NLRB Invites Briefs on Its Standards for Deferring to Arbitration Awards | Practical Law

NLRB Invites Briefs on Its Standards for Deferring to Arbitration Awards | Practical Law

On February 7, 2014, the National Labor Relations Board (NLRB) invited amicus briefs in Babcock & Wilcox Construction Inc. on the question of whether the Board should continue, modify or abandon the Olin/Spielberg standard for deferring to arbitration awards when investigating or prosecuting unfair labor practice (ULP) charges in light of a new standard proposed by the NLRB's General Counsel.  

NLRB Invites Briefs on Its Standards for Deferring to Arbitration Awards

Practical Law Legal Update 0-557-1933 (Approx. 5 pages)

NLRB Invites Briefs on Its Standards for Deferring to Arbitration Awards

by Practical Law Labor & Employment
Published on 11 Feb 2014 • USA (National/Federal)
On February 7, 2014, the National Labor Relations Board (NLRB) invited amicus briefs in Babcock & Wilcox Construction Inc. on the question of whether the Board should continue, modify or abandon the Olin/Spielberg standard for deferring to arbitration awards when investigating or prosecuting unfair labor practice (ULP) charges in light of a new standard proposed by the NLRB's General Counsel.
On February 7, 2014, the five-member panel (Board) heading the NLRB's judicial functions invited interested parties to file briefs in Babcock & Wilcox Construction Inc. (28-CA-022625), to answer the question whether the Board should continue, modify or abandon the Olin and Spielberg standard for deferring to arbitration awards.
Under the Olin and Spielberg standard, the NLRB will generally defer its investigation and prosecution of unfair labor practice (ULP) charges to arbitration awards if:
  • The arbitration proceeding was fair and regular.
  • All parties agree to be bound to the arbitrator's award.
  • The arbitral decision is not repugnant to the purposes and policies of the NLRA.
  • The arbitrator or arbitrators adequately considered the ULP issue, which requires that:
    • the contractual issue (interpretation of a collective bargaining agreement (CBA)) is factually parallel to the ULP issue; and
    • the parties presented the facts relevant to resolving the ULP issue to the arbitrator.
(Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955) and Olin Corp., 268 N.L.R.B. 573 (1984).)
For more information about the NLRB’s practices on deferring to labor arbitration awards, see Practice Note, Labor Arbitration: Interplay of the NLRB in Labor Arbitration.
The NLRB General Counsel asked the Board to adopt a new standard placing on the party urging deferral the burden of showing that:
  • The CBA incorporates the NLRA right, or the NLRA issue raised in the ULP charge was presented to the arbitrator.
  • The arbitrator correctly enunciated the applicable NLRA principles and applied them in deciding the issue.
If the party urging deferral makes that showing, under the proposed standard, the Board would defer to an arbitration award, unless it was clearly repugnant to the NLRA.
The Board seeks briefs answering four questions about whether it should modify its Spielberg and Olin standard, and, if so, how it should modify it and related standards. Briefs must be filed with the NLRB by March 25, 2014 on the NLRB E-Filing system and may not exceed 50 pages.