The NLRB's Babcock Arbitral Deferral Standard: A Woman's Plight Leads to a Changed Policy but No Remedy

By Twomey, David P. | Labor Law Journal, Fall 2016 | Go to article overview

The NLRB's Babcock Arbitral Deferral Standard: A Woman's Plight Leads to a Changed Policy but No Remedy


Twomey, David P., Labor Law Journal


I. INTRODUCTION

Employer actions may result in both a claim of a violation of employee contractual rights under the parties' collective bargaining agreement (CBA) and also a claim of a violation of statutory rights under the National Labor Relations Act (NLRA).1 For example, a union may claim that the discharge of an employee is both a violation of the parties' "just cause" provision in its collective bargaining agreement and also assert the discharge is an unfair labor practice in violation of Sections 8(a)(3) and 8(a)(1) of the NLRA.2 Where provisions of the collective bargaining agreement and sections of the NLRA both apply to a workplace dispute, should the National Labor Relations Board (NLRB or Board) be precluded from adjudicating unfair labor practice charges where the matter has been the subject of an arbitration proceeding and award?

Section 10(a) of the National Labor Relations Act expressly provides that the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award.3 And, the courts have uniformly so held.4 It is well settled that the Board has discretionary authority to establish or modify standards for deferring to arbitral decisions involving alleged violations of Sections 8(a)(3) and (1) of the NLRA.5 Some sixty years ago, in its SpielbergMfg. Co.6 decision, the Board held that it would defer, as a matter of discretion, to arbitral decisions in cases in which the proceedings (1) appear to have been fair and regular, (2) all parties agreed to be bound, and (3) the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. 7 The deferral doctrine announced in Spielberg was intended to reconcile the Board's obligation under Section 10(a) of the Act to prevent unfair labor practices with the federal policy of encouraging the voluntary settlement of labor disputes through arbitration.8 Some thirty years later, in its Olin Corp. decision the Board modified the deferral standard, holding that deferral is appropriate where the contractual issue is "factually parallel" to the unfair labor practice issue, the arbitrator was presented generally with the facts relevant to resolving that issue and the award is not "clearly repugnant" to the Act.9

In 2014, contending that the Olin deferral standard is inadequate to ensure that employees' statutory rights are protected in the arbitral process, the General Counsel of the NLRB urged the Board to adopt a more demanding standard in Sections 8(a)(3) and 8(a)(1) cases in the Board's Babcock & Wilcox Construction Co. Inc. case.10 The Board majority subsequently announced a new standard for deferring to post-arbitral decisions in Section 8(a)(1) and (3) cases, and in doing so, the Board modified its standard for prearbitral deferrals and deferral to grievance settlements.11 The Board declared that its new standard will apply only prospectively. Thus, the Board applied the existing Spielberg/ Olin standard to the facts of the Babcock & Wilcox case.12

II. THE BABCOCK & WILCOX DECISION: STILL APPLYING THE EXISTING SPIELBERG/OLIN STANDARD

A.The Factual Summary and the Arbitration Decision

Charging party Coletta Beneli was employed by Babcock & Wilcox Construction Company (Babcock) as a forklift and crane operator at the Arizona Public Service (APS) coal power plant in Joseph City Arizona where Babcock provided field construction and maintenance service for APS.13 She served as union job steward there for the International Union of Operating Engineers Local 428 (IUOE).14 In February and March of 2009, Beneli challenged several of Babcock's managerial actions as violative of the CBA.15 Only a few hours before suspending Beneli, Babcock's project Superintendent Christopher Goff told the Union's assistant business manager Shawn Williams that he wanted to discharge Beneli because she was raising contractual issues and trying to tell the company what it was supposed to pay employees. …

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