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

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