The Acting General Counsel yesterday issued General Counsel Memorandum No. 11-05, narrowing the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations. Last year, In Operations Memorandum 10-13(CH), prior General Counsel Ronald Meisburg identified tensions between the Board’s Spielberg/Olin deferral standards, D.C. Circuit Court of Appeals jurisprudence, and the recent Supreme Court case, 14 Penn Plaza, LLC v. Steven Pyett, 129 S. Ct. 1456 (2009). This earlier Memorandum invited a re-evaluation of the Board’s standards in light of these decisions.
Acting General Counsel Solomon’s Memorandum now announces a new approach:
Specifically, in Section 8(a)(1) and 8(a)(3) statutory rights cases, the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator. This includes not only cases involving Section 8(a)(1) and 8(a)(3) discipline and discharge, but also all other cases involving Section 8(a)(1) conduct that is subject to challenge under a contractual grievance provision.
The Memorandum urges the Board to impose the burden of proof for deferral upon the party urging deferral:
Thus, the party urging deferral must demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue 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 should, as now, defer unless the award is clearly repugnant to the Act.
Finally, the Memo acknowledges that changes in Regional Office investigation procedures are necessary in light of these developments:
To prevent any such difficulties in future cases raising allegations of Section 8(a)(1) and 8(a)(3) that will be deferred under Collyer, particularly as a heightened standard would likely make at least some additional arbitral awards inappropriate for deferral, Regions should take affidavits from the Charging Party, and from all witnesses within the control of the Charging Party, before they make their “arguable merit” determination in considering Collyer deferral.
Only then, if the Region determines there is arguable merit to the charge and the other Collyer requirements are met, should the Region defer the charge. If the Region concludes the charge is without merit, of course, it should dismiss the charge, absent withdrawal.
In all pending and future cases where the Region has deferred a charge to arbitration under Collyer, when the arbitral award issues, the Region must review the award to determine whether post-arbitral deferral is appropriate. The Region should determine if the party urging deferral can demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue; and (3) the arbitral award is not clearly repugnant to the Act. Upon making its determination, the Region should submit the case to the Division of Advice, along with the Region’s recommendation as to whether to defer.
As a result, even in cases where the underlying merits are subject to pending or past grievance and arbitration proceedings, the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met. Employers must adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and, their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.