NLRB Acting General Counsel Lafe Solomon has announced a proposal to revise the Board’s current policy of deferring certain charges to arbitration due to concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures. The suggested revisions would apply to cases in which it is alleged that an employer has discriminated against, or discharged, employees based on their union activities.

In such cases, if it appears likely that the case will not be resolved or arbitrated within a year, Solomon is suggesting that the Board should decide the case on the merits, rather than defer it. In addition, Solomon proposed applying the new policy to cases that have already been deferred for more than one year and has argued that such cases warrant a decision on the merits because of the Board’s expertise in such cases.

In conjunction with his push, Solomon issued a memo on Friday, January 20, directing 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. The memo states that if the arbitration of such claims are likely to be delayed by more than a year, the region should not defer the matter to the grievance-arbitration process, but should rather fully investigate the charge. If the charge is found to be meritorious, regional staff are directed to send the case to the Division of Advice. In addition, the memo directs regional offices to regularly monitor deferred cases, so that if the case is not in some way resolved within a year, the office could submit it to the Division of Advice.

The memo specifies that it applies only to union workplaces having a CBA with specific grievance-arbitration procedures. It also states that it applies to all pending cases, including those that have already been deferred for more than a year, but that it will not apply to typical Section 8(a)(5) cases, which often involve allegations of contractual violations.

Solomon is urging this revision now over concerns that delays in the arbitration process may “render enforcement of a Board order ‘pointless and obsolete.’” Solomon expresses concerns in today’s memorandum that by the time an arbitration decision leads to a Board decision, the nature of the workplace may have changed to such a degree that a Board order will have no effect.

His memo is an extension of an earlier directive that offered new ways for the Board to analyze arbitration awards to ensure that workers’ rights under the law have been addressed and protected.

Meanwhile, in an opinion piece in the National Review, former Member Peter Schaumber criticized the recent recess appointments of Sharon Block, Richard Griffin and Terence Flynn. Schaumber singled out the Griffin appointment for particular scorn, saying that his immediately prior employment, as general counsel for the International Union of Operating Engineers, should have disqualified him, based on the appearance of partisan views. Schaumber also said that the failure of both Block and Griffin to fill out a Senate questionnaire on potential conflicts of interest means that their suitability for the Board has not been established.

Source: CCH Editorial Staff.