According to public records obtained by Law360, National Labor Relations Board (NLRB or Board) prosecutors deferred 582 unfair labor practice (ULP) cases to grievance and arbitration between August 2025 and March 2026. Deferral generally benefits employers, while unions mostly prefer NLRB litigation. Overall, deferral remains relatively rare (fewer than 6% of all ULP cases). Still, the deferral rate in 2026 is on pace to be the highest since 2022.
This increase follows an August 2025 memo from then–Acting General Counsel William Cowen directing regions to prioritize and streamline deferrals. Since then, regional offices have raised deferral much earlier in ULP investigations. In a February 2026 memo, current General Counsel Crystal Carey advised that Cowen’s memo on deferrals remains in effect.
As background, the NLRB may defer cases under either the Dubo or Collyer standards, depending on whether a grievance has been filed and whether arbitration is available.
The Dubo standard applies when a union or employee has already filed a grievance under the dispute resolution process in a collective bargaining agreement (CBA). If that grievance procedure is capable of resolving the dispute, NLRB prosecutors may defer the ULP charge and allow the contractual process to run its course.
A key feature of Dubo deferral is that the decision to defer cannot be appealed to the Board. Once deferred, the charging party must keep the NLRB updated on the status of the grievance or risk dismissal of the charge.
The Collyer standard allows deferral even when no grievance has been filed, as long as the CBA includes a grievance procedure that ends in binding arbitration and the charged party agrees to waive any timeliness defenses that might otherwise bar arbitration. Unlike Dubo deferral, a decision to defer under Collyer is appealable, giving parties an opportunity to challenge whether deferral is appropriate. As with Dubo, the charging party must provide periodic status updates to the NLRB.
Cowen’s August 2025 memo instructed the NLRB’s regional offices to “first consider” deferring the case under Dubo and then, if not, whether it would be appropriate under Collyer. Cowen’s approach also reduced the cadence of status updates the parties must provide from quarterly to twice a year.
With this rise in deferrals by NRLB prosecutors, employers may want to consider suggesting deferral early in a ULP investigation in an effort to utilize their negotiated grievance procedures—particularly where such forums could be more favorable than the NLRB.
Additional Assistance
For further assistance, please contact any of the attorneys on our Labor and Employment Practice Team or the Phillips Lytle attorney with whom you have a relationship.
Receive firm communications, legal news and industry alerts delivered to your inbox.
Subscribe Now
