The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running.  Representation elections vote counts are being conducted via video conference as are hearings.  The remedy stage of unfair labor practice proceedings also has caught up with the these crisis-ridden times.

The headline from the Board’s decision on May 6, 2020 in Danbury Ambulance Service, Inc., 369 NLRB 68 (2020), is an acknowledgment of this “new normal.”  The NLRB temporarily suspended its standard remedial requirement that an employer must post a notice to employees at the involved facility within 14 days, notifying employees of the employer’s violation and advising employees of their rights under the Act.  The suspension of notice-posting applies only to employers who are closed or where a substantial number of employees are not reporting to work as a result of the COVID-19 pandemic.

In Danbury, the employer was charged with failing to bargain and respond to the union’s request for information regarding the termination of one of its members, as well as bypassing and denigrating the union in a phone call soliciting the employee to withdraw his grievance.  The employer failed to contest the allegations, and the Board issued a default judgement.

As one of its remedies, the Board typically orders the employer (as the charged party) to post a Notice to Employees at the facility involved in the proceedings stating that it will take certain corrective actions and advising workers of their rights under the NLRA.  Usually, the notices must be posted within 14 days after service of the decision to the employer, and must also be distributed through electronic means, such as email or intranet, if the employer customarily communicates with its employees in such a manner.

As part of its ruling in Danbury, the Board noted that many employers would be unable to post notices within the standard 14 days due to closures from the COVID-19 pandemic.  Even if notice could be posted, “the whole point of the remedy will be defeated if employees (or union members) are not present to read the notice.”

As a result, the Board suspended its standard notice-posting requirement due to the ongoing pandemic—for employers that are closed and whose employees are not reporting to work.  Employers should not and are not required to post physical notices or distribute electronic notices until 14 days after the involved facility reopens and “a substantial complement of employees have returned.”

The Board did not further define what constitutes “a substantial complement of employees,” but the “substantial complement” concept has been used by the NLRB as one of the factors in determining whether a company is a “successor” employer under the Act.  Based on this standard, the Board likely will consider whether a majority of the job classifications are filled and the operation is engaged in substantially normal production.

Notably, employers with facilities that remain open and staffed by a substantial complement of employees are not affected by this change, and will remain subject to the standard 14-day notice-posting requirement.  The Board indicated it will revert these changes “when conditions warrant.”

The Board also addressed electronic posting holding: “employers that customarily communicate with their employees by electronic means may not be doing so while their businesses remain closed.  Thus, any pandemic related delay in the physical posting of notices will also apply to the electronic distribution of the notice.”  This leaves open a couple of questions.  What if employees are working from home and in electronic contact with their employer?  In this circumstance, the employees all could receive the notice by email or by the employer posting it on the intranet.  Does this still mean the employer will have to post the notice physically after the pandemic ends?

We will keep you posted of further developments.

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.

Photo of Scott Tan Scott Tan

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of…

Scott Tan is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.