Union organizing and the NLRB in 2026: employee rights, unfair labor practice charges, and preparing your leaders

Employees have a clear, federally protected right to organize, to discuss pay and working conditions with each other, and to choose whether to be represented by a union. That right deserves respect, and a well-run company should welcome the conversation about what employees want.

My view is that every employer should be pro employee development and pro high wages, because well-paid people who are growing in their jobs are the most productive people. Employees and unions want the same things. Where I differ with many unions is on the method. Unions often bring approaches built for a different era, such as rigid job classifications, seniority over performance, and one contract for very different jobs, and those approaches are often poor at addressing the concerns that actually started the conversation. A company that listens, pays for performance, and develops its people usually answers those concerns better and faster.

That is a view a company is allowed to share. How it shares it is governed by federal law, and in 2026 the stakes for getting it wrong are high.

Where the NLRB stands in 2026

• A working Board, cautious about change. The National Labor Relations Board regained a quorum in January 2026 with a Republican majority, but it has so far declined to overrule most recent precedents, following its tradition of overruling precedent only with three members in the majority. The General Counsel has asked the Board to overturn several of them.
• Cemex still applies. Under the Board’s 2023 Cemex decision, if an employer commits unfair labor practices that would justify setting aside an election, the Board can order the employer to recognize and bargain with the union instead of rerunning the vote. At least one federal appeals court rejected that framework in 2026, but it remains Board law. In practice, one supervisor’s threat can be the difference between an election and a bargaining order.
• Captive-audience meetings. In late 2024 the Board held that requiring employees to attend meetings about unionization violates the Act, going forward. Until that changes, make any such meeting voluntary, say so, and do not track attendance.
• The Fifth Circuit’s ruling. In 2025 the federal appeals court covering Texas held that the NLRB’s structure is likely unconstitutional and kept injunctions in place against Board proceedings for the employers in that case. That has given Texas employers a defense to raise in some cases. It does not change what the Act requires day to day, and it is not a reason to act carelessly.
• Texas is a right-to-work state. No one can be required to join a union or pay dues as a condition of employment in Texas. Employees may still choose union representation.

What leaders may say: facts, opinions, and examples

Federal law protects an employer’s right to express views about unionization, as long as the message contains no threat of reprisal or promise of benefit. Honesty is the best policy. Supervisors can share:

• Facts, such as how an election works, what dues are, that bargaining is a give-and-take with no guaranteed outcome, and that employees can vote no even if they signed a card.
• Opinions, such as the company’s preference to work with employees directly, and why.
• Examples, such as accurate, verifiable things that have happened at other workplaces.

What leaders must never do

Training your leaders

Most unfair labor practices are committed by well-meaning front-line supervisors who were never trained. A short, practical session before or at the very start of a campaign prevents most of them:

• The rights employees have, explained respectfully, so supervisors understand why the rules exist.
• The do-and-do-not lists above, practiced with real scenarios, such as an employee who asks, “Can I get fired for signing a card?” (The honest answer is no.)
• How to answer a question they cannot answer: “I don’t know, but I’ll find out and get back to you,” and then actually doing it.
• Who to call before acting, and how to document ordinary discipline during a campaign.
• Union members’ right to a representative in an investigatory interview that could lead to discipline, once a union is in place. See training for the full program.

Handling an unfair labor practice charge

An employee or union generally has six months from the alleged violation to file a charge with the NLRB regional office. When one arrives:

1. Calendar the response date in the Board agent’s letter, and preserve email, messages, schedules, and discipline records.
2. Find out what happened before anyone answers. Interview the supervisors involved, carefully and without asking employees about their union views.
3. Decide how to respond. The region may ask for a position statement, documents, and affidavits from supervisors. Counsel should attend supervisor interviews.
4. Consider settlement early. Many charges resolve with a notice posting and, where appropriate, a remedy, before a complaint issues.
5. Fix the cause. A charge usually means a supervisor needs training or a policy needs revision. Do that whatever the outcome.

If the region issues a complaint, the case goes to a hearing before an administrative law judge, and the Board can seek a court injunction in serious cases. During a campaign, an unresolved charge can also delay or overturn an election, or support a bargaining order.

Getting help the right way

When employees are organizing, a company needs accurate answers fast: for its leaders and for the employees asking questions. I advise leadership through organizing campaigns and representation petitions, train supervisors to communicate honestly and lawfully, help the company give employees accurate information, and respond to charges and petitions before the NLRB. One thing employers should know: federal labor law requires certain kinds of outside help during a campaign to be reported to the Department of Labor, and I structure engagements with those rules in mind.

The best time to address employees’ concerns is long before anyone hands out cards: fair pay for performance, real development, listening that leads to action, and a fast way to raise problems, like the engagement check-ins. If bargaining does begin, read managing while you bargain.