Proposed Changes to NLRB's Arbitration Deferral Standards

Proposed Changes to NLRB's Arbitration Deferral Standards

In this Emerging Issue Analysis, labor law expert N. Peter Lareau traces the history of the development of the Board's deferral policy before analyzing the changes to be wrought under the Acting General Counsel's new litigation policy. The EIA closes with some comments about the ramifications of the new policy for the immediate future.

Excerpt:

For over 25 years now, the National Labor Relations Board ("Board") has deferred to arbitration awards that directly or tangentially involve issues under the National Labor Relations Act if: (1) the arbitral proceedings appear to have been fair and regular; (2) all parties had agreed to be bound by the decision; and (3) the decision is "not repugnant" to the purposes and policies of the Act; (4) the contractual issue is factually parallel to the unfair labor practice issue; and (5) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Unhappy that the deferral policy allows decisions involving statutory rights to stand even though they may not have been directly litigated or decided, the Acting General Counsel of the Board has proposed a litigation policy pursuant to which the Office of General Counsel will urge the Board to adopt a deferral standard that ensures that statutory rights will receive due consideration. In this Emerging Issue Analysis ("EIA"), labor law expert N. Peter Lareau traces the history of the development of the Board's deferral policy before analyzing the changes to be wrought under the Acting General Counsel's new litigation policy. The EIA closes with some comments about the ramifications of the new policy for the immediate future.

Introduction

Section 10 of the National Labor Relations Act ("Act") empowers the Board to prevent any person from engaging in any unfair labor practice affecting commerce and provides that the Board's "power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . . ." On the basis of this broad authority, the Board is clearly not bound, as a matter of law, by an arbitrator's decision or award. In an early case, the Ninth Circuit held:

Clearly, agreements between private parties cannot restrict the jurisdiction of the Board. . . . We believe the Board may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the Act. [footnotes omitted]

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