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:

We would find that an arbitrator has adequately considered the unfair labor practice 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.

... 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.

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.

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).

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 1447-48. 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

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.

(1) an arbitrator, schooled primarily in the law of the shop, may lack the expertise to 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.,"

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

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.

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.

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.

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.

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.