United Parcel Service

National Labor Relations Board - Unpublished Board Decisions

Mar 15, 2019

06-CA-143062 (N.L.R.B. Mar. 15, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNITED PARCEL SERVICE, INC.
and Case 06-CA-143062
ROBERT C. ATKINSON, JR.
NOTICE AND INVITATION TO FILE BRIEFS
On November 25, 2016, Administrative Law Judge Geoffrey Carter issued a
decision in the above-captioned case, finding, inter alia, that it was inappropriate for the
Board to defer to a joint grievance panel that upheld the discharge of the Charging
Party. Specifically, he found that under the postarbitral deferral standard announced in
Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), the Respondent did not
carry its burden to demonstrate that the grievance panel considered the statutory issue
of whether the Respondent violated the National Labor Relations Act by discharging the
Charging Party.1
In Babcock, the Board announced a new standard for deferring to arbitral
decisions in cases alleging violations of Section 8(a)(3) and (1) of the Act. Under this
standard, if the arbitration procedures appear to have been fair and regular, and if the

1 The standard for deferral to a joint grievance panel is identical to that generally
applicable to arbitration awards. Airborne Freight Co., 343 NLRB 580, 580 (2004).
parties agreed to be bound,2 the Board will defer to an arbitral decision if the party
urging deferral shows 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 award. Id. at 1131.
Babcock replaced the previous standard, under which the Board deferred to an
arbitration award when (1) the arbitration proceedings were fair and regular; (2) all
parties agreed to be bound; and (3) the arbitral decision was not repugnant to the
purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further,
the arbitral forum must have considered the unfair labor practice issue. The Board
deemed the unfair labor practice issue to have been adequately considered if (1) the
contractual issue was factually parallel to the unfair labor practice issue, and (2) the
arbitrator was presented generally with the facts relevant to resolving the unfair labor
practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rested with the
party opposing deferral.
The parties are invited to address the following questions:
1. Should the Board adhere to, modify, or abandon its existing standard for
postarbitral deferral under Babcock & Wilcox Construction Co., 361 NLRB 1127
(2014)?
2. If the Board decides to abandon the Babcock standard, should the Board return
to the holdings of Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp.,
268 NLRB 573 (1984), or would some other modification of the Board’s standard
for postarbitral deferral be more appropriate?
3. If the Board decides to abandon the Babcock standard in favor of either the
Spielberg / Olin standard or some other standard for postarbitral deferral, should

2 These traditional requirements for deferral were unchanged by Babcock. Id. at 1131
fn. 10.
it apply the newly adopted standard retroactively in this case and other pending
cases or prospectively only?
Supplemental briefs not exceeding 25 pages in length may be filed with the
Board in Washington, D.C. on or before April 29, 2019. The parties may file responsive
briefs on or before May 14, 2019, which shall not exceed 15 pages in length. The
parties shall file briefs electronically at http://mynlrb.nlrb.gov/efile and serve all case
participants. If assistance is needed in E-filing on the Agency’s website, please contact
the Office of Executive Secretary at 202-273-1940 or Executive Secretary Roxanne
Rothschild at 202-273-2917.
Dated, Washington, D.C., March 15, 2019.
By direction of the Board:
/s/ Roxanne Rothschild
Executive Secretary
MEMBER McFERRAN, dissenting.
Unlike my colleagues, I would decide this case under the postarbitral deferral
standard announced in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014).
First, no party to this case has asked the Board to overrule, modify, or even revisit
Babcock. To the contrary, the Respondent affirmatively cited Babcock as “controlling
precedent” and is simply arguing to the Board that the judge reached the wrong result
under Babcock.
Second, revisiting Babcock at this time is premature because the Board’s
adjudicative experience with Babcock is extremely limited. The decision issued less
than 5 years ago and applied only prospectively. Moreover, as a practical matter the
Babcock Board further extended the effective date of the decision for many employers
and unions. Recognizing that many then-current collective-bargaining agreements
would not satisfy the first requirement of the revised deferral standard – that the
arbitrator be explicitly authorized to decide unfair labor practice issues –the Board
provided that, in such circumstances, the revised Babcock standards would not apply
until those agreements had expired, or the parties had agreed to submit particular
statutory issues to arbitration. As a result, there appears to be only one published
Board decision applying Babcock since its issuance. See Mercy Hospital, 366 NLRB
No. 165 (2018). The Board surely would benefit from gaining more experience with
Babcock before attempting to evaluate suggestions to adhere, modify, or abandon it.
To be sure, the majority’s decision in this instance to seek briefing from the
parties is welcome. Better yet, though, the majority ought to adhere to the Board’s
sound, traditional practice of seeking participation from the public at large before
reconsidering a significant precedent such as this one. Nevertheless, I will fully
consider with an open mind whatever evidence and input might result from the
majority’s request for briefing by the parties. I trust that my colleagues will, in turn, also
remain equally open to adhering to current law.
____________________________
Lauren McFerran, Member