Update on NLRB’s Position on Deferring Information-Request Cases to Arbitration
On January 28, I noted that the Board has a longstanding policy against deferring information-request cases to arbitration and identified a case in which Chairman Battista and Member Schaumber refused to endorse that policy. See New Island Hospital, 344 NLRB No. 3 (2005). Well, on February 4, Chairman Battista and Member Schaumber made clear that they would like to overrule that longstanding policy when they have a third Member’s vote to do so. SBC California, 344 NLRB No. 11 (2005). By tradition, the NLRB requires three votes to overrule precedent. Ingram Barge Co., 336 NLRB 1259, 1259 fn.1 (2001); Redway Carriers, Inc., 274 NLRB 1359, 1359 fn.4 (1985). In accordance with this tradition, Chairman Battista and Member Schaumber applied current law in SBC California even though they disagreed with it.
As you can see, the two Board vacancies work to the Democrats’ advantage. Until a third Republican is placed on the Board, there will be no change in the law, provided that the Board sticks with tradition.