Beware the unfair labor practice - not just for unions anymore

Employers are prohibited from interfering with, coercing, or restraining employees in the exercise of protected concerted activity. Examples include threatening statements from supervisors and/or issuing discipline in response to employees discussing terms and conditions of employment. Employers are further prohibited from interfering with the formation of a labor organization or discriminating against employees on the basis of their labor activity. Examples include providing financial support to a preferred union during an organizing campaign or disciplining employees for advocating for a labor organization.

Unions are similarly prohibited from restraining or coercing employees in the exercise of protected concerted activity. Unions also cannot attempt to cause an employer to discriminate against an employee or engage in strikes or boycotts that are prohibited. Examples include refusing to process a grievance because an employee is not a union member and participating in or supporting a work stoppage or slowdown.
If a ULP is committed, an employer risks being subject to a ULP charge.

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The ULP charge process

A ULP charge can be filed with the Board by an employer, union, or individual, depending on the in-question violation. A ULP charge must be filed with the applicable Board Regional Office within 6 months of the alleged misconduct. The filing of a ULP charge initiates the following process:

Investigation: A Board Field Examiner or Attorney will investigate the claims, including gathering evidence and testimony from the parties and witnesses. The Charged Party will be allowed to file a written statement in response to the ULP Charge. The information collected during the investigation will be presented to the Regional Director, who will determine whether or not there is sufficient evidence to warrant the issuance of a complaint.

Complaint and answer: If the Regional Director determines that sufficient evidence exists to support the ULP charge, a complaint and notice of hearing will be issued. Before issuing a complaint, the parties will have the option to engage in settlement discussions. The majority of cases that make it to the complaint stage ultimately settle. If settlement discussions are unsuccessful, a complaint will be issued and the Charged Party will submit an Answer. At this point, the Board takes over as the representative of the Charging Party.

Hearing and Board Administrative Law Judge (ALJ) decision: The parties will attend a hearing before an ALJ in which both parties are allowed to present witnesses and evidence in support of their positions. The ALJ will then issue a decision recommending either: 1) An order to cease and desist from the unfair labor practice and affirmative relief, or 2) Dismissal of the complaint.

Board decision: If no exceptions to the ALJ decision are timely filed by either party, then the Board will adopt the ALJ order. If exceptions are filed by any party, the Board will review the entire record.  The Board may adopt, modify, or reject the findings and recommendations of the ALJ.

Appeals from Board decisions: The final order and decision of the Board is appealable to the federal circuit court of appeals.

Responding to a ULP charge is a time-consuming and costly process, even when an employer prevails. If the charge is sustained, employers’ risk incurring additional, potentially significant costs to remedy the unlawful costs.

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ULP Remedies

The Board’s overarching goal when issuing a remedy is to make the aggrieved party “whole” — or to return them to the position they would have been had the unlawful conduct never occurred. On September 8, 2021, Board General Counsel Jennifer Abruzzo (GC Abruzzo) issued General Counsel memo 21-06, in which she clarified and expanded the scope of available remedies.

Unlawful terminations: Historically, remedies have been limited to reinstatement, back wages, and other benefits due to a worker less the deductions for wages the worker earned or could have earned during the time the case was pending. GC Abruzzo clarified that appropriate remedies also include “economic losses (apart from the loss of pay or benefits) suffered as a direct and foreseeable result of an employer’s unfair labor practice.” Provided examples of such foreseeable losses included health care expenses incurred due to lack of coverage, credit card late fees, and loss of a home or car suffered by an employee.

If the unlawful termination involves an undocumented worker, remedies include compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and other remedies to prevent unjust enrichment.

Unlawful conduct during a union organizing drive: Available remedies focus on mitigating lost costs due to a tainted election and ensuring a fair election ensues. In instances where an employer’s violation is considered especially egregious, the Board may bypass the election process and order the employer to recognize and engage in collective bargaining with the in-question labor organization.

Unlawful failure to bargain: This type of ULP only occurs in unionized work environments. Available remedies focus on encouraging ongoing discussions between an employer and labor organization, such as implementing bargaining schedules or utilizing a third-party mediator. If an employer fails to engage in good faith bargaining efforts, the Board may issue an order extending the period of time during which a union’s status as a bargaining representative may not be challenged.

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How to prevent ULP charges

Employers should consider implementing safeguards to proactively mitigate the possibility of a ULP Charge being filed. Suggestions include:

Management training on protected concerted activity and employee rights;

Annual review of key policies including grievance procedures, codes of conduct/respectful workplace policies, and social media policies to ensure compliance with Board precedent; and

Maintaining a respectful work environment. This includes establishing a clear complaint procedure and monitoring employee morale.

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Tracey Oakes O’Brien, legal content and knowledge manager, is a co-author of this content.