Petitions to review two orders of the respondent National Labor Relations Board deferring to arbitration charges which were arguably violations of both the National Labor Relations Act and the collective bargaining agreement between the parties. The respondent retained jurisdiction in order to act in the event that the arbitration procedure does not satisfactorily resolve the disputes.
Gibbons,*fn* Gurfein and Meskill, Circuit Judges.
These petitions question the scope of the policy of the respondent National Labor Relations Board ("Board" or "NLRB") to defer to arbitration cases involving charges of actions which are arguably both violations of the National Labor Relations Act ("NLRA" or "Act") and also susceptible to arbitration as violations of the collective bargaining agreement between the parties.*fn1 That policy of deferral, announced by the Board in Collyer Insulated Wire, 192 N.L.R.B. 837 (1971), is popularly known as the "Collyer" doctrine. The validity of the Collyer doctrine is no longer seriously in doubt. This Court in Nabisco, Inc. v. N.L.R.B., 479 F.2d 770 (2 Cir., 1973) held that such a policy was within the Board's discretion if it felt that deferral in a particular case would further the fundamental aims of the NLRA. The Supreme Court has since added further authority to the policy by quoting favorably from the Board's reasoning in the Collyer decision in William E. Arnold Co. v. Carpenters, 417 U.S. 12, 16-17, 40 L. Ed. 2d 620, 94 S. Ct. 2069 (1974).
Petitioners here, Lodges 700, 743 and 1746, International Association of Machinists and Aerospace Workers, AFL-CIO ("Unions"), argue that we should withdraw our approval of the Collyer doctrine as a general Board policy.*fn2 We decline to do so. Rather, as we did in the Nabisco case, supra, we have examined this case to determine whether the Board has abused its discretion by deciding that to defer to arbitration furthers the fundamental aims of the NLRA. We find no such abuse of discretion in this case.
Our decision rests upon a thorough examination of both the history of the repetitive litigation between the petitioners and the intervenor here, United Aircraft Corporation ("Company"), and the nature of the alleged incidents which gave rise to the petitioners' present charges of unfair labor practices. It will be helpful for us to review here both that history and the factual and procedural backgrounds of the charges filed.
I. Factual and Procedural Background
The proceedings in No. 74-1035 before us were initiated before the Board on a series of charges filed by the Unions against the Company from December 1969 through February 1971. The Board's General Counsel issued a complaint in February 1971 and the charges were consolidated for hearing before an administrative law judge. The complaint, after several amendments, charged that the Company had violated Section 8(a)(1)*fn3 of the Act by harassing union representatives "under pretext of enforcing plant rules concerning employee conduct on company time and property"; that it had violated Section 8(a)(3) and (1)*fn4 by imposing, for discriminatory reasons, disciplinary suspensions on two employees; and further that it had violated Section 8(a)(5) and (1)*fn5 by giving the Unions insufficient notice of layoffs, by refusing to furnish the Unions with standards and other information relevant to grievances with respect to employees' merit ratings, by refusing on certain occasions to provide employees with the services of shop stewards or to discuss employees' grievances with stewards, and by repudiating an agreement with a shop steward to "reconsider and re-rate" an employee's merit rating.
In June and July of 1971 a hearing was held before an administrative law judge. He issued his opinion on April 17, 1972. Prior to reciting his findings of fact and conclusions of law with respect to the specific allegations of the complaint, the administrative law judge concluded that this was not an appropriate case for the Board to defer to arbitration pursuant to the Collyer doctrine since "the Company has a history of enmity to union supporters.... [citations omitted]" and because "the Company has further infringed upon its employees' statutory rights." 204 NLRB at 884, n. 2.
In his findings, the administrative law judge determined that the Company had been guilty of discriminating against and harassing union representatives Gaskins, Havener, Raymond, Lee and Sullivan on several different occasions. More specifically, he found (1) that the Company's strict surveillance of and constant criticism of employees Gaskins and Lee violated § 8(a)(1) of the Act; (2) that the Company's refusal to issue gate passes to employees Gaskins and Lee in order for them to carry union briefcases out of the plant on a daily basis violated § 8(a)(1) of the Act; (3) that the Company's interrogations without the benefit of union representation of employees Raymond and Sullivan concerning incidents of alleged job misconduct violated § 8(a)(1) of the Act; and (4) that the Company's two week suspension of employee Raymond, because of an incident during which both he and his foreman lost their tempers and during which Raymond knocked a pencil out of the foreman's hand, had violated § 8(a)(1) and (3) of the Act. The administrative law judge found no violations of the Act on the Company's part with respect to other incidents involving employees Raymond, Lee and Sullivan.*fn6 The administrative law judge further found that there was insufficient evidence to find that the Company violated the Act with respect to incidents involving employees Dorsey, Gleason, Williams, Sidusky, Duhamel and Piorek.
The administrative law judge also found that the Company had refused to bargain with the Unions, violations of § 8(a)(5) and (1) of the Act, in several instances. In those instances he found (1) that the Company had refused to discuss grievances with eight employees' union representatives; (2) that the Company had violated the collective bargaining agreement by not calling a shop steward for employee Rogers prior to requiring him to sign a disciplinary report;*fn7 and (3) that the Company had failed to provide employees with Company records, i.e., employee reports prepared by foremen, production inventory control reports, quality review orders, and foremen's notebooks, containing information relevant to those employees' processing of merit rating grievances, at step two of the grievance procedure.*fn8 He found, however, no Company violations of the Act in the timing of its notification to the Unions of layoffs or its refusal to provide the abovementioned records to the Unions at step one of the grievance procedure.
On July 10, 1973, the Board acted on the administrative law judge's recommendations and filed its decision and order in the case. The Board, with two members dissenting, disagreed with the administrative law judge concerning the applicability of the Collyer doctrine and dismissed the complaint, retaining jurisdiction "solely for the purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of the Decision here, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act" (footnote omitted). 204 N.L.R.B. at 881. The Board found that there was "positive evidence of the maturation of the collective bargaining relationship" between the parties, based upon the fact that those grievances which had been processed through arbitration had resulted in fair and equitable awards, saying:
"Having found that the parties' contractual grievance-arbitration process can, and does, function effectively and fairly and has continued to be utilized by the parties to their satisfaction, 'we believe it to be consistent with the fundamental objectives of Federal law to require the parties here to honor their contractual obligations rather than, by casting this dispute ...