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NLRB deferral to arbitration: Changes coming
January 25, 2011 by Ross Runkel at LawMemo

The NLRB's Acting General Counsel has announced that he will urge the National Labor Relations Board to change its framework for post-arbitral deferral.

Memorandum GC 11-05, January 20, 2011

For a very long time the NLRB has had a policy of declining to take jurisdiction over an unfair labor practice charge when an arbitrator has already issued an award. This policy of deferring to an arbitrator's award has been applied when the contract and statutory issues were “factually parallel” and the arbitrator was “presented generally with the facts relevant to resolving the unfair labor practice”

In the GC's view, this policy needs revision when it comes to Section 8(a)(1) and (3) cases. Why? Because these cases involve questions of individual employees' statutory rights as contrasted with employees' collective rights or rights of a union.

The proposed change? To ensure that the NLRB defers to an arbitration award only if the arbitrator has actually considered the statutory rights. And to shift the burden of proof to the party that is urging deferral.

The GC summarizes his lengthy memorandum as follows:

To summarize, we will urge the Board to modify its approach in Section 8(a)(1) and (3) post-arbitral deferral cases as follows:

1. The party urging deferral should have the burden of demonstrating that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.

2. If the party urging deferral makes that showing, the Board should defer unless the award is clearly repugnant. The award should be considered clearly repugnant if it reached a result that is “palpably wrong,” i.e., the arbitrator’s award is not susceptible to an interpretation consistent with the Act.

3. The Board should not defer to a pre-arbitral-award grievance settlement unless the parties themselves intended the settlement to also resolve the unfair labor practice issues. Where the evidence demonstrates that the parties intended to settle the unfair labor practice charge, the Board should continue to apply current non-Board settlement practices and procedures, including review under the standards of Independent Stave.

My view:

Makes sense to defer to an arbitrator who has actually considered the statutory issue as opposed to an arbitrator who has decided a contract issue that is "factually parallel."

The Democrat-dominated Board will adopt this new policy.


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