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NLRB Acting General Counsel Seeks Changes in Deferral Policy

Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances. 

When it is anticipated that charges alleging violations of Section 8(a)(1) and (3) – which include discharges or other discrimination based on union activities -- will not be resolved or arbitrated within a year, Acting General Counsel Solomon would urge that the Board not defer the case, but rather decide the case on the merits.  He would also apply the new policy to cases that have already been deferred for more than one year.  Mr. Solomon specifically targeted cases involving issues of unlawful discrimination and interference with workers’ protected rights because they are significant and uniquely within the Board’s expertise.

In a memo issued today, Acting General Counsel Solomon directed Regional staff to investigate whether there are significant backlogs or other probable delays in the grievance-arbitration process before making a determination to defer a case alleging Section 8(a)(1) and (3) violations. If the arbitration of this claim is likely to be delayed by more than a year, the Region should not defer the matter to the grievance-arbitration process.  Instead, it should fully investigate the charge and, if meritorious, send the case to the Division of Advice at NLRB headquarters for further action. Regional offices should also regularly monitor deferred cases, and, if the case has not been arbitrated or resolved within a year, the Region should consider the parties’ positions and submit the case to the Division of Advice if it determines that the case is meritorious or that continued deferral is appropriate based upon the circumstances of that particular case.

This directive applies only to union workplaces where grievance-arbitration procedures are spelled out in a collective-bargaining agreement. It applies to all pending cases, including those that have already been deferred for more than a year.  The directive will not apply to typical Section 8(a)(5) cases, which often involve allegations of contractual violations, that are normally better left to resolution through arbitration. 

The National Labor Relations Board has a long-standing policy to defer charges made by employees to the parties’ grievance-arbitration procedures contained in a collective bargaining agreement, as long as certain conditions are met.  Deferral of cases has been done in order to promote collective bargaining and the private resolution of disputes, presumably more quickly than through the NLRB’s administrative process. The Board later reviews the resulting arbitration decision to ensure that it meets certain standards.

The Acting General Counsel’s goal, as described in the memo, is to ensure a prompt resolution of disputes in those cases in which backlogs hold up the process for many years.  Acting General Counsel Solomon wrote, “Excessive delays can render enforcement of a Board order ‘pointless and obsolete.’ The circumstances may have changed so much at the job site that by the time a Board order issues it would be impossible to effect meaningful compliance, and the Charging Party would be left without a remedy. This lack of a remedy can erode public respect and confidence in the law.”

The central review of cases in Headquarters’ Division of Advice will allow the Acting General Counsel to identify trends and bring the issue to the Board.

Today’s memo builds upon an earlier General Counsel directive regarding Board deferral to grievance-arbitration procedures. That memo suggested new ways for the Board to analyze arbitration awards to ensure that workers’ rights under the law have been addressed and protected.

© Copyright 2020 National Labor Relations BoardNational Law Review, Volume II, Number 22


About this Author

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.