By: Martin H. Malin
Professor of Law, Co-director Institute of Law & the Workplace, Chicago Kent College of Law
In unionized workplaces, the same event can give rise to a grievance, alleging that the employer’s action violated the collective bargaining agreement (CBA), and an unfair labor practice charge, alleging that it violated the National Labor Relations Act (NLRA). For example, an employer might change its attendance control plan and the union may claim it violated the cba and, because the employer failed to bargain the change with the union, breached its duty to bargain in good faith in violation of section 8(a)(5) of the NLRA. An employer might discipline or discharge an employee and the union may claim that the action lacked just cause in violation of the CBA and was motivated by a desire to retaliate against the employee for conduct protected by the NLRA and thus violated sections 8(a)(1) or 8(a)(3) of the NLRA. In such cases, the NLRB often defers the unfair labor practice charge to the CBA’s grievance and arbitration procedure.
Questions of deferral arise under three different circumstances. First, and least controversial, are cases where the union has filed a grievance and an unfair labor practice charge. In such cases, the NLRB stays processing of the charge and awaits the outcome of the grievance proceeding. This is commonly referred to as “Dubo deferral,” after Dubo Manufacturing Corp., 142 N.L.R.B. 431 (1963), the case in which the NLRB announced the practice. Second, the NLRB may consider the charge after an arbitrator has ruled on the grievance. In such cases, the NLRB may defer to the arbitrator’s ruling and dismiss the unfair labor practice charge. This is commonly referred to as “Spielberg deferral,” after Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the case in which the NLRB announced the practice. Finally, the issue may arise where no grievance has been filed. In such cases, the NLRB may refrain from processing the charge until the union takes its complaint through the CBA’s grievance and arbitration procedure. This is commonly referred to as “Collyer deferral,” after Collyer Insulated Wire Co., 192 N.L.R.B. 837 (1971), where the NLRB first announced the practice, and the NLRB is said to “Collyerize” the unfair labor practice charge.
The Collyer case itself involved a failure to bargain claim and NLRB deferral in such section 8(a)(5) cases has become generally accepted. There has been considerable controversy, however, with respect to whether the NLRB should Collyerize section 8(a)(1) and 8(a)(3) cases involving allegedly discriminatory discipline and discharge. In National Radio Corp., 198 N.L.R.B, 527 (1972), the NLRB extended Collyer to 8(a)(1) and 8(a)(33) cases, but in General American Transportation Corp., the NLRB reversed itself and held it would not Collyerize such cases, only to overrule itself again in United Technologies Corp., 268 N.L.R.B. 557 (1984).
In Spielberg, the NLRB held it would defer to the arbitration award as long as the parties had agreed to be bound, the proceedings were fair and regular, and the result was not clearly repugnant to the NLRA. Initially, the NLRB held it would not defer if the arbitrator did not consider the unfair labor practice claim. In Electronic Reproduction Service Corp., 213 N.L.R.B. 757 (1972), the NLRB held it would defer to such arbitration awards except under unusual circumstances that show bona fide reasons for the charging party’s failure to present evidence of the unfair labor practice in the arbitration other than a desire to litigate the same facts in two different forums. The NLRB reversed itself in Suburban Motor Freight, 247 N.L.R.B. 146 (1980), only to reverse itself again in Olin Corp., 268 N.L.R.B. 573 (1984), where the NLRB held it would defer when the grievance was factually parallel to the unfair labor practice charge and the arbitrator was presented with facts generally relevant to the unfair labor practice.
In Babcock and Wilcox Construction Co., 361 N.L.R.B. 1127 (2014), the NLRB overruled Olin. It held it would defer to an arbitration award in 8(a)(1) and 8(a)(3) cases only where the parties authorized the arbitrator to consider the unfair labor practice and the arbitrator was presented with and considered the unfair labor practice or was prevented from doing so by the party opposing deferral. The NLRB placed the burden of proof on the party seeking deferral.
In Babcock and Wilcox, the NLRB also indicated that it would defer 8(a)(1) and 8(a)(3) charges under Collyer and Dubo only where the parties expressly authorized the arbitrator to consider the unfair labor practice either through a specific authorization for that case or through a provision in the CBA such as a provision prohibiting discrimination for union activity.
On December 23, 2019, in United Parcel Service, Inc. (UPS), 369 N.L.R.B. No. 1 (Dec. 23, 2019), the NLRB overruled Babcock and Wilcox and returned to its deferral standards under Olin. The NLRB criticized Babcock and Wilcox for presuming that there was an excessive risk that arbitrators would not consider statutory issues unless they were expressly authorized to do so and for what the NLRB called an “implicit distrust of arbitration.” The NLRB reasoned that when parties conclude CBAs, they affect individual NLRA rights and make their grievance and arbitration processes “the primary mechanism for resolving everyday employment disputes even when those disputes may arguably present issues of statutory protection.” The NLRB also criticized Babcock and Wilcox for placing the burden of proof on the party seeking deferral. The NLRB held that deferral was an affirmative defense that must be raised by the party seeking it but that the party need only prove that there was an arbitration award issued as that will shift the burden to the party resisting deferral to prove that deferral is not appropriate under the Olin standards reinstated by the NLRB’s UPS decision.
The NLRB further rejected the Babcock and Wilcox positions with respect to Collyer and Dubo deferral. The NLRB indicated that it would return to its prior decision in United Technologies with respect to Collyer deferral.
A notable aspect of the UPS case was that the arbitration award to which the NLRB deferred was not issued by a neutral arbitrator. The case concerned the discharge by UPS of a dissident within the Teamsters Union. The charging party had actively campaigned against ratification of the most recent Teamsters-UPS national CBA as well as a local supplement. He also ran unsuccessfully against the incumbent business agent of his Teamsters local. At issue was his discharge for failing to download on his UPS-issued handheld device the stops on his assigned route for the day. He realized that he did not have the information after he left the facility and called to have another device with the information downloaded on it brought to him while he was on his route.
Under the Teamsters-UPS CBA, grievances were heard by a joint board consisting of two members appointed by UPS and two members appointed by the union. Only if the joint board deadlocked would a grievance be submitted to a neutral independent arbitrator.
The charging party grieved his discharge and was represented before the joint board by the business manager who had defeated him in the most recent election. The joint board unanimously denied the grievance. Its opinion merely stated, “Based on the facts presented and the grievant’s own testimony the committee finds no violations of any contract articles (sic) therefore the grievances are denied.”
Relying on Babcock and Wilcox, the administrative law judge (ALJ) declined to defer to the joint board’s decision, reasoning that it was impossible to tell whether the joint board considered the unfair labor practice charge. The ALJ then found that the discharge was in retaliation for the charging party’s activities opposing ratification of the CBA. The NLRB reversed. It rejected an argument that it should only defer to awards of independent neutral arbitrators, citing pre-Babcock and Wilcox cases where it had deferred to contractual joint boards. It further held that the charging party and general counsel had failed to prove that the proceedings were not fair and regular or that the result was clearly repugnant to the NLRA. It, therefore, deferred to the joint board decision, reversed the ALJ and dismissed the charge.
Most deferral decisions are made at the regional level. Prior to Babcock and Wilcox, Regional Directors deferred to the parties’ grievance and arbitration process routinely. Declining to defer was the exception to the norm. It is likely, in light of UPS that deferral will again become the norm at the NLRB.