At a time when union membership continues to decline, the National Labor Relations Board has proposed a Rule that takes aim at the vast majority of American workers who remain non-union.

The Rule is called “Proposed Rules Governing Notification of Employee Rights Under the National Labor Relations Act” (the “Rule”). The Rule would require most private employers to post a Notice “in conspicuous places” where notices to employees are customarily posted. Employers are required to post the notice in English, unless a significant number of its employees use a language which is not English, in which case notice must additionally be given in the other language.

The requirement to post a Notice applies to most private sector employers, but excludes agricultural, railroad, and airline employees, and some very small employers whose business volume is so slight that they do not affect interstate commerce.

What the Notice Says

The required Notice explains, in part, that employees have the right to select a union to negotiate with their employer on their behalf; to discuss wages and benefits with co-workers or a union; to raise workrelated complaints with their employers; to strike and picket; or to choose to do none of those activities.

The Notice explains that it is unlawful for an employer to engage in certain activity, such as restricting employees’ ability, on their own time, to discuss wages, hours and working conditions with their fellow co-workers; to threaten employees with discipline for engaging in the protected activities stated above; to question employees about their union sympathies or their communication with other workers about work-related matters; or to engage in other like activity.

Effective Date

The Rule was initially slated to take effect on November 14, 2011. Recently, the Board extended the time for posting until January 31, 2012. In the press release announcing the extension, the NLRB noted that it had received questions from businesses and trade organizations, which indicate uncertainty about which businesses fall under the Board’s jurisdiction.

Business groups have filed lawsuits to prevent the new Rule from ever going into effect. The National Association of Manufacturers and the National Right to Work Legal Defense and Education Fund, among others, have asked the federal court in Washington D.C. to prevent the NLRB from implementing the Rule. A hearing on the case is schedule for December 19, 2011. The Chamber of Commerce has filed a similar lawsuit in South Carolina.