In December 2010, we notified you that the National Labor Relations Board (Board) had issued a proposed rule that would require employers that are subject to the National Labor Relations Act (Act) to post notices informing their employees of their rights under the Act. In response to this proposed rule, Baker & Daniels submitted comments to the Board in which it highlighted numerous reasons why the proposed rule was faulty and should not be enacted.

Nonetheless, in spite of the rule's numerous flaws, a Board majority consisting of Chairwoman Wilma Liebman and Members Craig Becker and Mark Pearce (all of whom are former union lawyers) has now finalized the notice posting rule, which will require employers to post an employee labor rights notice where it typically posts other workplace notices. Additionally, if an employer typically posts employee notices regarding personnel rules or policies on an intranet or internet site, it will be required to post the Board's notice on those sites as well. (To read the full 194-page final rule, click here.)

The notice, which mirrors the one the U.S. Department of Labor requires federal contractors to post, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. Employers subject to the Act must post this notice, which can be obtained on the Board's website (www.nlrb.gov) by November 14, 2011.

In enacting this rule, the Board stated that it "believes that many employees protected by the [Act] are unaware of their rights under the statute and that the rule will increase knowledge of the [Act] among employees, in order to better enable the exercise of rights under the statute." It commented further that "[a] beneficial side effect may well be the promotion of statutory compliance by employers and unions." In explaining the reasoning behind this final rule, the Board specifically addressed and, predictably, disagreed with comments submitted in opposition to the rule by Baker & Daniels.

Unions will surely be emboldened by the Board's new rule, and it will likely spark an increase in union organizing. Thus, to remain union free, it is increasingly important for employers to focus on positive-employee relations and supervisory training. In addition, employers who wish to inform employees of the employer's belief that unionization is not in employees' best interests should consider posting a non-coercive notice near the required notice informing employees of the employer's position in this regard. Employers should consult with counsel before posting any such notice.