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NLRB Lowers Bar for Deferring Cases to Grievance Process (1)

Dec. 23, 2019, 9:58 PMUpdated: Dec. 24, 2019, 12:24 PM

Employers will have an easier time avoiding NLRB cases alleging unfair labor practices when a worker could go or already had gone through a workplace grievance process involving the same underlying claims, following a Dec. 23 National Labor Relations Board ruling.

In a decision involving United Parcel Service Inc., the NLRB struck down an Obama-era case that had raised the threshold for the board to effectively turn away an unfair labor practice claim and defer instead to the grievance arbitration process. The 3-0 decision lowers the standard in part by shifting the burden of proof to the party opposing deferral.

The board’s decision could save employers the cost of defending at the NLRB against worker and union allegations of workplace misconduct.

The UPS ruling by a Republican-only board overturns precedent set by a five-member, bipartisan panel in 2014, though the two Republican members on that panel dissented in the ruling. The lack of a Democratic voice in the current decision—the term of Lauren McFerran, the lone Democrat on the board, ended Dec. 16, the same date of the ruling—could open up the NLRB to more criticism from Democrats and worker advocates who’ve accused President Donald Trump‘s appointees of abandoning the NLRB’s central mission of protecting workers’ rights.

Board members have said they’re merely working to restore the balance between protecting employees’ and employers’ rights that was upset by a pro-worker Obama-era NLRB.

“Under the restored traditional standard, the Board will continue to safeguard the exercise of Section 7 rights—particularly by ensuring that arbitral awards are not clearly repugnant to the Act—while better promoting the strong federal policy in favor of arbitration as the parties’ agreed-upon mechanism for resolving employment disputes,” the NLRB said in a statement Dec. 23.

The case arose from a former UPS worker’s allegations that he was fired for his union activity, which allegedly violated both his employment contract and federal labor law. Robert Atkinson went to the NLRB after a grievance panel rejected his challenge of his termination.

An administrative law judge had allowed Atkinson to pursue his claim because UPS didn’t meet the standard from the board’s 2014 ruling in Babcock & Wilcox—which itself overturned a standard that had been in place for nearly three decades.

The case is UPS, N.L.R.B., Case 06-CA-143062, 12/16/19.

(Clarifies the description in the fourth paragraph of the NLRB rulings in 2014 and today.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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