As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees.  See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020).

The Danbury Ambulance ruling addressed the posting obligation following the issuance of a Board decision in a contested unfair labor practice case. Normally, employers are required to post the Notice to Employees at the workplace within 14 days after issuance of a decision.  The notice informs employees of the employer’s violation, assures them that the employer will not engage in such unfair labor practices in the future, and advises employees of their statutory rights to form, join or assist labor organizations and to engage in other activity for their mutual aid and protection.  Danbury Ambulance did not address an employer’s notice-posting obligation pursuant to an informal settlement agreement approved by a Regional Director.

On May 20, NLRB General Counsel Robb issued a memorandum announcing that the same suspension of the notice posting obligation will apply to settled cases. Thus, if a place of business is either: (1) closed and a substantial number of employees are not reporting to the facility due to the COVID-19 pandemic, or (2) open and operating with less than a “substantial complement” of employees, then the 60-day notice-posting requirement will be suspended as described in the Danbury Ambulance decision.

The obligation to post a notice is postponed until 14 days after the facility involved reopens and a “substantial complement of employees have returned to work.”  In cases where the settlement agreement requires, in addition to the traditional physical posting of the Notice to Employees on bulletin boards at the workplace, that the employer email the notice to the affected employees — because the employer customarily communicates with its employees by email — the General Counsel has directed that the notice be emailed as soon as the business reopens and should not be delayed until a substantial complement of employees have returned. “By doing this, the notice will be placed in employees’ email in-boxes awaiting their return.” These changes are temporary, but take effect immediately.

While the Danbury Ambulance decision did not define what constitutes a “substantial complement of employees,” the GC Memorandum filled that gap, defining “substantial complement” as at least 50% of the total number of employees who were employed at the facility, where the notice is to be posted, prior to the COVID-19 related closure.

As the NLRB navigates the “new normal” during the COVID-19 pandemic, our team will continue to monitor the important developments and update you as they occur.

Photo of Peter D. Conrad Peter D. Conrad

Peter D. Conrad began his legal career as a trial attorney and hearing officer at the National Labor Relations Board.

Peter joined Proskauer’s Labor & Employment Law Department in 1980 and became a partner in 1986. He has represented employers in numerous industries…

Peter D. Conrad began his legal career as a trial attorney and hearing officer at the National Labor Relations Board.

Peter joined Proskauer’s Labor & Employment Law Department in 1980 and became a partner in 1986. He has represented employers in numerous industries (including health care, higher education, financial services, trucking, pharmaceutical, petrochemical, telecommunications, legal services, publishing, retail, broadcasting, entertainment, hotel and professional sports) in the full range of unfair labor practice and election proceedings before the NLRB. In the nearly 30 years that Peter has handled matters at the NLRB, he has confronted virtually every issue that a labor lawyer practicing in this area could expect to see, from the straightforward discharge for union activity, to the most complex secondary boycott, successorship and refusal-to-bargain situations, representing some of the firm’s most prestigious clients.

The remainder of Peter’s time is devoted to the related areas of union avoidance and corporate campaigns (defending employers against organizational activity in its many forms), as well as arbitration, negotiation, and litigation under collective bargaining agreements. Although primarily engaged in a more traditional labor relations practice, Peter also represents companies in employment discrimination cases (before state and federal administrative agencies and in the courts), workers’ compensation and unemployment insurance proceedings, and general client counseling in all areas of labor relations and employment law.

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.