In J.Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), Members Becker and Pearce joined Chairman Liebman in holding that “respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.” The decision expands the customary Board remedy of posting paper notices in the workplace, and is a clear sign of this Board’s commitment to adapting NLRB mechanisms and law to evolving technologies in the workplace.
In a September 28, 2010 article in the National Law Journal, I suggested that Chairman Liebman was not content to allow the NLRB to be viewed as the “Rip Van Winkle of administrative agencies.” Chairman Liebman wrote forcefully in the dissent to the 2007 Register-Guard case:
National labor policy must be responsive to the enormous technological changes that are taking place in our society.
The decision in J.Picini Flooring continues in that vein:
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….
Accordingly, going forward, the Board will now require remedial notices to be distributed by email if an employer customarily uses email to communicate with its employees, and by other means of electronic communication which are so used by the employer. Questions as to whether some type of electronic communication is necessary will be addressed at the compliance stage.
Member Hayes filed a dissent to the decision, asserting that the Board has transformed “an extraordinary remedy into a routine remedy.”