NLRB Acting General Counsel Issues Guidance for Deferring Unfair Labor Practice Cases

Today, NLRB Acting General Counsel William B. Cowen issued GC Memorandum 25-09. The memo provides revised guidance on the investigation procedures for unfair labor practice charges that may be deferred to the parties’ collectively bargained grievance and arbitration process. 

Explaining the rationale for the changes, Acting General Counsel William B. Cowen noted that in the Steelworkers Trilogy[1] the Supreme Court observed that the Act’s statutory scheme is supported when parties to a collective-bargaining relationship avail themselves of their negotiated dispute resolution machinery to resolve their differences. Deferring unfair labor practice charges to the parties’ grievance procedure gives credence to their contract and fosters stability in labor relations.[2]  Deferral not only upholds the Act’s statutory scheme, but it also allows for the judicious use of Agency resources. 

Noting the Agency’s limited resources, the memo instructs Regions to first consider at the outset of the investigation whether the allegations are appropriate for deferral under the standards established in Dubo Manufacturing Corporation, 142 NLRB 431 (1963). If the criteria for Dubo deferral are not met, then Regions should consider the appropriateness of deferral under Collyer Insulated Wire, 192 NLRB 837 (1971).  Further, Regions will no longer contact parties on a quarterly basis to inquire about the status of the related grievance in deferred cases; instead, Charging Parties are obligated to provide a deferral status report to the Region on a biannual basis – March 15 and September 15. The deferral status report can be found here.

Cowen stated: “Given the limitations of our budget, the Agency needs to focus our resources on cases where the parties do not have mutually agreed dispute resolution mechanisms. Of course, the Agency retains jurisdiction over deferred cases and will review ultimate disposition if requested by the parties.” 

[1] See Steelworkers v. American Mfg. Co, 363 U.S. 564, 566 (1960); Steelworkers v. Warrior &Gulf Navigation Co., 363 U.S. 574, 581 (1960); and Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.593, 596 (1960).

[2] Id.