HR Support on Unfair Labor Practices

Editor's Note: Both unions and employers should fairly engage in labor practices.

Melissa BoyceOverview: The National Labor Relations Act (NLRA) prohibits employers and unions from engaging in numerous unlawful actions, known as unfair labor practices. Avoiding these unfair labor practices is part of the labor management process.

An employer commits an unfair labor practice if it:

  • Interferes with, restrains or coerces employees in their exercise of their NLRA rights;
  • Encourages or discourages union membership;
  • Discriminates against an employee for filing an administrative complaint or participating in the complaint process; and/or
  • Refuses to bargain in good faith with a union representative.

A union commits an unfair labor practice if it:

  • Refuses to bargain in good faith with an employer;
  • Causes an employer to pay for services not to be performed (featherbedding);
  • Attempts to restrain or coerce an employer in the election of its representatives for collective bargaining; or
  • Pickets an employer for union recognition.

Neither party can require a clause that discriminates against individuals on the basis of race, sex, religion, disability or any other category protected by law.

If a union or an employer believes that an unfair labor practice has been committed, it must file an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRA contains procedures for investigating, prosecuting, hearing, finding, dismissing, remedying and enforcing solutions to unfair labor practices filed with the NLRB.

Trends: All employees are guaranteed the right to engage in protected concerted activity whether or not they belong to a union.

This means they may work together to present an issue to their employer concerning their wages, benefits, or terms and conditions of employment and an employer may not terminate them for this activity. In the new age of social media, this has become an increasingly important protection.

Even though social media postings may be read by persons beyond an individual's co-workers, the posting still may constitute protected concerted activity under the NLRA.

The NLRB has also recently ruled employers may violate the NLRA with an across the board prohibition against the discussion of internal investigations with co-workers. While the need for confidentiality may be paramount (i.e., evidence is at risk of being destroyed or a witness needs protection), employers may now need to argue confidentiality was "necessary."

Author: Melissa Boyce, JD, Legal Editor

Latest items in Unfair Labor Practices

  • Employer Liability: Federal

    Employment Law Manual

    Updated to include information on NLRB decision revising the backpay formula for compensating employees found to have been unlawfully terminated.

  • Union Organization and Labor Relations: West Virginia

    Employment Law Manual

    Updated to reflect legal developments regarding the state's right to work law.

  • Class Action Waivers in Arbitration Agreements Violate NLRA, 7th Circuit Rules

    June 1, 2016

    The 7th Circuit Court of Appeals has ruled, in Lewis v. Epic-Systems Corp., 2016 U.S. App. LEXIS 9638 (7th Cir. 2016), that a health care software company's arbitration agreement violates the right of employees to engage in protected concerted activity under the National Labor Relations Act (NLRA) by barring them from participating in or pursuing wage-and-hour class action or collective claims. Because the ruling deepens a split among the circuits on this issue, it could lead to an eventual review by the Supreme Court to resolve the inconsistency.

  • Unfair Labor Practices: Federal

    Employment Law Manual

    This section helps HR professionals understand that the National Labor Relations Act prohibits employers and union employees from engaging in certain unlawful activities, known as unfair labor practices. In addition, this section also explains how the National Labor Relations Board investigates, prosecutes and remedies charges of unfair labor practices.

  • NLRB Form 5546 - Request to Block Petition

    Policies and Documents

    As mandated by the National Labor Relations Board, a party to a representation proceeding seeking to file an unfair labor practice charge and block a petition must file this form.

  • Podcast Features New NLRB 'Quick' Election Rules

    May 8, 2015
    Podcasts and Webinars

    The National Labor Relations Board's new election rules took effect April 14, and are already having a big impact on employers. These changes, which shorten the union election process, are the focus of a podcast with Los Angeles employment attorney Mark Theodore of Proskauer Rose.

  • May an employer prohibit its employees from using workplace email to solicit or otherwise communicate union-related information?


  • Public Sector Labor Relations: Missouri

    Employment Law Manual

    In-depth review of the spectrum of Missouri employment law requirements HR must follow with respect to public sector labor relations.

  • NLRB General Counsel Pursues Complaint Against McDonald's as 'Joint Employer'

    August 1, 2014

    In a startling move, the National Labor Board Office of the General Counsel (OGC) has announced that it authorized complaints on 43 unfair labor practice (ULP) charges against McDonald's franchisees and determined that McDonald's, USA, LLC, the franchisor, will be named as a "joint employer." The OGC's intention to proceed with ULP charges against a parent franchisor to hold it responsible for the employment practices of its franchisees conflicts with a decades-old legal standard and may have far-reaching implications for the current franchise model.

  • NLRB, OSHA Enter into Whistleblower Complaint Referral Program

    May 29, 2014

    The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) entered into a referral program in which OSHA agreed to refer time-barred whistleblower complaints regarding workplace safety to the NLRB for further investigation. The NLRB is likely to see a surge of safety-related ULPs as a result of this alliance with OSHA.

About This Topic

HR guidance and support on unfair labor practices including interfering with, coercing or restraining employees in the exercise of their NLRA rights.