473 F.2d 816
82 L.R.R.M. (BNA) 2621, 70 Lab.Cas. P 13,405
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL
& REINFORCED IRON WORKERS UNION, LOCAL 378, Respondent.
No. 71-2932.
United States Court of Appeals,
Ninth Circuit.
Jan. 31, 1973.
Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Steven Kahn, Elliot Moore, Attys., NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for petitioner.
Victor J. Van Bourg (argued), Mark Wurm, of Levy & Van Bourg, San Francisco, Cal., for respondent.
Before ELY and WALLACE, Circuit Judges, and KELLEHER,* District Judge.
PER CURIAM:
The Board's Decision and Order, reported at 191 NLRB No. 73, will be enforced. The critical factual determinations upon which the Board based its decision are clearly supported by substantial evidence.
We reject the respondent's contention that the aggrieved employee failed to exhaust administrative remedies which the respondent urges were available under a collective bargaining agreement, consummated after the unfair labor practice had occurred. "[W]here the facts create both an arbitrable dispute and a possible unfair labor practice, the Board has discretion to issue a complaint or to defer action until an arbitration has been completed." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). See also NLRB v. Strong, 393 U.S. 357, 360-362, 89 S. Ct. 541, 21 L. Ed. 2d 546 (1969). Moreover, the respondent, in its exceptions to the Examiner's findings and recommendations, did not, with adequate specificity, object to any failure on the Examiner's part to find that the grievance procedure was applicable to the controversy. Nor in its exceptions did the respondent make any other reference to its present contention in this respect. See 29 C.F.R. Sec. 102.46 (b) (1969). See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 350, 73 S. Ct. 287, 97 L. Ed. 377 (1953); NLRB v. Giustina Bros. Lumber Co., 253 F.2d 371, 374 (9th Cir. 1958).
Honorable Robert J. Kelleher, United States District Judge, Los Angeles, California, sitting by designation