In this case, the NLRB adopted a new standard regarding its deference to arbitrators’ findings in determining unfair labor practice charges in administrative proceedings before the NLRB.  This decision affirms the NLRB’s determination to apply its new deference standard only prospectively and not to the parties to this case.  While the issue was one of first impression–a factor weighing in favor of retroactive application–the remaining factors in the test for deciding retroactivity weighed in favor of the NLRB’s determination.  Most particularly, the NLRB’s new deference standard was less deferential and shifted the burden of proof on the issue of deference.  Because the prior standard had been followed for decades, the parties to this case relied on it in preparing and presenting their case to the arbitrator and would be surprised and prejudiced by application of the new standard.  Also, the employer would be further prejudiced if the arbitration award was not given deference at this late date since the witnesses would likely have forgotten what happened almost a decade ago.

 Ninth Circuit Court of Appeals (Huck, J. sitting by designation; Fletcher, J. concurring.); October 17, 2017; 2017 WL 4638028.