Category Archives: Arbitration

Federal Appeals Court Vacates Arbitration Award, Concluding Arbitrator Issued Own “Brand of Industrial Justice”

By Mark Theodore and Eric Novak on January 16, 2020 Posted in Arbitration

In the field of labor relations, there exist some rare occurrences, things that happen so seldom that it seems as if they are impossible. As we’ve previously discussed, one such “unicorn sighting” is the NLRB overturning an Administrative Law Judge’s credibility determinations. Another event that falls in the category of “super rare” is a court … Continue Reading

NLRB Gives End of Year Gift for Employers, Restores Longstanding Standard for Deferring to Arbitral Decisions

By Joshua Fox, Mark Theodore and Heylee Bernstein on January 3, 2020 Posted in Arbitration, Deferral, NLRA, NLRB, Section 8(a)(1), Section 8(a)(3), Unfair Labor Practices

In yet another end-of-2019 decision overruling significant NLRA precedent, the Board reverted to the less stringent Spielberg / Olin standard for determining whether to defer to arbitration decisions in the context of Section 8(a)(1) and (3) unfair labor practice cases. See United Parcel Service, Inc., 369 NLRB 1 (2019). The Board issued this decision unanimously, … Continue Reading

NLRB Issues “Epic” Decision Concerning the Intersection of Mandatory Arbitration Agreements and NLRA Section 7 Rights

By Mark Theodore, Michael Lebowich, Steven Porzio, Joshua Fox and Laura Franks on August 16, 2019 Posted in Arbitration, NLRA, NLRB, Section 7

On August 14, 2019, the NLRB issued its first decision addressing employer conduct related to mandatory arbitration agreements and Section 7 activity since the Supreme Court decided Epic Systems Corp v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems (discussed more fully here), the Supreme Court held that agreements between employers and … Continue Reading

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

By Mark Theodore on June 1, 2015 Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions. See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an … Continue Reading

NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements

By Ronald Meisburg on February 17, 2015 Posted in Arbitration, Deferral

Following the decision of the National Labor Relations Board in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (December 14, 2014), the NLRB General Counsel has issued Memorandum GC 15-02 (February 10, 2015), which provides guidance to the NLRB regional offices and to the general public regarding the application of that decision in pending … Continue Reading

Is Deferral to Labor Arbitration Awards in Jeopardy?

By Ronald Meisburg on February 10, 2014 Posted in Arbitration, Deferral, NLRA, NLRB

The National Labor Relations Board has issued a press release announcing its intention to revisit precedent created under a pair of Board decisions nearly 59 and 30 years old, respectively. The precedent involves under what circumstances the NLRB will defer to decisions of labor arbitrators in cases where there are pending NLRB unfair labor practice charges … Continue Reading

NLRB ALJ Says That Under D.R. Horton, Actions Speak As Loudly as Words

By Ronald Meisburg on January 21, 2014 Posted in Arbitration, NLRA, NLRB, Protected activity, Unfair Labor Practices

A few weeks ago, we posted about the Fifth Circuit’s decision in the D.R. Horton case and the NLRB’s doctrine of non-acquiescence. As you will recall, in D.R. Horton, the NLRB held that an employer violates the right of employees to engage in concerted activity by maintaining an arbitration program which prohibits employees from pursuing … Continue Reading

D.R. Horton and the Doctrine of Non-Acquiescence

By Ronald Meisburg on December 3, 2013 Posted in Arbitration, NLRB

Today’s decision by the U.S. Court of Appeals for the Fifth Circuit in D.R. Horton, Incorporated v. National Labor Relations Board, is a victory for employers who seek to channel work related disputes (other than NLRB charges) into an arbitration system which does not permit class action claims in either the arbitration or in court. But the … Continue Reading

Holiday Season Extravaganza: NLRB Issues Flurry Of Law Changing Decisions

By Mark Theodore on December 26, 2012 Posted in Arbitration, Collective Bargaining, Duty to furnish information, Duty to provide information, Facebook, General Counsel, NLRA, NLRB, Pre-arbitration Discovery, Protected activity, Section 7, Section 8(a)(1), Section 8(a)(5), Uncategorized

Last week the NLRB issued several significant decisions. In the press release announcing the decisions, the agency noted that most were actually issued “the week of December 10, but were issued this week following editing and formatting which is typical for the final decisions in a Member’s term.” This is a reference to Member Hayes’ … Continue Reading

NLRB Hints At Broader Agenda In Witness Statement Case

By Mark Theodore on March 21, 2011 Posted in Arbitration, Duty to furnish information, Duty to provide information, NLRB, Pre-arbitration Discovery, Section 8(a)(5), Unfair Labor Practices, Witness statements

Employers faced with evidence of employee misconduct often conduct investigations. In many cases, there is no direct evidence. Oftetimes, there exists conflicting versions of events, and so witness statements are obtained. The employer then can consider all the aspects of what happened, taking into consideration who saw what, and the candor of employees. For over 32 years, such … Continue Reading

NLRB GC To Regional Directors: Scrutinize Arbitration Decisions That May Implicate the NLRA

By Mark Theodore on February 1, 2011 Posted in Arbitration, Deferral, General Counsel, NLRB

The Acting General Counsel of the NLRB, Lafe Solomon, continued to shake up the way matters are handled at the agency, by issuing new guidelines for the handling of pre- and post-arbitration cases. The new policy guidelines will have an immediate impact on cases where the employment action (usually a discharge) has prompted both a grievance (alleging … Continue Reading

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