Unfair Labor Practice Charges

All charges filed with the regional office are investigated to determine whether there’s reasonable cause to believe the NLRA has been violated. The Board and/or its agents may:

• Examine and copy “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.”
• Issue subpoenas on the application of any party to the proceeding requiring the attendance and testimony of witnesses or the production of any evidence.
• Administer oaths and affirmations, examine witnesses and receive evidence.
• Obtain a court order to compel the production of evidence or the giving of testimony.

If the regional director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C.

If the regional director finds reasonable cause to believe a violation of the NLRA was committed, the director will seek a voluntary settlement to remedy the alleged violations.

• In General Counsel Memorandum 25-05, Acting General Counsel Cowan rescinded several General Counsel Memoranda urging Regions to include specific remedies in settlement agreements and complaints.1 Then, in General Counsel Memorandum 25-06, Cowan urged Regions to pursue settlement agreements to effectuate the NLRA, stating, “diligent settlement efforts should be exerted in all... cases” to “permit the [Board] to concentrate its limited resources on other cases by avoiding costly litigation expenses.”2 Under Cowan's directive, Regions are tasked with drafting settlements with the scope of remedial relief consistent with what the Board would order in cases involving similar facts and violations.

Despite Cowan's push for more settlement agreements, if these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB administrative law judge (ALJ). The ALJ issues a written decision, which may be appealed to the NLRB for a final agency determination. That final determination is subject to review in the federal circuit courts of appeals.

Section 8(a) of the NLRA lists the unfair labor practices of employers and section 8(b) lists those of labor organizations. Section 8(e) lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. You can find all references to sections of the NLRA at 29 U.S.C. sections 157-160.

Deferral to Grievance and Arbitration Procedures Under Collective Bargaining Act

Sometimes, the Board will halt its investigation into unfair labor practice charges and defer the dispute to the parties' grievance and arbitration procedure established by their collective bargaining agreement under certain circumstances. For example, the Board will defer unfair labor practice charge allegations where a party has not initiated a grievance under its collective bargaining agreement where the following conditions exist: (1) the parties have a long standing collective bargaining relationship; (2) the employer will process a grievance concerning the charge's allegations; (3) the employer is willing to process the allegations despite any procedural issues; (4) the contract's arbitration clause covers the dispute before the Board; and (5) the contract and its meaning lie at the center of the dispute.3 Alternatively, the Board will defer allegations when a party has grieved the same issue and grievance proceedings are ongoing while unfair labor practice charge remains pending.4

• On August 7, 2025, Acting General Counsel Cowan issued a General Counsel Memorandum urging Regions to consider whether unfair labor practice charges are subject to deferral, regardless of whether a grievance has been filed.5 The Memorandum urged Regions to do so because deferral “not only upholds the Act's statutory scheme, but it also allows for the judicious use of the [Board's] resources.” We expect the Board to continue pushing for parties to resolve labor disputes through their collective bargaining agreements' grievance resolution procedures, especially considering the Board has faced “decreased staffing levels and a steady case intake,” and will face a backlog cases the Board was unable to address for a substantial period of time during the 2025 federal shutdown.

1. NLRB Advice Memorandum GC 25-05, Rescission of Certain General Counsel Memoranda (Feb. 14, 2025)