NLRB General Counsel Changes ULP Charge Deferral Policy

By Kamer Zucker Abbott

February 4, 2019

National Labor Relations Board (“NLRB” or “Board”) General Counsel Peter Robb recently issued new guidelines to all NLRB Regional Offices concerning a change to one part of the Board’s deferral procedures – a change that is favorable to employers.

“Deferral” is a process whereby the NLRB allows an unfair labor practice (“ULP”) charge alleging violations of the National Labor Relations Act (“NLRA”) to be initially addressed using the grievance resolution process contained in the parties’ collective bargaining agreement. If the parties’ grievance resolution process adequately resolves the matter (both the alleged contract and NLRA violations), the effect is equivalent to a dismissal of the ULP charge. When successful, the deferral of ULP charges preserves the Board’s limited resources and negates forcing employers to simultaneously litigate the same dispute in multiple forums.  

Via Memorandum GC-19-03, the current General Counsel has removed barriers to deferral imposed by the Obama Board in situations where the union or person filing the ULP charge is already voluntarily using the CBA’s grievance resolution process to address the same matter in dispute (referred to as Dubo deferrals). General Counsel Robb directed the NLRB’s Regional Offices to grant Dubo deferrals early in the investigative process wherever the evidence establishes an arguable violation of the NLRA, the charge allegations fall within the scope of a grievance filed by the charging party or individual grievant, the CBA’s grievance resolution process provides for binding arbitration, and a reasonable chance exists to resolve the dispute or set it to rest.

This is good news for employers as it will reduce simultaneous, multi-forum litigation of the same disputes. We are hopeful that the Trump Board will also reconsider the overly stringent standards applied to the NLRB’s other deferral standards. If you have questions or would like to learn more about the Board’s deferral process, please contact a KZA attorney.