Hallmor, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1998

327 N.L.R.B. 292 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
Hallmor, Inc. and Local Lodge 52, District Lodge 83,
International Association of Machinists and
Aerospace Workers, AFL–CIO. Case 6–CA–
28619
December 11, 1998
DECISION AND ORDER DENYING MOTION
TO DISMISS
BY MEMBERS LIEBMAN, HURTGEN, AND
BRAME
At issue in this case is whether the Regional Director,
after initially deferring further proceedings on the instant
unfair labor practice charge under Collyer Insulated
Wire, 192 NLRB 837 (1971), properly revoked his deci-
sion to defer and resumed processing of the charge when
the Respondent reneged on its commitment not to raise a
timeliness defense before the arbitrator.1 Contrary to our
dissenting colleague, we find that the Regional Director’s
decision to resume processing of the charge was clearly
correct under well-established deferral principles.
I. FACTUAL BACKGROUND
The relevant facts can be summarized as follows.
In September 1996, the Respondent laid-off employee
Craig Groff. In October 1996, the Union filed a griev-
ance concerning the failure to recall Groff subsequent to
his layoff. In November 1996, the Union filed the instant
8(a)(3) unfair labor practice charge concerning Groff’s
September 1996 layoff. In April 1997, an arbitration
hearing was held concerning the October 1996 grievance.
On May 1, 1997, the Regional Director advised the
Respondent that he would defer further proceedings on
the 8(a)(3) charge in accordance with Collyer, supra, if
the Respondent agreed to arbitrate the dispute regarding
Groff’s layoff notwithstanding any contractual time limi-
tations on the filing and processing of the grievance. On
May 9, 1997, the Respondent replied that it was willing
to arbitrate notwithstanding contractual time limitations.
Specifically, the Respondent executed a document re-
ferred to by the parties as a “Collyer willingness form” in
which it “expressly state[d] that it is willing to arbitrate
the dispute which is the subject of the [instant case],
notwithstanding any contractual time limitations on the
filing and processing of the grievance to arbitration.”
On May 15, 1997, the Acting Regional Director ad-
vised the parties that he was deferring further proceed-
ings on the instant charge, citing, as one of his reasons,
the willingness of the Respondent “to arbitrate the dis-
pute . . . notwithstanding any contractual time limitations
on the filing and processing of the grievance to arbitra-
tion.” The Regional Director, however, expressly stated
that it was his “intention to revoke [his] decision to defer
and to resume processing of the charge in the event” the
Respondent engaged in “conduct inconsistent with its
expression of willingness to arbitrate.”

1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
Notwithstanding its execution of the Collyer willing-
ness form, the Respondent argued, inter alia, in its May
30, 1997 posthearing brief to the arbitrator that the griev-
ance should be summarily dismissed as untimely. On
June 11, 1997, the arbitrator ruled, inter alia, that the
grievance must be denied as untimely.
On September 30, 1997, the Regional Director advised
the Respondent of his concern that the Respondent had
reneged on its promise not to raise timeliness as an issue
in the arbitration proceeding. On October 6, 1997, the
Respondent replied that “the submission of the Collyer
willingness form” was an error on its part and that it ac-
tually intended to submit “a letter acknowledging that the
Company had submitted to arbitration on the merits, but
had already argued and continued to press timeliness and
other arbitrability issues during the arbitration process.”
The Respondent added: “It was not ever our intent to
abandon issues bearing on arbitrability.”
On December 19, 1997, the Regional Director issued a
complaint alleging that Groff was laid off by the Re-
spondent in violation of Section 8(a)(3) and (1) of Act.
The Respondent filed an answer, admitting in part and
denying in part the allegations of the complaint, and as-
serting affirmative defenses.2
On January 20, 1998, the Respondent filed a motion to
dismiss the complaint and a supporting brief, and on
January 22, 1998, the General Counsel filed an opposi-
tion to the motion.
On January 27, 1998, the Board issued an order trans-
ferring proceeding to the Board and Notice to Show
Cause why the Respondent’s motion should not be
granted. On February 17, 1998, the Respondent and the
General Counsel filed briefs in response to the Notice to
Show Cause.
II. ANALYSIS
In Collyer Insulated Wire, supra, the Board enunciated
its authority to defer to the arbitration process. The
Board pointedly observed that its authority was discre-
tionary. Id. at 840. A key element of the deferral policy
is the parties’ expressed willingness to waive contractual
time limitations in order to ensure that the arbitrator ad-
dresses the merits of the dispute. See Johnson-Bateman
Co., 295 NLRB 180, 181 fn. 6 (1989), and cases cited
therein; Pilot Freight Carriers, Inc., 224 NLRB 341, 345
(1976). When the Board reaffirmed the Collyer doctrine
in United Technologies Corp., 268 NLRB 557 (1984), it
2 The General Counsel denies the Respondent’s assertion in its an-
swer that, “at all material times” both “before and after deferral,” it
advised the Region that it would not retreat from its position that the
Groff grievance was untimely, “statements in ‘forms’ or ‘form letters’
to the contrary notwithstanding.” In light of our denial of the Respon-
dent’s motion to dismiss on the ground set forth infra, we find it unnec-
essary to address this factual disagreement between the Respondent and
the General Counsel.
327 NLRB No. 61
HALLMOR, INC. 271
specifically held that the party seeking deferral “must, of
course, waive any timeliness provisions of the grievance-
arbitration clauses of the collective-bargaining agree-
ment.” Id. at 560 fn. 22.
There is no dispute that the Respondent continued to
press a timeliness issue before the arbitrator after May 9,
1997, when the Respondent executed a Collyer willing-
ness form expressly stating that it was willing to waive
any such issues. Indeed, in its October 6, 1997 letter to
the Regional Director, the Respondent frankly admitted
that it had presented a timeliness issue to the arbitrator
and unequivocally stated that, notwithstanding its sub-
mission of the Collyer willingness form, “it was not
ever” its intention to waive a timeliness defense. Yet, it
was on the basis of the Respondent’s signed statement
that it would waive timeliness claims that it obtained the
Regional Director’s deferral of the case against it, pend-
ing arbitration. Now that the arbitration thus obtained
has concluded, the Respondent seeks to secure the “fruit”
of its incorrect representation by having the Board defer
to the arbitrator’s award. In our view, where, as here, a
party has reneged on its agreement under Collyer not to
raise a timeliness issue before the arbitrator, such agree-
ment being necessary to secure deferral of the unfair la-
bor practice case to arbitration, the party forfeits any
right to obtain the Board’s deferral to the resulting arbi-
tration award. Thus, the Regional Director was amply
justified under Collyer and United Technologies in re-
voking his prior decision to defer and in resuming formal
processing of the unfair labor practice case. Accord-
ingly, the Respondent’s motion to dismiss the complaint
must be denied.
Our application of Collyer and United Technologies is
deliberate, and not, as our dissenting colleague states, a
result of confusion. Our dissenting colleague suggests
that this “confusion” could have been avoided if the Un-
ion had informed the Regional Director that the Respon-
dent continued to press its timeliness argument even after
it agreed not to. The Respondent, however, agreed to
waive timeliness issues and, in exchange, the Regional
Director agreed to defer to the arbitration process. That
agreement was between the Respondent and the Regional
Director, not the Respondent and the Charging Party.
Neither the Regional Director nor the Board has ever
suggested that policing an employer’s agreement to
waive timeliness issues is a union’s responsibility. Our
dissenting colleague has created such an obligation out of
whole cloth.
The Respondent claims in its brief that the Regional
Director’s concern with its assertion of a timeliness de-
fense is an example of “much ado about nothing,” and
our dissenting colleague apparently shares this view. We
disagree.
As stated in United Technologies, the “Board has not
deferred cases to arbitration in an indiscriminate man-
ner.” 268 NLRB at 560. Rather, the Board has required
that certain conditions be satisfied before deferral is ap-
propriate. Id. One critical requirement is that the party
seeking deferral agrees to waive any contractual time
limitations. Id. The reason for this requirement is to
ensure that the arbitration process remains focused on the
merits of the dispute and is not distracted by arguments
over the timeliness of the grievance under the collective-
bargaining agreement.3 Thus, this requirement promotes
the objective of obtaining a fair resolution of the dispute
to which the Board can ultimately defer under the stan-
dards of Spielberg Mfg. Co., 112 NLRB 1080 (1955).
Here, the Respondent plainly breached its agreement
not to raise a timeliness defense. Just as a party “is enti-
tled to insist that the Board adhere . . . to provisions of
[an] election stipulation that are designed to ensure a fair
election,” Frontier Hotel v. NLRB, 625 F.2d 293, 296
(9th Cir. 1980), so too should the Board be entitled to
insist that a party adhere to provisions of a deferral
agreement that are designed to ensure a fair adjudication
of the dispute.
ORDER
It is ordered that the Respondent’s motion to dismiss
complaint is denied and the proceeding is remanded to
the Regional Director for further appropriate action.

MEMBER HURTGEN, dissenting.
I find, for the reasons set forth below, that it is appro-
priate to defer to the arbitrator’s award in accordance
with Olin Corp.1 and Spielberg Mfg. Co.2 Contrary to
my colleagues, therefore, I would grant the Respondent’s
motion for summary judgment and dismiss the com-
plaint.
My colleagues find that deferral is not warranted be-
cause the Respondent did not effectively waive argu-
ments concerning the timeliness of the grievance. How-
ever, they have confused prearbitral deferral under Col-
lyer with postarbitral deferral under Spielberg and Olin.
Under Collyer, the Board holds the unfair labor practice
charge in abeyance pending the parties’ resort to their
grievance-arbitration machinery. In order to obtain such
deferral, the respondent must agree to waive arguments
as to the timeliness of the grievance. By contrast, under
Spielberg and Olin, the arbitration has been held, and the
issue is simply whether the Board should defer to (i.e.,
honor) the arbitral result.
In the instant case, the Board’s Regional Office con-
cluded that there was a basis for Collyer deferral. This
was based on an agreement that the Respondent would

3 In this case, while the arbitrator ultimately did rule on the merits of
the grievance, he had already found that the grievance was untimely.
Thus, his ruling on the merits was, in fact, only an alternative—and
unnecessary—grounds for disposition of the grievance. As such, we
can not be totally assured that the arbitrator gave full and fair consid-
eration of the merits. This is precisely what the Collyer requirement
was intended to avoid.
1 268 NLRB 573 (1984).
2 112 NLRB 1080 (1955).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
waive arguments as to the timeliness of the grievance.
Prior to reaching that agreement, the Respondent had
already presented its “timeliness” argument to the
arbitrator. The Respondent avers that it told the Regional
Office that it would not withdraw its “timeliness” conten-
tion. My colleagues do not find to the contrary. Further,
even assuming that the Respondent did not so inform the
Regional Office, and assuming that Respondent agreed to
withdraw its “timeliness” contention, that would not re-
quire a different result herein. In such circumstances, the
Respondent's breach of the agreement could lead to a
revocation of the Collyer deferral, if the Union had
brought that to the attention of the Regional Office.
However, the Union did not do so, and the Collyer defer-
ral continued.
The arbitrator ultimately ruled that the grievance was
untimely. However, and most significantly, the arbitrator
went on to assess and decide the merits. He decided in
favor of the Employer-Respondent.
As noted above, the issue is whether there should be
deferral under Spielberg and Olin. In my view, the fact
that the unfair labor practice case may have been im-
properly held in abeyance under Collyer is not disposi-
tive of the issue of whether the arbitral award should be
deferred to under Olin and Spielberg. That latter issue is
to be decided solely under the Olin and Spielberg stan-
dards set forth below.3
In Olin, the Board set forth the standards under which
it would defer to an arbitrator’s award consistent with the
standards set forth in Spielberg. The Board held that it
would defer where the proceedings are fair and regular,
all parties have agreed to be bound, the decision of the
arbitrator is not clearly repugnant to the Act, and the ar-
bitrator has adequately considered the unfair labor prac-
tice issue. The Board placed the burden on the party
contesting deferral to show that these standards have not
been met.
I find that the first deferral criterion is satisfied in this
case because the General Counsel has failed to show that
the arbitration proceedings were not fair and regular.
The General Counsel appears to argue that the arbitral
process or award is flawed because the arbitrator found
that the grievance was untimely but then proceeded to
decide the unfair labor practice issue anyway. I disagree.
It is clear from the arbitrator’s opinion and award that he
considered and addressed all of the issues bearing on the
unfair labor practice allegation. The arbitrator simply
chose to have two independent grounds for dismissal. It
is not improper for an arbitrator, or any other tribunal, to
do this. Indeed, it is commonly done. Furthermore, it is
clear that the arbitrator's conclusion that Groff was not

3 My colleagues say that a breach of a Collyer agreement leads to a
forfeiture of the Olin-Spielberg right to rely upon the arbitral award,
even if the award itself is wholly valid. They cite no case in support of
this proposition. In my view, the arbitral award is valid so long as it
meets Olin-Spielberg standards.
terminated for union activity would be the same even if
he had found the grievance to be timely. Accordingly, I
find that the fairness and regularity of the proceedings,
and the reliability of the arbitrator’s findings on the un-
fair labor practice issue, were not affected by the arbitra-
tor’s conclusion that the grievance was untimely.
With respect to the second criterion, I find that all par-
ties have agreed to be bound. Indeed, the General Coun-
sel does not argue or show the contrary. Nor is there any
indication that the Union has sought to set aside the
award on this or any other ground.
I also find that the General Counsel has failed to estab-
lish that the award is repugnant to the purposes and poli-
cies of the Act. The arbitrator concluded that Groff was
not terminated for union activity. This was based on the
testimony of Groff’s supervisor that Groff inquired about
joining the Union after he was told that he was termi-
nated. The arbitrator credited the supervisor’s testimony
over Groff’s testimony that his termination followed his
inquiry about union membership. In resolving this con-
flict in testimony, the arbitrator drew an adverse infer-
ence against Groff based on the Union’s failure to pre-
sent the chief steward to corroborate Groff’s claim about
the timing of his inquiry. The arbitrator’s credibility
determinations are not inconsistent with those regularly
made by administrative law judges and relied on by the
Board. Thus, there is no indication that the arbitrator’s
credibility determinations, or the conclusion he drew
therefrom that Groff was not terminated for engaging in
protected activity, are clearly wrong or repugnant to the
Act.
With regard to the final deferral criterion, the Board
stated in Olin that it would find that an arbitrator has
adequately considered the unfair labor practice issue if
the contractual issue is factually parallel to the unfair
labor practice issue and the arbitrator was presented gen-
erally with the facts relevant to resolving the unfair labor
practice issue. The General Counsel has not established
that the contractual and unfair labor practice issues are
not factually parallel or that the arbitrator was lacking
any evidence relevant to the determination of the unfair
labor practice issue. The grievance, which framed the
issue on which the arbitration was based, alleged that the
Company violated the contract by not recalling Groff
prior to hiring a new employee. Before the arbitrator, the
Union specifically argued that “Mr. Groff was not re-
called because he had asked on September 3, 1996 to
join the Union through the steward.” The Respondent
argued, among other things, that its termination and fail-
ure to recall Groff was not motivated by his union activi-
ties. Moreover, as stated previously, both Groff and his
supervisor testified regarding the circumstances and tim-
ing of Groff’s inquiry about union membership and his
termination. Further, the factual summary set forth in the
arbitrator’s decision demonstrates that the arbitrator was
cognizant of the theory of the unfair labor practice
allegation that Groff was discharged and not recalled
HALLMOR, INC. 273
gation that Groff was discharged and not recalled be-
cause he inquired about union membership. Finally, the
arbitrator determined that Groff was not discharged for
inquiring about union membership. Therefore, given the
manner in which the issues were presented to and re-
solved by the arbitrator, it is clear that the contractual and
unfair labor practice issues were factually parallel and
that the arbitrator was presented generally with the facts
relevant to determining whether the Respondent’s con-
duct constituted an unfair labor practice.
My colleagues argue that, because this case was erro-
neously deferred under Collyer, the arbitration award
should not be given deference under Spielberg. This
contention is a nonsequitur. The Collyer doctrine oper-
ates to hold a charge in abeyance, pending resort to arbi-
tration. The Spielberg doctrine operates to accept an
arbitral award that has issued. Thus, the mere fact that a
charge should not have been held in abeyance under Col-
lyer does not compel the conclusion that the arbitral
award should be rejected after it issues. If that award
meets Olin-Spielberg criteria, it should be accepted.
Such acceptance is consistent with the hallowed place
that arbitration holds in labor-management relations. It
is also consistent with a policy of saving scarce public
resources where, as here, the parties have successfully
resorted to another forum to resolve their dispute.
My colleagues also argue that a breach of a Collyer
agreement is analogous to the breach of an election
agreement. Assuming arguendo a parallel between the
two, this would not aid the majority. As discussed supra,
the breach of a Collyer agreement can lead to the setting
aside of the Collyer deferral.4 But, as discussed, it does
not mean that the subsequent arbitral award is unworthy
of acceptance.
In sum, I find that the arbitrator’s award is worthy of
deferral under the criteria set forth in Olin and Spielberg
for postarbitral deferral. Contrary to my colleagues,
therefore, I would grant the Respondent’s Motion for
Summary Judgment and dismiss the complaint.

4 Thus, I do not agree that a breach of a Collyer agreement is “much
ado about nothing.” It can result in the setting aside of the Collyer
deferral.