NLRB Unfair Labor Practice (ULP) Claims Defense

An Unfair Labor Practice (ULP) is a formal administrative charge filed with the National Labor Relations Board (NLRB) alleging that an employer or labor organization violated the National Labor Relations Act (NLRA). The most frequent employer charges arise under Section 8(a)(1) (interfering with, restraining, or coercing employees exercising Section 7 rights) and Section 8(a)(3) (discriminating in hiring, tenure, or terms of employment to discourage union activity). The filing triggers an investigation by an NLRB Regional Office field attorney.

Upon receiving an NLRB charge, the employer must immediately: (1) retain specialized labor counsel; (2) issue an enterprise-wide electronic litigation hold order freezing all document destruction, Slack auto-deletions, email purges, and timecard modifications; (3) instruct supervisors strictly to avoid discussing the charge with employees or interrogating workers about who filed it; and (4) calendar the NLRB Regional Director's deadline for submitting a formal written position statement and commerce questionnaire.

Destruction or alteration of workplace records (such as shift schedules, discipline write-ups, security camera footage, or internal text messages) post-charge notice constitutes intentional spoliation of evidence. Under NLRB precedent, Administrative Law Judges (ALJs) will draw an irrebuttable adverse inference that the destroyed evidence would have proven unlawful anti-union animus, striking employer defenses, granting summary judgment to the union, and imposing severe financial sanctions.

In Thryv, Inc. (372 NLRB No. 22, 2022), the Board substantially expanded make-whole remedies beyond traditional back pay and reinstatement. The NLRB now routinely orders employers to compensate victims for all 'direct or foreseeable pecuniary harms' resulting from the ULP. This includes out-of-pocket medical expenses, credit card interest incurred to cover living expenses, penalties from early retirement withdrawals, lost moving costs, and damage to credit scores.

Under Section 10(j) of the NLRA (29 U.S.C. § 160(j)), the NLRB General Counsel may petition a federal district court for a preliminary injunction against an employer while administrative proceedings are ongoing. If granted, a federal judge can issue an immediate temporary order compelling the employer to reinstate discharged union activists, recognize and bargain with a union, or halt alleged discriminatory disciplinary rules pending final Board adjudication.

Yes, absolutely. Under NLRB Casehandling Manual § 10056.5, supervisors and managers whose statements can bind the corporation as statutory agents have the legal right to have company counsel present during any NLRB Board agent interview. Employers should explicitly instruct all supervisors that if an NLRB investigator approaches them directly (by phone, email, or in person), they must politely decline to answer questions and refer the agent directly to company labor counsel.

Yes. Non-supervisory employees are third-party witnesses whose statements do not legally bind the corporation as party admissions. NLRB investigators have the right to contact and interview hourly workers outside the employer's presence without notifying the company. However, the employer cannot interrogate workers about whether they spoke to the NLRB, demand copies of their affidavits, or retaliate against them under Section 8(a)(4).

Under Wright Line (251 NLRB 1083), the NLRB General Counsel must first establish a prima facie case by proving: (1) the employee engaged in Section 7 protected activity; (2) the employer had knowledge of that activity; and (3) anti-union animus motivated the adverse employment action. The burden then shifts to the employer to prove by a preponderance of the evidence that it would have taken the exact same action regardless of the protected activity based on legitimate, non-discriminatory business reasons.

Under the Board's landmark Cemex Construction Materials Pacific, LLC decision (372 NLRB No. 130, 2023), if an employer commits unfair labor practices that disrupt a union election (such as coercive threats or firing organizers), the NLRB will set aside the election and issue a mandatory bargaining order forcing the employer to recognize and bargain with the union without holding a rerun election.

An effective Position Statement must: (1) state the procedural history and corporate background; (2) refute each alleged ULP with contemporaneous documentary evidence (timecards, write-ups, policy handbooks); (3) demonstrate comparative treatment proving non-union workers were disciplined identically for the same infractions; (4) cite governing Board precedent; and (5) request dismissal of the charge without issuing a formal complaint.