Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an unfair labor practice (“ULP”) charge over whether the discharge was because of protected concerted activity, unless the loser at arbitration could show the arbitrator had ignored the possible ULP.

The NLRB was dissatisfied with this arrangement; it was just too hard to show that the arbitrator had ignored a possible ULP. Maybe the arbitrator considered it and just didn’t mention it in the award. Now, the NLRB will defer to the parties’ arbitration only if the party wanting deferral can show the parties explicitly authorized the arbitrator to consider ULPs, the arbitrator actually considered the ULP, and the arbitrator came reasonably close (according to the NLRB) to deciding the issue correctly. If you can’t show all this, the NLRB may explode your litigation costs by pursuing a ULP on the same issues (or related issues) already decided in your arbitration. Fair warning: make sure the arbitrator is explicitly authorized to consider ULPs and that the arbitrator addresses them, or be prepared to fight the issue again with the NLRB. Babcock & Wilcox Constr. Co., 361 NLRB No. 132 (Dec. 15, 2014).