Operations In Fiscal Year 1988 - National Labor Relations Board

114 Fifty-Third Annual Report of the National Labor Relations Boardcordingly, dismiss the complaint. The judge found deferral inappropriatebecause the Area Committee issued no written decisionfrom which it could be determined whether the statutory issuewas considered. The judge further found, on the merits, that thedriver's discharge violated Section 8(a)(1).The Board, in an unpublished Order, remanded the case to thejudge for further consideration under its newly issued Olin decision.'"In his supplemental decision, the judge again found deferralinappropriate. Although he noted that the bipartite SouthernMulti-State Grievance Committee was presented with factsgenerally relevant to the unfair labor practice issue, and thus satisfiedthe Olin requirements, the Multi-State Committee haddeadlocked over the driver's grievance. As provided for in theparties' contract, the grievance then progressed to the AreaCommittee, which, according to the judge, issued brief, cursoryminutes that did not address the facts relevant to the unfair laborpractice issue. The minutes did, however, state that "[t]he transcriptof the Multi-State [Committee] hearing will be made a partof the [Area Committee] record." Having determined that deferralwas inappropriate, the judge reaffirmed his earlier 8(a)(1)finding. •The Board reversed the judge, found deferral appropriate, anddismissed the complaint." 3 The majority stated that "the parties'presentation of the facts relevant to the unfair labor practice atthe Multi-State Committee stage of the grievance proceeding, togetherwith the General Counsel's failure to affirmatively establishthat these facts were not presented to the Area Committee,satisfies the requirement set forth in Olin." Ibid.The Eleventh Circuit Court of Appeals vacated the Board'sOrder and remanded the case for further consideration. Taylor v.NLRB, 786 F.2d 1516 (1986). The court held that the Olin standardof deferral abdicated too much of the Board's responsibilityto protect employee rights under the Act, and it therefore refusedto apply the Olin standard. The court also found that theevidence failed to establish that the Area Committee consideredfactors relevant to the driver's statutory claim or that the AreaCommittee's proceedings satisfied the "fair and regular" requirementsunder Spielberg Mfg. 01144On remand, the Board treated the court's opinion as the law ofthe case and found deferral inappropriate. The majority thereforeapplied a deferral standard under which deferral is 'improperunless the party urging deferral has demonstrated that the arbitralforum in question has considered the facts relevant to theunfair labor practice issue." Because the employer did not establishthat the relevant facts were considered by the Area Committee,the majority denied the deferral request.142 Olin Corp., 268 NLRB 573 (1984).143 273 NLRB 713 (1984).144 112 NLRB 1080 (1955).