Monday, February 10, 2014
In another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities. All of these are perennial issues that have been hard fought over the years. The announcements (links above) contain more info on filing briefs.
The announcement for the deferral issues states, in part:
The National Labor Relations Board (NLRB) invites interested parties to file briefs . . . to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.
Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The NLRB General Counsel has asked the Board to adopt a different standard. Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.
The announcement for the regious university jurisdiction and faculty status states, in part:
The National Labor Relations Board is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.
The case is Pacific Lutheran University (19-RC-102521). . . . In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case. The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980).
It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.