Deferral to arbitration of charges raising issues under the "contract coverage" test announced in MV Transportation, Inc. 368 NLRB No. 66

In  MV Transportation, Inc., the NLRB decided that it would no longer apply the "clear and unmistakable waiver" test in resolving charges that an employer had made unilateral changes in matters addressed in a collective bargaining agreement.  Instead, it would follow the "contract coverage" standard applied by a number of circuit courts. In a press release announcing its decision, the Board summarized the distinction between the two tests.

Under the “contract coverage” or “covered by the contract” standard, the Board will examine the plain language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, the Board will honor the plain terms of the parties’ agreement and the employer will not have violated the Act by making the change without bargaining. If the agreement does not cover the employer’s disputed action, the employer will have violated the Act unless it demonstrates that the union waived its right to bargain over the change or that it was privileged to act unilaterally for some other reason.
Under the now-abandoned “clear and unmistakable waiver” standard, the Board would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue.

The General Counsel's Division of Operations Management has now issued guidance to the Regions concerning deferral of charges that raise issues potentially impacted by that decision. Memorandum OM 20-03.  Per the Memo, the Regional Office should first determine whether there has been an arguable violation of the Act, i.e. by a showing of a "material, substantial and significant change in a mandatory subject of bargaining without notice and a meaningful opportunity to bargain." If the Region concludes that there is no such violation the charge should be dismissed.

If there is an arguable violation, and the Union has filed a grievance over the same issue, the charge should be deferred under the Dubo procedures. Memorandum GC 19-03 Deferral under Dubo Manufacturing Company

If the Union has not filed a grievance, but the employer has committed to waiving procedural defenses to the filing and arbitrating of a grievance the Region may also consider deferral.

However, if both parties oppose deferral the Region should complete its investigation of the charge, including any defense that a proviso of the cba privileges the action, and the case should be submitted to the Division of Advice.