NLRB General Counsel Set to Shelve More Retaliation Claims While Grievances Pending

If you represent private-sector employees, you have probably encountered the National Labor Relations Board’s (NLRB) Collyer deferral policy—you file an unfair labor practice charge on an issue that is or could be covered by a collective-bargaining agreement, the NLRB Regional Office (Region) ensures that the employer will process a grievance over that issue, and then the Region suspends its investigation while the grievance is processed. In 2014, in the case of Babcock & Wilcox Construction Co. the NLRB tightened up its deferral policy for charges involving retaliation against employees for engaging in union-related or other protected activity under Sections 8(a)(1) and (3) of the NLRA. Under Babcock, a party seeking to defer a charge (usually the employer) must show that an arbitrator was expressly authorized to decide the unfair labor practice issue, either in the collective-bargaining agreement or by agreement of the parties in that particular case. The Board reasoned that the broader deferral standards then in place inadequately protected employees from retaliation for engaging in union-related or other protected activity. After Babcock, the NLRB’s then-Acting General Counsel, Lafe Solomon, directed Regional Offices to apply the same stricter deferral standards to Section 8(a)(1) and (3) charges that were for whatever reason not deferrable under Babcock and Collyer, but where the underlying issues are the subject of a pending grievance, so-called Dubo deferrals. (GC Mem. 15-02) And while some have expressed concerns that the Trump-appointed Board might roll back these protections, as it has done in other areas, Babcock remains the law of the land.

But that didn’t stop the NLRB’s top prosecutor, General Counsel Peter Robb, who is now using his prosecutorial authority to sidestep the Board’s deferral policy. On December 28, 2018, Robb issued new guidance to NLRB Regional Offices, directing them to more broadly defer processing of unfair labor practice charges involving allegations of discrimination or interference with protected activity under Sections 8(a)(1) and (3) where the underlying issue is also the subject of a contractual grievance (GC Mem. 19-03, Deferral Under Dubo Manufacturing Company). Unlike deferrals under Babcock and Collyer, these Dubo deferrals cannot be appealed. GC Robb is also changing the rules by directing Regions to consider Dubo deferral first, which has the potential to greatly increase the number of cases deferred under this broader, non-reviewable standard.

Returning to the pre-Babcock standard, Regions will now defer Section 8(a)(1) and (3) charges if the issues raised in the pending grievance are “factually parallel” to the charge allegations and there is a reasonable possibility that the grievance may be resolved in a manner that is “not clearly repugnant” to the policies set forth in the National Labor Relations Act. Regions will also review arbitrator’s decisions Dubo-deferred cases under the broader pre-Babcock standard, even though the Board would apply a stricter standard if it reviewed the same arbitral award.

The bottom line is that you may find that your NLRB Regional Office is deferring more of your Section 8(a)(1) and (3) discharge or discipline cases if there is a parallel grievance, even where the grievance does not specifically address the theory of discrimination, retaliation, or interference with protected activity raised in the charge. These deferrals will likely not be appealable, and the subsequent review of any grievance resolution will be under the broader pre-Babcock standard. To learn more, you may wish to review pages 4–5 of the new GC Memorandum, which lay out specific casehandling instructions that the Regions will use to implement the new policy.