William B. Cowen, Acting General Counsel for the National Labor Relations Board (“NLRB”), released GC Memorandum 25-09 to outline how unfair labor practice charges (“ULPs”) should be handled when they can be addressed through the parties’ grievance and arbitration procedures. His stated goal is to allow parties to use their previously established alternative dispute mechanisms, giving deference to their bargained-for contract and promoting consistency. Deferring cases also allows more efficient use of Agency resources. The following is a summary of the Guidance.
Regions (offices of the NLRB which collectively cover the entire United States) should consider whether the ULP should be deferred to arbitration based on the criteria established in Dubo Manufacturing Corporation, 142 NLRB 431 (1963). To meet the Dubo criteria, (1) the grievance must have been filed pursuant to the parties’ collective bargaining agreement (CBA), (2) the ULP must be proper and timely, and (3) there must be a reasonable basis to believe that the dispute can be settled through arbitration.
If a grievance has not yet been filed but could be under the CBA, Regions are instructed to decide the deferral issue under the factors set forth in Collyer Insulated Wire, 192 NLRB 837 (1971). Under Collyer, (1) the conduct alleged in the ULP charge must arguably also be a violation of the CBA, (2) the CBA must have a grievance-arbitration process that ends in final and binding arbitration, and (3) the Charged Party must agree to waive timeliness objections if a grievance is filed late.
Finally, Regions will no longer contact parties on a quarterly basis to inquire about the status of a deferred case. Instead, Charging Parties must provide a deferral status report to the Region biannually on March 15 and September 15. A sample of that report can be found here.
These new procedures allow the Agency to focus its efforts on cases where parties have not bargained for alternative dispute resolution machinery. The Agency will retain jurisdiction over deferred cases and will review dispositions if requested.
Brody and Associates regularly advises its clients on all labor management issues, including collective bargaining strategies, and provides union-free training and counsel. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
