Arthur N. Stephenson v. National Labor Relations Board

Arthur N. Stephenson petitions this court to review the dismissal 1 of his unfair labor practice complaint by the National Labor Relations Board (“the Board”) in deference to a decision on the matter by an arbitration panel.

While there are slight differences between the facts alleged by petitioner and those alleged by the Board in their respec *537 tive briefs, the primary and controlling issue before this court is whether the Board properly deferred to the decision of the grievance committee set up under the arbitration provisions of the collective bargaining agreement. For reasons of economy of space we will not repeat the parties’ summaries of facts.

While Section 10(a) of the National Labor Relations Act (“Act”) empowers the Board to prevent the commission of unfair labor practices, it has been held that the presence of arbitration machinery does not oust the Board of jurisdiction to adjudicate unfair labor practices. Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 675-676 (9th Cir. 1976), cert. petition filed on March 15,1977, 45 U.S.L.W. 3619 . The case law is settled, however, that the Board has considerable discretion to respect an arbitration award and can…

dissenting:

I respectfully dissent from the conclusion of the majority. Despite oral argument by Government counsel which was of little or no assistance in this important matter, I am persuaded that the decision here should be in favor of the National Labor Relations Board (NLRB).

The majority places its reliance on Ban-yard v. NLRB, 164 U.S.App.D.C. 235 , 505 F.2d 342 (1974), and, in fact, adopts this decision of the District of Columbia Circuit. I would not so extend the decision of the *542 NLRB in Spielberg Manufacturing Co., 112 NLRB 1080 (1955).

In 1955, Spielberg came upon the scene and approved deference to arbitration if: (1) The proceedings appear to be fair and regular; (2) all parties had consented to be bound by the arbitrator’s decision; and (3) the award was not repugnant to the purposes and policies of the Act. In the instant matter it is conceded by the majority that the Spielberg requirements have been met. In addition, the arbitration panel decided in favor of plaintiff, thus emphasizing that the procedures were fair and regular. (It should be noted that the employer has not objected to the arbitration award.) Thus it is not difficult to hold that here the…

550 F.2d 535 94 L.R.R.M. (BNA) 3224 , 81 Lab.Cas. P 13,155 Arthur N. STEPHENSON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 75-3688. United States Court of Appeals, Ninth Circuit. March 23, 1977. Arthur N. Stephenson, pro se. Elliott Moore and David A. Fleischer, argued, Attys., Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Wilford W. Johansen, District Director, Region 21, N.L.R.B., Los Angeles, Cal., for respondent. On Petition for Review of an Order of the National Labor Relations Board. Before BARNES and ELY, Circuit Judges, and KUNZIG, * Judge, Court of Claims. BARNES, Senior Circuit Judge: 1 Arthur N. Stephenson petitions this court to review the dismissal 1 of his unfair labor practice complaint by the National Labor Relations Board ("the Board") in deference to a decision on the matter by an arbitration panel. 2 While there are slight differences between the facts alleged by petitioner and those alleged by the Board in their respective briefs, the primary and controlling issue before this court is whether the Board properly deferred to the decision of the grievance committee set up under the arbitration provisions of the collective…