The National Labor Relations Board (the “Board”) issued a decision in J. Picini Flooring (356 NLRB No. 9), on October 22, 2010, announcing that a respondent, whether an employer or labor union, that is ordered by the Board to post notices to remedy unfair labor practices must distribute those notices by electronic means if the respondent “customarily disseminates information to employees or members through electronic means.” The employer or labor union must also continue to post paper notices. The electronic notice requirement applies retroactively to all cases pending in front of the Board.
Remedial notices had been traditionally distributed by posting paper notices on bulletin boards because, for many years, that was the primary means employers used to communicate with employees. In this new decision, the Board stated that the electronic posting requirement is not a new requirement. Rather, it is a “clarification” of the requirement to post “in conspicuous places including all places where notices to employees are customarily posted.” 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.” The Board stated that employers more frequently utilize electronic communications as the primary means to communicate with employees, and the Board will now require that these employers utilize the same means of communication when distributing Board notices.
In briefing on the issue, the charging parties urged the Board to require employers to allow employees to read electronic notices on paid work time. They also urged the Board to forbid monitoring of which employees open and read electronic notices and taking adverse action against employees who forward, print or download electronic notices. The Board declined “to adopt such rules at this time.” However, the Board cautioned employers and unions that any such action or conduct may constitute an unfair labor practice in violation of the National Labor Relations Act if the conduct “tends to interfere with the exercise of Section 7 rights.”