On Friday, February 7, and Monday, February 10, the National Labor Relations Board issued two notices calling on interested parties to submit briefs to address three issues arising from two separate cases currently pending before the Board: deferral to arbitration awards, the Board’s jurisdiction over self-identified “religiously affiliated educational institutions”, and the status of university faculty members as employees under the National Labor Relations Act.

Deferral to Arbitration Awards

In Babcock & Wilcox Construction Inc., (Case No. 28-CA-022625), the Board will decide whether or not it should "continue, modify or abandon the Olin/Spielberg standard for deferral to arbitration awards."

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 purpose 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.

Despite this long-standing standard, the NLRB’s General Counsel, following in the footsteps of the former Acting General Counsel Lafe Solomon’s efforts to narrow the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations, has asked the Board to adopt a different standard that would place the burden of proof on the party seeking deferral to demonstrate 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.

As we noted in 2011, if the Board adopts the General Counsel’s proposed standard, it will drastically change how the NLRB processes unfair labor practice cases where the underlying merits are subject to pending or past grievance and arbitration proceedings as 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. Accordingly, Employers would have to 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.

Any party interested in submitting a brief should review the NLRB’s Notice and Invitation to File Briefs for more information. Briefs are due March 25, 2014.

Jurisdiction Over Religious Universities and Certain Faculty Members

In Pacific Lutheran University (Case No. 19-RC-102521), the Board seeks briefs on two issues – one affecting religious universities and the other all private universities:

  1. whether a religiously-affiliated university is subject to the Board’s jurisdiction, and
  2. whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.

In Pacific Lutheran, the union filed a petition to represent a unit of all non-tenure-eligible contingent faculty who taught a certain number of hours. The university asserts that the Board lacks jurisdiction because the university is a religiously-operated institution that is not subject to the Act. It also asserts that the petition relates to certain faculty that are managers, not employees, and thus not covered by the Act.

Consequently, the Board will assess what test it should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case.

Briefs in Pacific Lutheran must be filed on or before March 28, 2014. The Board’s invitation for briefs can be found here.