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Democratic Bias Obvious from Recent NLRB Decision

The NLRB continues to push their Democrat agenda through its Board decisions instead of going through rule-making procedures.  An example of this “judicial legislation” occurred late last month when the Board ruled employers must send out electronic remedial notices if that is the employer’s “customary means of communicating with employees.”

Normally, when an employer or union is found to have violated the National Labor Relations Act (NLRA), the Board requires the party to issue a remedial notice to employees, stating the employee’s rights, and what steps are being taken to remedy the violation.  In the past, it was required that these printed notices be posted in a conspicuous place throughout the workplace, such as on a bulletin board or near a time clock.  This is no longer the case.

In J. Picini Flooring, 356 NLRB No. 9 (2010), the Board decided to require the violating party  send an electronic notice to employees in addition to posting a physical notice in the workplace, provided that the party usually communicates with employees electronically.  The Board opined such electronic notices might be posted on an internet site, intranet site, or be sent by email.  Which type it chooses to impose will depend upon how an employer usually provides its employees with information.

The Board found that bulletin boards are no longer the place where employees receive information about their employers.  In addition, the Board ruled that with an increase in telecommuters, electronic notices are the best way to inform all employees.  In its decision, the Board cautioned employers against monitoring which employees do or do not open the notices, and against punishing employees for downloading, printing or forwarding the notice, as such action might violate Section 7 of the NLRA e.g., it might be deemed surveillance.

The dissenting Board Members worried electronic notices are easy to anonymously modify.  A modified (doctored) notice could be easily sent to stockholders, competitors, or rival unions.  In addition, the dissenters argued that since the type of notice will be decided on a case-by-case basis, it takes away the uniformity once provided by the rule.  In the past, there was only one possible way the employee could receive the notice, but now the employee will need to look for it in several possible formats.  Certain employers or unions may be unnecessarily burdened by the electronic notice requirements. 

If you are a unionized company, it is important to be sure that you are in compliance with the provisions of the NLRA and aware of the ever changing face of the Board.  Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.