News & Events

Hands Up: Thrills and Chills of Labor Relations with the NLRB

February 6, 2026

X. Lightfoot and Avery J. Locklear and Will Oden

Ward and Smith, P.A.

At Ward and Smith’s recent annual Employment Law Symposium, two attorneys from the firm’s labor and employment group, Justin Hill and Hayley Wells, interviewed NLRB Regional Attorney Timothy Mearns.

Mearns was promoted to Regional Attorney for the National Labor Relations Board (NLRB) for Region 10 in Atlanta in 2024. He now oversees all litigation for the Atlanta, Birmingham, Nashville, and Winston-Salem offices. Mearns has been with the NLRB since 2014, when he started as a field attorney responsible for investigating and litigating unfair labor practice cases.

The NLRB is an independent federal agency that enforces the National Labor Relations Act (“NLRA”), which protects the right to form unions, engage in union activities, or abstain from union activities. “An extension of this relates to protected concerted activities,” noted Mearns.

Mearns shared insights on how employers can avoid the chill of a negative interaction with the NLRB by reviewing the agency’s role in the workplace. A few key areas that employers should take note of are:

What actions constitute protected concerted activities under the NLRA;
Union “salting” guidelines;
Secret recordings of union meetings; and
Protections applicable to some social media posts regarding the workplace.

The right of employees to engage in protected concerted activities applies regardless of whether employees are in a unionized workplace. “The definition of what constitutes protected concerted activity is really broad,” added Mearns. “It could be a discussion about the terms and conditions of employment, wages and benefits, changes you’d like to see, or even complaints to third parties about working conditions.”

An unfair labor practice charge can be filed against an employer or a union. The only way to allege a violation or seek a remedy is to file an unfair labor practice charge with the NLRB.

Other “examples of protected activities include engaging in a strike, telling coworkers you’d like to support a union, or signing a petition to have a union election in the workplace,” said Mearns. “The other side of this relates to signing a petition to have a union removed or telling coworkers you no longer want the union there.”

Applications and Obligations

Wells asked Mearns whether all employers in the US are covered by the Act. “No, it’s primarily private sector employers. Federal government employees are covered under a different statutory framework,” advised Mearns. “State and local employees are not covered, but the Postal Service is covered, even though it’s a quasi-public institution.”

Also of note is that supervisors and managers are not covered by the National Labor Relations Act. However, the NLRB will review the actual job responsibilities of those individuals to ensure they have not just been given a title so they can be excluded from bargaining units.

Hill: “What sort of obligations do employers and unions have under the NLRA?”

“The general obligation is to not restrain or interfere with the rights that employees have under the National Labor Relations Act,” Mearns explained. “This could include making threatening statements to an employee about their protected activity, interrogating the employee…surveilling the employee, basically anything out of the ordinary to try to view their activities.”

Employers can run afoul of the NLRB by promising or granting benefits to employees in hopes of chilling union activities. Union members may face legal consequences if they arbitrarily or discriminatorily refuse to provide representation to an employee after the union has assumed the role of exclusive bargaining representative.

“So, the union can’t say, ‘You didn’t support our campaign, so we’re not going to file a grievance on your behalf,’” noted Mearns.

Investigation Process and Timelines

“If an employee files an unfair labor practices charge,” said Wells, “What are the next steps?”

First, the charge is assigned to a board agent who investigates and gathers evidence from the charging party, typically as a sworn statement. If the allegation appears to have merit, the NLRB will contact the charged party to solicit evidence.

“We’ll send an evidence letter stating this is your opportunity to present witnesses for affidavits, provide documents or answer any questions we have,” commented Mearns, “and we will usually provide two to three weeks to respond.”

If the charged party does not cooperate, the NLRB can subpoena information. “More often, however, we’ll just go on the evidence we have, even though it’s one-sided. My advice is to cooperate so you can tell your side of the story,” added Mearns.

After the investigation is concluded, the board agent writes a report. The regional director reviews the report to determine if the NLRA was violated.

If no violation is found, the charging party can either withdraw the charge or appeal the decision. If a violation is found, the NLRB sends the offending party a settlement proposal.

A hearing may then be necessary if the parties cannot reach a consensus.

Concerted Activity

The concept of concerted activity refers to actions taken by more than one person to address shared concerns about working conditions. However, the concept can include a situation where one individual is seeking to induce other employees to join their cause, or the continuation of previous concerted activities.

“In the context of social media, what sort of interactions rise to that level?” asked Wells.

“Since it’s a broad audience, a social media post can fulfill the concert element. Even if it’s not a discussion with coworkers, if it’s a discussion with employees in other workplaces about working conditions, it could fall under concerted activity,” noted Mearns.

A variety of communications fall under the elements of concert and mutual aid of protection. “Some forms of communication can be so egregious, however, that we would decide notwithstanding you’ve met the primary elements for protection, you’ve lost it because the statement was knowingly false or defamatory,” said Mearns.

The NLRB reviews the circumstances surrounding the post. “Something that happened in the heat of the moment may get more leeway versus a repeated, planned attack,” Mearns commented.

The board allows more latitude for rhetoric and inflammatory language from employees than many would imagine. “Since these are contentious, hotly contested issues, and tempers often flare, the board allows for more flexibility for profane statements. Name-calling and other things your mother told you not to do may be legally protected,” joked Mearns.

Captive Audiences

Hill: “Can you clarify what a captive audience meeting is and the NLRB stance on captive audience meetings?”

“A captive audience meeting usually arises in the context of a union organizing campaign. It could occur when a union has filed a formal petition to seek a vote to unionize, to see whether it should become the representative of the employees,” Mearns explained.

The notion of captive audience relates to employees being forced to listen to management ideas about the disadvantages of unionizing. “For many years, employers were allowed to do that with no special restrictions. An example would include having a mandatory meeting with a sign-up sheet stating that everyone is taking their next break for 30 minutes and we’re going to discuss why we don’t want the union in our workplace,” commented Mearns.

A change in board law from 2024 determined that holding a mandatory meeting discussing the drawbacks of unionization was coercive. Voluntary meetings to discuss the drawback of unionization are lawful provided the employer makes clear that the meeting is voluntary.

Under the NLRA it is impermissible for an employer to have mandatory meetings. A voluntary meeting is acceptable; however, employers should ensure that employees are provided with express representation and advance notice that their participation is not required.

“There can be no penalties or reprisals, and there can be no sign-in or attendance logs,” Mearns said.

Elections are the most common way a union can become the official exclusive bargaining representative of a unit of employees. Though rare, unionization can also occur through voluntary recognition, in which a group of employees tells the employer they want a union.

Bargaining Orders

Under certain circumstances, the NLRB could issue an order requiring the employer to bargain with the union, even if an election never took place or the union lost the election.

“This is one of the most feared remedies of the NLRB,” noted Mearns, “because it could result in years of bargaining and dealing with grievances.”

In the past, a bargaining order typically only resulted from pervasive, widely disseminated, egregious unfair labor practices. The NLRB would issue a bargaining order if it determined that the unfair labor practices that occurred would prevent a fair election from taking place.

Mearns advised that the 2023 Cemex decision changed the standard for a bargaining order “Now, when the union files a petition or an individual files a petition for an election, the employer can’t just ignore it. If the employer doesn’t respond and the union shows majority support from employees, the NLRB could issue a bargaining order.”

If there was no question of majority status, a simple lack of response from the employer could result in a bargaining order. The idea is that the employer did not make an effort to bargain in good faith.

“Another big change from the Cemex case is that the employer or the union could file for an election in response to a claim of majority status,” said Mearns. “And significantly, any unfair labor practice that occurs during the period between when the petition is filed and the election takes place could trigger a bargaining order. It no longer has to be pervasive, egregious or widely disseminated.”

Mearns added that NLRB standards can quickly shift in correlation with the political environment. “You definitely want training for your workforce, especially when it comes to navigating the period between the filing and the election,” noted Mearns. “Seeking legal counsel is advisable because you don’t want a rogue supervisor making a few statements that result in a bargaining obligation when your employees maybe weren’t even going to ultimately vote for union representation.”

When a petition for election is filed, it triggers a series of deadlines and obligations with the NLRB. For that reason, as well as the fact that unfair labor practices occurring during this period could potentially change the trajectory of the process, Mearns recommends seeking counsel after the petition is filed.

Surreptitious Recordings

Though it may be amusing to imagine a middle manager sneaking into a breakroom to plant a listening device with the Mission Impossible theme song playing in the background, it is in fact a real-world issue with serious repercussions. “What are the nuances of the recent General Counsel memo that dealt with recordings by employers of collective bargaining sessions?” asked Wells.

The memo explains the acting General Counsel’s position that “surreptitious recording of bargaining sessions is a violation of the NLRA,” stated Mearns. “Essentially, the acting General Counsel believes that surreptitious recordings are inconsistent with the concept of bargaining in good faith.”

Union Salting

Union salting is another issue that may sound like it was pulled from a spy movie. “This is when the union sends a covert applicant to a worksite with the intention of organizing and encouraging other employees to seek union representation,” Mearns explained.

The applicant and/or union salt in this case would not end up in corporate jail. “Since the Act protects this, the employee does not forfeit the legal protections a typical employee would have,” said Mearns.

The issue commonly arises with refusal to hire cases. “An example could be related to an applicant who mentions union experience and is quickly ushered out the door,” noted Mearns.

Having a genuine interest in employment is a requirement for the individual to receive protection.

Common Mistakes

Many NLRB cases originate from non-unionized workplaces due to a lack of awareness regarding employee rights. Employee work rules and handbooks can present another troublesome issue.

“The board standard is pretty broad…we typically find it unlawful if a workplace rule could be reasonably interpreted as interfering with an employee’s rights under the Act,” said Mearns.

An essential success strategy for employers is to simply cooperate with investigations.

“It doesn’t make much sense to withhold evidence or spend a lot of effort and resources on litigation. We are a neutral party; we don’t get paid by how many unfair labor practices we find. We also get paid the same whether we litigate your case for 10 years or not…similarly, we may litigate something that looks silly on its face, but we’re obligated to do so under the law. So, it makes more sense to cooperate and possibly give us the evidence we need to determine that no violation has occurred,” Mearns advised.

In response to a question from an audience member who asked for cautionary advice for employers, Mearns stated, “The bargaining process is fraught with peril, but there’s a general obligation to bargain in good faith. With that in mind, employers should avoid creating agreements that are intentionally designed to fail.”

Employees should be aware that certain statements that are defamatory and/or knowingly false can fall outside the protection of the Act. “It could be something relatively benign, like telling someone in the media the company isn’t paying minimum wage,” said Mearns. “Because that’s an objective fact that could be disproven, it could result in losing protection.”

Threats of violence would also not be protected. Similarly, however, using vulgar language would not necessarily present a justifiable excuse for disciplining an employee.

More guidance from the NLRB may be found at www.nlrb.gov.

This article is part of a series highlighting our 2025 Employment Law Symposium. Get more insights below:

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

We are your established legal network with offices in Asheville, Greenville, Morehead City, New Bern, Raleigh, and Wilmington, NC, and Columbia, SC.