Key Points

• The law applies broadly: The National Labor Relations Act (NLRA) guarantees private sector employees — union and non-union — the right to engage in protected concerted activity, including forming or joining unions and acting collectively regarding working conditions.
• TIPS/FOE framework: Management cannot Threaten, Interrogate, Promise, or Spy (TIPS), but may share Facts, Opinions, and Experiences (FOE) regarding unionization.
• Joint employer liability: Any company that exercises substantial, direct and immediate control over another employer’s workers — including supervision, discharge or direction—risks being deemed a joint employer and pulled into a primary employer entity’s labor disputes.
• No unilateral changes: Unionized employers cannot unilaterally change mandatory subjects of bargaining — wages, hours, benefits, scheduling — without first providing notice and an opportunity to bargain with the union.

Understanding the NLRA Landscape

The NLRA, passed by Congress in 1935, is the cornerstone of private sector labor law. Section 7 of the NLRA guarantees employees the right to form or join unions, engage in protected concerted activity, or refrain from any of these activities. These rights apply to private employers whether unionized or not. Even non-union employees who act together to protest working conditions — such as walking off the job due to unsafe conditions — are protected under Section 7.

The National Labor Relations Board (NLRB) enforces the NLRA through two main functions: adjudicating unfair labor practice (ULP) cases, which set legal precedent, and conducting union representation elections. The agency’s prosecutorial priorities usually change with each presidential administration. What remain constant, however, are the core “dos and don’ts” that every HR professional must follow.

What Managers Can and Can’t Say

A critical compliance tool for HR is the TIPS/FOE framework. Under “TIPS,” managers cannot Threaten employees with negative consequences for union support, Interrogate employees about union interest or activities, Promise benefits to discourage unionization or Spy on union activities. Violations of any of these prohibitions constitute ULPs under Section 8(a)(1) of the NLRA. Working with experienced labor counsel is advised, given that, absent training and knowledge of the NLRA, it can be easy to run afoul of these prohibitions by taking seemingly innocuous actions.

Conversely, under “FOE,” employers may generally share Facts (e.g., that unions collect dues), Opinions (e.g., a preference for working directly with employees), and Experiences (e.g., prior experience with unionized operations).

What Are the Rules of Collective Bargaining?

A collective bargaining agreement (CBA) is a contract between an employer and a union setting the terms and conditions of employment — pay, benefits, hours and other workplace rules — for all represented employees. Employers must bargain in good faith over mandatory subjects of bargaining, which include wages, hours, benefits, PTO, scheduling, discipline procedures and safety rules. Critically, employers cannot make unilateral changes to any mandatory subject without providing the union notice and an opportunity to bargain, unless privileged to do so under the CBA. Doing so constitutes a ULP under Section 8(a)(5).

“Direct dealing” — bypassing the union to negotiate directly with individual employees on mandatory subjects — is also prohibited. The practical rule: If it is a mandatory subject of bargaining, go through the union. No side deals, no individual promises, no end-runs around the union.

What is Joint Employer Liability?

Joint employer status arises when two or more companies co-determine control over shared employees' essential terms of employment. Under the current standard, an entity must exercise substantial, direct and immediate control — regular or continuous, not sporadic — over at least one of eight essential terms: wages, benefits, hours, hiring, discharge, discipline, supervision, and direction. Indirect control and reserved authority are relevant but cannot alone establish joint employer status. The joint employer status question often arises in subcontracting and other shared staff arrangements.

If deemed a joint employer, a secondary employer may be named as a charged party in ULP proceedings, held liable for back pay and other remedies, and required to bargain with a union. The NLRB has found that even outsourcing of remote professional work can trigger joint employer liability in various circumstances, including when a company provides detailed standard operating procedures, controls digital tools, or issues performance appraisals for another employer’s workers.

To minimize risk, HR consultants and outsourced service providers should maintain an advisory role — developing recommendations and training supervisors — rather than directly making discipline or termination decisions.

How to Handle Grievances

In a unionized workplace, discipline and discharge are typically governed by a “just cause” standard rather than at-will employment, and employees almost always have grievance rights. Arbitrators, who resolve employee discipline grievances that management and the union cannot resolve on their own, generally apply a seven-part test:

• Was notice provided to the employee of the work rule or policy they violated?
• Was the work rule reasonable?
• Did the employer conduct an investigation before deciding on discipline?
• Was the investigation fair?
• Is there proof of wrongdoing?
• Were employees treated equally?
• Was the penalty proportional?

In these environments, the parties’ CBA grievance procedures often establish a multi-step process for the employer and union to attempt to resolve contract grievances and disciplinary issues. This often involves an informal discussion between the employee, union representative and supervisor, in which HR should document the matter the same day. Subsequent steps generally require the union to submit a formal written grievance, timely written response(s) from HR and a meeting(s) between the parties. If a grievance is not resolved through these procedures, the contractual grievance procedure typically calls for binding arbitration — at which point outside labor counsel should be involved.

Best practices include tracking CBA deadlines under grievance procedures to ensure timelines for responding to grievances are not missed, treating similar cases consistently and involving counsel early — especially for high-stakes matters. Further, HR professionals should be familiar with employees’ right to request union representation during any investigatory interview they reasonably believe could lead to discipline.

What Are Emerging Issues for 2026?

HR professionals should monitor several evolving areas that unions may ask to bargain over. This includes the disclosure and use of AI tools in the workplace, such as algorithmic scheduling and the role of human judgment in discipline, and remote and hybrid work.

Practical Takeaways for Employers

The current landscape demands that HR professionals in both unionized and non-unionized workplaces approach personnel decisions with careful attention to any applicable CBA and the NLRA’s legal guardrails. Apply the “reasonableness test” at each stage of CBA administration: ask whether the work rule or policy at issue is consistently enforced in the same manner, and whether your approach is fair, supported by evidence, and defensible. When in doubt, escalate to experienced labor counsel before acting.

For more information, please contact Ken Rosenberg at (973) 994-7510 or krosenberg@foxrothschild.com, or Mark Eskenazi at (202) 461-3109 or meskenazi@foxrothschild.com, or another member of Fox Rothschild's Labor & Employment Department. Listen to Mark's podcast, “Labor Law Lineup,” on Apple, Spotify, or wherever you get your podcasts.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients