NLRB Implements Limits on Deferral to Arbitration

Following its December 2014 decision in Babcock & Wilcox, upending decades of precedent and limiting the circumstances in which the NLRB will defer to arbitration proceedings between and employer and a union, the NLRB General Counsel has issued guidance as to how this change will be implemented.

Among other changes, the NLRB now requires the party arguing that deferral should apply now has the burden of proof on this issue.  In addition, the Board will require an employer to litigate an issue twice -- once in arbitration, and again before the NLRB -- unless the party urging deferral can prove not just that the arbitrator considered the same set of facts and issues that the NLRB would consider, but that the arbitrator actually considered and ruled upon the "statutory" issue under the NLRA.  Moreover, the NLRB now will review whether it agrees with the legal conclusions of the arbitrator, by considering whether Board law "reasonably permits" the arbitrator's decision.

As a result, both unions and employers will be deprived one of the primary benefits of arbitration -- fast and efficient resolution of disputes -- and instead will be required to devote additional resources to litigating disputes on two fronts, over a longer period of time.

--Jonathan Nadler

--Jon Nadler, Philadelphia

ADA Duty to Accommodate Applies to Drug Testing

The EEOC recently announced a six-figure settlement and consent decree with Kmart in a case that underscores the importance of considering the duty to provide reasonable accommodations in every aspect of employee relations.  According to the EEOC's press release, the case involved a job applicant's claim that a medical condition prevented him from providing a urine sample for a mandatory pre-employment drug screen, and that he was not offered the opportunity to submit to alternative methods of testing.  EEOC also obtained significant injunctive relief though the settlement, designed to ensure that reasonable accommodations (such as the option to submit to blood, hair, or saliva testing) are made available where medically necessary.

--Jonathan Nadler

--Jon Nadler