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New NLRB Poster
You Must Now Tell Employees They Can Unionize

Beginning November 14, 2011, employers subject to the National Labor Relations Act ("NLRA") must post, "in conspicuous places where they are readily seen by employees," the Employee Rights under the National Labor Relations Act notice ("Notice") issued by the Board.  These rights include, but are not limited to, (1) the right to organize unions to negotiate with their employers regarding wages, hours, and other terms and conditions of employment, (2) to form, join and assist a union, (3) to bargain collectively with their employers, (4) to engage in other protected concerted activity and (5) to "[c]hoose not to do any of these activities, including joining or remaining a member of a union." 

The requirement applies to all retail flooring companies with over $500,000 in gross sales.  The posted Notice must be at least 11-by-17 inches in size, and in such format, type size and style as prescribed by the Board.  Covered employers will be required to post the Notice, in the same locations as other workplace notices.  The Notice must also be posted on an employer's internet or intranet site "if the employer customarily communicates with its employees about personnel rules or policies by such means."

The Board's stated intent in implementing this mandate is to inform employees of "their NLRA rights, together with Board contact information and information concerning basic enforcement procedures."  The Notice offers examples of unlawful employer and union conduct.  It also instructs employees who believe that their rights, or the rights of others, have been violated to "contact [the Board] promptly to protect" their rights or otherwise seek assistance.  Employers will be able to obtain the Notice from the Board, free of charge, both in hard copy and electronically from the Board's website at http://www.nlrb.gov.  Employers can also purchase and post a commercially available employee notice poster that consolidates various federally mandated postings into one poster.

If twenty percent or more of an employer's workforce is not proficient in English and speak another language, the employer must post the Notice in the language that employees speak.  If two or more groups constituting at least twenty percent of the workforce speak different languages, the employer has two options.  It may either post the Notice in each of those languages, or post the Notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the Notice in the appropriate language.  The Board will provide translations of the Notice upon request.  If the translation is not available from the Board, the employer will not be liable for non-compliance until the Notice becomes available in that language. 

Employers who do not comply with the requirements may face significant consequences.  For example, the Board may treat the failure to post the Notice as an independent unfair labor practice.  An employer's failure to post the Notice, according to the Final Rule, may also be found to "interfere with, restrain, or coerce employees in the exercise of rights guaranteed" under the NLRA.  The Board may consider a "knowing and willful refusal to comply" with this requirement "as evidence of unlawful motive in a case in which motive is an issue."  Failure to post the Notice may, under certain circumstances, result in tolling the six-month statute of limitations for the filing of an unfair labor practice charge, "unless the employee has received actual or constructive notice that the conduct complained of is unlawful."

Given the complexity of these issues, it is recommended that competent legal counsel be consulted to ensure that you meet all your obligations regarding employee notices.

Jeffrey King is a partner in the Washington, DC office of Crowell & Moring LLP.  Mr. King has more than thirty years of experience in complex litigation, with a focus on contracts, construction, antitrust, intellectual property and health care.  He serves as general counsel for WFCA and other trade associations, and is a LEED Accredited Professional.  For more information, contact Mr. King at 202.624.2745 or jking@crowell.com. 
Crowell & Moring is a full service law firm with offices in Washington, DC, Los Angles, San Francisco, Irvine, New York, London and Brussels.  Visit us at www.crowell.com.

Notice: The purpose of this alert is to review the latest developments which are of interest to clients of Crowell & Moring.  The information contained is abridged from legislation, court decisions, and administrative rulings and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

For more information on the legal issues affecting your business or other member benefits, go to  www.wfca-pro.org.