Change is in the air. Today the NLRB issued notice that it is reconsidering the standards under which it will defer to an arbitration decision in Section 8(a)(1) and (3) cases. [Official Invitation]
Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The NLRB General Counsel has asked the Board to adopt a different standard. Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.
Briefs are due on or before March 25, 2014.
The proposal would be an improvement. Contract interpretation by an arbitrator may or may not track the usual decision-making performed by the NLRB. Worse, under the current rule it is not even necessary that the parties agree that the arbitrator should decide an unfair labor practice.