J & R Flooring, Inc.

• Decision Date: 22 October 2010
• Docket Number: 28-CA-21231,28-CA-21233,28-CA-21230,28-CA-21229
• Citation: 356 NLRB No. 9
• Court: National Labor Relations Board
• Parties: J & R FLOORING, INC. D/B/A J. PICINI FLOORING[1] AND FREEMAN' S CARPET SERVICE, INC. AND FCS FLOORING, INC. FLOORING SOLUTIONS OF NEVADA, INC., D/B/A FSI AND INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 15.

356 NLRB No. 9

J & R FLOORING, INC. D/B/A J. PICINI FLOORING^[1] AND FREEMAN' S CARPET SERVICE, INC. AND FCS FLOORING, INC. FLOORING SOLUTIONS OF NEVADA, INC., D/B/A FSI AND INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 15.

Nos. 28-CA-21229, 28-CA-21230, 28-CA-21231, 28-CA-21233

United States of America, National Labor Relations Board

October 22, 2010

SUPPLEMENTAL DECISION AND ORDER

WILMA B. LIEBMAN CHAIRMAN.

I. INTRODUCTION

Section 10(c) of the National Labor Relations Act authorizes the Board to issue an order requiring a party who has engaged in an unfair labor practice to “ take such affirmative action … as will effectuate the policies of th[e] Act.” The remedial power vested in the Board by this provision is a “ broad, discretionary one, ” NLRB v. J. H. Rutter-Rex Mfg., 396 U.S. 258, 262-263 (1969)(internal quotation mark and citation omitted), and has long been understood to include the authority to order respondents to post notices to employees concerning the violations found by the Board, the remedies ordered, and the underlying rights of the employees. See NLRB v. Express Publishing Co., 312 U.S. 426, 438 (1941). In exercising its discretion, the Board, like all administrative agencies, has a duty to adapt its rules and policies to the demands of changing circumstances. See, e.g., N.L.R.B. v. J. Weingarten, 420 U.S. 251, 266 (1975)(“ The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board”).

In this case, we consider whether employers and unions that are found to have violated the Act should be required to distribute remedial notices electronically, such as by email and/or posting on an intranet or the internet, in addition to the traditional posting of a paper notice on a bulletin board. We find that given the increasing prevalence of electronic communications at and away from the workplace, respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members. We modify the Board's current notice-posting language, which requires posting in all places where notices to employees or members are customarily posted, to expressly encompass electronic communication formats.

II. BACKGROUND

On May 14, 2010, the Board issued a notice and invitation to file briefs to the parties and interested amici in this and two other cases, Stevens Creek Chrysler Jeep Dodge, Inc., Case 20-CA-33367 et al., and Arkema, Inc., Case 16-RD-1583. The notice requested that the parties address whether Board ordered remedial notices should be posted electronically and, if so, what legal standard should apply and at what stage of the proceeding any necessary factual showing should be required.^[2] Briefs in response to the Board's invitation were filed by the General Counsel; Respondent FSI, Inc.; Respondent Arkema, Inc.; the Charging Parties in Stevens Creek Chrysler Jeep Dodge (Machinists District Lodge 190, Machinists Automotive Local 1101, and International Association of Machinists and Aerospace Workers, AFL-CIO) together with the Charging Party in the instant case, International Union of Painters and Allied Trades, District Council 15; and amici AFL-CIO, Service Employees International Union (SEIU), National Right to Work Foundation, Chamber of Commerce of the United States (joined by Respondent J & R Flooring, Inc.), Bodman LLP, and Texas Association of Business.^[3]

III. POSITION OF THE PARTIES AND AMICI

The General Counsel, the Charging Parties, and amici AFL-CIO and SEIU make the following arguments. In light of the increasing reliance on electronic communication in the workplace, the Board should amend its standard notice posting provision, which requires posting of remedial notices in all places where notices to employees or members are customarily posted, to make clear that it encompasses posting through email and other electronic formats, where the respondent customarily communicates with employees or members by those means. Any issues as to whether electronic notice and which type of electronic notice is appropriate in a particular case should be resolved in compliance proceedings, in the same manner that issues regarding the number or location of paper postings are currently resolved. Further, in determining whether electronic posting is appropriate, the relevant inquiry should be whether the respondent customarily disseminates information to employees or members through electronic means.^[4]

Respondent FSI, Respondent Arkema, and amici Chamber of Commerce (joined by Respondent J & R Flooring), Texas Business Association, and Bodman LLP, argue that electronic posting of remedial notices is an extraordinary remedy that should be compelled only in cases involving egregious unfair labor practices or recidivist violators of the Act. They further argue that the General Counsel should bear the burden of establishing that electronic posting is warranted, and that any necessary factual showing should be made during the unfair labor practice hearing. The Respondents and supporting amici also contend that any change in the Board's standard notice posting remedy should be applied equally to respondent unions and respondent employers.^[5]

IV. ANALYSIS

A.

The requirement that respondents post a notice informing employees of their rights under the Act, the violations found by the Board, the respondent's undertaking to cease and desist from such unlawful conduct in the future, and the affirmative action to be taken by the respondent to redress the violations has been an essential element of the Board's remedies for unfair labor practices since the earliest cases under the Act. See, e.g., Pennsylvania Greyhound Lines, Inc., 1 N.L.R.B. 1, 52 (1935), enf. denied in relevant part 91 F.2d 178 (3d Cir. 1937), revd., 303 U.S. 261 (1938). Remedial notices serve a number of important functions in advancing the Board's mission of enforcing employee rights and preventing unfair labor practices. They help to counteract the effect of unfair labor practices on employees by informing them of their rights under the Act and the Board's role in protecting the free exercise of those rights. They inform employees of steps to be taken by the respondent to remedy its violations of the Act and provide assurances that future violations will not occur. See generally Teamsters Local 115 v. NLRB,640 F.2d 392, 399-401 (D.C. Cir. 1981). See also NLRB v. Falk Corp., 308 U.S. 453, 462 (1940)(purpose of remedial notice is to convey to employees information about their rights and the employer's obligation not to interfere with those rights); Chet Monez Ford, 241 N.L.R.B. 349, 351 (1979), enfd. mem. 624 F.2d 193 (9th Cir. 1980)(notices are “ a means of dispelling and dissipating the unwholesome effects of a respondent's unfair labor practices”). They also serve to deter future violations. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 152 (2002)(the requirement to “ conspicuously post a notice to employees setting forth their rights under the NLRA and detailing its prior unfair practices” is a “ significant sanction”). In order to achieve these remedial goals, notices must be adequately communicated to the employees or members affected by the unfair labor practices found. The Board's standard notice posting provision therefore requires respondents to post a remedial notice for a period of 60 days “ in conspicuous places including all places where notices to employees [members] are customarily posted.” ^[6] This provision has traditionally been applied to require posting of paper copies at fixed locations, usually on bulletin boards as well as at time clocks, department entrances, meeting hall entrances, and dues payment windows. See N.L.R.B. Casehandling Manual, Part III (Compliance Proceedings), Section 10518.2.

The ubiquity of paper notices and wall mounted bulletin boards, however, has gone the way of the telephone message pad and the interoffice envelope. While these traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members. Electronic communications are now the norm in many workplaces, ^[7] and it is reasonable to expect that the number of employers communicating with their employees through electronic methods will continue to increase.^[8] Indeed, the Board and most other government agencies routinely and sometimes exclusively rely on electronic posting or email to communicate information to their employees. In short, “ [t]oday's workplace is becoming increasingly electronic.” ^[9]

Given the increasing reliance on electronic communication and the attendant decrease in the prominence of paper notices and physical bulletin boards, the continuing efficacy of the Board's remedial notice is in jeopardy. Notices posted on traditional bulletin boards may be inadequate to reach employees and members who are accustomed to receiving important information from their employer or union electronically and are not accustomed to looking for such information on a traditional bulletin board. Furthermore, the growth of telecommuting and the decentralization of workspaces permitted by new technologies mean that an increasing number of employees will never see a paper notice posted at an employer's facility.^[10] As a matter of general policy, it follows that, in addition to physical posting, notices should be posted electronically, on a respondent's intranet or internet site, if the respondent customarily uses such electronic posting to communicate with its employees or members. Similarly, notices should be distributed by email if the respondent customarily uses email to communicate with its employees or members, and by any...