NLRB Will Review Deferral Standard

Just over five years ago, the National Labor Relations Board (NLRB) rejected its previous “post arbitral deferral standard” (known as the “Olin Spielberg” or “Olin” standard.) The new, more employee-friendly standard, called the Babcock and Wilcox standard, made NLRB deferral to an arbitrator or joint panel contingent on much more detailed evidence that the law was applied correctly and fairly when an employee alleged an unfair labor practice (ULP). It also put the burden of presenting that evidence on the party who wanted deferral, usually the employer who won the underlying grievance in the first place. Without such evidence, NLRB must then review such a charge. Now, the NLRB has called again for the standard’s review.

Back in 2014 AUD supported changing the Olin standard and submitted an amicus brief (written by Prof. Michael Goldberg, an AUD Director). We argued that the Olin standard did little to protect union dissidents who face unfair treatment as a result of antagonizing company and union officials during the grievance/arbitration process. The NLRB’s new deferral standard, as reported in Union Democracy Review 203, met some of the goals laid out in the AUD brief. But now, the NLRB has announced that the standard will again be reviewed. This comes in response to a ULP charge submitted on behalf of a terminated Teamster dissident, Rob Atkinson. AUD again has submitted an amicus brief, this time in defense of the current standard, authored again by Michael Goldberg.

The NLRB calls for review of whether the burden should be on the individual unionist to prove that the alleged unfair labor practice was not presented to, and properly decided by the arbitrator or grievance panel when the grievance was processed through the contractual grievance procedure, or whether the burden should be on the union or the employer to prove that it was. To the mind of Michael Goldberg, the latter approach is an essential and necessary component of any standard. On behalf of AUD, Goldberg’s amicus brief is in defense of not only Atkinson’s rights, but the Babcock & Wilcox standard in general. He notes;

“The circumstances under which the Board will, or will not, defer to the results of contractual grievance procedures in handling unfair labor practice cases under Sections 8(a)(1) and 8(a)(3) can most definitely have an “impact on the members’ relationship with their employer.” Therefore, it is incumbent upon the Board when determining its deferral policies to include in the balance more than just individual rights generally versus encouraging private dispute resolution within collective bargaining. When striking that balance, the Board should also be sensitive to the very real dangers to the national labor policy favoring union democracy that can result when its approach results in deferral in unfair labor practice cases where the charging parties are outspoken critics, or political opponents, of the union officials handling their contractual grievance, or oppose the very idea of union representation in their workplace.”

Under Olin, the board was given wide leeway in deferring to the decision of the arbitration panel. As Goldberg’s first amicus brief pointed out, in theory, labor unions are compelled to represent their members fairly and without discriminatory intent. In reality, however, it is all too easy to punish union dissidents or troublemakers by flubbing a grievance and arbitration hearing. This is compounded by the fact that management is often happy to rid themselves of an employee who brought them to grievance and very often is more militant or simply critical of the content of a collective bargaining agreement. In this way, union dissidents can be targeted for mistreatment with labor and management collaborating (whether intentionally or not) in removing a thorn from the side of both.

That changed with Beneli v. Babcock & Wilcox. A union steward named Kim Beneli was terminated from her job for insubordination. What complicated the case was Beneli’s long history of activism within her union She grieved her termination with the union representing her, but the grievance was denied and she remained out of a job.

Beneli, however, suspected the union failed in its duty of fair representation due to her militancy vis-a-vis the company and union administration. The case caused the break with precedent, with the NLRB holding the then current standard was insufficiently rigorous, and ridding themselves of Olin Spielberg. Beneli would not receive the benefits of the change she had wrought. Though the board agreed to change its standard, they refused to apply the new standard retroactively, thus allowing the unionist’s termination. Nevertheless, the change in standard was a victory of sorts for union members who often feel they are not properly represented by their union in grievance and arbitration, particularly if due to their internal union activism. The prior standard required only that the arbitrator had been presented with the facts, with no need to show that the arbitrator in fact considered the statutory issues at play.

This may well be the current case before the board. Atkinson was a member in good standing of the International Brotherhood of Teamsters (IBT), and was allied with Teamsters for a Democratic Union (TDU). He came out strongly against his union’s just negotiated new contract, and he along with other TDU members called for a No vote. Shortly after ratification he was terminated by UPS, which he grieved. The grievance was processed, with the joint labor management committee adjudicating the case and upholding his termination. The decision was announced in a single sentence, providing no context in which the decision was made. Atkinson believed his case was flubbed by the union (jointly with management) due to his involvement with the reform movement within the IBT. So he brought his case to the NLRB, and an NLRB administrative law judge ruled in his favor. The ALJ found that indeed, the union failed to prove that it had fairly presented Atkinson’s case to the joint panel, including the violation of rights guaranteed by the National Labor Relations Act. The company appealed to the Board. But rather than decide on whether the ALJ applied Babcock in this case correctly, the Board decided to call for a review of the standard itself. This was done despite the fact that neither party, Atkinson nor the employer raised the issue of whether the standard should be reviewed.

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