Currently the NLRB (the Board) in DC is attempting to use RA's case to set new precedent by overturning existing precedent that has allowed his case to progress as far as it has.
RA's case has been able to get to this point in part because of something called the Babcock and Wilcox review standard.
Simply put, this standard or precedent allows cases brought before the Board to not be deferred to the grievance machinery when there is a likelihood that those who are supposed to be on the union member's side (the union representatives or State Panel members) are actually adversarial to the member or political enemies of the member.
The previous standard (that was overturned in favor of Babcock in 2014) was the Spielberg review standard. The Board is attempting to go back to this standard and apply it retroactively to RA's case. The Spielberg standard did not care if the State Panel was made up of political enemies, thus meaning if you lost at State Panel the NLRB would consider that your 'bite at the apple' and consider your case to be deferred or over.
If the Board is successful in using RA's case to change this standard, the ALJ's decision will be vacated and the Board will attempt to declare RA's case null and void.
UPS's legal counsel and the US Chamber of Commerce have written briefs in favor of returning to the Spielberg review.
The Association for Union Democracy and RA's legal counsel have written briefs in favor of keeping the Babcock and Wilcox review standard.
You missed my point entirety. So, I’ll simplify. None of that matters when the the union (that’s supposed to be pro worker, not “stacked” political appointees, and chosen by said workers) fails to do its part.
Each administration appoints members to the board for 5 year terms, with one member expiring each year, confirmed by the Senate. McConnell held up Obama's appointments so now with Trumps you have a Board weighted towards Employers with no advocacy for Labor. Couple that with the SCOTUS stacking and a lot of Union members will have a rude awakening coming and the damage will be felt for decades. They sure stuck it to us liberals though.
So, what you are implying is...during the time of your preferred appointee’s control no employers are able to erroneously fire someone? And no unions ever collude with a company to get rid of an employee, or, don’t honor their obligation to represent said employee?It does matter because the NLRB can right the wrongs of a Union as well as an employer, and now with the changing standard by new appointees that is less likely to happen.
So, what you are implying is...during the time of your preferred appointee’s control no employers are able to erroneously fire someone? And no unions ever collude with a company to get rid of an employee, or, don’t honor their obligation to represent said employee?
And that when someone else is in those positions companies are able to erroneously fire employees in droves and unions are inept except at helping the companies get rid of people?
A little bit of the backstory:
Back in May of this year (2019) the NLRB issued an invitation to file briefs in RA's case in regard to whether they should remove the postarbitral deferral standard announced in Babcock & Wilcox (which favors working men and women) and go back to the previous Olin standard (which does not favor working men and women).
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 parties agreed to be bound, the Board will defer to an arbitral decision if ●☆the party urging deferral☆●(this is generally the company) 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.
(3) Board law reasonably permits the award.
Under Spielberg/Olin the Board deferred to an arbitration/joint panel award or decision when:
(1) the arbitration proceedings were fair and regular
(2) all parties agreed to be bound by the decision
(3) the arbitral decision was not repugnant to the purposes and policies of the Act.
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.
(2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor
●☆The burden of proof rested with the party opposing deferral☆● (this is generally a rank and file union members).
The NLRB General Counsel's office has issued their own brief in favor of returning to Spielberg/Olin....showing that they are in fact sadly on the side of big business.
Others who filed a brief in favor of Spielberg/Olin were the Chamber of Commerce of the United States and the law offices of Frost, Brown, Todd (UPS's legal counsel).
Filing briefs in favor of retaining the Babcock and Wilcox standard on behalf of RA and all union members were RA's attorney Cathy Highet and also The Association for Union Democracy.
Below I've attach links to all of these briefs and the NLRB decision soliciting these briefs.
P.S. Thank you to Board member Lauren McFerran for offering a dissent to the Board's decision to attempt to do away with Babcock and Wilcox. She is the loan voice defending working men and women remaining on the Board and she is doing a fantastic job.
P.S.S. Also thank you to the Association for Union Democracy for writing a brief defending Babcock and Wilcox. They are excellent defenders of the rank and file!
P.S.S.S. And as always, thank you to RA's attorney Cathy Highet. This case would have never made it past the Pittsburgh Regional office with RA's charges if it wasn't for her. If you click the link below for the brief that she wrote, it's very evident what an amazingly gifted and talented legal mind that she is.
Link to RA's case:
NLRB | Public Website
Direct link to Board Decision requesting briefs:
General Counsel's Brief:
RA's attorney Cathy Highet's brief:
The Association for Union Democracy's brief:
UPS attorneys Frost, Brown,Todd's brief:
The Chamber of Commerce of the United States of America's brief: