collective bargaining agreements.
In brief, Babcock now shifts to the
party seeking deferral the burden not
only of showing that the arbitration
proceedings were "fair and regular" and
that the parties agreed to be bound by
the award, traditional Spielberg and Olin
requirements not affected by Babcock; but
also that:
authorized by the parties to decide the
unfair labor practice issue;
and considered the "statutory issue"
(or was prevented from doing so by the
party opposing deferral);
the award.
by the Board much less certain, or even
likely, going forward.
of Babcock
now show that the arbitrator was
explicitly authorized to decide the
unfair labor practice issue, parties may
wish to consider the following steps to
convince the Board to defer to arbitration
awards under the Babcock standard: (a)
incorporate the authority into a collective
bargaining agreement (and parties with
existing contracts might well consider
renegotiating their contracts to give
arbitrators the authority to determine the
statutory issues); or (b) grant arbitrators
case-by-case authorization to do so.
arbitrator poses certain risks. As
arbitration awards are virtually never
overturned on appeal, if a case raises a
significant issue under the Act, a party
might want that particular issue decided
by the NLRB, whose decision is subject
to judicial review, rather than by an
arbitrator. On the other hand, a case-
by-case authorization gives a union veto
power in any particular case, and it is
often the union that benefits by getting
"two bites at the apple," and, at least
in the Board proceeding a free ride
investigation and no-cost prosecution.
assume...merely from the fact that an
arbitrator upheld a discharge under a
`just cause' analysis, that the arbitrator
understood the statutory issue and had
considered (but found unpersuasive)
evidence tending to show unlawful
motive" (GC Memo 4); a party seeking
deferral must explicitly present the
statutory issues, on the record, to the
arbitrator. It could do so, for example,
by: (a) articulating the statutory issue
in the initial submission to arbitration;
(b) reiterating the issue in opening and
closing statements; and (c) addressing
the issue, and summarizing the evidence
submitted, in a post-hearing brief.
Ahead
decades of well-settled practice, the
NLRB's new post-award deferral standard
poses practical problems for the future,
among them:
circumvent their contractual grievance
procedure entirely by filing unfair
labor practice charges when they
believe they can fare better before
the NLRB;
party that loses in arbitration to oppose
post-award deferral and take a second
"bite of the apple" at the Board;
become more time consuming and
expensive as parties, counsel and
arbitrators spend time addressing
underlying unfair labor practice issues
in order to avoid duplicative litigation;
while arbitrators figure out what is
required of them in the way of finding
and interpreting NLRB "law," and try
to craft awards that comply with the
NLRB's new standard.
nlrb.gov/link/document.aspx/09031d4581c0c5cf, ("GC
Memo").
she was "presented with and considered the statutory
issue," the party urging deferral must show that the
"arbitrator identified the issue and at least generally
explained why he or she finds that the facts presented
either do or do not support the unfair labor practice
issue." (GC Memo 4)
statutory principles that would govern the Board's
decision," meaning that the arbitrator need not rule
exactly as the NLRB might have ruled; "[r]ather the
award need only reach a result a `decision maker
reasonably applying the Act could reach." (GC Memo 7)