The National Labor Relations Board (“NLRB”) has determined that employees are not aware of their collective bargaining rights. In the face of a stinging dissent from one of its own members who detailed the absence of any authority for the NLRB’s action, the NLRB issued a Final Rule on August 25 requiring most employers, whether or not unionized, to post an NLRB notice advising employees of their rights under the National Labor Relations Act.

The notice advises employees of their right to bargain collectively, discuss the terms and conditions of employment with co-workers, take action with co-workers to improve working conditions by complaining directly to the employer or to the government, strike, picket, or “choose not to do any of these activities”. The notice lists examples of unlawful employer conduct and instructs employees how to file an unfair labor practice charge with the NLRB.

Copies of the notice are available on the NLRB website, and must be posted by November 14, 2011. The notice must be posted “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees.” This includes employer intranet and internet sites if personnel rules and policies are regularly posted on such sites. The notice must also be posted in each relevant foreign language if 20 percent or more of the workforce is not proficient in English.

Violations of the posting requirement will be deemed an unfair labor practice, a result which the dissenting NLRB member calls “arbitrary and capricious”. The failure can also be used to toll the six month statute of limitations for filing charges with the NLRB, and to support any other charge. There are no direct monetary penalties for violations.

The NLRB denies that the Rule is intended to increase union membership. However, the NLRB cited the “comparatively small percentage of private sector employees who are represented by a union” as support for the need for the Rule. Unionized or not, employers should provide training and guidance for management and supervisory personnel so they are prepared to provide legal and appropriate responses to employee inquiries and complaints.