Arbitration Awards May Alter the Dynamics of
Labor Arbitration in the U.S.
or the "Board") Chairman, William B.
Gould IV, noted two decades ago that:
courts have struggled with a problem
endemic to American labor law....
the uneasy coexistence between
public law under the ... [National
Labor Relations Act (the "Act")]
and privately negotiated grievance-
arbitration procedures involving
the interpretation of collective
bargaining agreements.
the pragmatic accommodation of the
twin elements of American labor policy
enforcement of the Act on behalf of the
public by the Board, and a national policy
favoring arbitration to resolve private
labor disputes.
The Board's December 2014 decision
in Babcock & Wilcox Construction Co.,
361 NLRB No. 132, 2014 NLRB LEXIS
964 (2014), which overturned its long
established standard for deferring to
arbitration awards, may well test and
our national labor policy that favors
arbitration.
for Deferral to Arbitration
its hand as a matter of discretion, and,
pursuant to a doctrine announced in
Spielberg Mfg. Co., 112 NLRB 1080
(1955), deferred to arbitration awards
involving the same underlying facts
as the contemporaneous unfair labor
practice claims.
The Board required only that the
party seeking deferral show that (a) the
arbitration proceedings appeared to have
been fair and regular; (b) all parties
agreed to be bound by the award; and
that (c) the arbitrator's decision was not
"clearly repugnant" to the purposes and
policies of the Act. "Clearly repugnant,"
subsequent NLRB decisions explained,
meant only that the arbitration award had
to be "`palpably wrong," i.e., the decision
was not susceptible to any interpretation
consistent with the Act.
the arbitrator had to have considered the
unfair labor practice requirement, there
announcing that it would be satisfied,
and would defer if the contractual and
statutory issues were factually parallel
and the arbitrator was presented generally
with the facts relevant to resolving the
unfair labor practice.
This standard assured deferral to the
arbitration award in most cases in which
it was sought.
Standard, Babcock Overturns
60 Years of Precedent
existing post-arbitral award deferral
standard based on its belief, according to
the NLRB's General Counsel (the "GC")
balanced the protection of employee
rights under the Act the unfair labor
practice issue with the national policy of
encouraging arbitration to resolve disputes
he leads the firm's labor practice. He has for more than 40
years advised a broad range of national and international
corporations in all aspects of employment law, with clients in
the entertainment, investment and real estate development
fields, as well as numerous not-for-profit organizations.
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