NLBR Issues Guidance on the New Standard to Be Applied in Deferral to Arbitration Cases

The General Counsel’s Office of the National Labor Relations Board (NLRB) has issued a General Counsel Memorandum with guidance for regional offices on managing cases in which a party claims deferral to arbitration.  The GC Memorandum also sets out the standard Administrative Law Judges should follow going forward.  The Memorandum is issued in the wake of the Board’s decision in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014), in which the National Labor Relations Board (NLRB) changed its long-standing standard for when an unfair labor practice may be deferred to arbitration.

The Memorandum states that deferral may be appropriate “where the arbitration procedures appear to have been fair and regular, the parties agreed to be bound, and the party urging deferral demonstrates that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law “reasonably permits” the arbitral award.”

The Board’ s Decision in Babcck as explained in the Memorandum represents a significant change to the deferral standard.  Previously, the burden of opposing deferral rested on the party seeking to avoid deferral. Under the new standard, the party advocating deferral (typically the employer) bears the burden.

The Memorandum (and its attachments) are available at: The Board’s Decision in Babacock is available at:

Article written by Dawn J. Lanouette, Partner at Hinman, Howard & Kattell, LLP.  To contact Mrs. Lanouette directly call (607) 231-6917 or 

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