How Do I Avoid a ULP?

"How do I avoid a ULP?" It's not easy and requires labor-wise leadership from the CEO to the frontline supervisor. In 2020, 15,869 Unfair Labor Practice (ULP) charges were filed with the National Labor Relations Board (NLRB), with 5,253 settlements and 809 complaints issued by Regional Directors. The year 2021 is on track to exceed the number of charges filed in 2020. The NLRB says it gets 20,000-30,000 ULP claims in any given year. ULPs are expensive to defend and can easily harm a company's reputation as an employer of choice or the positive employee relations your leaders have worked so hard to develop.   

It only takes one unhappy employee to challenge an employer and damage morale and working relationships. We have previously discussed how to manage a ULP, particularly during union organizing, but now we would like to step back and talk about how to avoid a ULP as much as possible. Prevention in the proactive era is always the preferred choice of action. 

Quick Review of the NLRA on ULPs 

Unfair Labor Practices are often thought of as something only employers are accused of doing, but unions can also commit ULPs. Searching for ULP claims on any day on the NLRB website reveals tens of thousands of claims.

According to Section 7 of the National Labor Relations Act, employees are guaranteed "the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or protection." It also guarantees employees have the right, "to refrain from any or all such activities." Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act." 

Labor unions are also not allowed to restrain or coerce employees to exercise their rights to join or not join a unionSection 8(b)(1)(A) of the NLRA makes it unlawful for a labor organization or its agents "to restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act" with the provision they have to right to make rules (within the law) concerning the acquisition and retention of membership.

how to avoid a ULP

There is a third category of ULPs. This category is found in Section 8(c) of the NLRA and protects the free speech rights of employees and labor unions. It says, "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter] if such expression contains no threat of reprisal or force or promise of benefit." 

ULPs are often the result of the combined activities of employers and labor unions. During the union organizing campaign, both sides may commit ULPs - knowingly or unknowingly. For example, the employer and union each send a letter to employees that lists the pros and cons of union membership. An employer can't tell employees the company will go out of business if they vote for a union. (Conversely, a union can promise any number of things to employees - the NLRA assumes members of the potential bargaining unit understand that a promise is not a guarantee.)

Employer and Employee Rights 

The challenge your leaders face is staying within the law while retaining their employer rights to voice their opinions on labor unions to employees. The National Labor Relations Act is specific as to what employers may or may not do, but it's the NLRB that interprets the law. The problem is that a supervisor, for example, can say something that seems legal, only to learn it's not. 

In one such case, a manufacturing employer sent a letter to workers that said union contract negotiations would start "from scratch." The employer also showed a PowerPoint slideshow that used language like "relationships suffer" due to unionization and "flexibility is replaced by inefficiency." The 6th Court of Appeals found the statements didn't violate the NLRA because the employer was pointing to risks inherent in contract negotiations. The PowerPoint statements "can only be reasonably understood as elaborating upon and summarizing the company's position on the ineffectiveness of third-party representation, which was a lawful argument for the company to make."  

However, an attorney with Ogletree Deakins, Brian Hayes, pointed out that statements like "from scratch" might have been considered legal in this case but may not be in another situation. Context, circumstances, and language matter. He encourages companies to get professional advice before communicating with employees during an organizing campaign. For this exact reason, many employers take advantage of management consulting on union organizing which can save a company a lot of money and help leaders avoid a ULP. Expert labor consultants can help you answer the question, "How do I avoid a ULP?"  

Categories of ULPs 

During a union organizing campaign, it's very likely the union and the company will file ULPs. However, ULPs can be filed with the NLRB whether or not a union organizing campaign has started. For example, the NLRA prohibits an employer from coercively questioning employees about their own or coworkers' union activities or sympathies. How does the NLRB determine "coercive"? It depends on the circumstances, who asks the questions, where and how the questions were asked, what information is sought, whether the questioned employee is an active union supporter and whether the questioning occurs in the context of other unfair labor practices.  

You are right to ask, "How do I avoid a ULP?" in such a precarious situation, and especially in a pro-union environment and with a pro-union NLRB. ULPs are specific violations of the NLRA and do not include every act that someone might consider "unfair." For example, you may give employees a wage increase they call "unfair" because they wanted more, which isn't a ULP.  

Five categories of behaviors that drive ULPs  

  • Interference, restraint, or coercion – You can't interfere, restrain or coerce employees in the exercise of their rights. Most violations of this section include supervisors who make threatening statements, question employees about unions, or make untrue statements to employees seeking unionization
  • Employer support or domination of a labor union – An employer can't try to dominate or interfere with the formation or administration of a union or contribute financial or other support to the union. 
  • Discrimination based on union activity – An employer may not discriminate against an employee during the hiring, tenure of employment, or any other employment condition with the intent of encouraging or discouraging union membership.
  • Discrimination as retaliation for going to the NLRB – An employer can't discriminate against an employee because the employee filed ULP charges or gives testimony against the employer.
  • Refusal to bargain – Refusing to bargain collectively includes refusing to recognize the majority union, taking unilateral actions, refusing to provide necessary information to union representatives, or imposing conditions on the company's willingness to bargain. 
unfair labor practice

The Game of "Baiting" Employers 

Attorneys at Parker McCay make the point that managers are often baited by unions into committing unfair labor practices. Unfortunately, it benefits unions when they're able to make the employer appear willing to violate employee rights.  

"How do I avoid a ULP?" is a question employers may ask. One of the first steps is understanding that labor unions want you to commit ULPs because they leverage them in their favor. In one honest piece of advice, labor attorney Robert M. Schwartz advised unions on how they can use ULPs in their favor and suggested ways to provoke ULPs. The union's focus is on the areas where employers are most likely to violate the NLRA.  

Though his advice was geared towards a unionized workplace, Schwartz provides glimpses into how labor unions can provoke employers into committing ULPs at any stage of a union organizing campaign. 

  • Unions may distribute handbills in nonworking areas of the employer's property, which often leads to employers responding with threats, rules, and surveillance or removing union material from places like cafeteria tables 
  • Unions organizers can conduct informational picketing before and after work to provoke illegal threats, restrictions, discipline, and surveillance 
  • Unions can ask for information considered sensitive, like employee information, data on customers, and financial records, leading to total or partial ULPs when the employer refuses to comply. 
  • Unions may report to employees that ULPs had an adverse impact on them to fuel employee unhappiness 
  • Unions can also refuse to settle any ULPs that are filed against them. 

"So, how can I avoid a ULP?" 

To avoid a ULP, think training and communication or knowledge and positive employee relations. It's unsuspecting and unknowledgeable leaders who commit ULPs. 

Avoiding a ULP requires leadership training, transformational leadership, and establishing internal procedures that ensure employees have an authentic voice and are comfortable approaching management about their issues or concerns.

Six-step action plan for avoiding a ULP

Leadership training on unions – Your leaders must be fully trained in many areas related to unions.   

  • Train your managers and supervisors on union organizing campaigns and common baiting tactics 
  • Leaders should understand the NLRA and the employer and employee rights it conveys. This information forms the foundation for additional training on TIPS and FOE rules. These are easy ways to help people remember what they cannot do. TIPS is the acronym for actions to avoid: threats, interrogations, promises, surveillance. FOE is the acronym for information about the union that you can share: facts, opinions, examples. Include training on labor law violations within the TIPS and FOE rules

Train leaders on fostering the right workplace environment.

How your managers and supervisors speak to employees and listen to their feedback plays a huge role in ULPs. Strengthen the leadership training on unions by offering training like Laborwise LeadershipWise Words, and The Respectful Workplace

Train your managers and supervisors on union organizing campaigns and keep them up-to-date on all #laborlaw & #labor #relations training. #leadershiptraining

Click to Tweet

You want to develop leaders who are focused on maintaining a positive workplace culture at all times. There are numerous NLRB ULP cases that boil down to a manager or supervisor getting frustrated with employees who support unions and making a threat or promise the NLRA forbids. It's a mistake to train only upper and middle management because it's the frontline supervisors who talk to employees regularly.  

Grievance procedure – Employees need a well-communicated formal grievance procedure 

It doesn't matter how small a company might be. A formal grievance policy and procedure give employees the knowledge that there is always a process to resolve concerns or issues. Responding to the grievances shows respect for the employees. By formalizing the procedure, employees know they don't have to rely only on their supervisor for problem or conflict resolution, get higher management's attention, and hopefully see no need to file a ULP charge. 

Employee engagement – Developing employee engagement remains challenging.

Gallup tracks workforce engagement, and through June 2021, 36 percent of US employees were engaged. The percent of the disengaged employees rose to 15 percent compared to 2020. The Great Resignation is in full swing now, with 4.4 million workers leaving their jobs as of September 2021. There are many reasons for people leaving their jobs, and they include poor working conditions, burnout, and feeling unappreciated.  

The employees who stay with your company and are disengaged are the employees most vulnerable to unionization, fueling union ULPs. A labor relations professor at the University of Illinois, Robert Bruno, said workers are expressing built-up grievances and anger through strikes. ULPs are another form of expression of dissatisfaction. Engaged and empowered employees are less likely to file ULPs because they are enthusiastic about their work and the employer. Unions and subsequent ULPs are more likely when skilled managers know how to engage employees—monitor employee engagement on a routine basis.  

Review the employee handbook.

Some ULPs result from outdated HR policies and procedures or don't reflect NLRB decisions. It's critical to keep the policies and procedures in alignment with current labor law, which frequently changes. To evaluate key policies and procedures, include grievance procedures, social media policiesdiversity and inclusion policies, benefits programs (especially areas like family leave and sick leave pay), and leadership training opportunities.   

Conduct a union vulnerability assessment.

Conducting a union vulnerability assessment will help you identify areas needing union proofing. Areas that create a risk for union organizing are areas where ULPs are more likely. For example, the union vulnerability assessment will identify gaps in what leaders believe is true and what employees are really feeling and believing.

If you aren't 100% certain you know how your workplace can avoid a #ULP, it's an indication there is a #leadership #knowledge gap! Get your #leaders trained ASAP.

Click to Tweet

Unfair Labor Practices Don't Have to Happen 

If you can't answer the question, "How do I avoid a ULP?" with high confidence, it's an indication there is a leadership knowledge gap. Projections, along with IRI, works with employers of all sizes that want to minimize the risk of ULPs. Our team has decades of experience helping companies avoid unionization and a variety of tools and resources with proven success. Blending training on union prevention strategies with leadership training on employee engagement builds an ideal defense system against ULPs. 

Print Friendly, PDF & Email

About the Author Jennifer Orechwa

With over 25 years in the industry, and now as IRI's Director of Business Development, Jennifer has gained a unique perspective on what it takes to build a culture of engagement. By blending a deep understanding of labor and employee relations with powerful digital marketing knowledge, Jennifer has helped thousands of companies achieve behavioral change at a cultural level.

follow me on: