The National Labor Relations Board (NLRB) is beginning to address procedural disruptions arising due to the COVID-19 pandemic. On May 6, 2020, without a request from any party to a case, the NLRB “announce[d] . . . a temporary change in the Board’s standard notice-posting remedy to adapt to the ongoing Coronavirus pandemic.” The temporary change applies to both physical posting and e-distributing of the Notice to Employees in unfair labor practice cases. Danbury Ambulance Service, 368 NLRB No. 69 (May 6, 2020).

As noted by the NLRB, the standard notice-posting provision requires posting copies of the notice within 14 days after the notice is served on the party (union or employer) responsible for posting. That practice has to be temporarily changed because the remedy would be hollow if the individuals to whom the notice is directed (employees or bargaining unit members) are not in the workplace to read the notice.

The Board detailed the changes as follows:

    • For an employer that has closed due to the pandemic or does not have a substantial complement of employees at its facility, elimination from the notice-posting remedy of the requirement that the notice be posted within 14 days after service by the Region.
    • Instead, the notice must be posted within 14 days after the employer that has closed due to the pandemic reopens and a “substantial complement” of employees have returned to work.
    • Any pandemic-related delay in the physical posting of paper notices will also apply to electronic distribution of the notice.
    • These changes do not apply to employers whose facilities remain open and staffed by a substantial complement of employees despite the pandemic.

It appears that this temporary change affects notices arising from settlements and where posting follows litigation of a ULP case.

The Board did not modify existing case law defining what constitutes a “substantial complement” of employees. In general, the Board finds an existing complement of employees substantial and representative when at least 30 percent of the eventual employee complement is employed in 50 percent of the anticipated job classifications – but this may vary. It is anticipated that Board regions will investigate that issue when negotiating settlements and notices. Every case is different; a particularized analysis will be required to make a “substantial complement” determination.

Because a decision to settle an unfair labor practice charge may be affected by the timing of the posting/distribution, it is important that employers consider its potential impact prior to settling.

Please contact a Jackson Lewis attorney with any questions about this case or the NLRB.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. and co-leader of the firm’s Labor Relations practice group.

Photo of Richard F. Vitarelli Richard F. Vitarelli

Richard F. Vitarelli is a principal in the Hartford, Connecticut, office of Jackson Lewis P.C. He is the co-leader of the Labor Relations practice group, the firm’s national labor practice.