NLRB Backs Arbitration Award Without Pay, Declines Solomon Bid for New Deferral Rules

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By Lawrence E. Dubé  

 

The National Labor Relations Board April 26 deferred to an arbitrator's decision to reinstate a fired employee without back pay or credit for the time she lost from work despite claims by a labor union and NLRB's acting general counsel that the worker was illegally discharged for distributing a pro-union flyer (Shands Jacksonville Med. Ctr. Inc., 359 N.L.R.B. No. 104, 4/26/13).

No party challenged the fairness of the arbitration proceedings, and NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block held that the arbitrator's decision to deny back pay to Mishaun Palmer was not repugnant to the NLRA. Reinstatement without back pay is “not necessarily inconsistent with the Act,” the board members wrote.

The board said it was able to resolve the case based on existing precedent, and it declined to pass on Acting General Counsel Lafe E. Solomon's proposal that the board modify its standards on deferral to arbitration.

Dispute Arose Under Union Contract

Employees at Shands Medical Center in Jacksonville, Fla., were represented by locals 1781 and 1328 of the American Federation of State, County, and Municipal Employees. Local 1781 represented professional employees, while Local 1328 represented nonprofessionals. Employees in both units were covered by a collective bargaining agreement that was in effect from Sept. 10, 2009, to June 30, 2012.

The collective bargaining agreement contained a grievance procedure that culminated in binding arbitration of unresolved disputes. The agreement also prohibited strikes, restricted “unauthorized distribution of written or printed materials,” and forbade falsification of employer records.

Palmer, who was hired in 2001, was employed as a financial admissions representative but also served as Local 1328's recording secretary and a union steward.

On Feb. 4, 2010, Palmer finished work on a four-page flyer that asked employees “What would happen to the employees at Shands without a union” and posed similar questions.

The employer fired Palmer Feb. 10, contending she had violated several hospital rules and had not clocked out to conduct union business Feb. 4.

The union locals filed unfair labor practice charges that alleged the hospital's firing of Palmer for union activity violated sections 8(a)(1) and 8(a)(3) of the NLRA.

But the union also pursued a grievance on Palmer's behalf, and the unfair labor practice proceeding was deferred when the union advanced the grievance to arbitration.

Arbitrator Ordered Reinstatement, Denied Back Pay

The timing and circumstances of Palmer's distribution of the flyer were disputed during an arbitration hearing, and several union members contradicted Palmer's denials that she had handed out flyers Feb. 4.

The arbitrator concluded that the hospital was lax in enforcing its no-distribution policy, and he rejected the employer's claims that by distributing flyers Palmer called for a job action in violation of the contract. The arbitrator also concluded that Palmer's activity was brief and did not require her to clock out of work on union business.

But the arbitrator found that Palmer misled a supervisor when she was questioned about her activity, and she lied about some facts during the arbitration hearing. Approximately one year after Palmer's discharge, the arbitrator ordered Shands to return her to work without back pay.

NLRB Issue: Deferral to Arbitration Award

NLRB's acting general counsel proceeded on the unfair labor practice cases, asserting the arbitration decision did not merit deferral by NLRB. The arbitrator did not consider the unfair labor practice issue under the NLRA, and he rendered an award that was repugnant to the act, the acting general counsel alleged.

An NLRB administrative law judge decided that the arbitration award satisfied NLRB's standards for deferral, and he concluded that the unfair labor practice allegations should be dismissed. The board agreed.

Citing Spielberg Manufacturing Co., 112 N.L.R.B. 1080, 36 LRRM 1152 (1955), the board explained that it will defer to an arbitration award “when the arbitration proceedings appear to have been fair and regular, all parties had agreed to be bound, the arbitrator adequately considered the unfair labor practice issue that the Board is called on to decide, and the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act.”

The board members observed that no party claimed the arbitration proceeding was unfair or irregular, and the board found that the contractual issue considered by the arbitrator--whether Shands had good cause to discharge Palmer--was “factually parallel” to the NLRA issue raised by the unfair labor practice complaint over her firing.

“The only question remaining is whether the award, ordering Palmer's reinstatement without backpay and credit for time lost, is clearly repugnant to the Act,” the board said. “We agree with the judge that it is not.”

Stating that an award denying full back pay and benefits to a reinstated employee is not necessarily inconsistent with the NLRA, the board said NLRB has denied employees remedial relief in cases where they have “engaged in conduct that abused and undermined the integrity of the Board's processes.”

Finding that the arbitration award could be “interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath),” the board concluded the arbitrator's denial of back pay did not make the award repugnant to the NLRA.

No Ruling on Bid to Revise Deferral Standards

The acting general counsel announced in a Jan. 20, 2011, memorandum to the board's regional offices (Memorandum GC 11-05), that in cases brought under Section 8(a)(1) and 8(a)(3) of the act, “the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator” (25 LRW S-19, 1/27/11).

Solomon wrote in the memorandum that the board should be urged to adopt a position that deferral to an arbitration award would be appropriate only where (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.

It should be the burden of the party urging deferral to make that showing, Solomon concluded.

Counsel for the acting general counsel urged the board to adopt such standards in the Shands case, arguing that the arbitration award in dispute did not satisfy the proposed requirement that the arbitrator enunciate and apply NLRA principles in resolving the grievance over Palmer's discharge.

But the board said although Solomon's proposal focused on reallocating the burden of proof to the party urging deferral, the acting general counsel did not propose that the board revisit its precedent on determining when an award was repugnant to the act.

“Given those circumstances,” the board concluded, “we decline to pass on the Acting General Counsel's proposal in this case.”


Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-979phl.