Babcock & Wilcox Construction Company

National Labor Relations Board - Unpublished Board Decisions

Feb 7, 2014

28-CA-022625 (N.L.R.B. Feb. 7, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BABCOCK & WILCOX CONSTRUCTION
COMPANY, INC
and Case 28-CA-022625
COLETTA KIM BENELI
NOTICE AND INVITATION TO FILE BRIEFS
On April 9, 2012, Administrative Law Judge Jay R. Pollack issued a decision in the
above-captioned case, deferring to the determination of an arbitral panel upholding the
Respondent’s discharge of Charging Party Beneli. Excepting, the General Counsel asks the
Board to adopt a new post-arbitral deferral standard in 8(a)(1) and (3) cases.
Under the existing standard, the Board defers to an arbitration award when (1) the
arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral
decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB
1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue.
The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue
is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented
generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268
NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The General Counsel asks the Board to adopt a different standard. Under his proposal,
the party urging deferral would bear the burden of demonstrating that (1) the collective-
bargaining agreement incorporates the statutory right, or the statutory issue was presented to the
arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and
applied them in deciding the issue. If the party urging deferral makes that showing, the Board
would defer unless the award was clearly repugnant to the Act.
To aid in the consideration of this issue, the Board now invites the filing of briefs
in order to afford the parties and interested amici the opportunity to address the following
questions.
1. Should the Board adhere to, modify, or abandon its existing standard for post-arbitral
deferral under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268
NLRB 573 (1984)?
2. If the Board modifies the existing standard, should the Board adopt the standard
outlined by the General Counsel in GC Memorandum 11-05 (January 20, 2011) or
would some other modification of the existing standard be more appropriate: e.g.,
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shifting the burden of proof, redefining “repugnant to the Act,” or reformulating the
test for determining whether the arbitrator “adequately considered” the unfair labor
practice issue?
3. If the Board modifies its existing post-arbitral deferral standard, would consequent
changes need to be made to the Board’s standards for determining whether to defer a
case to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971); United
Technologies Corp., 268 NLRB 557 (1984); and Dubo Mfg. Corp., 142 NLRB 431
(1963)?
4. If the Board modifies its existing post-arbitral deferral standard, would consequent
changes need to be made to the Board’s standards for determining whether to defer to
pre-arbitral grievance settlements under Alpha Beta, 273 NLRB 1546 (1985), review
denied sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987); and Postal Service,
300 NLRB 196 (1990)?
In answering these questions, the parties and amici are invited to submit empirical and
other evidence.
Briefs not exceeding 50 pages in length shall be filed with the Board in Washington, D.C.
on or before March 25, 2014. The parties may file responsive briefs on or before April 8, 2014,
which shall not exceed 25 pages in length. No other responsive briefs will be accepted. The
parties and amici shall file briefs electronically at http://mynlrb.nlrb.gov/efile. If assistance is
needed in filing through http://mynlrb.nlrb.gov/efile, please contact Gary W. Shinners, Executive
Secretary, National Labor Relations Board.
Dated, Washington, D.C., February 7, 2014
By direction of the Board:
Gary W. Shinners
Executive Secretary