Friday, January 28, 2005

NLRB Declines to Endorse Its Longstanding Policy of Not Deferring Information-Request Cases to Arbitration

In New Island Hospital, 344 NLRB No. 3 (2005), the Board refused to defer an information-request case back to arbitration because of the Arbitrator’s delay in resolving it, but refused to endorse its longstanding policy against deferring all information-request cases.

In New Island Hospital, a union filed a grievance alleging that the employer breached their CBA by failing to implement staffing guidelines (set forth in the CBA) that required a minimum number of nurses per patient. The union demanded arbitration after the employer failed to resolve the grievance to its satisfaction. Later, the union asked the employer for information on nurse/patient ratios to help make its claim in the arbitration. The employer refused, so the union served an arbitral subpoena on the employer for that information. In response, the employer moved the Arbitrator to quash the subpoena. The Arbitrator reserved judgment on the motion. He also postponed the arbitration hearing due to his illness.

After the Arbitrator informed the parties that he would delay his ruling on the employer’s motion to quash, the union filed a ULP charge with the NLRB. The General Counsel issued a complaint alleging that the employer violated Section 8(a)(5) by refusing to furnish the information to the union. The employer moved the ALJ to defer the case to arbitration. The employer argued that the union had chosen the arbitration route to resolve its information-request dispute, and that the union was stuck with its procedural choice. The judge denied the employer’s motion to defer, citing the Board’s longstanding policy against deferring information-request cases. He then found that the employer violated the Act by refusing to furnish the requested information. The employer excepted to the ALJ’s decision.

The Board agreed with the ALJ’s decision not to defer, but for a different reason. The Board majority (Chairman Battista and Member Schaumber) explained that it would be inappropriate to defer the information-request case back to the Arbitrator because over 10 months had elapsed since the Arbitrator was first asked to rule on the issue and he had not yet resolved it. Importantly, the majority stated that “[w]e find it unnecessary to pass on whether, absent such a delay, the Board properly should defer an information-request allegation to arbitration where a charging party has invoked the grievance-arbitration process and has also filed a charge with the Board.” In contrast, Member Liebman concurred on the ground that the Board never defers information-request cases. She did not rely on the Arbitrator’s delay.

The majority’s decision not to endorse its longstanding policy creates uncertainty regarding the circumstances in which the Board will hear or defer information-request allegations. Back in 2002, Member Bartlett stated in a concurring opinion that he would defer all information-request claims to arbitration if the information relates to an alleged contract breach -- even if the charging party never invoked the grievance-arbitration process. Phoenix Coca-Cola Bottling Co., 338 NLRB 498, 499 fn.2 (2002). Member Bartlett’s rule would shift the costs of litigating these disputes from the government to the unions. Undoubtedly, unions would end up with less information.

Unions would likely receive less information than they currently do even if the NLRB were to adopt a rule (less harsh than Member Bartlett’s) channeling information-request claims back to arbitration where the charging party demands arbitration and later goes to the NLRB. Unions might take this course of action for several reasons (either because they anticipate that the arbitrator will not require the employers to turn over all relevant information or because they run out of litigation resources). Under a new rule, the Board might turn unions away once they have invoked the grievance-arbitration process. We must wait and see what tack the Bush Board takes.


At 3:27 AM, Blogger Fiorino said...

On the other hand, by refusing to provide all the information requested by the union in a grievance arbitration, even if that refusal is upheld by the arbitrator, the employer incurs an increased litigation risk since the union (and even the individual grievant) now has a new means of challenging the arbitrator's adverse decision on the merits. Under the deferral doctrine, the Board would have to review the arbitrator's decision denying the information by determing whether the arbitrator departed from prior Board precedent on the relevancy of the request, a standard which has been mostly favorable to unions. The Board would probably also have to determine whether the denial of the information prejudiced the union's presentation or handling of the case before the arbitrator, an issue which the Board has rarely considered. A real Pandora's box here, not completely thought out by the employers who have been seeking this change for years.

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