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 agreement1 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
record and reconsider that issue in light of Olin.
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.
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:

3 would find that an arbitrator has adequately considered the unfair labor practice
We
if (1) the contractual issue is factually parallel to the unfair labor practice issue, and
(2) the arbitrator was presented generally with the facts relevant to resolving the
unfair labor practice. In this respect, differences, if any, between the contractual and
statutory standards of review should be weighed by the Board as part of its
determination under the Spielberg standards of whether an award is "clearly
repugnant" to the Act.
4 And, with respect to the inquiry into [Spielberg's ] "clearly repugnant" standard, ...
...
unless the award is "palpably wrong," i.e., unless the arbitrator's decision is not
susceptible to an interpretation consistent with the Act, we will defer.
5

Id. (footnotes omitted). Olin Corp. also modified the Raytheon "fully and fairly
litigated" test by returning to the Electronic Reproduction rule placing the
burden upon the General Counsel to demonstrate that deferral was not
necessary. Id.

Taylor urges, however, that the Olin Corp. standard confers upon arbitral
decisions a nearly preclusive effect that is inappropriate in many contexts in
which contractual and statutory labor disputes may arise. Taylor contends that
factual parallelism does not always guarantee legal parallelism and sets forth
several instances in which Olin's "factually parallel" test will result in
inadequate or no litigation of the unfair labor practice issue.5

As evidenced by the application of the Olin Corp. standard to Taylor's labor

claim, the Board's latest attempt to formulate a consistent deferral policy has
swung back too far in the direction of Electronic Reproduction and cannot pass
muster. As noted above, the NLRB has a statutory duty to enforce the National
Labor Relations Act and exclusive jurisdiction to decide unfair labor practices.
The Board may not avoid this responsibility through a far-reaching deferral
policy which apparently presumes that an unfair labor practice claim has been
resolved through arbitration.
8

The Supreme Court has stated in Alexander v. Gardner-Denver Co., 415 U.S.
36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), that an employee whose grievance
was dismissed at arbitration nevertheless could bring an Title VII claim arising
from the same underlying facts. Recognizing that the arbitrator's competence
lies in "the law of the shop, not the law of the land," the Court held that an
employee may still assert statutory claims independent of any rights created by
a collective bargaining agreement. 415 U.S. 36, 57, 94 S.Ct. 1011, 1024.
Deferral to an arbitral finding is not justified when the arbitrator did not address
or resolve a distinct statutory claim. Id.

Several Courts of Appeal have faced similar fact situations and ruled against
deferral where the circumstances surrounding the arbitral process were
unknown or unclear. In NLRB v. Magnetics International, Inc., 699 F.2d 806,
(6th Cir.1983), the arbitral award was accompanied by a brief discussion which
gave no indication that an unfair labor practice charge was considered. The
court upheld the refusal of the Board to defer to arbitration, refusing to
speculate on what the arbitrator might have considered and holding that
arbitration is "properly seen as an aid to the Board, not as an alternative to its
processes." 699 F.2d at 809. In NLRB v. General Warehouse Corp., 643 F.2d
965 (3d Cir.1981), the arbitrator stated in a written opinion that a grievant was
dismissed for just cause and denied his grievance without discussing other
possible motives for the grievant's discharge. Under these circumstances, the
court overruled deferral by the Board because the arbitral finding did not
encompass unfair labor practice issues. 643 F.2d at 969-70. Other cases have
similarly refused to sanction deferral because the record did not indicate clearly
that the statutory issue in fact had been presented to or decided by the
arbitrator.6 See, e.g., Stephenson v. NLRB, 550 F.2d 535, 540-41 (9th
Cir.1977); Banyard v. NLRB, 505 F.2d 342, 345 (D.C.Cir.1974).

10

In a closely analogous context, courts have grappled with similar concerns in

applying standards for granting preclusive effect to an arbitral finding. In
Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct.
1437, 67 L.Ed.2d 641 (1981), the Supreme Court rejected the contention that
arbitration of wage claims precluded a later suit under the Fair Labor Standards

Act based on the same underlying facts. 450 U.S. at 745-46, 101 S.Ct. at 144748. In McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80
L.Ed.2d 302 (1984), the Court similarly held that an earlier arbitral finding did
not preclude a civil rights action brought under 42 U.S.C. Sec. 1983. The
McDonald Court held that its limitation of deferral in Alexander and preclusion
in Barrentine was "based in large part on our conclusion that Congress intended
the statutes at issue in those cases to be judicially enforceable and that
arbitration could not provide an adequate substitute for judicial proceedings in
adjudicating claims under those statutes." 466 U.S. at 289, 104 S.Ct. at 1803,
80 L.Ed.2d at 308. This concern for individual rights has been expressed in
refusals by other courts to give preclusive effect to arbitration in a later
statutory action.7
11

The Fifth Circuit has recognized the importance of maintaining a viable forum
for the resolution of statutory rights as stated by the Supreme Court in
Alexander, Barrentine, and McDonald. In McNair v. United States Postal
Service, 768 F.2d 730 (5th Cir.1985), a case which ultimately upheld
preclusion for an arbitral finding, the court first reviewed the principles of
deferral and preclusion. McNair recognized the need for employees to be able
to assert statutory rights independent of the arbitration process, citing four
factors to support this conclusion.

12 an arbitrator, schooled primarily in the law of the shop, may lack the expertise to
(1)
resolve complex statutory questions; (2) "because an arbitrator's authority derives
solely from the contract, an arbitrator may not have the authority to enforce" statutes;
(3) the union, which generally controls the grievance process, because its interests
are not necessarily identical to those of its employees, may not adequately protect
their statutory rights; and (4) "arbitral factfinding generally is not equivalent to
judicial factfinding.,"
13

768 F.2d at 736, note 7 (citing McDonald v. City of West Branch, supra ).

14

Relying on the principles and interests stated in the above cases, it is apparent
that the Olin Corp. standard--like its predecessor in Electronic Reproduction -does not protect sufficiently an employee's rights granted by the National Labor
Relations Act. By presuming, until proven otherwise, that all arbitration
proceedings confront and decide every possible unfair labor practice issue, Olin
Corp. gives away too much of the Board's responsibility under the NLRA. The
ALJ in this case was presented with two grievance committee proceedings. In
his supplemental decision, the ALJ found that the statutory issue clearly was
considered at the Multi-State Committee hearing. If that hearing had produced
a dispositive result, then deferral to that result would have been proper under

any of the many variations of the Spielberg standard. It is the Area Committee's
decision, however, that is relevant for deferral purposes and the ALJ had no
indication from the transcript of that proceeding whether the Area Committee
considered any unfair labor practice claim.
15

This case does not present the court with the question of whether the facts and
issues were sufficiently parallel to justify deferral, nor does it involve
scrutinizing an arbitral finding for a result that is "clearly repugnant" to the Act.
The overriding question in this case is whether the Area Committee ever
considered any facts relevant to Taylor's statutory claim.

16

Under Olin Corp., the Board essentially has decided that deferral is proper in all
cases unless it is affirmatively demonstrated that some unusual circumstances
require that the ALJ conduct an independent inquiry into a grievant's statutory
claims. Such a result cannot be reconciled with the need to protect statutory
rights, as expressed by the Supreme Court in Alexander, Barrentine, and
McDonald, supra. Olin Corp. either overlooks or ignores those instances where
contract and statutory issues may be factually parallel but involve distinct
elements of proof and questions of factual relevance.

17

The new standard further ignores the practical reality of many bipartite
proceedings, in which individual rights may be negotiated away in the interest
of the collective good. The circumstances surrounding bipartite proceedings
such as Taylor's Area Committee hearing hardly inspire confidence in the
fairness of the process or the accuracy of the result. A recent survey of
Teamster Grievance Committees casts doubt on the competence of union
representatives, thoroughness of investigation, adequacy of preparation, and
reliability of evidence.8 See generally Summers, The Teamster Grievance
Committees: Grievance Disposal Without Adjudication, 37 Proc. of the Nat'l
Acad. of Arb. 130 (1984); Olin Corp.'s standard appears on its face to represent
an abdication of Board responsibility, and application of that standard to
proceedings such as these fully supports this conclusion. Spielberg's first
requirement--that the proceedings below appear to have been fair and regular-can hardly be satisfied in this context. The Supreme Court has recognized that
arbitration is valuable therapy for the complicated and troubled area of labor
dispute resolution. See Carey v. Westinghouse Corp., 375 U.S. 261, 272, 84
S.Ct. 401, 409, 11 L.Ed.2d 320 (1964). There can be little therapeutic value,
however, in a deferral policy so unmindful of the Board's statutory
responsibility and of individual rights.

18

We therefore VACATE the Board's order deferring to the decision of the Area
Grievance Committee, and REMAND the case for further consideration of

Ryder's exceptions and the General Counsel's cross-exceptions to the decision

of the ALJ.

Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern
District of Alabama, sitting by designation

Ryder's truck drivers are covered by the National Master Freight Agreement
and the Southern Conference Area Over the Road Supplemental Agreement

The Board reversed the ALJ by a 2-1 vote. The dissenting member of the panel
stated that deferral was improper where there was no written decision from
which the ALJ could determine if deferral criteria had been met

The Raytheon majority further rejected the minority argument that deferral was
warranted because the factual issue underlying the contractual and statutory
issues was the same. 140 NLRB at 88-. Raytheon thus expressly rejected the
theory that factual parallelism between contract and statutory issues would
suffice for deferral to the arbitral decision. Olin Corp., supra, at 577-78
(Zimmerman, M., dissenting)

See, e.g., Banyard v. NLRB, 505 F.2d 342, 345-46 (D.C.Cir.1974) (absent
congruence between contractual and statutory issues, board policy constituted
not deferral but abdication). See also Stephenson v. NLRB, 550 F.2d 535, 550
(9th Cir.1977) (broader criteria described as "illogical" and an unjustified
extension of deferral policy); Note, 88 Harv.L.Rev. 804 (1975); Schatzki,
"Majority Rule, Exclusive Representation, and the Interests of Individual
Workers: Should Exclusivity be Abolished?", 123 U.Penn.L.Rev. 897 (1975)
Some pre-Suburban Motor Freight Board decisions also indicated
dissatisfaction with the Electronic Reproduction standard by using language
consistent with the earlier deferral guidelines. See, e.g., Max Factor & Co., 239
NLRB 804 (1978); The Mason and Dixon Lines, Inc., 237 NLRB 6 (1978);
The Kansas City Star Co., 236 NLRB 866 (1978).

(1) The facts relevant to establishing a contract violation may differ from those
facts relevant to unfair labor practice violations, although there may be some
overlap. Example: An arbitrator's finding of just cause for an employee's
termination may overlook a real underlying reason for discharge arising from
some protected activity
(2) The standard of review for a contract violation may differ from a Board for
an analogous unfair labor practice claim. Example: The amount of allowable

insubordination by an employee differs for Board and arbitral purposes.

(3) The interest of the union may be to establish a favorable interpretation of a
contract, not to protect an employee from a specific unfair labor practice.
Example: A group of cases may be resolved jointly on a compromise basis,
despite the wishes of one grievant to proceed with an unfair labor practice
complaint.
(4) A bipartite grievance committee issues a decision denying a grievance but
giving no indication of whether, and if so what, evidence or issues were
considered in reaching that decision. Example: The majority of Teamster
grievance committee decisions do not include written explanations, as
demonstrated in the decision to deny Taylor's grievance.
6

The full and fair litigation test was also followed in NLRB v. Wolff & Munier,
Inc., 747 F.2d 156 (3d Cir.1984), in which the court remanded to the Board
after deferral because the ALJ's opinion did not indicate the precise reason that
it deferred to the arbitral finding. The court recognized that failure to consider
the statutory issue would justify the ALJ's deferral. 747 F.2d at 161 n. 14
Other cases that have enforced deferral have done so only after a demonstration
that the arbitrator fully considered and clearly decided the statutory issue. See,
e.g., Bakery, Confectionery and Tobacco Workers v. NLRB, 730 F.2d 812,
815-16 (D.C.Cir.1984) (using Olin language yet continuing to require a
thorough consideration of such issues by the arbitrator); NLRB v. Motor
Convoy, Inc., 673 F.2d 734, 735 (4th Cir.1982) (unfair labor practice issue held
identical to contractual issue); Hammermill Paper Co. v. NLRB, 658 F.2d 155,
160-61 (3d Cir.1981) (rationale for deferral evaporates when only contractual
issue has been treated by arbitrator), cert. denied 460 U.S. 1080, 103 S.Ct.
1767, 76 L.Ed.2d 341 (1983).

See, e.g., Burke v. Latrobe Steel Co., 775 F.2d 88, 91 (3d Cir.1985) (ERISA
claims not barred); Consolidation Coal Co. v. Marshall, 663 F.2d 1211, 1219
(3d Cir.1981) (Federal Coal Mine Health and Safety Act of 1969 raised
independent statutory issues

This survey observes that employees have no say in determining who will
represent them, committee hearings last an average of fifteen minutes, most
evidence presented is second-hand or hearsay, there is little cross-examination,
and hearings are held at locations far from employees, who often do not receive
time off from work to attend. The author concludes that "the number of cases,
the pressures of time, the unavailability of evidence, and the speed with which
cases are disposed makes it impossible for the panel in many cases to hear all
the relevant facts, or even to make a considered judgment on the basis of

limited facts and arguments presented at the hearing. This, in turn, creates a
climate and practice of inadequate preparation, summary presentation,
incomplete inquiry, and decisions based on a partial skeleton or imaginary
shadow of the facts." Id. at 138