## Facts

- Babcock & Wilcox Construction Co., Inc. employed Coletta Kim Beneli as a utility operator; she also served as a union steward for IUOE Local 428.
- The employer disciplined Beneli and later discharged her, asserting she had an angry outburst and used profanity toward a supervisor after a suspension.
- Beneli and the union claimed the discipline and discharge were retaliation for union activity, violating NLRA §§ 8(a)(1) and 8(a)(3) and contractual just-cause/anti-retaliation provisions.
- The union pursued a grievance under the collective bargaining agreement before a joint labor-management grievance-review subcommittee.
- The subcommittee issued a brief decision upholding the discharge as for “cause,” without addressing whether the discharge was unlawful retaliation under the NLRA (or otherwise indicating it considered the statutory issue).
- Beneli filed an unfair labor practice charge; the Region initially deferred to the contractual process, then revoked deferral after the subcommittee decision and issued a complaint.
- An ALJ applied the then-existing deferral standard (Spielberg/Olin) and would have deferred; the General Counsel and Beneli sought Board review, urging a stricter deferral approach.

## Issues

1. What standard should govern Board deferral to arbitration/grievance decisions (and related settlements) in NLRA §§ 8(a)(1) and 8(a)(3) discrimination/retaliation cases.
2. Whether the burden of proving deferral prerequisites should rest on the party seeking deferral or the party opposing it.
3. Whether deferral to the grievance subcommittee’s decision was proper on these facts.

## Decision

- The Board (3–2) overruled Olin and modified Spielberg for §§ 8(a)(1) and 8(a)(3) discrimination/retaliation cases.
- The Board held deferral is appropriate only if the party urging deferral proves:
  - the decision-maker was explicitly authorized to decide the unfair labor practice issue;
  - the statutory issue was presented to and considered by the decision-maker (or the opposing party prevented such consideration); and
  - Board law reasonably permits the result.
- Applying the new standard, the Board declined to defer because the subcommittee’s decision did not show consideration of the NLRA retaliation issue and there was no adequate showing of explicit authority to decide it.
- The Board proceeded to adjudicate the unfair labor practice allegation rather than treating the grievance outcome as controlling.

## Legal Principles

- The Board has discretion under NLRA § 10(a) to adjudicate unfair labor practice charges even when a dispute is also subject to contractual grievance-arbitration procedures.
- In §§ 8(a)(1) and 8(a)(3) retaliation/discrimination cases, post-arbitral deferral requires proof by the party seeking deferral of: explicit authorization to decide the ULP issue, actual consideration of the statutory issue, and an outcome reasonably consistent with Board law.
- A contractual “just cause” determination, without a demonstrated consideration of the statutory retaliation question, is insufficient for deferral in this category of cases under the standard adopted here.
- The allocation of the burden of proof may be shifted to the party seeking deferral to ensure statutory rights are not displaced by decisions that do not meaningfully address NLRA issues.

## Conclusion

The Board refused to treat a grievance subcommittee’s “cause” finding as dispositive of an alleged retaliatory discharge and adopted a stricter, employer-burden deferral test requiring explicit authority and demonstrated consideration of the NLRA issue before deferral is permitted in §§ 8(a)(1) and 8(a)(3) discrimination/retaliation cases.


Babcock & Wilcox Constr. Co., 361 N.L.R.B. No. 132 (2014)