NLRB General Counsel Urges Change To Deferral Policy

Currently, the NLRB follows the standards set forth in Collyer Insulated Wire, 192 NLRB at 843, on when it will defer a charge to arbitration. Under Collyer, the NLRB will defer a charge to arbitration if: 1) the conflict arises out of a long and productive bargaining relationship and there is no claim of employer enmity towards employees’ exercise of protected rights; 2) the arbitration clause covers the dispute at issue and the employer manifests a willingness to arbitrate the dispute; and 3) the alleged unfair labor practice lies at the center of the dispute. PERB has adopted the Collyer standards and utilizes the same test. (State of California (Department of Food and Agriculture) (2002) PERB Decision No. 1473-S.

In a memo issued on January 20, 2012, Acting General Counsel Lafe Solomon proposed that the NLRB revise its standards for deferring unfair labor practice charges to arbitration based on concerns about delays in processing grievances through parties’ contractual grievance arbitration procedures. Specifically, Solomon proposed that the NLRB refuse to defer charges of discrimination and interference to arbitration unless the case would be arbitrated within one year. Instead of allowing deferral in such situations, Solomon urged the NLRB to decide these cases on the merits. Solomon wrote in his memo that, “Excessive delays can render enforcement of a Board order ‘pointless and obsolete.’ The circumstances may have changed so much at the job site that by the time a Board order issues it would be impossible to effect meaningful compliance, and the Charging Party would be left without a remedy. This lack of a remedy can erode public respect and confidence in the law.”

Comments:

It will be interesting to see if the NLRB acts on Solomon’s recommendations. Obviously, what the NLRB does will have no direct effect on PERB. However, given that PERB’s standards for deferral come directly from Collyer, one would expect PERB to consider whether any changes made to Collyer at the national level also make sense in California.
If PERB were to adopt a similar deferral policy to the one recommended by Solomon, it would of course have to be able to hear a case within one year of filing. It obviously would not make no sense for PERB to refuse to defer to arbitration a case that could not be arbitrated in a year unless PERB could hear it faster. That would have been a problem in the last few years where PERB’s investigation of a charge could take a year by itself. However, my understanding is that PERB today has greatly reduced its backlog and is getting to the point where a case can be investigated, a complaint issued, an informal conference held, and a formal hearing held all close to within a year.
However, even if PERB could guarantee to hear cases within a year, there is still the question of whether it should adopt such a policy. I quite frankly don’t see the problem identified by Solomon as being that big of an issue in California’s public sector. I wonder how many public sector arbitration cases in California fail to be heard in one year. Based on my experience, if it takes longer than a year for a case to be arbitrated it’s usually because neither side is pushing it along. Most arbitrators currently have availability within 3-5 months. In my experience there are only a handful of arbitrators where you might have to wait beyond 6 months for a hearing date. So my gut feeling is that the problem Solomon is trying to address at the national level is not as pressing in the public sector in California.