On October 5, the National Labor Relations Board (“NLRB”) announced that companies within its jurisdiction now have until January 31, 2012 to post a poster explaining to employees their rights to form and join a union. Therefore, companies now have more time to take the necessary steps in response. As we previously reported, the NLRB ordered the posting of an 11” x 17” poster, larger than all of the other posters federal and state government agencies require to be posted. The poster has many pro-union statements and many companies do not believe that the language of the poster is properly balanced. More importantly, employees reading the poster will have many questions about their rights. Therefore, companies need to take this posting as an opportunity to respond to employees’ questions and to explain the company’s position regarding unions. A supervisor’s response that he “does not care” or “don’t ask me” is not sufficient.  

Some consultants are recommending that companies post a counterposter and engage in an anti-union campaign. However, we recommend a two-step process. First, companies need to analyze their vulnerability to a union campaign and, second, depending upon the analysis, companies should take a number of actions in response to the poster. These actions include training supervisors on how to respond to employees’ comments and questions, drafting and implementing employment policies, ensuring that they have an issuefree workplace and, only if necessary, implementing an anti-union/procompany campaign. In our experience, a union vulnerability analysis also leads to an analysis of general working conditions and may decrease the likelihood that employees will sue the company for other reasons, such as discrimination, harassment and failure to pay overtime.

Reacting to the NLRB’s requirement, companies are asking whether they have to post the poster and the penalty if they refrain. First, the NLRB asserts jurisdiction based upon a company’s gross revenues and economic activities across interstate boundaries, rather than the number of employees. For non-retail, production and warehouse businesses, the NLRB asserts jurisdiction when their annual business across state lines exceeds $50,000. For retail businesses and construction companies, the NLRB asserts jurisdiction when their gross annual revenues exceed $500,000. More importantly, unions represent any group of employees it wants. These groups – or “units” – may consist only of a company’s two customer service representatives, two warehouse workers or two secretaries. And, under NLRB’s laws, a company may have to bargain with different unions representing different units of employees in the same facility.  

Second, ignoring or refusing to comply with the requirement may prove difficult. National companies that publish the state and federal posters have already begun to sell the large, laminated posters which include the NLRB’s poster. If a company uses a laminated poster without the NLRB’s poster, the separate NLRB poster will appear more prominently to the employees. In addition, the risk of not posting the poster is potentially high. For example, the NLRB has one of the shortest statute of limitations; employees and unions have just 180 days to file an unfair labor practice charge. However, if the company has not posted the poster, the NLRB may extend the statute of limitations and allow a case to proceed. Therefore, companies need to consider the risks and use the NLRB’s requirement as an opportunity to analyze and, where necessary, improve working conditions and avoid union organizing attempts.