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FEDERAL LABOR RELATIONS AUTHORITY

Guidance on

Electronic Notice 

Dissemination

____________________________________________________________________________________________________

 Office of the General Counsel

5/27/2011
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A. Policy

This Guidance sets forth the General Counsel’s policy to seek the electronic 

dissemination of Notices to All Employees (for Agency Respondents) and the electronic 

dissemination of Notices to All Members and Employees (for Labor Organization 

Respondents) as a traditional remedy in all unfair labor practice (ULP) cases where the 

Respondent customarily communicates with its employees (and members) by electronic 

means.

B. The Authority Has Broad Remedial Power

Pursuant to Section 7105(g)(3) of the Federal Service Labor-Management Relations 

Statute (the Statute), the Authority’s remedies “may require an agency or a labor 

organization to cease and desist from violations of this chapter and require it to take any 

remedial action it considers appropriate to carry out the policies of this chapter." 

Section 7118 of the Statute addresses the prevention of unfair labor practices, and 

paragraph (a)(7) sets forth the broad scope of the Authority's ULP remedial authority to 

order an Agency or Labor Organization Respondent to

cease and desist from any unfair labor practice in which the agency or labor 

organization is engaged;

require the parties to renegotiate a collective bargaining agreement in 

accordance with the order of the Authority and require that the agreement, as 

amended, be given retroactive effect;

require reinstatement of an employee with backpay in accordance with § 5596 of 

this title [The Backpay Act]; or

require any combination of these actions or “such other action as will carry out 

the purpose of this chapter.”

The broad grant of remedial power in Section 7118(a)(7) for the Authority to order "such 

other action as will carry out the purpose of this chapter" is tempered only by reference 

to the purpose of the Statute, which embodies the balance of interests between and 

among employees, unions, and agencies. Indeed, the Authority and the courts have

concluded that Congress intended to provide the Authority with broad remedial powers. 

Thus, in American Fed’n of Gov’t Employees v. FLRA, 785 F.2d 333, 336 (D.C. Cir. 

1986), the United States Court of Appeals for the D.C. Circuit found that Congress 

intended the Authority’s ULP remedial authority to be similar to that granted the NLRB 

under the National Labor Relations Act. See also Fed.l Bureau of Prisons, Wash., D.C., 

55 FLRA 1250, 1258 (2000).

In general terms, the Authority has defined its broad objective that ULP remedies should 

be “designed to recreate the conditions and relationships that would have been had 

there been no unfair labor practice.” F.E. Warren AFB, Cheyenne, Wyo., 52 FLRA 149, 

160 (1996) (F.E. Warren AFB) (quoting U.S. Dept. of Justice, Bureau of Prisons, 

Safford, Ariz., 35 FLRA 431, 444-45 (1990)). In addition, while the deterrence of future 

violations is not the principal objective of the Authority’s remedial orders, it “is also 
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certainly a desirable effect of a remedy.” Id., at 445 (citation omitted).

C. The General Counsel Will Seek the Electronic Dissemination of Remedial 

Notices

It is the General Counsel’s policy to seek the electronic dissemination of Notices to All 

Employees (for Agency Respondents) and the electronic dissemination of Notices to All 

Members and Employees (for Labor Organization Respondents) as a remedy in all ULP 

cases where the Respondent customarily communicates with its employees (and 

members) by electronic means. The Authority’s remedial principles must take into 

account the increasing prevalence of electronic means of communication at the 

workplace. Thus, in addition to traditional physical posting of paper notices, a 

Respondent should be required to disseminate remedial notices electronically when the 

Respondent customarily communicates with its employees or members by electronic 

means.

The Authority has distinguished in its decisions between traditional remedies and 

nontraditional remedies. Thus, in F.E. Warren AFB, at 161 (1996), the Authority noted 

that it had "developed several ‘traditional’ remedies, including a cease-and-desist order 

accompanied by the posting of a notice to employees that meet the criteria of a remedy, 

and which are provided in virtually all cases where a violation is found."1It has become 

customary for many, if not most, government agencies to communicate operational and 

employment-related information to their employees by electronic means, whether it be 

by email, intranet, or other electronic communication system. It is therefore the General 

Counsel’s position that the current notice posting language, which requires posting “in 

conspicuous places, including all bulletin boards and places where notices to 

employees [and members] are customarily posted” (emphasis added), is broad enough 

to encompass electronic distribution of remedial notices as a “traditional” remedy.

The posting of notices is critical to accomplishment of the Authority’s remedial purposes 

of enforcing employee rights and preventing unfair labor practices. Notices inform 

employees of their rights and of the Authority’s role in protecting the free exercise of 

those rights. Thus, in Nat’l Guard Bureau, 57 FLRA 240, 245 (2001), the Authority 

 

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 The Authority also identified other remedies that require some form of affirmative action by the 

respondent as established, or traditional, remedies. For example, a retroactive bargaining order (Dept. of 

Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580-81 (1996) (RBO was appropriate since it 

was not possible to restore the status quo)); the grant of backpay (U.S. Dept. of the Air Force, Aerospace 

Maint. and Regeneration Ctr., Davis-Monthan AFB, Tucson, Ariz., 64 FLRA 355, 361 (2009) (backpay 

required to remedy ULP based on repudiation of drug-testing agreements)); and the release of improperly 

withheld information (Internal Revenue Serv., Austin Dist. Office, Austin, Tex., 51 FLRA 1166, 1182 

(1996)) have been cited as traditional remedies. Some of these traditional remedies, such as status quo 

ante as a remedy for a failure to bargain violation, have given rise to criteria of their own. See e.g., Fed. 

Corr. Inst., 8 FLRA 604, 606 (1982) (setting criteria for status quo ante remedies where Respondent 

failed to bargain over impact and implementation of a change); Fed. Deposit Ins. Corp., 41 FLRA 272, 

279 (1991) (holding that standard remedy where Respondent failed to bargain over substance of a 

change is status quo ante, absent special circumstances). Other than to state that traditional remedies 

are routinely granted as a matter of course whereas nontraditional remedies require independent 

justification, the Authority has not clearly identified the factors which differentiate a traditional remedy from 

a nontraditional remedy.
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described the remedial purposes of posting a notice to include demonstrating to 

employees that the Authority will vigorously enforce rights guaranteed by the Statute, 

and that the Respondent recognizes and intends to fulfill its obligations under the 

Statute. Notices also inform employees of the steps required of the Respondent to 

remedy its violation of the Statute and deter future violations by providing assurances 

that future violations will not recur. The achievement of these remedial goals will not be 

realized, however, where the traditional posting of paper notices on bulletin boards is 

inadequate to reach employees and members who are more accustomed to receiving 

important information from their agency or union electronically and do not typically look 

for such information on bulletin boards. Electronic communications are now the norm in 

many workplaces, and it can be expected that the trend of increased use of electronic 

methods of communication will continue.

In recognition of technological changes that have elevated email, intranet, listserves, 

electronic bulletin boards, social networks, and other electronic means of 

communication as the primary means of communication in many of today’s workplaces, 

the General Counsel has determined that where these methods of electronic 

communication are normally employed, such methods should be required to assure that 

notices are adequately communicated to employees (and members). Indeed, where a 

Respondent customarily employs electronic means of communication with its 

employees or members, this fact reflects a judgment that electronic means are the most 

effective means of reaching the intended audience. The Authority’s notices are of 

sufficient import to be communicated in the manner deemed most appropriate by the 

Respondent for its own communications.

The General Counsel’s policy of seeking electronic notice dissemination is consistent 

with the position taken by the National Labor Relations Board. Thus, in J. Picini 

Flooring, 356 NLRB No. 9 (Oct. 22, 2010), the Board held that its traditional notice 

language, which, like the FLRA’s remedial language, requires the posting of notice in all 

“conspicuous places,” is broad enough to encompass the dissemination of notices by 

electronic means where a Respondent customarily uses such means to communicate 

with its employees. As the Board stated: 

Given the increasing reliance on electronic communication and the attendant 

decrease in the prominence of paper notices and physical bulletin boards, the 

continuing efficacy of the Board’s remedial notice is in jeopardy. Notices posted on 

traditional bulletin boards may be inadequate to reach employees and members 

who are accustomed to receiving important information from their employer or 

union electronically and are not accustomed to looking for such information on a 

traditional bulletin board.... As a matter of general policy, it follows that, in addition 

to physical posting, notices should be posted electronically, on a respondent’s intranet 

or internet site, if the respondent customarily uses such electronic posting to 

communicate with its employees or members. Similarly, notices should be 

distributed by email if the respondent customarily uses email to communicate with its 

employees or members, and by any other electronic means of communication so used 

by the respondent.
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Id., slip op. at 3. The Board reasoned that it would be an abdication of its responsibility 

to adapt to the “changing patterns of industrial life” were it to “ignore the revolution in 

communications technology that has reshaped our economy and society.” Id. at 4. The 

Board rejected the contention that electronic posting should be considered an 

extraordinary remedy that should be compelled only in egregious ULP cases or to deal 

with recidivist violators, noting that only Respondents that customarily communicate 

with employees (or members) by electronic means would be required to post remedial 

notices electronically. Id. Finally, the Board held that “the burden of establishing 

whether electronic notice of any particular type should or should not be required 

appropriately rests with the respondent because of its knowledge of its own 

communication practices and systems and its possession of the evidence concerning 

those facts.” Id. n.14.

In a recent decision, one of the Authority’s Administrative Law Judges ordered the 

dissemination of a remedial notice by email. In Department of Homeland Sec., U.S. 

Customs and Border Prot., El Paso, Tex., Case Nos. DA-CA-08-0179 & DA-CA-08-

0180 (OALJ 10-03) (Jan. 27, 2010), the Administrative Law Judge (ALJ) analyzed the 

question of electronic posting in terms of the “twin lodestars” guiding any determination 

concerning the effectiveness of a notice, namely, those identified in National Guard 

Bureau: “does the notice posting demonstrate to employees that the Authority will 

vigorously enforce rights guaranteed under the Statute and that the Respondent 

recognizes and intends to fulfill its obligations under the Statute?” Under the facts of the 

case, the ALJ concluded that the General Counsel’s evidence “demonstrated that the 

greatest number of employees rely on their email as their primary source of information, 

and that the Respondent does as well.” The ALJ therefore recommended that in 

addition to requiring the Respondent to post physical copies of the Notice to All 

Employees, the Respondent should also distribute the Notice by email (“Disseminate a 

copy of this Notice signed by [the Respondent] through the Station’s email system to all 

bargaining unit employees at the [facility].”).

D. Investigation Procedures

As discussed above, in J. Picini Flooring, the Board held that henceforth it will include 

additional language in its notice posting provision to make clear that its traditional notice 

posting remedy will include the dissemination of notices by electronic means where the 

Respondent customarily communicates with its employees in that manner. J. Picini 

Flooring, slip op. at 3. Similarly, the General Counsel will seek to persuade the 

Authority to include such language in its remedial notice posting provision in all cases. 

Until the Authority agrees, however, it will be necessary to introduce evidence, in the 

ULP proceeding, concerning the customary means by which the Respondent 

communicates to its employees. Where the evidence shows that the Respondent 

customarily uses electronic means of communication with its employees or members, 

the General Counsel will seek an Order that directs the distribution of notices by 

comparable electronic means in addition to the physical posting of paper notices. The 

ultimate goal, however, is to convince the Authority to include this requirement in its 

orders as a routine matter, so that all Respondents who communicate with their 

employees by electronic means will be required to disseminate their notices in the same 
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manner. It should be emphasized, however, that the electronic dissemination 

requirement is not intended as a replacement for posting of the notice on a bulletin 

board; Respondents should also continue to be required to post paper notices in 

conspicuous notices for a period of 60 days, to insure that a notice will be available for 

employees’ viewing for the full 60-day period.

In support of this policy to seek the electronic posting of notices, as part of the Region’s 

investigation into ULP cases the Region will make inquiries, as appropriate, into how the 

charged party customarily communicates to its unit employees or members. The 

General Counsel’s Investigating Agents will inquire regarding all means of such 

communication and will seek to ascertain the customary means by which such 

communication takes place. In ULP complaint cases where the evidence reflects that a 

Respondent typically communicates information to employees (or members) by means 

of email, posting on an intranet or the internet, or by any other electronic means, the 

General Counsel will seek a remedy to include dissemination of a remedial notice by 

those means, and will argue that the Authority should require electronic dissemination in 

all such cases.