The National Labor Relations Act (NLRA) sets the ground rules for how employers interact with workers about pay and other working conditions. Section 7 of the Act gives workers the right to join together to address workplace concerns collectively, even when they are not members of an organized union.
The National Labor Relations Board (NLRB) enforces the NLRA through unfair labor practice (ULP) cases and can require employers to pay workers damages if they violate the law. In 2022, the Board broadened the range of damages it can impose. Before the change, the Board could only order employers to pay employees for lost wages, also known as “back pay”. Now, it can require employers to pay employees for any direct or foreseeable financial loss that resulted from the violation.
What the NLRA Prohibits
Unfair labor practice cases start when an employer’s conduct crosses the lines set in Section 8(a) of the National Labor Relations Act. Each subsection of Section 8(a) addresses a different area of workplace conduct and carries distinct obligations for employers.
Section 8(a)(1): Interference, Restraint, or Coercion
Section 8(a)(1) makes it unlawful for an employer to interfere with, restrain, or coerce employees exercising their rights under Section 7. Workers have the right to act together to discuss workplace issues or to join or form a union. When an employer threatens or interrogates employees or pressures them to stay silent for exercising this right, the conduct can be treated as unlawful interference under the NLRA.
Section 8(a)(3): Discrimination Based on Protected Activity
Section 8(a)(3) makes it illegal for an employer to treat workers differently based on their membership in or support for a labor organization. An employer violates this rule when it fires or demotes an employee, or refuses to hire an applicant, to discourage organizing or other collective activity about workplace concerns. When an employer takes adverse action for union support or collective activity, the NLRA treats it as unlawful discrimination.
Section 8(a)(5): Refusal to Bargain in Good Faith
Section 8(a)(5) makes it illegal for an employer to refuse to bargain with the union selected by employees under Section 9(a) of the NLRA. Once a union is certified, the employer is required to meet with that representative to negotiate pay and other working conditions. When an employer ignores the union, deals with employees on its own, or unilaterally alters the terms of employment before reaching agreement or impasse, the NLRA treats it as an unlawful refusal to bargain.
See https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act
Responding to a ULP Charge
ULP cases begin when an employee or a union files Form NLRB-501 (Charge Against Employer) with the National Labor Relations Board’s regional office that covers the workplace involved. On the form, the person filing answers questions that describe what the employer did and which part of the National Labor Relations Act it may have violated.
How the Investigation Begins
Once the charge is filed, the NLRB assigns it to a regional investigator, who contacts the employer for records and a written response, and decides how the case should proceed. If the investigator decides that the allegation is not supported by sufficient evidence, the NLRB closes the case. If the evidence shows that the employer may have violated the law, the agency issues a complaint and refers the case to an administrative law judge for a hearing.
How Employers Should Respond
When the NLRB notifies an employer that a charge has been filed against it, the company should gather all records tied to the allegation before responding. The company should appoint one management representative to handle all communication with the agency to keep the information consistent.
Written responses should focus on facts and cite records that explain the company’s decision. Relevant evidence might include the company’s written policies, attendance logs, disciplinary records, or emails showing how the same rule has been applied in similar situations. Employers that submit detailed evidence showing the basis for its decision give the NLRB a clear record to evaluate and can prevent the case from advancing to a hearing.
The Wright Line Framework
When a charge involves discipline or discharge connected to protected activity, the NLRB applies the Wright Lineframework to determine the employer’s motivation. The framework originated from an NLRB decision and was later affirmed by the U.S. Supreme Court. It outlines how the agency decides whether the employer’s action was influenced by protected activity or by a legitimate business reason.
Phase One: The General Counsel’s Burden
Under the Wright Line framework, the NLRB evaluates motive in two stages. General Counsel carries the first burden of presenting evidence to prove that the employer’s action was influenced by protected activity. Evidence may include the timing of a termination or comments made by managers referring to the employee’s union involvement. The NLRB also looks at whether workers accused of the same rule violation cited by the employer as the reason for discipline were treated differently based on their involvement in protected activity.
Phase Two: The Employer’s Burden
Once the General Counsel meets the initial burden, the responsibility then transfers to the employer. Employers need to show that they would have made the same decision even if the employee had not engaged in protected activity. Evidence created before the dispute arose is generally the most persuasive. A dated attendance record showing the employee was continuously late to work or a performance evaluation that documents multiple missed objectives helps establish that the employer’s decision was based on legitimate business concerns.
Core Defense Strategies by Allegation Type
An employer’s defense in a ULP case depends on which part of Section 8(a) of the NLRA they are being accused of violating.
Section 8(a)(1): Employer Communication and Rules
Section 8(a)(1) applies when the NLRB alleges interference with Section 7 rights, which protect employees who join together to address pay or working conditions, with or without a union. Generally speaking, the agency reviews two types of conduct under this section: what managers and supervisors say to employees and what rules the company enforces.
Claims Targeting Statements
When a charge involves statements, the NLRB examines the exact words used, who heard them, and the context surrounding the exchange. A supervisor’s warning that employees could lose hours for signing union authorization cards or a question about who attended a union meeting can both support a charge of interference.
A defense strategy should focus on proving that the statement in question was not intended to, or likely to, discourage protected activity. Employers can support this defense by explaining the purpose of the conversation and showing that it was related to a legitimate workplace issue. Notes from the discussion, meeting summaries, follow-up emails, or testimony from witnesses can also be used to confirm that the communication addressed business concerns, rather than union activity.
Claims Targeting Rules and Policies
When a charge involves a company rule or policy, the NLRB reviews the language of the rule and how it has been applied. A rule that prohibits wage discussions or restricts talk about union issues during breaks can be considered interference if it limits employees’ ability to exercise their rights.
A defense strategy should focus on evidence that the rule serves a legitimate workplace purpose and is applied evenly across the workforce. Employers should provide the written policy and enforcement records, along with an explanation of how the policy relates to workplace management. Evidence that shows a clear operational need and uniform enforcement helps establish that the policy regulates work issues, rather than protected employee activity.
Section 8(a)(3): Discipline and Discharge
Section 8(a)(3) applies when the NLRB claims that an employer discriminated against an employee for taking part in protected activity. Unlike Section 8(a)(1), which covers threats or statements meant to discourage collective action, Section 8(a)(3) addresses punishment that follows protected activity.
Examples of discrimination include firing a worker after they joined coworkers to file a safety complaint, or cutting hours after they took part in a group discussion about pay. In discrimination cases, the NLRB examines whether the discipline or discharge was based on legitimate business reasons or motivated by retaliation for protected conduct.
A defense strategy should focus on proving that the employer’s disciplinary or discharge decision was based on documented performance or conduct issues, and was unrelated to protected activity. Employers can support this defense with records created before the dispute, including attendance data, performance reviews, or prior warnings that show the same standards applied to every employee.
Financial Risk
A ULP case can create significant financial exposure for an employer. When the NLRB finds a violation, it can order the employer to pay employees for all direct or foreseeable financial losses caused by the unlawful action, not just lost wages. Examples include late fees on rent or loan payments that accumulated while an employee was out of work and higher medical expenses that arose when health coverage lapsed during an improper suspension or discharge.
Employers can limit financial risk after a complaint is filed by correcting the violation immediately and reaching a settlement with the regional office as soon as possible to reduce the total amount they will owe.
Preventing Future Charges
Employers can reduce the risk of future ULP charges by maintaining consistent policies and keeping thorough documentation. Written procedures should align with NLRA standards and be applied the same way to every employee. Managers and supervisors should receive ongoing training on lawful communication, employee rights to collective activity, and the limits the NLRA places on company rules that regulate speech or organizing.
Employers should maintain records that describe the conduct that led to each disciplinary action or discharge and explain why management acted when it did. Records that link each action to a clear business reason demonstrate that the employer applies rules consistently and acts based on legitimate needs rather than protected activity.
Working with Conn Maciel Carey
Employers facing unfair labor practice charges benefit from experienced guidance and a focused plan for response. Conn Maciel Carey represents companies before the NLRB and provides strategic support at every stage, from the initial investigation through settlement and compliance.
Our national Labor & Employment Practice Group helps employers strengthen compliance by reviewing policies and providing management training focused to NLRA requirements. We also develop documentation systems that reinforce legitimate, business-based decisions. Conn Maciel Carey partners with employers to resolve cases efficiently and build long-term practices that reduce legal exposure. Send us an email or call us at (202) 715-6244 to learn more.