The National Labor Relations Board recently issued a number of precedent-changing decisions with significant implications for employers. Since July 30, 2013, the board operated with a full complement of five members, including Chairman Mark Gaston Pearce (D) and members Kent Hirozawa (D), Nancy Schiffer (D), Philip Miscimarra (R) and Harry Johnson III (R). This month's column will discuss several of the board's latest actions, including rulings regarding arbitration deferrals, work email policies, classification of independent contractors, collective action waivers, as well as considerable changes to its rules for representation elections.

Arbitration Deferrals

On Dec. 15, 2014, in a 3-2 decision, the board in Babcock & Wilcox Constr. Co., 361 NLRB No. 132 (2014), announced significant changes in its standards for deferring NLRB action in favor of arbitration awards and arbitration procedures under collective bargaining agreements. The board held that going forward it will defer to an arbitration decision if the proponent of deferral shows (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing the deferral; and (3) board law reasonably permits the arbitration award.

The new standard will not be applied retroactively to pending NLRB cases. The prior deferral standard, decided in Olin Corp., 268 NLRB 573 (1984), placed the burden on the party opposing deferral and held deferral was appropriate where the contractual issue was “factually parallel” to the unfair labor practice issue, the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue and the arbitration award was not “clearly repugnant” to the National Labor Relations Act (NLRA).

In Babcock & Wilcox, an employee allegedly was suspended without pay and subsequently fired because of her activities as a union steward. The case involved both contractual and statutory issues, namely, whether the employee was retaliated against for union activity and discharged without cause in violation of the applicable collective bargaining agreement and the NLRA. A union-management grievance review subcommittee denied the employee's grievance, and the employee filed an unfair labor practice charge with the NLRB. Finding deferral of the NLRB action was appropriate under Olin, an NLRB administrative law judge (ALJ) dismissed the unfair labor practice allegation; the ALJ's ruling was appealed by the NLRB's general counsel.