Examples of section 8(a)(1) violations include the following:

• Threatening employees with loss of jobs or benefits if they should join or vote for a union;
• Threatening to close down a facility if a union should be organized in it;
• Questioning employees about their union activities or membership in such circumstances that tend to restrain or coerce the employees;
• Spying or giving the impression of spying on union gatherings;1
• Granting wage increases deliberately timed to discourage employees from forming or joining a union;
• Statements to employees before and after a union election about discontinuing periodic wage increases and Christmas payments (The Board found that employer’s statements that it could not give raises “because the Union was there” or “because of the whole Union deal” were unlawful);2
• Moving production from one location to another in order to discourage union participation or to punish employees for union participation; and
• Terminating an employee, whether or not represented by a union, for raising group workplace concerns.3

For more information, see Protected Concerted Activity in Union and Non-Union Workplaces Overview.

In 2019, the Board held that an employer’s misclassification of its employees as independent contractors is not, standing alone, a violation of the NLRA.4 The current GC has indicated an interest in revisiting this decision,5 and in 2022, regions began to issue unfair labor practice complaints alleging that misclassification of independent contractors is a standalone unfair labor practice. In September 2024, the Board rejected the General Counsel’s argument to change the precedent in Velox Express.6

An employer may bar nonemployee union agents from distributing union material on its private property as long as it does not engage in discrimination by allowing other forms of “distribution” by third parties. In Kroger Ltd. Partnership, the Board narrowed the definition of what constitutes discrimination. The Board held that “an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities.”7

Because section 8(a)(1) is a broad prohibition, employers may also violate this section whenever they commit any of the other employer unfair labor practices described below. This is called a “derivative violation” of section 8(a)(1).

Unlawful Employer Domination of or Illegal Interference With a Labor Organization

Section 8(a)(2) makes it unlawful for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” This also makes it illegal for an employer to contribute money to a union or give a union improper advantages denied to rival unions, or to distribute union interest cards on behalf of a union.

A labor organization is considered dominated if an employer interfered with its formation and assisted and supported its operation and activities to such an extent that it must be looked upon as an employer creation instead of the true bargaining representative of the employees.

Unlawful employer domination can also take the form of soliciting and responding to group proposals from employees on employment terms and conditions or dealing on a bilateral basis between employees and management.

The Board has held that management meetings with groups of employees to brainstorm and share information and suggestions are not considered to be unlawful employer domination, but the Court of Appeals ordered the Board to explain its reasoning further given its departure from precedent on this issue. On remand, the Board ruled that an employer violates the Act and makes a “group proposal” when individual members acting in a representative capacity makes proposals to management. The DC Circuit Court of Appeals upheld the Board’s clarification of this applicable legal standard.8 If a similar issue were presented to the Board today, we would expect a different outcome.

Certain lesser kinds of employer assistance to a union may constitute unlawful “interference.” Employers cannot provide financial support to a union, either by direct payments or indirect financial aid. Permitting employees to confer with management and/or the union regarding grievances or other union business during working hours without loss of pay does not violate this prohibition.

When rival unions compete to organize employees, an employer may not give the union that it favors privileges that are denied to the other union. However, when an employer and a union already have an established bargaining relationship, the employer must continue bargaining with the incumbent even though a rival union is attempting to organize the employees. In these circumstances, the rival’s filing of a petition does not prevent continued dealing between the employer and the incumbent unless the incumbent lost the support of a majority of the employees.

Discrimination to Encourage or Discourage Union Membership

Section 8(a)(3) of the NLRA makes it illegal to discriminate against employees with respect to “hire or tenure of employment or any term or condition of employment” to encourage or discourage membership in a labor organization. This section also prohibits discrimination because an employee refrained from taking part in such union or concerted activity.

However, section 8(a)(3) provides that an employee may be terminated for failing to make certain lawfully required payments — namely union dues or initiation fees — under a lawful union-security agreement. Employers may deduct these amounts from the wages of their employees and forward them to the union for each employee who voluntarily signed a dues “checkoff” authorization. Such checkoff authorizations may be made irrevocable for no more than one year. Employees may revoke checkoff authorizations after a Board-conducted election in which the union loses its right to maintain a union-security agreement.

If an employer disciplines an employee because the employee violated a work rule and engaged in protected union activity, the discipline is unlawful unless the employer can prove that the same discipline would have occurred even if the employee did not engage in the protected union activity.

An employer may institute a lawful lockout of its employees to prevent any unusual losses or safety hazards that would be caused by an anticipated “quickie” strike. And a whipsaw strike against one employer engaged in multi-employer bargaining justifies a lockout by any of the other employers who are party to the bargaining.9

However, the Board currently is looking at changing whether and how employers may institute lockouts. If you are considering a lockout, you should seek assistance from legal counsel experienced in labor relations matters.

Examples of section 8(a)(3) violations include the following:

• Terminating employees because they urged other employees to join a union;10
• Terminating employees because they are believed to have engaged in a protected concerted activity, whether or not they actually did so;11
• Refusing to reinstate employees when jobs for which they qualify are open because they took part in a union’s lawful strike;
• Granting of “super seniority” to those hired to replace employees engaged in a lawful strike;
• Demoting employees because they circulated a union petition among other employees asking the employer for an increase in pay;
• Discontinuing an operation at one facility and terminating the employees involved, followed by opening the same operation at another facility with new employees because the employees at the first facility joined a union;
• Refusing to hire qualified applicants for jobs because they belong to a union;
• Refusing to hire qualified applicants because they did not belong to a union, or because they belonged to one union instead of another; and
• Disciplining an employee for organizing and participating in a workplace demonstration.12

Political Speech

Even though employee speech is generally not protected in private workplaces, the NLRA nevertheless may protect both union and non-union employees who speak out about employment issues. Specifically, the NLRA protects employees from discipline if they have engaged in conduct relating to their wages, hours or working conditions.

In addition, protection is extended to advocacy in which there is “direct nexus between the specific issue” being advocated and “a specifically identified employment concern of the participating employees.”

It is expected that the current Board will continue to seek the elevation of political and social speech in the workplace by further limiting work rules and policies relate to speech and expression at work. For example, the Board recently held that an outright prohibition on participation in the political process or legislative petitions on company property is unlawful.13

Retaliation for Filing Charges or Giving Testimony

Section 8(a)(4) of the NLRA makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because they have filed charges or given testimony under [the] Act.”

An employer violates the Act if the employer discharges, lays off or engages in other forms of discrimination in working conditions against employees who filed charges with the NLRB, supplied affidavits to NLRB investigators or testified at NLRB hearings. Violations of this section in most cases also constitute violations of section 8(a)(3). For further information, see Violating an Employer’s Duty to Bargain.

Employer Unlawful Refusal to Bargain in Good Faith

Section 8(a)(5) of the NLRA makes it illegal for an employer to refuse to bargain in good faith about wages, rates of pay, hours of employment and other conditions of employment with any representative selected by a majority of the employees. This obligation extends not only to negotiations for a first or new collective bargaining agreement, but also to administration of the contract and to union requests for information. An employer’s duty to bargain includes the obligation “to provide information that is needed by the bargaining representative for the proper performance of its duties.”14 Information regarding non-unit employees is not presumptively relevant and requiring disclosure, but it may be discoverable by the union; a fact-sensitive, case-by-case analysis is required.15 In such cases, the union bears the burden of establishing the relevance of the requested information.16 An employer must provide a union with its bargaining notes if the union demonstrates its relevance to its representational duties, such as being used to process a grievance.17

Information must be furnished in a reasonable time. For example, in May 2024, the Board affirmed an Administrative Law Judge’s decision that an employer violated the Act by failing to respond for 56 days or to provide responsive information for 90 days when the union requested employees’ schedules, hours worked, and unscheduled closing dates and times.18 The Board highlighted that the employer never indicated the information would be difficult to gather.

In a 2021 decision, the Board held that an employer violated section 8(a)(5) by failing to provide the union with notice and an opportunity to bargain over its decision to prohibit employees from using a training room during breaks.19

An employer that has an objective reason to believe that a union lost favor with a majority of its employees can test that loss of majority representative status by refusing to bargain with the union and (1) filing a petition (called an RM petition) to hold an election among the employees to determine if the union has lost majority status; or (2) withdrawing recognition of the union and forcing the union to file a refusal-to-bargain unfair labor practice charge.20 Alternatively, the employees can file their own petition for decertification if they believe the union no longer has majority status. An employer cannot lawfully withdraw recognition during the life of a collective bargaining agreement or the extension of a collective bargaining agreement, nor can it do so during the “certification year,” meaning the first year following the certification of a union’s new representative status.

In 2019, the Board made it easier for employers to make an “anticipatory” withdrawal of recognition of an incumbent union before the expiration of a contract.21 An employer that has objective evidence that a majority of employees no longer support the union (such as through a document with signatures of current employees with a statement they no longer wish to have the union represent them) can inform the union no more than 90 days before the expiration of the collective bargaining agreement that it will withdraw recognition after the contract expires. The Board held that if a union contests the employer’s withdrawal of recognition, it will have 45 days after the employer’s anticipatory withdrawal to seek a Board-supervised secret ballot election to verify whether 50 percent of the bargaining unit supports withdrawal. This is another case that the current General Counsel has indicated an interest in revisiting.

On November 3, 2022, the Board also proposed rulemaking that would rescind then-President Donald Trump Board’s rule that ended the practice of blocking decertification elections when unions accuse employers of tainting worker sentiment. At the time of publication, the Board had not adopted a final rule.

• This area is particularly tricky to navigate. Employers are encouraged to consult with labor counsel.

1. Mercy Gilbert Med. Ctr., 370 NLRB No. 67 (Jan. 6, 2021); Charter Communications, LLC, et al., 366 NLRB No. 46 (2018)