AUD files amicus brief in NLRB “deferral” case

Michael J. Goldberg is an AUD director and professor of law at Widener University.

On March 25, the AUD filed a brief with the National Labor Relations Board urging the Board to make its “deferral” policies friendlier to union democracy. The NLRB is the federal agency that enforces employees’ right to join or support unions and union activity in their workplaces without retaliation from their employer. “Deferral” is what the NLRB calls it when it decides not to take a case claiming a violation of that right if the discharge (or any other form of retaliation) has been the subject of a grievance that has been brought to arbitration under the collective bargaining agreement in a unionized workplace. In these cases, the alleged violation of federal labor law, being fired for union activity, overlaps with the alleged contract violation, being fired without just cause.

Sometimes, deferral makes sense, but often it is bad policy, effectively outsourcing the enforcement of federal labor law to private arbitrators. Since the 1980s, the NLRB has taken an extremely pro-deferral approach, which is generally favored by employers, who do not want to see workers they have fired have a second chance to get their jobs back after they have lost their grievance. In a case now pending, involving a union steward who was fired by the Babcox & Wilcox Construction Co., the NLRB is considering switching to a policy that would make it harder for employers to get cases deferred. The NLRB invited anyone interested in the issue to file a “friend of the court” brief, and the AUD took it up on this offer. Other groups did so, as well, such as the AFL-CIO on the union side, and the national Chamber of Commerce and the National Association of Manufacturers on the management side.

The brief submitted by AUD was the only one to discuss how the NLRB’s deferral policies can be harmful to union democracy when the victims of employer retaliation are outspoken critics or political opponents of their union officers. The dangers to union democracy flow from the fact that the union officials who process the grievances on behalf of the members may be the very same officials (or their close allies) who are the targets of the dissident members’ criticism, and possibly their attempts to defeat them in union officer elections. In such situations, it is fairly common for the interests of the union – or at least the union officials handling the grievance – to be more closely aligned with the interests of the employer than they are with those of the member. After all, dissident complaints about union leadership often focus on the alleged failures of union representatives to negotiate better contracts or to effectively enforce the contracts they have. In these situations, the dissident is a thorn in the sides of both the union and management. As a former AUD staff member once put it, “This ‘troublemaker’ [may be] upsetting a very comfortable relationship between the employer and the union. Both parties want to get rid of this person, and they are exactly the same parties that control the grievance procedure.”

The AUD brief also argued that even if the NLRB decides not to change its deferral policies in general, it should at least change them when an arbitration decision involving a union dissident was made by a joint union-management grievance committee that has no outside neutral. These grievance committees, most common in the trucking industry, are notoriously susceptible to “horse-trading” grievances instead of deciding each one on its merits, and to the political manipulation of the process to make sure “troublemakers” who have been fired stay fired, so they can no longer be thorns in the sides of either their employer or the union officials who are supposed to be representing them.

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