When a union files an unfair labor practice (ULP) charge, the National Labor Relations Board (NLRB) starts an inquiry with strict timelines. Failing to respond to an NLRB information request can limit an employer’s ability to shape the facts, and in some cases, the Board may draw adverse inferences if materials or witnesses are withheld.
This means the Regional Director may give more weight to the charging party’s version of events. Without a timely response from the respondent, the factual record reflects only one perspective, which increases the likelihood of formal charges being pursued.
The Regional Director may proceed with formal charges
The NLRB review process requires strict compliance with deadlines. A one-sided record can shape the scope and direction of those charges, making the complaint significantly harder to challenge at later stages of the process.
The complaint triggers a formal hearing before an Administrative Law Judge. At this stage, the employer must defend against claims it did not formally contest during the investigation. The General Counsel still bears the burden of proof.
Remedies become harder to negotiate
Early cooperation allows employers to reach informal settlements with the regional staff. Once a formal complaint is issued, the case becomes a public enforcement action. Post-complaint settlements can still be approved locally by the Regional Director or the Administrative Law Judge. Full Board-level approval is reserved only for formal settlements that result in a Board order or court consent decree.
Standard remedies such as reinstatement, back pay and notice postings then become the baseline. Litigation costs rise, and the employer loses leverage to negotiate non-monetary adjustments or private resolutions.
What steps should employer take
Response deadlines from regional offices typically run one to two weeks, though timelines vary by case. Employers who receive an inquiry should act immediately. Requesting a deadline extension from the regional office early in the process is often granted and preserves the opportunity to prepare a thorough response.
A litigation hold should be issued at the outset to prevent the deletion or alteration of relevant records. A detailed position statement allows the employer to present witness accounts, supporting documents and factual context before investigators draw conclusions based solely on the charging party’s account.