PART IV - POSTING, DISTRIBUTING, AND SIGNING REMEDIAL NOTICES AND THE CONTENTS OF THOSE NOTICES
Q. #1: Why are Authority notices posted as part of the remedy for an unfair labor practice violation?
The posting of a notice provides evidence to bargaining unit employees that the rights guaranteed under the Statute will be vigorously enforced. In many instances, the posting of a notice is the only visible indication to unit employees that a respondent recognizes and intends to fulfill its obligations under the Statute. In addition to ordering certain conduct to cease and desist and any affirmative action to be taken, the notices contain an introductory statement that the Authority has found a violation of the Statute and has ordered the respondent to post and abide by the notice.
Q. #2: What is the scope of a posting and the signatory on the posting?
The scope of the posting refers to the identification of the particular locations where a remedial notice to employees will be posted. The signatory indicates the particular management or union official who is ordered to sign the notice. Whenever the scope of the posting is expanded beyond the particular location of the violation, the signatory on the posted notice should be an official with responsibility for the entire posting area. Conversely, whenever the signatory of a posting is an official with responsibility for an area beyond the particular location of the violation, the scope of the posting should encompass that expanded area. In short, the scope of the posting and level of the signatory should be consistent.
Q. #3: Where should a remedial notice be posted?
The standard for the scope of a remedial posting is whether the violative conduct affects employees beyond a particular location. Where a respondent's conduct impacts unit employees beyond the particular location where the violation occurred, it is appropriate to require that notices be posted in additional areas. The General Counsel has the burden to present evidence to establish a scope of posting beyond the location of the violation. When litigating a case, the Regions request the greatest appropriate scope of the posting.
Q. #4: Who should sign a remedial notice?
Sometimes, signing the notice is the only way that employees know that the lead manager or union official is even aware that a violation of law has occurred. The Authority has long held that the remedial purposes of a notice are best served by requiring the head of the activity responsible for the violation to sign the notice. The highest official of the activity responsible for the violation, however, is not always the head of the activity/ agency or union. As with the scope of the posting, the burden is on the General Counsel to present evidence to establish the appropriate level of the signatory. When litigating a case, the Regions request the highest appropriate official to sign the notice.
Q. #5: Has the Authority ever ordered the nontraditional remedy of distributing the notice to unit employees, supervisors and managers?
Yes. Sometimes, it may be necessary to ensure that the notice is distributed in a different or additional manner to impress upon the respondent the seriousness of the violation(s) and to ensure that employees know that their rights under the Statute will be protected. When warranted by the extraordinary circumstances surrounding the violations, such as repeated egregious violations, the Authority has ordered that the signed remedial notice be distributed to each supervisor, manager and employee. Regions also may consider distribution of a notice by electronic mail when appropriate to ensure that the notice is available to all employees affected by the violation.
Q. #6: Has the Authority ever ordered the nontraditional remedy of reading the notice to unit employees, supervisors and managers?
Yes. In view of the seriousness of the violations, the Authority on two occasions has ordered that a meeting be held where the agency head, or an Authority agent in the presence of the agency head, reads the notice aloud. In U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127, 55 FLRA 704, 720 (1999), the chief management official had been personally involved to a significant extent in a pattern of unfair labor practice violations over the course of a seven-month period, many of them egregious, such as making threatening, anti-union statements at a mandatory meeting of all employees and making repeated statements threatening to take action against union officials. The Authority found it was reasonably necessary to require those statements to be retracted, via a reading aloud of the notice, at another meeting of all employees.
Q. #7: Has the Authority ever ordered the nontraditional remedy of naming specific managers or union officials that engaged in violative conduct in the notice?
No. The General Counsel, to date, has been unsuccessful in convincing the Authority that it is necessary to name specific offending managers, supervisors or union officials in a posting to recreate the conditions that existed before the violation and to deter future violations. In Leavenworth, for example, the Authority noted that there are no private sector cases where a request for a remedy has been granted. The Authority added that in view of the other ordered remedies, naming particular individuals in the notice is not reasonably necessary to recreate the conditions and relationships with which the unfair labor practice interfered, or to effectuate the policies of the Statute.
Q. #8: Has the Authority ever ordered the nontraditional remedy of referring to prior violations in the notice?
Yes. On one occasion, the Authority granted this remedy, noting that the language serves to put both the employees and the respondent on notice of the serious nature of the respondent's unlawful conduct.
Q. #9: What type of evidence supports these nontraditional scope of posting, signatories and notice distribution remedies?
To determine the appropriate scope and signatories of a posting and whether any of the above nontraditional posting remedies are appropriate, evidence should include:
- the extent to which unit employees at locations other than the site of the violation know of the violative conduct;
- whether the violation involved high ranking union and/or agency officials;
- how the violation affected employees at different locations within the unit;
- the seriousness, type and number of violations; and