Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.
To many employers’ delight, the Collyer Deferral Doctrine is no longer on the NLRB’s “naughty” list thanks to GC Memorandum 18-02, which rescinded GC Memorandum 12-01.
What Is The Collyer Deferral Doctrine?
Under the Collyer Deferral doctrine, the NLRB should defer certain unfair labor practice (“ULP”) charges to an employer’s and a union’s bargained-for contractual grievance procedure if certain requirements are met. The purpose of the doctrine is to encourage the parties to resolve issues directly through their collectively-bargained dispute resolution procedures without unnecessary government intervention.
What Did GC Memorandum 12-01 Do?
In January 2012, Acting General Counsel Lafe Solomon issued General Counsel Memorandum 12-01, instructing NLRB field offices not to defer cases to arbitration where arbitration would not resolve the case within one year. This Memorandum also introduced significant changes to the NLRB’s longstanding arbitration deferral policy by imposing significant limits to the use of dispute resolution systems specifically designed by employers and unions to meet their particular needs.
For example, the Memorandum required that once a case was deferred, the Region must ascertain from the parties the status of the arbitral proceedings every ninety days and determine whether the parties are meeting their obligation to process the case and what action should be taken. Section 8(a)(1) and 8(a)(3) cases had the additional requirement that after the charge had been deferred for one year, the Region should send a “show cause” letter to all parties seeking an explanation of why deferral should not be revoked and a full investigation made. The GC Memorandum 12-01 called the Regions to revoke the parties’ agreed upon method of handling disputes, unless arbitration was imminent. Section 8(a)(5) cases were to be handled in a similar manner as Section 8(a)(3) cases if arbitration was not likely to occur in a year or had not been completed within a year, and the case implicated statutory rights or involved serious economic harm to the Charging Party.
What Does The Rescission Of GC Memorandum 12-01 Mean?
Robb’s new GC Memorandum rescinds this GC Memorandum 12-01. Rescission of this memorandum upholds basic principles of contract law and allows the parties to move within the time limits set forth in their bargained-for agreements.