The National Labor Relations Board recently issued a number of precedent-changing decisions with significant implications for employers. Since July 30, 2013, the board operated with a full complement of five members, including Chairman Mark Gaston Pearce (D) and members Kent Hirozawa (D), Nancy Schiffer (D), Philip Miscimarra (R) and Harry Johnson III (R). This month’s column will discuss several of the board’s latest actions, including rulings regarding arbitration deferrals, work email policies, classification of independent contractors, collective action waivers, as well as considerable changes to its rules for representation elections.

Arbitration Deferrals

On Dec. 15, 2014, in a 3-2 decision, the board in Babcock & Wilcox Constr. Co., 361 NLRB No. 132 (2014), announced significant changes in its standards for deferring NLRB action in favor of arbitration awards and arbitration procedures under collective bargaining agreements. The board held that going forward it will defer to an arbitration decision if the proponent of deferral shows (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 the deferral; and (3) board law reasonably permits the arbitration award.

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