This article was originally published on Law360.com.
Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could have been filed.
The new Memorandum GC 19-03 reverses much of a prior memorandum, issued during the final year of the Obama administration which precluded deferral unless the parties had expressly agreed to the arbitration of the unfair labor practice. The ability of unions to force litigation in two forums had not existed since the passage of the National Labor Relations Act.
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