Update: NLRB Extends Suspension of Notice-Posting Requirements to Cases Involving Informal Settlement Agreements

By Alex Downie

May 21, 2020

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…

Labor Relations Update

BREAKING: NLRB to Resume Unfair Labor Practice Trials June 1, 2020

By Alex Downie

May 19, 2020

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…

Labor Relations Update

NLRB Establishes Bright-Line Rule Voiding Election Ballots with Dual or Additional Markings

By Scott Tan

May 15, 2020

One area of controversy over the years is the NLRB’s attempt to interpret markings on representation ballots that are not clearly “yes” or “no.” This has given rise to a number of tests for divining voter intent. Overruling decades of conflicting precedent involving the interpretation of a voter’s intent, the NLRB issued a key decision on May 14, 2020, establishing a bright-line rule regarding the validity of ballots with markings in both the “Yes” and “No” boxes, or stray marks outside the boxes. From this point forward, dual markings or stray markings on the ballot will result in the vote…

Labor Relations Update

NLRB Suspends Remedial Notice-Posting Requirements for Facilities Shutdown During COVID-19 Pandemic

By Scott Tan

May 7, 2020

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…

Labor Relations Update

NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act

By Scott Tan

April 6, 2020

In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.” However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment. Plant Worker Refuses to Sign Dues-Checkoff Form In Alle Processing Corp. 369 NLRB No. 52 (2020), the employer, a manufacturer and packager of kosher food products for hospitals, entered into a bargaining relationship with a local union. The parties’ CBA contained a union-security clause requiring…

Labor Relations Update

BREAKING: NLRB Announces Representation Elections Will Resume April 6, 2020

By Scott Tan

April 2, 2020

On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020. The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections. Today, the Board announced that it will not extend the temporary suspension past April 3, 2020, and elections will resume beginning Monday, April 6, 2020. In a short statement, the Board indicated that over the last two weeks, the General Counsel had developed solutions to the logistics problems caused by the closure of several…

Labor Relations Update

NLRB Issues Final Rule Reworking Union Election Procedures

By Scott Tan

April 1, 2020

Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well. On March 31, 2020, the NLRB announced it had finalized three amendments to its rules and regulations regarding union election and recognition procedures. The rule was finalized on April 1, 2020, and will take effect on May 31, 2020. The Board implemented the final rules with minor modifications from the proposed rules published on…

Labor Relations Update

CARES ACT Relief for Mid-Size Businesses Comes with Important Union Related Conditions

By Dominique Kilmartin

April 1, 2020

Mid-sized businesses (defined as 500 to 10,000 employees) impacted by the Coronavirus may be able to obtain relief loans under the COVID-19 stimulus law, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), but only if non-union employers agree not to oppose the unionization of their workforce for the term of the loan, and if unionized employers agree not to “abrogate” existing collective bargaining agreements for the term of the loan and 2 years following loan repayment. First, for the entire term of a Treasury Department loan, an employer must agree to “remain neutral in any union organizing effort.” …

Labor Relations Update

NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies

By Scott Tan

March 31, 2020

On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public. Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under NLRA Section 8(d) may be affected by emergencies impacting the public at large and a particular employer. GCM-20-04 is limited to the duty to bargain. It does not address other NLRA issues that may arise during an emergency and should not be relied on for other purposes. Additional…