Full opinion text
OPINION OF THE COURT ROSENN, Circuit Judge. Statutory policy of the Labor Management Relations Act (the Act), 29 U.S.C. § 173(d) (1976), encourages the use of the grievance and arbitral machinery for the settlement of disputes agreed upon by the parties to a collective bargaining agreement. The dominant issue raised by this petition of the National Labor Relations Board (the Board) for enforcement of its order is whether the Board committed error in declining to defer to an arbitration award which determined that the employer had discharged an employee for just cause. We conclude that the Board abused its discretion in refusing to defer to the arbitration award and therefore deny enforcement of the Board’s order. I. Pincus Brothers, Inc.-Maxwell (Pincus Brothers or the Company) is a Philadelphia manufacturer and wholesale distributor of men’s clothing. Its employees are represented by the Philadelphia Joint Board, Amalgamated Clothing Workers of America (the Union). Jane Richardson was employed in the sleeve department of the plant from December 5, 1975, until her discharge on February 18, 1977. On several occasions during her employment Richardson left her work station to converse with other employees and was directed by her supervisor not to waste time. In October 1976, when there was insufficient work to keep all the sleeve department employees working a 40-hour week, several employees and the union business agent asked Company President, Irwin N. Pincus, to lay off Richardson, the least senior member of the department. At the time, Pincus refused. On February 15, 1977, the Company and the Union held their semi-annual plant meeting with employees and union representatives during which employee complaints and suggestions were discussed. Pincus spoke about general company developments, including certain style changes. Several sleeve setters questioned Pincus as to whether the piece rate would be changed as a result of the style changes. Pincus responded that more flexibility would be required. Following the meeting Richardson prepared a one-page leaflet entitled ”WE WON’T SACRIFICE FOR PINCUS’ PROFITS.” The leaflet called the plant meeting a “circus” and characterized Pincus’ call for flexibility as effectuating “pay cuts” to “our already stinking pay checks.” The leaflet further stated that “[t]he way we have to work ain’t no different from any other stinking garment shop in this city” and referred to the “lousy style of clothes” Pincus was making. On February 18, 1977, Richardson brought copies of the leaflet to the plant and prior to the 8 A.M. starting time placed some in the women’s restroom. She also gave a stack of the leaflets to another employee, Joe Ferraro, and asked him to place them in the men’s restroom. After reading one leaflet, Ferraro tore up the stack he had been given. Richardson also handed out leaflets elsewhere in the plant until approximately 8:05 A.M. About 8:15 A.M. Pincus was informed of the leafletting by Plant Manager, Peter Matazzo. According to Matazzo, production was disrupted on the work floor because of employees’ reading the leaflet. At approximately 1:40 P.M. that day, Pincus instructed Matazzo to discharge Richardson. Matazzo called Richardson and the union shop chairman into his office. After an initial denial, Richardson admitted distributing the leaflet. Matazzo discharged her without further questions or discussion. Soon after the discharge the Union filed a grievance on behalf of Richardson which, under the collective bargaining agreement, terminated in arbitration. On April 12, 1977, the arbitrator rendered his decision, concluding that the discharge was for cause because Richardson had (1) abused working time, and (2) written a handbill which she distributed during both working and nonworking time which “intentionally misrepresented or distorted facts related to certain employment practices and to certain business policies and product status of the Company in a denigrating, disparaging fashion so as to constitute detrimental unprotected disloyalty.” While the grievance was pending, Richardson filed a charge on February 24, 1977, with the Board alleging that Pincus Brothers violated section 8(a)(1) of the Act by discharging her because she engaged in concerted activities. The General Counsel issued a complaint and agreed with the Company to waive a decision by an Administrative Law Judge (AU) and submit to the Board the question of whether the Board should defer to the arbitrator’s award. The Board delegated its authority to a three-member panel pursuant to section 3(b) of the Act. The panel relied on the facts as found by the arbitrator and concluded it would not defer because Richardson engaged in protected activity and her discharge violated section 8(a)(1), 237 N.L.R.B. No. 159. The Board thereupon remanded the case to an AU for a hearing. He found that Pincus committed an unfair labor practice in discharging Richardson and ordered the Company to reinstate her. In a Supplemental Decision and Order of April 9, 1979, the Board adopted the ALJ’s findings and conclusions. The Board then commenced this action for enforcement of its order. The Board recognized that the applicable standard for its deference to arbitral awards was the standard enunciated in Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955). In Spielberg, the Board stated that it would defer to the arbitrator’s award where (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision is not “clearly repugnant” to the purposes and policies of the Act. In this case, the parties agree that the proceedings were fair and regular and that the parties agreed to be bound by arbitration. The Board concluded that the findings of the arbitrator were “clearly repugnant” to the Act and declined to defer. Thus, the determinative issue in this enforcement petition is whether the Board erred in concluding that the arbitration award was “clearly repugnant” to the Act. II. The first issue we must resolve is this court’s standard of review of the Board’s refusal to defer to the arbitration award. The company urges that we review the Board’s refusal to defer as a matter of law while the Board claims the substantial evidence rule is applicable. It is our duty to insure that the Board adheres to its established criteria unless it clearly decides to modify or alter those standards. We, therefore, adhere to the prevailing view that the decision of the Board in refusing to defer will be overturned only if the Board has abused its discretion. Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir.), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1976); NLRB v. Horn & Hardart Co., 439 F.2d 674, 679 (2d Cir. 1971). We turn now to the merits of the Board’s order. The Spielberg doctrine evolved as a means of accommodating the national policy in favor of the private resolution of labor disputes through consensual arbitration. That policy finds expression in Section 203(d) of the Act, 29 U.S.C. § 173(d) (1976), which declares: “Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” As more fully explained in International Harvester Co., 138 N.L.R.B. 923 (1962), the source of the Board’s deferral policy is rooted in both congressional and Supreme Court pronouncements. The Act, as has repeatedly been stated, is primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. Experience has demonstrated that collective-bargaining agreements that provide for final and binding arbitration of grievance and disputes arising thereunder, “as a substitute for industrial strife,” contribute significantly to the attainment of this statutory objective. . . Recognizing arbitration as an instrument of national labor policy for composing contractual differences, which it found imbedded in the [Act] and other Federal legislation and sources, the Supreme Court of the United States has given this policy meaningful substance. So important a role did the Court regard arbitration as playing in the national labor scheme as “a stabilizing influence” that the Court in later cases cautioned the lower courts in Section 301 suits to refrain from passing on the merits of the grievances under the guise of determining the question of arbitrability, but to construe contractual arbitration provisions expansively if “congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration” is to. be realized. If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the 'many facets of national labor policy, should give hospitable acceptance to the arbitral process as “part and parcel of the collective bargaining process itself,” and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act. Id. at 926-27 (footnotes omitted). In Collyer Insulated Wire, 192 N.L.R.B. 837, 842 (1971), the Board applied Spielberg to require deferral when “[t]he contract and its meaning ... lie at the center of [the] dispute.” The Board explained its rationale as follows: We are not compelling any party to agree to arbitrate disputes arising during a contract term, but are merely giving full effect to their own voluntary agreements to submit all such disputes to arbitration, rather than permitting such agreements to be side-stepped and permitting the substitution of our processes, a forum not contemplated by their own agreement. Nor are we “stripping” any party of “statutory rights.” The courts have long recognized that an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contractually committed themselves to mutually agreeable procedures for resolving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to function. Id. at 842-43. This court has dealt with the similar issue of judicial deference to arbitration awards in the context of suits under Section 301. In Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969), this court recognized “the strong public policy of encouraging the peaceful settlement of industrial disputes by means of the device of arbitration.” Accordingly, we stated: At the very least this means that the interpretation of labor arbitrators must not be disturbed so long as they are not in “manifest disregard” of the law, and that “whether the arbitrators misconstrued a contract” does not open the award to judicial review. Id. at 1128 (footnotes omitted). See also Acme Markets, Inc. v. Local 6, Bakery & Confectionery Workers International Union, 613 F.2d 485 (3d Cir. 1980). As a result of both judicial and Board deference to arbitration awards, an arbitral result could be . sustained which is only arguably correct and which would be decided differently in a trial de novo. The national policy in favor of labor arbitration recognizes that the societal rewards of arbitration outweigh a need for uniformity of result or a correct resolution of the dispute in every case. The parties are not injured by deference to arbitration because it is the parties themselves who have selected and agreed to be bound by the arbitration process. To the extent that the parties surrender their right to a subsequent full hearing before the Board or a court, it is a voluntary waiver, consistent with the national policy. Based on the Board’s Spielberg doctrine, congressional action, and judicial decisions of the Supreme Court as well as this circuit, we conclude that it is an abuse of discretion for the Board to refuse to defer to an arbitration award where the findings of the arbitrator may arguably be characterized as not inconsistent with Board policy. In other words, “[i]f the reasoning behind an award is susceptible of two interpretations, one permissible and one impermissible, it is simply not true that the award was ‘clearly repugnant’ to the Act.” Douglas Aircraft Co. v. NLRB, 609 F.2d 352, 354 (9th Cir. 1979). Deference by the Board to the arbitration process, especially when the award has already been rendered and it is arguably consistent with Board policy, will effectuate the intent of the parties in the collective bargaining agreement and avoid the time, expense, and inconvenience of duplicative proceedings. The parties accepted the risk that arbitration results could differ from Board decisions when they elected to proceed by arbitration and the Board recognized such possibilities when it adopted the policy to defer to an arbitrator’s award. However, when the arbitration award cannot be arguably reconciled with the policies of the Act, the Board will vindicate the federal interest by declining to defer. III. In this case the arbitrator found that Richardson was terminated for “cause” because she abused working time and wrote and distributed the leaflet. The Board concluded that Richardson’s leafletting activity was protected by section 7 of the Act and declined to defer. We hold that the Board abused its discretion in refusing to defer to the arbitration award because Richardson’s leafletting was arguably unprotected activity and therefore not “clearly repugnant” to the Act. The Board relied exclusively on the facts as found by the arbitrator in concluding that Richardson was engaged in protected activity. It reexamined the language of the leaflet which the arbitrator characterized as “detrimental unprotected disloyalty” and concluded that “[t]he expression by employees of their opinions as to working conditions, whether done in colorful speech, as here, or in more formal terms, is a fundamental right under Section 7 of the Act.” 237 N.L.R.B. No. 159 at 8. We believe there are several reasons why Richardson’s activities were arguably unprotected. First, an employee loses the protection of the Act where his or her statements are “deliberately or maliciously false.” Texaco, Inc. v. NLRB, 462 F.2d 812 (3d Cir.), cert. denied 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 302 (1972). Richardson’s leaflet called the semi-annual plant meeting a “circus” and said Pincus was instituting “pay cuts” to “our already stinking pay checks.” She further stated that the Company’s working conditions “ain’t no different from any other stinking garment shop in this city” and that the Company was making a “lousy style of clothes.” The arbitrator found that the plant meeting was a periodic semi-annual plant meeting, cosponsored by the Union and the Company for perfectly legitimate and constructive reasons; that the Company was not instituting any pay cuts; that its average wages exceeded the industry’s general average in the market area; that the working conditions at Pincus Brothers were among the best in the area; and that the Company’s garments were among the finest in the industry. From the arbitrator’s findings it appears at least arguable that Richardson’s leaflet can be labeled as “defamatory or insulting material known to be false,” Linn v. Plant Guard Workers, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966), and thus can be characterized as unprotected under the Act. Second, it is arguable that Richardson’s actions constituted unprotected disloyalty. In NLRB v. Local Union No. 1229, IBEW (Jefferson Standard), 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953), the Court upheld the Board’s refusal to order the reinstatement of workers who, during a lawful strike, issued a leaflet disparaging their employer. The Court stated: Section 10(c) of the Taft-Hartley Act [29 U.S.C. § 160(c) (1976)] expressly provides that “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” There is no more elemental cause for discharge of an employee than disloyalty to his employer. Id. at 472, 74 S.Ct. at 176 (footnote omitted; emphasis supplied). The Court noted that in protecting workers under section 7 of the Act, Congress “did not weaken the underlying contractual bonds and loyalties of employer and employee.” Id. at 473, 74 S.Ct. at 177. In Local Union No. 1229, supra, the leaflet held to be objectionable was distributed during the heat of a lawful strike. Here, there was neither a strike nor any disagreement between the Company and the Union bargaining agent and thus even less justification for the arguably objectionable leaflets. In this case the arbitrator found “a profile by [Richardson] of detrimental disloyalty tarnishing the image and impeding the legitimate business goals of the Company insofar as its other employees and its business competitors are concerned.” He further found that Richardson “engaged in her course of action primarily to create or incite a maximum measure of disgruntlement and friction relating to the then functioning and long standing give and take of the ongoing collective bargaining relationship and process.” Given the plain language of the leaflet and the arbitrator’s view of the effect of that language we believe Richardson’s conduct could arguably be characterized as unprotected disloyalty. Third, it is arguable that Richardson’s activity was unprotected because it was inconsistent with the fundamental policy of the Act, to encourage collective bargaining and the industrial stability flowing therefrom. In Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975), the Court affirmed the Board’s conclusion that minority employees had no right to bargain with the employer separate from the Union’s bargaining right because to hold otherwise would undermine the statutory purpose of collective bargaining. In this case the arbitrator concluded that Richardson’s activities were intended to interfere with the Company’s long-established collective bargaining relationship with the Union. Given that Richardson was represented by the Union and the Union had a long and fruitful collective bargaining relationship with the Company, we conclude it is at least arguable to characterize Richardson’s activity as unprotected interference with the collective bargaining process. Finally, it is arguable that Richardson was not engaged in concerted, protected activity under our decision in NLRB v. Northern Metal, 440 F.2d 881 (3d Cir. 1971). In Northern Metal an employee was discharged because of his continued assertion that he was entitled to holiday pay for Labor Day. We refused to enforce the Board’s finding- of concerted action, holding that a single employee acting alone is not engaged in “concerted action” within the meaning of the NLRA. In Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3d Cir. 1969), cert. denied 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1970), we held that management must know or have reason to know that the disputed action is “concerted” before it can violate section 8(a)(1). See also Tri-State Truck Service, Inc. v. NLRB, 615 F.2d 65 (3d Cir. 1980). The arbitrator concluded in the instant case that Richardson’s actions were motivated by personal pique. There is no evidence that any other employee was in any way involved with the leafletting. In fact, when Richardson attempted to gain the aid of another employee, Joe Ferraro, he tore up the leaflets after reading one. Under these facts it is at least arguable that Richardson was not engaged in concerted activity. In holding that Richardson’s conduct was arguably unprotected we express no opinion on how this court or the Board would decide the merits of the unfair labor practice charge in a trial de novo. We hold only that where there are two arguable interpretations of an arbitration award, one permissible and one impermissible, the Board must defer to the decision rendered by the arbitrator. IV. We conclude that the Board abused its . discretion in not deferring to the arbitration award. Accordingly, the Board’s petition for enforcement will be denied. Costs taxed against the petitioner. . The Company’s sleeve setters were paid on a piece rate, averaging 25 coats an hour with a resultant hourly wage of $5.50. The arbitrator found this wage to be above average in the industry. . The leaflet stated: WE WON’T SACRIFICE FOR PINCUS’ PROFITS! Last Tuesday, we were called to a “family gathering” by the Big Four for some special announcements. Serving as Master of Ceremonies for this circus was John DeMee, our Business Agent. He quickly gave the spotlight to Pincus, who sang “Happy Days Are Here Again” (for him), telling us that profits are soaring, the business is expanding, things are better than ever. He told us again that we’re a great bunch, we do good work, and thanks for making us GREAT, patting us on the back before he laid down the law. What was the special occasion that called for those speeches anyway? Valentine’s Day? No way! Lately a lot of us on different operations have seen that we need a better price, like on double-breasted coats or plaids that have to be matched or saddle-stiching for trim or bulkier shoulder pads. So we went to the office to fight for that new price. And we weren’t going to wait for the contract in June. We need the better rates now. So Pincus tells us that we gotta keep up with the styles, we have to offer “our customers” variety and that we gotta be FLEXIBLE on the different styles. He says there’s gotta be a real need if we’re going to get the prices raised. Well, as far as he’s concerned, what we NEED is only what it takes to get us to work the next day. And being FLEXIBLE means more bucks for him and another slice off our already stinking paychecks. Before you know it, he’ll have us making overcoats in the vest dept. Oust a style change, you know) . ! Well, forget it! When we get a cut, we can’t tell the cashier at the ACME or the landlord or the insurance company that we got a pay cut, ’cause the bills are still the same. Pincus tells us this is the best shop in the city. What a smoke job! The way we have to work ain’t no different from any other stinking garment shop in this city. It’s an insult that he thought we’d fall for that bit about the family. Forget it. Nat, we aren’t the dumb animals you think we are. ’Cause you’re the boss and we’re the ones that make you rich. And, when we need more money, we’re gonna fight for it, whatever lousy style of clothes we’re making. THE GARMENT WORKER Join the Garment Worker — Build a fighting organization of garment workers, contact us at: 783 — 4242 Labor donated . The arbitrator was the late I. Herman Stern, a Professor of Labor Law at Temple University. . Section 8(a)(1), 29 U.S.C. § 158(a)(1) (1976) provides: (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title [Section 7 of the Act; . 29 U.S.C. § 153(b) (1976). . Section 10(e) of the Act, 29 U.S.C. § 160(e) (1976), grants the NLRB the authority to petition the Court of Appeals for the circuit within which the unfair labor practice occurred for enforcement of its order. . In Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964), the Board added a requirement to Spielberg that the arbitrator must have considered the unfair labor practice issue and ruled on it. It is clear from the arbitration decision in this case that the arbitrator complied with this requirement and neither party argues otherwise. See generally Banyard v. NLRB, 164 U.S.App.D.C. 235, 505 F.2d 342, 347 (D.C.Cir. 1974), where another circuit has added the requirements that the issue must have been “clearly decided” and within the competence of the arbitrator. See also 88 Harv.L. Rev. 804 (1975), discussing Banyard. . Judge Garth, in concurrence, urges that we review the actions of the Board under an error of law standard. I do not agree with that position because I believe that Spielberg is a discretionary administrative doctrine and not the law of Board deferral. A law originates from the constitutional grant of congressional and judicial power and the delegation of that power. There is no indication that the Board was acting pursuant to any delegated rulemak-ing authority in Spielberg. On the contrary, the Board’s statement in Spielberg that it was deferring to the arbitration award because it believed “that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by recognition of the arbitrator’s award,” Spielberg Mfg. Co., supra, 112 N.L.R.B. at 1082, indicates that the Board was exercising discretion. See Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009 at 1014 (3d Cir. 1980). Because I believe the Board was exercising its discretion, I conclude its failure to defer can only be reversed for an abuse of that discretion. . See also Alfred M. Lewis, Inc. v. NLRB, 587 F.2d 403, 407 (9th Cir. 1978); Local 700, Machinists Union v. NLRB, 525 F.2d 237, 244 (2d Cir. 1975); Associated Press v. NLRB, 492 F.2d 662, 666 (D.C.Cir. 1974); NLRB v. Auburn Rubber Co., 384 F.2d 1, 3 (10th Cir. 1967). . In Boys Market, Inc. v. Retail Clerks, 398 U.S. 235, 252, 90 S.Ct. 1583, 1593, 26 L.Ed.2d 199 (1970), the Supreme Court iterated its approval of the arbitral process characterizing it as “the central institution in the administration of collective bargaining contracts.” . Some of the above language was quoted with approval by the Supreme Court in Carey v. Westinghouse Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1974). . There is some debate as to whether Collyer evolved from Spielberg or whether it was a new, and broader, doctrine. See generally Murphy and Sterlacci, A Review of the National Labor Relations Board's Deferral Policy, 42 Ford.L.Rev. 291 (1973); Note, Deference of Jurisdiction by the National Labor Relations Board and the Arbitration Clause, 25 Vand.L.Rev. 1057 (1972). . Section 301(a) of the Act, 29 U.S.C. § 185(a) (1973) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). . This court’s policy of deferral to arbitration awards follows from the holdings of a line of Supreme Court cases commonly referred to as the Steelworkers Trilogy. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); . United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See generally Comment, Employee Challenges to Arbitral Awards: A Model for Protecting Individual Rights under the Collective Bargaining Agreement. 125 U.Pa.L.Rev. 1310 (1977). . In Alexander v. Gardner-Denver Co., 415 U.S. 36, 54-60, 94 S.Ct. 1011, 1022-25, 39 L.Ed.2d 147 (1974), the Court distinguished between rights “conferred on employees collectively to foster the processes of bargaining” which may be waived by the union in order to gain economic benefits and non-majoritarian rights, such as those under Title VII, which cannot be waived. The subject of the arbitration in this case concerns waivable individual collective bargaining rights. See 88 Harv.L. Rev. at 809. . The Board seemed to acknowledge this standard of deferral in its opinion in this case when it stated: We recognize that in some cases there may be reasonable disagreement as to whether or not [an employee’s activity is protected]. . In such cases we will not refuse to defer to the arbitrator’s award simply because we would have reached a different result. 237 N.L.R.B. No. 159 at 4. . As we have already alluded, the Board in International Harvester, supra, interpreted the Spielberg doctrine stating it would refuse to adjudicate unfair labor practice claims arising from the same facts as an arbitrated contract dispute unless the arbitration proceedings were “tainted by fraud, collusion, unfairness, or serious procedural irregularities or the award was clearly repugnant to the purposes and policies of the Act.” Id. at 927. The Board commented on its “clearly repugnant” test stating an arbitrator’s conclusions on questions of law would stand unless they were “palpably wrong.” Id. at 929. . The ingenious analysis of the dissent is predicated upon the thesis that since the Labor Management Relations Act (Taft-Hartley) of 1947 the Board has no power to review the decision of the General Counsel whether to initiate what may be an unfair labor practice case because Congress granted unreviewable prosecutorial discretion to the General Counsel. But the broad power to investigate and prosecute complaints in no way impinges upon the Board’s power to give effect to private agreements for the voluntary settlement of disputes without governmental intervention. Spielberg, decided in 1955, involved the refusal to reinstate five employees at the conclusion of a strike. The trial examiner found that the employer had engaged in unfair labor practices. The Board concluded that even though it might not have decided the issue as did the arbitration panel, the decision of the panel was not clearly repugnant to the policies and purposes of the Act and it would defer. When Congress enacted the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act) of 1959, Pub.L.No. 86-257, 73 Stat. 519, it did not curtail the Board’s power to defer to arbitration awards in labor disputes subject to voluntary arbitration. On the contrary, it empowered the Board to decline jurisdiction in labor disputes involving any class of employers where the effect of the labor dispute on commerce is not sufficiently substantial to warrant the exercise of the Board’s jurisdiction. 29 U.S.C. § 164(c)(1) (1976). Speaking five years after the Landrum-Griffin Act, the Board reiterated its “well established . . discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act.” International Harvester Co., 138 N.L.R.B. 923, 925-26, quoted in Carey v. Westinghouse Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1964). The dissent misconstrues the nature of the Board’s deferral policy as a failure to exercise jurisdiction rather than the implementation of national labor policy expressed in section 203(d) and the Steelworkers trilogy. The Board does not decline to exercise jurisdiction when it defers to arbitration but it is accommodating the parties’ choice of voluntary arbitration to the extent that the proceedings are fair and regular and the result is not clearly repugnant to national labor policy. Despite the representations of the dissent to the contrary, the Supreme Court accepted the principle of Board deference to arbitration awards in unfair labor practice disputes in Carey v. Westinghouse Corp., supra at 270 n.7, 84 S.Ct. at 408 n.7. . After the Board determined that deferral was inappropriate it remanded the case to an ALJ for further findings on the unfair labor practice charge. The ALJ concluded that Richardson’s discharge was not for both an abuse of working time and the leafletting as found by the arbitrator, but primarily because of the protected leafletting. . See also Linn v. Plant Guard Workers, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966), where the Court approved of the Board’s view which tolerates intemperate, abusive, and inaccurate union statements during an organization campaign but does not, even under such circumstances, view as protected activity the intentional injury of a party “by circulating defamatory or insulting material known to be false.” . In her leaflet, Richardson acknowledged that the contract between Pincus Brothers and the Union was in effect until June. See n.2 supra. . We find it unnecessary to decide Pincus Brothers’ other contention that the arbitration award should stand because the arbitrator found the discharge was caused both by Richardson’s abuse of working time and her distribution of the leaflet. The Company argued that after ML Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1976), the Board cannot adhere to its traditional position in so-called “mixed-motive” cases that even where the discharge was in part motivated by permissible considerations, it is nevertheless unlawful if motivated at all by protected conduct. See generally Western Exterminator Co. v. NLRB, 565 F.2d 1114 (9th Cir. 1977); Coletti’s Furniture v. NLRB, 550 F.2d 1292 (1st Cir. 1977).
GARTH, Circuit Judge, concurring. I agree with Judge Rosenn’s opinion that the National Labor Relations Board’s refusal to defer to the arbitration award in favor of Pincus must be reversed. I also fully agree with his analysis in part III, holding that the arbitral award was not “clearly repugnant” to the purposes and policies of the National Labor Relations Act. I therefore agree with his conclusion that the Board was compelled under its Spielberg doctrine to defer to the arbitrator’s award. I part company, however, with Judge Ro-senn in his designation of the standard of review to which a Court of Appeals must adhere when it examines the Board’s decision whether or not to defer to an arbitration award under Spielberg. I do not agree that we may only reverse the Board for an abuse of discretion. I believe that the Board’s deference decisions must be reviewed under a standard of legal error. I. The federal courts play a more limited role in reviewing the substantive merits of an arbitrator’s award than the National Labor Relations Board. The Supreme Court has decreed that a court must enforce an arbitral award “so long as it draws its essence from the collective bargaining agreement,” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The Court has further held that “so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Id. at 599, 80 S.Ct. at 1362. Thus, courts have no discretion in deciding whether or not to enforce the award; they must enforce it if it satisfies the standards set up by the Supreme Court. Accordingly, a Court of Appeals will review a district court decision in such a case under a legal error standard; and not one of abuse of discretion. The NLRB, however, is not so limited in its function. As the Supreme Court has noted, “the Steelworkers trilogy . dealt with the relationship of courts to arbitrators when an arbitration award is under review or when the employer’s agreement to arbitrate is in question. . . . The relationship of the Board to the arbitration process is of a quite different order.” NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967). Because the Board alone has original jurisdiction to resolve charges of unfair labor practices under the National Labor Relations Act, 29 U.S.C. § 160 (1976), the Board, unlike the courts, is subject to conflicting pressures when reviewing an arbitrator’s award. On the one hand, Congress has stated that “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U.S.C. § 173(d) (1976). The Supreme Court has also emphasized the central role that arbitration plays in our national labor policy. See, e. g., Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); United Steelworkers Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1359, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). See generally, Freed, Injunctions Against Sympathy Strikes: In Defense of Buffalo Forge, 54 N.Y.U.L.Rev. 289 (1979). These congressional and Supreme Court declarations encourage the Board to accord substantial deference to arbitration awards: “submission to grievance and arbitration proceedings of disputes which might involve unfair labor practices would be substantially discouraged if the disputants thought the Board would give de novo consideration to the issue which the arbitrator might resolve.” Associated Press v. NLRB, 492 F.2d 662, 667 (D.C. Cir. 1974). On the other hand, Congress has also provided that “The Board[’s power] to prevent any person from engaging in any unfair labor practice . . . shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.” 29 U.S.C. § 160(a) (1976). It must be conceded that the inherent tension between these two principles of our national labor policy confers, as an initial matter, discretion on the Board in formulat-, ing a position on deference to arbitration awards. As Judge Feinberg, writing for the Second Circuit, said in NLRB v. Horn & Hardart Co., 439 F.2d 674 (2d Cir. 1971), “it is worth remembering that the Board’s rules on deference, after all, are self-imposed although it has followed healthy hints from the Supreme Court.” Id. at 679. While there undoubtedly are limits on the Board’s original discretion, I can assume for purposes of this opinion that the Board’s discretion is large. Thus, the Board may be within its power to adopt the approach that it will defer to arbitration decisions whenever it concludes, in the exercise of its discretion, that such deference is not inconsistent with the National Labor Relations Act. And the Board would probably be within its power to declare that, assuming procedural regularity, it will always defer to arbitration awards resolving alleged violations of § 8(a)(5) of the Labor Act, 29 U.S.C. § 158(a)(5) (1976) (refusals to bargain) and will never defer to awards resolving alleged violations of § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3) (1976) (discriminatory discharges). However, once the Board undertakes to resolve the inherent tension noted above between 29 U.S.C. § 160(a) and 29 U.S.C. § 173(d), its original discretion in this field is displaced. Once the Board “announce[s] a policy regarding deference to arbitration, [it cannot] blithely ignore it, thereby leading astray litigants who depended on it.” NLRB v. Horn & Hardart Co., 439 F.2d 674, 679 (2d Cir. 1971). Rather, the Board, like all agencies, is bound to adhere to the regulations and decisions that it announces. Concluding that the Board is bound to follow its announced deference policy does not, of course, determine the standard by which the Courts of Appeals are to review the Board’s application of its standards. It is the content of the deference policy that must determine the manner in which application of the policy is reviewed. This is true of all rules of law. For instance, the United States district courts are bound to follow the rule that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” F.R. Evid. 611(b). They are also bound to follow the rule that evidence seized by a State in contravention of the Fourth Amendment is inadmissible. However, review of the application of the first of these rules is governed by the abuse of discretion standard, while review of the application of the second is governed by a legal error standard. This is so because application of the cross-examination rule is regarded as committed to the sound discretion of the district court, while the exclusionary rule is purely a matter of law. Thus, we must refer to the content of the Board’s deference policy to determine the applicable standard of review. If the Board had adopted the first of the hypothetical deference policies suggested above — that it will defer where it concludes, in the exercise of its discretion, that doing so will not be inconsistent with the National Labor Relations Act — it is perfectly clear that the appropriate standard of review would be an abuse of discretion standard. The policy confers discretion on the Board by its very terms. Since the Board has discretion under this policy, the Board’s decision may be reversed only where the discretion has been abused. If, however, the Board had adopted the second of the hypothetical deference policies suggested above — that it will always defer in § 8(a)(5) cases and never defer in § 8(a)(3) cases (see, e. g., note 1 supra) — it is equally clear that the appropriate standard of review would be one of legal error. The policy confers no discretion on the Board: the Board must hear and determine some cases and must defer to the arbitral award in others. If the Board refused to hear the § 8(a)(3) complaint of an employee who claimed that he had been discharged for supporting his union, and whose claim had been rejected by an. arbitrator, the Board could not contend that it had the discretion to defer to the arbitrator’s decision. A Court of Appeals would undoubtedly direct the Board to hear and resolve the complaint, because, by adopting the deference policy hypothesized here, the Board would have renounced its discretion in § 8(a)(3) cases; it would have bound itself to hear and determine such a case rather than defer. Thus, the particular content of this deference policy compels the conclusion that the only appropriate standard of review of a deference decision is that of legal error. Turning to the Board’s actual deference policy, that announced in Spielberg Manufacturing Co., 112 NLRB 1080 (1955), it is again clear that the policy confers no discretion on the Board. It is equally clear that the appropriate standard of review is that of legal error. In Spielberg, the Board set up a three-part test. It announced that it would defer to an arbitrator’s decision where “[1] the proceedings appears to have been fair and regular, [2] all parties had agreed to be bound, and [3] the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act.” Id. at 1082. The parties here have agreed that the first two elements of this test are satisfied, and thus we are not required to determine the standard of review of such determinations. Nevertheless, it appears that these two elements involve mixed questions of law and fact, and confer no discretion on the Board. Thus, the subsidiary factual components of these determinations would be reviewed under a substantial evidence test, with the ultimate legal conclusion reviewed under a legal error standard. E. g., Joseph Lupowitz Sons, Inc. v. Commissioner, 497 F.2d 862, 865 (3d Cir. 1974); Kaltreider v. Commissioner, 255 F.2d 833, 837 (3d Cir. 1958); Lehmann v. Acheson, 206 F.2d 592, 594 (3d Cir. 1953). See The E. A. Packer, 140 U.S. 360, 364, 11. S.Ct. 794, 795, 35 L.Ed. 453 (1891). The third element of the test, whether the decision is clearly repugnant to the Labor Act, is, of course, a pure question of law. In making its evaluation, the Board must discern the legal basis of the arbitrator’s decision, determine the relevant labor law, and decide whether the former is clearly repugnant to the latter. This standard, too, confers no discretion on the Board, and, since it is a matter of law that the Board is deciding, the appropriate standard of review must necessarily be that of legal error. Thus, the argument may be summarized as follows. In light of the inherent tension between the two precepts of labor law embodied in 29 U.S.C. § 160(a) and 29 U.S.C. § 173(d), the Board has discretion in formulating a policy on deference to arbitration awards. Once, however, the Board announces its policy, its original discretion has been displaced; the Board is bound to follow the policy it adopts unless and until it explicitly changes that policy. Whether the Board’s application of its deference doctrine should be reviewed by an abuse of discretion standard or a legal error standard depends on the content of the doctrine. If the doctrine confers discretion on the Board, the Board’s application of it may be reversed only for abuse of discretion. The Spielberg doctrine, however, does not confer discretion on the Board. Rather, it requires the Board to determine whether each of the threo parts of the Spielberg test is satisfied, each of which ultimately involves a nondiscretionary question of law. Necessarily, then, the Board’s Spielberg decision must be reviewed under a standard of legal error. II. I freely acknowledge that all of the courts that have expressed themselves on the issue have indicated that the Board’s application of the Spielberg doctrine is reviewed under an abuse of discretion standard. I find none of them compelling. Indeed, a review of these cases reveals that they either engage in no analysis at all, relying on their mere ipse dixit, or employ an analysis that stops short of the critical question. Many cases reflect an abuse of discretion standard only through the unelaborated assertion that the Board’s deference decision will only be reversed for abuse of discretion, or by phrasing the question presented as whether the Board has abused its discretion. See, e. g., International Ass’n of Machinists Local 1309 v. NLRB, 530 F.2d 849, 850 (9th Cir. 1976) (per curium); Lodges 700, 743, 1746, International Ass’n of Machinists v. NLRB, 525 F.2d 237, 239, 244, 245, 246 (2d Cir. 1975); Associated Press v. NLRB, 492 F.2d 662, 666, 668 (D.C. Cir. 1974); Ramsey v. NLRB, 327 F.2d 784, 786, 788 (7th Cir.), cert. denied, 377 U.S. 1008, 84 S.Ct. 1988, 12 L.Ed.2d 1052 (1964). Those that do engage in an analysis invariably go only part way. They assert, on the one hand, that the Board has discretion in deciding whether to defer to an arbitrator’s award. They also assert, on the other, that Spielberg governs the Board’s exercise of discretion. Of course, I have no quarrel with the analysis to this point, for I employ the same analysis myself. But these cases never reach the critical question of how Spielberg governs this discretion, i. e., they never discuss whether Spielberg leaves substantial discretion in the hands of the Board, such that its application of Spielberg can only be reviewed under an abuse of discretion standard, or, rather, whether Spielberg establishes a fixed deference doctrine, the application of which should be reviewed under a legal error standard. Typical of these cases is the Tenth Circuit decision in NLRB v. Auburn Rubber Co., 384 F.2d 1 (10th Cir. 1967). The court there merely stated, without more, that: In our opinion the Board has the discretion to defer to, or to reject, the decision of the arbitrator and, in determining whether that discretion has been properly exercised, the tests announced by Spielberg are pertinent. 384 F.2d at 3 (footnote omitted). The Ninth Circuit in Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674 (9th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1977), in subscribing to an abuse of discretion standard, nevertheless describes its rationale in terms more suggestive of a standard of legal error. The court stated that: The Board has established criteria to guide its decision and to this extent self-imposed restraints limit its discretion. In reviewing the Board, we must insure that it adheres to its own standards until they are properly changed by the Board. We will not deny enforcement unless the Board clearly departs from its own standards or its standards are themselves invalid. 545 F.2d at 676 (footnotes omitted). Similarly, the Second Circuit’s opinion in NLRB v. Horn & Hardart Co., 439 F.2d 674 (2d Cir. 1971), which is relied upon by Judge Rosenn in support of an abuse of discretion standard, is not contrary to my analysis in support of a legal error standard. The court there stated: But it is worth remembering that the Board’s rules on deference, after all, are self-imposed although it has followed healthy hints from the Supreme Court. Nevertheless, so far as we know, in no case has the Court directed the Board to defer to an arbitration award, . so that its discretion in this respect must be regarded as large. We do not suggest that the Board can announce a policy regarding deference to arbitration and then blithely ignore it, thereby leading astray litigants who depended upon it. But it can change its mind or alter its standards for deference in some respects without necessarily engaging in conduct so blameworthy as to justify our calling it abuse of discretion. 439 F.2d at 679 (citation omitted). This excerpt from Horn & Hardart, despite the reference in the last sentence to “abuse of discretion,” does not, in fact, support the view that Spielberg determinations may only be reviewed under an abuse of discretion standard. The Horn & Hardart analysis is not concerned with reviewing the Board’s application of Spielberg, but rather with the Board’s power to change the Spielberg standard: “[the Board] can alter its standards for deference in some respects without ... our calling it abuse of discretion.” Since the Board has original discretion to select among various deference standards, it unquestionably has discretion to change its mind and thus change its own standard. But that, of course, is not the question that we face. And on the question that is presented — our review of the Board’s application of Spielberg — it is clear that Horn & Hardart provides minimal guidance. Thus Horn & Hardart, like Auburn Rubber and Hawaiian Hauling, simply does not undercut the analysis advanced here in support of a standard of legal error. III. Judge Rosenn in his opinion for the Court, at 375 n.18, rejects the view expressed in Judge Gibbons’s dissent that the Board generally has no power to defer to arbitration proceedings. I agree wholeheartedly with Judge Rosenn’s position. I add my own thoughts only to emphasize that, despite Judge Gibbons’s scholarly analysis, I cannot accept his conclusion. Judge Gibbons, while arguing that the Board generally has no power to defer, does accept, at least at this time, a limited deferral policy in “section 8(a)(5) and section 8(b)(3) cases involving contract interpretation matters in which the interpretation of the contract by the agreed upon method in effect eliminates the predicate for the charge.” (At 399). Overall, though, he makes plain that he has the gravest reservations about the Board’s authority to defer in any case, with the sole exception of jurisdictional disputes among unions, for which there is statutory authority for deferral. See 29 U.S.C. § 160(k) (1976). I do not share Judge Gibbons’s reservations about the Board’s power to defer. As I have noted, I believe Board discretion in this area flows inevitably from the tension between two elements of our national labor policy: on the one hand, the centrality of arbitration in maintaining industrial peace, and, on the other, the Board’s continuing authority to resolve unfair labor practice charges regardless of any independent dispute resolution mechanism agreed upon by the parties. Deference to arbitration under the three-prong Spielberg test contributes significantly to the first of these elements, the encouragement of arbitration as a critical factor in labor-management relations. Thus, while much of what Judge Gibbons says is persuasive, I do not believe his position gives sufficient weight to the importance of arbitration, as expressed in the Steelworkers Trilogy and other Supreme Court cases. See at 378, supra. Further, I believe Judge Gibbons’s position is largely foreclosed by the Supreme Court’s plain approval of the deferral doctrine in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 270-72, 84 S.Ct. 401, 408-409,11 L.Ed.2d 320 (1964). Judge Gibbons properly points out that Carey presented an instance of deferral to arbitration in the jurisdictional dispute context. Carey’s approval of the deferral doctrine, however, was in no way limited to these cases alone. Indeed, the Board’s statement of its discretionary authority to defer, which is quoted with approval by the Court in Carey, comes from a case in which the Board deferred to an arbitration .award involving, in part, a charge of discriminatory treatment in violation of § 8(a)(3). See International Harvester Co., 138 NLRB 923 (1962), enf’d sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964). Judge Gibbons would find these circumstances to present the least defensible case for deferral, yet the Supreme Court, in quoting International Harvester with approval, makes ho suggestion that deferral in that case was inappropriate. And like the Court, the Board as an institution has never denied its own authority to promulgate a deferral doctrine, despite the dissents of two of its members who have employed many of the same arguments made by Judge Gibbons here. Thus, as I see it, I would sum up as follows: The Board unquestionably has the power to establish rules and legislative policy. One such policy established by the Board is that of deferral to arbitration at any stage. Once established, such a policy operates to require deferral as a matter of law in the particular areas identified by the Board. The Supreme Court, in recognizing the inherent advantage of consensual relationships between labor and management, has never denied, but, rather, has endorsed and encouraged the Board’s power to establish a deferral doctrine. Similarly Congress, which could not have been blind to the Board’s deferral doctrine since its adoption in Spielberg in 1955, has legislated against neither the Board’s power to establish such a policy, nor against the policy itself. Accordingly, if the Board, in the exercise of its expertise, and pursuant to its legislative mandate, announces a deferral policy, then those over whom the Board exercises authority are entitled to rely upon this policy. Likewise, the courts are entitled to expect that the Board will follow its policy, until such time as, in the Board’s discretion, the policy is either abandoned, revoked or modified. In short, the Board must live by the rules that it establishes. It is in this context that I have urged in this opinion that the Board’s policy, once established and until changed, must be reviewed as a matter of law, and not discretion. Judge Gibbons, as a result of the position that he takes, does not address the question of the appropriate standard of review. He notes only that a Board decision not to defer should never be reversed by a Court of Appeals (At 399). Due to the differences in our approach, I necessarily disagree with this position. IV. I have reviewed here the cases that address the question of the standard of review by which a Spielberg decision should be reviewed in the Courts of Appeals. Since none of these cases undertakes an analysis of the only question that I regard as critical, I am unpersuaded by their declarations that the Board’s application of its Spielberg doctrine can be reversed only for an abuse of discretion. I am convinced that once the Board voluntarily limits the discretion it originally possessed in this field and declares a policy of its own making, we have a duty to hold the Board to the policy it has chosen. And if that policy does not reserve discretionary power to the Board, as Spielberg by its very terms and nature does not, we ought not review applications of the policy as if it did. The Board retains the power to reclaim its original discretion in this field by abandoning Spielberg and setting up a new standard. But the Board has not yet done so. We ought not do what the Board itself has not seen fit to do, i. e., reinstate the Board’s pre-Spielberg discretionary policy, by reviewing its decisions under an abuse of discretion standard. Thus, I conclude this analysis as I began it: the Board’s deference decisions, stemming as they do from the Board’s self-imposed deferral policy, should be reviewed by the Courts of Appeals under a standard of legal error. . These hypothetical deference rules are fairly close to the actual position the Board currently takes when it is asked not to review an arbitration award already issued, but to withhold its own proceedings to await the outcome of an arbitration that has not yet been completed. This current position is the result of sharp differences among the views of the Board members and the changing composition of the Board. Three members, Miller, Kennedy and Brown, in 1971 established the principle in Collyer Insulated Wire, 192 NLRB 837 (1971), that the Board will await an arbitration award where the dispute centers on interpretation of the contract, where there is no evidence of anti-union animus, and where the parties have a long and productive bargaining relationship with tested grievance machinery providing for arbitration. 192 NLRB at 842. The dissenters, Members Jenkins and Fanning, argued that the Board should never defer to uncompleted proceedings. In 1977, changes in the composition of the Board produced a new approach, announced in General American Transportation Corp., 228 NLRB 808 (1977) and Roy Robinson Chevrolet, 228 NLRB 828 (1977). The two Collyer dissenters adhered to their original view that deferral is never appropriate. Two other members, Pe-nello and Walther, who were appointed to the Board after Collyer, adhered to the original Collyer approach. The fifth member, Murphy, appointed in 1975, staked out an independent, swing position. She wouid hold that the Board should never defer in cases charging interference with individual rights, such as § 8(a)(3) cases, because such rights may not receive adequate protection by a union in arbitration proceedings. Murphy would approve deferral where the dispute is between the employer and the union and where no individual rights are implicated, such as § 8(a)(5) cases, because the union is likely to press such cases vigorously. In light of the 2-2 split among the four remaining members of the Board, Murphy’s vote effectively decides most cases. Thus, the Board’s current position is in practice close to the hypothetical rules set forth in the text above. . Horn & Hardart is discussed in greater detail in section II, infra. . See, e. g., Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Geiger v. Brown, 136 U.S. App.D.C. 132, 419 F.2d 714 (D.C. Cir. 1969) (per curiam); Sangamon Valley Television Corp. v. United State