The NLRB’s Backlog Leads to Change in Unfair Labor Practice Charge Process

The National Labor Relations Board (NLRB) adopted an amended processing procedure for unfair labor practice charges (ULPs) in a quiet, unheralded end-of-year memorandum from then-acting General Counsel William Cowen. For ULPs filed after October 1, 2025, the charging party must submit initial evidence or the charge may be dismissed before any NLRB investigation occurs. Cowen’s memorandum explains that “these procedures will provide much needed relief” to NLRB employees and likewise allow the NLRB “to efficiently and effectively process cases.”

The NLRB’s amended processing procedure was adopted as a calculated effort to address the unprecedented backlog of ULPs filed during the NLRB’s staffing exodus and nearly one-year lack of quorum, as well as the historic 43-day government shutdown (the longest in history). Before this change, the NLRB would automatically assign an investigator to each new charge to collect all factual information and documents before the agent was able to make a determination regarding dismissal.

Under the amended procedure, newly filed charges are placed on an unassigned pending case list until the charging party produces evidence to the NLRB, including a “chronological outline or timeline of the relevant sequence of events and exchanges related to the charge allegations,” along with the names and titles of any involved union and/or employer representative and witnesses, and a summary of each witness’s expected testimony, as well as “relevant documentation” and “supporting communication” within 14 days of filing the ULP. If this information is not filed, the charging party may face summary dismissal for failure to cooperate. Only charges that meet initial evidentiary tests will be assigned to an investigator. Even then, the charge will not be assigned or investigated until “there is a Board Agent who has sufficient capacity to allow them to timely investigate the charge.”

The amended process does not affect charges that existed prior to October 1, 2025, or new charges connected to existing cases, as those will still be assigned to an investigator. Likewise, rare “statutory priority” charges that can give rise to requests for court orders against unions will be assigned an investigator at filing.

The change in procedure likely means three very positive developments for employers alleged to have violated the National Labor Relations Act:

• Only charges that have sufficient evidence and merit will be pursued by the NLRB, thus requiring a response from the employer
• If assigned to an NLRB agent, investigations will move much more efficiently and quickly
• Stale cases that have long sat inactive with no decision or movement (some for upwards of two or three years) will (hopefully) see much-needed attention and resolution from the NLRB

In light of this change, Steptoe & Johnson’s Labor Relations team is ready to assist you through this new process or when you have a question about responding to charges from the NLRB. We encourage you to reach out to any of our team members if you have questions regarding the NLRB and how these developments might affect you specifically.