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NLRB defers to arbitrator (2-1)
May 27, 2005 by Ross Runkel at LawMemo

The NLRB's policy as to whether to defer to an arbitrator's award created a split among NLRB Members that illustrates the Republican-Democrat division on the Board. Two Republicans outvoted one Democrat.

The Board's deferral policy is designed to preserve Board resources and to encourage private resolution of disputes.

In Smurfit-Stone Container Corporation, 344 NLRB No. 82 (05/16/205) the employer and union had a collective agreement. The employer unilaterally changed the attendance policy. The union grieved under the agreement and also filed an unfair labor practice charge alleging a Section 8(a)(5) violation for refusal to bargain over a mandatory subject.

The arbitrator ruled that the employer had a right to change the attendance policy.

The question for the Board was whether to (a) defer to that award and dismiss the case or (b) not defer and decide the case on its statutory merits.

The majority placed a heavy burden on the General Counsel to prove that the Board should not defer, and found that burden not to be met.

Dissenting Member Liebman argued against deferral. In her view the arbitrator made a decision that the employer had an inherent right to unilaterally change the policy unless the contract affirmatively required bargaining with the union, which is the exact opposite of what Section 8(a)(5) requires. Thus, she would hold that the arbitrator's decision was "repugnant to the Act" and not subject to deferral.

The majority, although describing the award in somewhat disparaging terms, said it was up the General Counsel to prove that the theory of inherent management rights was the only way the award could be explained, and that burden was not met.

My view: If the arbitrator could have written the award to make it clear that the reasoning was not based on a theory that is the opposite of traditional 8(a)(5) reasoning, then there would be less reason for this case to go up to the full Board. Perhaps that was not possible here. In any event, arbitrators should keep in mind that a grievance might parallel an unfair labor practice proceeding, and they should write their awards accordingly. Just remember that if the Board defers to an arbitrator's award, then the parties will not get the benefit (or detriment) of a Board decision on the statutory merits.

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