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National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL
Division of Operations-Management

MEMORANDUM OM 02-43

March 11, 2002

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Richard A. Siegel, Associate General Counsel

SUBJECT: Plain Language In Board Remedial Notices

In Ishikawa Gasket America, Inc., 337 NLRB No. 29 (December 20, 2001) the Board decided that the Board's notice language needed to be changed to more clearly and easily be understood by employees. Thus, the Board "embrace[d] the principle that notices will most effectively apprise employees of their rights, and of the unlawful acts of respondent employers or unions, when they are written in clear laypersons' language." Id., slip op. at 2. However, as "neither the General Counsel nor the Charging Party ha[d] proposed . . . plain language they would have [the Board] adopt for the violations found," the Board did not award that remedy in that case. The Board did, nevertheless, "invite the General Counsel and other parties in future cases to suggest precise language as to the particular violations found." Id., slip op. at 2, n. 8.

Accordingly, in all future cases, the Counsel for the General Counsel should affirmatively set forth in the brief the notice language that most clearly explains the alleged violations that are being remedied. The purpose of this memorandum is to provide guidance to Regional Offices as to what words and phrases are appropriate to be included in notices, in settlements and in proposed remedial notices in litigated cases ("Board notices"). The goal is to ensure that all notices are written in laypersons' language without legal jargon.

In many cases the Board already has adopted language that is tailored to the actions that were found to be violative and, therefore, more easily understood by employees. For example, in Aluminum Casting & Engineering Co., 328 NLRB No. 2 (2000), the Board notice included language informing employees that the employer:

... WILL NOT ask that you report employees who "pressure" employees to support the Union.

... WILL NOT pay for damage to vehicles for employees who claim that the damage was caused by union supporters. (Slip op. at 5)

Similarly, in Branch 3126, National Association of Letter Carriers (United States Postal Service), 330 NLRB No. 85 (2000), and the notice included language stating that the union:

... WILL NOT refuse to sign Requests for Temporary Schedule Change for any employee because that employee is not a member of the union.

... WILL NOT instruct or attempt to cause the United States Postal Service to refrain from assigning penalty overtime to any employee because that employee is not a member of the union.

The virtue of these provisions is that they state clearly the precise nature of the unlawful conduct and the steps the employer or union will take to remedy that conduct, without phrasing it as a legal conclusion. The language in Aluminum Casting & Engineering is more informative than generalized statements that the employer will not interrogate employees about other employees' union activities, or that the employer will not, acting in a manner different from its past practice, grant unspecified benefits to encourage employees to accuse the Union of misconduct. The language in Branch 3126, National Association of Letter Carriers identifies specifically the nature of the unlawful conduct and, thus, is more informative than a general statement that the union will not discriminate against employees who are not members of the union.

Many other examples of plain language can be found in Board notices. What most have in common is their reliance on a specific and detailed description of the unlawful conduct, rather than statements phrased as general legal conclusions.

Although the Board often uses plain language in its notices, sometimes the notices depart from a description of the specific conduct prohibited to become mere general statements of legal principles. The above examples of a plain language notice may be contrasted with this language from the Board's notice in Martech Medical Products, Inc., 331 NLRB No. 57 (2000):

... WE WILL NOT create the impression among our employees that their activities on behalf of the Union are under our surveillance. (Slip op. at 4.)

The plain language examples also contrast with the notice in Communications Workers of America Local 3410 (BellSouth Telecommunications), 328 NLRB No. 135 (1999), which provided that the union:

... WILL NOT fail or refuse to process the grievance of [name of employee], or any other employee, for irrelevant, invidious, or unfair reasons.

These notices use terms that have specialized meanings, such as "surveillance" or "invidious," and therefore are not the surest way to inform individual workers of the specific conduct that the Board order prohibits. The workers, who may not have access to the Board decision in which the misconduct is described, will be better served by notices that describe the particular conduct found unlawful. For example, the notice in Martech Medical Products could have said:

... WE WILL NOT create the impression that we are watching out for the union activities of our employees by telling employees we are aware that a list of union supporters is being passed around, by asking employees whether they know that a list of union supporters exists, or by telling employees that we are aware a large number of them support the Union.

The notice in Communications Workers of America Local 3410 could have been written as:

... WE WILL NOT fail or refuse to process the grievance of [name of employee], or any other employee, because we dislike them, or because they opposed current officers of the union in a union election, or for any other unfair reasons.

Because the number of possible different notices is as broad as the variety of possible unfair labor practices, setting forth all, or even most, of the variations is not practical. However, the approach we are advocating is to tailor each remedial notice as much as possible to the particular facts of a case.

Despite this goal, there may be instances where general language is unavoidable. For example, there may be a case in which the number of violations of a particular type is so numerous that listing each would result in an unwieldy notice. Even in those cases, legalisms should be avoided. For example:

Consider:

Instead of:

"question" or "ask"

"interrogate"

"watch out for"

"engage in surveillance of"

"prevent employees from talking with one another about the Union"

"prohibit solicitation"

"refuse to give the Union information

"refuse to furnish the Union with

that it needs to represent you"

information that is relevant and necessary to its role as the exclusive representative of the unit employees"

"fire"

"discharge" or "terminate"

"unfair" (accompanied by examples)

"irrelevant, invidious, or unfair."

In drafting these notices one must be mindful that some legalisms, such as "interrogation," "surveillance," or "solicitation," have taken on a specialized meaning in the context of years of Board decisions defining the terms. However, this need not discourage the use of plain language in Board notices. The Board orders define the legal rights and obligations of the parties, and need to contain certain formal expressions to ensure their proper enforcement. But this does not mean that the separate notices must be equally formal. Thus, the touchstone for using plain language is to tailor the language to the intended audience. A Board order being drafted for a formal settlement, or for an informal settlement that includes a provision for the automatic entry of a Board order and court judgment in the event of noncompliance, must be phrased so that it is susceptible to enforcement by the Circuit Courts of Appeals. However, the audience for a Board notice is the group of individuals to whom we are explaining legal rights. The Board explicitly recognized this distinction in Ishikawa Gasket when it observed that "while a Board Order must be precisely phrased so it can be enforced by a circuit court of appeals, a Board notice is directed at an audience that is better served by clear laypersons' language." Id., slip op. at 2.

Also, the Board in Ishikawa Gasket expressly adopted the General Counsel's recommendation "to substitute the following two paragraphs for the first two paragraphs currently used in Board notices:

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO:

Id., slip op. at 3.

Accordingly, all future Board notices should begin with that language. The Board also signified approval of a paragraph to be added to its notices that "describe[s] the function of the Board and its processes . . . ." Id., slip op. at 3. Regions should, therefore, include this language in each Board notice:

The National Labor Relations Board is an independent Federal Agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to an agent with the Board's Regional Office set forth below. You may also obtain information from the Board's website: www.nlrb.gov

      [Insert address, phone number, and hours of operation of Regional Office in which the underlying charge was filed.]

Finally, the Board rejected the General Counsel's proposal to insert the following Spanish language statement in the Board notice in Ishikawa Gasket, but only on the basis that there was "no claim or showing in this case that this Spanish provision is needed to address the needs of the affected employees." Id., slip op. at 3.

Si quiere, se puede hablar con un agente de La Junta Nacional de Relaciones del Trabajo en confianza. [A Board agent who speaks Spanish can be made available to speak with you in confidence.] La pagina electronica de red de la Junta Nacional de Relaciones del Trabajo tambien tiene informacion en espanol: www.nlrb.gov. [Information in Spanish is also available on the Board's website: www.nlrb.gov.]

In appropriate cases, the Region should propose the inclusion of this language, as well.

If you have any questions concerning this memorandum, the Region should contact the Division of Advice.

/s/
R.A.S.

cc: NLRBU
Release to the Public
MEMORANDUM OM 02-43

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