Jurisdiction of the NLRB Over Arbitral Matters Typical claims of violation of NLRA and CBA – Discharge of an employee who is an elected local union officer violated “just cause” provision and 8(a)(1) –(3) – Employer unilateral change in TCE violated CBA and 8(a)(5) – Union has waived right under Sec. 8(a)(5) to information

Questions Does Board have jurisdiction if parties have agreed in CBA that all disputes will be addressed through the grievance procedure and arbitration? Does the existence of a CBA remove the Board from its statutory jurisdiction? – If not, may the Board defer to the parties by withholding a decision pending an arbitration award? If so, what standards should the Board use to – Defer to the grievance and arbitration process – Defer to the arbitration award

Board and Arbitral Jurisdiction Carey v. Westinghouse, 375 U.S. 261, 55 LRRM 2042, 1964 – Employer refused to arbitrate a dispute over the union that would be assigned work, alleging it was a representation issue under NLRA – S.C. – Board processes legally superior to agreed upon processes – Sec. 10(a) But no reason not to arbitrate, as NLRA encourages collective bargaining and arbitration part of collective bargaining Board may invoke its superior authority if necessary

Board and Arbitral Jurisdiction Acme Industrial, 385 U.S. 431, 64 LRRM 2069, 1967 – Board properly took jurisdiction over an informational dispute that arose during a grievance over work removal and found an 8(a)(5) violation – Rejected employer argument that the informational dispute must be resolved by the arbitrator – Board not deciding merits of dispute Supports arbitration process Consistent with American Mfg., Warrior & Gulf, and Carey v. Westinghouse

Board and Arbitral Jurisdiction NLRB v. Strong Roofing and Insulating Co., 393 U.s. 357, 70 LRRM 2100, 1969 Employer refusal to pay fringe benefits under a multi-employer association of which employer was a member when agreement negotiated an unfair labor practice under 8(a)(5) and may be remedied by a Board order although agreement contained an arbitration provision – “The challenge of the employer, in brief, is that ordering the payment of fringe benefits reserved in the contract inserts the Board into the enforcement of the collective bargaining agreement, contrary to the policy and scheme of the statute. Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not "affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise...." 10 (a)... Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre- empting the other.... Arbitrators and courts are still the principal [393 U.S. 357, 361] sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts..... It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. [393 U.S. 357 at ]

Board and Arbitral Jurisdiction Does Board have jurisdiction if parties have agreed in CBA that all disputes will be addressed through the grievance procedure and arbitration? – Yes - Board has authority to exercise jurisdiction over UFLP charges arising under CBA with a grievance and arbitration provision – Per Section 10(a) of NLRA Does the existence of a CBA remove the Board from its statutory jurisdiction? – No

Board Deferral to Arbitration Pre-Arbitral Deferral – What standards should the Board use to defer a meritorious UFLP charge to the arbitration process? Post-Arbitral Deferral – What standards should the Board use

8 Collyer Insulated Wire Employer made unilateral changes in TCE, claiming that CBA gave it authority to do so – Union argument – UFLP in violation of 8(a)(5) – Employer argument – CBA issue for arbitration Board does not abandon its statutory authority by deferring to grievance procedure and arbitration where – dispute arises from contract – there is machinery in contract to resolve dispute Furthers statutory policy of encouraging parties to resolve own disputes – Sec. 203(d) of LMRA Arbitral expertise in contact interpretation matters more appropriate for deciding some disputes than Board expertise in statutory matters Dissent – only Board has expertise and legal authority to interpret NLRA

9 Collyer (cont.) Collyer criteria for pre-arbitral deferral (under what circumstances will the Board defer a case to arbitration?) – non-repudiation of CBA – willingness to arbitrate/dispute must arbitrable – dispute must center on CBA Board Retains Jurisdiction Scope of Deferral – 8(a)(5)/8(b)(3) cases involves interpretation of parties’ rights – 8(a)(3)/8(b)(1) cases deferral - National Radio (1972) no deferral - General American Transportation (1977) deferral - United Technologies (1984) Involves interpretation of individual rights Board Retains Jurisdiction Over Case – Arbitrator must submit a copy of award to NLRB

Examples of Situations in Which Board Declined to Defer No stable CB relationship – Employer signed an agreement with an uncertified union (Mountain State Const. Co., 203 NLRB 1085, 1973) – Employer attempted to place restrictions on the composition of the Union's bargaining and bypassed union employees new contract terms exceeding those offered during duly constituted negotiating sessions (AMF, Inc., 219 NLR 902, 1975) Charge of employer retaliation for employee grievance filing Union decertified Employer to arbitrate Employer asserts case nonarbitrable Case not covered by CBA

Examples of Situations in Which Board Declined to Defer (cont.) Dispute not central to CBA – Bargaining unit accretion, union alleging agreement covers additional employees – Dispute among two unions regarding post- reorganization representation – Grievance over right of employees to distribute literature where such distribution not addressed in CBA – Employer refusal to supply information Based on 8(a)(5)

Examples of Situations in Which Board Has Generally Deferred Employer unilateral action based on “reasonable rules” language in management rights provision Employer discharge of union official under “just cause” provision

Post-Arbitral Deferral Spielberg Manufacturing Co., 112 NLRB 1080, 36 LRRM 1152, 1955 – Following arbitration award in which arbitrator refused to reinstate strikers accused of picket line misconduct, employees filed a UFLP charge alleging an employer violation of 8(a)(1) –(3) – Board said it will defer to arbitration award if award meets following criteria Proceedings fair and regular Parties agreed to be bound Decision not “repugnant” to NLRA – Raytheon Fourth Criterion, 140 NLRB 883, 53 LRRM 1129, 1963 UFLP must have been considered by arbitrator Spielberg Rationale – Promotion of industrial peace by encouraging CB – Grievance and arbitration a substitute for industrial conflict – Board should be “hospitable” to arbitration as “part and parcel of collective bargaining process” unless proceedings flawed

Criterion: UFLP Considered by Arbitrator “Factual Parallelism” (Olin Corporation, 268 NLRB 573, 115 LRRM 1056, 1984) – Contract issue and UFLP charge “factually parallel” – Arbitrator was presented with facts relevant to resolving UFLP charge – Arbitrator has no obligation to expressly consider UFLP issue Differences between contract and statutory standards should be resolved using Spielberg clearly repugnant standard

Criterion: Fair and Regular Proceedings One of parties not represented Arbitration tribunal hostile to grievant – Generally occurs where arbitration machinery involves a joint labor-management committee

Criterion: Not Repugnant to NLRA Arbitrator’s decision must not be “palpably wrong” under NLRA – Arbitrator’s decision need not be that NLRB would have made – Examples of “palpably wrong decisions” Arbitrator upholding discharge for making statements that included criticism of union leadership as statements protected by Sec. 7

Settlements and Spielberg Board will examine settlements on deferred cases to assure they meet all standards – Settlement reached without grievant’s participation or agreement to be bound violated “Fair and Regular Proceedings” standard? (Titanium Metal Corp., 340 NLRB No. 88, 173 LRRM 1305, enforcement denied as an abuse of discretion 392 F.3 rd 439, D.C. Cir., 2004)