Ruling Finds Employer Must Distribute Remedial Notices Electronically

The National Labor Relations Board (NLRB) recently issued a decision finding that an employer must distribute remedial notices electronically when that is a customary means of communication with its employees. As a result, the NLRB modified its standard notice posting provision – which requires posting of remedial notices in all places where notices to employees are customarily posted –  to expressly include electronic communications. J&R Flooring, Inc., 356 NLRB No. 9 (October 22, 2010).

Factual Background

Section 10(c) of the National Labor Relations Act authorizes the NLRB to issue an order requiring an employer that has engaged in an unfair labor practice to “take such affirmative action . . . as will effectuate the policies of th[e] Act.” As a result, employers (and unions) that have been found to have violated the Act must post a notice informing employees of their rights

under the Act, the violations found by the NLRB, the employer’s promise to avoid such unlawful conduct in the future, and the actions to be taken by the employer to correct the violations.

The Board’s standard notice posting provision requires employers to post a remedial notice for a period of 60 days “in conspicuous places including all places where notices to employees are customarily posted.” Traditionally, this requires employers to post paper copies of the notice at fixed locations (i.e., on bulletin boards and at time clocks and entrances).

The primary issue before the NLRB in this case was whether Board-ordered remedial notices should be posted electronically. Given the increasing reliance on electronic communication in the workplace, the General Counsel argued that the Board should amend its standard. The employer, on the other hand, argued that electronic posting of remedial notices should be required only in cases involving egregious unfair labor practices or repeat offenders.

Legal Analysis

In a 3-1 decision, the NLRB held that employers which have engaged in unfair labor practices may be required to distribute remedial notices electronically. In reaching this decision, the Board noted that the “ubiquity of paper notices and wall mounted bulletin boards . . . has gone the way of the telephone message pad and the interoffice envelope.” Although these traditional forms of communication still exist, the Board found, email, postings on internal and external websites, and other electronic communication tools have now become an employer’s primary means of communicating a uniform message to its employees.

The one caveat is that electronic distribution is only required where an employer customarily uses email or any other electronic means to communicate with employees.

As result of its holding, the NLRB modified its standard provision to include the following: “In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Respondent customarily communicates with its employees by such means.”

Practical Impact

According to Tom Davis, a shareholder in the firm’s Nashville office, “The Board’s decision to require electronic posting of notices illustrates the new direction of the NLRB towards more union-friendly decisions. This ruling may even be a precursor to how the Board will decide another case involving electronic communication. In the Register-Guard case, the Board upheld an employer’s policy prohibiting the use of the company’s intranet and email systems for non-business purposes, including union solicitation. If this decision is reversed, the Board is likely to establish a broader right of access to a company’s electronic equipment for employees seeking to campaign for (or against) a union. Employers should stay tuned and be prepared to amend their policies accordingly.”

Note: This article was published in the November/December 2010 issue of The Employment Law Authority.

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The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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