October 22, 2020

Volume X, Number 296


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October 19, 2020

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

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 140



About this Author

Mark Theodore, Employment Attorney, Proskauer Rose

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. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.