The National Labor Relations Board’s General Counsel (through Regional Offices) investigates violations of the National Labor Relations Act. An Unfair Labor Practice (ULP) occurs when an employer or union violates Section 8 of the Act. Those affected by these violations, including nonunion employees, can bring NLRB charges against the offending party. The NLRB receives 20,000 to 30,000 charges a year from employers, employees, and unions. Employers should be aware of the most common board charges to help them reduce the chance of receiving one.
Common NLRB Charges Against Employers
Employers incur NLRB charges by interfering with employee rights to engage in concerted or union activity and engaging in “bad faith” collective bargaining. Common allegations against employers include threatening or disciplining employees for union activity and promises of certain benefits in exchange for employees not to engage in union activity. In collective bargaining, common allegations against employers include refusals to provide requested information, bargaining in “bad faith,” and attempting to negotiate directly with employees.
To lessen the chance of receiving charges, employers should train managers in complying with the Act. Furthermore, charges of “bad faith” bargaining do not mean employers cannot take a hard stance in negotiations or leave the bargaining table. However, an employer cannot bargain with no intention of actually reaching a deal.
It is also important for employers to be aware that the balance between employer and employee rights under the NLRB tends to fluctuate based on the political climate in Washington.
Common NLRB Charges Against Unions
Charges against unions are less common than allegations against employers. Common charges against unions include failure to represent an employee in a grievance and failure to bargain in “good faith”. It is also common for charges against unions to allege illegal coercion of employees, illegal picketing, secondary boycotts, and discrimination against employees. Both employers and employees can bring charges against unions.
Once a charge is filed, the General Counsel investigates the allegation to determine whether there is reasonable cause to issue a complaint or dismiss the charge. The investigation is delegated to the Regional Director of the area where the alleged violation occurred, assuming the parties involved fall under NLRB jurisdiction. If the Regional Director decides to issue a complaint, an Administrative Law Judge will hear the case. As shown in the chart below, most charges result in withdrawal or settlement.
The NLRB encourages voluntary resolution throughout the investigation process. This includes an alternative dispute resolution (ADR) program which aids in settlement through mediation and arbitration. The NLRB recently announced an initiative to be more proactive in encouraging parties to participate in ADR.
Potential Consequences of NLRB Charges
In some cases, the NLRB’s General Counsel can seek a temporary injunction under Section 10(j) of the Act. Temporary injunctions are intended to stop ULPs and irreparable harm to employees during the litigation process. The Act defines 15 categories of labor disputes where temporary injunctions are appropriate, including secondary boycotts and hot cargo agreements. Temporary injunctions cease once the NLRB decides the case.
If the NLRB ultimately finds a violation, it can order reinstatement of employees, pay back pay, or other make-whole remedies. It can also issue informational remedies, such as requiring an employer to post notices in the workplace. The NLRB cannot assess pure penalties under the Act. It has no statutory power to enforce its decisions directly, but can seek enforcement through the federal court system.
The consequences of a charge also include the time and money spent during the investigation, adjudication, and litigation processes.
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