A traditional remedy the NLRB has always ordered when it finds that an employer or a union violated the NLRA is the posting of a written notice. Usually, the remedial notice contains a brief recitation of employee rights under the law, a listing of the violations the NLRB found, an undertaking to cease and desist from that conduct, and a description of affirmative action to be taken to resolve the violations. The notice must be signed by a responsible official of the party found in violation of the law.
In the past, the NLRB ordered the remedial notice to be posted in all places where notices were customarily posted. In the case of an employer, this usually meant bulletin boards controlled by the employer, near time clocks, and similar locations. It was typically an extraordinary remedy for the notice to be disseminated any more broadly than this paper posting.
In J&R Flooring, Inc., 356 N.L.R.B. No. 9 (2010) (3-1), the NLRB recently altered this traditional approach. In a case involving violations of the NLRA by an employer, the NLRB ordered that the employer distribute the remedial notice electronically when that is the customary means of communicating with employees. (The same rule applies in the case of unions found to have violated the NLRA.) Member Hayes disagreed, and would have limited the posting to the traditional remedy.
The NLRB reasoned that employers are increasingly communicating with employees through electronic media. The NLRB also pointed to the growth in telecommuting and decentralization of workspaces that could cause an employee to never see a notice that is posted on a bulletin board. Finally, the NLRB reasoned that if an employer customarily uses its electronic systems to communicate with employees, then use of the same means to distribute a remedial notice would not impose an undue burden on employers.
For the labor relations professional, the J&R Flooring decision is significant for four reasons:
- Electronic "posting" means easy access. With remedial notices available electronically will come a greater ability to distribute them to key customers, vendors, or other employee groups not impacted by the unlawful conduct. Member Hayes noted the employer's loss of control over the remedial notice document as one of the reasons he believed electronic distribution should remain an extraordinary remedy.
- The contours of the obligation are uncertain. The NLRB doesn't define in the decision the circumstances under which any particular set of circumstances will warrant the conclusion that the employer's use of electronic media is sufficiently customary.
- The decision potentially foreshadows reversal of a key 2007 decision. In 2007, the NLRB held that an employer could restrict, on a non-discriminatory basis, non-business use of its e-mail systems (e.g., for union-related solicitation or distribution). Then-Member Liebman dissented strongly from this decision. The primary basis for her dissent was that e-mail had become a prevalent way for employees to communicate with one another. The NLRB's statements about technology in the workplace in J&R Flooring are consistent with her dissent.
- Social media may be next. As Member Hayes pointed out in his dissent, the decision is unclear whether posting of the remedial notice on social networking sites would be required. If an employer communicated with employees through "tweats" on Twitter, for example, the decision might require the employer to "tweat" about the notice posting.