The National Labor Relations Board has had a busy December with four major new developments. We have already reported on two of the four: Purple Communications, involving employee access to employer email systems for union solicitation during non-working time, and the "quickie election" regulations. Here is the third: On December 15, the Board decided 3-2 to change its 30-year standard for deferring to an arbitrator's award under a collective bargaining agreement when an unfair labor practice charge is filed concerning essentially the same dispute. Historically the Board, as a matter of its discretion, would defer to an arbitration award where (1) a contractual issue under a collective bargaining agreement was factually parallel to an issue in an unfair labor practice charge, (2) the arbitrator was presented with relevant facts that allowed him or her to resolve the issue, and (3) the arbitration award was not clearly repugnant to the National Labor Relations Act.

Under the new standard announced last week, the party arguing for deferral must show the following:

  • That the arbitrator was explicitly authorized to decide the unfair labor practice issue (this element would probably need to be in the collective bargaining agreement itself or in the submission to the arbitrator);
  • That the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and
  • That Board law reasonably permits the award.

The two Republican Members of the Board, Harry Johnson and Philip Miscimarra, dissented. Member Miscimarra commented that "if parties do not rewrite their collective bargaining agreements, the majority's new standards make two track arbitration/ Board litigation a near certainty, thereby eliminating the benefits previously afforded by 'final and binding' arbitration." Likewise, Member Johnson commented that the new policy "virtually guarantees the proliferation of bifurcated, prolonged litigation in many more cases." But is that exactly what the current Board majority wants as a policy matter -increased, prolonged litigation to provide more leverage to organized labor? It certainly seems like it!