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NLRB Issues Final Rule Requiring Employers To Post Notice of Union Organizing and Other Rights

Labor & Employment Law Update David B. Kern, Fred Gants

On Aug. 25, 2011, the National Labor Relations Board ("the Board") issued a final rule requiring the vast majority of private sector employers (whether they have unionized employees or not) to post a Notice advising employees of their rights under the National Labor Relations Act ("NLRA" or "the Act"). We previously issued an alert on the Board's proposed rule in December of 2010, NLRB Proposes Rule Requiring Employers To Post Notice of Union Organizing and Other Rights. The rule is scheduled to be published in the Federal Register on Aug. 30, 2011, and will take effect 75 days later, on Nov. 14, 2011. With minor changes, the Board adopted its earlier proposed rule in its entirety.

The Notice of rights, which must be at least 11 by 17 inches in size, can be obtained from the NLRB Regional Offices or can be downloaded from the Board's Web site and printed in color or black and white (the black and white option is one change in the final rule). Translated versions of the Notice will be available, and must be posted at workplaces where at least 20 percent of the employees are not proficient in English (another clarification in the final rule).

The Notice must be posted in conspicuous places, including "all places where notices to employees concerning personnel rules or policies are customarily posted." Employers who communicate electronically with their employees must distribute the Notice electronically as well. The Notice must be posted on an Internet or Intranet site if personnel rules and policies are customarily posted there. The electronic posting must be no less prominent than other personnel notices to employees, and may be either an exact copy of the poster, or a link to the Board's Web site that contains the poster. If a link is used, it must say: "Employee Rights under the National Labor Relations Act." However, under the final rule, employers are not required to distribute the Notice by email, Twitter or other electronic means. 

As we noted in our earlier update, the Board has openly stated that an underlying purpose of its rule is to remedy what they describe as a "knowledge gap" regarding employee rights under the NLRA. The relatively small number of unionized workers (approximately seven percent of private sector employees in the United States) is, in the Board's view, a direct result of this knowledge gap. As dissenting Board Member Brian Hayes has noted, the Board is effectively seeking to increase the percentage of union members by requiring the posting of this Notice.

The Notice itself details employee rights under the NLRA. Among other things, the Notice advises employees of their protected right to:

  • Discuss wages, benefits, and other terms and conditions of employment or union organizing with co-workers or a union;

  • Raise work-related complaints directly with their employer or with a government agency; 

  • Organize a union to negotiate with their employer concerning wages, hours and other terms and conditions of employment.           

The Notice goes on to advise employees that it is illegal for an employer to take certain actions against them, including:

  • Prohibiting employees from talking about or soliciting for a union during non-work time, such as before or after work or during break times; 

  • Prohibiting employees from distributing union literature on non-work time in non-work areas, such as parking lots or break rooms; 

  • Questioning employees about their union support;

  • Prohibiting employees from wearing union hats, buttons, t-shirts or pins in the workplace.

The Board's rule also contains stiff sanctions for failing to post the Notice. An employer who fails to post may be deemed to have committed an unfair labor practice in violation of Section 8(a)(1) of the Act, which prohibits employer actions that interfere with, restrain or coerce employees in the exercise of their rights under the Act. More significantly, the failure may extend the six-month statute of limitations for filing an unfair labor practice charge under the Act. If an employer knowingly fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case alleging other violations of the Act, where motive is an element of the case.

Board Member Brian Hayes, who dissented from the NLRB's earlier decision to grant the original rule-making petition, also has dissented from the final rule. He and many other commentators (the Board received more than 7,000 public comments on the proposed rule) have raised serious questions regarding the Board's authority to require such a posting under the National Labor Relations Act, and other aspects of the Board's rule-making effort. Therefore, we can expect litigation over the Board's right to issue this final rule before the November 14 effective date.

If you would like more comments regarding the Board's final rule, please contact David B. Kern at (414) 277-5653 / [email protected], Fred Gants at (608) 283-2618 / [email protected], or your Quarles & Brady LLP attorney.

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