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 the NLRB (at least the three members who comprised the majority) will now insist that issues involving potential violations of §§ 8 (a) (1) and (3) be explicitly raised in the arbitration; litigated by the parties in the course of the arbitration; and ruled on by the arbitrator according to established Board law. If these conditions are not satisfied, there will be no deferral. As a practical matter these obstacles may be insurmountable.
Assuming that Babcock and Wilcox remains the established law (shifting political winds and the inevitable court challenges notwithstanding), a host of questions will arise. Here are a few:
- Burden of proof. In a typical arbitration over employee discipline, it is axiomatic that the employer has the burden of proving just cause. However, in unfair labor cases alleging violations of §§ 8 (a) (1) and (3), the General Counsel has the burden of proof. Does this mean, in arbitration, where the agency is not a party, that the burden of proving the alleged statutory violations (i.e. lack of just cause) shifts from the employer to the union?
- Effect of the arbitrator’s evidentiary determinations. Even if the NLRB declines to defer to an arbitration award for failure to properly evaluate the statutory issues, what effect will be given to the arbitrator’s rulings on credibility and other evidentiary issues? This question is likely to be raised when the agency’s rulings are subject to court review.
- Effect of the six-month statute of limitations. If a grievance presents clear statutory issues, but no unfair labor charges are pending as of the arbitration, and less than six months have elapsed since the alleged violation, are the parties (and the arbitrator) free to ignore the potential unfair labor practice aspects of the grievance?
- Suppose that in a discharge arbitration the union explicitly waives any and all considerations of potential statutory issues, and the arbitrator finds just cause for discharge. Is the grievant then able to file ULP charges as an individual? Has the union violated its duty of fair representation?
As I see it, Babcock & Wilcox presents important challenges both to the parties and the arbitrator. From now on, if the parties to the arbitration hope to avoid relitigating the issues before the agency, it will be necessary to identify the unfair labor practice issues in the arbitration, and to present the evidence necessary for a determination by the arbitrator. Likewise, the arbitrator will be responsible for spotting potential unfair labor practice issues, even if the parties have not raised them; and to ensure that there is enough evidence in the record to decide those issues. Moreover, the arbitrator will need to be familiar with the LMRA and the policies and procedures of the Board. Thus, if the parties intend that the arbitral award be truly “final and binding,” it will be of critical importance that the arbitrator has significant experience in litigating such issues before the NLRB.
Otherwise there will be no deferral, and the parties will be subject to the long and costly process of litigating before the agency.
Jeff Belkin 1\20\15