In recent weeks, we have commented on two recent moves by the National Labor Relations Board that have reversed long standing precedent and dramatically changed the labor law landscape: 1) a decision by the Board to open employer email systems to union organizing in some circumstances, and 2) a rewrite of its election procedures to allow “quickie” elections, effective April 14, 2015.
Now, the Board has issued yet another decision that changes long standing precedent. For over 30 years, the Board has deferred action on a labor practice charge where there was a pending grievance raising generally the same factual issues. The theory was that the employer and the union had agreed to arbitration concerning those facts under their collective bargaining agreement, and the Board favored letting the parties work the issues out through arbitration. The Board would only then pursue the related unfair labor practice charge if it thought the arbitration decision or arbitration settlement was “repugnant” to the National Labor Relations Act. The practical effect of this deferral approach was that an employer very rarely had to fight the battle on two separate fronts at the same time, and if the matter got resolved in arbitration, that was the end of it. Continue reading this entry