THE UNITED STATES OF AMERICA

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BEFORE THE NATIONAL LABOR RELATIONS BOARD

ARKEMA, INC.

Case

16-CA-26371

16-CA-26392

Case

16-RD-1583

and

UNITED STEELWORKERS OF AMERICA, LOCAL 13-227

ARKEMA, INC.,

Employer

and

GREG SHRULL,

Petitioner

and

UNITED STEELWORKERS OF AMERICA, LOCAL 13-227,

Union

STEVENS CREEK CHRYSLER JEEP DODGE, NC.

Cases 20-CA-33367

20-CA-33655

20-CA-33603

and

MACHiNISTS DISTRICT LODGE 190, MACHiNISTS

AUTOMOTIVE LOCAL 1101, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO

CUSTOM FLOORS, INC., et al.,

and

INTERNATINONAL UNION OF PAINTERS AND

ALLIED TRADES, DISTRICT COUNCIL 15

Cases 28-CA-2 1226

28-CA-2 1229

28-CA-21230

28-CA-2 1231

28-CA-21233

BRIEF OF SERVICE EMPLOYEES INTERNATIONAL UNION AS AMICUS CURIAE

Respectfully submitted by:

Dated: June 11, 2010

Jennifer L. Hunter, Assistant General Counsel

Service Employees International Union

1800 Massachusetts Aye, NW

Washington, DC 20036

TABLE OF CONTENTS

Introduction

Interest of Amicus Curiae

Argument

AT A MINIMUM, THE BOARD SHOULD MODERIZE ITS STANDARD

LANGUAGE TO PROVIDE FOR NOTICE BY ELECTRONIC MEANS

A. Board Must Ensure Remedies are Effective as Possible

B. Purpose of Board’s Notice Posting Requirement

C. Posting a Notice Solely on a Bulletin Board

D. Electronic Notice Increases Likelihood that Notice Will be Effectively

Communicated

E. Board Should Amend its Current Notice-Posting Language

Argument

THE BOARD SHOULD GO BEYOND ELECTRONIC NOTICE TO REQUIRE

NOTICES TO BE DISSEMINATED IN MULTIPLE WAYS IN ORDER TO

MAXIMIZE THE CHANCES THAT THEIR CONTENTS WILL BE EFFECTIVELY

COMMUNICATED TO EMPLOYEES

A. Multiple Forms of Notice Should be Required Routinely

B. Research Shows that Information Must be Communicated Repeatedly and

Through Different Avenues

C. Notices Should be Physically Posted, Distributed Individually, Read Aloud,

And Translated

Conclusion

TABLE OF AUTHORITIES

CASES

Airborne Freight Co.,

338 NLRB 597, 599 (2002)

Eastern Maine Medical Center

253 NLRB 244, 228 (1980)

5, 15

Excel Container, Inc.

325 NLRB 17 (1997)

Fieldcrest Cannon, Inc.

318 NLRB 470 (1995)

15,16

Flat Dog Prods.

347NLRB 1180, 1189 (2006)

Flexsteel Industries, Inc.

311 NLRB 257 (1993)

H W. Elson Bottling Co.,

155 NLRB 714, 716 n.7 (1965)

IBM

339NLRB 968

7,11,12

Indian Hills Case Center

321 NLRB 144 (1996)

6, 13

International Business Machines Corp.

339 NLRB 966 (2003)

Ishikawa Gasket America, Inc.

337NLRB 175, 176 (2001)

IP. Stevens & Co.

157 NLRB 869, 878 (1996)

15, 19

NLRB v. J Weingarten, Inc.

420 U.S. 251, 266 (1975)

NLRB v. Seven-Up Bottling Co.

334 U.S. 344, 346 (1953)

111

NLRB v. S.F. Nichols, Inc.

862 F. 2d 952, 962 (2d Cir. 1988)

16, 21

Nordstrom, Inc.

347NLRB 294 (2006)

1,6,11,12,13

Pennsylvania Greyhound Lines, Inc.

1 NLRB 1, 52 (1935)

Pacific Bell

330 NLRB No. 31, slip. op. 5 (Nov. 30, 1999)

Phelps Dodge Corp. v. NLRB

313 U.S. 177, 194 (1941)

Stevens Creek Chrysler Jeep Dodge, Inc.

20-CA-33367., 2009 NLRB LEXIS 236

Sure-Tan, Inc. v. NLRB

467 U.S. 883, 900 (1984)

Teamsters Local 115 v. NLRB

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

Texas Super Foods, Inc.

303 NLRB 209 (1991)

Three Sisters Sportswear Co.,

312 NLRB 853 (1993)

UFCW Local 204 v. NLRB

447 F. 3d 821, 828 (D.C. Cir. 2006)

9, 19

Valley Hosp. Med. Ctr., Inc.

351 NLRB 1250 (2007)

Windsor Convalescent Center ofNorth Long Beach

351 NLRB 975, 989n. 61

STATUTES

2 Cal. Code of Regulations § 7287.0(d)

2 Cal. Code of Regulations § 7297.9

Cal Unemployment Insurance Code § 1089, 2706.7

22 Cal. Code of Regulations § 1089.1

Cal Labor Code207, 1183, 3550

20C.F.R.1002

29 C.F.R. §801.6

29 C.F.R. § 825.300(a)

7, 19

29 C.F.R. §1601.30

29 C.F.R. §1627.10

29 C.F.R. § 1903.2

29 U.S.C. § 151-169

29 U.S.C. § 160(c)

3, 5

29 U.S.C. §627

29 U.S.C. §657(c)(1)

29 U.S.C. §2003

29U.S.C.2619

38 U.S.C. § 4334(a)

42U.S.C.12115

42 U.S.C. §2000e-10

NLRA § 10(c)

MISCELLANOUS

Archibald Cox et al., Labor Law: Cases and Materials, 253-54 (13th ed. 2001)

Cynthia L. Estlund, The Oss/Ication ofAmerican Labor Law, 102 Colum. L. Rev. 1527

1554 (2002)

David Owen, Copies in Seconds. How a Lone Inventor and an Unknown Company Created

The Biggest Communication Breakthrough Since Gutenberg 9-10 (2004)

Human Rights Watch Report, Unfair Advantage: Workers’ Freedom ofAssociation in the

United States under International Human Rights Standards, 14 Aug. 2000

Jane M. Von Bergen, Low literacy limits halfofPhila. Workforce, studyfinds, Philadelphia

Inquirer (June 28, 2009)

John W. Teeter, Jr., Fair Notice: Assuring Victims of Unfair Labor Practices That Their

Rights Will Be Respected, 63 UMKC L. Rev. 1, 11 n.56 (1994)

Leslie Kaufman, Can ‘tRead, Can ‘t Write, Can Hide It, N.Y. TIMES (Oct. 31, 2004)

Martin H. Malin & Henry H. Perritt, Jr. The National Labor Relations Act in Cyberspace:

Union Organizing in Electronic Workplaces, 49 U. Kan. L. Rev. 1, 17 (Nov. 2000)

Nat. Ctr. for Educ. Stats., U.S. Dept. of Educ., NationalAssessment ofAdult Literacy (Feb.

2009)

Nicholas J. Cepeda et a!., Spacing Effects in Learning, 19 Psychological Science

1095, 1095 (2008)

NLRB Office of the General Counsel, Memorandum OM 99-79, 1 (Nov. 19, 1999)

4, 20

Revisions to Unfair Labor Practice Casehandling Manual, OM 10-27 (CH)

Richard M. Felder & Linda K. Silverman, Learning and Teaching Styles in Engineering

Education, 78 Engineering Educ. 674, 676 (1988)

Use ofInternet E-Mail by Outside Parties to Communicate with Board Agent and Submit

Documents to Regional Offices, OM 03-74

U.S. Dept. of Labor, Hazard Communication Guidelines for Compliance,

OSHA 3111,13(2000)

U.S. Census Bureau, Census 2000 Brief, Language Use and English-SpeakingAbility: 2000,

at 2 (October 2003)

William C. Placher, Readings in the History of Christian Theology, Volume 2, 11-12 (1988)

INTRODUCTION

The practice of the National Labor Relations Board (“Board” or “NLRB”) to require the

posting of paper remedial notices on employer bulletin boards has remained essentially

unchanged for over 75 years, since before the advent of the internet, email, personal computers,

and even the photocopy machine. A reexamination of the Board’s notice-posting requirements,

including its decision in Nordstrom, Inc., 347 NLRB 294 (2006), is thus long overdue. The

Board’s standard notice-posting language should be updated to ensure that the notice remedy is

designed to accomplish the ultimate goal of issuing notices

—

to ensure that the information

contained in the notices is effectively communicated to the affected workers so that it can

counteract the chilling effect of unfair labor practices.

The update urged by the General Counsel in Arkema, Inc., changing the Board’s standard

notice language to make clear that notices must be posted by electronic means, including e-mail,

whenever the employer already communicates with employees by those means, is a positive first

step in modernizing the notice-posting language. But that change alone is not sufficient.

Contemporary understanding of the way people learn and comprehend information make clear

that to be effective, notices should be communicated to employees multiple times and in multiple

formats. Thus, the Board should require that in addition to being physically posted, notices be

distributed individually to employees and read aloud, and translated into languages other than

English at the request of a charging party or the General Counsel. These improvements in the

Board’s notice-posting regime would ensure that as many employees as possible are actually

notified of the Board’s notices and are able to comprehend the information contained in them.

INTEREST OF AMICUS CURIAE

Service Employees International Union (“SEIU”) is one of the largest unions in North

America, representing 2.2 million men and women who work in health care, property services,

and public employment. SEIU also focuses heavily on organizing workers who are not yet

represented by a union. A vital and effective NLRB remedial regime is crucial to SEJU’ s ability

to effectively protect the rights of the workers it already represents and to give unorganized

workers the opportunity to unionize free from illegal employer intimidation and threats.

ARGUMENT

At a Minimum, the Board Should Modernize its Standard Notice Language to

Provide for Notice by Electronic Means

The Board Must Ensure that its Remedies are as Effective as Possible Given

the Constraints Imposed by the Act

Before turning to the matter of how the Board should revamp its remedial notice

practices, it is necessary to place that question in the broader context of remedies for violations

of the National Labor Relations Act (“Act” or “NLRA”), 29 U.S.C. §S 15 1-169.

Chairman Liebman and multiple other commentators have noted the “weakness of the

Act’s remedies.” Flat Dog Prods., 347 NLRB 1180, 1189 (2006) (Member Liebman,

dissenting). See also Archibald Cox et al., Labor Law. Cases and Materials 253-54 (13th ed.

2001) (“serious weaknesses have been identified

—

by scholars as well as by the Board itself— in

the Board’s traditional remedies ...“); Human Rights Watch Report, Unfair Advantage:

Workers’ Freedom ofAssociation in the United States under International Human Rights

Standards 14 (August 2000) (“[l]abor law enforcement efforts often fail to deter unlawful

conduct

...

weak remedies invite continued violations”)’; Cynthia L. Estlund, The Osstflcation of

American Labor Law, 102 Colum. L. Rev. 1527, 1554 (2002) (“the weakness of the Act’s

remedies in the face of employer resistance has proven to be the Achilles’ heel of employee

rights”). If an employer violates the Act by terminating an employee, the affected employee can

be ordered reinstated and be awarded backpay

—

but the backpay will be reduced by the amount

of any mitigation (real or imputed), and no other compensatory or other damages are available.

If an employer’s violation of the Act does not involve terminating an employee, there are

generally no monetary damages at all; rather, the standard remedies are a cease-and-desist order

and the posting of a notice stating that the employer will not violate the Act in the future. If an

employer’s misconduct affects an election, the election may be rerun; and if the employer refuses

to bargain in good faith, it may be required to bargain further. In other words, the available

remedies revolve around instructions to the employer not to violate the law in the future

—

hardly

a fearful prospect for an employer that wishes to avoid unionization, or a hearty reassurance to

employees who wish to exercise their right to organize.

While the Act itself imposes some constraints on the types of remedies the Board is able

to impose, at the same time the Act mandates that the Board “shall

action

...

take such affirmative

as will effectuate the policies of th[e] Act.” NLRA § 10(c), 29 U.S.C. § 160(c)

(emphasis added). This “rather vague statutory command” requires the Board, “at a minimum,”

to ensure that “a proposed remedy be tailored to the unfair labor practice it is intended to

redress.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984). The Board has “broad discretion”

to determine what “affirmative action” will accomplish that goal. Id. In exercising its discretion

to “fashion remedies to undo the effects of violations of the Act,” the Board “must draw on

enlightenment gained from experience.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346

‘Available at http://hrw.org/reports/pdfs/u1us/us1br008.pdf.

(1953). In other words, the Board should not simply keep doing what it has always done. See

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941) (“the Act does not create rights for

individuals which must be vindicated according to a rigid scheme of remedies”). Rather, “the

Board, like all administrative agencies, has a duty to adopt its rules and policies to the demands

of changing circumstances if the Act is to remain meaningful.” Airborne Freight Co., 338

NLRB 597, 599 (2002) (internal quotations omitted) (Member Liebman, concurring). See also

NLRB Office of the General Counsel, Memorandum OM 99-79, 1 (Nov. 19, 1999) (“[ijt is the

Board’s institutional role to serve as a remedial laboratory, which involves a responsibility to

periodically rethink and update its remedial strategies”). The Supreme Court has similarly

acknowledged that “[t]he responsibility to adapt the Act to changing patterns of industrial life is

entrusted to the Board.” NLRB v. J Weingarten, Inc., 420 U.S. 251, 266 (1975).

With that background in mind, we now show why, at a very minimum, the Board should

amend its standard notice-posting language to make clear that, in addition to physically posting a

notice at the worksite, the employer must distribute the notice to employees electronically,

including by e-mail, whenever the employer already uses those electronic means to communicate

with employees.

The Purpose of the Board’s Notice Posting Requirement is to Communicate

Effectively to Employees

The purpose of the Board’s notice remedy is to ensure that employees are “apprised of

the unlawful nature of the acts and assured that they will not be repeated.” Eastern Maine

Medical Ctr., 253 NLRB 244, 228 (1980). Of course, notices can accomplish this only if they

effectively communicate to employees that the Board has found a violation of the law has

‘While the focus of this brief is on remedial notices, the same improved distribution methods discussed here

electronic notice at a minimum, or, better, multiple forms of notice, see discussion below in section II should also

be used to disseminate other types of notices ordered by the Board, such as election notices.

—

occurred and that the employer is legally required not to repeat that violation. Only when the

information contained in the notice is successfully conveyed to employees can notices

“effectuate the policies of th[e] Act,” 29 U.S.C. § 160(c), by counteracting the chilling effect that

unfair labor practices have on employees’ exercise of their rights under the Act.

Posting a Notice Solely on a Bulletin Board is an Outdated and Ineffective

Way to Communicate to Employees

Starting with its first reported case, the Board sought to accomplish the goal of

effectively communicating the contents of notices to employees by requiring violators of the Act

to post notices in “conspicuous places in all of the places of business wherein their employees

are engaged.” Pennsylvania GreyhoundLines, Inc., 1 NLRB 1, 52 (1935). In 1935, the posting

of a physical notice in a workplace may have been a common and effective way of

communicating information. After all, Martin Luther’s posting a piece of paper to the door of a

church in the sixteenth century has been credited with sparking the Protestant Reformation. (In

fact, though, it was the then-recently invented printing press which permitted Luther’s “theses”

to be widely copied and circulated throughout Europe. William C. Placher, Readings in the

History of Christian Theology, Volume 2, 11-12 (1988). Possibly more to the point, in the

193 Os there was no obvious alternative way to ensure that all employees learned of the notice

(other than requiring that it be read aloud, a remedy that is discussed below in Section II.C.1). It

was decades before the advent of personal computers or the internet, and more than twenty-five

years before the introduction of office copy machines. David Owen, Copies in Seconds: How a

in excerpted form at http://books.google.comlbooks?id=fOaXP

CjPOIC&pgPA 11 &dqmartin+luther+reformation+printing+press&cd=5#v=onepage&q=printing%2Opress&f=fal

Se.

Lone Inventor and an Unknown Company Created the Biggest Communication Breakthrough

Since Gutenberg 9-10 (2004) (the first Xerox office copier was introduced in 1960).

The Board has made few changes to its standard notice-posting requirement in the last 75

years. In 1996 and 1997, the Board modified the standard provision to include a provision

stating that if the employer had gone out of business or closed the facility, the employer must

mail a copy of the notice to employees since the time of the first unfair labor practice. Indian

Hills Case Center, 321 NLRB 144, 144 (1996); Excel Container, Inc., 325 NLRB 17, 17 (1997).

In 2001, the boilerplate language of the notice was made less legalistic, in order to further the

goal of “effectively appris[ing] employees of their rights, and of the unlawful acts of respondent

employers or unions.” Ishikawa GasketAmerica, Inc., 337 NLRB 175, 176 (2001). But despite

requests, the Board has declined to address whether the practice of requiring notices to be

physically posted should be updated to mandate electronic posting as well. See International

Business Machines Corp., 339 NLRB 966 (2003) (“IBM’), Nordstrom, Inc., 347 NLRB 294

(2006). Meanwhile, the Board’s notice-posting language has remained essentially the same, but

workplaces, and the place of Board notices in them, have changed dramatically.

In contrast to what may have been the case 75 years ago, in today’s workplace an NLRB

notice tacked to a bulletin board is far from a “conspicuous” announcement. Rather, it is just one

more piece of paper amidst a jumble of other legal notices required by various state and federal

laws to be posted at all times. In California, for instance, employers are required to post more

than a dozen notices to inform workers of their legal rights, in the absence of any violation of

in excerpted form at

http://books.google.comlbooks?id=nMw9rKjy2E8C&printsec=frontcover&dq=David+Owen,+Copies+in+Seconds:

+How+a+Lone+Inventor+and+an+Unknown+Company+Created+the+Biggest+Communication+Breakthrough+Sin

ce+Gutenberg&hlen&ei=3nYRTKrVIIGO1QerrfTNBw&sa=X&oi=book_result&ct=result&resnum=1 &vedOCCO

Q6AEwAA#v=onepage&q&ffalse.

5 This proliferation of legal notices has turned bulletin boards into the workplace equivalent

law.

of the small-print legal disclaimers at the end of an advertisement

—

entirely expected but

generally ignored. That being so, the likelihood that an employee will notice when one

additional piece of paper from the NLRB appears on the “legal notices” bulletin board is slim.

The chance that a notice posted there will effectively communicate to all affected employees is

next to none.

And the question whether employees are likely to notice an NLRB notice on a crowded

bulletin board presupposes that they will ever see the bulletin board to begin with. In today’s

economy, many workers work in far-flung locations, or work from home, and may seldom visit

the employer’s “headquarters.” See, e.g., IBM, 339 NLRB 968 (noting that 30 percent of IBM’s

employees worked away from the facility 50 percent of the time).

While NLRB notices on employee bulletin boards are inconspicuous, an employee who

chooses to read the notice is quite conspicuous. An employee who manages to become aware of

the existence of the notice and wants to read it must leave her work area to go to the location

where the “legal notices” bulletin board is located, necessarily in a place where other employees

and managers may also go, and stand there in front of the board, reading the notice. In some

cases, employers post notices inside small offices where supervisors are always present. If the

Federal laws with posting requirements include Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-l0, 29 c.F.R.

§ 1601.30; the Americans with Disabilities Act, 42 U.S.C. § 12115; the Family and Medical Leave Act, 29 U.S.C. §

2619, 29 C.F.R. § 825.3 00(a) (requiring notice to be posted either physically or electronically, and to be included in

employee handbook or distributed individually to employees, either physically or electronically); the Age

Discrimination in Employment Act, 29 U.S.C. § 627, 29 C.F.R. § 1627.10; the Occupational Safety and Health Act,

29 U.S.C. § 657(c)(1), 29 C.F.R. § 1903.2; the Uniformed Services Employment and Reemployment Rights Act, 38

U.S.C. § 4334(a), 20 C.F.R. § 1002 (Appendix), and the Employee Polygraph Protection Act, 29 U.S.C. § 2003, 29

C.F.R. § 801.6. California statutes and regulations requiring employers to post notices include the Fair Employment

and Housing Act, 2 Cal. Code of Regulations § 7287.0(d); the California Family Rights Act, 2 Cal. Code of

Regulations § 7297.9 (requiring posting and inclusion in employee handbook); the laws governing unemployment

benefits, Cal. Unemployment Insurance Code § 1089 (requiring posting and distribution of individual copies to

employees) and 2706,22 Cal. Code of Regulations § 1089-1; and several separate provisions of the State Labor

Code governing such matters as the time and place when wages will be paid, Cal. Labor Code § 207; minimum

standards for wages and hours of work, Cal. Labor Code § 1183; and information relating to workers’ compensation,

Cal. Labor Code § 3550.

employee wishes to use the information contained on the notice about how to contact the NLRB,

she must bring a piece of paper and pen with her to copy down the address and phone number

contained on the notice. In doing this, she is quite publicly announcing her interest in the subject

of unionization to her co-workers and her employer. When the employer has already committed

an unfair labor practice, employees are understandably less likely to be willing openly to declare

their interest in reading about their rights to organize or about their employer’s violations of the

law by being seen reading an NLRB notice. Indeed, even where the Employer has unlawfully

created the impression of surveillance

—

has led employees to feel that it is “peering over their

shoulders, taking note of who is involved in union activities, and in what particular ways,”

Flexsteel Industries, Inc., 311 NLRB 257, 257 (1993), the Board still has not altered the

traditional posting requirement to ensure that workers may review the notice in private.

These dynamics make it even less likely that all, or even many, employees will go out of

their way to read a notice physically posted on a bulletin board. See Stevens Creek Chrysler Jeep

Dodge, Inc., Case 20-CA-33367 et seq., 2009 NLRB LEXIS 236, * 11 (July 29, 2009) (finding

merit in argument that electronic posting “allows an employee time to read the notice without

standing in a location indicating to the employer that [he] is in fact reading the notice”). The

D.C. Circuit cogently summarized the problems with the posting of notices solely on bulletin

boards in 1981, when it wrote that “an employee who must scan the Board’s notice hurriedly

while at work, under the scrutiny of others, will not be able to absorb its meaning and hence to

understand his legal rights as one who reads it at home in a more leisurely fashion.” UFCW

Local 204 v. NLRB, 447 F.3d 821, 828 (D.C. Cir. 2006) (quoting Teamsters Local 115 v. NLRB,

640 F.2d 392, 400-401 (D.C. Cir. 1981) (upholding Board order requiring that notice be mailed

to employees and former employees at their homes, among other remedies).

Electronic Notice Increases the Likelihood That the Notice Will Be

Effectively Communicated to Employees

It can hardly be denied that today, an employer wishing to communicate information to

employees does not typically post a piece of paper on a crowded bulletin board. Rather, the

employer most likely distributes a copy of a memo to each employee, either by e-mail or on

paper, and where the information is particularly important, the employer also holds an in-person

meeting. See discussion below in Section II. In many workplaces, employers utilize e-mail as

the most efficient means to distribute notices. As the AU noted in Pacflc Bell, 330 NLRB No.

31, slip op. 5 (Nov. 30, 1999), enforced, Pacific Bell v. NLRB, 259 F.3d 719 (D.C. Cir. 2000),

the Board’s “traditional notice posting as a means of communication with employees is

increasingly less effective in an electronic age in which the physical posting of notices in

common areas generally is not the sole or even the most common means of providing

information to employees.

.“

Id. (requiring employer, in addition to the normal posting

requirement, to notify each unit employee by electronic transmission such as e-mail).

E-mail is now a ubiquitous form of communication in the workplace. The majority of

American workers use the internet or e-mail at work.

6 E-mail is a simple, immediate, and

inexpensive way to disseminate information to large numbers of people. Many people now use

e-mail as their primary form of communication at work; it is in the process of replacing

“discussion by the water cooler.” Martin H. Maim & Henry H. Perritt Jr., The National Labor

Relations Act in Cyberspace: Union Organizing in Electronic Workplaces, 49 U. Kan. L. Rev.

See Networked Workers, Pew Internet & American Life Project (Sept. 2008),

http://www.pewinternet.org/Reports/2008/Networked-Workers.aspx (62 percent of employed American adults use

the internet or e-mail at work); American Management Association, 2004 Workplace E-Mail and Instant Messaging

Survey, www.amanet.org/research1pdfs/iM_2004_summary.pdf (81 percent of employees spent at least an hour on

e-mail on a typical workday in 2004); Economic News Release, U.S. Bureau of Labor Statistics, October 2003,

http://www.bls.gov/news.release/ciuaw.tOl.htm (55.5 percent of employed persons aged 16 and older used the

computer or the internet at work).

1, 17 (Nov. 2000). Put another way, e-mail is in the process of replacing discussion near the

bulletin board where legal notices are posted. Indeed, Arkema, Inc., one of the cases on review

here, is an example of the common practice of an employer using e-mail to disseminate

information to employees; there, the employer used e-mail to request that employees disclose

their coworkers’ union activities to management, to threaten unspecified reprisals if employees

engaged in protected acts, and to illegally withdraw recognition from the union. 2009 NLRB

LEXIS 285, *4

The NLRB itself has acknowledged the “widespread use of Internet E-Mail for

communication in commercial and professional settings” in discussing the use of e-mail in Board

case-handling. See Use ofInternet E-Mail by Outside Parties to Communicate with Board Agent

and Submit Documents to Regional Offices, OM 03-74; see also Revisions to Unfair Labor

Practice Casehandling Manual, OM 10-27 (CH) (noting that the Casehandling Manual has been

revised to make clear that “electronic submission of documents is strongly encouraged”).

Although the Board has embraced electronic communication with parties and their attorneys, it

has not taken the step of ensuring that its notices are communicated electronically to its ultimate

constituents, American workers.

At a Minimum, the Board Should Amend its Current Notice-Posting

Language to Make Electronic Notice the Norm

The Board should amend its standard notice-posting language to make clear that, in

addition to being posted in the traditional paper format, a notice must be communicated to

employees electronically, including via e-mail, whenever the employer already uses those

electronic means to communicate with employees. The Board has said it will order electronic

notice when the “respondent customarily communicates with its employees electronically”

—

but

only if the General Counsel or a charging party gathers and presents evidence at the unfair labor

practice hearing showing that the employer customarily communicates with employees

electronically, and makes a special request that the judge modify the standard language.

Nordstrom, 347 NLRB 294, 294 n. 5. Making electronic notice the norm would eliminate those

unnecessary hurdles.

As current and former Board members have observed, the language of the Board’s

notice-posting requirement already does literally require employers who use e-mail to

communicate with employees to use that same means to post remedial notices from the Board.

“[R]equiring [an employer that already customarily posts notices to employees electronically] to

post the Board’s notice on its e-mail system and intranet would not be contrary to, or involve a

change in, Board law, but instead is mandated by the plain language of the Board’s standard

notice-posting provision.” IBM, 339 NLRB 966, 968 (2003) (Member Walsh, dissenting).

Likewise in Nordstrom, 347 NLRB 294 (2006), then-Member Liebman noted that the standard

notice-posting language “unequivocally references all places where notices to employees

customarily are posted,” Id. at 294 (emphasis in original); thus, that language is broad enough to

“encompass new communication formats, including electronic posting which is now the norm in

many workplaces.” Id. Given, however, that the Board has repeatedly declined to conclude that

its current notice-posting language requires an employer that communicates with its employees

by e-mail or other electronic means to disseminate Board notices in that manner, see IBM, 339

NLRB at 966-67; Nordstrom, 347 NLRB at 294, the Board must now take the step of amending

its standard notice-posting language to make that clear.

If any questions arose as to whether notice had been given properly under this new standard, those issues should be

addressed in compliance proceedings. In such proceedings, an employer taking the position that it should not be

required post a notice electronically would bear the burden of proof, since the employer would be in the best

position to have access to information relevant to that question.

In grasping for arguments that the Board’s current notice-posting language does not already mandate e-mail

notice, the respondent employers in the cases under review are left to point to dictionary definitions of the word

“post.” See Arkema Inc.’s Answering Brief in Opposition to the General Counsel’s Cross Exceptions at 2. This

The Board’s current practice of ordering e-mail or other electronic posting of notices oniy

in “particular case[s]” when the General Counsel or charging party introduces special evidence at

the unfair labor practice hearing, Nordstrom, 347 NLRB at 294 n. 5., serves no purpose other

than to make it less likely that remedial notices will be effectively communicated to employees.

There would be no need for evidence in any particular case if the Board clarified the standard

language to explicitly require electronic notice whenever the employer already communicates

with employees electronically. After all, under the current bulletin-board-posting system, there

is no requirement that the General Counsel introduce evidence that the employer actually

communicates with employees by posting notices on bulletin boards. And beyond eliminating

the requirement for evidence about the employer’s e-mail practices in every case in which an

unfair labor practice hearing is held, including electronic notice in the Board’s standard notice

language is the only way to ensure that electronic notice is provided for in the vast majority of

unfair labor practice cases that are settled, since it is the Board’s common practice to use the

standard notice-posting language in settlement agreements.

The approach of including a conditional requirement in the Board’s standard notice

language, as we are proposing here, is not novel; it is precisely the approach the Board takes with

respect to the mailing of notices when a company or plant has closed. In Indian Hills Case

Center, 321 NLRB 144 (1996), the Board noted that its then-current practice of requiring record

evidence of a plant closure before ordering that notices be mailed meant that if “the record fails

argument is unavailing. For one thing, Arkema is selective in its dictionary use; a common meaning of “post” is “to

publish, announce, or advertise by or as (f by use of a placard.” Merriam-Webster.com, http://www.merriam

webster.comldictionary/post (first definition of “post” as transitive verb) (emphases added). In any case, even if the

word “post” were somehow too narrow to include e-mail, there is nothing preordained about the word “post.” The

word is not found in the text of the Act; it is merely the word the Board has long used, beginning, as discussed

above, an era in which “posting” was an accepted way of alerting groups of people to a document and “distribution”

entailed expensive duplication. To value one particular understanding of the word “post” over the actual purpose of

the posting requirement the effective communication of information to employees affected by a violation of the

Act would be to place form far above substance.

—

to reflect [the closure] or if the closing occurs after the issuance of the Board’s decision, there is

no provision in the Order to ensure that employees are notified of the outcome of the Board

proceeding.” Id. at 144. The Board therefore changed its standard notice-posting language “to

state that f the respondent’s facility has closed, the respondent shall mail the notice to

employees.” Id. (emphasis added). Exactly the same consideration applies here. The Board is

already willing to require electronic notice if the employer communicates with employees

electronically. Nordstrom, 347 NLRB at 294 n. 5. But if “the record fails to reflect” the fact that

the employer communicates with employees electronically, “there is no provision in the Order to

ensure” that employees receive the Board’s notice in the way they receive other communications

from their employer, namely electronically.

The only way to ensure that electronic dissemination of NLRB notices becomes the

norm, rather than the exception, just as electronic communication itself has become the norm

rather than the exception in the modern workplace, is for the Board to update its standard noticeposting language to mandate that change.

Furthermore, under this proposed standard, it would not be sufficient for the employer

merely to put the notice somewhere on its website or intranet system where employees may

never see it. Instead, an employer would be required to communicate the notice to employees

electronically in the same way or ways it already communicates with employees electronically.

Thus, an employer that communicates with employees by e-mail and by posting information on

an internet or intranet site would be required to post the notice electronically using both of those

methods. An employer that communicates with employees by sending information to a handheld

device by text message or other means would be required to disseminate the notice using those

means.

Finally, instead of requiring electronic dissemination of the notice only where the

employer “customarily” communicates with employees electronically, the test should be whether

the employer ever does so. The purpose of conditioning electronic notice on the employer’s

already-existing practice is only to ensure that employers are not required to set up electronic

posting systems that do not already exist

—

not to allow employers to avoid providing effective

notice by arguing about whether prior electronic communication with employees was

“customary.”

II.

The Board Should Go Beyond Electronic Notice to Require Notices to be

Disseminated in Multiple Ways in Order to Maximize the Chances That Their

Contents Will Be Effectively Communicated to Employees

While updating the current Board notice-posting language to take account of the

widespread nature of electronic communication is a long-overdue step, it is not sufficient. This

is particularly true because, despite the widespread use of e-mail, there are still many employers

who do not communicate with employees via e-mail. This is particularly true in low-wage

industries such as janitorial, security, and food service. In order to accomplish the goal of

ensuring that the contents of notices are effectively communicated to employees, so that

employees are “apprised of the unlawful nature of [the employer’s] acts and assured that they

will not be repeated,” Eastern Maine Medical Ctr., 253 NLRB 224, 228 (1980), the Board must

make additional changes to its notice regime. Specifically, the Board should require that notices

be disseminated on multiple occasions and through multiple methods: by being given to each

employee individually (either electronically or in paper form) and read aloud in addition to being

physically posted. Additionally, notice should be translated into languages other than English

upon the request of the General Counsel or a charging party.

Multiple Forms of Notice Should Be Required Routinely, Not Just in

Extraordinary Cases

The Board has long recognized the value of requiring multiple forms of notice to “undo

the effect” of unfair labor practices. IP. Stevens & Co., 157 NLRB 869, 878 (1966), enf’d, 380

F.2d 292 (2d Cir. 1967). InFieldcrest Cannon, Inc., 318 NLRB 470 (1995), enf’d in relevant

part, 97 F.3d 65 (4th Cir. 1996), the Board affirmed an order requiring the employer to, among

other relief, mail a copy of the notice to each employee on the payroll since the unfair labor

practices began; to publish the notice in its internal newsletter, in local newspapers of general

circulation, and in local Spanish newspapers; to post the notice in the plant; to translate the

notice into Spanish and to mail, publish, and post the Spanish version; and to read the notice

aloud to employees. Id. at 473. The Board noted that these remedies were “necessary in order to

convey the message to all employees

...

that the [employer] is serious about remedying [its]

unlawful conduct.” Id. See also Three Sisters Sportswear Co., 312 NLRB 853, 853 (1993)

(affirming notice remedy including mailing, publication in newspaper, and reading aloud in

Spanish and English); Texas Super Foods, Inc., 303 NLRB 209, 209 (1991) (affirming remedies

including reading of notice by company president). The courts have affirmed the imposition of

such remedies, observing that they “assur[e] employees that the company will respect the rights

of workers to form and join unions.” NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 962 (2d Cir.

1988).

While recognizing their efficacy in some cases, the Board has treated the requirement of

multiple forms of notice as an “extraordinary” remedy, to be reserved for cases involving

“numerous, pervasive, and outrageous” violations of the Act. See, e.g., Valley Hosp. Med. Ctr.,

Inc., 351 NLRB 1250, 1250 (2007). But there is no logical reason for limiting these remedies to

the most egregious cases. Surely any case in which an employer has violated the NLRA is a case

in which it is worthwhile to assure employees that the employer is “serious about remedying [its]

unlawful conduct.” Fieldcrest Cannon at 473. None of the remedies we are advocating

constitute monetary penalties; they are not in any way punitive; and they do not impose an undue

burden on an employer found to have violated the Act. And, as we now show, they are precisely

the type of reinforcement of a message that research demonstrates is necessary to achieve

effective communication.

Research Shows That Information Must Be Communicated Repeatedly and

Through Different Avenues to be Meaningfully Understood and

Remembered

Research on cognition and comprehension shows that new information is more likely to

be retained over long periods if the information is presented on several separate occasions. See,

e.g., Nicholas J. Cepeda et al., Spacing Effects in Learning, 19 Psychological Science 1095, 1095

(2008) (“multiple exposures [to the same piece of information]

are probably essential for

most long-term instruction”).

9 Thus, a notice that is only posted on a bulletin board is much less

likely to be meaningfully recalled than a notice that is posted on a bulletin board and e-mailed or

distributed to each employee and read aloud.

Research also shows that different people have different learning styles, and that a person

understands information best if it is presented in a format tailored to that person’s particular

style. Richard M. Felder & Linda K. Silverman, Learning and Teaching Styles in Engineering

Education, 78 Engineering Educ. 674, 676 (1988) (“an extensive body of research has

established that most people learn most effectively with one of the three modalities and tend to

miss or ignore information presented in either of the other two”).’° Specifically, in any group of

people, some will learn most effectively through written words, while others will learn through

at http://www.pashler.comlArticles/Cepeda%2Oet%20a1%2O2008psychsci.pdf.

at http://www4.ncsu.edu/unity/lockers/users/f/felder/public/Papers/LS- 1988 .pdf. The authors of this

piece later re-named the “auditory” modality “verbal” modality.

listening, and still others will learn best through taste, touch, and smell. Id. (describing the

“visual,” “auditory,” and “kinesthetic” modalities).” The Occupational Safety and Health

Administration accordingly recommends that information about workplace hazards be

communicated to employees both in written form and orally. U.S. Dept. of Labor, Hazard

Communication Guidelines for Compliance, OSHA 3111, 13 (2000) (“a properly conducted

training program will ensure comprehension and understanding. It is not sufficient to either just

read material to the workers or simply hand them material to read”).’

2 Board notices are

likewise most likely to be meaningfully internalized by a collection of employees if they are

conveyed in both written and oral forms.

Research into human learning thus indicates that the Board’s practice of requiring that

notice be disseminated only by affixing a written notice to a potentially remote and cluttered

bulletin board has the potential to significantly limit the extent to which all workers will

internalize the intended message. To better reflect the ways that employees retain and

comprehend information, notices should instead be presented repeatedly and through a diversity

of methods.

Notices Should be Physically Posted, Distributed Individually, Read Aloud,

and Translated Because Each Method Carries Important and Unique

Remedial Attributes

The specific methods included in the Board’s standard notice regime should include

individual distribution (either electronically or in paper form), reading aloud, and traditional

paper posting. In addition, the notice should be translated into a language other than English

(and then distributed, posted, and read in that language) upon the request of the General Counsel,

There is no obvious way to convey Board notices in the learning style of “kinesthetic” learners, so we do not

address that here.

Available at http://www.osha.gov/Publications/osha3 111 .pdf.

or a charging party. Each mode of communication plays an important role in ensuring that the

remedy is effective.

Individual Distribution

For the same reasons set forth in section 1 above as to why electronic notice should be the

norm rather than the exception, even in workplaces in which electronic communication is not

utilized, each employee should receive an individual copy of the Board notice. Indeed, a rule

requiring that each employee receive a copy of the notice in some form is even simpler than a

contingent rule requiring electronic notice only if the employer customarily communicates that

way. The Department of Labor recently adopted such an approach in revising the regulations

governing notices to employees of their rights under the Family and Medical Leave Act

(“FMLA”). The new regulations require that in addition to being posted (either physically or

electronically), an employer that has any FMLA-covered employees must give notice of FMLA

rights to each employee, either as part of an employee handbook or by “distributing a copy ... to

each new employee upon hiring.” In either case, “distribution may be accomplished

electronically.” 29 C.F.R. §. 825.300(a)(3).

The individual distribution of notices, either in physical or electronic form, guarantees

that every employee will at least lay eyes on the notice. Just as crucially, it provides employees

with the opportunity to read the notice in private, so that they can “absorb its meaning and hence

to understand [their] legal rights.” UFCWLoca1 204 v. NLRB, 447 F.3d 821, 828 (D.C. Cir.

2006) (quoting Teamsters Local 115 v. NLRB, 640 F.2d 392 at 400-401 (D.C. Cir. 1981)). See

also IP. Stevens & Co. v. NLRB, 417 F.2d 533, 539 (5th Cir. 1969) (a notice mailed to an

employee’s home “surely aids in dispelling the chilling effect of [the employer’s unfair labor

practices] by giving the employee an opportunity in the privacy of his home to see that someone

stronger than [the employer] has a voice in protecting those who wish to support the Union”).

Electronic notice is nearly cost-free, and copying and distributing a paper notice (whether in

employee mailboxes, along with employees’ paychecks, or by mail) “does not place any real

financial strain” on an employer and “imposes no serious technical problems.” JP. Stevens &

Co. v. NLRB, 417 F.2d at 539. Indeed, it is difficult to believe that the Board would not have

ordered individual distribution of notices from the inception of the Act if only efficient, low-cost

means of copying or electronically sending notices had then existed.

Reading

The reading aloud of a notice to an assembled group of employees is critical to signal to

all employees that workplace rights will be respected. Such a reading is an “effective but

moderate way to let in a warming wind of information and, more important, reassurance.” J.P.

Stevens & Co. v. NLRB, 417 F.2d at 540. Longstanding empirical research indicates that

“leaflets or other printed propaganda devices cannot match the persuasive power of oral

presentations.” John W. Teeter, Jr., Fair Notice: Assuring Victims of Unfair Labor Practices

That Their Rights Will Be Respected, 63 UMKC L. Rev. 1, 11 n.56 (1994) (internal citations

omitted; collecting research). The Board has likewise recognized the “unique effectiveness of

speeches addressed to employees assembled during working hours at the locus of their

employment.” H. W. Elson Bottling, Co., 155 NLRB 714, 716 n.7 (1965); see also NLRB Office

of the General Counsel, Memorandum OM 99-79, 2 (Nov. 19, 1999) (announcing that General

Counsel would seek to have notices read as a standard remedial measure because reading serves

multiple remedial interests). Employers are also well aware of the power of in-person meetings

and oral explanations. This explains why employers seeking to defeat union organizing

campaigns commonly hold “captive audience” or one-on-one meetings with employees in

addition to mailing, handing out, or posting antiunion literature.

And, unlike traditional posting or individual distribution, notice reading reflects the

reality that ninety-three million American residents have only a basic or below-basic level of

English language proficiency. Nat. Ctr. for Educ. Stats., U.S. Dept. of Educ., National

Assessment ofAdult Literacy (Feb. 2009). 13 See also Jane M. Von Bergen, Low literacy limits

half ofPhila. Workforce, study finds, Philadelphia Inquirer (June 28, 2009) (“more than half of

Philadelphia’s working-age adults, about 550,000 people, cannot handle the basic arithmetic and

reading necessary to succeed in the majority ofjobs in the city”). Making notice reading a

standard practice addresses the additional truth that most employees who do not understand

written English well are unwilling to volunteer, either to their employer or to the Board, that they

are functionally illiterate, out of shame and the fear of negative repercussions. Leslie Kaufman,

Can’t Read, Can’t Write, Can Hide It, N.Y. TIMES (Oct. 31, 2004) (“[h]iding illiteracy from a

boss is common”).’

Traditional Posting

The adoption of newer forms of notice-dissemination should not cause the Board to

jettison its traditional requirement that physical notices be posted. Despite its limitations, the

posting of a physical workplace notice remains significant as a public declaration that honors

statutory rights and memorializes statutory wrongs. That the Board notice is usually affixed

Available at http://nces.ed.gov/naallkf_demographics.asp.

Some courts have expressed concern that a requirement that a company official read a Board notice would be

“humiliate[ing]” to the employer. See, e.g., NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 962 (2d Cir. 1988). This

concern is misplaced. Even putting aside the fact that it makes no sense to speak of a company experiencing a

human emotion such as “humiliation,” there is no reason why a company official’s statement to employees that the

company will follow the law should “humiliate” either the company or the official. But in any case, this entire

question could be avoided by offering companies the option of having the notice read by Board agents. See id.

alongside other state and federal mandated notices only adds to its official and legalistic

qualities, cementing its authoritative status in employees’ minds.

Translation

As is the case with employees who are functionally illiterate, some employees who do

not understand English well are likely to be hesitant to announce as much. According to Census

data, in 2000, 18 percent of the total population aged 5 and over, or 47 million people, spoke a

language other than English at home. U.S. Census Bureau, Census 2000 Brief, Language Use

and English-Speaking Ability: 2000, at 2 (October 2003).’ The percentage of the population

that did not speak English at home and reported speaking English less than “very well” was 8.1

percent in 2000, up from 6.1 percent in 1990. Id. at 3.

To our knowledge, the Board has never set forth a clear standard for determining under

what circumstances it will require translation of a notice. In one case, it rejected a request for

translation even there was testimony in the record that “a lot” of workers in one department did

not speak English. Windsor Convalescent Center ofNorth Long Beach, 351 NLRB 975, 989

n.61 (2007). At a minimum, the Board’s current practice requires an additional mini-trial at each

hearing regarding the ability of employees to read and comprehend English. Even if workers did

not have good reason to hide their inability to read English, it is not an effective use of the

Board’s limited resources to require testimony and/or documentary evidence on this collateral

issue.

Thus, the sheer number of non-native speakers in the American economy counsels that all

notices should include translations into any language requested by the General Counsel or a

at http://www.ceñsus.gov/prodl2003pubs/c2kbr-29.pdf

charging party, so that all employees, no matter their nation of origin, have equal access to the

notice remedy.’

CONCLUSION

The Board bears the responsibility of ensuring that its notice remedies effectively

communicate to employees that unlawful acts committed in violation of their rights will not be

repeated. The remedy of requiring electronic notice whenever an employer already uses that

method to communicate with employees is a first step in that direction. But in order to more

fully ensure that the notice remedy “effectuates the policies of th[e] Act,” 29 U.S.C. § 160(c), the

Board should adopt the standard practice of requiring notices to be distributed to each employee

(whether physically or electronically), posted, read aloud, and translated upon the request of the

General counsel or the charging party.

Respectfully submitted,

,JjbIT A. SCOTT

General Counsel

JENNIFER L. HUNTER

Assistant General Counsel

MICHAEL OS WALT

Law Fellow

Service Employees International Union

1800 Massachusetts Ave. NW

Washington, DC 20036

(202) 730-7682

Attorneys for Amicus Curiae

Dated: June 11, 2010

It may be that the burden of translating notices into a language other than Spanish imposes a sufficient burden on

the agency to justify some additional showing before the Board will honor a translation request. But, there is simply

no reason to require any showing before the Board will honor the Charging Party or General Counsel’s request for

translation of the notice into Spanish.

CERTIFICATE OF SERVICE

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

Brief of Service Employees International Union as Amicus Curiae to be sent via U.S. mail to

the following:

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, 190

3777 Stevens Creek Blvd., Suite 320

Santa Clara, CA 95051

NLRB Region 20

901 Market Street, Suite 400

San Francisco, CA 94103

Caren P. Spencer, David Rosenfeld

Weinberg, Roger, Rosenfeld, PC

1001 Marina Village Parkway, Suite 200

Alameda, CA 94501

Allison Beck, General Counsel

International Association of

Machinists & Aerospace Workers

9000 Machinists Place, Room 202

Upper Malboro, MD 20772-2687

Custom Floors, Inc.

4275 West Reno Avenue

Las Vegas, NV 89119

FSI

2829 Synergy

North Las Vegas, NV 89090

FCS Flooring, Inc.

6445 South Industrial Road, Unit D

Las Vegas, NV 89118

J. Picini Flooring

4140 West Reno Avenue

Las Vegas, NV 89118

Freeman’s Carpet Service, Inc.

3150 Ponderosa

Las Vegas, NV 89118

Mara Louise Anzalone, Atty.

NLRB

2600 North Central Ave., Ste 1800

Phoenix, AZ 85004

Painters, District Council 15, Local 86

1841 North 24

Street

Phoenix, AZ 85008

Gregory Smith, Esq.

Lionell Sawyer & Collins

1700 Bank America Plaza

300 South Fourth Street

Las Vegas, NV 89101

Thomas A. Lenx

Atkinson, Andelson, Loya, Ruud & Romo

12800 Center Court Drive, Suite 300

Cerritos, CA 90703

NLRB Region 28

600 Las Vegas Blvd. South, Ste 400

Las Vegas, NV 89101

A. John Harper, Esq.

Morgan, Lewis, Bockius LLP

1000 Louisiana, Suite 4200

Houston, TX 77002

Eric Tilles, Esq.

Arkema, Inc.

2000 Market Street

Philadelphia, PA 19103

Joe Wilson, Rep.

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

819 Taylor Street, Room 8A24

Fort Worth, TX 76102

NLRB Region 16

1919 Smith Street, Ste 1545

Houston, TX 77002

Bernard L. Middleton

Provost, Umphrey Law Firm

490 Park Street, P.O. Box 4905

Beaumont, TX 77704

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.