One day in February, Ernest Swiger, a 10-year employee of Wheeling-Pittsburgh Steel Corporation, was operating an ore bridge crane. The crane is an elevated structure that moves north and south on four legs along tracks while the operator sits in a trolley that moves east and west along the moving bridge. The operator controls a 14-ton bucket that picks up ore and other materials. Around 11:30 AM, some fellow employees motioned for Swiger to come down from the crane. They told Swiger that the crane was swaying unusually and that the back legs were lifting off their mounts. Swiger then noticed that several critical bolts were missing from the structure and that others were so rusty they could be broken by hand.

When the shift supervisor noticed that the crane was not operating, he approached Swiger and the other men. The men, including Brian Maguire, described to the supervisor the erratic movements they had seen. Swiger told the supervisor that he did not believe the crane was safe to operate. The collective bargaining agreement in effect at the Wheeling plant provided that when an employee believed working conditions were unsafe, consultations between union and plant officials at various levels would be held to resolve the matter. Maguire took the first step in the process by notifying the union safety representative. In the meantime, the supervisor had the crane inspected as provided in the labor agreement and was told it was safe to operate. He ordered Swiger back to work. Swiger refused to operate the crane until it was repaired. Swiger was immediately suspended, then discharged at 2:45 PM.
The second-shift crane operator, Robert Coulter, also refused to work in the crane. At this point, the plant general supervisor and the union safety representative decided that the crane should be repaired. As a result, millwrights began replacing the bolts. Coulter began operating the crane at 9:00 PM. Coulter was not disciplined.
An arbitrator ruled that Swiger was discharged for just cause under the contract for refusing to operate the crane. When the matter was brought before an administrative law judge, the ALJ refused to defer to the arbitrator's decision because he believed that the arbitrator (a) mistakenly believed that repairs were made before Swiger was suspended, (b) never heard testimony from Coulter but was told by company witnesses simply that Coulter had agreed to operate the crane after Swiger had refused, and (c) did not hear testimony from the other employees about the crane's legs lifting off the tracks. The ALJ heard testimony from Coulter and the other employees as well as from the same witness who had appeared before the arbitrator, and concluded that Wheeling's discharge of Swiger violated Section 8(a)(1) and (3) of the act. The ALJ concluded that Swiger's refusal to operate the crane was protected concerted activity.
Wheeling-Pittsburgh contended that the ALJ abused his discretion in refusing to defer. The company asserted that deferral should not be avoided merely because the employee might present a better case the second time around.
What factors must be considered in examining whether deferral is appropriate? Should the Board uphold the ALJ's refusal to defer? Decide. [Wheeling-Pittsburgh Steel Corp. v. NLRB, 125 LRRM 2825 (6th Cir.)]