Overview: 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:
A union commits an unfair labor practice if it:
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
The 2nd Circuit Court of Appeals has upheld National Labor Relation Board findings that an aluminum manufacturer committed multiple unfair labor practices before and after a union election. However, the court denied enforcement of a bargaining order issued to remedy the ULPs, ruling that the Board did not fully take into account events occurring between the time of the unfair labor practices and its order.
Updated in light of the NLRB General Counsel Memo 18-02 concerning employer rules and other significant workplace issues.
Updated to reflect developments regarding the state's 'right to work law'.
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.
Updated to reflect the NLRB reverting to the Browning-Ferris joint employer test.
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.
As mandated by the National Labor Relations Board, all employers must post NLRB Form 501 - Charge Against Employer.
This chart helps an employer navigate the National Labor Relations Board (NLRB) organization and enforcement process.
HR guidance and support on unfair labor practices including interfering with, coercing or restraining employees in the exercise of their NLRA rights.