NLRB Unfair Labor Practice Response

The situation

Elena runs a 28-person food manufacturing company in Sacramento. Two weeks ago, she terminated three production workers, Carlos, Maria, and David, after they refused a supervisor's instruction and encouraged other workers to slow down in protest of a new production quota policy. The supervisor cited insubordination. Yesterday, Elena received an NLRB charge notification: all three workers filed Section 8(a)(1) charges alleging that their terminations violated their right to engage in protected concerted activity under Section 7 of the NLRA. The charge says Elena has 10 days to respond. Elena doesn't know: (a) Section 7 of the NLRA protects ALL employees (not just union members) from termination for engaging in "protected concerted activity", coordinating to protest working conditions is a protected activity regardless of whether the workers are in a union; (b) the critical legal question is whether the three workers' slowdown and refusal was "concerted" (coordinated, not individual) and "protected" (related to terms and conditions of employment, the quota policy qualifies), and if it was, the terminations may be unlawful even if the workers violated a legitimate company policy; (c) her 10-day response is NOT a legal brief, it's a factual narrative providing the NLRB Board agent with the employer's version of events so the agent can determine whether to investigate or recommend dismissal; (d) under the new 2025-2026 NLRB intake procedures, if the three charging parties fail to submit supporting evidence within 2 weeks, the charge may be dismissed, her factual response + their failure to produce documentation could result in dismissal without a formal investigation; (e) a labor attorney quoted her $8,500 just for the 10-day response and initial Board agent interview stage.

Who receives this

Small employer owners, HR managers, and operations managers (5-75 employees) who have received an NLRB charge notification with a 10-day response deadline. Primary: non-union employers who received Section 8(a)(1) charges arising from employee terminations or disciplinary actions following group complaints or concerted activity, this is the largest and fastest-growing category of ULP charges. Secondary: small unionized employers who received Section 8(a)(3) charges alleging discrimination based on union activity, or Section 8(a)(5) charges for refusal to bargain.

Why the agency will not advise you

The NLRB enforces the National Labor Relations Act, it cannot build "how to defend against our ULP charges" tools for employer respondents. NLRB's Casehandling Manual is internal staff guidance (not employer-facing). Labor law firms (Ogletree Deakins, Littler Mendelson, Fisher Phillips) earn $5,000-20,000 per ULP charge defense and are not incentivized to commoditize their "10-day response + initial Board agent interview" stage. No tool exists between "read the NLRB's process chart" and "hire an $8,500 labor attorney." The new 2025-2026 intake procedure changes (10-day employer response + charging party's 2-week evidence deadline) created procedural complexity that benefits employers who submit strong, well-structured 10-day responses.

Key facts, with sources

• The National Labor Relations Board receives approximately 20,000-25,000 unfair labor practice charges per year, the vast majority filed against employers (not unions). The most common employer-side ULP charges: Section 8(a)(1), alleged interference with employees' right to engage in concerted activity (the broadest and most commonly filed category); Section 8(a)(3), alleged discrimination against employees for union activity (the second most common, filed when an employer terminates or disciplines an employee and the employee alleges the reason was union-related activity); Section 8(a)(5), refusal to bargain in good faith with a certified union. When a charge is filed, the employer must respond within 10 calendar days. The 10-day response is the employer's primary opportunity to provide facts and documentation before the NLRB Regional Director's office investigates. Source: Unfair Labor Practice Charges Filed Each Year — National Labor Relations Board
• In late 2025 and early 2026, the NLRB implemented new case intake procedures requiring charging parties to submit supporting evidence within 2 weeks of filing the charge, charges without evidence after 2 weeks can be dismissed without investigation. This new procedure (announced in October 2025) was designed to reduce the NLRB's significant case backlog, but it has an important implication for employer respondents: if the employer's 10-day response includes strong documentary evidence that the charge lacks merit, the NLRB may combine the charging party's failure to produce evidence with the employer's factual rebuttal to dismiss the charge without investigation. The employer's first 10-day response has become a more consequential document than in prior NLRB practice. Source: Backlog Be Gone: NLRB to Boost Efficiency with New Unfair Labor Practice Charge Intake Procedures — Venable LLP
• Small employers (2-50 employees) are disproportionately affected by NLRB ULP charges in a non-union context: the 2023-2025 era saw a surge in 'protected concerted activity' charges arising from non-union settings (employees fired after complaining together about wages, working conditions, or workplace safety, even without a union). Under Section 7 of the NLRA, all employees (not just union members) have the right to engage in protected concerted activity. Many small employers who terminate a group of complaining employees don't realize they may have committed a ULP even without a union involved. Labor attorneys charge $5,000-20,000 for NLRB charge defense through the investigation and formal complaint stages. Source: NLRB Clarifies New Charge Intake Procedures Aimed at Reducing Backlog — Ogletree Deakins

When to bring in a professional

Self-serve responses fit routine cases: clear facts, amounts a business can absorb, and a deadline still ahead of you. Bring in a licensed professional when the amount at stake is large relative to their fee, the facts are genuinely disputed, criminal exposure is possible, or the deadline has already passed. A short paid consultation to sanity-check your plan is often worth it even when you handle the filing yourself.

All sources for this guide

1. Unfair Labor Practice Charges Filed Each Year — National Labor Relations Board
2. Backlog Be Gone: NLRB to Boost Efficiency with New Unfair Labor Practice Charge Intake Procedures — Venable LLP
3. NLRB Clarifies New Charge Intake Procedures Aimed at Reducing Backlog — Ogletree Deakins