647 F.2d 415 (4th Cir. 1981), 80-1520, Roadway Exp., Inc. v. N.L.R.B.

Docket Nº:80-1520.
Citation:647 F.2d 415
Case Date:April 24, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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647 F.2d 415 (4th Cir. 1981)




No. 80-1520.

United States Court of Appeals, Fourth Circuit

April 24, 1981

Argued Jan. 6, 1981.

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Frank W. Stegman, Washington, D. C. (Charles P. O'Connor, Morgan, Lewis & Bockius, Washington, D. C., Jack F. Canady, Jack E. Thornton, Jr., Blackwell, Blackwell, Canady & Eller, Winston-Salem, N. C., on brief), for petitioner.

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Christopher W. Katzenbach, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John E. Elligers, Washington, D. C., on brief), for respondent.

Before RUSSELL, MURNAGHAN and ERVIN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This matter is before us on the application of the petitioner-employer to review a decision and order of the National Labor Relations Board, 1 and on a cross-application by the Board for enforcement of its order. The issue is whether the Board should have deferred to a voluntary settlement between the petitioner and the employee-grievant Brown of the grievance which later became the basis for the unfair labor practice charge before the Board. The Board in its order refused to defer and proceeded to find the petitioner in violation of the Act. It is that portion of the order refusing to defer which the petitioner basically asks us to review and it is the enforcement of the final order finding the petitioner in violation of the Act which is requested by the Board. We find that the Board improperly refused to defer and accordingly deny enforcement.

Robert Brown, the complainant in the unfair labor practice charge, was a dockworker and union shop steward at the petitioner's Kernersville, North Carolina, terminal. He had been discharged by the petitioner on September 17, 1977, for his alleged participation in an unauthorized strike at the terminal violative of the express no-strike provision in the collective bargaining agreement between the petitioner and the union with which Brown was affiliated and which had collective bargaining rights at the terminal. 2 The day after his discharge, he filed a grievance with his union because of his discharge. 3 The union

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and the petitioner not being able to resolve it, the discharge grievance was submitted for arbitration pursuant to the procedure provided in the Master Agreement. A hearing was had but the local grievance board, which, under the arbitration procedures in the Master Agreement, first considered the grievance, divided 4-4 on the claim. The grievance was then referred to the Eastern Conference Joint Area Committee for resolution, again pursuant to the arbitration procedures in the union agreement.

While the claim was pending for hearing before the Area Committee, Blevins, one of the business agents for the union, who was acting as adviser to Brown in the arbitration, explained to Brown the delay that the hearing before the Committee might occasion and offered to seek to settle the claim with the petitioner if Brown wished him to do so. Brown authorized Blevins, as his representative, to settle, if he could, the grievance with the petitioner. Blevins induced the petitioner to agree to a settlement of the grievance by reinstating Brown without backpay but without any loss of seniority. Brown, upon being advised of the settlement, expressed satisfaction with the agreement. He did, however, request a delay in reporting to work until October 11, 1977 under the settlement. This request of Brown was agreed to by the petitioner.

Blevins wrote a letter on October 11, 1977, to, among others, Brown and the petitioner, confirming the settlement and its terms. In this letter Blevins wrote "(i)t was agreed by all parties that the deadlocked grievance was resolved on the basis that Brother R. B. Brown be reinstated with full seniority and no back pay at his regularly scheduled starting time on Tuesday, October 11, 1977." Neither Brown nor the petitioner disputed the correctness of the settlement as thus detailed by Blevins in his letter. Brown returned to work on October 11 under the terms of the agreement as memorialized in Blevins' letter and has worked continuously since.

On February 21, 1978, some four and a half months after the settlement agreement, Brown filed an unfair labor practice charge based on his discharge. Brown contended that he had not authorized the union, through Blevins, to settle his grievance on a no-backpay basis. The petitioner in turn urged the settlement as a basis for a dismissal of the charge. After a hearing at which the parties, with witnesses, were fully heard, the Administrative Law Judge entered his decision, finding that deferral was appropriate under established Board policy and ordered the proceedings dismissed. That decision of the Administrative Law Judge was appealed by the General Counsel, and the Board, by a sharply divided vote reflected in four separate opinions, reversed, finding that the settlement did not qualify for deferral under established Board policy. It remanded the proceedings to the Administrative Law Judge to resolve the unfair labor practice charge. After a hearing on remand on the charge itself, the Administrative Law Judge found for the employer and the Board reversed. This appeal followed. We find it necessary on this appeal to consider only whether deferral in favor of the voluntary settlement was properly denied by the Board under its settled deferral policy. If deferral was inappropriate, enforcement of the Board's order would be proper but, if deferral was authorized under Board policy, enforcement should be denied, since the proceedings should have been dismissed.

It is recognized by the parties that the Board is not obligated by statute to defer proceedings under the Act in favor of a voluntary settlement of the underlying issue in a Labor Board charge. But it is equally well settled that the Board does have discretion to defer in such a case, 4 and

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when the Board has exercised that discretion to establish a policy of deferral under clearly articulated criteria, whether by formal rulemaking or by adjudicative proceedings, it must adhere to that policy as so established in subsequent decisions or explain the reason for its departure. 5 This, of course, does not mean that an administrative agency such as the Board may not change or abandon these criteria as fixed in its precedents or rules but it does mean, as one court has aptly put it, that "the Board may not depart sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case 'there may not be a rule for Monday, another for Tuesday, a rule for general application, but denied outright in a specific case.' " N. L. R. B. v. International Union of Operating Eng., Local 925, 460 F.2d 589, 604 (5th Cir. 1972). 6 See to the same effect: Contractors Transport Corp. v. United States, 537 F.2d 1160, 1162 (4th Cir. 1976) (" the grounds for an agency's disparate treatment of similarly situated applicants must be reasonably discernible from its report and order"); Squaw Transit Co. v. United States, 574 F.2d 492, 496 (10th Cir. 1978) (" we surely must require the agency to adhere to its own pronouncements, or explain its departure from them"): N. L. R. B. v. Silver Bay L. U. No. 962, etc., 498 F.2d 26, 29 (9th Cir. 1974) ("The Supreme Court has recently made clear that the Board may announce new principles in an adjudicative proceeding (citing authority). We agree with the Fifth Circuit, however, that '(n)evertheless, the Board may not depart, sub silentio, from its usual rules of decision to reach a different unexplained result in a single case.' "); Columbia Broadcasting System, Inc. v. F. C. C., 454 F.2d 1018, 1026 (D.C.Cir.1971) (" when an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored, and assuming that it is faithful and not indifferent to the rule of the law "). The Board has concededly enunciated under its discretionary power a policy of deferral in favor of both arbitration awards and voluntary settlements when certain criteria are met. This deferral policy has been recognized in repeated court decisions; 7 and since it has

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taken no action to interfere with the policy, Congress must be assumed, too, to have given its implicit approval to the policy. Nor, for that matter, has the Board in this proceeding, contended otherwise; its position is simply that the petitioner in this proceeding has not met the specific criteria established for the application of the policy. It thus becomes necessary to determine the circumstances under which the policy of Board deferral is to be exercised in the case of a voluntary settlement of the basic claim. To do this we must first trace the development of the Board's policy.

This deferral policy had its origin in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 8 In that case, the employees, members of a union, engaged in a strike. The strike was settled. However, the employer asserted the right to discharge certain employees for misconduct during the strike, and, in the settlement it was agreed that the propriety of such discharges would be settled by arbitration. Arbitration was had and the arbitrator sustained the discharges. An unfair labor practice charge was then filed with the Board. After a hearing the Board's Trial Examiner ruled that "agreements between private parties cannot restrict the jurisdiction of the Board , (which) may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the...

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