NCJ Number
108131
Journal
Washington Law Review Volume: 60 Issue: 2 Dated: (1985) Pages: 355-388
Date Published
1985
Length
34 pages
Annotation
The courts should no longer permit the National Labor Relations Board to pursue a policy of deferring labor disputes to arbitration.
Abstract
Questions of arbitration deferral have arisen in part because of the unsatisfactory state of the law regarding 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 this apparent overlapping of jurisdictions. Other questions now considered under deferral would be better handled as evidentiary matters 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 rulemaking 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 on an assessment of evidentiary matters in every case, but it would offer the opportunity for review of the policies followed by the General Counsel regarding arbitration awards. 149 footnotes.