Under its current arbitration deferral policy, the National Labor Relations Board, to encourage collectively bargained dispute resolution, would defer a final determination in certain unfair labor practice (“ULP”) charges when the grievance can be processed through the parties’ grievance or arbitration provisions under their collective bargaining agreement (“CBA”).  The Board’s Acting General Counsel has urged the Board to change its arbitration deferral policy, claiming it is “overly deferential” and not sufficient to protect employees’ organizing and collective bargaining rights under Section 7 of the National Labor Relations Act.
In his January 20th memo (GC 11-05), Acting General Counsel Lafe E. Solomon would require employers (as the presumed proponents of deferral to an award) to show the CBA had the Section 7 statutory rights incorporated in it or that the parties submitted the statutory issue to the arbitrator AND the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issues.

If the employer clears those hurdles, it will still have to show it is not “clearly repugnant” to the NLRA, i.e., the result is not palpably wrong or susceptible to an interpretation inconsistent with the Act.
Solomon’s new principle also would be implicated in NLRB approvals of pre-arbitration grievance settlements in certain ULP cases (the parties must have intended to settle the ULP charge as well as the contractual grievance).  The NLRB regional offices are directed to investigate the ULP charge, at least to the extent of taking affidavits from the charging party (“CP”) and the CP’s witnesses, and to determine whether the charge has “arguable merit” before deferring to an arbitrator.  When the award is issued, and a party urges deferral to it, the Regional Office is to examine whether the proponent has satisfied the three new criteria, make its determination, and submit the case to the agency’s Division of Advice.

Of course, if the arbitrator upholds the grievance, directs reinstatement and full back pay, and the CP requests withdrawal of the charge, the request can be approved.  If the CP refuses to withdraw, the case still will go to the agency’s Division of Advice.

Now that the NLRB regional offices will dissect arbitration awards regularly, will the unions be filing ULP charges with every discharge grievance?