What Qualifies as an Unfair Labor Practice Under the NLRA

An unfair labor practice under the NLRA is any action by an employer or a union that interferes with the rights the National Labor Relations Act gives most private-sector workers: to organize, to bargain collectively, to act together with coworkers over working conditions, and to refuse to do any of those things. If one of those rights has been violated, you can file a charge with the National Labor Relations Board, and you have six months from the date of the violation to do it.¹

Who the NLRA Actually Covers

The law protects most private-sector employees, but several groups are outside it entirely. The NLRA’s definition of “employee” excludes agricultural workers, domestic workers employed in a private home, independent contractors, supervisors, anyone employed by a parent or spouse, and workers covered by the Railway Labor Act, which is primarily airline and railroad employees.² Federal, state, and local government employees are also outside the NLRA, though many have separate collective-bargaining protections under other laws.

The supervisor exclusion catches people off guard. You count as a supervisor if you have authority to hire, fire, promote, discipline, or direct other employees using independent judgment, rather than just routine task assignments. If you carry that kind of authority, the NLRA does not treat you as a protected employee.²

The Section 7 Rights Every ULP Traces Back To

Every unfair labor practice is a violation of Section 7 of the NLRA. That section gives covered employees the right to organize, join or assist a union, bargain collectively through chosen representatives, and engage in other group action for mutual aid or protection. It equally protects your right to refuse all of those activities.³

You do not need a union to have Section 7 protection. The NLRA protects your right to act together with coworkers to improve your working conditions whether a union is anywhere in the picture or not.⁴ Talking with coworkers about pay, circulating a petition about scheduling, or collectively refusing to work in unsafe conditions are all “protected concerted activity.” An employer who punishes you for that has committed an unfair labor practice.⁵

Protection has limits. You can lose it by making statements that are knowingly false or egregiously offensive, or by publicly disparaging your employer’s products in a way unconnected to any workplace dispute.⁵

What Counts as an Employer Unfair Labor Practice

Section 8(a) of the NLRA lists five categories of employer violations. In practice, they show up as a handful of recurring scenarios.

Interference, Threats, and Coercion

The broadest category prohibits interfering with employees exercising their Section 7 rights.³ The NLRB has identified conduct that crosses the line: threatening to close a workplace if employees support a union, promising benefits in exchange for abandoning organizing efforts, coercively questioning employees about their union sympathies, and spying on union meetings or activities.⁶

Workplace rules can violate this section too. A handbook policy banning employees from discussing wages violates the NLRA even if no one has been disciplined under it. Overly broad confidentiality or social-media policies can create the same problem if they would reasonably discourage employees from exercising their rights.⁵

Dominating or Funding a Labor Organization

An employer cannot create, control, or financially prop up a labor organization. This provision dates to an era of “company unions” that existed mainly to keep employees from forming independent ones. Today it means an employer can allow employees to meet on company time but cannot set up or control an employee committee that functions as a sham alternative to genuine union representation.³

Discrimination Based on Union Activity

Employers cannot use hiring, firing, promotions, assignments, or any other employment decision to reward or punish union involvement. Firing someone for attending an organizing meeting, refusing to hire a known union supporter, and assigning undesirable shifts to employees who filed grievances all fall here.³ Most claims turn on motive. Employers rarely announce they’re punishing union activity, and the evidence tends to be circumstantial.

Retaliation for Filing Charges or Testifying

Section 8(a)(4) makes it separately unlawful to fire or otherwise punish an employee for filing a ULP charge with the NLRB or giving testimony in any NLRB proceeding.³ This protection stands on its own. Even if the underlying charge turns out to be without merit, punishing the employee who filed it is still a violation.

Refusing to Bargain in Good Faith

Once employees choose a union representative, the employer must bargain in good faith over wages, hours, and working conditions. Showing up to meetings isn’t enough. The NLRB looks for signs of “surface bargaining,” meaning going through the motions without any real intention of reaching an agreement.³ Red flags include refusing to meet at reasonable times, withholding information the union needs for bargaining, insisting on proposals the employer knows the union cannot accept, and making unilateral changes to working conditions without bargaining first.⁷

What Counts as a Union Unfair Labor Practice

Unions have their own prohibitions under Section 8(b). The NLRA doesn’t just protect employees from employers; it also limits what unions can do to workers and businesses.

Coercing Employees or Employers

A union commits a ULP by coercing employees into joining or supporting it. Threatening workers who refuse to participate in union activities, physically blocking access to a workplace through mass picketing, and intimidating employees into signing authorization cards all qualify.³ A union also cannot coerce an employer’s choice of representatives for bargaining or grievance proceedings.

Pressuring Employers to Discriminate

A union cannot push an employer to fire, demote, or otherwise punish a worker based on union membership status. Demanding that an employer get rid of an employee who refused to join is the classic example. Under a lawful union-security agreement, the only ground on which a union can seek someone’s termination is failure to pay the required dues or fees.³

Refusing to Bargain in Good Faith

The duty to bargain runs both ways. A certified union that refuses to meet with the employer, stalls negotiations, or takes positions designed to prevent agreement is violating the law just as an employer would be.³

Secondary Boycotts

When a union has a dispute with one employer, it generally cannot drag uninvolved businesses into the fight. Pressuring a neutral supplier or customer to stop doing business with the targeted employer, through strikes, threats, or picketing aimed at the neutral party, is an unlawful secondary boycott. Primary strikes and picketing directed at the employer the union actually has the dispute with are still permitted.³

Excessive Fees and the Right to Pay Less

Where a union-security agreement requires employees to pay dues as a condition of employment, the union cannot charge initiation fees the NLRB would consider excessive or discriminatory given the circumstances.³ Employees who choose not to become full union members can pay only the share of dues used directly for representation, such as contract negotiation and grievance handling, rather than the full amount. Unions must inform covered employees of this option, commonly called the Beck right after the Supreme Court decision that established it.⁸

Recognition Picketing

A union that is not certified as the employees’ representative cannot picket an employer indefinitely to force recognition. Under Section 8(b)(7), that picketing triggers time limits and filing requirements, and continuing without filing an election petition within a reasonable period (generally 30 days) is itself a ULP.³

Duty of Fair Representation

Although not explicitly listed in Section 8(b), courts have long held that a union breaches its duty of fair representation when it handles a member’s grievance in a way that is arbitrary, discriminatory, or in bad faith. Ignoring a meritorious grievance, refusing to investigate a complaint, or treating some members worse than others based on personal grudges can all qualify. The breach can form the basis of a ULP charge or a separate lawsuit.

Weingarten Rights During Investigatory Interviews

If your employer calls you into a meeting that you reasonably believe could lead to discipline, you have the right to request that a union representative be present. The Supreme Court established this in its 1975 decision in NLRB v. J. Weingarten, Inc., and the NLRB treats an employer’s refusal to honor the request as an unfair labor practice.⁹

An “investigatory interview” is a meeting where a manager questions you about your performance or conduct in a way that could become the basis for discipline or termination. You must actually make the request. Your employer is not required to remind you of the right or offer a representative unprompted. If you ask and the employer refuses, you can decline to answer questions without that refusal being held against you.⁹

How to File a ULP Charge

Any person can file: an individual employee, a union, or an employer. The charge goes to the NLRB regional office responsible for the area where the alleged violation happened.¹⁰ Use Form 501 for charges against an employer, or Form 508 for charges against a union. Both are fillable PDFs on the NLRB’s website, and the agency offers electronic filing.¹¹

The form asks for the names and addresses of both sides, a clear statement of the facts, and the dates the violations occurred.¹² Be specific about what happened and when. Vague allegations make it harder for the regional office to investigate.

The filing deadline is strict. You must file within six months of the unfair labor practice. After that, the NLRB cannot issue a complaint based on the charge no matter how strong the evidence.¹ The clock starts when the violation occurs, not when you first learn about it. File sooner rather than later.

What Happens After You File

The regional office investigates. An agent will gather evidence, interview witnesses, and review documents from both sides. Three outcomes are possible:

Dismissal. If the evidence doesn’t support the charge, the regional director dismisses it. You can appeal a dismissal to the NLRB’s General Counsel in Washington.
Settlement. At any stage before a hearing, the parties can resolve the matter through a voluntary settlement. The NLRB encourages this when the terms adequately address the violation.¹³
Formal complaint. If the regional director finds the charge has merit and no settlement is reached, the NLRB issues a complaint and schedules a hearing before an administrative law judge. The hearing works much like a trial, with testimony, evidence, and cross-examination.¹³

After the hearing, the ALJ issues a decision. Either side can appeal to the full NLRB Board in Washington, which reviews the record and may adopt, modify, or overturn the judge’s findings.

What the NLRB Can Order

The NLRB’s remedial power is compensatory, not punitive. It cannot fine employers or award damages meant to punish. It can only try to put the affected employee back in the position they would have been in without the violation. In practice that means:

Reinstatement, returning a wrongfully fired employee to their former position.
Back pay for wages and benefits lost during the period of unlawful termination or other discrimination.¹⁴
Compensation for financial harms. In its Thryv, Inc. decision, the NLRB ruled that make-whole relief should cover all direct or foreseeable financial consequences of the violation, such as medical expenses and credit card debt incurred during a period of wrongful unemployment. The scope of that broader remedy is currently disputed in the federal circuits, and what you can actually recover may depend on which circuit covers your region.¹⁵
Posting requirements. The employer or union may have to post a notice in the workplace informing employees of their rights and the specific violations found.

1
Office of the Law Revision Counsel. 29 USC 160 – Prevention of Unfair Labor Practices
2
National Labor Relations Board. National Labor Relations Act
3
Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
4
National Labor Relations Board. Concerted Activity
5
National Labor Relations Board. Concerted Activity
6
National Labor Relations Board. Interfering with Employee Rights (Section 7 and 8(a)(1))
7
National Labor Relations Board. Bargaining in Good Faith with Employees’ Union Representative (Section 8(d) and 8(a)(5))
8
National Labor Relations Board. Union Dues
9
National Labor Relations Board. Weingarten Rights
10
National Labor Relations Board. Investigate Charges
11
National Labor Relations Board. Fillable Forms
12
National Labor Relations Board. NLRB Form 501
13
National Labor Relations Board. Rules and Regulations Part 102
14
National Labor Relations Board. Monetary Remedies
15
National Labor Relations Board. Board Rules Remedies Must Compensate Employees for All Direct or Foreseeable Financial Harms