Why Acting GC Cowen’s new guidance gives employers (and unions) some welcome breathing room.
In GC Memo 25-10, issued August 7, 2025, Acting General Counsel William Cowen told Regional Offices to prioritize deferring unfair labor practice (ULP) charges to collectively bargained grievance and arbitration procedures before launching an investigation. The directive emphasizes the importance of using mechanisms already agreed to by employers and unions in their CBAs. It’s a return to a more business-friendly, resource-conscious standard, and it echoes Cowen’s public comments that the Board’s limited resources should be focused on disputes without a negotiated resolution path.
What changed?
Instead of charging full steam into an investigation, Regions are now instructed to:
- Apply the Dubo Manufacturing 142 NLRB 431 (1963) (“Dubo”) standard first. Is the charge timely, facially valid, and reasonably resolvable through the parties’ contractual grievance procedure? If so, the Region defers and moves on. Dubo deferral decisions are not appealable.
- If Dubo doesn’t apply, consider Collyer Insulated Wire, 192 NLRB 837 (1971) (“Collyer”), a narrower deferral standard that the Board has long recognized.
- Shifts the burden to the parties. No more quarterly check-ins by the Board. Charging Parties must now submit biannual deferral status reports (March 15 and September 15). Failure to submit can result in dismissal for lack of cooperation.
In short: if your CBA has a grievance process and the dispute can reasonably be handled there, the Region should stay out of it. No overlapping investigations. No parallel processes. Just a clear lane for the parties to use the tools they negotiated.
Why this is a good move
It respects the CBA. Grievance and arbitration clauses are not window dressing. They are the primary vehicle for resolving workplace conflict in a unionized setting. Employers shouldn’t have to fight the same battle on multiple fronts, and employees shouldn’t have their concerns mired in duplicative Board procedures when a functioning resolution process is already in place.
It conserves NLRB bandwidth. The Board is short-staffed and overloaded. Cowen is openly acknowledging the need to focus limited resources on cases where the parties don’t have a contractual mechanism to resolve disputes.
It creates predictability. When disputes are handled through the existing grievance process, both sides know the rules, the players, and the decision-makers, often arbitrators with industry-specific expertise and knowledge of the parties’ history.
A smarter use of everyone’s time
In a rare point of agreement, this shift benefits both labor and management. It keeps the NLRB focused where it’s truly needed, while preserving the certainty and speed of the contractual dispute resolution process.
If you’re operating under a CBA, now is the time to:
- Review your grievance and arbitration provisions for clarity and efficiency.
- Train front-line managers on the importance of supporting early deferral requests.
- Be ready to document why a ULP charge meets the Dubo standard right at the outset.
This isn’t a sea change in labor law, but it’s a meaningful step toward reducing bottlenecks—and putting more trust in the systems employers and unions have already agreed to use.
