Jurisdiction of the NLRB Over Arbitral
• Typical claims of violation of NLRA and CBA
– Discharge of an employee who is an elected local
union officer violated “just cause” provision and
8(a)(1) –(3)
– Employer unilateral change in TCE violated CBA
and 8(a)(5)
– Union has waived right under Sec. 8(a)(5) to
• Does Board have jurisdiction if parties have
agreed in CBA that all disputes will be addressed
through the grievance procedure and arbitration?
• Does the existence of a CBA remove the Board
from its statutory jurisdiction?
– If not, may the Board defer to the parties by
withholding a decision pending an arbitration award?
• If so, what standards should the Board use to
– Defer to the grievance and arbitration process
– Defer to the arbitration award
Board and Arbitral Jurisdiction
• Carey v. Westinghouse, 375 U.S. 261, 55 LRRM
2042, 1964
– Employer refused to arbitrate a dispute over the
union that would be assigned work, alleging it was a
representation issue under NLRA
– S.C. – Board processes legally superior to agreed upon
processes – Sec. 10(a)
• But no reason not to arbitrate, as NLRA encourages
collective bargaining and arbitration part of collective
• Board may invoke its superior authority if necessary
Board and Arbitral Jurisdiction
• Acme Industrial, 385 U.S. 431, 64 LRRM 2069,
– Board properly took jurisdiction over an informational
dispute that arose during a grievance over work
removal and found an 8(a)(5) violation
– Rejected employer argument that the informational
dispute must be resolved by the arbitrator
– Board not deciding merits of dispute
• Supports arbitration process
• Consistent with American Mfg., Warrior & Gulf, and Carey v.
Board and Arbitral Jurisdiction
• NLRB v. Strong Roofing and Insulating Co., 393 U.s. 357, 70 LRRM 2100,
Employer refusal to pay fringe benefits under a multi-employer association of which
employer was a member when agreement negotiated an unfair labor practice under
8(a)(5) and may be remedied by a Board order although agreement contained an
arbitration provision
– “The challenge of the employer, in brief, is that ordering the payment of fringe benefits
reserved in the contract inserts the Board into the enforcement of the collective
bargaining agreement, contrary to the policy and scheme of the statute. Admittedly, the
Board has no plenary authority to administer and enforce collective bargaining
contracts. Those agreements are normally enforced as agreed upon by the parties,
usually through grievance and arbitration procedures, and ultimately by the courts. But
the business of the Board, among other things, is to adjudicate and remedy unfair labor
practices. Its authority to do so is not "affected by any other means of adjustment or
prevention that has been or may be established by agreement, law, or otherwise . . . ."
10 (a) . . . Hence, it has been made clear that in some circumstances the authority of the
Board and the law of the contract are overlapping, concurrent regimes, neither preempting the other. . . . Arbitrators and courts are still the principal [393 U.S. 357,
361] sources of contract interpretation, but the Board may proscribe conduct which is
an unfair labor practice even though it is also a breach of contract remediable as such by
arbitration and in the courts. . . .. It may also, if necessary to adjudicate an unfair labor
practice, interpret and give effect to the terms of a collective bargaining contract. [393
U.S. 357 at 360-361]
Board and Arbitral Jurisdiction
• Does Board have jurisdiction if parties have
agreed in CBA that all disputes will be addressed
through the grievance procedure and arbitration?
– Yes - Board has authority to exercise jurisdiction over
UFLP charges arising under CBA with a grievance and
arbitration provision
– Per Section 10(a) of NLRA
• Does the existence of a CBA remove the Board
from its statutory jurisdiction?
– No
Board Deferral to Arbitration
• Pre-Arbitral Deferral
– What standards should the Board use to defer a
meritorious UFLP charge to the arbitration
• Post-Arbitral Deferral
– What standards should the Board use
Collyer Insulated Wire
Employer made unilateral changes in TCE, claiming that CBA gave it authority
to do so
– Union argument – UFLP in violation of 8(a)(5)
– Employer argument – CBA issue for arbitration
Board does not abandon its statutory authority by deferring to grievance
procedure and arbitration where
– dispute arises from contract
– there is machinery in contract to resolve dispute
Furthers statutory policy of encouraging parties to resolve own disputes
– Sec. 203(d) of LMRA
• Arbitral expertise in contact interpretation matters more appropriate
for deciding some disputes than Board expertise in statutory matters
• Dissent – only Board has expertise and legal authority to interpret
Collyer (cont.)
• Collyer criteria for pre-arbitral deferral (under
what circumstances will the Board defer a case to
non-repudiation of CBA
willingness to arbitrate/dispute must arbitrable
dispute must center on CBA
• Board Retains Jurisdiction
• Scope of Deferral
– 8(a)(5)/8(b)(3) cases
• involves interpretation of parties’ rights
– 8(a)(3)/8(b)(1) cases
deferral - National Radio (1972)
no deferral - General American Transportation (1977)
deferral - United Technologies (1984)
Involves interpretation of individual rights
• Board Retains Jurisdiction Over Case
– Arbitrator must submit a copy of award to NLRB
Examples of Situations in Which Board
Declined to Defer
• No stable CB relationship
– Employer signed an agreement with an uncertified union
(Mountain State Const. Co., 203 NLRB 1085, 1973)
– Employer attempted to place restrictions on the composition of
the Union's bargaining and bypassed union employees new
contract terms exceeding those offered during duly constituted
negotiating sessions (AMF, Inc., 219 NLR 902, 1975)
• Charge of employer retaliation for employee grievance
• Union decertified
• Employer to arbitrate
• Employer asserts case nonarbitrable
• Case not covered by CBA
Examples of Situations in Which Board
Declined to Defer (cont.)
• Dispute not central to CBA
– Bargaining unit accretion, union alleging
agreement covers additional employees
– Dispute among two unions regarding postreorganization representation
– Grievance over right of employees to distribute
literature where such distribution not addressed
in CBA
– Employer refusal to supply information
• Based on 8(a)(5)
Examples of Situations in Which Board
Has Generally Deferred
• Employer unilateral action based on
“reasonable rules” language in management
rights provision
• Employer discharge of union official under
“just cause” provision
Post-Arbitral Deferral
• Spielberg Manufacturing Co., 112 NLRB 1080, 36 LRRM 1152, 1955
– Following arbitration award in which arbitrator refused to reinstate
strikers accused of picket line misconduct, employees filed a UFLP
charge alleging an employer violation of 8(a)(1) –(3)
– Board said it will defer to arbitration award if award meets following
• Proceedings fair and regular
• Parties agreed to be bound
• Decision not “repugnant” to NLRA
– Raytheon Fourth Criterion, 140 NLRB 883, 53 LRRM 1129, 1963
• UFLP must have been considered by arbitrator
• Spielberg Rationale
– Promotion of industrial peace by encouraging CB
– Grievance and arbitration a substitute for industrial conflict
– Board should be “hospitable” to arbitration as “part and parcel of
collective bargaining process” unless proceedings flawed
UFLP Considered by Arbitrator
• “Factual Parallelism” (Olin Corporation, 268
NLRB 573, 115 LRRM 1056, 1984)
– Contract issue and UFLP charge “factually parallel”
– Arbitrator was presented with facts relevant to
resolving UFLP charge
– Arbitrator has no obligation to expressly consider
UFLP issue
• Differences between contract and statutory standards
should be resolved using Spielberg clearly repugnant
Fair and Regular Proceedings
• One of parties not represented
• Arbitration tribunal hostile to grievant
– Generally occurs where arbitration machinery
involves a joint labor-management committee
Criterion: Not Repugnant to NLRA
• Arbitrator’s decision must not be “palpably
wrong” under NLRA
– Arbitrator’s decision need not be that NLRB would
have made
– Examples of “palpably wrong decisions”
• Arbitrator upholding discharge for making statements
that included criticism of union leadership as
statements protected by Sec. 7
Settlements and Spielberg
• Board will examine settlements on deferred
cases to assure they meet all standards
– Settlement reached without grievant’s
participation or agreement to be bound violated
“Fair and Regular Proceedings” standard?
(Titanium Metal Corp., 340 NLRB No. 88, 173
LRRM 1305, enforcement denied as an abuse of
discretion 392 F.3rd 439, D.C. Cir., 2004)

Week 11, NLRA and Arbitration