# NLRB General Counsel Memorandum GC 73-31: Arbitration Deferral Policy Under Collyer -- Revised Guidelines

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/NLRB_GCGC7331

## Section

- **Citation:** NLRB General Counsel Memorandum GC 73-31
- **Heading:** Arbitration Deferral Policy Under Collyer -- Revised Guidelines
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** NLRB General Counsel Memoranda / Arbitration Deferral Policy Under Collyer -- Revised Guidelines

## Text

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
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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
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GC 73-31

the attached mem
ich supersedes my earlie
To
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
of
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:
1.
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;
4.
Adopting special criteria for the deferral of charges
filed by individual employees, and;
5.
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~.
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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
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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
(C) Employer enmity toward employee or union rights
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
II
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
(C) Arbitration available at the insistence of the
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
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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
IV
----------------------------------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)
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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
56
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
20
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
57
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
5
Gary-Hobart Water Corp., 200 NLRB No. 98
48
Great Coasts~ Express, 196 NLRB No. 129
4, 6, 13, 19, 35, 40, 44
Houston Chronicle Publishing Co., 199 NLRB No
4
35, 37, 52, 54, 57, 66
Continental Can Co., 202 NLRB No. 78
57
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
5
Gary-Hobart Water Corp., 200 NLRB No. 98
48
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
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7' 9' 25,
5, 6,
15,
3, 4
86
41, 45, 56
30, 31, 58
38
10, 12, 13
34, 44, 50
86

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
29
2, 4, 6, 7, 10, 11, 17, 34
37, 42, 44, 54, 56, 57
5, 6, 14, 15, 16, 17
34, 42, 44, so
4
16, 42, 44, 45, 50, 82
4, 18, 19, 37
44
2' 6. 7, 8, 23
28, 37' 42, 45, 54
35, 42, 44, 45, 82
14
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
22
Western Electric, Inc., 199 NLRB No. 45
15
Western Electric, Inc., 199 NLRB No. 49
42, 45, 49, 51
Wrought Washer Mfg. Co., 197 NIRB No. 14
4, 19, 44
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23
28, 37' 42, 45, 54
35, 42, 44, 45, 82
14
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
22
Western Electric, Inc., 199 NLRB No. 45
15
Western Electric, Inc., 199 NLRB No. 49
42, 45, 49, 51
Wrought Washer Mfg. Co., 197 NIRB No. 14
4, 19, 44
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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
22
31
29
57
27, 29
20
8, 29
40
63, 64. 65, 66
22
29
56, 57
29
85
57, 66
41, 57
53, 84
31
57
40
86
42
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
22
31
29
57
27, 29
20
8, 29
40
63, 64. 65, 66
22
29
56, 57
29
85
57, 66
41, 57
53, 84
31
57
40
86
42

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
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27
57
41
42
2. 39. 5 7. 66
57
29
66
64
57
56, 57
41
83

CIRCUMSTANCES RELEVANT TO DEFERRAL UNDER
THE CCLLYER POLICY
1.
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.
11
Houston Chronicle Publishing Co., 199 NLRB No. 69; The A.S. Abell Co.,
201 NLRB No. 5.
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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. §_/
~I
§_/
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.)
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~~·
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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
§)
11
(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
§)
11
(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/
An
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.
(C) Employer enmity toward employee or union rights under the Act
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
~/
21
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
~/
21
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/
QI
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 thaOrkinR
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
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. 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 -

(C) Arbitration av 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
11
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
I.
Character of the Dispute
(A)
Type of violation charged
Alleged violations of S_ection S(a) (1), (Z), (3), and (5), and
Section S(b)(l)(A) and (B), 8(b)(2) and (3) may be deferred if
otherwise appropriate.
Charges alleging violations of other
sections of the Act which raise Collyer issues should be sub-
mitted for advice.
(B)
Relationship between the unfair labor practice issues and the
issues subject to arbitration
1. Deferral· is appropriate whenever it -is reasonably probable
that the dispute underlying the charge will be resolved
under the parties' grievance-arbitration machinery in a
manner conforming to the Spielberg standards.
a.
Charges may be deferred where the unfair labor practice
and arbitration issues both turn on a disputed construction,
or on the application, of contract provisions.
b
1. Deferral· is appropriate whenever it -is reasonably probable
that the dispute underlying the charge will be resolved
under the parties' grievance-arbitration machinery in a
manner conforming to the Spielberg standards.
a.
Charges may be deferred where the unfair labor practice
and arbitration issues both turn on a disputed construction,
or on the application, of contract provisions.
b.
Disputes encompassed by the arbitration procedures may
also be deferred, even though their resolution does not
turn on any interpretation or application of contract
provisions and, in fact, raise only issues of law.
2. Deferral is not appropriate where applicable contract pro-
visions, by their terms, establish criteria for resolution
of the underlying dispute that are inconsistent with the
criteria which the Board would apply in deciding the unfair
labor practice issues.
3. Deferral policy should be applied on a "per dispute" basis
to the extent different disputes do not involve common issues.
(C)
Employer enmity toward employee or union rights under the Act.
1.
Deferral is not warranted where the overall history of the
bargaining relationship discloses significant employer
enmity toward the exercise of protected rights.
2.
A continuing history of unfair labor practice conduct deno-
ting a general hostility to employee rights and a repudia-
tion of collective bargaining, particularly where such
conduct is motivated by animus, would preclude deferral.
-
49 -
is not warranted where the overall history of the
bargaining relationship discloses significant employer
enmity toward the exercise of protected rights.
2.
A continuing history of unfair labor practice conduct deno-
ting a general hostility to employee rights and a repudia-
tion of collective bargaining, particularly where such
conduct is motivated by animus, would preclude deferral.
-
49 -

(D)
Willingness to arbitrate the dispute
1. Charges will not be administratively deferred unless the
respondent expresses its willingness to arbitrate the
dispute (notwithstanding contractual time limitations on
the processing of grievances to arbitration or the sub-
sequent expiration of the contract) at the time of the
deferral and thereafter continues in its willingness to
arbitrate for a reasonable period.
2. Not to be regarded as inconsistent with the respondent's
expression of willingness are the following circumstances:
a.
The respondent had not previously proposed arbitration
of the underlying dispute;
b.
the respondent previously refused a demand for arbi-
tration of the dispute;
c.
the respondent intends to contest the arbitrability
of the dispute.
(E)
Good faith in the asserting of privilege for the disputed action
1. Failure of a party to assert a contract claim or other
justification for its disputed action will not preclude
deferral.
2.
Bad faith in asserting a justification for the conduct will
preclude deferral.
(F)
Disputes over special subject matters
Deferral is inappropriate in connection with:
1.
Disputes involving unit accretion issues;
2. Disputes over union's request for information relevant
to the administration of the agreement or the evalua-
tion, processing and arbitration of grievances.
(Where
deferral is inappropriate as to a dispute over a refusal
of requested information, deferral is inappropriate as
to the basic dispute to which the requested information is
relevant
1.
Disputes involving unit accretion issues;
2. Disputes over union's request for information relevant
to the administration of the agreement or the evalua-
tion, processing and arbitration of grievances.
(Where
deferral is inappropriate as to a dispute over a refusal
of requested information, deferral is inappropriate as
to the basic dispute to which the requested information is
relevant. Disputes over the denial of information relevant
to contract negotiations which raise a Collyer deferral
issue should be submitted to Washington for advice.)
3.
Disputes in which the employer's basic obligation or willing-
ness to recognize the union is contested.
4.
Disputes in which a party is foreclosing, or frustrating resort
to, the grievance-arbitration procedure.
s. Disputes in which there is a substantial question as to the
existence of the contract as a whole when the dispute arose.
- 50 -

6.
Disputes where the contract provisions governing
their resolution are unlawful on their face or by
their terms call for a result inconsistent with
Board policy.
7.
Disputes over the negotiation of, or arbitration to
establish, contract terms and unit elimination is-
sues, should be submitted to Washington for advice.
II.
Contract Provisions Concerning the Resolution of Disputes
(A)
Requirement that the contract procedures for the resolution
of disputes lead to arbitration
Charges will not be deferred unless the applicable contract
procedures for the resolution of disputes provide for ~­
tration according to the criteria developed by the Board
under its Spielberg policy.
·
(B)
Encompassment of the dispute by the arbitration provisions
1. The dispute in question must be arguably encompassed by the
grievance-arbitration provisions of the contract, which
should be broadly construed.
2. Contract clauses excluding designated subjects
from the
arbitration machinery, or limiting the scope of the arbi-
trator's authority, should be narrowly construed
berg policy.
·
(B)
Encompassment of the dispute by the arbitration provisions
1. The dispute in question must be arguably encompassed by the
grievance-arbitration provisions of the contract, which
should be broadly construed.
2. Contract clauses excluding designated subjects
from the
arbitration machinery, or limiting the scope of the arbi-
trator's authority, should be narrowly construed.
(C)
Arbitration available at the insistence of the charging party
1. Deferral is appropriate only where arbitration is available
at the insistence of the charging party, or if the charging
party is an individual, where arbitration is available at
the insistence of the party to the contract having interests
in substantial harmony with those of the charging party.
2. Deferral is not appropriate where arbitration can be invoked
only by mutual assent of the immediate disputants.
(D)
Binding character of the arbitration result
Deferral is inappropriate unless the parties are under a
contractual obligation to abide by the terms of the arbi-
tration award, which obligation may be implied by the
contract even in the absence of specific contractual pro-
visions stipulating that the award is "final and binding."
- 51 -

2.
Contracts making arbitration a ·prerequisite to other
means of resolving the dispute, e.g. strikes, should
be submitted for advice.
(E)
Obstacles to a quick and fair arbitral ·resolution of the dispute
1.
Substantial claims that the arbitration procedures do not
afford the charging party a "guick and fair" means for re-
solving the dispute based on pragmatic (e.g., case back-
log or excessive costs), as opposed to formal contractual,
considerations should be submitted to Washington for advice.
2.
Relevant considerations in evaluating such claims would
include the projected time for issuance of the award as
compared with that for a Board order and the number and
kinds of issues recently submitted for arbitration by
the parties.
III
on pragmatic (e.g., case back-
log or excessive costs), as opposed to formal contractual,
considerations should be submitted to Washington for advice.
2.
Relevant considerations in evaluating such claims would
include the projected time for issuance of the award as
compared with that for a Board order and the number and
kinds of issues recently submitted for arbitration by
the parties.
III. Special Considerations Concerning Charges Filed by Individuals
Charges filed by individual aggrieved employees alleging violations
of Section S(a){l) and (3), S{b}(l}{A) and (B}, or 8(b}{2) will be
deferred for arbitration only if:
1.
The interests of the charging party are in substantial
harmony with the interests of one of the parties to the
collective bargaining agreement andthis party is there-
fore willing to involntract] and will continue in its willingness
to arbitrate the dispute for a reasonable period of time after action
is administratively deferred on the instant charge. If the respondent
fails to express its willingness to arbitrate the dispute in the pre-
ceding manner, this Office will proceed to a full investigation, and
final determination of the merits, >o:f the charge and all interested
parties will be informed of the results thereof. If it is thereby
determined that issuance of complaint would otherwise be warranted,
respondent will then be given another opportunity to assert its willing-
ness to arbitrate the dispute and deferral of further action on the
charge will again be consi .. red at that time
and
final determination of the merits, >o:f the charge and all interested
parties will be informed of the results thereof. If it is thereby
determined that issuance of complaint would otherwise be warranted,
respondent will then be given another opportunity to assert its willing-
ness to arbitrate the dispute and deferral of further action on the
charge will again be consi .. red at that time.
/s/ Regional Director
cc:
Other parties
- 56 -

APPENDIX C
Respondent:
Re: Case Name and Number
The charge filed in the above-captioned case, charging a
violation of Section/sf
of the Labor Management
Relations Act, has been carefully considered by this Office.
Based
on a full investigation and determination of the merits of this
charge, it has been concluded that, absent settlement or deferral
of the charge for arbitration, issuance of a complaint charging the
respondent with violations of the Act is warranted.
The respondent is hereby given the opportunity to notify this
Office within seven (7) days from the date of .this letter, in writing,
of its willingness to arbitrate the dispute underlying this charge and
to waive any contractual time limitations on the filing and processi~g
of grievances to arbitration and of its intention to continue in its
willingness to arbitrate the dispute for a reasonable period thereafter.
In the event the respondent so notifies the region, further action on
the charge will be deferred for arbitration under the National Labor
Relations Board's decision in Collyer Insulated Wire, 192 NLRB No. 150,
and pursuant to"Arbitration Deferr_!l Policy Under Collyer" publicly
issued by the General Counsel on Ldate of releas~/. If the respondent
does not so notify this OJ'fice, complaint will issue on the instant
charge, and this Office will treat any subsequent expression by respon-
dent of its willingness to arbitrate as belatedly expressed
's decision in Collyer Insulated Wire, 192 NLRB No. 150,
and pursuant to"Arbitration Deferr_!l Policy Under Collyer" publicly
issued by the General Counsel on Ldate of releas~/. If the respondent
does not so notify this OJ'fice, complaint will issue on the instant
charge, and this Office will treat any subsequent expression by respon-
dent of its willingness to arbitrate as belatedly expressed.
This
Office will thereafter treat the arbitration deferral defense as defective
by reason of respondent's failure to assert its willingness to arbitrate
in a timely fashion and accordingly oppose any subsequent effort on the
respondent's part to secure deferral on the basis of the Board's Collyer
policy.
/s/ Regional Director
cc: Other parties
- 57 -

Charging Party
Respondent
APPENDIX D
Re:
Case Name and Number
In accordance with the National Labor Relations Board's
decision in Collyer Insulated Wire, 192 NLRB No. 150, and pursuant to
"Arbitration Deferral Policy Under Collyer - Revised Guidelines" publicly
issued by the General Counsel on [date of release], I am 1/ declining to
issue a complaint on the instant charge based on my determination that
further proceedings on the charge should be administratively deferred
for arbitration.
My reasons for deferring the charge are as follows:
[insert
a concise statement of the circumstances (separately numbered) on which
the region relies in determining that deferral is warranted, which
circumstances should include the fact that on (date), this Office has
been notified by the respondent in this matter, that it is now, and for
a reasonable period will be, willing to arbitrate the dispute underlying
the charge in the above-captioned case notwithstanding any contractual
time limitations on the processing of grievances to arbitration or the
subsequent expiration of the contract],
Under Section 102.19 of the National Labor Relations Board's
Rules and Regulations, the charging party may obtain a
review
of my administrative determination to defer fu
lling to arbitrate the dispute underlying
the charge in the above-captioned case notwithstanding any contractual
time limitations on the processing of grievances to arbitration or the
subsequent expiration of the contract],
Under Section 102.19 of the National Labor Relations Board's
Rules and Regulations, the charging party may obtain a
review
of my administrative determination to defer further proceedings on this
charge by filing an appeal with the General Counsel addressed to the
Office of Appeals, National Labor Relations Board, Washington, D. c.
20570, addressing a copy of the appeal to thia Office.
This appeal must
contain a complete statement of the facts and reasons on which it is based.
The appeal must be received by the General Counsel in Washington, D. C.,
by 5:00 p.m. on [date (13 days following date of this letter)]. For
good cause shown, however, the General Coansel may grant special permission
to .extend the time for filing.
A request for an extension of time to file
an appeal must be in writing and received by the Office of Appeals prior
ll If deferral is ordered after a complaint has issued, the following
should be included at this point:
hereby withdrawing the outstanding complaint in this matter
pursuant to Section 102.18 of the Board's Rules and Regulations
and I am
- 58 -

to [date]; a copy of such request should be filed with this Office.
If
the General Counsel determines that deferral of this charge to arbitration
is unwarranted, the case will be remanded to me for appropriate action.
But if the General Counsel sustains my decision, the case will be remanded
to me for deferral as set forth herein.
It is also my intention to inquire as to the status of this
dispute periodically, and no later than 90 days hence, and to accept and
consider at any time requests and supporting evidence submitted by any
party to this matter for dismissal of the charge, for continued deferral
of administrative action on the charge, or for issuance of a complaint
manded
to me for deferral as set forth herein.
It is also my intention to inquire as to the status of this
dispute periodically, and no later than 90 days hence, and to accept and
consider at any time requests and supporting evidence submitted by any
party to this matter for dismissal of the charge, for continued deferral
of administrative action on the charge, or for issuance of a complaint.
It is my intention to dismiss the charge in the event the
charging party does not promptly submit the dispute underl. ying the
charge to the contract arbitration procedures, or in the event the charging
party notifies me in writing that it does not intend to submit the dispute
to arbitration. £,/
It is my intention to revoke my decision to defer and to resume
processing of the charge in the event the respondent, by conduct inconsis-
tent with its expression of a willingness to arbitrate, prevents or impedes
the prompt resolution of the underlying dispute through the contract
grievance-arbitration procedures.
If the dispute underlying the charge is not resolved amicably
under the grievance procedure, and resort to arbitration proves necessary,
the charging party may obtain a review of the arbitrator's final award
·by addressing a request for review to this Office.
The request should be
in writing and contain a statement of the facts and circumstances bearing
on whether the arbitral proceedings were fair and regular; whether the
unfair labor practice issues which gave rise to the charge were considered
and decided by the arbitrator; and whether the award is consonant with the
purposes and policies of the Labor Management Relations. Act.
Spielberg
Mfg
The request should be
in writing and contain a statement of the facts and circumstances bearing
on whether the arbitral proceedings were fair and regular; whether the
unfair labor practice issues which gave rise to the charge were considered
and decided by the arbitrator; and whether the award is consonant with the
purposes and policies of the Labor Management Relations. Act.
Spielberg
Mfg. Co., 112 NLRB 1080,
cc:
Other parties
General Counsel
/sf Regional Director
2/ If the charging party is an individual employee, this paragraph should
-
read as follows:
It is my intention to revoke my decision to defer and resume
processir.g of the charge if the dispute underlying the charge
is not promptly settled or submitted for arbitration, or if the
interests of the charging party are otherwise now in conflict
with those of both parties to the contract or if the charging
party expressly objects to, and refuses to be bound by, the
arbitration of the dispute.
- 59 -

APPENDIX E
Charging Party:
Re: Case Name and Number
This Office on Ldat~7 administratively deferred further
action on the charge in the above matter for arbitration of the under-
lying dispute pursuant to the grievance-arbitrati_£n p.o.ocedures of the
applicable collective bargaining agreement.
On Ldat~/ an arbitration
award issued resolving the instant dispute.
LAlternative #17
No interested party having contended that the arbitration
award fails to meet the standards set by the Board in Spielberg
Manufacturing Co., 112 NLRB 1080, for deferral to such awards, it
does not appear that further proceedings are warranted.
I am,
there~
fore, refusing to issue a complaint in this matter
Ldat~/ an arbitration
award issued resolving the instant dispute.
LAlternative #17
No interested party having contended that the arbitration
award fails to meet the standards set by the Board in Spielberg
Manufacturing Co., 112 NLRB 1080, for deferral to such awards, it
does not appear that further proceedings are warranted.
I am,
there~
fore, refusing to issue a complaint in this matter.
LAlternative #17
It has been contended by _lthe interested part-:t.7 that the
arbitration award fails to meet the standards set by the Board in
Spielberg Manufacturing Co., 112 NLRB 1080, for deferral to such
awards in that:
_Lstatement of the Charging Party's Contentio,!!7
As a result of a review of the arbitration proceeding and
award and the Charging Party's contention, I have concluded that further
proceedings on the charge are not warranted for the following reasons:
Lstatement of the reasons relied on for !_ejection of
the Charging Party's contention/
I am, for the foregoing reasons, refusing to issue a com-
plaint in this matter.
/Notification to the Charging Party of its right to
-
obtain a review of this section b-:t. filing an
appeal with the General Counsel/
cc: Other parties
General Counsel
-
60 -
Isl Regional Director

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- [NLRB General Counsel Memorandum GC 00-04 Continuation of the Requirement For the Submission of Section 10(j)](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0004.md)
- [NLRB General Counsel Memorandum GC 00-05 Daily Compounding of Interest on Backpay and other Monetary Awards](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0005.md)
- [NLRB General Counsel Memorandum GC 00-06 Impact Analysis Program Modifications](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0006.md)
- [NLRB General Counsel Memorandum GC 00-07 Reimbursement for Excess Federal and State Income Taxes which Discriminatees owe as a result of receiving a lump-sum backpay award](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0007.md)
- [NLRB General Counsel Memorandum GC 01-01 Pro Bono Program](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0101.md)
- [NLRB General Counsel Memorandum GC 01-02 "Casehandling in light of Fleming Cos., 332 NLRB No. 99 (October 31, 2000)"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0102.md)
- [NLRB General Counsel Memorandum GC 01-03 "Report on Utilization of Section 10(j) Injunction Proceedings March 3, 1998 through January 15, 2001"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0103.md)
- [NLRB General Counsel Memorandum GC 01-04 Guidelines for Response to Beck-Related Public Inquiries](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0104.md)
- [NLRB General Counsel Memorandum GC 01-05 "Unfair Labor Practice Complaints Issued December 19, 2000 – April 20, 2001"](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0105.md)
- [NLRB General Counsel Memorandum GC 01-06 Fundraising Following Recent Tragedy](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0106.md)
- [NLRB General Counsel Memorandum GC 02-01 Guidelines Memorandum Concerning Levitz](https://www.frixlaw.com/law-library/statutes/NLRB_GCGC0201.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/NLRB_GCGC7331. Check the current official text before relying on it. Not legal advice.