UNITED STATES OF AMERICA

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BEFORE THE NATIONAL LABOR RELATIONS BOARD

WASHINGTON, DC

ARKEMA, INC.

Cases 16-CA-26371

16-CA-26392

STEVENS CREEK

Cases 20-CA-33367

20-CA-33655

20-CA-33562

20-CA-33603

CUSTOM FLOORS, INC.

Case 28-CA-21226

BRIEF OF AMICUS CURME

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA

Robin S. Conrad

Shane B. Kawka

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Harold P. Coxson

Christopher R. Coxson

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

2400 N Street, N.W.

Washington, DC 20037

(202) 887-0855

Counsel for Chamber of Commerce

of the United States of America

Counsel for Amicus Curiae

Chamber of Commerce of

the United States of America

TABLE OF CONTENTS

STATEMENT OF INTEREST OF THE,4MICUS CURME ...................................

STA TEM ENT O F TH E CA SE .......................................................

SUM MARY OF THE ARGUM ENT ..................................................

A R G U M EN T ..................................................................

1. Electronic Posting of Remedial Board Orders Should Apply, If At All, To Both

Unions As Well As Employers After an Evidentiary Hearing During the Unfair Labor Practice

Stage Prior to Compliance.

11. Electronic Posting of Remedial Board Orders Should Apply, If At All, Only to

Decisions Involving Egregious Unfair Labor Practices By Employers and Unions Where

Extraordinary Remedies Are Appropriate, and Not to Every Board Order.

C O N C L U SIO N .................................................................

TABLE OF AUTHORITIES

Page(s)

CASES

Adtranz, ABB Daimler-Benz Transportation,Inc.,

331 NLRB No. 40 (2000) .........................................................

Arkema, Inc.,

16-CA-26371 .................................................................

Boire v. I R T,

479 F.2d 778 (5th Cir. 1973) ........................................................

Custom Floors, Inc.,

28-CA-21226 .................................................................

D'Amico v. Industrial Union ofMarine and Shipbuilding Workers,

116 LRRM 2508 (D. M d. 1984) .....................................................

Electrical Workers IBEW Local 3 (Hunts Point Elec.)

271 NLRB 1580 (1984) ...........................................................

FieldcrestCannon, Inc.,

318 NLRB 470 ................................................................

Fresh & Easy NeighborhoodMarket, Inc.,

2010 WL 561866 (N.L.R.B. Div. Of Judges) .............................................

Frye v. District1199,

996 F.2d 141 (6th Cir. 1993) .......................................................

General Longshore Workers, ILA,

235 NLRB 161 (1978) ...........................................................

Hirsch v. Building and Construction Trades Council,

530 F.2d 298 (3d Cir. 1976) ........................................................

Indian Hills Care Center,

321 NLRB 144 ................................................................

InternationalBusiness Machines Corp.,

2,3,7,9

339 NLRB 966 (2003) ............................................................

Kobell v. UnitedPaperworkersInt 7 Union,

965 F.2d 1401 (6th Cir. 1992) ......................................................

Longview FibrePaperandPackaging,Inc.,

2009 W L 5162419 (N .L.R .B . Div. of Judges) ............................................

McLeod v. Communications Workers ofAmerica,

79 LRRM 2532 (S.D . N .Y. 1971) ....................................................

McLeodv. CompressedAir,etc., Workers,

292 F.2d 358 (2d Cir. 1961) ........................................................

Mid-Mountain Foods, Inc.,

332 N LRB 229 (2000) ...........................................................

NLRB v. Avondale Mills,

357 U .S. 357 (1958) .............................................................

NLRB v. Gissel Packing Co.,

5,14

395 U .S. 575 (1969) .............................................................

NLRB v. J H. Rutter-Rex Mfg. Co.,

396 U .S. 258 (1969) .............................................................

Nordstrom, Inc.,

347 N LRB 294 (2006) ...........................................................

2,5,9

PacificBell,

330 N LRB 271 (1999) ...........................................................

Page Aircraft Maintenance,

123 NLRB 159 (1959) ...........................................................

Peoples Gas System, Inc.,

253 N LRB 1180 (1981) ...........................................................

PostalService,

339 N LRB 1163 (2003) ...........................................................

Squillacote v. Local 248.Meat & Allied Food Workers,

534 F.2d 735 (7th Cir. 1976) .......................................................

Stevens Creek ChryslerJeep Dodge, Inc.

20-CA -33367 .................................................................

Texas Dental Association,

354 N LRB N o. 57 ..............................................................

- iii -

The Register Guard,

351 NLRB I 110 (2007) ..........................................................

Windstream Corp.,

352 NLRB 44 .................................................................

STATUTES

National Labor Relations Act

29 U.S.C. §§ 8(b)(4), 8(b)(7) and 8(e) ............................................................12,15

OTHERAUTHORITIES

U.S. CONST. am end. I ...............................................................

GC Mem orandum 10-1 .............................................................

OM M em orandum 06-82 ............................................................

IV-

STATEMENT OF INTEREST OF THE AMICUS CURL4E

Amicus Curiae, the Chamber of Commerce of the United States of America (the

"Chamber"), is a nonprofit corporation organized and existing under the laws of the District of

Columbia. The Chamber is the largest federation of business, trade, and professional

organizations in the United States. The Chamber represents 300,000 direct members and

indirectly represents three million businesses and organizations. The Chamber has members of

every size, in every sector, and in every region of the United States.

A principal ftinction of the Chamber is to represent the interests of its members by filing

amicus briefs before courts and administrative agencies in cases involving issues of vital concern

to the nation's business community. Given the enormous costs, risks, and the evolving burdens

and liabilities confronting businesses in the United States, the interests of the business

community at large encompass a statement of position that is broader and more far-reaching than

the more limited interests of individual litigants.

This case presents the question, inter alia, of whether the National Labor Relations Board

(the "NLRB" or the "Board"), should overhaul its traditional method of requiring employers and

unions to post remedial Board Orders in the workplace, except as part of an extraordinary

remedy, by instead compelling the electronic posting of all remedial Orders on the intranet or

otherwise communicating the Orders to employees via email.

This question is of significant concern to the Chamber as many of its members are

employers subject to the NLRA. As one of the largest representatives of employers in the United

States, the Chamber has a vital interest in ensuring that the federal labor law regime to which its

members may be subject is rational, fair, and consistent, and that the agency responsible for

enforcing the NLRA is fulfilling its obligations and responsibilities under the statute in an

objective fashion.

STATEMENT OF THE CASE

This issue arose pursuant to the May 14, 2010 invitation of the National Labor Relations

Board for the submission of amicus briefs on the question, inter alia, of whether the Board

should modify its decision in Nordstrom, Inc., and require that Board-ordered remedial notices

be posted electronically, such as on an intranet or via a company-wide email system, and if so,

what legal standards should apply.' Such Board Orders, which announce steps taken to remedy

violations, are now typically posted on workplace bulletin boards except in egregious cases.

In Nordstrom, Inc., 347 NLRB 294 (2006), the Board Majority ruled that:

"Because the General Counsel and the Charging Party presented no supporting

evidence at the underlying unfair labor practice hearing to indicate that the

Respondent customarily communicates with its employees through an intranet,

we deny the Charging Party's further request for intranet posting of the Board's

notice to employees. See, InternationalBusiness Machines Corp., 339 NLRB

966(2003) (observing that the Board's standard Order, which requires a

respondent to post notices "in conspicuous places including all places where

notices to employees are customarily posted," has never been interpreted and

applied to require electronic posting, and declining to do so where the issue was

not raised in the underlying proceeding)." 347 NLRB at 294.

The Majority also noted that:

"We are open to considering the merits of a proposed modification to the

Board's standard notice-posting language in a particular case, if the General

Counsel or a charging party (1) adduces evidence at an unfair labor practice

hearing demonstrating that a respondent customarily communicates with its

employees electronically; and (2) proposes such a modification to the judge in

the unfair labor practice proceeding." Id. at 294 fn.3.

The Chamber's amicus brief does not address the issue of "compound interest" which was part of the Board's

invitation for amicus briefs. While the Chamber is interested in the issue, its interest is confined to the frequency of

compounding not to its propriety. For that reason the Chamber has chosen to limit its amicus brief to the broader

policy issues presented by compelled electronic posting of remedial Board Orders.

Thus, the Board Majority would require an evidentiary hearing prior to the compliance

stage, before taking the unprecedented step of departing from the Board's traditional standard for

notice posting. The evidence would determine whether there is a concrete fact pattern

demonstrating that the party regularly and customarily communicates with employees via

intranet, and whether the violation merits electronic posting of the remedial Board Order.

As the Majority noted: "there may be material differences among employers' intranet

systems, and we are reluctant to proclaim a "one-size-fits-all" approach. In addition, a factual

context would sharpen the issues, raise pragmatic considerations, and ensure that we hear the

best possible arguments from parties who have a stake in the outcome."

In dissent in Nordstrom, then-Board Member Liebman, citing with approval Board

Member Walsh's dissent in International Business Machines Corp., 339 NLRB 966 (2003),

stated that she would hold "that the Board's current notice-posting language, which

unequivocally references all places where notices to employees customarily are posted, is

sufficiently broad to encompass new communication formats, including electronic posting which

is now the norm in many workplaces. [citation omitted]."

As the dissent continued:

"Indeed, the Board and most other Govenu-nent agencies routinely rely on

electronic posting to communicate information to their employees. Nor is there

any need to require an evidentiary hearing before the Board rules, as a matter of

general policy, that the current posting language encompasses electronic posting

where appropriate. [citations omitted]. The subsequent determination as to

whether electronic posting is necessary in a given case is a matter for

compliance proceedings. [citation omitted]." Id. at 294 ffi.3.

Alternatively, Member Liebman would modify the Board's current notice-posting

language to explicitly clarify its application to electronic posting. Id.

In its invitation for amicus briefs the Board posed the question as being an issue of

whether "Board-ordered remedial notices should be posted electronically, such as via a

coMpany-wide email syste , and if so what legal standard should apply." (emphasis added).

The invitation then identifies three pending cases to serve as the basis for discussion in which

electronic posting is, or the Board considers ought to be, required. Those cases are: Arkema,

Inc., 16-CA-263 7 1; Stevens Creek Chrysler Jeep Dodge, Inc., 20-CA-3 3367, and Custom Floors,

Inc., 28-CA-21226.

Whether intentional or inadvertent, the Board's invitation uses the phrase "companywide" email system as the only example of the type of compelled electronic posting which the

Board is contemplating, and then selects only three CA-cases involving employer violations as

the context for this discussion. As argued below, the Chamber believes that the issue of

electronic posting of remedial Board Orders should apply equally to unions as well as to

employers. For the reasons discussed, the Chamber believes that an even stronger case can be

made for requiring union posting of remedial Board Orders. That would include not only union

"intranets" and union email communications to members. Because of the broader nature of union

violations of legal restrictions on secondary activity which harms both neutral employers and the

public, unions should also be required to post remedial Board Orders on union "internet" web

sites as well. This is especially true, for example, where the union internet serves as the basis for,

or evidence of, the violation itself, such as where the union internet posting proclaims

recognitional picketing of security guards in violation of the Act. There should be no question

that the harm done to the employer's business as a result of the union's electronic publication

should be remedied by required electronic posting on the same website of the remedial Board

Order or of a formal settlement.

The Chamber notes that in one case, Arkema, the administrative law judge required the

respondent only to post its recommended Order in the workplace for 60 consecutive days, unless

it has gone out of business or closed the facility in which case it requires that the Order be

duplicated and mailed to all current and former employees, as is the standard language in

traditional Board Orders. Even though there was evidence in the record that the respondent

communicated with employees via email, and that in fact several of the unfair labor practices

were based on memos communicated to employees by email, the judge did not require electronic

posting.

In the Supplemental Decision in Stevens Creek, the administrative law judge found

numerous unfair labor practices by the respondent, but refused to issue the extraordinary remedy

of a Gissel bargaining order (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) against the

respondent and found that the Board's traditional remedies were sufficient. The judge, however,

found merit in the Union's request for internet/intranet posting on the grounds that electronic

posting "allows an employee time to read the notice without standing in a location indicating to

the employer that his (sic) in fact reading the notice." Ironically, the judge was sufficiently

concerned about the potential for the employer to discriminate against employees for merely

reading the Board's Order on a bulletin board, but apparently was not sufficiently concerned

about the employer's conduct to order an extraordinary remedy beyond requiring electronic

posting.

In the third case, Custom Floors, the administrative law judge rejected a Union's demand

for Section 9(a) recognition based on a card check procedure under the terms of a collective

bargaining agreement with several Respondents, and dismissed the Complaint. There was no

request on the record for electronic posting of a remedial Board Order in the event that an Order

was issued. Apparently, the Board disagrees with the judge's decision, and plans to issue a

remedial Order which, since it will involve several Respondents, may require the Order to be

posted electronically.

SUMMARY OF THE ARGUMENT

The Chamber believes that the National Labor Relations Board should not compel the

electronic posting of remedial Board Orders in all cases but, if at all, should compel electronic

posting only as part of an extraordinary remedy in only egregious cases where, as part of the

evidentiary hearing on the underlying Complaint prior to the compliance stage, the record

reflects that such electronic posting is appropriate to the employer's regular and customary

methods of communicating with employees. In any event, whatever the Board decides with

regard to electronic posting of remedial Board Orders should be applied equally to unions as well

as employers.

ARGUMENT

This issue is not a simple one; nor should it be treated simply. It raises a number of

significant practical as well as public policy considerations and questions as demonstrated below.

1. Does the NLRB have the authority to, in effect, "commandeer" an employer's or

union's private property - its electronic equipment - for purposes of compelling the posting of the

agency's remedial Board Orders in all cases? Does the Board have the right to mandate in all

cases that the employer or union must depart from their standard communications practices and

post Board Orders electronically, or even create an electronic system where none presently

exists? Would this constitute "compelled speech" in violation of First Amendment constitutional

rights or a taking of "private property, " which an employer's electronic system surely is under

well-established Board law. The Register Guard , 351 NLRB 1110 (2007). 2 See also, Mid

Mountain Foods, Inc., 332 NLRB 229 (2000); Adtranz, ABB Daimler-Benz Transportation,Inc.,

331 NLRB No. 40 (2000). See generally, NLRB v. Avondale Mills, 357 U.S. 357, 364 (1958)

("The Taft-Hartley Act does not command that labor organizations as a matter of abstract law,

under all circumstances, be protected in the use of every possible means of reaching the minds of

individual workers, or that they are entitled to use a medium of communication simply because

the employer is using it."). That admonition in the quote from Avondale Mills, supra, which is

the only purpose for which the decision is cited, applies equally to compelled electronic posting

of remedial Board Orders simply because an employer uses an email system for business

purposes.

To be sure, the Board has broad discretionary authority to fashion remedies that will best

effectuate the purposes of the Act. NLRB v. J. H Rutter-Rex Mfg. Co., 396 U.S. 258, 260-263

(1969). Further, it is "firmly established that remedial matters are traditionally within the Board's

province and may be addressed by the Board in the absence of exceptions." Indian Hills Care

Center, 321 NLRB 144 fn. 3 (1996). However, the fashioning of extraordinary remedies implies

that the decision as to what best effectuates the purposes of the Act should be determined on an

individualized case-by-case basis. It should go without saying that an extraordinary remedy,

2 Not all

issues concerning the use of new electronic technology in the workplace involve the

same policies under

the Act, and the Board should not use this case to bootstrap other policies involving new workplace technologies.

The Board should not become convinced that new forms of

electronic communication in

overhauling decades of

established Board law and ftindamental

decision in The Register

Guard

a union has far different, and

Board Orders.

concerning employees' use of

the workplace justifies

labor policies. For example, the Board's

even more problematic policy considerations than compelled posting of

So, too, the policy considerations

earlier

an employer's email systems for soliciting support for

for imposing electronic

voting via intranet or email

representation elections are far different, and more problematic, than the issue of

remedial

union

compelling electronic posting of

remedial Board Orders. The instant case does not extend to those issues and whatever the Board decides with regard

to compelled electronic posting of

remedial Board Orders should not serve as precedent for extending Board policies

those broader and more troubling cases.. In

amicus brief

filed

The Register

reference its support for the Board's

forms of

Guard,

that regard, the Chamber directs the Board's attention to its earlier

which

decision in

is posted on the Board's website.

that case which limited the use of

The Chamber renews by

the employer's email and other

electronic communication for union purposes, or other purposes unrelated to the employer's business, so

long as there was not discriminatory application ofthe

policy.

I I

such as compelling electronic notice posting, ceases to be "extraordinary" if it is required in

every case.

2. Not all employers use electronic equipment to communicate with employees, or they

may limit the use of such communications to business matters rather than human resources or

labor relations. Although email is becoming more prevalent in the workplace, not all employees

have access to computers at work. For example, production line workers may not have

computers or even access to email in the workplace. And because of costs of purchasing and

maintaining electronic equipment, or even purely as a matter of personal choice, many

employees may not have computers at home. For example, according to a study by the U.S.

Census Bureau released in February 2010, a little over 3 1% of U. S. households have no internet

access.

That percentage is even higher for certain groups. For example, the percentage of

African American households without internet access exceeds 45% while the percentage of

Hispanic households without internet access exceeds 47%. Among those groups, someone

(perhaps not the employee) in 68% of African American households has access to the internet

either inside or "outside the home" (which is undefined, but probably includes libraries and other

public places outside of work), and 63% of Hispanics have such access. That means, according

to the latest census statistics, that 32% of African American households and 37% of Hispanic

households

have

access

the

internet

all.

See

http://www.census.gov/population/socdemo/computer/2009/tabOI.xls

What would the Board propose with regard to employees without access to internet,

intranet or email? Based on these figures, the Board should also take into consideration the

potential for disenfranchising employees. For while the administrative law judge in Stevens

Creek supra, asserted that electronic posting was appropriate for the privacy and convenience of

employees, these statistics indicate that there may be less privacy (since employees would have

to go to computers at work monitored by employers) and it may be even less convenient (where

employees have no access to the internet either inside or outside the home). For employees to

receive notification of remedial Board Orders via electronic communication, therefore, may pose

far greater obstacles than by simply reading a Board Order posted on a bulletin board. And to

specifically require posting of Board Orders both on bulletin boards and on the intranet or

internet would be redundant.

What evidence has been adduced that the Board's traditional notice posting

requirement is inadequate or not sufficient, such that the Board should require respondents both employers and unions when either is found to have violated the NLRA - to post Board

Orders on the intranet or via email rather than "in conspicuous places including all places where

-notices to employees are customarily posted"? On what evidentiary basis has the Board

concluded that bulletin boards in the workplace where other government notices and important

information are traditionally posted are now inadequate, or that bulletin boards in union halls

where employees congregate are unsatisfactory? What evidence does the Board cite that emails,

which may be easily deleted, are any more suitable than manual posting on bulletin boards

throughout the workplace or in union halls for informing employees of Board Orders?

As the Dissent of former Board Member Hurtgen explains in Pacific Bell, 330 NLRB 271

(1999), "the judge's recommendation that the Respondent be required to mail or electronically

communicate the notice to unit employees was based on generalized references to "changing

times" and the "electronic age" in which we live. However, I find that such generalized notions,

standing alone, are insufficient to support a change in well-established Board remedial

principles. In any event, before the Board embarks on such an endeavor, the Board should first

receive full briefing by the private parties, the General Counsel, and perhaps amici as well." Id.

The Chamber agrees with Member Hurtgen's dissent that compelling electronic notice

posting should be an individualized decision, based on the severity of the violation and the

methods by which employers and unions communicate with employees. Notice posting on

bulletin boards is the Board's traditional means of notifying employees of their rights and of a

respondent's unfair labor practices. See, e.g., Page Aircraft Maintenance, 123 NLRB 159

(1959). The Board does not additionally require that notices be mailed to employees or posted

electronically unless a traditional posting is insufficient to apprise employees of their rights and

of the unlawful conduct. Peoples Gas System, Inc., 253 NLRB 1180, 1181 (1981). Thus, unless

there is evidence that the traditional posting is inadequate, there is no basis for compelling

employers or unions to electronically post Board Orders.

Does the NLRB have the authority to insist that a respondent communicate

electronically where the respondent either does not have, or does not use electronic equipment

for regularly communicating with employees? For example, it's one thing for the Board to order

the reading of Board Orders in egregious cases as part of an extraordinary remedy, even though

such is not the customary practice of the employer. See, e.g. Postal Service, 339 NLRB 1163

(2003).

It's quite another to require an employer or union to expend the financial resources

required for implementing an electronic communications system, or to adapt the system to

communicate Board Orders, especially in non-egregious or non-reeidivist cases.

5. At what stage of the Board's proceedings and by what means should evidence be

adduced as to the respondent's regular and customary method of communicating with employees

or members, and to argue that in any event being compelled to post the remedial Board Order is

unwarranted or not appropriate in a particular case? See Nordstrom, supra and International

Business Machines Corp., supra. See also Windstream Corp., 352 NLRB 44, at fn 3 (2008)

(personal statement); Texas DentalAssociation, 354 NLRB No. 57 at fh. 4 (2009) and Longview

Fibre Paper and Packaging,Inc., 2009 WL 5162419 (N.L.R.B. Div. of Judges)(27-CA-21082)

(December 17, 2009) ("As there is no evidence of record to support a contention that such an

extraordinary remedy is in any way warranted in this case, I shall not require electronic

posting. ").

What are the potential practical ramifications of putting Board Orders into

"cyberspace" where they may be preserved forever and can be passed on to anyone outside the

workplace, for whatever business harm intended by the sender? Electronic email may be deleted

immediately or preserved forever, or forwarded to whomever, unlike a traditional Board Order

posted on a bulletin board for a finite period of time, as determined by the gravity of the

violation.

Should the Board require that every "routine" remedial Board Order be posted

electronically or communicated via email, or only those involving "egregious" unfair labor

practice conduct, such as "hallmark" violations where electronic posting would be part of an

"extraordinary" remedy for conduct sufficient to support a Gissel bargaining order, or for

recidivist violators of the Act? In other words, should a Board requirement that its remedial

Orders be posted electronically be a standard requirement for all remedial notices, "one size fits

all," Nordstrom, Inc., supra at 294, or only where the Board determines that the respondent's

unfair labor practices are so egregious that electronic notice posting is appropriate as part of an

extraordinary remedy? See Longview Fibre Paper and Packaging, Inc., 2009 WL 5162419

(N.L.R.B. Div. of Judges) (27-CA-21082) (December 17, 2009). See also, Fresh & Easy

Neighborhood Market, Inc., 2010 WL 561866 (N.L.R.B Div. of Judges (28-CA-22520)

(February 9, 2010). Compelling the posting of every remedial Board Order would diminish its

ability to deter'future violations as would be the case if electronic posting were part of an

extraordinary remedy.

Does the Board contemplate compelling electronic posting of Board Orders

accompanying all formal settlement agreements as well as Board decisions? If so, an employer

may conclude that it would prefer an unfair labor practice hearing rather than agree to a formal

settlement which would require potential disclosure outside the workplace. The Board's current

Case Handling Manual sets forth the standards for electronic posting of Board settlements in

extraordinary circumstances and only where "mutually acceptable." See Appendix.

This is not an unimportant consideration. Indeed, without voluntary settlement

agreements the Agency would be overwhelmed with contested unfair labor practice hearings.

Even a slight drop in the number of settled cases would result in case-handling delays and

backlogs of litigated cases, which would reduce the Agency's "effectiveness and efficiency in

administering the Act" by its ability to obtain voluntary compliance. As reported in the Summary

of Operations (Fiscal Year 2009), GC Memorandum 10- 1, dated December 1, 2009:

"The Agency's effectiveness and efficiency in administering the Act is greatly

enhanced by its ability to obtain voluntary resolution of unfair labor practice

cases, which, after investigation, are deemed worthy of prosecution. (See

merit factor, below.) Over the years, the Agency has achieved an excellent

settlement record due to the efforts of Agency staff and the cooperation of the

Bar. In FY 2009, the Regions obtained 7,175 settlements of unfair labor

practice cases, representing a rate of 95.2% of total merit cases..."

What practical effect would electronic posting of Board Orders in all cases have on the

willingness of the parties to agree to settlements? What are the budgetary repercussions and

impact on Board effectiveness and efficiency if the settlement rate were reduced as a result of

mandatory electronic posting? What economic damage would likely occur to employers if

formal settlement agreements posted electronically or by email were forwarded to business

competitors, customers/clients, shareholders and financial institutions?

9. If the NLRB requires employers to post remedial Board Orders electronically, does it

not follow that it should also require unions to post remedial Board Orders regarding union

unfair labor practices on the union's website and communicate with its members via email as

well? Section 8(b) of the Act includes prohibited secondary activities which affect "neutral

employers" as well as the public. As such, a union's 8(b) (4) and (7), and 8(e) violations, for

example, go beyond the employees of the primary employer affected by the union's unfair labor

practices and are designed to deter broader violations which affect neutral employers and the

public.

The public policy purpose of the secondary boycott provisions in Section 8(b) is to

eliminate obstructions to commerce, which is at least one of the important public policies

underlying the National Labor Relations Act. Does it not follow then that remedial Board Orders

for union violations should not only be posted electronically and communicated via email to the

neutral employer, but also to the union's members, and should be posted on the union's external

website which is visited by the public so as to inform the public that the conduct violated the

Act? If the Board is sincere about wanting to have its Orders achieve a deterrent effect, and

maintain public confidence in the objectivity of the Agency, it should apply whatever electronic

notice posting requirement it creates to both parties - unions and employers.

10. Finally, does the Board have the authority, or should it exercise authority, to overturn

Board precedent and dramatically change Board procedures on the basis of the vote of recess

appointed Board Members, without a fully confirmed complement of Members?

Certainly before it does so, we trust that the questions enumerated above, and others, will

be considered thoroughly and carefully. If, indeed, the Board intends to initiate its rulemaking

authority under the Act, perhaps this would be an appropriate topic for inviting broader public

input and discussion rather than legal briefs filed by a handful of parties.

While not addressing all of the questions posed above, the Chamber will more thoroughly

two overriding issues that are central to effectuating the policies of the Act : (1)

address

consistency, uniformity and even-handed application of whatever the Board adopts with regard

to remedial Board Orders as applied to employers and unions alike; and (2) weakening of the

deterrent effect of remedial Board Orders if they are required to be posted electronically in all

cases, including formal settlement agreements, rather than only in egregious cases where

warranted by the evidence.

Electronic Posting of Remedial Board Orders Should Apply, If At All,

To Both Unions As Well As Employers After an Evidentiary Hearing During

the Unfair Labor Practice Stage Prior to Compliance.

If at all, the Board should require unions to post remedial Board Orders on union

websites and email their members since, unlike the workplace where employees congregate

everyday, most employees infrequently visit union halls. And, as we know from experience with

the Board ordered posting of voluntary or involuntary Board settlements, unions strongly resist

electronic posting on union websites or via email, even though that is the most common method

and most "conspicuous" place unions communicate with their members.

In any event, the Board should only compel electronic posting of remedial Board Orders,

including formal settlements, after an evidentiary hearing to determine the following:

existence of a charged pgjy's intranet and the frequency and types of postings included

on that site.

e existence of a charged pqgy's email system, the frequency of the use of that system to

make broadcast emails to groups of employees and the subject matters covered.

e number and accessibility of traditional notice-posting areas at the worksite and the

degree to which employees work off-site or would otherwise be unlikely to see traditional

notices.

11.

Electronic Posting of Remedial Board Orders Should Apply, If At All,

Only to Decisions Involving Egregious Unfair Labor Practices By Employers

and Unions Where Extraordinary Remedies Are Appropriate, and Not to

Every Board Order.

The Chamber asserts that the Board should require the same electronic notice posting for

union violations that it mandates for employer violations. The Board has long recognized that

some union as well as employer violations of the Act are so egregious as to warrant

extraordinary remedial measures. For example, in cases of "hallmark" violations by an employer

which would preclude the holding of a fair election for union representation the Board has

ordered so-called Gissel bargaining orders. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Similarly, the Board will seek 100) injunctive relief in appropriate cases where, for

example, unions engage in mass picketingwhich blocks ingress and egress to the plant or

worksite, violence and threats thereof, and damage to property. See, e.g. Frye v. District 1199,

996 F.2d 141 (6th Cir. 1993); Squillacote v. Local 248.Meat & Allied Food Workers, 534 F.2d

735 (7th Cir. 1976). The Board will also seek Section 100) injunctive relief against a union in

appropriate cases where the union strikes or pickets in contravention of the notice and waiting

periods set forth in Section 8(d) and 8(g) of the Act. See, generally, McLeod v. Compressed Air,

etc., Workers, 292 F.2d 358 (2d Cir. 1961). Accord: McLeod v. Communications Workers of

America, 79 LRRM 2532 (S.D. N.Y. 1971).

Section 100) injunctive relief is also sought against unions where the activity involves

union insistence to impasse on permissive or illegal subjects of bargaining, or union conduct that

amounts to restraint or coercion of the employer in its selection of representatives for the purpose

of collective bargaining or grievance adjustment. See, generally, Boire v. LB.T, 479 F.2d 778

(5th Cir.1973), rhg. denied 480 F.2d 924. Accord: Kobell v. United PaperworkersInt'l Union,

965 F.2d 1401 (6th Cir. 1992); DAmico v. Industrial Union of Marine and Shipbuilding

Workers, 116 LRRM 2508 (D. Md. 1984). The Board will also seek Section 10(l) injunctive

relief where unions engage in certain unlawful secondary activity. (e.g., union secondary

boycotts). See, e.g., Hirsch v. Building and Construction Trades Council, 530 F.2d 298, 302 (3d

Cir. 1976).

The Board places an even higher priority on charges alleging unlawful union secondary

activity or recognitional picketing activity. In that regard, the Board is required under Section

10(l) of the Act to seek injunctive relief whenever a Regional office determines that there is

reasonable cause to believe that an alleged violation of 8(b)(4)(A), (B), (C), 8(b)(7), or Section

8(e) of the Act has occurred.

The Board has determined that extraordinary relief is required in secondary activity and

recognitional picketing cases because of the public policy concerns that are involved. See, e.g.

General Longshore Workers, ILA, 235 NLRB 161, 169 (1978) (where Board described "the

public policy to which Section 8(e) gives effect is concerned not simply with the interests of the

employer party to an agreement offending such statutory policies, but also with the need to

protect all other persons who might be effected by such an agreement from the secondary

consequences flowing therefrom.")

The Board has also recognized that extraordinary remedial measures may be warranted

where a respondent, union or employer, proves to be a recidivist violator of the Act. When that

is the case, the Board has at times required that such a respondent publish, at their own expense,

the Board's remedial notice in a local newspaper of general circulation. See, e.g. Fieldcrest

Cannon, Inc., 318 NLRB 470, 473; See also, Electrical Workers IBEW Local 3 (Hunts Point

Elec.) 271 NLRB 1580 (1984) (Board ordered union to publish Board order in newspaper of

general circulation in the New York metropolitan area because union had demonstrated a

"pattern" of unlawftd secondary activity).

In light of the fact that the Board has long recognized that where unions as well as

employers commit egregious and or repeated violations of the Act appropriate extraordinary

remedial measures may become necessary. Therefore, if the Board decides to go down the path

of requiring electronic posting of remedial orders, it should apply such a remedy equally to union

unfair labor practices, especially where the union violations affect neutral employers and the

public.

CONCLUSION

For all of the foregoing reasons, the Chamber of Commerce of the United States of

America urges the National Labor Relations Board not to compel the electronic posting of its

remedial Board Orders. If the Board decides to compel electronic posting, the Chamber urges

that it be limited to egregious unfair labor practice cases where extraordinary remedies are

deemed to be appropriate. The Board's policy of compelling the posting of remedial Board

Orders should apply equally to union as well as employer violations, and only after an

evidentiary hearing during the trial of the underlying Complaint as to whether electronic posting

would be appropriate.

Re ectfully submitted,

Robin S. Conrad

Shane B. Kawka

NATIONAL CHAMBER LITIGATION

CENTER. INC.

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Counsel for Chamber of Commerce

of the United States of America

Harold P. Coxson

Christopher R. Coxson

OGLETREE, DEAKINS, NASH

SMOAK & STEWART, P.C.

Fifth Floor

2400 N Street, N.W.

Washington, DC 20037

(202) 887-0855

Counsel for Amicus Curiae

Chamber of Commerce of

the United States of America

APPENDIX

NLRB Case handling Manual

10124 Settlements/Non-Board Adjustments

Unfair labor practice cases may be resolved through informal or formal Board settlement

agreements or through non-Board adjustments. Regional Offices should seek to obtain an

informal or, where appropriate, a formal settlement agreement, which carry with them the

Agency's imprimatur, including compliance policed by the Agency. Non-Board adjustments,

which are an important settlement tool, are agreements between the parties that result in the

withdrawal of the charge.

10124.1 Policy

It is the policy of the Board and the General Counsel to actively encourage the parties to reach a

mutually satisfactory resolution of issues at the earliest possible stage. Moreover, the

Administrative Procedure Act (Sec. 5(b)) requires that the Agency consider "offers of settlement,

or proposals of adjustment where time, the nature of the proceeding, and the public interest

permit." (5 U.S.C. § 554(c)(1)). Since voluntary remedial action is a high priority, diligent

settlement efforts should be exerted in all meritorious cases. Settlement of a meritorious case is

the most effective means to: (1) improve relationships between the parties; (2) effectuate the

purposes of the Act; and (3) permit the Agency to concentrate.

10124.2 Principal Factor in Achieving Settlement

The principal factor affecting a Regional Office's success in achieving settlement is the

confidence of the public in the ability, impartiality and integrity of the Regional Office. When

the public is satisfied that the Regional Office, when proposing or negotiating settlement, has

fully investigated and considered the facts of the case and is convinced that the formal

prosecution of the case would result in the finding of unfair labor practices, the chances of

settlement are considerably increased.

10132.4 Posting/Dissemination of Notices

The appropriate method for traditional posting, electronic posting, mailing, and/or publication of

notices depends on the type of charge and the circumstances as set forth below:

(a) Traditional Posting: During settlement discussions, the Board agent should obtain the

charged party's cornmitment to post the notices at specific places consistent with posting

requirements set forth in NLRB Form 4775, Settlement Agreement. The number of notices to be

posted and the location of the posting will depend on various factors, including the size of the

facility, the type of alleged violation and the extent to which knowledge of the alleged conduct

was disseminated.

If the charged party is a union, notices should be posted by the union, both on bulletin boards

located at its office and meeting halls, as well as at the facility of the employer involved, if

possible. Signed copies of the notices should also be supplied for the employer to post at its

facility, if willing.

Settlement agreements entered into in related CA and CB cases (where the employer and the

union are jointly and severally liable) should provide for posting of both the charged union's

notice and the charged employer's notice at the same places and under the same conditions.

(b) Electronic Notice Posting: In certain cases, it may be appropriate to seek electronic

notice posting in addition to a traditional posting where the charged party customarily

communicates with its employees or members electronically and/or where the charged

party utilized its e-maiI or intranet system in committing an unfair labor practice. OM

Memo 06-82. Under such circumstances, the electronic posting would be considered an

additional site where the charged party normally posts work-related notices. The following

factors should be considered in this regard:

9 existence of a charged party's intranet and the frequency and types of postings

included on that site.

* existence of a charged party's e-mail system, the frequency of the use of that system

to make broadcast e-mails to groups of employees and the subject matters covered.

9 number and accessibility of traditional notice-posting areas at the worksite and the

degree to which employees work off-site or would otherwise be unlikely to see traditional

notices.

Such a posting would require the charged party to disseminate the notice electronically in the

same manner as it communicates with employees or members. For instance, if the charged party

routinely sends broadcast e-mails to employees or members it should notify all employees or

members of the electronic posting via e-mail with the Board notice attached. If issues arise which

require further analysis (e.g., the extent of an appropriate electronic posting where the charged

party has multiple locations, all privy to same intranet, and the violations did not occur at all

facilities), the Regional Office should contact the Division of Advice.

members, consideration should be given to requiring the mailing of the notice to them at the

charged party's expense.

(d) Publicationof Notice: In unusual circumstances, the posting and/or mailing of the notice may

be viewed as insufficient. Examples of such cases include an unlawfal hiring hall that affected

employment of persons who are widely scattered or unidentified, or where the unlawful activities

involve general or widespread practices. In such cases, publication in a daily newspaper of

general circulation, as opposed to publications serving only specialized groups of readers, should

be required. Such publication should be at the charged party's expense and on 3 separate days

within a 1-week period designated by the Regional Office. Such publication should be in

addition to, not a substitute for, such other notice posting as is required by the circumstances.

CERTIFICATE OF SERVICE

I hereby certify that on June 11, 2010, 1 caused a true and accurate copy of the foregoing

brief of Amicus Curiae Chamber of Commerce of the United States of America to be served on

the following. See attached list.

Haii ld P. Coxson

service Copy.txt

STEVENS CREEK CRYSLER JEEP DODGE INC.

20-CA-33367

DANIEL T. BERKLEY, Esq.

275 BATTERY STREET

SUITE 2000

SAN FRANCISCO, CA 94111

MATT ZAHERI

STEVENS CREEK CHRYSLER JEEP DODGE

4100 STEVENS CREEK BLDV.

SAN JOSE, CA 95129

MACHINISTS AUTOMOTIVE LOCAL 1101

MACHINISTS AUTOMOTIVE LOCAL 190

3777 STEVENS CREEK BLVD., SUITE 320

SANTA CLARA, CA 95051

NLRB REGION 20 - SAN FRANCISCO

901 MARKET STREET

SUITE 400

SAN FRANCISCO, CA 94103

CAREN P. SENCER

DAVID A. ROSENFELD

WEINBERG, ROGER & ROSENFELD, PC

1001 MARINA VILLAGE PARKWAY,

SUITE 200

ALAMEDA, CA 94501-1091

ALLISON BECK, GENERAL COUNSEL

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS,

AFL-CIO

9000 MACHINISTS PLACE, Room 202

UPPER MARLBORO, MD 20772-2687

ATLANTIC SCAFFOLDING CO.

16-CA-26108

JAMAL ALLEN

NLRB REGION 16 RO - HOUSTON

1919 SMITH STREET

SUITE 1545

HOUSTON, Tx 77002

MICHAEL D. DOGGETT, BUS. REP.

UNITED BROTHERHOOD OF CARPENTERS,

LOCAL 502

18301 HWY 62 S.

ORANGE, Tx 77630

BRANDON MUNN, CONSTRUCTION MANAGER

ATLANTIC SCAFFOLDING COMPANY

147 NEDERLAND AVE.

NEDERLAND, TX 77705

Page

service copy.txt

G. MARK JODON

LITTLER MENDELSON, P.C.

1301 MCKINNEY STREET

SUITE 1900

HOUSTON, Tx 77010-3031

NLRB REGION 16 RO - HOUSTON

1919 SMITH STREET

MICKEY LELAND FEDERAL BUILDING

SUITE 1545

HOUSTON, Tx 77002

NLRB REGION 16 - FT. WORTH

819 TAYLOR STREET

ROOM BA24

FT WORTH, Tx 76102-6178

CUSTOM FLOORS, INC.

28-CA-21226

DAVID A. ROSENFELD

WEINBER ROGER & ROSENFELD PC

1001 MARINA VILLAGE PARKWAY

SUITE 200

ALAMEDA, CA 94501-1091

CUSTOM FLOORS, INC.

4275 WEST RENO AVENUE

LAS VEGAS, NV 89118

FCS FLOORING, INC.

6445 SOUTH INDUSTRIAL ROAD

UNIT D

LAS VEGAS, NV 89118

FLOORING SOLUTIONS d/b/a FSI

2829 SYNERGY

NORTH LAS VEGAS, NV 89030

FREEMAN'S CARPET SERVICE, INC.

3150 PONDEROSA

LAS VEGAS, NV 89118

FSI

2829 SYNERGY

NORTH LAS VEGAS, NV 89030

LISA M SMITH

KLIMIST MCKNIGHT SALE MCGLOW &

CANZANO

400 GALLERIA OFFICENTRE

SUITE 117

SOUTHFIELD, mi 48034-8640

J. PICINI FLOORING

4140 WEST RENO AVENUE

LAS VEGAS, Nv 89118

Page 2

service Copy.txt

MARA LOUISE ANZALONE, ATTY

NATIONAL LABOR RELATIONS BOARD

2600 NORTH CENTRAL AVENUE,

SUITE 1800

PHOENIX, AR 85004

PAINTERS, DISTRICT COUNCIL 15,

LOCAL #86

1841 NORTH 24TH STREET

PHOENIX, Az 85008

THOMAS A. LENX, PARTNER

ATKINSON, ANDELSON, LOYA , RUUD &

ROMO

12800 CENTER COURT DRIVE

SUITE 300

CERRITOS, CA 90703

GREGORY E. SMITH, ESQ.

LIONELL SAWYER & COLLINS

1700 BANK AMERICA PLAZA

300 SOUTH FOURTH STREET

LAS VEGAS, NV 89101

NLRB REGION 28 RO - LAS VEGAS

600 LAS VEGAS BOULEVARD SOUTH

SUITE 400

LAS VEGAS, Nv 89101

ARKEMA, INC.

16-CA-26371

A. JOHN HARPER, ESQ. II

MORGAN, LEWIS & BOCKIUS LLP

1000 LOUISANA

SUITE 4200

HOUSTON, TX 77002

ERIC TILLES, ESQ.

ARKEMA INC.

2000 MARKET STREET

PHILADELPHIA, PA 19103

JOE WILSON, INT'L REPRESENTATIVE

UNITED STEELWORKERS OF AMERICA,

LOCAL 13-227

704 EAST PASADENA FREEWAY

PASADENA, TX 77506

TERRY FREEMAN

GREG SCHRULL

ARKEMA, INC.

2231 HADEN ROAD

HOUSTON, TX 77015

NLRB REGION 16 RO - HOUSTON

1919 SMITH STREET

MICKEY LELAND FEDERAL BUILDING

SUITE 1545

HOUSTON, TX 77002

Page 3

service Copy.txt

NLRB REGION 16 - FT WORTH

819 TAYLOR STREET

Room 8A24

FT WORTH, Tx 76102-6178

BERNARD L. MIDDLETON

PROVOST UMPHREY LAW FIRM, L.L.P.

490 PARK STREET

P.O. Box 4905

BEAUMONT, TX 77704

BASHAS FOOD CITY

28-CA-21435

LAWRENCE KATZ, ELIZABETH TOWSEND &

THOMAS STANEK, ESQS

STEPTOE & JOHNSON LLC

COLLIER CENTER

201 E. WASHINGTON ST., SUITE 1600

PHOENIX, Az 85004-2382

ATTN. MR. MATTHEW J. CONNERS

TBG LOGISTICS

6553 E. SNOWDON STREET

MESA, Az 85215-9758

FREDERICK C. MINER, ESQ

LITTLER MENDELSON, P.C.

CAMELBACK ESPLANADE

2425 E. CAMELBACK ROAD, SUITE 900

PHOENIX, Az 85016

EDDY BASHA, SR

BASHAS', INC., d/b/a BASHAS' FOOD

CITY, AND A.J.'S FINE FOODS

22402 SOUTH BASHA ROAD

CHANDLER, Az 85248

MICHAEL C. HUGHES

DAVIS COWELL BOWE LLP

595 MARKET STREET

SUITE 1400

SAN FRANCISCO, CA 94105

MARK G. KISICKI

STEPTOE & JOHNSON LLC

COLLIER CENTER

201 E. WASHINGTON STREET, SUITE 1600

PHOENIX, Az 85004-2382

UFCW UNION, LOCAL 99

2401 N. CENTRAL AVENUE

2ND FLOOR

PHOENIX, Az 85004

GREGG 3. TUCEK, ATTY

BASHAS' INC.

22402 SOUTH BASHA ROAD

CHANDLER, Az 85248

Page 4

Service Copy.txt

NLRB REGION 28 - PHOENIX

2600 N. CENTRAL AVENUE

SUITE 1800

PHOENIX, Az 85004

KENTUCKY RIVER MEDICAL CENTER

9-CA-42249

DON T. CARMODY & BBRYAN CARMODY,

ESQS

P.O. Box 3310

BRENTWOOD, TN 37024-3310

AT-TN. MR. RANDY PIDCOCK,

DIST. ORG. COORDINATOR

UNITED STEEL, PAPER & FORESTRY,

RUBBER, MANUF.,

85 C MICHAEL DAVENPORT BLVD.,

SUITE B

FRANKFORT, Ky 40601

.DONALD RENTFRO,

CHIEF EXECUTIVE OFFICER

KENTUCKY RIVER MEDICAL CENTER

540 JETT DRIVE

JACKSON, Ky 41339

DON T. CARMODY & BRYAN CARMODY, ESQS

15 OVERBROOK DRIVE

PAINTED POST, NY 14870

NLRB REGON 09 - CINCINNATI

JOHN WELD PECK FEDERAL BUILDING

550 MAIN STREET - Room 3003

CINCINNATI, OH 45202

Page 5

"oil

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Go -C Rd

Unf,

03AI-3,,3

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