Taylor v. N.L.R.B.

• Decision Date: 21 April 1986
• Docket Number: No. 85-3220,85-3220
• Parties: 122 L.R.R.M. (BNA) 2084, 54 USLW 2565, 104 Lab.Cas. P 11,790 Melvin D. TAYLOR, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Ryder Truck Lines, Inc., Intervenor.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1516

786 F.2d 1516

122 L.R.R.M. (BNA) 2084, 54 USLW 2565,

104 Lab.Cas. P 11,790

Melvin D. TAYLOR, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Ryder Truck Lines, Inc., Intervenor.

No. 85-3220.

United States Court of Appeals, Eleventh Circuit.

April 21, 1986.

Arthur L. Fox, II, Public Citizen Litigation Group, Washington, D.C., for Taylor.

Elliott Moore, Deputy Assoc. Gen. N.L.R.B., Paul J. Spielberg, Washington, D.C., for N.L.R.B.

John Paul Jones, Clearwater, Fla., for Ryder Truck Lines.

Petition for Review of a Decision of the National Labor Relations Board.

Before VANCE, Circuit Judge, HENDERSON, Senior Circuit Judge, and LYNNE ^*, Senior District Judge.

LYNNE, Senior District Judge:

Melvin D. Taylor challenges the National Labor Relations Board's deferral to the decision of a grievance committee to dismiss his unfair labor practice claim. We hold that deferral was not warranted and remand for further consideration by the Board.

FACTS

On December 2, 1982, Melvin D. Taylor was terminated from his job as a truck driver by Ryder Truck Lines, Inc., when he refused to drive a 1979 Ford tractor assigned to him by Ryder from its pool of vehicles. Taylor complained of several safety problems with the tractor but primarily objected to the Ford's telescoping steering column, which had frozen and could not be adjusted to accommodate his 240-pound frame.

Ryder's truckdrivers are parties to a collective bargaining agreement ¹ and are represented by the International Brotherhood of Teamsters, Chauffers, Warehousemen, and Helpers of America (the Union). The Agreement states that Ryder may not require employees to operate an unsafe vehicle and further provides that disputes shall be resolved through final and binding grievance and arbitration procedures.

After his termination, Taylor filed a grievance protesting his discharge. The grievance was submitted to a Southern Multi-State Grievance Committee (the Multi-State Committee) comprised of Union and Ryder representatives. This Committee held a hearing on January 25, 1983, and heard testimony from Ryder and from Taylor but was unable to reach a decision. The case was automatically appealed to the Southern Conference Joint Area Grievance Committee (the Area Committee). At this hearing, the transcript of the first grievance proceeding was made a part of the record and a Ryder representative made a brief statement. Taylor was not permitted to be present at this hearing; the Union representative made no statement on Taylor's behalf. The Area Committee denied the grievance with no discussion other than the following pronouncement: "DECISION: Case No. 15 DENIED, COST TO THE UNION."

On March 3, 1983, Taylor filed charges with the National Labor Relations Board, which issued a complaint against Ryder on April 11 of that year. After a hearing on July 28-29, 1983, an Administrative Law Judge (ALJ) issued a recommended decision and order on September 21, 1983. The ALJ declined to defer to the Area Committee's denial of Taylor's complaint, noting that Ryder had not offered the Area Committee decision or the Multi-State Committee transcript into evidence. Reaching the merits of Taylor's grievance, the ALJ held that Taylor's refusal to drive the Ford tractor was a protected "concerted activity" and that his termination by Ryder violated Section 8(a)(3) of the National Labor Relations Act.

Ryder filed numerous exceptions to the findings and order of the ALJ. While these exceptions were pending, the Board decided Olin Corp., 268 NLRB 573 (1984), in which it restated the Board's standard for deferral to arbitration procedures. On its own initiative, the Board remanded Taylor's case to the ALJ on the deferral issue alone, with instructions to reopen the After reviewing the transcript of the Multi-State Committee hearing and the decision of the Area Committee, the ALJ issued on July 17, 1984, a supplemental decision finding that the "cursory" findings of the Area Committee provided no basis for deferral and reaffirming its original decision.

record and reconsider that issue in light of Olin.

Relying on the Olin decision, the Board reversed the supplemental decision, ² holding that the General Counsel had not met its burden of affirmatively demonstrating that the unfair labor practice had not received adequate consideration by the Area Committee. This appeal followed.

DISCUSSION

Taylor contends that the ALJ's decision not to defer to the arbitral finding of the Area Committee was proper because it could not be determined from the Committee's decision whether Taylor's unfair labor practice claim had been considered. The Board responds by relying upon its new criteria for deferral as set forth in Olin Corp., supra, and its finding that the General Counsel did not affirmatively demonstrate that deferral was not warranted.

1. Background of NLRB's Deferral Policy.

The NLRB's responsibility to prevent and penalize unfair labor practices historically has been pitted against a countervailing desire to encourage the private settlement of labor disputes. The tension between these competing concerns is readily apparent from Congressional directives to the Board. Section 10(a) of the National Labor Relations Act provides that the Board's power to prevent unfair labor disputes "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Section 203(d) of the Act, however, states that binding arbitration is "the desirable method of settlement of grievances arising over the application or interpretation of an existing collective bargaining agreement." 29 U.S.C. Secs. 160(a), 173(d).

In the seminal case of Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board ruled that "recognition" of an arbitration award was justified because (1) the proceedings appeared to have been fair and regular; (2) all parties had agreed to be bound; and (3) the decision of the arbitration panel was not clearly repugnant to the purposes and policies of the Act. 112 NLRB at 1802. It soon became apparent, however, that a more exacting standard was required to ensure that unfair labor practice issues were in fact being addressed and resolved. See Raytheon Co., 140 NLRB 883, 886 (1963) (Board cannot neglect function of protecting rights of protected employees), enforcement denied on other grounds, 326 F.2d 471 (1st Cir.1964). Raytheon Co. added the further requirement that an unfair labor practice issue must have been "fully and fairly litigated" at the arbitration level to justify deferral by the Board. 140 NLRB at 887. ³ See also Airco Industrial Gases, 195 NLRB 676 (1972) (refusing to defer to arbitral award that did not indicate whether arbitrator had ruled on unfair labor practice issue); and Yourga Trucking, Inc., 197 NLRB 928 (1972) (party asserting deferral defense bears burden of proving adequate presentation of unfair labor practice issue at arbitration).

The Board deviated from the Spielberg and Raytheon policy of cautious deferral in Electronics Reproduction Service Corp., 213 NLRB 758 (1974), in which it ruled that arbitral findings would be given effect unless "special circumstances" precluded the grievant from a "full and fair opportunity " to present evidence of an unfair labor practice. 213 NLRB at 764 (emphasis supplied). Although not expressly stated, this standard in effect placed upon the grievant the burden of proving to the Board that such unusual circumstances existed at the arbitration level. See id. at 765 (Fanning and Jenkins, dissenting).

The Board's new criteria established in Electronic Reproduction decision drew sharp disapproval from courts and critics. ⁴ In Suburban Motor Freight, 247 NLRB 146 (1980), the Board acknowledged criticisms that Electronic Reproduction represented an "unwarranted extension of the Spielberg doctrine and an impermissible delegation of the Board's exclusive jurisdiction under [the NLRA] to decide unfair labor practice issues." 247 NLRB at 146. The Board overruled Electronic Reproduction, even though its more liberal standard encouraged collective bargaining relationships, because it also "derogate[d] the equally important purpose of protecting employees in the exercise of their rights." Id. The Suburban Motor Freight panel explicitly ruled that it would "give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions." Id. The Board also expressly restored the previous burden of proof allocations of Spielberg and Yourga Trucking. See id., note 7.

The Board's return to the traditional deferral criteria did not solve the difficult questions that confront Board members and courts in an effort to reconcile the opposing policies of private dispute resolution and statutory rights protection. The Supreme Court has observed that "the opinions of the Courts of Appeal strongly suggest that there is marked disagreement on the circumstances under which the policy of Board deferral must be exercised." Schaefer v. NLRB, 464 U.S. 945, 945, 104 S.Ct. 362, 364, 78 L.Ed.2d 323, 325 (1983) (O'Connor, J., dissenting).

2. Olin Corp.'s New Deferral Standard.

The NLRB presumably attempted to address this need for uniformity in Olin Corp., 268 NLRB 573 (1984), in which yet another approach to deferral was formulated. The Board cited infrequent deferral under Suburban Motor Freight as the primary reason for its new standard, concluding that Olin Corp. is more consistent with "the aims of the Act and American labor policy." 268 NLRB at 574. After expressly reaffirming the general Spielberg criteria, the Olin majority went on to state its new deferral standard:

We would find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the...