NLRB Deferral Rules to Arbitration

Many employers are unsure about the NLRB’s deferral to arbitration rules. For nearly 60 years the National Labor Relations Board (NLRB) had applied the “Spielberg/Olin” standard in cases involving whether to defer to a decision reached through a grievance/arbitration procedure in a union contract. Under this standard, the NLRB would defer IF the following factors were present:

  1. all parties had agreed to be bound by the decision;
  2. the proceeding appear to be fair and regular;
  3. the arbitrator or grievance committee had been presented generally with the relevant facts to consider the unfair labor practice issue; and
  4. the award is not clearly repugnant to the NLRA.

However, in Babcock & Wilcox Construction Co., Inc., 361  NLRB # 132 (December 15, 2014) the NLRB announced a new standard for deferral . This new standard, which makes deferral to an arbitration decision less likely (and which is applied only prospectively), requires that the following factors  be met:

  1. the arbitrator must have been EXPLICITLY  authorized to decide the unfair labor practice issue;
  2. the arbitrator was presented with AND considered the statutory issue, or was prevented from doing so by the party opposing deferral; and
  3. NLRB law reasonably permits the award.

Employers should keep in mind these regulations when negotiating arbitration provisions for union contracts.

This entry was posted in NLRA, NLRB, Unions and tagged , , .

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