NLRB General Counsel issues Guideline Memo on deferral to arbitration

In its decision in Babcock & Wilcox Construction Co. the NLRB revisited the issue of deferral of unfair labor practice charges to arbitration. In that case it announced a new policy, setting forth standards for when deferral would be appropriate.

In Memorandum GC 15-02 General Counsel Richard Griffin has issued guidelines to the Board's Regional Offices on handling this issue.

The memo summarizes the standards to be followed in deciding whether deferral is appropriate in cases alleging violation of Sections 8(a)1 or (3) of the Act (typically interference or discrimination because of an employee's union or other protected concerted activity).The GC notes that under the new test the applicable cba must explicitly authorize the arbitrator to decide the statutory issue before deferral is appropriate. This authorization can take the form of either language in the cba or through the parties' separate agreement. Given that arbitration is a consensual process, the GC notes that under the Babcock decision:

... a party will retain the option of adjudicating a statutory claim before the Board in the event the arbitrator denies the grievance where the collective-bargaining agreement is silent as to the statutory right and the party refused to authorize arbitration of the claim in the particular case. 

The memo also notes that the Babcock standard now requires that the arbitrator have been presented with and must have "actually considered" the statutory issue to warrant deferral. This is contrary to the previous test which required only that the arbitrator "in some fashion" have considered the facts relevant to both the statutory and contractual claim. Under the new test:

In order to show that the arbitrator actually considered the statutory issue, the Board will require that the arbitrator “identified that issue and at least generally explained why . . . the facts presented either do or do not support the unfair labor practice allegation.”

Upholding a dismissal under a just cause analysis will not, standing alone, be a basis for deferral.

Finally, the arbitrator's award must be "reasonably permitted" under Board law. This is in contrast to the previous test of whether the award was "clearly repugnant" to the Act or was "palpably wrong." While the arbitrator need not rule exactly as the Board might, the award must reach a result a "decision maker reasonably applying the Act could reach."

The memo also addresses the issue of deferral to grievance settlement agreements and notes the timeline for implementing the new standards. 

Update: NLRB General Counsel Peter Robb has issued a memo (GC Memo 19-03) concerning the policy for deferral of unfair labor practice charges to the parties grievance/arbitration procedures under Dubo Manufacturing Company. The memo notes his disagreemens with the extension of the Board’s Babcock Decision (as well as his disagreement with that decision) to Dubo deferrals. The memo notes:

The current General Counsel believes that Memorandum GC 15-02 was incorrect in that regard and that, by its own terms, the Babcock decision does not apply to Dubo deferrals. Because
 Babcock did not modify Dubo deferral, which is supported by different rationales than those supporting Collyer deferral, the General Counsel wishes to reaffirm the role of Dubo in the administration of the Act, and to clarify the circumstances and procedures applicable to Dubo deferrals. Accordingly, contrary to the instruction set forth in Memorandum GC 15-02, Regions should continue to defer under Dubo Section 8(a)(1) and (3) cases meeting the standards for deferral set forth herein, and should otherwise consider Dubo deferral in any Section 8(a)(1), (3) and (5) and Section 8(b)1(A) and (3) case where the allegations of the charge fall within its scope and the Charging Party or individual grievant has previously filed a grievance in a contractual process leading to binding arbitration.