To defer or not to defer? That is the question

It's time to dust off the National Labor Relations Board (NRLB) cases in effect before the Obama era. Labor attorneys have learned over the years not to throw out the “old” law, knowing full well it will once again come full circle. The NRLB did exactly that in a recent decision when it overruled the “current” deferral standards and returned to the long-standing prior deferral standards.

Some background

Grievance and arbitration provisions are the hallmarks of most collective bargaining agreements (CBAs) and have been described as the quid pro quo for a no-strike provision. Essentially, the parties to the CBA have agreed on a resolution process for disputes arising under the agreement.

Because many disputes between labor and management are resolved through arbitration, the process has been looked to and used as a method of resolving disputes that are also the subject of unfair labor practice charges. The charges would be resolved through deferral either before the issue had been arbitrated (prearbitral deferral) or after the matter had been arbitrated (postarbitral deferral).

Case history

In United Parcel Service, employee Robert Atkinson had participated in a campaign designed to persuade the union to renegotiate a more favorable CBA. When the campaign was unsuccessful, he ran for a local union office in an ill-fated effort to unseat a long time Teamster business representative.