What Are Unfair Labor Practices?
Unfair labor practices (ULPs) are actions by employers or unions that violate the National Labor Relations Act (NLRA). The NLRA, enforced by the National Labor Relations Board (NLRB), establishes the rules governing the relationship between employers, employees, and labor unions. ULP charges can result in costly legal proceedings, damages, reinstatement orders, and back pay awards. For HR professionals, understanding and preventing ULPs is a fundamental competency in labor relations.
Employer Unfair Labor Practices Under Section 8(a)
Section 8(a) of the NLRA prohibits employers from engaging in the following unfair labor practices:
8(a)(1): Interference with Employee Rights
Employers may not interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. This is the broadest category of employer ULPs and encompasses any action that discourages employees from exercising their right to organize, bargain collectively, or engage in protected concerted activity. Examples include threatening employees with adverse consequences for union activity, creating an atmosphere of surveillance around organizing efforts, and restricting employees' ability to discuss working conditions.
8(a)(2): Domination of a Labor Organization
Employers may not dominate, interfere with, or financially support a labor organization. This prohibition prevents employers from creating "company unions" or manipulating employee committees in ways that undermine genuine collective bargaining. However, employers may lawfully establish certain types of employee involvement committees, provided they do not deal with the employer on mandatory bargaining subjects.
8(a)(3): Discrimination
Employers may not discriminate against employees for engaging in union activity or for filing ULP charges. This includes actions such as terminating, demoting, transferring, or reducing the hours of an employee because of their union support. The employer must demonstrate that any adverse employment action would have occurred regardless of the employee's union activity.
8(a)(4): Retaliation for NLRB Proceedings
Employers may not retaliate against employees who file charges or testify in NLRB proceedings. This protection ensures that employees can participate in the enforcement process without fear of reprisal.
8(a)(5): Refusal to Bargain in Good Faith
Employers may not refuse to bargain collectively with the employees' chosen representative. This includes failing to meet at reasonable times, engaging in surface bargaining, making unilateral changes to mandatory subjects of bargaining, and bypassing the union to deal directly with employees on matters within the scope of the bargaining relationship.
Union Unfair Labor Practices Under Section 8(b)
Unions are also subject to ULP restrictions. Section 8(b) prohibits unions from restraining or coercing employees in the exercise of their rights, causing an employer to discriminate against an employee, refusing to bargain in good faith, engaging in secondary boycotts or recognitional picketing in certain circumstances, and charging excessive union dues or fees.
Prevention Strategies for HR Professionals
- Provide regular training to all managers and supervisors on NLRA compliance and the boundaries of lawful conduct.
- Establish clear policies that protect employees' rights to engage in protected concerted activity.
- Consult with labor relations counsel before taking any adverse action against an employee who has engaged in union or concerted activity.
- Document all employment decisions with legitimate business reasons unrelated to union activity.
- Apply policies consistently to avoid the appearance of discriminatory treatment.
- Respond promptly and appropriately to any ULP charge filed with the NLRB.
The ULP Charge Process
When a ULP charge is filed, the NLRB regional office investigates the allegations. If the investigation finds merit, the regional director issues a complaint. The case then proceeds to a hearing before an administrative law judge, who issues a decision that can be appealed to the full NLRB and, ultimately, to federal court. Throughout this process, settlement remains an option and is often encouraged. HR professionals should work closely with legal counsel from the moment a charge is filed.
Remedies for ULPs
When a ULP is found, the NLRB can order a range of remedies, including cease-and-desist orders requiring the employer or union to stop the unlawful conduct, reinstatement of terminated employees with back pay, posting of notices informing employees of their rights, bargaining orders in cases of serious employer misconduct, and other affirmative actions designed to restore the status quo and protect employee rights.
SHRM Exam Preparation
The SHRM exam tests knowledge of ULPs extensively. Be prepared to identify specific ULP violations from scenario descriptions, distinguish between employer and union ULPs, explain the NLRB complaint and hearing process, and recommend preventive measures. Pay special attention to Section 8(a)(1) violations, as they are the most common and frequently tested category. Understanding the concept of protected concerted activity (which applies even in non-union workplaces) is especially important.