301 of the Labor Management Relations Act to uphold those awards.
As is apparent from the facts recited above, however, the matter is not so straightforward, and two primary problems are presented. First, the arbitration decisions which the union seeks to enforce directly conflict with the terms of the compliance agreement between George and the Company. That agreement purports to implement the Board's order that George be offered "immediate and full reinstatement to his former job, without prejudice to his former rights or privileges . . .", as well as backpay. Jacobs Transfer, Inc., supra.2
Faced with a company offer of reinstatement which it believed to be insufficient, the Board could have issued a supplemental order directing that George be reinstated in Washington. This would presumably have constituted an exercise of its authority to interpret and give effect to the terms of a collective bargaining agreement, when such a determination is necessary to adjudicate an unfair labor practice. N.L.R.B. v. Strong, 393 U.S. 357, 21 L. Ed. 2d 546, 89 S. Ct. 541 (1968); N.L.R.B. v. C. & C. Plywood, 385 U.S. 421, 17 L. Ed. 2d 486, 87 S. Ct. 559 (1967). The Board did not follow this course, however; instead, the Regional Director negotiated the compliance agreement.
If the compliance agreement is to be viewed as having the effect of a Board order, then the agreement would clearly prevail and the Court would have to deny enforcement of the conflicting arbitration decisions. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 11 L. Ed. 2d 320, 84 S. Ct. 401 (1964); Alexander v. Gardner-Denver Co., 415 U.S. 36, 49-50, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). However, no indication has been found in the statute, the case law, or Board regulations that this compliance agreement does have the status of a Board order, entitling it to supersede an arbitration decision. Consequently the Court does not view the compliance agreement as being a Board order in the sense necessary to automatically override the arbitration awards.
The Board also argues that the compliance agreement represents an exercise of its asserted power to determine the location of George's reinstatement as a "mere administrative determination" attendant on its original order of backpay and reinstatement, citing Wallace Corp. v. N.L.R.B., 159 F.2d 952 (4th Cir., 1947) and N.L.R.B. v. Bird Machine Co., 174 F.2d 404 (1st Cir., 1949). However neither of those cases, nor any others that the Court has found, contemplate that such a "mere administrative" detail should include a major interpretation of the collective bargaining agreement. Surely the Regional Director could not expect, for example, that a court would uphold an informal agreement (such as the one here in question) by which a low-seniority employee, unlawfully fired, was reinstated at the top of the seniority ladder. While the Board itself might be able to order such a result after formal proceedings, certainly the Wallace and Bird Machine cases did not intend to imply that such sweeping remedial power was as a "mere administrative determination" to be effected and enforced by way of a negotiated compliance agreement. Indeed, a careful reading of the cases shows that they were instead addressing the question of whether determination of the proper sort of reinstatement was an administrative function or a judicial function, i.e., whether under the Act such a determination should be made in the context of a contempt hearing in the Court of Appeals or whether it was of an administrative nature, committed by the Act to fact-finding by the Board. It was in this context that the Court termed such a determination "administrative". Wallace Corp. v. N.L.R.B., supra, 159 F.2d at p. 955. The language of the Bird Machine decision, in fact, refutes the Board's contention here that it need not hold formal proceedings to achieve the result desired here; when the employee's former job no longer exists, it is
proper for the Board to have a further administrative hearing on questions as to whether there were substantially equivalent positions in the Company's service, and as to what action should be taken, in view of changed conditions, to wipe out the effects of the unfair labor practices; such hearing having in contemplation supplemental findings by the Board, appropriate modification of the Board's previous order, . . . (emphasis added)
N.L.R.B. v. Bird Machine Co., supra, at p. 406. Moreover, the Board's own regulations also recognize that only details of compliance with an explicit order (e.g. the amount of backpay due) are to be effected by this sort of an agreement, rather than the substantive interpretation of a disputed collective bargaining provision. 29 C.F.R. §§ 101.13, 101.16. The net effect of these procedures, cases, and regulations, therefore, is to leave the Court with no basis on which to deny enforcement of the arbitration decisions.
The second primary problem posed in this case is the pendency of the current unfair labor practice proceeding before the Board. In that pending action (Jacobs Transfer, Inc. et al., Board Case Nos. 5-CA-5308 & 5-CB-1639), it has been charged and a trial examiner has found that Local 639 is engaging in an unfair labor practice by bringing this very suit. This finding is of course not binding until affirmed by the Board. However, if the Board affirms the trial examiner and finds that the maintenance of this suit constitutes an unfair labor practice, the Court would be most reluctant to permit itself to be used in such a manner, and would want to consider very carefully a possible dismissal of this action. To do otherwise might result in the facilitation of an unfair labor practice. Cf. National Licorice Co. v. N.L.R.B., 309 U.S. 350, 84 L. Ed. 799, 60 S. Ct. 569 (1940). Since this issue remains unresolved, it seems prudent to stay the matter pending final decision by the Board.
An additional reason for staying this action pending the outcome of the Board proceeding is the possibility that the Board will choose at that time to amend its original reinstatement order to provide for reinstatement at Franconia, Virginia as called for in the compliance agreement. If this is done, the new order would supersede the arbitration awards, since ". . . the superior authority of the Board may be invoked at any time". Carey v. Westinghouse Electric Corp., supra 375 U.S. at p. 272, and the Court would be powerless to enforce the arbitration awards.
Accordingly, it is by the Court this 29th day of January 1976,
Ordered, that this action be, and hereby is, stayed pending final action by the National Labor Relations Board in Case Numbers 5-CA-5308 and 5-CB-1639, which shall be promptly reported to the Court by counsel for the Board.
William B. Bryant / JUDGE