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These blogs are not intended to offer specific advice, but rather my views on subjects of interest to labor/management practitioners and representatives.
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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...
read moreGuiding 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 inherently wrongful; and procedural safeguards were satisfied; the requirement of “just cause” is usually satisfied. There is a great deal of evidentiary difference between a “binding past practice” and mere “past precedent.” In the former, conclusive evidence of universal acceptance and application is required, to the extent that the practice may be said to have become an (unwritten) term of the contract. “Past precedent” on the other hand, is simply evidence of various occasions in which the parties acted a certain way; and while such evidence may serve to guide the arbitrator, it does not rise to the level of a binding term of the contract. All workplaces are different; consequently all arbitration cases are unique to the circumstances. The standards and expectations in one particular industry (retail, for example) may be vastly different from those of another industry (such as manufacturing). This principle is generally applicable in employee discipline cases. An Arbitrator must consider the likely impact of his/her decision on the parties’ relationship, and on the workplace. That is, the Arbitrator should make every effort to “do no harm.” There is no such thing as a “routine” arbitration. A Labor arbitration award can impact lives and businesses. It is a serious matter, and should always be viewed as such by the arbitrator and the parties. Print This...
read moreManagement 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 the workforce. Beyond that overall encumbrance, the specific provisions of the agreement, setting forth all the various terms and conditions of employment further restrict the employer’s freedom of action. Thus the “management rights” article of the CBA serves as the employer’s mainstay in its ability to run the business at a profit. It is important to remember, in this context, that the employer is not only competing with foreign companies, but in many instances with non-union companies in the same industry, and often in the same locale. It is not in the long-term interests of unions, or unionized employees, to restrict management to the point where it is no longer competitive. In evaluating “management rights” cases, therefore, it may be appropriate to point out that the applicable language of the CBA allows the employer wide discretion to operate the business, in the absence of specific restrictions. By doing so, the proper balance between the union, the employees and the employer is most likely to be preserved. Print This...
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