# UNITED STATES OF AMERICA

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URL: https://www.frixlaw.com/law-library/documents/agency%3Anlrb%3A04bb338eaf7e8215

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

UNITED STATES OF AMERICA
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 ...................................
5

STA TEM ENT O F TH E CA SE .......................................................
6

SUM MARY OF THE ARGUM ENT ..................................................
10

A R G U M EN T ..................................................................
10
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 .................................................................
22

TABLE OF AUTHORITIES
Page(s)
CASES

Adtranz, ABB Daimler-Benz Transportation,Inc.,
6
331 NLRB No. 40 (2000) .........................................................

Arkema, Inc.,
4
16-CA-26371 .................................................................

Boire v. I R T,
15
479 F.2d 778 (5th Cir. 1973) ........................................................

Custom Floors, Inc.,
4
28-CA-21226 .................................................................

D'Amico v. Industrial Union ofMarine and Shipbuilding Workers,
15
116 LRRM 2508 (D. M d. 1984) .....................................................

Electrical Workers IBEW Local 3 (Hunts Point Elec.)
16
271 NLRB 1580 (1984) ...........................................................

FieldcrestCannon, Inc.,
16
318 NLRB 470 ................................................................

Fresh & Easy NeighborhoodMarket, Inc.,
10
2010 WL 561866 (N.L.R.B. Div. Of Judges) .............................................

Frye v. District1199,
4
996 F.2d 141 (6th Cir. 1993) .......................................................

General Longshore Workers, ILA,
15
235 NLRB 161 (1978) ...........................................................

Hirsch v. Building and Construction Trades Council,
15
530 F.2d 298 (3d Cir. 1976) ........................................................

Indian Hills Care Center,
7
321 NLRB 144 ................................................................

InternationalBusiness Machines Corp.,
2,3,7,9
339 NLRB 966 (2003) ............................................................

Kobell v. UnitedPaperworkersInt 7 Union,
13
965 F.2d 1401 (6th Cir. 1992) ......................................................

Longview FibrePaperandPackaging,Inc.,
10
2009 W L 5162419 (N .L.R .B . Div. of Judges) ............................................

McLeod v. Communications Workers ofAmerica,
15
79 LRRM 2532 (S.D . N .Y. 1971) ....................................................

McLeodv. CompressedAir,etc., Workers,
14
292 F.2d 358 (2d Cir. 1961) ........................................................

Mid-Mountain Foods, Inc.,
6
332 N LRB 229 (2000) ...........................................................

NLRB v. Avondale Mills,
6
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.,
7
396 U .S. 258 (1969) .............................................................

Nordstrom, Inc.,
347 N LRB 294 (2006) ...........................................................
2,5,9

PacificBell,
8
330 N LRB 271 (1999) ...........................................................

Page Aircraft Maintenance,
9
123 NLRB 159 (1959) ...........................................................

Peoples Gas System, Inc.,
9
253 N LRB 1180 (1981) ...........................................................

PostalService,
9
339 N LRB 1163 (2003) ...........................................................

Squillacote v. Local 248.Meat & Allied Food Workers,
534 F.2d 735 (7th Cir. 1976) .......................................................
14

Stevens Creek ChryslerJeep Dodge, Inc.
20-CA -33367 .................................................................
4

Texas Dental Association,
354 N LRB N o. 57 ..............................................................
10

- iii -

The Register Guard,
6
351 NLRB I 110 (2007) ..........................................................

Windstream Corp.,
10
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 ...............................................................
7

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

OM M em orandum 06-82 ............................................................
16

IV-

1.

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.
2.

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.
6

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.

7

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.

8

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

9

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.
3.

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.
4.

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

10

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
in

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
in

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

those broader and more troubling cases.. In

amicus brief

filed

in

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

no

access

to

the

internet

at

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

12

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.
3.

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

13

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.
4.

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

14

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. ").
6.

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.
7.

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

15

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.
8.

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

16

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.

17

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.
a.

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.

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:
18

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.
b.

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,

19

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

20

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.

21

5.

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

22

APPENDIX

NLRB Case handling Manual

6.

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

23

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

24

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.
(c) Mailing of Notice: If it is apparent that a posting will not effectively reach the employees or
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

25

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.

26

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

27

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Anlrb%3A04bb338eaf7e8215. Public record. Not legal advice.