The NLRB General Counsel’s latest effort to limit the effect of arbitration awards, even though they may be acceptable to the charged party against whom related unfair labor practice charges are pending before the agency (often the employer), has come up short.

The NLRB Acting General Counsel’s 2011 “Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements” (Memorandum 11-05, January 20, 2011), announced the GC “will urge the Board to modify its approach in post-arbitral deferral cases” to switch  the burden of proof from the General Counsel to the party urging deferral.  In other words, the party advocating reliance on an arbitrator’s award to dispose of related unfair labor practice charges – frequently an employer – would have to show the award meets the Board’s standards for acceptance, instead of requiring the Board’s prosecutor to show that it does not, as is the case now.

The Board has turned down its General Counsel’s invitation – at least for now.  The rejection came in  the Board’s decision to defer to an arbitrator’s award reinstating an employee without backpay in Shands Jacksonville Med. Ctr. Inc., 359 NLRB No. 104 (Apr. 26, 2013).  There, the Acting General Counsel asked the Board to require that the employer, which had urged agency approval of the award to dispose of a similar Board charge, to show that “(1) the contract had the statutory rights incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.” 

But the Board found the Acting General Counsel had not also proposed revisiting agency precedent on  when an arbitration award is “clearly repugnant” to the Act.  This precedent, it said, spoke directly to the “crux” of this case – where the arbitrator actually found in the grievant’s favor on the merits and ordered her reinstatement, but denied her backpay on grounds that were not “palpably wrong.”  Accordingly, “[g]iven those circumstances” the Board “decline[d] to pass on the Acting General Counsel’s proposal in this case.”

Without a clear ruling from the Board on changing the burden of proof, healthcare employers should expect the Acting General Counsel to continue his  efforts to press for agency acceptance of GC Memorandum 11-05.with post-arbitration deferral cases.