Section 8(a)(5) Problems and Arbitration- Dispute Resolution Journal - Vol. 21, No. 3
Originally from Dispute Resolution Journal
A current issue in labor relations is the dual jurisdiction of arbitrators and the NLRB in those areas where collective-bargaining agreements and the National Labor Relations Act overlap. Arbitrators are pressed more and more to decide 8(a) (3), 8(a) (5), B(e), and 9(c) problems. The purpose of this report will be to analyze those cases in the 8(a) (5) area in which the Labor Board and the Courts have faced the issue of whether the national labor policy favors sequential adjudication (arbitrator-Board^ or Board-arbitrator^) or whether it favors compulsory deference of one forum to the other.
Jurisdiction problems arise over 8(a) (5) in two situations: (1) when an employer refuses to bargain over unilateral changes in wages, hours, or conditions of employment, or (2) when an employer refuses to provide information relating to an existing or potential grievance. To explore these two problems it is first necessary to look at the basic sources of power of both the Board and the arbitrator.
The NLRB's powers are stated in Section 10(a) NLRA^ which gives the Board the exclusive power to decide unfair labor practices. However, Section 203 (d) Labor Management Relations Act states a conflicting Congressional desire: "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method of settling grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. . . ."