As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots in representation elections by videoconference.

The agency’s prosecutorial arm is now ramping back up. The NLRB Division of Judges announced on May 15 that it will resume holding hearings on unfair labor practice complaints beginning on Monday, June 1. Unfair labor practice trials have been postponed since March in light of the COVID-19 pandemic.

Starting June 1, some unfair labor practice hearings will be conducted in-person, while others will be held remotely. In preparation, the Division has acquired licenses and equipment needed to conduct hearings remotely using videoconferencing technology. According to the announcement, motions or objections with respect to holding an in-person or online hearing – or taking witness testimony by videoconference – will be decided by the designated ALJ. These decisions may be appealed to the Board with special permission under Board Rule 102.26.

Also beginning June 1, requests for postponement will be considered on a case-by-case basis by the Deputy Chief ALJ in Washington, D.C. and by Associate Chief ALJs in the New York and San Francisco offices. These decisions may also be appealed to the Board as described above.

This announcement comes at the heels of several others related to the COVID-19 pandemic. Earlier this month, the Board directed Regional Directors to hold videoconferences rather than telephonic hearings when witness testimony will be heard in a representation case. The Board has also temporarily relieved employers whose facilities have been shut down from posting notice of a violation. The implementation of new rules governing union elections also have also been delayed by 60 days until July 31, 2020.

Our team is closely monitoring NLRB developments related to the COVID-19 pandemic and will continue to provide updates as they become available.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.