Unfair Labor Practices/Board Hearings

An unfair labor practice charge (ULP) is a complaint that is usually filed by an employee against a company accusing the company of violating that employee’s rights under Section 7 of the National Labor Relations Act. Charges are filed with the local Regional Office of the National Labor Relations Board (NLRB) near the workplace. Once received, the NLRB begins investing the allegations of the ULP.

An investigation usually involves the person filing the charge swearing to the veracity of his or her allegations in an affidavit. The NLRB will then request the employer to respond by providing an official position on the allegations. Responding to a ULP has many layers of legal landmines. Competent legal counsel should be involved to conduct its own investigation, apply the law to the facts, determine whether to have a company representative provide an affidavit to the investigator, and prepare the Statement of Position on behalf of the company.

If the NLRB finds merit to the allegations in the ULP, it will issue a complaint against the company. Likewise, a complaint will issue if the NLRB must make a credibility finding, i.e. who should it believe. In both scenarios, the NLRB represents the employees (or union) and the company must file an Answer to the Complaint. Once filed, a hearing (a.k.a. trial) is held at the Regional Office before an NLRB Administrative Law Judge shortly thereafter.

Unlike regular lawsuits, NLRB Hearings are “trial by ambush” that inherently disadvantage companies. The NLRB has affidavits from the complaining party and his or her friends who (truthfully or not) corroborated the ULP allegations. It also has documents requested during its investigation, the Company’s Statement of Position with case law relied upon by the company, and perhaps affidavits from company representatives. The company has none of that.

Companies can and do win NLRB hearings despite its lopsided knowledge. But winning requires the use of a skilled labor lawyer who knows the NLRB casehandling procedures, peculiarities of NLRB hearings, and oftentimes the people within the NLRB responsible for deciding whether the ULP has merit in the first place.