The National Labor Relations Board (NLRB) recently issued a memorandum regarding a modification of its intake, processing, and assignment of unfair labor practice charges. The modification requires charging parties to submit an offer of proof, which must include evidence and documentation of the allegations, before a case is docketed. The memorandum states that the updated procedure does not impose a substantial burden beyond prior practice, but charging parties should be aware that failure to provide the proof may result in the charge not being docketed.
Memorandum GC-26-01 (Memorandum), issued by William B. Cowen as one of his last acts as the General Counsel of the NLRB, outlines the procedures that charging parties must follow. The new procedure for processing and assigning charges applies to charges filed after October 1, 2025, and as stated above, requires charging parties to submit evidence and documentation within two weeks of filing. Failure to do so may result in the case not being assigned to a board agent.
The NLRB states that the purpose of the new protocol is to “improve efficiency and reduce delays” and cites the significant caseload of the NLRB. Charging parties must e-file specific evidence, including: (1) a chronological outline of relevant events and communications; (2) relevant documentation and supporting communications; and (3) a list of witnesses with contact information and a summary of each witness’s testimony. The Memorandum acknowledged that the regional offices faced significant caseloads and delay, in addition to a backlog from the recent federal government shutdown and decreased staffing.
This change largely benefits employers, as unions are usually the party filing a charge. Employers may see improved efficiencies in the NLRB procedure, along with quicker resolutions of unfair labor charges. Additionally, employers should note the potential for an unfair labor charge to be dismissed for failure to comply with the Memorandum. Employers should be keen to monitor unfair labor charge filings to ensure that there is compliance, as well as consider their record retention policies for records, communications, and events related to potential charges that the employer may want to file. Failure to retain records may result in an inability to bring an unfair labor charge.
