A recent National Labor Relations Board decision questions whether the Board will continue to automatically defer to arbitration rulings.

Courts and administrative boards have almost universally rejected attempts to overturn the decisions of arbitrators since the Federal Arbitration Act was enacted, except in a few limited situations outlined in Section 10 of the Act.

A recent decision by the National Labor Relations Board (NLRB) has reaffirmed this judicial position. What is noteworthy about the NLRB’s split decision, however, according to an article in Employer Labor Relations Blog by Ronald J. Kramer, is that the NLRB review board may no longer automatically defer to the findings of arbitrators. As Mr. Kramer notes, “deferral may be an endangered species.”

An arbitration proceeding found “that an employer did not violate its collective bargaining agreement by unilaterally changing its employees’ payday and pay scale.” An Administrative Law Judge (ALJ) reversed, finding in favor of the employees and their union.

The employer appealed to the NLRB. Weavexx, LLC, 364 NLRB No. 141 (Nov. 2, 2016)

Relying on Section 10a3 (“Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made” a Court may make an order vacating the award.”) the union appealed to the NLRB.

The decision of the arbitrator, as outlined by Mr. Kramer, suggest that the union’s position had merit. The Board disagreed and overruled the ALJ.

Board Chairman Pearce dissented in the 2-1 finding, as did “the Regional Director [and] an ALJ.” Mr. Kramer argues that “not only will this make deferral more difficult, at some point the Board may opt to revise its deferral standards…”

Source—

Board Defers to Arbitrator’s Award Upholding Management Rights—But for How Long? Ronald J. Kramer, Esq., Employer Labor Relations Blog, Nov. 7, 2016.