July 5, 2020

Volume X, Number 187

July 03, 2020

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NLRB Temporarily Changes Standard Notice-Posting Remedy during COVID-19 Pandemic

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.

Co-authored by Richard F. Vitarelli 

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 132


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

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...

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an active practice advising employers regarding state and federal prevailing wage laws. He is consulted around the country by charter school employers regarding labor unions.

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...