On August 30, 2011 the National Labor Relations Board (“NLRB” or “Board”) published a final rule in the Federal Register entitled “Notification of Employee Rights under the National Labor Relations Act” (“Act”).” See 75 Fed. Reg. 80411 (Aug. 30, 2011). Effective November 14, 2011 private sector employers subject to the jurisdiction of the Act are required to post a notice of employee rights (“Notice”) informing employees of their rights under the Act. The rule had been pending since December 2010 and was issued by a 3 to 1 vote with Board Member Brian Hayes dissenting. See 75 Fed. Reg. 80411, § IV.

In addition to listing several examples of unlawful behavior under the Act and providing instructions to employees on how to contact the NLRB with questions or possible violations of the Act, the Notice also affirmatively states that employees have the right to

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

• Form join or assist a union; bargain collectively through representatives of employees’ own choosing for a contract with their employer setting their wages, benefits, hours, and other working conditions.

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

• Take action with one or more co-workers to improve their working conditions by, among other means, raising work-related complaints directly with their employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Employers are required to post the Notice in conspicuous places where the Notice is readily seen by employees, including all places where notices to employees concerning rules or policies are customarily posted. In addition to the physical posting, the rule requires employers to post the notice electronically if personnel rules and policies are customarily posted in that manner.

Failure to post the Notice has its own liabilities for employers. It may result in a finding of an unfair labor practice charge under Section 8(a)(1) of the Act by interfering with, restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Failure to post may also lead to a tolling of the six-month statute of limitations for the filing of an unfair labor practice charge. Lastly, the Board may consider a knowing and willful refusal to comply with the requirements to post the Notice as evidence of unlawful motive in cases in which motive is an issue.

In the Board’s estimation this Notice will assist employees in exercising the rights afforded to them under the Act including the rights to organize and join a union. Others, including Board Member Hayes, suspect that the rule is simply a means to assist unions in increasing membership by making it easier to organize employees. In fact, Board Member Hayes in his dissent succinctly concluded

“[s]urely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 rights to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employers in the non-agricultural workforce.”

75 Fed. Reg. 80411, § IV. Nonetheless, it appears that the Board’s rule-making authority or lack thereof in this regard, as argued by opponents to the rule and Board Member Hayes, may come under review by the courts.