Deck the Halls With NLRB Postings: Board to Require Employers to Notify Workers of Their Right to Unionize

Although the Employee Free Choice Act remains a lame duck, the National Labor Relations Board (NLRB) is now using its rule-making powers to create pro-union regulations. The NLRB is proposing new regulations requiring employers to notify employees of their rights under the National Labor Relations Act (NLRA), including their right to organize.

On December 21, 2010, the board submitted to the Federal Register a Notice of Proposed Rulemaking. As the notice states, the board "believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute and to promote statutory compliance by employers and unions."

The notice goes on to state that "[p]rivate-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by e-mail or other electronic means, the notice would be posted electronically as well."

In deciding to create this rule, the board noted that "similar postings are already required under the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, among other workplace laws." Although the form and content of the employee rights notice has not yet been determined, the notices will likely mirror those recently finalized by the U.S. Department of Labor for federal contractors. The federal contractors' notices state 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 choose not to do any of these activities. The contractor notices also provide examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Unions will surely be emboldened by the board's new rule, and it may spark an up-tick in union organizing drives. Thus, it is increasingly important for employers to focus on positive-employee relations and supervisory trainings. The best way to remain union-free is to ensure that your frontline supervisors are treating employees fairly.