By Edwin S. Hopson
On January 20, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, in a press release announced a revision to the Board’s existing policy regarding deferral of unfair labor practice charges to arbitration under collective bargaining agreements. Citing concerns about delays in processing grievances to arbitration, Solomon directed Regional Directors as follows:
Section 8(a)(1) and (3) Cases
–Conduct Charging Party investigation, make arguable-merit determination, and determine whether arbitration is likely to be completed in less than a year.
–If arbitration is likely to be completed in less than a year:
–Defer and conduct quarterly reviews.
–At the fourth quarterly review (in new and currently pending cases in deferral status), send “show cause” letters to all parties seeking an explanation of why deferral should not be revoked.
–If the Charging Party does not respond, contact the Charging Party and any individual discriminatees before dismissing for failure to prosecute.
–If there is insufficient reason to continue deferral, conduct a full investigation; if the charge is meritorious, submit the case to Advice; if the charge is non-meritorious, dismiss absent withdrawal.
–If there is good reason to continue deferral, contact Advice.
–If arbitration is not likely to be completed in less than a year:
–Determine, in consultation with all parties, including any individual discriminatees, whether deferral is inappropriate because the delay is likely to frustrate the Board’s remedial ability or unduly disadvantage the Charging Party.
–If deferral is deemed inappropriate, conduct a full investigation and, if the charge is meritorious, submit the case to Advice.
–If deferral is considered appropriate despite the delay, contact Advice.
Section 8(a)(5) Cases
–Make deferral decisions and conduct quarterly reviews, as under existing policy.
–If arbitration is not likely to be or has not been completed within a year, and the case implicates individuals’ statutory rights or involves serious economic harm to the Charging Party, the Region may at its discretion conduct a full investigation and submit the case to Advice in the same manner as Section 8(a)(1) and (3) cases.
Any questions regarding implementation of this revised policy are to be directed to the Division of Advice in Washington, D.C.