An unfair labor practice (ULP) in United States labor law refers to certain actions taken by employers or unions that violate the National Labor Relations Act of 1935 (49 Stat. 449) (also known as the NLRA and the Wagner Act after NY Senator Robert F. Wagner) and other legislation. Such acts are investigated by the National Labor Relations Board (NLRB).

Definition of unfair labor practice

The NLRB has the authority to investigate and remedy unfair labor practices, which are defined in Section 8 of the Act. In broad terms, the NLRB makes it unlawful for an employer to:

  • interfere with two or more employees acting in concert to protect rights provided for in the Act, whether or not a union exists;
  • Examples of concerted, protected activity includes:
  • Picketing
  • Collective Bargaining
  • Attempting to Enforce an active Collective Bargaining Agreement
  • Filing an Unfair Labor Practice (ULP) charge with the National Labor Relations Board (NLRB)
  • Testifying in ULP proceedings at the direction of the NLRB.
  • Campaigning for Union Elections, or elections for union representatives
  • Distributing newsletters about right to work laws, voter registration, minimum wage issues, etc.
  • Any other right listed in Section 7 of the National Labor Relations Act.
  • dominate or interfere with the formation or administration of a labor organization;
  • interfere with a union election or a union campaign;
  • discriminate against an employee for engaging in concerted or union activities or refraining from them;
  • discriminate against an employee for filing charges with the NLRB or taking part in any NLRB proceedings; or
  • refuse to bargain with the union that is the lawful representative of its employees.

The Act similarly bars unions from:

  • restraining or coercing employees in the exercise of their rights or an employer in the choice of its bargaining representative;
  • causing an employer to discriminate against an employee in violation of Title VII of the Civil Rights Act of 1964;
  • refusing to bargain with the employer of the employees it represents;
  • engaging in certain types of secondary boycotts;
  • requiring excessive dues;
  • engaging in featherbedding (requiring an employer to pay for unneeded workers);
  • picketing for recognition for more than thirty days without petitioning for an election;
  • entering into "hot cargo" agreements (refusing to handle goods from an anti-union employer); or
  • striking or picketing a health care establishment without giving the required notice.

Applying this general language to the real world requires, in the words of Supreme Court Justice Felix Frankfurter, "distinctions more nice than obvious". The substantive law applied by the NLRB is described elsewhere under specific headings devoted to particular topics.

Not every unfair act amounts to an unfair labor practice; as an example, failing to pay an individual worker overtime pay for hours worked in excess of forty hours in a week might be a violation of the Fair Labor Standards Act, but it is unlikely to amount to an unfair labor practice as well. Similarly, a violation of a collective bargaining agreement, standing alone, may not constitute an unfair labor practice unless the employer has not only violated the contract but repudiated all or part of it.

Such charges must be filed and served within six months of the events that constitute the basis of the charge. This deadline may be extended in some cases, e.g., if the party fraudulently conceals its violations of the law. Charges may also be amended if done so within six months of the alleged violation. This job is delegated to the Regional Director of the region of the NLRB in which the charge has been filed; the Regional Director in turn assigns it to an employee of the region. It is the responsibility of the charging party to identify the witnesses who can support its charge; should it fail to do so the Regional Director will typically dismiss the charge.

The Regional Director generally seeks to reach a decision as to whether to issue a complaint or to dismiss the charge within thirty days of the filing of the charge.