Nonprofit Can Leave Union Election Amid COVID, NLRB Says

By Alexis Shanes
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Law360 (October 16, 2020, 4:00 PM EDT) -- A New York City homelessness nonprofit can back out of an agreed union election after the COVID-19 pandemic upended its operations and affected hundreds of its employees, a National Labor Relations Board panel ruled Thursday, reversing a previous decision.

Housing Works Inc., which runs homeless shelters and thrift shops for homeless and low-income people with HIV/AIDS, showed its day-to-day work had changed drastically since it agreed to the union election, which was scheduled for March, the panel ruled.

"Those were not operational changes implemented in the normal course of business," the panel wrote. "Instead, the changes were driven by the pandemic, the full impact of which was not foreseen, or reasonably foreseeable, at the time that the parties entered into the agreement."

The proposed unit included workers at more than 30 locations and was set to be vote-by-mail, according to the decision.

But amid the pandemic, the nonprofit added roughly 230 new employees "in classifications covered by the agreement but who are excluded from the unit," according to the decision.

The changes saw the nonprofit start up homeless shelters for people with COVID-19, establish health care services at those shelters and create testing locations, according to the decision. And it permanently or temporarily closed its thrift shops and furloughed or laid off nearly 200 employees.

"The board made clear that the circumstances Housing Works faced and the structural and personnel changes it made as a result of those circumstances changed the very facts that served as the foundation for the stipulated election agreement in the first place," Glenn Smith of Seyfarth Shaw LLP, an attorney for Housing Works, told Law360 in an email Friday. "The board also stressed that this decision was not to be interpreted as a means for every party to seek to withdraw from stipulations due to COVID-19 implications."

In March, the day before the ballots were sent, the NLRB suspended elections. The day before elections were to resume in early April, the nonprofit asked out of the agreement, citing the staff and location changes.

In early July, a regional NLRB director denied the request, ordering the ballots mailed July 31. The NLRB stayed the election.

The panel said the unusual time gap between the agreement's March approval and the July proposed ballot mailing was sufficient to show the unit could be inconsistent with the agreement, according to the decision. The agreement had originally specified an election 16 days after its approval.

"The unit established by the agreement would then have been consistent with the circumstances in existence when the agreement was signed," the panel wrote. "As shown, that is not the case now, due to the pandemic and resulting significant, unanticipated and unavoidable passage of time."

Smith said the nonprofit is open to working toward a new election agreement.

"We hope to negotiate a new agreement with the union that will give all eligible NYC employees working in the agreed upon classifications the right to vote," Smith said. "This was the goal of Housing Works all along."

Counsel for the union did not immediately respond to a request for comment Friday.

Housing Works is represented by Glenn Smith and Jason Silver of Seyfarth Shaw LLP.

The union is represented by Larry Cary of Cary Kane LLP.

The case is Housing Works Inc. and Retail, Wholesale and Department Store Union, UFCW, case No. 29-RC-256430, before the National Labor Relations Board.

--Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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