New NLRB Standards
NEW NLRB STANDARDS FOR DEFERRAL TO ARBITRATION On December 15, 2014, the NLRB issued a decision in Babcock & Wilcox Construction Company., 28-CA-022625, which could have a serious impact on certain types of arbitration cases. It has been recognized for decades that grievance arbitrations, particularly those involving alleged “just cause” for discipline, might also present issues of unfair labor practices arising under the LMRA. In those instances the question has been whether the NLRB will “defer” to the arbitration award. Without attempting an extensive legal analysis (such as those readily available on line), I believe the following observations are in order. The thrust of Babcock and Wilcox is that...
Guiding Principles of Arbitration
Parties selecting a labor arbitrator may be interested in that arbitrator’s approach to the issues in a particular case. While the arbitration process is informal, and does not easily accommodate to hard and fast rules, I have recognized and applied a number of principles in reaching my decisions: Arbitration is an integral part of the collective bargaining process, and the arbitrator should always be faithful to the contract terms the parties have negotiated for themselves. Management rights should be respected. The term “just cause” in employee discipline cases is essentially subjective, and as such may not be susceptible to a universal set of “tests.” If the evidence establishes that the alleged misconduct took place; that it was either covered by a rule or...
Management Rights
While virtually all collective bargaining agreements (“CBA’s”) include an article ostensibly preserving the employer’s right to “manage the business,” those provisions often come with restrictions. Thus management may have the right to discharge, but only for “just cause.” Likewise the right to determine the “means and processes” of manufacturing but with limitations on subcontracting or combining jobs, among others. A proper approach to “management rights” issues, in general, is to consider the function of the contract language. That is, what objective does the language seek to achieve? As practitioners know, the very existence of a CBA serves as a constraint on the otherwise unfettered right of the employer to take any otherwise lawful action with respect to...