This, along with some confusion as to whether the arbitrator addressed both the pay cycle and payday change, was enough for the Regional Director and the ALJ to determine that deferral was not warranted under Speilberg Mfg. and Olin Corp.because the evidence failed to reflect that facts relevant to resolving the ULP were presented, considered or decided by the arbitrator. Dissenting Chairman Pearce agreed, and focused more on arbitrator’s failure “to make any finding whatsoever” on the key issue of whether the management rights clause or other contract language authorized the employer’s unilateral actions. The Board majority worked around the arbitrator’s failing by finding that there was enough evidence within the decision to determine that he did rely upon the management rights clause, and that the arbitrator adequately considered the ULP given that the contractual issue and evidence were factually parallel to the ULP.
There are three takeaways from this decision. First, in any arbitration involving a deferred charge it is important to argue, address and get the arbitrator to rule on the issues and contract language, such as the management rights clause, at issue in the ULP. Common law reserved management rights claims will not cut it. Second, while in this case there was no agreed issue and the arbitrator just worked from the union’s position, how the issue is crafted is important. Third, note the Regional Director, an ALJ and the Board Chairman opposed deferring to the award. The Board and its Regions are scrutinizing deferral over contract disputes much more closely than in the past. Not only will this make deferral more difficult, at some point the Board may opt to revise its deferral standards similar to what it did for deferring Section 8(a)(3) matters in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014). Deferral may be an endangered species.
This blog was originally posted on www.employerlaborrealtions.com.