UNITED STATES OF AMERICA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ARKEMA, INC.,

and

UNITED STEEL WORKERS OF AMERICA, LOCAL 13-227

ARKEMA, INC.,

and

GREG SCHRULL,

and

UNITED STEEL WORKERS OF AMERICA, LOCAL 13-

277.

16-CA-26371

16-CA-26392

16-RD-1583

STEVENS CREEK CHRYSLER JEEP DODGE, INC.,

and

MACHINISTS DISTRICT LODGE 190, MACHINISTS

AUTOMOTIVE LOCAL 1101, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO, et al.

20-CA-33367

20-CA-33655

20-CA-33603

CUSTOM FLOORS, INC.,

and

INTERNATIONAL UNION OF PAINTERS AND ALLIED

TRADES, DISTRICT COUNCIL 15, et al.

28-CA-21226

20-CA-21229

20-CA-21230

20-CA-21231

20-CA-21233

ee ee ee ee de ae ae a ee ee ee ee ee ee ae a a

BRIEF OF CHARGING PARTIES MACHINISTS DISTRICT LODGE 190, MACHINISTS

AUTOMOTIVE LOCAL 1101, INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, AFL-CIO and INTERNATIONAL UNION OF

PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 15

David A. Rosenfeld

Caren P. Sencer

WEINBERG, ROGER & ROSENFELD

A Professional Corporation

1001 Marina Village Parkway, Suite 200

Alameda, CA 94501-1091

Telephone: (510) 373-1001

Facsimile: (510) 337-1023

Drosenfeld @ Unioncounsel.Net

Csencer@ Unioncounsel.Net

Attorneys For Machinists District Lodge 190,

Machinists Automotive Local 1101, International

Association Of Machinists And Aerospace Workers,

AFL-CIO and International Union Of Painters And

Allied Trades, District Council 15

TABLE OF CONTENTS

T. INTRODUCTION uc ccccscssscsceseeseeseesaesesseceaeeseeseseaeeeeeneeseeseseneeeseaseneseesacnennees 1

Il. THE STANDARD REMEDIAL BOARD ORDER SHOULD REQUIRE EMAILED

NOTICE. 000... ccccccscssssscsscssssecsessecesecseesecesseeseeseesesseseeseaecsecateeseassaeeaseeseneeeesaecassneseeenseas 3

Ill. THE STANDARD BOARD ORDER REQUIRING EMAILED NOTICE SHOULD

GIVE EMPLOYEES AMPLE OPPORTUNITY TO READ AND DIGEST THE

INFORMATION... ccccssssscscsscseeescsseescesecaceseesesecesesenessecaeeseeeesaeseesacseeenesaecasessseseeees 5

A. Employees Should be Allowed to Read the Remedial Email on Paid Work

Time and They Should be Notified of This Allowance. ..............ccsscsscesceresreeseeee 5

B. Employees Should Be Able to Read Emailed Notice Without Fear of Being

Monitored by the Violating Party. ............ccsssscssssssscssscseeseesssesscstecsetsseestesseeerens 6

C. The Violating Party Should Send the Remedial Email at Least Once per Month

During the Notice Period. 0.0.0.0... ssseccssessesesesseseseesecercecsessesecsessesecessaeeesseseesesees 6

D. Employees Should be Allowed to Forward the Notice Freely. ..........cccessceesees 7

E. Employees Should be Allowed to Print the Notice. .........ccecsssceseteeseseeeeeees 7

F. The Board Should Require that “Important Notice,” or a Similar Statement of

the Importance of the Message, Appear in the Subject Line of the Remedial

Email. oo... cecccccscssssssesseccesecssecseseeseecsasecessecateacsascaceseeseesenesaeeaesasesessesaesseseesaseaeeassess 8

IV. THE STANDARD ELECTRONIC NOTICE ORDER SHOULD INCLUDE ANY

FORM OF ELECTRONIC COMMUNICATION THROUGH WHICH THE

OFFENDING EMPLOYER COMMUNICATES WITH EMPLOYEE. ...........::000 8

V. THE ELECTRONIC POSTING PERIOD SHOULD CORRESPOND TO THE

NUMBER OF DAYS THAT HAVE ELAPSED FROM THE FIRST VIOLATION

TO THE DATE OF NOTICE POSTING. 0.00.0 eesceecsesseseeeeeeeeeeecseeeeeeeeneeatsnceeseecseeaes 9

VIL IMPLEMENTATION... cccccccssesscsscseseeeecsceeeseeseseeseeseeseeseeaesseseseeeaseasacsseeeeesaeeneas 11

VIL. CONCLUSION... ciceeceeseeeseeeeesaeeesesececenecaseeesaseessacessseeesasesesaeenssascoesseeeeaesaess 11

TABLE OF AUTHORITIES

FEDERAL CASES

City of Ontario v. Quon,

No 08-1332, 560 US __ (2010)... ee eecccescessssessesesseseessssececsseseseesecsecescesceessusesessusenens 8

Teamsters Local 115 v. NLRB,

640 F.2d 392 (D.C. Cir. 1981)... ccc cccscssssssscsssssssscssescssecssescssscsaeseneccetecessecseescesueceas 3

BOARD CASES

Excel Container, Inc.,

325 NLRB 17, 17 (1997) ........cccccccscsssscsssssccssescscscsssesessacecesscecsescecssseesesesecessusecesssecensesens 3

Finn Industries,

314 NLRB 556 (1994) o.oo eccccccscccccssscsssscescssescssnscesssceessscesseneeceesecessesecessusesensseceserens 3

Ishikawa Gasket Am., Inc.,

337 NLRB 175, 176 (2001) .........cccccccsssscesscscsscscsssecssscecesccceseccecececetsusececaucecenaees 3,4, 6

Quinn Rest. Corp.,

293 NLRB 465 (1989) oo... cecessesscescsseesecseessssecssessessescessscsesstessesscsucsaseuscssssesesscsscaceaceace 3

Technology Service Solutions,

332 NLRB 1096 (2000) ...0.. eee eeccsscsssescscsessessceecseessessesecsecseceeestssuesessussueseesssscsesesesesaes 2

Trident Seafoods Corp.,

293 NLRB 1016 (1989) oo eee cecsccseescesesssecsesscssessessecsscsseseessessuseeseeesesseseusceessuseseneaes 3

Virginia Concrete Corp.,

338 NLRB 1182 (2003) 0... eeessesessesscsseseesessescsscsessesscseeseeaessesessucsucssssssessscsacsucasencaees 9

OTHER SOURCES

Cynthia L. Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev. 1527

(2002)... eeeceesecssescesecsseseeesssssesessecseessessecssessessesescessessseneeseceeessessecscsatuesceussasesseesesessacaes 2

Deborah Fallows, Email at Work, Pew Internet and American Life Project ,

(December 8, 2002) 00... cccssesssssscsscessssscssessesessessessestecsucseceucsscsuecessecceussuseasenssaee 3,4,7,8

Mary Madden & Sydney Jones, Networked Workers, Pew Internet and American Life

Project (2008)........cccsccscsescsscsscsecsccsscsscssseesaeseessssesensesscsesssseeseessesscseseesecsesaesatsuseuceasenes 4,6

Mary Ann McCauley, Make Technology Work For You: Communicating With Employees

During Tough Times, Employee Benefit Plan Review (June 2010).........ccccccseeeeeeeeees 4

-ii-

Messaging Anti-Abuse Working Group, Email Metrics Program Report: Third and

Fourth Quarters 2009 (March 2010)..........ccssccssscccesseccesessssecessesccevesesscessssessecsasseesaceees

Lee Rainey, Digital ‘Natives’ Invade the Workplace, Pew Internet and American Life

Project (2006) ..... cece eecsecseeseeseeseseessecsesseesecseseseeseeeceesassesecsessessscsssssesecseseesaesateateaseaees

- iii -

I. INTRODUCTION

Machinists District Lodge 190, Machinists Automotive Local 1101, and

International Association of Machinists and Aerospace Workers, AFL-CIO, the charging

parties in Stevens Creek Chrysler Jeep Dodge, Inc., 20-CA-33367, 20-CA-33655, 2-CA-

33562, and 20-CA-33603, together with the International Union of Painters and Allied

Trades, District Council 15, the charging party in Custom Floors, Inc., 20-CA-21226,

respectfully submit this brief in response to the Board’s May 13, 2010 Notice and

Invitation to File Briefs on the issue of electronic remedial notice. The May 13, 2010

notice was inadvertently not served on the parties in these cases until May 25, 2010, and

on that date the Board extended the deadline for the parties’ briefs to June 24, 2010.

The charging parties generally endorse the views expressed in the amicus briefs

submitted by the AFL-CIO, SEIU and the Office of the General Counsel to the extent that

those briefs 1) underscore the importance of Board-ordered remedial notice, 2)

demonstrate the ubiquity of electronic communication in the workplace, and 3) propose

electronic notice as a standard remedy which would better fulfill the goals of remedial

notice and better effectuate the purposes of the National Labor Relations Act. These

charging parties go further, however.

The standard remedy needs to get with the times. Email has existed in the

workplace for almost twenty years. Other technologies, such as cell phones, personal

digital assistants, personal computing stations, and internet social networking, to name

but a few, have also proliferated in modern work culture. After two decades, it has taken

a press-released call for amicus briefs for the glacial NLRB to start a discourse on

whether humble email—an extremely common, time-worn reality for millions of

employed Americans—should be a standard forum for remedial notice posting. An

uninterested passer-by on a search engine may have scoffed when he saw that 2010 was

the year of the press release. A standard requirement of emailed remedial notice is a long

overdue, insufficient step in the right direction. Because the present discourse should

have taken place over fifteen years ago, this brief also treats the broader swath of

communications technologies that Board orders should automatically require.

It is tragic that the NLRB has taken no action to amend the standard remedial

policy to reflect the presence of these technologies. This delay further confirms the

ossification of the National Labor Relations Act and its administration.’ In an era in

which some NLRB decisions allow technological advances to weaken the central mission

of the NLRA,’ an era in which employers are rapidly gaining technological abilities to

monitor employee activity (through GPS tracking, email monitoring, inexpensive video

surveillance systems, and other methods), the Board must change the remedial policy for

the good of American worker and to make the Act relevant. At very minimum, where an

employer breaks the law the employee should be entitled to an email affirming her rights.

This brief attempts to show that such an email is hardly enough.

None of the recommendations this brief sets forth are meant to replace the current

standard Board order for physical posting nor the special remedies available at the

Board’s discretion.

' For a broader treatment of the tragic ineffectuality of the NLRA, see Cynthia L. Estlund, The Ossification

of American Labor Law, 102 Colum. L. Rev. 1527 (2002) (“[N]o other major American legal regime—no

other body of federal law that governs a whole domain of social life—...has been so insulated from

significant change for so long.”).

* Modern technology has occasionally threatened workers’ right to organize. See, e.g., Technology Service

Solutions, 332 NLRB 1096 (2000) (citing privacy concerns as the reason for not allowing union access to a

database of employee names and addresses in a multi-state region)

-2-

II. THE STANDARD REMEDIAL BOARD ORDER SHOULD REQUIRE

EMAILED NOTICE.

The aim of requiring remedial notices is to “inform employees of their statutory

rights and the legal limits of the employer’s conduct” when an employer violates the law.

Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C. Cir. 1981). At times, the Board

has ordered special remedies in unique cases as a way to ensure that employees actually

get the message.” The Board has also amended the standard notice policy to accord with

the prevailing reality of the American workplace. For instance, in 1997 the Board began

to require that when a violating employer goes out of business, the employer must mail a

copy of the notice to every employee since the time of the violation. Excel Container,

Inc., 325 NLRB 17, 17 (1997). Similarly, in 2001 the Board began to require that the

standard notice be “expressed in simple and readily understandable language,” throwing

out the previous boilerplate legalese so as to ensure that employees comprehend the

information. Ishikawa Gasket Am., Inc., 337 NLRB 175, 176 (2001). These changes to

the standard remedy illustrate the importance to the Board that remedial notice actually

and effectively communicate a message to employees.

However, the Board has not consistently required remedial notices to be posted

via email, even when the employer uses email to communicate with employees.

“The use of email has become almost mandatory in U.S. workplaces.” Deborah

Fallows, Email at Work, Pew Internet and American Life Project (December 8, 2002).4

By 2002, 62% of American workers had internet access, and 98% of those workers used

3 See, e.g., Finn Industries, 314 NLRB 556 (1994) (requiring mailing to employees); Quinn Rest. Corp.,

293 NLRB 465 (1989) (requiring printing in the language of employees); Trident Seafoods Corp., 293

NLRB 1016 (1989) (requiring adjustment of the notice period to correspond to the employment pattern of a

seasonal business); Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C. Cir. 1981) (enforcing a Board

order for local publication of notice).

* Available at http://www.pewinternet.org/~/media//F iles/Reports/2002/PIP_Work_Email_Report.pdf.pdf

-3-

email on the job (for a total of fifty-seven million “work emailers”). Id.; see also Mary

Madden & Sydney Jones, Networked Workers, Pew Internet and American Life Project

(2008) (reporting on the prolification of email and other communication technologies in

the workplace).° Indeed, email has become so pervasive that some commentators remind

employers to interact with employees face-to-face rather than solely by email. See, e.g.,

Mary Ann McCauley, Make Technology Work For You: Communicating With Employees

During Tough Times, Employee Benefit Plan Review (June 2010) (arguing that email is

“no substitute” for one-on-one interaction).

Since email is so quick and easy, employers use it regularly to post notices of all

types. Even the most modest email system can easily send a single message to a

particular group of people with the mere click of a mouse.

The standard Board order should require that the violating party email the

remedial notice to employees. Requiring employers to email notice as a default, without

a special showing, better achieves the goals of remedial notice because it ensures that all

employees whose rights are violated will actually see the notice and will have an

opportunity to review it in relative privacy. The hurdle of a “special showing” for a type

of communication used by a majority of American workers (62% as early as 2002),° is

unnecessary and wastes resources. If the violating employer does not use email to

communicate with employees, it will quickly and easily meet a burden of proof on that

fact at the compliance stage. While Excel Container and Ishikawa Gasket demonstrate

the Board’s recent willingness to amend the standard remedy, other NLRB policy

modernizations (such as the electronic submission of briefs, the Board’s own use of an

> Available at http://pewresearch.org/pubs/966/networked-workers

° Deborah Fallows, Email at Work, Pew Internet and American Life Project (December 8, 2002).

-4-

email system, “NLRB on Twitter,” and “NLRB on Facebook”) demonstrate that the

Board itself resides in the present era of communications technology. Requiring email

notice as a standard remedy is a natural policy progression.

The electronic notice should contain a hyperlink to the Regional Office and the

Board Website so employees may get more information. Where unions are involved as

charging parties, the notice should contain a hyperlink to a website designated by the

Union. Where the employer is a charging party similarly a hyperlink may be included to

the employer’s website. The notice should provide a hyperlink to the information on the

Board’s website about section 7 rights.

The offending employer should not be allowed to place narrow limits on which

employees receive the emails. For example, in many cases there will be no established or

determined bargaining unit and no determination of who may have known about the

illegal conduct. Thus, email notice will best serve the remedial purpose if it is sent to the

maximum number of employees that the violation could have possibly affected. Like

physical notice, emailed notice should be posted for all to see.

II. THE STANDARD BOARD ORDER REQUIRING EMAILED NOTICE

SHOULD GIVE EMPLOYEES AMPLE OPPORTUNITY TO READ AND

DIGEST THE INFORMATION.

A. Employees Should be Allowed to Read the Remedial Email on Paid

Work Time and They Should be Notified of This Allowance.

Making clear that employees are permitted to read the electronic notice on work

time would continue the tradition of physical notice posting. However, it is worth

mentioning; email is so prolific that 49% of email-using workers say that new

technologies make it harder for them to disconnect from their work when they are at

home and on the weekends. Mary Madden & Sydney Jones, Networked Workers, Pew

-5-

Internet and American Life Project (2008). 22% of employed email users say they are

expected to read and respond to work-related emails even when they are not at work. Id.

The remedial notice should not be among the emails that employers expect employees to

review while off the clock.

B. Employees Should Be Able to Read Emailed Notice Without Fear of

Being Monitored by the Violating Party.

With physical notice as the exclusive posting remedy, employees who choose to

read the notice face the risk that the employer will monitor who is reading the notice.

This deterrent is especially onerous when, as is often the case, all of the “conspicuous

places” where notices are customarily posted are in the plain view of management.

Emailed notice can alleviate this problem because employees can review the notice in the

relative privacy of their own work station. Board orders should also expressly forbid the

violating party from remotely monitoring which employees open and read the email.

Such an express provision would ensure that employees are able to digest the information

at their own pace and without fear of being watched.

C. The Violating Party Should Send the Remedial Email at Least Once

per Month During the Notice Period.

Spam comprises 88-92% of global email volume. Messaging Anti-Abuse

Working Group, Email Metrics Program Report: Third and Fourth Quarters 2009

(March 2010).’ Despite the development of spam-blocking tools, the volume of spam

arriving in users’ inboxes continues to persist. “[M]Jore Americans than ever say they are

getting more spam than in the past,” including spam in work email accounts. Deborah

” Available at http://www.maawg.org/sites/maawg/files/news/MAAWG_2009-

Q3Q4_Metrics_Report_12.pdf

Fallows, Adjusting to a Diet of Spam, Pew Internet and American Life Project (May

2007).® To avoid the remedial notice getting lost in the shuffle, and to underscore its

importance in the remedial process, the violating party should release the remedial email

at least once per month during the remedial period. Because email is so easy, this carries

little marginal burden for the violating party (clicking “send” is arguably easier than

tacking physical notice to the bulletin board).

D. Employees Should be Allowed to Forward the Notice Freely.

The Board should not permit adverse action against employees who forward the

notice. Remedial notice is not confidential; in its current physical form, it is a worksitewide announcement that the employer has violated the law, and it is an affirmation of

employee rights.” Moreover, Board orders are a matter of public record. Employees

should continue to be the masters of the email they receive. They should be able to

forward the notice freely.

E. Employees Should be Allowed to Print the Notice.

Similarly, the Board should not permit adverse action against employees who

print electronic notice. Employer emails are often subject to copying or printing. The

same should apply to the notice which is electronically forwarded. Employees should be

allowed to print and download to the same extent.

® Available at http://pewresearch.org/pubs/487/spam

° The policy of allowing forwarding of the email does not break with physical posting policy. With physical

posting, employees can easily disseminate the notice through such common technologies as scanning,

photocopying, or a quick picture with a cell phone camera that is then picture-messaged, emailed,

“facebooked,” “flickr-ed” “peep-ed” “picasa-ed,” or otherwise sent to anyone instantly from the same

phone that took the picture. Virtually any cell phone with a camera possesses one or more of these

capabilities. Although it is thus already possible for employees to disseminate physical notice, the purpose

of remedial notice is only served if it comes from the violating party.

-7-

F. The Board Should Require that “Important Notice,” or a Similar

Statement of the Importance of the Message, Appear in the Subject

Line of the Remedial Email.

This requirement will set the notice apart from the other notices the employer

disseminates. The requirement would accord with the current standard physical posting,

which begins, “Notice to Employees: Posted by Order of the National Labor Relations

Board.”

IV. THE STANDARD ELECTRONIC NOTICE ORDER SHOULD INCLUDE

ANY FORM OF ELECTRONIC COMMUNICATION THROUGH WHICH

THE OFFENDING EMPLOYER COMMUNICATES WITH

EMPLOYEES.

While 62% of the of the American employed adult population use email at work,

fully 96% of employees use new communications technologies—either by going online,

using email, or owning a cell phone. Mary Madden & Sydney Jones, Networked

Workers, Pew Internet and American Life Project (2008) (reporting on the increased use

of text messages, personal digital assistants, and cell phones in modern work culture).

Beyond email, employers often require employees to use various other platforms of

communication for work (such as the texting pagers seen in the recent U.S. Supreme

Court case City of Ontario v. Quon") and they also take advantage of of the many

platforms of communication employees use in their personal lives (such as the practice of

text messaging employees on their personal cell phones). Email does not suffice as the

sole electronic posting forum. The standard notice requirement should include text

messaging, instant messaging, and electronic bulletin boards, social networking sites

(such as Facebook, Twitter, MySpace, and LinkedIn) and any other forms of electronic

10 No 08-1332, 560 US ___ (2010).

communication that the violating party already uses to communicate with employees. If

in 2010 the Board has a Twitter account, it should likewise require employers who

violate the law to provide a Twitter notice of the remedial email as part of the remedy.

No special showing of types of communication should be required at the unfair

practice hearing. “Special” showings on common workplace realities waste the Board’s

and the parties’ time, and they will prove even less efficient as the employers continue to

embrace more types of communication. To illustrate, some employers now distribute

iPod Nanos pre-loaded with podcasts describing retirement plans and health benefits. See

Lee Rainey, Digital ‘Natives’ Invade the Workplace, Pew Internet and American Life

Project (2006)."! Employers also commonly post notices to employees via text message

including election campaign material. See Virginia Concrete Corp., 338 NLRB 1182

(2003). Many employers use various handheld devices to communicate route

information, delivery information, or other information to employees. Other employers

may provide messages to employees who use a computer terminal on a regular basis,

such as when the employee logs on.'” The standard notice should automatically

encompass all possible types of communication that the violating party has chosen to use

to communicate with employees.

V. THE ELECTRONIC POSTING PERIOD SHOULD CORRESPOND TO

THE NUMBER OF DAYS THAT HAVE ELAPSED FROM THE FIRST

VIOLATION TO THE DATE OF NOTICE POSTING.

If the date of the first violation was exactly two hundred days prior to the issuance

of the Board’s remedial order, the remedial order should require electronic notice posting

"! Available at http://www.pewinternet.org/~/media/Files/Presentations/2006/New%20Workers.pdf.

’? This type of communication takes place, for example, many call centers when employees log on to their

computers each day.

for two hundred days. In no case, however, should the remedial period be less than

ninety days.

The traditional remedial period of sixty days is inadequate when email or intranet

posting is a requirement. In the infant era of physical posting, employees presumably

physically came to work five or six days a week. Today, in many cases, employees may

not access the employer’s intranet every day. The standard remedy should therefore

require physical posting and electronic posting (at least once per month, as discussed

supra at page 6) for a longer period than the outmoded sixty days of traditional posting.

A protracted time lapse between the violation and compliance with a posting

order dramatically weakens the effect of remedial notice. In a situation where an

employer has inhibited organization for two years, the statutory right of collective

bargaining may have been completely lost for two years, and the delay may lead to

significant harm to employee rights. Remedial notice adds little to other remedies unless

it adequately counters the accrued harm.

Electronic notice is uniquely situated to solve this problem because it carries such

a small burden for the violating party, and because when distributed repeatedly it can

reinforce one of the principal goals of notice: to affirm employee rights. The longer the

notice is repeated, the more the message of employee rights is reinforced. Unlike the

static remedies (injunctions, reinstatements), remedial notice can harness the power of

time to undo the violation’s protracted harm.

The amount of time that has elapsed since the first violation should directly mirror

the posting period for electronic remedial notice.

-10-

VI. IMPLEMENTATION

At the compliance stage, the violating party can object to any electronic mode of

communication as a platform for notice posting. Because the violating party will be best

situated to provide evidence of the types of communication it uses, it should bear the

burden of proof if there is any reason that it should not be required to meet the standard

requirements set forth above. Likewise, the General Counsel and Charging Party should

seek additional notice requirements in appropriate cases.

The violating party should be required to provide the Region with proof, in

electronic format, that it has complied with all physical posting and electronic posting

requirements. This should be done at the outset of the remedial period and at intervals

during the remedial period so that the region can be assured that the notice is accurate and

contains the required hyperlinks.'°

Some employees affected by the illegal conduct will have left the employment of

the violating party. The standard Board order should require electronic notification to

those employees by any email address known to the employer. As in the past, the Board

should continue to also require postal mail notice in such cases.

Vil. CONCLUSION

The Board should change the standard notice remedy to reflect the reality of

electronic communication in the modern workplace. Emailed notice should be a standard

remedy. The rules governing emailed notice should prioritize actual communication with

employees: It should be read at work, unmonitored, sent more than once, and freely

'? For example, the notice may contain a link to translations in other languages. In addition, all electronic

notices should contain a link to the NLRB website.

-ll-

forwarded. The standard remedy should further require the violating party to send the

notice through all forms of electronic communication through which it already

communicates with employees. The Board should apply an extended remedial period to

electronic notice; the period should be the amount of time elapsed between the first

violation and the implementation of the remedy by the violating party.

The violating party should bear all relevant burdens of proof at the compliance stage.

DATED: June 24, 2010

RESPECTFULLY SUBMITTED,

Weinberg, Roger & Rosenfeld

py Mca VA EZ

David A. Rosenfeld

Weinberg, Roger & Rosenfeld

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Caren P. Sencer

2/577902

-12-

CERTIFICATE OF SERVICE

I, Karen Scott, hereby certify that on June 24, 2010, I electronically filed the

foregoing with the National Labor Relations Board using the e-filing system, and served

a true and correct copy as indicated below:

Via e-mail:

A. John Harper II

Morgan, Lewis & Bockius LLP

1000 Louisiana, Ste. 4200

Houston, TX 77002

Email: aharmer@morganlewis.com

Thomas A. Lenz

Atkinson, Andelson, Loya, Ruud & Romo

12800 Center Court Dr., Suite 300

Cerritos, CA 90903

Email: tlenz@aalrr.com

Lisa M. Smith

Klimist, McKnight, Sale, McGlow &

Canzano

400 Galleria Office Center, Suite 117

Southfield, MI 48034

Email: lsmith@kmsmc.com

Machinists Automotive Local 1101

Machinists Automotive Local 190

3777 Stevens Creek Boulevard, Suite 320

Santa Clara, CA 95051

jimschwantz@hotmail.com

Painters District Council 15

Local #86

1841 North 24" Street

Phoenix, AZ 85008

Email: jsmirk@msn.com

Mara Louis Anzalone, General Counsel

NLRB

2600 North Central Ave., Suite 1800

Phoenix, AZ 85004

Email: mara _louise.anzalone@nIrb.gov

Gregory E. Smith

Lionel Sawyer & Collins

1700 Bank of America Plaza

300 South 4” Street

Las Vegas, NV 89101

Email: gsmith@lionelsawyer.com

Daniel T. Berkley

Gordon & Rees

275 Batter Street, Suite 2000

San Francisco, CA 94111

Email: dberkley@gordonrees.com

David B. Reeves

Cecily A. Vix

NLRB Region 20

901 Market Street, Suite 400

San Francisco, CA 94103

Email: dreeves@nIirb.gov

NLRB Region 16 RO — Houston

1919 Smith Street

Mickey Leland Federal Building, Suite

1545

Houston, TX 77002

Email: jallen@nlrb.gov

Bernard L. Middleton

Provost Umprey Law Firm LLP

490 Park Street

P.O. Box 4905

Beaumont, TX 77704

Email: blmiddleton@aol.com

FCS Flooring, Inc.

6445 South Industrial Road, Unit D

Las Vegas, NV 89118

Email: bekki@fcsflooring.net

Via U.S. Mail:

Matt Zaheri

Stevens Creek Chrysler Jeep Dodge

4100 Stevens Creek Boulevard

San Jose,CA 95129

Custom Floors, Inc.

4275 West Reno Ave.

Las Vegas, NV 89118

Flooring Solutions d/b/a FSI

2829 Synergy

North Las Vegas, NV 89030

FSI

2829 Synergy

North Las Vegas, NV 89030

/I/

/I/

M1

M1

/I/

Mf

Terry Freeman

Greg Schrull

Arkema, Inc.

2231 Haden Road

Houston, TX 77015

Email: Bigdawg051667@aol.com

Freeman’s Carpet Service, Inc.

3150 Ponderosa

Las Vegas, NV 89118

Email: freemancarpet@aol.com

Dean Owens

NLRB Region 16

1919 Smith Street, Suite 1545

Houston, TX 77002

Allison Beck, General Counsel

International Association of Machinists &

Aerospace Workers, AFL-CIO

9000 Machinists Place, Room 202

Upper Marlboro, MD 20772-2687

Joe Wilson, International Representative

United Steelworkers of America Local 13-

227

704 East Pasadena Freeway

Pasadena, TX 77506

J. Picini Flooring

4140 West Reno Avenue

Las Vegas, NV 89118

NLRB Region 16 — Ft. Worth NLRB Region 28 RO — Las Vegas

819 Taylor Street, Room 8A24 600 Las Vegas Boulevard South, Suite 400

Ft. Worth, TX 76102-6178 Las Vegas, NV 89101

Eric Tilles

Arkema, Inc.

2000 Market Street

Philadelphia, PA 19103

I certify that the above is true and correct. Executed at Alameda, California, on

Karts tea

Karen Scott

June 24, 2010.