Redefining the Power of Arbitration in Unfair Labor Practice Cases: NLRB Solicited Briefs on the Issue

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In line with recent efforts in the courts to define the scope of power of the arbitral forum, the National Labor Relations Board (NLRB) recently took on the issue of whether to modify the standard it applies to determine whether to defer to an arbitrator’s decision in a matter that presents unfair labor practice issues.  NLRB General Counsel requested that the Board modify the standard to require deferral, so long as it is not repugnant to the Act, if the party seeking deferral shows “(1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.” The NLRB issued a Notice & Invitation to File Briefs in Case 28-CA-022625, Babcock & Wilcox Construction Inc., seeking amicus and party briefs by March 25, 2014.  NLRB Press Release.