Unfair Labor Practice

The employer unfair labor practices

Section 8(a) of the NLRA lists five kinds of employer ULP:

1. Interfering with, restraining or coercing employees in exercising their Section 7 rights to organize, join a union, bargain collectively or act together for mutual aid or protection.
2. Dominating or interfering with the formation or administration of a labor organization, or supporting one financially.
3. Discriminating in hiring, firing or any term of employment to encourage or discourage union membership.
4. Retaliating against an employee for filing charges or testifying under the Act.
5. Refusing to bargain in good faith with the employees' chosen representative.

Section 8(b) lists parallel practices by unions, such as coercing employees or refusing to bargain in good faith with the employer.

ULPs in workplaces without a union

Many HR teams assume the NLRA only matters where there is a union. In fact, Section 7 protects "concerted activity" by non-supervisory employees whether or not a union exists. Some common examples that lead to charges:

• A handbook rule telling employees not to discuss their pay with each other
• Firing an agent who posted on social media, with coworkers, about understaffing and unpaid overtime
• Questioning employees about union interest or promising raises if they vote against a union
• Broad confidentiality instructions in investigations that stop employees from talking about working conditions
• Disciplining a group of warehouse workers who walked off a shift together over a safety concern

The NLRB's standard for judging handbook rules has shifted several times over the past decade, so review rules on confidentiality, social media and recording against current Board guidance.

How a ULP charge works

Anyone (an employee, a union or the employer) can file a charge with an NLRB regional office, generally within six months of the conduct. The region investigates, often asking the employer for a position statement and documents. If it finds merit, it tries to settle; otherwise the Regional Director issues a complaint and the case goes before an administrative law judge, with appeal to the Board and then federal court.

Remedies are designed to restore the situation, not punish: reinstatement, back pay, rescinding unlawful rules and posting a notice to employees. They can still be costly, and a posted notice in the break room is not something leadership wants.

How HR avoids ULPs

Train supervisors on what not to do during organizing activity: no threats, interrogation, promises or surveillance. Review the handbook every year for rules that could chill protected discussion. Before disciplining anyone for complaints, posts or walkouts, ask whether the conduct involved coworkers and working conditions; if so, get labor counsel involved. Where a union exists, bargain over mandatory subjects such as wages, hours and working conditions before changing them, and follow the grievance steps in the contract. For more on that process, see collective bargaining and retaliation.

The NLRA covers most private-sector employers but excludes supervisors, managers, agricultural and domestic workers and independent contractors. Public-sector employees fall under state law.