NLRB tightens deferral to arbitration

 As expected, the NLRB has narrowed the standard for deferral to arbitration. The issue comes up when an employer disciplines an employee and there is a claim that the discipline violates both a collective bargaining agreement (CBA) and the National Labor Relations Act (NLRA). Two separate cases can get going in two separate forums. The CBA claim goes before a private arbitrator. The NLRA claim goes to the National Labor Relations Board.

The question is: Should both cases be allowed to play themselves out? Or should the NLRB simply drop its proceedings ("defer") and let the arbitrator's decision take care of things?

The new rules go like this: If the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if the party urging deferral shows that: (1) the arbitrator was 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) Board law reasonably permits the award. Babcock & Wilcox Construction Company (NLRB 12/15/2014).

Employer advocates are moaning that this new standard will lead to far fewer deferrals (true), unduly delay the final resolution of issues (true), and change the dynamics at the bargaining table (not likely).

I'm curious about whether the new rule will alter the parties' tactics during the arbitration proceedings. Up until now it has been rare for the parties to explicitly authorize an arbitrator to decide a statutory unfair labor practice issue. Will they now start doing so?