# UNITED STATES OF AMERICA

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Anlrb%3A175aa2dcc1e31d1f

## Record

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

## Text

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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Anlrb%3A175aa2dcc1e31d1f. Public record. Not legal advice.