08/14/2025: New GC Memo on Deferring to Arbitration

Removing union signs from public property is a violation.

Catching up, back from vacation.

Guidance for Deferring Unfair Labor Practice Cases, GC 25-10, (GC Memo)

Sometimes an employer or a union engages in conduct that is both an unfair labor practice under the NLRA and a violation of a collective-bargaining agreement that has a dispute-resolution process typically involving grievance and arbitration. When that occurs, if an individual files an unfair labor practice charge, the NLRB will often “defer” the case, meaning that it will direct the parties to resolve the issue through their own dispute-resolution process first. There is some ambiguity about what criteria should be used to determine when deferral is appropriate.

This August 7, 2025 memorandum from Acting General Counsel William B. Cowen provides revised guidance on deferring issues presented in unfair labor practice cases. The memo establishes a new hierarchical approach to deferral and changes the reporting requirements for deferred cases. The Acting GC’s goal in writing the memo is to cause more cases to be deferred.

Key Changes

1. Revised Deferral Hierarchy:

   • Regions must first consider deferral under Dubo Manufacturing Corporation criteria

   • Only if Dubo criteria are not met should regions consider deferral under Collyer Insulated Wire

   • Dubo deferral decisions cannot be appealed, while Collyer deferral decisions can be appealed

2. New Reporting Requirements:

   • Regions will no longer conduct quarterly status checks on deferred cases

   • Charging Parties must submit biannual status reports on March 15 and September 15

   • First reports under this new system are due by September 15, 2025

   • Failure to submit reports may result in dismissal for lack of cooperation

Legal Rationale

The memo grounds its approach in the Supreme Court's Steelworkers Trilogy, which recognized that the NLRA's statutory scheme is supported when parties use their negotiated dispute resolution procedures. The GC emphasizes that deferral:

• Gives credence to the parties' collective bargaining agreement

• Fosters stability in labor relations

• Allows for more judicious use of Agency resources during a time of decreasing staffing and steady case intake

Deferral Criteria

For Dubo deferral, two criteria must be met:

1. The charge allegations must be facially proper and timely

2. Initial evidence must demonstrate a reasonable chance that parties can resolve the dispute through their contractual grievance-arbitration procedure

If Dubo criteria are not met, regions should apply existing Collyer practices.

Significant Cases Cited

• Dubo Manufacturing Corporation, 142 NLRB 431 (1963): Established criteria for deferring unfair labor practice charges to grievance procedures.

• Collyer Insulated Wire, 192 NLRB 837 (1971): Established alternative deferral criteria to be used when Dubo criteria are not met.

• Steelworkers v. American Mfg. Co, 363 U.S. 564 (1960): Part of the Steelworkers Trilogy recognizing the importance of contractual dispute resolution procedures.

• Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960): Part of the Steelworkers Trilogy emphasizing the role of arbitration in industrial peace.

• Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960): Part of the Steelworkers Trilogy addressing the enforcement of arbitration awards.

Starbucks Corporation, JD(SF)-19-25, 19-CA-295396 (ALJ Decision)

This case involves allegations that Starbucks Corporation violated Section 8(a)(1) of the National Labor Relations Act by issuing "Hi Partner" letters to employees at three stores in Washington and Oregon during union organizing campaigns in 2022.

Background

Workers United filed union representation petitions at three Starbucks locations: Valley River store (Eugene, Oregon), Union Station store (Seattle, Washington), and Olive Way store (Seattle, Washington) in March 2022. The NLRB approved stipulated election agreements setting mail ballot elections, and the Union prevailed at all three stores.

During the organizing campaign, district managers at each store issued nearly identical "Hi Partner" letters that were posted in store break rooms. The letters included two statements that became the subject of unfair labor practice allegations:

1. "Generally speaking, if the union gets the votes needed to represent you, good faith negotiations can often take more than a year - if a contract is reached at all."

2. "If a union is certified, benefits and wages will essentially be frozen while the parties negotiate the contract."

At the Union Station store, after employees expressed confusion about the meaning of "frozen" wages and benefits, management changed the language to "unchanged or subject to the bargaining process."

Legal Analysis

Administrative Law Judge Eleanor Laws analyzed two key allegations:

1. Regarding negotiations timing: The ALJ found that the statement that negotiations could take more than a year, if a contract was reached at all, was not unlawful. The statement was grounded in fact, as recent analysis showed first-contract bargaining took approximately 465 days on average. Without additional threatening context, this statement alone did not violate the Act.

2. Regarding "frozen" wages and benefits: The ALJ found this statement violated Section 8(a)(1). The Board has previously established that telling employees their wages would be frozen during negotiations without clarifying that the status quo (including scheduled increases) would continue violates the Act. This was particularly significant because Starbucks had previously announced upcoming wage increases scheduled for Summer 2022, but the letter suggested these increases would not occur for unionized employees.

The ALJ noted that employees who testified were confused by the term "frozen," with some fearing their wages and benefits would be stopped entirely. The ALJ rejected Starbucks' argument that the attempted clarification at one store cured the violation, finding it failed to meet the Board's requirements for an effective repudiation under the Passavant standard.

The ALJ also rejected Starbucks' constitutional arguments and its claim that any violation was de minimis.

Conclusion and Remedy

The ALJ ordered Starbucks to:

• Cease and desist from threatening employees that wages and benefits would be frozen during contract negotiations

• Remove the offending language from any flyers at the three stores

• Post a notice for 60 consecutive days and distribute it electronically

• File a certification of compliance

The ALJ declined to order enhanced remedies such as management training.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established that employer predictions about unionization must be carefully phrased based on objective fact to convey probable consequences beyond employer's control.

• DHL Express, Inc., 355 NLRB 1399 (2010): Found violation where employer advised employees that wages would be frozen during negotiations without assurance of status quo maintenance.

• Jensen Enterprises, 339 NLRB 877 (2003): Employer's statement that wages will be frozen until a collective-bargaining agreement is signed violates the Act if there is a past practice of granting periodic wage increases.

• Passavant Memorial Hospital, 237 NLRB 138 (1978): Established standards for effective repudiation of unfair labor practices.

• Amazon.com Services LLC, 373 NLRB No. 136 (2024): Established that threats about pay being frozen during lengthy negotiations while nonunion employees receive regular increases violates Section 8(a)(1).

Aqua-Chem Inc., JD-69-25, 10-CA-345660 (ALJ Decision)

Administrative Law Judge Keltner W. Locke found that Aqua-Chem violated Section 8(a)(1) of the National Labor Relations Act by removing union organizing signs from public right-of-way adjacent to its property.

The case stemmed from a May 2024 organizing campaign where union representatives placed signs displaying both union and company logos on public property near Aqua-Chem's facility. The company removed signs on May 28, claiming concern that the signs violated a city ordinance prohibiting unauthorized signs on public right-of-way, and that the company might be held responsible due to its logo appearing on the signs.

Judge Locke rejected Aqua-Chem's defense, finding that despite legitimate concerns about city ordinances, the company had no right to remove property belonging to the union from public property. He determined this action interfered with employees' rights to receive union communications during non-working time.

The judge dismissed allegations that Aqua-Chem attempted to enlist city officials to remove the signs or that it unlawfully prohibited use of its logo on union materials. He ordered Aqua-Chem to return the signs or reimburse their cost and post notices for 60 days.

Significant Cases Cited

• Troy Grove, 371 NLRB No. 138 (2022): Removing union signs from public property violates Section 8(a)(1).

• Muncy Corp., 211 NLRB 263 (1974): Removing union signs from public property interferes with employee rights.

Ge Appliances, a Haier Company, JD-70-25, 09-CA-332521 (ALJ Decision)

This NLRB case involves LaDonna Dawson, who was employed by GE Appliances, a Haier Company, from October 19, 2023, until her termination in November 2023. Dawson filed charges alleging that GE Appliances issued her a written warning and discharged her in retaliation for engaging in protected activities, in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

During her brief employment, Dawson experienced multiple workplace issues. She reported that her tape gun was moved, giving her less time to perform her work. She had an incident where a team leader marked her face with a bingo dauber, which Dawson believed was intentional while the team leader claimed it was accidental. Dawson also experienced issues with receiving her payroll checks, which were being deposited into an old bank account from her previous employment with GE.

The pivotal incident occurred on November 14, 2023. Dawson was informed about mandatory overtime approximately 15 minutes before the end of her shift. She questioned whether this short notice was permissible under company policy and the collective bargaining agreement. When speaking with her manager about this issue, Dawson allegedly yelled, pointed her finger, refused to wear her safety glasses properly, and caused a disruption that distracted other workers. The following day, Dawson received a written warning for "Gross Misconduct" and was terminated that same day.

The General Counsel argued that Dawson was engaged in protected concerted activity under the Interboro doctrine when questioning the overtime policy, as she reasonably believed she was asserting her rights under the collective bargaining agreement. The General Counsel also contended that her discharge violated Section 8(a)(3) under the Wright Line framework.

Administrative Law Judge Kimberly Sorg-Graves rejected both arguments. First, the ALJ found that Dawson did not have a reasonable and honest belief that the collective bargaining agreement's overtime provisions were being violated. The evidence showed that Dawson had received proper overtime notice, multiple employees (including union stewards) had attempted to explain the policy to her, and other employees continued working overtime without complaint. The ALJ distinguished this case from others where employees were found to have reasonable beliefs about contract violations.

Regarding the Wright Line analysis, while the ALJ acknowledged that GE knew Dawson had engaged in protected union activity by seeking assistance from the union, the General Counsel failed to establish that GE held animus toward this activity. The timing of the discipline coincided with Dawson's disruptive behavior, not merely her protected activity. The comparative evidence showed that other probationary employees had been discharged for similar behavior, and the company's actions showed it included union representatives in its interactions with employees and promptly responded to union officials' inquiries.

The ALJ concluded that the General Counsel failed to prove by a preponderance of the evidence that GE Appliances violated Sections 8(a)(1) or 8(a)(3) of the Act, and dismissed the complaint in its entirety.

Significant Cases Cited

• Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): Established the framework for analyzing discrimination cases that turn on employer motivation.

• NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Clarified when an employee's statement or action may be protected concerted activity under the Interboro doctrine.

• Interboro Contractors, Inc., 157 NLRB 1295 (1966): Established that an individual employee's reasonable and honest assertion of a collectively bargained right constitutes concerted activity.

• Electrolux Home Products, 368 NLRB No. 34 (2019): Discussed how the pretextual nature of an employer's justification may support an inference of unlawful motivation.

• King Soopers, Inc., 364 NLRB 1153 (2016): Illustrated circumstances where an employee had an honest and reasonable belief that contractual rights were being violated.