Unfair Labor Practices

Certain actions by employers or unions are illegal under federal labor law.

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Unfair labor practices are actions taken by employers or unions that are illegal under the National Labor Relations Act (NLRA) and other labor laws. Some of these rules apply to the interactions between the employer and the union; others protect individual workers from unfair treatment by an employer or union. This article discusses some common unfair labor practice claims; for all of our articles on the NLRA and unions, see our Labor Unions page. 

What Are Unfair Labor Practices?

The NLRA gives employees the right to act together to try to improve the terms and conditions of their employers, by forming a union, joining a union, or otherwise. To preserve these rights, the NLRA sets out the rules for union elections, collective bargaining, and more. 

The NLRA also prohibits employers and unions from taking certain actions that would interfere with these employee rights or with the delicate balance the NLRA creates between unions and employers. These actions are called "unfair labor practices". 

Unfair Labor Practices by Employers

The NLRA prohibits employers from:

  • Interfering with an employee's right to organize, join, or assist a union; engage in collective bargaining; or engage in protected, concerted activities. For example, employers must treat union-related conversations among employees like any other matter unrelated to work: They may not make special rules that single out communications relating to the union or to workplace grievances for disciplinary treatment. (See Shop Talk for information on employer restriction of conversations relating to the union; for information on how these rules apply to online communications among employees, see Do Labor Laws Protect Employee Posts on Social Media?)
  • Dominating or providing illegal assistance of support to a labor union. Employers may not establish their own union (a company union or sham union), or dominate or interfere with any labor organization. To determine whether an employer unfairly controls a particular workplace group, the National Labor Relations Board (NLRB) looks at all of the facts, including who started the group, whether the employer played a role in organizing the group and deciding how it would function, whether management attends meetings or otherwise sets the group's agenda, the group's purpose, and how the group makes decisions. 
  • Discriminating against employees to encourage or discourage membership in a labor organization, or replacing workers who strike to protect an unfair labor practice. 
  • Retaliating against an employee for filing a charge with, or giving testimony to, the NLRB.
  • Refusing to engage in good-faith collective bargaining
  • Making a hot cargo agreement with a union. A hot cargo agreement is an arrangement between an employer and a union in which the employer promises to stop doing business with another employer, typically one with whom the union has a dispute. 

Unfair Labor Practices by Unions

The NLRA prohibits unions from:

  • Restraining or coercing employees in the free exercise of their right not to support a union (for example, by threatening employees who don't want a union or expelling members for crossing an illegal picket line.
  • Restraining or coercing an employer in its choice of a bargaining representative (by insisting on meeting only with a particularly manager or refusing to bargain with the representative the employer chooses). 
  • Causing or trying to cause an employer to discriminate against an employee for the purpose of encouraging or discouraging union membership (for example, convincing an employer to penalize employees who engage in antiunion activities)
  • Refusing to engage in good-faith collective bargaining (for example, refusing to come to the bargaining table or listen to any of the employer's proposals).
  • Engaging in strikes, boycotts, or other coercive action for an illegal purpose. 
  • Charging excessive or discriminatory membership fees.
  • Getting or trying to get an employer to agree to pay for work that is not performed. This is called "featherbedding."
  • For a union that is not certified to represent a group of workers, picketing or threatening to picket an employer to force it to recognize or bargain with the union or force the workers to accept the union as their representative, if (1) another union already represents the workers, (2) a valid representation election was held in the past year, or (3) the union does not file a petition for an election with the NLRB within 30 days after the picketing starts. 
  • Making a hot cargo agreement (explained above). 
  • Striking, picketing, or otherwise engaging in a collective work stoppage at any health care institution without giving required notice to the institution and the Federal Mediation and Conciliation Service. 

Taking Action

An employer, employee, or union that believes an unfair labor practice has been committed may file a charge with the NLRB. You must file a charge within six months of the incident. The NLRA can be enforced only through the NLRB, not through private lawsuits. 

To learn about other workplace rights, see Nolo's book, Your Rights in the Workplace.

by: , J.D.

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