badsporh
He who is not with us, is against us.
Good article published recently on Law 360 about this case:
3rd Circ. OKs NLRB's Restored Arbitration Deferral Rule
By Braden Campbell · July 9, 2021, 4:43 PM EDT
The Third Circuit approved the National Labor Relations Board's decision to more readily defer to arbitrators when workers' grievances overlap with unfair labor practice allegations, but said it botched applying the revised test to a UPS worker who challenged his firing.
The unanimous panel on Thursday partially vacated the NLRB's December 2019 decision declining to second-guess a grievance panel's decision upholding worker Robert Atkinson's 2014 firing and reversing an Obama-era ruling giving less deference to arbitrators.
The Third Circuit panel said the more deferential standard the board adopted in UPS aligns with the National Labor Relations Act's goals but that the board should have entertained Atkinson's arguments that the grievance proceedings were unfair.
"According to the board, deferring to an agreed-upon dispute resolution proceeding encourages parties to the collective bargaining agreement to rely on the proceeding rather than attempting to circumvent the proceeding by taking grievances to the board in the form of an unfair labor practice charge," the panel said in a portion of its ruling discussing the policy shift. "This fulfills Congress' first policy mandate under [the NLRA]."
The board's arbitration deferral standard attempts to harmonize two occasionally conflicting policies in the NLRA: that workers and employers decide how best to settle contract disputes by negotiating a process for resolving grievances, and that the board "is empowered … to prevent any person from engaging in any unfair labor practice." These provisions can clash when a party to a collective bargaining agreement pursues a grievance and files an unfair labor practice charge challenging the same action, such as an illegal firing.
In this case, Atkinson, a Teamsters Local 538 member and steward, filed an unfair labor practice charge alleging he was fired over his union activities, while a grievance challenging his firing was still pending before an arbitration panel. The panel upheld Atkinson's firing, ostensibly for not following the right delivery process. The NLRB judge hearing Atkinson's board case declined to defer to the UPS panel, finding the members had it in for Atkinson because he led local opposition to a contract championed by Teamsters national leadership, and ordering that UPS rehire him.
UPS appealed the judge's ruling to the board, which reversed and called for greater deference to arbitration. The UPS panel said judges should decline to hear unfair labor practice cases that overlap with grievances when the arbitration process is "fair and regular"; the parties agreed to it; the contractual and unfair labor practice issues are "factually parallel"; the arbitrator "was presented generally" with the common facts; and the decision was not "clearly repugnant" to the NLRA. That test replaced a less deferential rule the board laid out in a 2014 decision known as Babcock & Wilcox Construction Co., restoring a standard the agency had used since 1984.
Atkinson challenged the board's policy shift and its application of the new test at the Third Circuit. Noting the courts' policy of deference to the NLRB, the panel said the agency's revised rule is "rational and consistent with the act" because it preserves parties' rights to have disputes heard before a neutral fact-finder.
But the board botched the case by declining to hear Atkinson's argument that the grievance panel was biased, the Third Circuit said.
The board said only the Office of the General Counsel, which prosecutes unfair labor practice cases on parties' behalf, could raise that argument. The Third Circuit said this misreads the NLRA, which allows "any party" to the dispute to press challenges to a judge's decision before the board.
"While we normally defer to the board, 'the board bears the burden of stating reasons for its action and making sufficient factual findings to support them. Only when the board does so can it clearly show that it has legitimately exercised its discretion,'" the panel said, directing the board to consider Atkinson's fairness argument.
An NLRB representative declined to comment. Attorneys for Atkinson and UPS did not immediately respond to requests for comment.
Judges Theodore A. McKee, David J. Porter and D. Michael Fisher sat on the panel for the Third Circuit.
Atkinson is represented by Catherine Highet of Highet Law LLC.
The NLRB is represented by David Habenstreit, Elizabeth Heaney and Joel Heller.
UPS is represented by Jennifer Asbrock of Frost Brown & Todd and by Tony Coleman and Jacqueline Rau of Dinsmore & Stohl.
The case is Robert Atkinson Jr. v. NLRB, case number 20-1680, before the U.S. Court of Appeals for the Third Circuit.
3rd Circ. OKs NLRB's Restored Arbitration Deferral Rule
By Braden Campbell · July 9, 2021, 4:43 PM EDT
The Third Circuit approved the National Labor Relations Board's decision to more readily defer to arbitrators when workers' grievances overlap with unfair labor practice allegations, but said it botched applying the revised test to a UPS worker who challenged his firing.
The unanimous panel on Thursday partially vacated the NLRB's December 2019 decision declining to second-guess a grievance panel's decision upholding worker Robert Atkinson's 2014 firing and reversing an Obama-era ruling giving less deference to arbitrators.
The Third Circuit panel said the more deferential standard the board adopted in UPS aligns with the National Labor Relations Act's goals but that the board should have entertained Atkinson's arguments that the grievance proceedings were unfair.
"According to the board, deferring to an agreed-upon dispute resolution proceeding encourages parties to the collective bargaining agreement to rely on the proceeding rather than attempting to circumvent the proceeding by taking grievances to the board in the form of an unfair labor practice charge," the panel said in a portion of its ruling discussing the policy shift. "This fulfills Congress' first policy mandate under [the NLRA]."
The board's arbitration deferral standard attempts to harmonize two occasionally conflicting policies in the NLRA: that workers and employers decide how best to settle contract disputes by negotiating a process for resolving grievances, and that the board "is empowered … to prevent any person from engaging in any unfair labor practice." These provisions can clash when a party to a collective bargaining agreement pursues a grievance and files an unfair labor practice charge challenging the same action, such as an illegal firing.
In this case, Atkinson, a Teamsters Local 538 member and steward, filed an unfair labor practice charge alleging he was fired over his union activities, while a grievance challenging his firing was still pending before an arbitration panel. The panel upheld Atkinson's firing, ostensibly for not following the right delivery process. The NLRB judge hearing Atkinson's board case declined to defer to the UPS panel, finding the members had it in for Atkinson because he led local opposition to a contract championed by Teamsters national leadership, and ordering that UPS rehire him.
UPS appealed the judge's ruling to the board, which reversed and called for greater deference to arbitration. The UPS panel said judges should decline to hear unfair labor practice cases that overlap with grievances when the arbitration process is "fair and regular"; the parties agreed to it; the contractual and unfair labor practice issues are "factually parallel"; the arbitrator "was presented generally" with the common facts; and the decision was not "clearly repugnant" to the NLRA. That test replaced a less deferential rule the board laid out in a 2014 decision known as Babcock & Wilcox Construction Co., restoring a standard the agency had used since 1984.
Atkinson challenged the board's policy shift and its application of the new test at the Third Circuit. Noting the courts' policy of deference to the NLRB, the panel said the agency's revised rule is "rational and consistent with the act" because it preserves parties' rights to have disputes heard before a neutral fact-finder.
But the board botched the case by declining to hear Atkinson's argument that the grievance panel was biased, the Third Circuit said.
The board said only the Office of the General Counsel, which prosecutes unfair labor practice cases on parties' behalf, could raise that argument. The Third Circuit said this misreads the NLRA, which allows "any party" to the dispute to press challenges to a judge's decision before the board.
"While we normally defer to the board, 'the board bears the burden of stating reasons for its action and making sufficient factual findings to support them. Only when the board does so can it clearly show that it has legitimately exercised its discretion,'" the panel said, directing the board to consider Atkinson's fairness argument.
An NLRB representative declined to comment. Attorneys for Atkinson and UPS did not immediately respond to requests for comment.
Judges Theodore A. McKee, David J. Porter and D. Michael Fisher sat on the panel for the Third Circuit.
Atkinson is represented by Catherine Highet of Highet Law LLC.
The NLRB is represented by David Habenstreit, Elizabeth Heaney and Joel Heller.
UPS is represented by Jennifer Asbrock of Frost Brown & Todd and by Tony Coleman and Jacqueline Rau of Dinsmore & Stohl.
The case is Robert Atkinson Jr. v. NLRB, case number 20-1680, before the U.S. Court of Appeals for the Third Circuit.
