In 2014 the Obama Board imposed several additional requirements for an employer to defer an unfair labor practice charge to a grievance-arbitration procedure and, thus, postpone or avoid litigating the charge. This decision imposed several types of burdens on employers, like allowing unions to “block” deferral in many situations.
The decision did not however impose these new requirements on cases where the union and employee had filed a grievance by the time the employer requested deferral but an arbitrator had not yet decided that grievance, i.e., cases eligible for deferral under the Board’s Dubo Manufacturing Doctrine. Although the Board did not apply these new requirements to Dubo deferral cases, the Board’s prior general counsel subsequently “assumed” in a 2015 Memorandum that the new requirements did extend to Dubo cases, and therefore took that position. Thus, for several years, employers faced the burden of overcoming additional obstacles in order to defer an unfair labor practice charge to arbitration in these situations.
The Board’s new General Counsel recently instructed Board officials to follow a new approach. First, instead of applying the burdensome Babcock requirements to cases eligible for a Dubo deferral, officials should focus on whether the union has the ability to process the grievance to arbitration, rather than on whether the union agrees or desires to do so. He detailed the new analysis the Board officials should follow in this situation.
The General Counsel wrote that he “believes that Babcock was wrongly decided and should be reexamined by the Board. Given that the Board’s new majority and the General Counsel were both appointed by the Trump Administration, and given that the Board’s new majority frequently views issues the same as the General Counsel, this strongly signals that the Board may reconsider Babcock and other deferral issues in the near future.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.