of the

results thereof,. giving the respondent another opportunity at that

time to express its willingness to arbitrate the dispute

n the filing and processing of

grievances to arbitration, 71/ if the respondent has not earlier indi-

cated its willingness to arbitrate.

68/ (ccntinued) the investigation and will make a final determination

of the merits of the charge and will inform the parties of the

results thereof,. giving the respondent another opportunity at that

time to express its willingness to arbitrate the dispute.

If, in

the judgment of the region, this communication should be formalized,

the region may wish to do so by letter similar to that attached as

Appendix c.

69/ It is important to note that at this juncture the region is not

authorized to convey to the charging party the respondent's

willingness to arbitrate the dispute and to solicit the charging

party's intentions on this subject.

The region is, instead,

required to issue the deferral letter provided for at (B) and

Appendix D, infra.

70/ See note 68, supra.

71/ See note 67, supra.

42 -

............. ____________________ __

(a) If respondent has earlier expressed, or at this time

expresses,its willingness to arbitrate, the region should defer the

charge for arbitration by issuance of the letter provided at (B),

and Appendix D, below. 72/

(b) If the respon~t does not at this time express its

willingness to arbitrate, /JCT./ the region should inform respondent

in writing that a full investigation has been completed; that the

charge has been determined to be meritorious; that absent settlement,

complaint will issue unless the respondent notifies the region within

7 calendar days, in writing, of its willingness to arbitrate 73/ and

that absent such expression of willingness to arbitrate, the region

will in any subsequent proceeding on the charge take the position that

deferral of further action on the charge is unwarranted by reason of

the absence or belatedness of respondent's assertion of its willingness

to arbitrate

ndent notifies the region within

7 calendar days, in writing, of its willingness to arbitrate 73/ and

that absent such expression of willingness to arbitrate, the region

will in any subsequent proceeding on the charge take the position that

deferral of further action on the charge is unwarranted by reason of

the absence or belatedness of respondent's assertion of its willingness

to arbitrate. ]4/ If the respondent in response thereto expresses in

writing within 7 calendar days its willingness to arbitrate, the

region should defer the charge for arbitration by issuance of the letter

provided at (B) and Appendix D, below. 75/ If the respondent in response

thereto does not so express its willingness to arbitrate, the region

should proceed on the charge in accordance with Section 102.15 et seq.

of the Board's Rules and Regulations.

In this latter event, if respondent,

at any time in the proceeding after expiration of the 7 days above pro-

vided, raises or urges a Collyer defense, the region should take the

position that the defense is lacking in merit by reason of the

belatedness of respondent's assertion of its willingness to arbitrate. ~

(6) In any case in which, after complaint has issued, the region

determines that grounds for deferral to arbitration under the Collyer

policy exist, the region should proceed essentially in accordance with

Section(5), supra.

Thus, the region should give respondent the opportunity

to express its willingness to arbitrate, if respondent has not already

done so, fiTst informally and then, if necessary, in a writing which

includes the 7-day limitation on respondent's opportunity to respond.

The region should also give respondent notice of the region's intention

to urge a "belatedness" contention as to any later expression of respon-

dent's willingness to arbitrate

ortunity

to express its willingness to arbitrate, if respondent has not already

done so, fiTst informally and then, if necessary, in a writing which

includes the 7-day limitation on respondent's opportunity to respond.

The region should also give respondent notice of the region's intention

to urge a "belatedness" contention as to any later expression of respon-

dent's willingness to arbitrate. If respondent has .already expressed,

or in response to such inquiry expresses its willingness to arbitrate,

the region should withdraw the outstanding complaint (pursuant to

Section 102.18 of the Board's Rules and Regulations) and defer further

action on the charge by issuance of the letter provided in (B) and

72/

See note 69, supra.

73/

See note 67, supra.

74/

A sample letter is attached as Appendix c.

In order that a meaning-

ful history of experience under this procedure may be developed,

all regional offices should inform their respective Assistant General

Counsels of all cases in which deferral under the Collyer policy

occurred only after the region was required to make a final deter-

mination of the merits of the charge and issue the letter referred

to in the text, supra.

751

See note 69, supra.

76/

See note 17, supra, and VI. Litigation of the Collyer Deferral

Question, infra.

43 -

Appendix D, below.

If the respondent should, in these circumstances,

fail or refuse timely to express its willingness to arbitrate, the

region should take the position thereafter that any subsequent assertion

of respondent's willingness to arbitrate is belatedly made.

pra.

751

See note 69, supra.

76/

See note 17, supra, and VI. Litigation of the Collyer Deferral

Question, infra.

43 -

Appendix D, below.

If the respondent should, in these circumstances,

fail or refuse timely to express its willingness to arbitrate, the

region should take the position thereafter that any subsequent assertion

of respondent's willingness to arbitrate is belatedly made.

(7) In any case in which, for whatever reason, the region

did not solicit the respondent's expression of its willingness to arbi-

trate the dispute underlying the charge before the hearing opens, the

region should make no contention based on the belatedness of respondent's

expression of its willingness to arbitrate.

In any such case, any

Collyer defense interposed by the respondent should be treated in accord-

ance with Section IV., Litigation of the Collyer Deferral Question, infra,

the region taking the position that even if the defense is timely entered,

deferral is not warranted unless respondent, at the time deferral is

contemplated, expresses a willingness to arbitrate the dispute in the

manner indicated at note 67 and accompanying text, supra.

(B) Cot!lllunication to the parties of the decision to def er

to arbitration

If the region has determined that deferral of action on the

charge for arbitration is warranted under the Collyer policy, the

region should send to the parties a letter setting forth:

the fact that the region is declining to issue

complaint and is deferring further proceedings on

the charge pursuant to the Board decision in Collyer

and related cases and the General Counsel's public

release concerning Collyer deferral; 77/

ral of action on the

charge for arbitration is warranted under the Collyer policy, the

region should send to the parties a letter setting forth:

the fact that the region is declining to issue

complaint and is deferring further proceedings on

the charge pursuant to the Board decision in Collyer

and related cases and the General Counsel's public

release concerning Collyer deferral; 77/

the circumstances on which the region relies in

determining that deferral is warranted, including

the fact that the respondent is willing to arbi-

trate the dispute which is the subject of the

charge notwithstanding any contractual time limita-

tions on the filing and processing of grievances to

arbitration, or any expiration of the contract, and

intends to continue in this willingness to arbitrate

the dispute for a period during which an effort on

the part of the charging party to initiate, or con-

tinue in, grievance proceedings leading to arbitration

would be considered reasonably prompt;

77/ If deferral of further action on the charge is being ordered pur-

suant to Section 1(6), supra, the following item (a) should be

substituted:

a. the fact that the region is hereby withdrawing the

outstanding complaint pursuant to Section 102.18 of the

Board's Rules and Regulations and is declining to issue

complaint and is deferring further proceedings on the

charge pursuant to the Board decision in Collyer and

related cases and the General Counsel's public release

concerning Collyer deferral;

- 44 -

(a) should be

substituted:

a. the fact that the region is hereby withdrawing the

outstanding complaint pursuant to Section 102.18 of the

Board's Rules and Regulations and is declining to issue

complaint and is deferring further proceedings on the

charge pursuant to the Board decision in Collyer and

related cases and the General Counsel's public release

concerning Collyer deferral;

- 44 -

the right of the charging party to obtain a review

of the region's refusal to issue complaint because

•

proceedings on the charge are being deferred under

the Board's Collyer policy, by filing within 13 days

after issuance of this letter an appeal with the

Office of Appeals in Washington setting forth the

facts and reasons on which the appeal is based; 78/

_d.

the region's intention to inquire as to the status

of the dispute at intervals of not more than 90

days and to accept and consider at any time any

request and supporting evidence submitted by any

party to the case for the dismissal of the charge,

for continuation of the deferral of action on the

charge .. or for issuence of complaint;

the region's intention to djsmiss the charge in

the event the charging party does not promptly

submit the dispute to arbitration through the

contract arbitration procedures; 79/

the region's intention to revoke its decision to

defer and to resume processing of the charge in

the event the respondent prevents or impedes the

prompt resolution of the dispute through the con-

tract arbitration procedures; 80/

the right of the charging party t'> secure a review

by the region of the arbitration award, ·when issued,

to ascertain whether the award meets the requirements,

of the Board's Spielberg policy. 81/

~I No procedure for appeal of the decision to defer was provided in

the February 28, 1972 guidelines.

However, experience thus far

in the administrative implementation of the Collyer policy has

demonstrated the necessity for such a procedure

view

by the region of the arbitration award, ·when issued,

to ascertain whether the award meets the requirements,

of the Board's Spielberg policy. 81/

~I No procedure for appeal of the decision to defer was provided in

the February 28, 1972 guidelines.

However, experience thus far

in the administrative implementation of the Collyer policy has

demonstrated the necessity for such a procedure.

An appeal pro-

cedure will also parallel the Board's handling of Collyer cases

wherein the decision to defer and order are made immediately sub-

ject to court review by the Board's dismissal of the complaint.

Adoption of this procedure is also recommended by the fact the.t

deferral may affect substantial rights and claims of the charging

party and the fact that the procedure will aid in insuring uni-

formity in regional office application of the Collyer policy.

79/ In the event the charge was filed by an individual employee,

item e. should read:

e. the region

1 s intention to revoke its decision to

defer and t.o resume processing of the charge if the

dispute has not been promptly settled or submitted to

arbitration, or if any one of the special considerations

necessary to deferral of charges filed by individual

employees is no longer present.

80/

Cf. Medical Manors, Inc., d/b/a Community Convalescent Hospital,

199 NLRB No. 139, note 2.

DI A sample deferral letter is attached as Appendix D.

45 -

Def erred

Before Issuance of an Arbitration Aw.ard of

Administratively Under the Collyer Policy

Handling

any one of the special considerations

necessary to deferral of charges filed by individual

employees is no longer present.

80/

Cf. Medical Manors, Inc., d/b/a Community Convalescent Hospital,

199 NLRB No. 139, note 2.

DI A sample deferral letter is attached as Appendix D.

45 -

Def erred

Before Issuance of an Arbitration Aw.ard of

Administratively Under the Collyer Policy

Handling

11.

Charges

When any party requests the region to take any action on a

charge deferred under the Collyer policy (and in the region's dis-

cretion the request warrants the region's inquiring as to the status of

the dispute at that time) or, in the absence of such a request from a

party, no later than 90 days after issuance of the deferral letter pro·

vided for in I(B) above, or 90 days after denial of a charging party's

appeal of the regional director's decision to defer, the region should

inquire of the parties as to the status of the dispute which has been

deferred for arbitration and as to the parties' efforts to resolve this

dispute. If the information available to the region does not adequately

reveal the status of the dispute because any party is dilatory or un-

cooperative in its response to the region's inquiry, the region should,

as part of its inquiry, send letters to all parties to the case asking

either (1) why the charge should not be dismissed or (2) why the region

should not revoke its decision to defer for arbitration and resume

proceedings on the charge, whichever in the region's discretion is the

more appropriate in the circumstances.

In the event this inquiry reveals that the parties to the

contract are actively engaged in efforts to settle or arbitrate the

dispute, the region should notify the parties in writing that having

reviewed the status of the dispute underlying the charge, the region

has decided to extend the deferral of action on the charge for up to

90 days

retion is the

more appropriate in the circumstances.

In the event this inquiry reveals that the parties to the

contract are actively engaged in efforts to settle or arbitrate the

dispute, the region should notify the parties in writing that having

reviewed the status of the dispute underlying the charge, the region

has decided to extend the deferral of action on the charge for up to

90 days.

In the event this inquiry reveals the charging party has

not made, or is no longer making, reasonably prompt efforts to settle

or to arbitrate the dispute, the region should dismiss the charge,

issuing a dismissal letter which incorporates the present circumstances

upon which the region relies in deciding to discontinue deferral and to

dismiss the charge, and notification to the charging party of its right

to appeal the dismissal of the charge to the Office of Appeals.

In the event the charging party is an individual employee and

this inquiry reveals that a substantial harmony between the interests

of the charging party and those of a party to the contract no longer

exists, (as a consequence of which the dispute has not been promptly

settled or submitted to arbitration), or that the charging party has,

on his own initiative, expressly objected to, and refused to be bound by,

arbitration of the dispute, the regional office

should notify all

parties of the revocation of its decision to defer and of its decision

to resume proceedings on the charge.

- 46 -

exists, (as a consequence of which the dispute has not been promptly

settled or submitted to arbitration), or that the charging party has,

on his own initiative, expressly objected to, and refused to be bound by,

arbitration of the dispute, the regional office

should notify all

parties of the revocation of its decision to defer and of its decision

to resume proceedings on the charge.

- 46 -

In the event this inquiry reveals that the respondent has

interfered with or obstructed the submission of the dispute to arbi-

tration by reliance on contractual time bars to arbitration, by re-

fusing to participate in preparation of the submission or selection

of an arbitrator, or otherwise, the region should notify all parties

of the revocation of its decision to defer and of its decision to

resume proceedings on the charge.

III.

Handling After Issuance of an Arbitration Award of Charges

Deferred Administratively Under the Collyer Policy

When the region's inquiry under II, above, or the charging

party or the respondent brings to the attention of the region an

arbitration award which resolves the dispute underlying the deferred

charge, the region should determine whether the award meets the standards

for deferral to such awards under the Spielberg doctrine, to the extent

any.interested party contends that the award .fails to do so. 82/ If the

award does not meet these standards, the region should resume proceedings

on the charge. 83/

If the award meets the Spielberg standards, the region should

dismiss the deferred charge. 84/

The dismissal letter should consist

of the reasons for which the region found the award to meet the Spielberg

standards, and notification to the charging party of its right to appeal

the dismissal to the Office of Appeals.

82!

See National Biscuit Co., 198 NLRB No. 4, where in note 8 the Board

required that a "request" be made to it to consider issues left

unresolved by the arbitration

The dismissal letter should consist

of the reasons for which the region found the award to meet the Spielberg

standards, and notification to the charging party of its right to appeal

the dismissal to the Office of Appeals.

82!

See National Biscuit Co., 198 NLRB No. 4, where in note 8 the Board

required that a "request" be made to it to consider issues left

unresolved by the arbitration.

This approach seems consistent with

the Board's policy of allowing the private procedures to work a

resolution of the dispute with a minimum of official Board involve-

ment.

See also Southwestern Bell Telephone Co., 198 NLRB No. 6;

and Urban N. Patman, 197 NLRB No.150, in which the Board indicated

83/

34/

it would specifically review an arbitration decision which found the

dispute to be non-arbitrable, a circumstance in which it could hardly

be argued that the arbitration disposed of the unfair labor practice

issues.

Cf. Yourga Trucking, Inc., 127 NLRB No. 130, wherein the Board held

that "the burden to adduce .!'.proof re~arding the scope of matters pre-

sented in the arbitration proceedin~/ rests on the party asserting

that our statutory jurisdiction to resolve the issue of discrimination

should not be exercised."

If the award is in favor of the charging party and any question is

raised as to whether the relief provided for in the award adequately

remedies the violations found by the region, the matter should be

submitted to Washington for advice.

Respondent's unwillingness to

comply with such an award does not constitute grounds for refusing

to defer to the award and for issuing a complaint, Malrite of Wisconsin.

Inc., 198 NLRB No. 3.

A sample dismissal letter is attached as Appendix E.

- 47 -

rovided for in the award adequately

remedies the violations found by the region, the matter should be

submitted to Washington for advice.

Respondent's unwillingness to

comply with such an award does not constitute grounds for refusing

to defer to the award and for issuing a complaint, Malrite of Wisconsin.

Inc., 198 NLRB No. 3.

A sample dismissal letter is attached as Appendix E.

- 47 -

IV.

Litigation of the Collyer Deferral Question

In cases in which it has been determined administratively

that deferral under the Collyer policy is unwarranted, but the

respondent has in its answer to the complaint or in an amendment of

its answer raised the Collyer defense affirmatively, the region should

not at the hearing enter an objection to the introduction of evidence by

respondent on the Collyer issues, (and should, where necessary, support

respondent's right to submit evidence relevant and material thereto). 85/

However, the region should respond with all available evidence which b;;rs

on the question of deferral and present the grounds upon which it was

administratively determined that the unfair labor practice charges should

not be deferred for arbitration.

In the event respondent fails to raise affirmatively the

Collyer defense in its answer to the complaint or in a timely amendment

to its answer, the region should oppose the introduction of evidence

by respondent on Collyer issues. 86/

85/

Houston Sheet Metal Contractors Assn., 147 NLRB 774, at 778;

NLRB Rules and Regulations, Section 102.23.

86/

In Montgomery Ward & Co., 195 NLRB No. 136, the Board raised a

question as to the extent to which the arbitration issue--whether

to defer to an award already issued, under Spielberg--was properly

before it, the respondent having failed to "clearly affirmatively

plead a deferral-to-arbitration defense in its answer •.. "

See

also Hunter Saw Division of Asko, Inc., 202 NLRB No. 30, n

23.

86/

In Montgomery Ward & Co., 195 NLRB No. 136, the Board raised a

question as to the extent to which the arbitration issue--whether

to defer to an award already issued, under Spielberg--was properly

before it, the respondent having failed to "clearly affirmatively

plead a deferral-to-arbitration defense in its answer •.. "

See

also Hunter Saw Division of Asko, Inc., 202 NLRB No. 30, n. 2, for

Chairman Miller's observation that the "Collyer defense was not

raised or litigated at the hearing" and his view that "a respondent

seeking to assert this defense has the burden of establishing it

by pleading and proving facts sufficient to show the applicability

of the principles established in the Collyer line of cases.''

And

see MacDonald Engineering Co., 202 NLRB No. 113; where the Board

refused deferral because the Collyer defense was first raised by

the respondent before the Board and this issue was therefore not

litigated at the hearing.

- 48 -

APPENDIX A

OUTLINE OF THE CIRCUMSTANCES RELEVANT TO DEFERRAL UNDER THE

COLLYER POLICY AND PROCEDURES FOR ADMINISTRATIVE DEFERRAL

Character of the Dispute

(A)

Type of violation charged

Alleged violations of S_ection

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