Deferral By The NLRB To Grievance/Arbitration Procedures

Overruling 2014 precedent, see Babcock & Wilcox Construction, 361 NLRB 1127 (2014), the National Labor Relations Board (Board), last week in UPS, Inc. 369 NLRB No. 1 (Dec. 23, 2019), returned to the standard that applied from 1984 to 2014 for deferral of alleged unlawful discharges and/or disciplinary action against employees to contractual grievance/arbitration procedures. See Spielberg Mfg.Co., 112 NLRB 1080 (1955); Olin Corp., 268 NLRB 573 (1984)

Going forward, the Board will defer cases alleging unlawful discharge or discipline to arbitration decisions when:

  1. The arbitration proceedings were fair and regular;
  2. The parties agreed to be bound by the arbitration;
  3. The contractual issue was factually parallel to the unfair labor practice issue;
  4. The arbitrator was presented generally with the facts relevant to resolving the unfair labor practice; and
  5. The arbitral award was not clearly repugnant to the purposes and policies of the National Labor Relations Act
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