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.
--Jon Nadler, Philadelphia