NLRB Changes Standard – Two Chances to Protect Employee Rights

May 5, 2015

A decision issued last week by the National Labor Relations Board significantly changed the “deferral standard” that was used by the NLRB when considering whether a grievance arbitration award properly addressed the protection of employee rights to communicate about union activities. 

In the recent decision of Babcock Wilcox Construction Co., Inc. the NLRB decided that it will apply a new standard if it is considering whether a grievance arbitration award properly protects the Section 7 rights of an employee under the National Labor Relations Act. Under the previous standard, the NLRB would defer an issue to grievance arbitration and rely upon a grievance arbitration award between the employer and the union if the issue in the arbitration award was “factually parallel” to any claim of an unfair labor practice for violating Section 7 rights. In other words, the NLRB would, with some regularity, defer to a grievance arbitration award and not pursue a separate unfair labor practice charge alleging a violation of employee rights. The employer would therefore litigate a case once before the grievance arbitrator and have a decision made as to whether or not the conduct properly alleged a violation of Section 7 rights.

Under the new standard, an employer may have to litigate a claim of violation of Section 7 rights in two forums. One forum would be the grievance arbitration process and the other forum would be an unfair labor practice proceeding before the NLRB. The new standard adopted by the NLRB will require the employer to prove that the NLRB should properly defer an unfair labor practice claim to arbitration by showing that the statutory issue was properly presented to the arbitrator and the arbitrator considered the statutory requirements for an unfair labor practice charge in the grievance arbitration proceeding. In other words, the employer will have to show that the case was properly litigated under the unfair labor practice/Section 7 rights criteria before the grievance arbitrator, otherwise the NLRB will continue to pursue a claim against the employer even though the issue has already been litigated in a grievance arbitration forum. This means employers may have to litigate a matter twice in order to prove they did not violate an employee’s rights. 

This adds another tool to employees and their union representatives for bringing a claim against the company. The claim can be litigated in the grievance arbitration forum and the NLRB unfair labor practice forum at the same time or sequentially depending upon the various schedules. These types of cases often arise when a company is dealing with discipline against a local union steward with the union alleging that the employee was being disciplined or terminated because of their union activities. This may result in a more “protected” status for employees who serve as union stewards.

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