Washington Law Review


In January 1984 the NLRB, reconstituted by President Reagan's appointees, announced significant changes in the Board's policies concerning deferral to the arbitration processes established by employers and unions in their collective bargaining agreements. The new policies are redolent with the politics of a changed administration rather than expertise in labor relations. The changes continue the Board's uncertain treatment of the relationship between its jurisdiction to prevent unfair labor practices and arbitrators' decisions concerning collective bargaining agreements. The newly announced policies are consistent with the conviction that the federal government should sharply reduce its regulatory activities, transferring its previous responsibilities to local governments or private initiative. These policies are also consistent with a view that labor unions are not desirable institutions that deserve protection to ensure their continued existence and growth. They reflect a buoyant optimism that, despite the problems associated with unbridled pursuit of self-interest, all will go well if government will only go away. There certainly will be judicial challenges to, and probably rejection of, at least portions of the new policies. The certainty of judicial review thus makes it appropriate to reconsider the entire policy of Board deferral to the arbitration process. This article is such a reconsideration and proposes that courts should no longer permit the Board to pursue a policy of deferral. Primary responsibility for development of the policy governing the relationship between the prevention of unfair labor practices and the arbitration process should be placed upon the General Counsel of the NLRB, who now in fact makes the decisions and thus produces the law in action even under Board announced policies. Questions of deferral have arisen in part because of the unsatisfactory state of the law concerning the duty to bargain during the term of a collective bargaining agreement. The present law suggests that actions taken, usually by employers, may be either violations of the duty to bargain or violations of the collective bargaining agreement. The proposed clarification of the law will eliminate that apparent overlapping of jurisdictions. Other questions now considered under the rubric of deferral would be better treated simply as evidentiary matters to be considered in determining whether a complaint should issue on an unfair labor practice charge. The General Counsel, whose office is an administrative agency for the purposes of the Administrative Procedure Act, should use rule-making procedures to promulgate the rules concerning the effect of a prior arbitration award in determining whether a complaint shall issue. This would not ensure judicial review of refusals to issue complaints based upon an assessment of evidentiary matters in every case, but it would offer the opportunity for review of the policies followed by the General Counsel with respect to arbitration awards. The General Counsel should also publish at least a representative sample of arbitration decisions found to justify the dismissal of charges.

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