How may an employer defend against an unfair labor practice charge?

Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.

Once an unfair labor practice charge is filed by the union with a particular National Labor Relations Board (NLRB) regional office, an NLRB agent will be assigned to investigate the case. During the investigative stage, the NLRB agent will ask the employer for its version of the facts. During this phase, the employer should retain labor counsel who is thoroughly trained in investigating these cases. Relevant documents should be examined and witnesses interviewed. It is important to remember that before interviewing an employee who is a member of the bargaining unit, he or she should be instructed that: (1) his or her participation in the interview is voluntary; (2) he or she has the right to either participate or to refuse to participate in the interview; and (3) there will be no retaliation if he or she refuses to participate in the interview.

Once the investigation ends, the employer will generally submit a position statement in which it responds to the union's or employee's allegations and sets forth the employer's version of the facts and understanding of the law. Sometimes, the NLRB agent wants more questions answered or may even want to interview employer representatives. An employer representative has a right to have counsel present during those interviews, and it is advisable that counsel be present. If, after the investigation, the NLRB Regional Director believes that the employer violated the law, he or she will file a complaint. The employer may defend itself in a fact hearing before an administrative law judge who has the power to rule for or against the employer. Whoever loses the case may appeal to the NLRB in Washington, D.C. If the employer loses there, it has the right to appeal to the Circuit Court of Appeals and, ultimately to the Supreme Court.