• Considering a Fix to a Problem That Does Not Exist, NLRB Re-Examines Standards For Deferral To Arbitration Awards
  • March 7, 2014 | Author: David P. Phippen
  • Law Firm: Constangy, Brooks & Smith, LLP - Fairfax Office
  • The NLRB has invited amicus briefs from interested parties in a case involving deferral to an arbitrator's award under a collective bargaining agreement. The Board's General Counsel seeks to have the Board narrow the grounds for deferral, which essentially gives a union or charging party "two bites at the apple."

    Needless to say, deferral in the decision at issue had an "employee-unfriendly" result: the employee's grievance of his discharge was denied.

    The General Counsel now seeks to change the standard to put the burden on the party seeking deferral, usually the employer. Under the requested standard, the party seeking deferral would also have to show that (1) the collective bargaining agreement incorporated the NLRA statutory right, or the NLRA issue was presented to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them; and (3) the award is not clearly repugnant to the National Labor Relations Act.

    The proposed standard would be a one-way street that would benefit only the union/charging party side. It is arguably intended to give the General Counsel more settlement leverage by increasing the cost of litigation for employers. This scenario arises with a backdrop of a collective bargaining agreement wherein the parties typically agree to resolve "ALL" disputes before an arbitrator. Employers should understand that, before the Board, "all" does not mean "all," despite the intent of the parties to a collective bargaining agreement.

    Under the existing standard, the Board will defer when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound by an arbitration; (3) the arbitration decision is not repugnant to the purposes and policies of the NLRA; and (4) the arbitral forum considered the unfair labor practice issue, such that (a) the contractual issue under the collective bargaining agreement is factually parallel to the unfair labor practice issue and (b) the arbitrator was presented generally with facts relevant to the unfair labor practice issue. Under the current standard, the party opposing deferral bears the burden of proof.