By Kamran Mirrafati

On May 24, 2012, the NLRB Office of the General Counsel released an Operations-Management Memorandum that outlines the practices to be used by Regions for electronic distribution/posting or oral readings of the Notice to Employees in settlements of any unfair labor practice charge. See Memorandum OM 12-57.

Some of the key practices announced for electronic distribution and posting of the remedial Notice include the following:

  • In determining whether to require electronic posting/distribution, Regions should consider whether the employer customarily and routinely communicates with employees electronically (i.e., via e-mail or via electronic posting on an intranet site or other website). Regions would be more inclined to require electronic posting/distribution if employees typically work off-site and would otherwise be unlikely to see traditional notices.
  • If electronic distribution is required, the Notice should be e-mailed to all employees who customarily receive electronic communications at all locations where the unfair labor practices occurred.
  • If electronic posting is required, the Notices should be posted electronically on any intranet site or website that the employer customarily uses to communicate information to employees at the locations where the unfair labor practices occurred.
  • The e-mail transmitting the Notice should state language similar to the following: “We are distributing the attached Notice to Employees to you pursuant to a Settlement Agreement approved by the Regional Director of Region of the National Labor Relations Board in Case(s) . . . .”
  • The e-mail transmitting the Notice (with all the recipients) should be forwarded to the Compliance Officer. For any electronic postings, the employer may also be required to provide the Compliance Officer with access to any password protected intranet site or website in the event it is necessary to check the electronic posting.

To the extent an oral reading of the Notice is required, the Memorandum also announced the following practices to be used:

  • The employer should announce the meeting for the Notice reading in the same manner it would customarily announce a meeting for employees and it must require the attendance of all employees from the locations at issue.
  • The meeting for the Notice reading should be held at times when the employer customarily holds employee meetings and must be completed prior to the completion of the 60-day Notice posting period. The date and time of the reading must be approved by the Regional Director.
  • The Notice reading should be done by a Board agent or a responsible representative of the employer.
  • If a party will not enter into the settlement agreement unless the Notice is read by a Board agent, Regions should evaluate each party’s position on the issue and make a determination on a case-by-case basis as to whether a Board agent reading is appropriate.
  • A Board agent should attend the reading in order to verify that it has occurred. If it is not feasible for a Board agent to attend the reading, then the employer will be required to submit a certification confirming when the reading occurred and who did the reading.
  • The Board agent who attends the notice hearing cannot engage in substantive dialogue about the case with either the employees or the employer’s responsible agent. In the event the Board agent observes any issues with the reading, the agent should only address them with the employer’s attorney.

Although this new Memorandum will likely make it more difficult to avoid electronic distribution/posting (depending on an employer’s practices), the employer can negotiate with the Board agent during the settlement process.