NLRB (Logo)By: Joshua M. Henderson, Esq.

Seyfarth SynopsisA recent federal appeals court decision makes it even more difficult for an employer to withdraw recognition from a union that has lost majority support.  Employers need to be aware of the possibility of union “gamesmanship” when deciding how to proceed.

An employer that withdraws recognition from a union as the exclusive bargaining agent of its employees does so, as the Board and Courts say, “at its peril.” It’s a risky move, one that requires objective evidence that a union has actually lost the majority support among the employees it represents.  And the employer must be correct about the actual loss of majority support or it will face an unfair labor practice charge for refusing to bargain with a union.  Consider it a form of strict liability in the labor-relations context.  But what if the employer has objective evidence that a union has lost majority support, and then the union regains the majority support before the employer withdraws recognition?  Also, if an employer is found to have violated the law under those circumstances, what is the remedy when the union deliberately did not disclose to the employer it had regained majority status?

In Scomas of Sausalito v. NLRB (March 7, 2017), the D.C. Circuit considered these two questions.  The Court upheld the unfair labor practice charge against the employer that withdrew recognition without knowing that the union had regained majority status.  The Court observed that the employees had suffered from “an extended period of Union neglect.”  Thus, the union had not sought to bargain with the employer for over a year, and held no meetings and provided no information to its members for more than a year, but continued to collect dues from them all the while.  Perhaps not surprisingly, a majority of employees notified the employer in writing that they no longer wanted the union to represent them.  Two days after being confronted with this news, a union representative notified the employer that the union wanted to negotiate a new collective bargaining agreement, and worked behind the scenes to persuade six employees to revoke their signatures on the decertification notice that had been given to the employer.  Yet the union never told the employer that these signatures had been revoked, or that (in light of the size of the bargaining unit) this meant the union had in fact not lost majority support.  The Court decried the union’s “gamesmanship” in not informing the employer, but held that under the Board’s Levitz Furniture test (which the Court had approved of in an earlier case), the employer assumed the risk that it was wrong in evaluating majority support.  Because the employer was wrong, it could not lawfully withdraw recognition.

In answer to the second question, however, the Court reversed the Board’s decision that a “bargaining order” was the appropriate remedy. Bargaining orders are reserved for flagrant, deliberate unfair labor practices.  In the Court’s view, the employer was not acting in bad faith when it withdrew recognition from the union.  The evidence showed that the employer did not act in haste.  Rather, it took steps to ensure that the signatures on the petition delivered to it matched those on the employees’ payroll records.  Moreover, the signatures that remained on the petition after the revocation comprised 42 percent of the bargaining unit.  That exceeds the 30 percent threshold for directing an election, whether filed by a union, an employer, or an employee.  The disaffected employees also had filed a decertification election petition with the Board, but withdrew it after their employer withdrew recognition from the union.  Under the circumstances, the Court rejected the Board’s argument that an election was not an appropriate alternative remedy.

Takeaway for Employers:  Under the Board’s current test (which may or may not be reconsidered by a new Republican-majority Board), an employer may withdraw recognition from the union only when there is an actual loss of majority support for the union; as a practical matter, the employer must be absolutely certain that more than half of the employees in the bargaining unit no longer want the union to represent them.  Even then, the union may be able to undermine the employer’s basis for withdrawal and place the employer’s decision in jeopardy.  When faced with an apparent loss of majority support for a union, an employer should seriously consider choosing the safer option of filing an RM petition (a management election petition) with the NLRB to allow the employees an opportunity to vote on whether to oust the union in a formal election overseen by the Board.  [Good-faith uncertainty of majority status could, in some circumstances and under the Board’s current standard, support an internal poll of employees as to their support for the union, but polling requires fastidious attention to procedural safeguards and is fraught with legal risk as well.]

 

By: Jaclyn W. Hamlin, Esq.

Seyfarth Synopsis: A review and analysis of select NLRB cases decided by President Trump’s new appointee as Secretary of Labor and former NLRB Member Alexander Acosta.

With the withdrawal of Andrew Puzder from consideration for the Secretary of Labor vacancy on President Donald Trump’s cabinet, former NLRB Member Alexander Acosta has emerged as the candidate for the role. If confirmed, Mr. Acosta will become the first Hispanic member of the Trump Cabinet.  While his confirmation has not yet been accomplished, and it is impossible to predict precisely the direction the Department of Labor will take if and when Mr. Acosta assumes the mantle of leadership, reviewing some of his words from his time as an NLRB Member is an interesting exercise, and may provide a few clues about his priorities and possible goals.  One thing that stands out in the opinions is his desire to follow precedent and established law, even where it results in an outcome that he may not support philosophically.

Mr. Acosta was appointed to the NLRB by President George W. Bush, and served his tenure in 2002 and 2003, as a member of the Majority. Nonetheless, Mr. Acosta occasionally availed himself of concurring or dissenting opinions to highlight his views on particular issues.  Below, we review just a few.

Alexandria Clinic, P.A., 339 NLRB No. 162 (2003) – In a concurring opinion, Mr. Acosta agreed with his majority colleagues that the employer did not violate the NLRA when it discharged several employees for participating in a strike without giving the requisite notice under Section 8(g) of the Act.  Mr. Acosta explained his view that the statutory language was clear and that “because the statutory language is unambiguous, we cannot depart from it.”  Mr. Acosta further warned against the dangers of ignoring the plain language of the statute – from increased litigation to uncertainty for employers.

Double D Construction Group, Inc., 339 NLRB No. 48 (2003) – Concurring with his majority colleagues, Mr. Acosta expressed a strong view on the rights of undocumented immigrant workers.  Mr. Acosta explained that the Administrative Law Judge discredited an employee’s testimony because he had used a false Social Security number to apply for work, and concluded from that act that the employee might offer false testimony.  Mr. Acosta firmly rejected this view, explaining that undocumented workers are statutory employees entitled to the protections of the NLRA.  He stated that a blanket policy of discrediting any “once-undocumented worker, who to obtain work provides a false social security number,” was inconsistent with the Act and that “such an automatic sanction makes it exceedingly difficulty for the General Counsel to establish an unlawful discharge or other unfair labor practice directed against an undocumented worker.”  While Mr. Acosta acknowledged that providing a false social security number is relevant to a credibility determination, he warned that the NLRB’s “continued commitment to prosecuting unfair labor practices directed against undocumented workers requires an understanding of the workplace and life realities faced by these individuals.”

Comcast Cablevision-Taylor, 338 NLRB No. 166 (2003) – Concurring in a decision related to a representation case, Mr. Acosta used his platform to highlight “potential inconsistencies in Board case law.”  Mr. Acosta expressed concern that the Sixth Circuit had used a Board holding in a previous case to rule on enforcement issues, but that the Board had not considered whether the case itself, or some other related inconsistent precedent, remained good law.  Mr. Acosta encouraged the Board to reconcile its precedent so as to avoid inconsistent results.

While Mr. Acosta’s confirmation is not yet accomplished, Republicans and Democrats alike have characterized him as a longtime public servant with experience enforcing labor laws. This small sampling of his concurrences indicates that he values logical decision-making based on the plain language of the law, where appropriate, and that he considers the consistency of precedent to be of importance.  His concurring opinion in Double D Construction reveals that he considers the government as having a role in protecting the rights of undocumented workers.  If confirmed as Secretary of Labor, Mr. Acosta will – of course – not be responsible for enforcing the NLRA.  His concurrences as a Member of the NLRB, however, provide interesting insights into the Department of Labor he may soon run.

Striking  By: Marshall B. Babson, Esq., Katherine Mendez, Esq., and Bryan Bienias, Esq.

Seyfarth Synopsis: Several organizations are planning nationwide strikes and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees’ rights before responding.

Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.

Thursday, February 16: A Day Without Immigrants. The first action, “A Day Without Immigrants,” is currently scheduled for this Thursday, February 16.  The campaign, promoted in Spanish and English, has been spread through Facebook, fliers, and word of mouth and calls on immigrants and their supporters “not to go to work, open businesses, shop, eat in restaurants, buy gas, go to classes, or send children to school.” While the campaign originally focused on the Washington D.C. area, the campaign is expected to spread nationwide. A similar action in Milwaukee, Wisconsin this past Monday, February 13 drew thousands of protesters.

Friday, February 17: National General Strike. Then, on Friday, February 17, a group called Strike4Democracy has called for a national general strike and plans on “over 100 strike actions across the United States, and beyond.” The campaign calls for participants to forgo work on Friday and, instead “plan or take part in an event in your community” and “occupy public space with positive messages of resistance and solidarity.”

The organizers do not plan on stopping there. They intend to use Friday’s national general strike to “build towards a series of mass strikes,” with another mass strike planned on March 8, 2017, another on May 1, 2017 (May Day), and “a heightening resistance throughout the summer.”

So, what does this mean for employers?

While these general strikes and those planned for the future could wreak havoc on an employer’s operations — as employees fail to report to work or leave shifts early — the National Labor Relations Act provides protection for employees who engage in political advocacy that relates specifically to job concerns and to other workplace issues.

Employers have the right to enforce “neutrally applied work rules” to restrict employees from leaving work for political activities unrelated to workplace concerns. As discussed above, whether an employee’s actions are protected or unprotected turns on whether the employee’s absence relates to activity directed at “terms and conditions of employment” which the employer controls or to workplace concerns that affect all employees. If the absence is due to political activity totally unrelated to workplace concerns, employees could be subject to discipline, although discipline is not necessarily the prudent course to take.

Given the myriad issues to be addressed in these strikes, from immigration reform to minimum wage laws to worker’s rights, employers may be hard pressed to show that employees who participate in these strikes in lieu of working have engaged in unprotected activity. Employers could find themselves in further “hot water” with the NLRB if they discipline employees for absenteeism or tardiness related to the employees’ political activities.

If your company is affected by any of the strike activity this week or in the months ahead, contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

View of United States Supreme Court Building, Washington, DC.

By: Robert J. Carty, Jr., Esq.

As our regular readers already know, the Supreme Court is poised to decide one of the most contentious issues facing the wage-and-hour world—namely, whether class- and collective-action waivers render workplace arbitration agreements unenforceable.

Well, it seemed poised until today.  Now we need to sit tight until at least October.

First, a quick recap.  A few weeks ago, the Supreme Court consolidated and granted certiorari in three appeals, one each from the Fifth, Seventh, and Ninth Circuits.  As consolidated, these cases ask the Court to decide whether Section 7 of the National Labor Relations Act (which protects certain “concerted activities”) prohibits class- and collective-action waivers in workplace arbitration agreements—even though the Federal Arbitration Act strongly favors such provisions.

Given the timing of the Court’s actions, many had speculated that oral argument would occur this April, likely leading to a decision by the end of June.  Today, however, the Court notified the parties that oral argument will be scheduled in the 2017 term, which begins this October.  In other words, we don’t expect this issue to be decided until sometime after argument—and the earliest argument will occur is October.

We can’t be sure why the Court has decided to set oral argument in the next term, but we can make an educated guess that the new Administration and the pending nomination of Judge Neil Gorsuch played a role.  Regardless, we have our eye on the situation and will keep you updated as things develop.  Stay tuned.

Striking  By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: Court of Appeals for the First Circuit reversed the NLRB, holding that the Board lacked substantial evidence to find that the hospital group unfairly preferred nonunion workers when filling nonunion positions.

The National Labor Relations Board may not invalidate employment policies that accomplish legitimate goals in a nondiscriminatory manner “merely because the Board might see other ways to do it.” Such was the message the U.S. Court of Appeals for the First Circuit delivered to the Board in Southcoast Hospitals Group v. NLRB, No. 15-2146 (1st Cir. 2017).

The Court ruled that the Board lacked substantial evidence in finding that the hospital group discriminated against union members by giving nonunion workers a hiring preference for nonunion positions. The union’s contract granted union employees a similar preference when applying for union positions. According to Southcoast, the policy was intended to “level the playing field” and stave off staffing complaints by its nonunion workforce.

The Board argued that the policy tilted the playing field too far in favor of nonunion employees, claiming the number of nonunion positions “pales in comparison” to the number of positions covered by the union hiring policy and that nonunion hiring preference covered two facilities, as opposed to the single facility covered by the union policy.

This was not enough, the Court ruled. While the Court acknowledged that the nonunion policy covered more positions than the union hiring policy, union workers were not disproportionately harmed, given that the ratio of covered positions to covered employees was substantially the same under both policies. Likewise, nonunion employees had to compete with workers from two hospitals, as opposed to union workers’ need to compete only with workers from one hospital.

The Court also noted that the Board ignored other aspects of the hiring policies that still leave union members at a comparative advantage, namely that union seniority trumps qualifications for open union positions, while Southcoast is required to choose “the best qualified” candidate for a nonunion position, regardless of seniority.

Employer Takeaway

Employers must often walk a fine line in order to apply different policies to union and nonunion employees in a non-discriminatory manner. However, as the Court in Southcoast makes clear, this does not handcuff employers from attempting to “level the playing field” by giving certain advantages to nonunion employees, so long as the policy does not disproportionately harm union employees and is supported by a legitimate and substantial business justification.

NLRB 2By: Marjorie C. Soto, Esq., Jeffrey A. Berman, Esq., and Mary Kay Klimesh, Esq.

Seyfarth Synopsis: Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) ask NLRB General Counsel Griffin to either immediately rescind his January 31 report regarding the purported rights of faculty, students and scholarship athletes, or “step aside as general counsel.”

Yesterday, we reported that Richard F. Griffith, Jr., the General Counsel of the National Labor Relations Board, issued a report titled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.” A copy of  yesterday’s Management Alert can be found here.

It did not take long for Griffin’s Report to catch the attention of Congress. Yesterday, Representative Virginia Foxx (R-NC), Chairwoman of the House Committee on Education and the Workforce, and Representative Tim Walberg (R-MI), Chairman of the House Subcommittee on Health, Employment, Labor, and Pensions, jointly issued a response to the Report, calling for Griffin to “rescind his memorandum immediately” or  “step aside as general counsel.”   In support of their request, the Representatives jointly stated that the “memorandum puts the interests of union leaders over America’s students, and it has the potential to create significant confusion at college campuses across the nation.”

Even if Griffin refuses to withdraw the Report, it reasonably can be anticipated that the General Counsel appointed by President Trump at the conclusion of Griffin’s appointment in November, or the soon-to-be Trump appointed Board majority, will revisit not only the Report but also the underlying decisions in Pacific Lutheran, Columbia and Northwestern.

NLRB By: Marjorie C. Soto, Esq., Jeffrey A. Berman, Esq., and Mary Kay Klimesh, Esq. 

Seyfarth Synopsis:  In a last minute attempt to leave his mark on the NLRB, the Board’s outgoing General Counsel issued a report attempting to expand the rights of university faculty and students, including scholarship athletes under the National Labor Relations Act.

Just months before the conclusion of his four-year term, Richard F. Griffin, Jr., the General Counsel (“GC”) of the National Labor Relations Board (“Board”), issued a report titled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.”

The January 31, 2017 Report was issued with the stated intent to serve as a “guide for employers, labor unions, and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel will apply these representational decisions in the unfair labor practice arena.” The decisions covered by the Report – – Pacific Lutheran University, Columbia University, and Northwestern University–all involved efforts of individuals to obtain representation by a union.

University Faculty

In Pacific Lutheran, the Board established a new test for determining when it would take jurisdiction over religious colleges and universities.  According to the GC, the Board “will…seek redress for unfair labor practices committed by religious schools against individual faculty member discriminatees who the university does not hold out as performing a specific role in creating and maintaining the university’s religious and educational environment.”

As a practical matter, this means that the GC believes that the faculty who are able to seek union representation because they were “not hired to advance the school’s religious purposes,” also are protected by the Act’s prohibition against discrimination for engaging in protected concerted activities. By implication, this may mean that faculty who are hired to advance a school’s religious purposes are not protected.

The GC also provided his analysis of the standard articulated in Pacific Lutheran regarding the managerial status of faculty members.  Specifically, the GC distinguished between managerial faculty (those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer”) and non-managerial faculty (those whose decision-making is limited to “routine discharge of professional duties in projects to which they have been assigned…”).

The GC concluded that, in the unfair labor practice context, a “complaint will not issue against a university if [the Board] determine[s] that an asserted discriminatee is a managerial employee under the Board’s Pacific Lutheran test.”  He added, however, that even when the Board refuses to process a certification petition, it will still conduct an individualized analysis of the discriminatee’s employment position to determine whether that individual exercised sufficient managerial authority to exempt him from the NLRA.

University Students

Student Assistants. Here, the GC briefly summarized the Columbia University decision, stating that the Board “applied the statutory language of the [NLRA] and longstanding common-law principles to settle the issue of statutory coverage for graduate student employees, determining that student assistants are employees under the NLRA.” The GC relied on the 2000 NYU decision to conclude that graduate students met the common-law test of agency because they “‘perform their duties for, and under the control of’ their university, which in turn pays them for those services…” Similarly, the GC applied this precedent to the unfair labor practices context, concluding that, in his opinion, student assistants are well within the ambit of the NLRA and can therefore organize and receive its protections.

Non-Academic University Workers. The GC stated that, as to university students who are performing non-academic university work (e.g. maintenance or cafeteria workers, lifeguards, campus tour guides, etc.), they are “clearly covered by the NLRA and, as with student assistants, [the Board] will analyze unfair labor practice charges involving non-academic student employees accordingly.” In reaching this conclusion, the GC reasoned that the non-academic university worker category presented an easier question than the student assistants in Columbia as, in his opinion, under the common law agency test, there is no issue of whether or not the work performed by the student employee is “primarily educational work.”

Hospital House Staff. With respect to “hospital house staff” (medical interns, residents, and fellows), the GC concluded that they would “continue to be protected as employees under the NLRA, and [the Board] will continue to process unfair labor practice charges involving those employees.”  In reaching this conclusion, the GC reasoned that, just because certain hospital house staff members also happened to be students did not mean that they were exempt from the coverage of the NLRA. He cited the Boston Medical decision, which held that “nothing in the [NLRA] suggests that persons who are students but also employees should be exempted from the coverage and protection of the [NLRA].”

University Football Players. Here, the GC admittedly limits his analysis to the application of the statutory definition of employee and the common-law agency test to find that Division I FBS scholarship football players are employees under the NLRA, and therefore have the rights and protections of that Act. Referring to the Board’s decision in Northwestern, the GC expressly stated that it would be inappropriate for the Report to attempt resolve the sometimes “divisive” questions relating to whether student athletes may organize under the Act.

Conclusion

With Mr. Griffin’s four-year term ending later this year, it is likely that the new GC will want to revisit some or all of the Report. The soon to be Trump-appointed  majority of the Board likely will revisit not only the Report, but also the decisions in Pacific Lutheran, Columbia and Northwestern.

NLRB 2On Thursday, January 26, 2017, the NLRB announced that President Trump named Board Member Philip A. Miscimarra to serve as Acting Chairman of the NLRB.  Miscimarra will replace former Chairman Mark Gaston Pearce, who will continue as a Board Member.  Pearce’s term expires on August 27, 2018.  Acting Chairman Miscimarra’s current term expires on December 16, 2017.

The Board currently has three members: Board Member Lauren McFerran being the third member.  Her term expires on December 16, 2019. Two Board Member seats are currently vacant.  President Trump gets to nominate these two members.  The two nominees must then be confirmed by the Senate.

Prior to the Board, Acting Chairman Miscimarra practiced labor and employment law as a partner with Morgan Lewis & Bockius LLP.   Prior to Morgan Lewis, Miscimarra was a partner at Seyfarth Shaw LLP.

 

By: Kyllan B. Kershaw, Esq.

Seyfarth Synopsis: This weekend Kentucky became the 27th state to pass right-to-work legislation, eliminating the right of unions to collect compelled-dues payments and providing a significant boost to employers hoping to operate union-free.

On Saturday, January 7th, Kentucky’s Governor signed Kentucky House Bill 1 into law, making Kentucky the 27th state in the country to adopt right-to-work legislation and the last state in the South to pass such a law. The new legislation is effective immediately but carves out an exemption for existing collective bargaining agreements.

The law bars making union membership a condition of employment and allows workers in union shops to opt out of paying union dues without fear of losing their jobs. The law also prohibits public employees from going out on strike.

Kentucky House Bill 1 was introduced on January 3 and fast-tracked by Kentucky House Republican leaders, passing by a vote of 58-39 on January 5th and pushed through the full State Senate in a special Saturday session on January 7th. A major factor motivating Kentucky Republicans who introduced the law is that Kentucky’s unemployment figures lag behind those of neighboring right-to-work states such as Indiana and Wisconsin. Likewise, while Kentucky’s overall union membership rates remain on par with the U.S. average, private-sector union membership rates in Kentucky are slightly above the national average. For example, in 2016, 11 percent of employees in Kentucky belonged to a union (right around the national average of 11.1%), while Kentucky’s private-sector employee membership rates hovered slightly above 8 percent, higher than the national average of 6.7 percent.

Overall, right-to-work states are considered more favorable to employers. Specifically, employers in non-right-to-work states experience a higher density of unionization and increased organizing efforts. Likewise, employers in non-right-to-work states often experience greater employment costs associated with doing business. For example, employers in non-right-to-work states: (a) generally pay higher wage rates and benefits to employees, regardless of the employer’s union status; and (b) are subject to increased government regulation of employment, including pro-employee laws and onerous regulations, as unions in these states often possess greater political capital and have additional lobbying capabilities as a result of compelled-dues payments.

Kentucky House Bill 1 follows the 6th Circuit’s recent affirmation of the rights of Kentucky counties to pass right-to-work legislation based on Kentucky’s home-rule powers. See UAW v. Hardin Cty., Docket No. 16-5246 (6th Cir. Nov. 18, 2016). Not surprisingly, Kentucky House Bill 1 restricts the right of local governments to enforce an ordinance contrary to the provisions of the new state law.

Kentucky’s right-to-work legislation comes as Republicans control the state government in Kentucky for the first time in nearly a century. States such as Missouri and Iowa may follow Kentucky’s lead, where Democrats suffered losses in November and state lawmakers have expressed interest in pursuing such laws and creating more employer-friendly climates.

By: Ronald J. Kramer, Esq.

Seyfarth Synopsis:  In Weavexx, LLC the Board deferred to an arbitrator’s finding that the employer had the right to change its payday and pay cycle without first bargaining.  The bigger question is how much longer will such charges be deferred pending arbitration, and the extent to which the Board will defer to an arbitrator’s award.

The Board in a 2-1 decision reversed an ALJ and deferred to an arbitrator’s finding that an employer did not violate its collective bargaining agreement by unilaterally changing its employees’ payday and pay cycle.  Weavexx, LLC, 364 NLRB No. 141 (Nov. 2, 2016) (here).  In Weavexx the employer argued that its management rights clause gave it the ability to make the unilateral changes, and the arbitrator ultimately found that the “Company’s use of managerial discretion was proper and should not be seen as a violation of a binding past practice.”

So how did this “bread and butter” contract case get to the Board?  The arbitrator apparently did a very poor job of making it clear that he applied the contract to find the employer had the right to make the change.  The arbitrator framed the arbitration issue as whether the employer’s change violated a binding past practice.  While the arbitrator set forth the employer’s contract argument, and listed the management rights provision as one of the contract sections at issue, apparently in his analysis the arbitrator really only expressly addressed an employer’s “noncontractual inherent management prerogatives” and past practice instead of addressing how the management rights clause authorized the employer’s actions.

This, along with some confusion as to whether the arbitrator addressed both the pay cycle and payday change, was enough for the Regional Director and the ALJ to determine that deferral was not warranted under Speilberg Mfg. and Olin Corp. because the evidence failed to reflect that facts relevant to resolving the ULP were presented, considered or decided by the arbitrator.  Dissenting Chairman Pearce agreed, and focused more on arbitrator’s failure “to make any finding whatsoever” on the key issue of whether the management rights clause or other contract language authorized the employer’s unilateral actions.  The Board majority worked around the arbitrator’s failing by finding that there was enough evidence within the decision to determine that he did rely upon the management rights clause, and that the arbitrator adequately considered the ULP given that the contractual issue and evidence were factually parallel to the ULP.

There are three takeaways from this decision.  First, in any arbitration involving a deferred charge it is important to argue, address and get the arbitrator to rule on the issues and contract language, such as the management rights clause, at issue in the ULP.  Common law reserved management rights claims will not cut it.  Second, while in this case there was no agreed issue and the arbitrator just worked from the union’s position, how the issue is crafted is important.  Third, note the Regional Director, an ALJ and the Board Chairman opposed deferring to the award.  The Board and its Regions are scrutinizing deferral over contract disputes much more closely than in the past.  Not only will this make deferral more difficult, at some point the Board may opt to revise its deferral standards similar to what it did for deferring Section 8(a)(3) matters in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014).  Deferral may be an endangered species.