Labor Law: Collective Bargaining Research Paper

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" (2004)

Rainsberger (2004) states that the origin of the deferral doctrines of the N.L.R.B. is a 1955 case "in which an issue involved both an alleged contract violation and an unfair labor practice. The Board established a set of criteria, which it has since used, with some modifications, to determine whether it should accept and recognized the award of an arbitrator as determinative of the unfair labor practice issue. The Spielberg criteria are: (a) The proceedings in arbitration must appear to be fair and regular, (b) The parties must agree to be bound by the decision of the arbitrator, (c) The decision of the arbitrator must not be "clearly repugnant" to the purposes and policies of the Act, and (d) The arbitrator must consider and decide the unfair labor practice issue." (Rainsberger, 2004)

Rainsberger (2004) reports that in a case that was related the decision of the Board was that "if a grievance and an unfair labor practice charge have both been filed, but the grievance has not yet been arbitrated, the Board should withhold action on the unfair labor practice until the grievance procedure is exhausted." According to Rainsberger (2004) the primary controversy in regards to the deferral doctrines are centered on "the Collyer doctrine under which the Board defers to the existence of a grievance procedure." (2004) Stated specifically is that under Collyer deferral "a union is expected to use its grievance procedure to resolve the unfair labor practice issues. The Board defers to the existence of a grievance procedure rather than to the results achieved in the voluntary mechanisms." (Rainsberger, 2004)

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Rainsberger reports that the fourth criteria was "not originally mentioned in Spielberg but was articulated in later cases including those as follows:

(1) Raytheon Co., 140 NLRB 883, 52 LRRM 1129 (1963);

(2) Dubo Manufacturing Co., 142 NLRB 812, 53 LRRM 1070 (1963); and (3) Collyer Insulated Wire, 192 NLRB 837, 77 LRRM 1931 (1967).

Research Paper on Labor Law: Collective Bargaining it Assignment

There has been much criticism of the Collyer doctrine with claims that this doctrine is an abandonment of the Board's administrative obligation to enforce the law. Rainsberger states that the Dubo and Spielberg doctrines "allow deferral" however a union if seeking to "pursue its potential of remedies through the Board is not prevented from doing so. Under Collyer, the union is forced to use the contractual remedy." (2004)

Rainsberger (2004) reports that in recent developments surrounding the deferral doctrine, "the categories of case that are subject to the Collyer doctrine have been expanded. In a 1984 case, the Board took the position that virtually all potential Section 8(a)(1),(3) and (5) cases which are subject to a grievance procedure are to be deferred, unless the interests of the member and the union are clearly divergent or unless the unfair labor practice goes to the heart of the collective bargaining relationship." (Rainsberger, 2004) Additionally reported by Rainsberger is the fact that the Board, during the middle part of the 1980s "revised the interpretation of the Spielberg criteria in two significant cases" including the following:

(1) First the board revised the fourth Spielberg criteria for deferral to an arbitrator's award and specifically stated is that in Olin "the Board ruled that the criterion would be met if the grievance was based on facts which were substantially similar to those underlying the unfair labor practice, whether the arbitrator specifically addressed the unfair labor practice issue or not; and (2) In its 1985 Alpha Beta case, the Board also weakened the third Spielberg criteria, indicating that the arbitrator's award will be accepted as long as it is not "palpably wrong," giving credence to awards which go much farther than the previous standard." (Rainsberger, 2004)

IV. Suits to Enforce Collective Agreements

According to the work of Goldman and Corrada (2011) the United States labor law system is unlike other labor law systems in that in the United States the employee's personal job interests who is represented by a union "normally are protected through the enforcement of the collective agreement rather than by enforcing the contract of employment." The suit can be brought in a state or federal court to enforce a collective agreement and is reported to not be "preempted by the N.L.R.A. even though in certain circumstances a refusal to adhere to a collective agreement constitutes an unfair labor practice." (Goldman and Corrada, ) In addition, if the collective agreement is such that "involves a labor-management relations situation that affects interstate commerce to an adequate degree to bring it within the potential jurisdiction of the Labor Management Relations Act" then federal substantive law governs litigation in the state court in relation to the collective agreement rather than it being governed by local law. (Goldman and Corrada, 2011)

Summary and Conclusion

Both the employer and the union are bound by provisions set out in the N.L.R.A. And are subject to lawsuits filed in state or federal courts, which are both governed by federal laws, for violation of the principles and rules set out in 29 U.S.C. § 158: U.S. Code -- Section 158: Unfair Labor Practices.


29 U.S.C. § 158: U.S. Code - Section 158: Unfair labor practices (2012) Find Law. Retrieved from:

Goldman, Alvin L. And Corrada, Roberto L. (2011) Labour Law in the U.S.A. Kluwer Law International, 4 Feb 2011.

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Labor Law: Collective Bargaining.  (2012, June 28).  Retrieved March 7, 2021, from

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"Labor Law: Collective Bargaining."  June 28, 2012.  Accessed March 7, 2021.