Electronic Notice Dissemination Guidance
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…. 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 other electronic means of communication so used by the respondent.
Id., slip op. at 3. The Board reasoned that it would be an abdication of its responsibility to adapt to the “changing patterns of industrial life” were it to “ignore the revolution in communications technology that has reshaped our economy and society.” Id. at 4. The Board rejected the contention that electronic posting should be considered an extraordinary remedy that should be compelled only in egregious ULP cases or to deal with recidivist violators, noting that only Respondents that customarily communicate with employees (or members) by electronic means would be required to post remedial notices electronically. Id. Finally, the Board held that “the burden of establishing whether electronic notice of any particular type should or should not be required appropriately rests with the respondent because of its knowledge of its own communication practices and systems and its possession of the evidence concerning those facts.” Id. n.14.
In a recent decision, one of the Authority’s Administrative Law Judges ordered the dissemination of a remedial notice by email. In Department of Homeland Sec., U.S. Customs and Border Prot., El Paso, Tex., Case Nos. DA-CA-08-0179 & DA-CA-08-0180 (OALJ 10-03) (Jan. 27, 2010), the Administrative Law Judge (ALJ) analyzed the question of electronic posting in terms of the “twin lodestars” guiding any determination concerning the effectiveness of a notice, namely, those identified in National Guard Bureau: “does the notice posting demonstrate to employees that the Authority will vigorously enforce rights guaranteed under the Statute and that the Respondent recognizes and intends to fulfill its obligations under the Statute?” Under the facts of the case, the ALJ concluded that the General Counsel’s evidence “demonstrated that the greatest number of employees rely on their email as their primary source of information, and that the Respondent does as well.” The ALJ therefore recommended that in addition to requiring the Respondent to post physical copies of the Notice to All Employees, the Respondent should also distribute the Notice by email (“Disseminate a copy of this Notice signed by [the Respondent] through the Station’s email system to all bargaining unit employees at the [facility].”).
In support of this policy to seek the electronic posting of notices, as part of the Region’s investigation into ULP cases the Region will make inquiries, as appropriate, into how the charged party customarily communicates to its unit employees or members. The General Counsel’s Investigating Agents will inquire regarding all means of such communication and will seek to ascertain the customary means by which such communication takes place. In ULP complaint cases where the evidence reflects that a Respondent typically communicates information to employees (or members) by means of email, posting on an intranet or the internet, or by any other electronic means, the General Counsel will seek a remedy to include dissemination of a remedial notice by those means, and will argue that the Authority should require electronic dissemination in all such cases.