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NLRB At Work: Employers closed amid pandemic can delay notice of NLRA violations

(Reuters) - The National Labor Relations Board has ruled that businesses that have been found to have violated federal labor law but are closed during the coronavirus pandemic can wait until they reopen to notify workers.

The board in a footnote to a May 6 decision involving a Connecticut ambulance service said employers have 14 days after reopening, or after “a substantial complement of employees have returned to work,” to post a notice that they have committed unfair labor practices under the National Labor Relations Act.
 
Notice posting is one of the most common penalties that the board and its administrative judges hand down in unfair labor practice cases. Typically, employers have 14 days after the issuance of a decision to post notice in the workplace. The board said the suspension of notice-posting requirements for shuttered businesses also extends to those who typically communicate with workers electronically.
 
The NLRB in the decision said the ambulance service’s owner and president violated the NLRA by making anti-union comments and attempting to negotiate directly with workers about their grievances rather than through their union. It was not clear from the decision whether the ambulance service, which denied violating the law, has closed during the pandemic.
 
The case is Danbury Ambulance Service Inc, No. 01–CA–238987. For Danbury: Jason Stanevich of Littler Mendelson. For the union: Kevin Creane.
 
Here is a look at some other recent developments that may have flown under the radar.
 

Workers can ‘quarantine’ mail before sending in election ballots -Regional Director

An NLRB regional director in New Jersey on May 5 said employees of an environmental cleanup company can cast mail-in ballots in a union election, rejecting the company’s claims that workers may be reluctant to touch their mail amid the coronavirus pandemic.
 
North American Industrial Services Inc had argued that some employees may simply refuse to vote by mail because of the risk of infection, and said an in-person election should be held sometime in the future.
 
But Regional Director David Leach said the New York-based company had failed to show that any employees actually raised such concerns. And if they are worried, he said, workers can “quarantine” their mail for several days and still have time to send in their ballots.
 
The International Union of Operating Engineers is seeking to represent a group of NAIS employees working at the former site of an oil refinery in New Jersey.
 
After a two-week moratorium on union elections, the NLRB last month said it was giving individual regional directors discretion over whether to postpone elections.
 
The case is North American Industrial Services Inc, No. 22-RC-258810. For the company: Thomas McDonough of Jackson Lewis. For the union: Lauren Bonaguro of DeCotiis FitzPatrick Cole & Giblin.
 

Board, AFL-COP duel over new election rules

 
The board and the AFL-CIO on May 6 filed dueling briefs with a federal judge in Washington D.C. opposing each other’s bid for summary judgment in the union’s challenge to a new NLRB rule that will slow down the union election process.
 
The board in its brief said the changes, which took effect in April, were merely “procedural” and the agency was not required to seek public comment before adopting them, as the AFL-CIO has argued. And the union in moving to strike down the rule had ignored the “great latitude” given to the NLRB in deciding how union elections should operate, the board said.
 
But the union’s lawyers at Bredhoff & Kaiser said that by requiring most litigation over the proper composition of bargaining units to take place before an election, the rule deprived workers of their substantive right to quickly decide whether to unionize.
 
U.S. District Judge Ketanji Brown Jackson will hold a hearing on the motions via videoconference on May 14.
 
The rule eliminated changes the board had made during the Obama administration that sped up elections, chiefly by requiring that litigation be resolved after workers have voted.
 
The case is AFL-CIO v. NLRB, U.S. District Court for the District of Columbia, No. 1:20-cv-00675. For the AFL-CIO: Leon Dayan of Bredhoff & Kaiser. For the board: Tyler James Wiese.
 

Hotel union must provide detailed info on grievances

 
The board in an April 30 decision said a Unite Here local that represents employees at a Hyatt hotel in Chicago must hand over more detailed information to the company about grievances filed by workers, which Hyatt claimed were so vague that it could not conduct investigations.
 
The NLRB upheld an administrative law judge’s decision rejecting Unite Here’s claim that notes from interviews with workers and other documentation of grievances were privileged. The judge said no such privilege exists between unions and their members, and that even if it did, that would not extend to the facts underlying a grievance.
 
Hyatt had brought an unfair labor practice claim against Unite Here, claiming that between 2017 and 2018 the union filed numerous vague grievances. Hyatt said that when it sought more information, union officials would add one or two details but not enough for the company to investigate and meaningfully defend itself.
 
It has long been clear that employers cannot furnish unions with intentionally vague or incomplete responses relevant to an ongoing grievance, but the Hyatt decision shows that unions have the same obligation, said Mark Theodore, a partner at Proskauer Rose who was not involved in the case.
 
The case is Unite Here Local 1, No. 13-CB-217959. For Hyatt: Bradley Wartman of Peter Andjelkovich & Associates. For Unite Here: McCracken Stemerman & Holsberry.

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