The National Labor Relations Board recently issued more good news for unionized employers. In a guidance memorandum last week, the Board’s General Counsel announced an updated approach that will help employers avoid litigating unfair labor practice charges filed by unions or union-represented employees who have filed grievances regarding the same underlying dispute.
As background, in 2014, the Board imposed several additional requirements for an employer to defer an unfair labor practice charge to a grievance-arbitration procedure and, thus, postpone or categorically avoid having to litigate the charge. In this 2014 decision, Babcock & Wilcox Construction Co., the Board expressly imposed the new requirements for specific types of cases, i.e., cases involving alleged violations of Sections 8(a)(3) and 8(a)(1) of the National Labor Relation Act where the union and employee have not yet filed a grievance regarding the dispute at issue, or where an arbitrator has issued a decision. In other words, the Board expressly applied the new Babcock requirements to Section 8(a)(3) and 8(a)(1) claims eligible for “pre-arbitral deferral” under the Board’s CollyerInsulated Wire doctrine or such claims eligible for “post-arbitral deferral” under the Board’s Spielberg Manufacturing doctrine. This decision imposed several types of burdens on employers, such as by enabling unions to “block” deferral in many situations.
The Babcock decision did not, however, impose these new requirements on cases where the union and employee had filed a grievance by the time the employer requested deferral but an arbitrator had not yet decided that grievance, i.e., cases eligible for deferral under the Board’s Dubo Manufacturing doctrine. Although the Board did not apply these new requirements to Dubo deferral cases, the Board’s prior General Counsel subsequently “assumed” in a 2015 memorandum that the new requirements did extend to Dubo cases, and therefore took that position. Thus, for several years, employers faced the burden of overcoming additional obstacles in order to defer an unfair labor practice charge to arbitration in these situations.
Last week, however, the Board’s new General Counsel instructed Board officials to follow a new approach. First, the General Counsel instructed Board officials not to apply the burdensome Babcock requirements to cases eligible for Dubo deferral. Rather, he created a more evenhanded standard that focuses on whether the union has the ability to process the grievance to arbitration, rather than on whether the union agrees or desires to do so. He also described in detail the new analysis that Board officials should follow in this situation.
Second, as an important sign of potential future developments, the General Counsel wrote that he “believes that Babcock was wrongly decided and should be reexamined by the Board.” Given that the Board’s new Republican majority was likewise appointed by the Trump administration, and given that the Board’s new majority frequently views issues the same as the General Counsel, this strongly signals that the Board may reconsider Babcock or other deferral issues in the near future.