By Christopher Busey

In Sheet Metal Workers International Association Local 18, 359 NLRB No. 121, the NLRB held that an employer’s unfair labor practice charge against a union should have been deferred to the grievance-arbitration procedure of the parties’ collective bargaining agreement. The result will come as somewhat of a surprise to those who have watched the Board and Acting General Counsel shrink the basis for Collyer deferral over the last few years. 

The employer, Everbrite LLC, filed a charge alleging the union’s refusal to bargain over a successor agreement in violation of Section 8(b)(3) of the Act. The agreement between the parties provided that the terms of the existing agreement would continue unless either side notified the other of its intent to bargain. The union claimed that the 2009 agreement should be extended for another year, while Everbrite argued that it alerted the local of its intent to bargain over a new contract. 

The administrative law judge ruled on the merits of the charge and dismissed the union’s argument that it should have been deferred to arbitration under the existing contract. The judge reasoned that since the issue had been heard on its merits any deferral would cause undue delay.  Second, the union’s untimely argument on deferral — five days before the hearing — was further evidence that the union simply sought to delay the outcome of the proceedings. Finally, deferral was improper because the union’s conduct “constitute[d] a rejection of the principles of collective bargaining.”

The Board rejected all of the ALJ’s reasons for refusing to defer the charge to arbitration. The delay from raising the issue of deferral was outweighed by a party’s right to raise an affirmative defense at any time, including at the hearing. The union also did not reject principles of collective bargaining. Instead, according to the Board, the union actually argued that the current agreement should remain in effect. Finally, the Board noted that the ALJ erred in addressing the merits of the charge before deciding on the threshold issue of deferral. Rather, the ALJ should have applied the well-established conditions for deferral:

[T]he parties’ dispute arises within the confines of a long and productive collective-bargaining relationship; there is no claim of animosity to employees’ exercise of Section 7 rights; the parties’ agreement provides for arbitration in a broad range of disputes; the parties’ arbitration clause clearly encompasses the dispute at issue; the party seeking deferral has asserted its willingness to utilize arbitration to resolve the dispute; and the dispute is well suited to resolution by arbitration.

Those conditions, laid out in decisions such as United Technologies Corp., 268 NLRB 557 (1984) and Collyer Insulated Wire, 192 NLRB 837 (1971), remain the standard for questions of deferral. The Board found that all of the conditions were satisfied here.

The silver lining of this case for employers is that the Board has reaffirmed that the question of Collyer deferral must be decided before proceeding to the merits of an unfair labor practice charge. Given the recent history of the Regions (and the Acting General Counsel) on this subject, however, we remain skeptical that this will lead to a more robust practice of deferral.