In J&R Flooring, Inc., dba J. Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), the “full” four-member National Labor Relations Board held, “[E]mployers and unions that are found to have violated the Act should be required to distribute remedial notices electronically, such as by e-mail and/or posting on an intranet or the internet, in addition to the traditional posting of a paper notice on a bulletin board.”  The ruling applies to all pending and future cases.  Member Brian Hayes, the lone Republican on the Board, dissented, arguing that the Board should not have turned an extraordinary remedy into a routine one.

The NLRB’s decision is flawed.  It assumes that if an employer uses electronic communications for any purpose, it uses them for all purposes.  Employers communicate different kinds of information differently.  Employees are familiar with these choices and adjust their expectations for getting information accordingly.  Official government notices to employees (e.g., minimum wage, fair employment practices, OSHA) are communicated to workers in many workplaces by physical postings; if other government notices are not communicated by intranet or e-mail, why should NLRB settlement agreements have to be handled uniquely?  If employees are used to seeing such notices on lunchroom bulletin boards (where they go for coffee, vending, etc. and can talk to each other on non-work time), why is such a posting suddenly ineffectual for Board notices/settlements?  Shouldn’t the NLRB have to prove that such postings don’t work, rather than assume the contrary as a matter of law? 

Some NLRA cases find interference with employee rights only where employers treat other union solicitations differently, rather than other solicitations in general.  Why doesn’t the Board look for comparisons here?  Is it laying the groundwork for overruling its 2007 Register-Guard decision (which restricted the use of employer electronic communications systems for union organizing) by establishing here that electronic communications are the only effective ways of transmitting important information in the workplace?

Now the Board’s regional directors seem to be compounding J. Picini’s error.  These officials serve as the NLRB General Counsel’s field prosecutors. Reports are reaching us that some of them are insisting that electronic notification now apply to all NLRB settlement agreements.  Most unfair labor practice cases are settled before hearing, rather than litigated.  Thus, a far greater number of cases could become subject to the new requirement than was contemplated by the decision itself.   J. Picini offers no support for this expansive application; as the Board, itself, framed the issue, the decision would apply only to (a) violation findings (b) made by the Board.

The problem with the regional directors’ demands is that they may involve “prosecutorial discretion.”  Unless they are instructed otherwise, these officials can seek electronic notification of an agreement as a condition of settling a case, even if the Board’s decision does not say so.  Settlement is a negotiation.  “If you don’t like the terms offered, you can litigate,” they will say.   Litigation, though, is not practical in many cases.

That is why the NLRB General Counsel should bar such requirements in agency settlements, or reserve them for special cases.  Whether the present General Counsel would be inclined to do so, however, is doubtful.   Of course, if the Board’s litigation caseload spiked because of respondents’ refusals to settle with such requirements, or if Members of Congress started questioning the justification for such notification, things might change. 

But I wouldn’t hold my breath.