Bowne of San Francisco

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1185 (N.L.R.B. 1998)

BOWNE OF SAN FRANCISCO 1185
Bowne of San Francisco and Mildred M. Carlton.
Case 20–CA–18335
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On June 5, 1998, Administrative Law Judge Jay R.
Pollack issued the attached supplemental decision. The
Charging Party filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Charg-
ing Party, thereafter, filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Joseph P. Norelli, Esq., for the General Counsel.
Morton H. Orenstein and Robert P. Kristoff, Esqs. (Schacter,
Kristoff, Orenstein & Berkowitz), of San Francisco, Cali-
fornia, for the Respondent.
Mildred M. Carlton, of Richmond, California, pro se.
William A. Sokol, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law. On March 21, 1984,
during the unfair labor practice hearing in the above case, I
granted the motion of Bowne of San Francisco (Respondent) to
defer the case to the grievance and arbitration procedure of the
collective-bargaining agreement between Respondent and
Graphic Arts International Union, Local 3-B (the Union). In
dismissing the complaint, I retained jurisdiction for the limited
purpose of “entertaining an appropriate and timely motion for
further consideration upon a proper showing that either (a) the
dispute [was] not with reasonable promptness after the issuance
of this order either been resolved by amicable settlement and
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.”
The case involving the discharge of Mildred M. Carlton
(Carlton) was heard by Arbitrator Gerald McKay beginning in
1984 and ending in 1985. The arbitrator issued an award in
October 1985, finding that Respondent did not have just cause
for discharging Carlton. The arbitrator ordered that Carlton be
reinstated with full seniority. However, the arbitrator did not
order backpay but rather granted the parties time to negotiate an
alternative remedy. The parties were unable to agree to an
alternative remedy and, on March 24, 1986, the arbitrator or-
dered reinstatement but not backpay for Carlton.

1 In the circumstances of this case, we need not decide whether the
6-month limitation period in Sec. 10(b) should apply to a request for
review of an arbitration award after the conditional dismissal of unfair
labor practice charges under deferral procedures set forth in Collyer
Insulated Wire, 192 NLRB 837 (1971); and United Technologies Corp.,
268 NLRB 557 (1984). We agree, however, with the judge’ recom-
mendation to dismiss the complaint. By any reasonable standard, the
Charging Party’s request for review, filed 6 years after receiving notice
of the right to make such request, was not “timely” within the meaning
of the judge’s original Order.
In June 1986, Carlton requested that the Regional Director
seek to reopen the case based on the argument that the arbitra-
tor’s award was repugnant to the Act. On November 25, 1991,
the Regional Director for Region 20, issued a dismissal letter
refusing to proceed further on the ground that the arbitrator’s
award was not repugnant to the Act. The Regional Director
advised Carlton of her right to appeal his decision to the Gen-
eral Counsel. On January 13, 1992, the General Counsel’s
Office of Appeals advised Carlton that she could seek review of
the arbitration award by submitting her objections to the arbitral
award directly to the administrative law judge. On January 23,
the Regional Director rescinded his dismissal letter of Novem-
ber 25, 1991, and notified Carlton that she could seek review of
the arbitrator’s decision directly to the administrative law
judge. My name and address were included in the Regional
Director’s rescission of his dismissal letter.
On April 6, 1998, Carlton filed a letter with me seeking to
reopen the case based on the argument that the arbitrator’s de-
cision was repugnant to the Act. On April 9, I issued an order
to show cause directing the parties to file position of statements
as to whether further proceedings are warranted.
The General Counsel takes the position that further proceed-
ings are not warranted because a timely request for review of
the arbitrator’s decision under Speilberg Mfg. Co., 112 NLRB
1080 (1955), was not filed. Respondent takes the position that
the arbitrator’s decision was not repugnant to the Act and, fur-
ther, that Carlton’s recent request for review of the arbitrator’s
decision is untimely. The Union also takes the position that the
arbitrator’s decision is final and binding. In addition to her
argument that the arbitrator’s award is repugnant to the Act,
Carlton claims that there is no statute of limitations regarding a
Speilberg review.
Conclusions
Without reaching the merits of the arbitration award, I be-
lieve, for the following reasons, that the request for review is
not timely. In retaining limited jurisdiction, I used language
from the Board decision in United Technologies Corp., 286
NLRB 693 (1984), for entertaining a timely motion (emphasis
added) for reviewing whether the arbitration procedures were
fair and regular or reached a result which is repugnant to the
Act. As set forth above, the instant motion was filed more than
6 years after Carlton was informed by the Office of Appeals
and the Regional Director that she could request review of the
arbitrator’s decision from the administrative law judge. Carlton
states that she has “intermittently to the present been treated for
severe depression.” However, no other basis for the failure to
file a timely motion or request for review has been shown.
I have found no cases where the issue of the timeliness of a
Spielberg review of an arbitrator’s decision has been raised.
On its face, a 6-year delay seems unreasonable. In DelCostello
v. Teamsters, 462 U.S. 151 (1983), the United States Supreme
Court held that Section 10(b)’s 6-month statute of limitations
for filing unfair labor practices governs employee “hybrid
cases” under Section 301 of the Act against both employers and
unions alleging employer’s violation of collective-bargaining
agreement and union’s breach of duty of fair representation. In
326 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
United Parcel Service v. Mitchell, 451 U.S. 56 (1981), the
Supreme Court had previously held that a state statute of limita-
tions governed a suit for vacation of an arbitration award.
However, in DelCostello, the Court held the shorter time limita-
tion lacked legal substance and practical application regarding a
suit alleging a union’s duty of fair representation. The Court
held that Section 10(b)’s 6-month period for filing unfair labor
practice charges was designed to accommodate interests very
similar to that at stake in the DelCostello actions.
Congress added Section 10(b) to the Act in 1947 for a two-
fold purpose–“to bar litigation over past events after records
have been destroyed, witnesses have gone elsewhere and recol-
lections of the events in question have become dim and con-
fused. H.R. Rep. No. 245, 80th Cong., 1st Sess. at 40, and of
course to stabilize existing collective bargaining relationships.”
Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411,
419 (1960). Just as the first reason enhances the integrity of the
fact-finding process, the second ground serves the equally im-
portant purpose of establishing a sense of repose over disputes
among employees, employers, and unions. Because, in the
main, employment as well as bargaining relationships tend to
be ongoing, Section 10(b) reflects a policy judgment that it is
better for industrial peace in general to bring the disputes to a
head in fairly short order rather than to have an extended period
in which to vindicate a statutory right. United Parcel Service v.
Mitchell, supra at 70–71 fn.
In this case, it is appropriate to apply the 6-month statute of
limitations to Carlton’s attempt to set aside the arbitrator’s de-
cision and proceed with the unfair labor practice case. The
arbitrator’s decision issued in 1986. The evidence reveals that
Carlton had clear and unmistakable notice in January 1992
from the Office of Appeals and the Regional Director that she
could seek review of the arbitrator’s decision. The Union’s and
Respondent’s attorneys were sent copies of these January 1992
letters to Carlton. However, more than 6 years passed before
Carlton sought review of the arbitrator’s decision. No evidence
was presented to show that the statute of limitations should be
tolled for any part of those 6 years. Therefore, I find the pre-
sent motion to be untimely. Accordingly, I conclude that the
complaint should be dismissed and the case closed.
On these findings of fact and conclusions of law and on the
entire record and I issue the following recommended2
ORDER
The complaint is dismissed.

2 All motions inconsistent with this recommended order are hereby
denied. In the event no exceptions are filed as provided by Sec. 102.46
of the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.