NLRB Defers to Arbitral Decision in Healthcare Employment Dispute

A National Labor Relations Board (NLRB) panel has declined to shift the burden to limit the effect of an arbitration award in a healthcare employment dispute. In Shands Jacksonville Med. Ctr. Inc., 359 NLRB No. 104 (Apr. 26, 2013), the NLRB’s Acting General Counsel requested that the board require an employer charged with unfair labor practices to demonstrate that an arbitral award meets the NLRB’s requirements for acceptance rather than require the General Counsel to prove that it does not. The Acting General Counsel’s request to shift the burden with regard to the arbitral award was made using the same reasoning as demonstrated in the Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements (Memorandum 11-05, January 20, 2011). Instead, the panel chose to defer to the arbitrator’s award that reinstated a terminated employee without providing back wages and benefits. According to the NLRB panel, all parties agreed that the arbitration proceeding was fair, each agreed to be bound by the arbitrator’s award, and the arbitrator’s decision to refrain from awarding back pay was not “clearly repugnant to the Act.”