I have heard that there is a new rule that requires me to put up a poster to inform my employees of their right to form a union. Is this true?


As you are aware, various laws require employers to post workplace notices, such as a minimum wage notice, the applicable Industrial Welfare Commission Wage Order and a Workplace Safety Notice, to name a few. Currently there is no requirement for employers to notify employees of their rights under the National Labor Relations Act (NLRA), including the right to form a union. However, on December 22, 2010, the National Labor Relations Board (NLRB) announced a proposed rule that would require union and non-union employers who are subject to the NLRA to post a new notice.

The NLRB is an independent federal agency that safeguards employees’ rights to organize under the NLRA. The NLRA applies to most private-sector workplaces, but does not apply to agricultural employees, domestic employees, and federal, state or local government workers. The NLRB is proposing this mandatory poster “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.” NLRB Member Brian Hayes dissented from the issuance of the rule that would require the notice because he believes the NLRB lacks the statutory authority to promulgate or enforce a rule that will require posting the proposed notice.

If the proposed notice is mandated, private-sector employers whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It 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 choose not to do 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.

The notice will be available from the NLRB’s regional offices and available by download from the NLRB website. If an employer communicates with employees primarily by email or other electronic means, the notice would have to be posted electronically as well. Translated versions would be available for workplaces where a significant number of employees are not proficient in English.

The proposed rule does not impose any record-keeping or reporting requirements on employers; it merely requires posting of the notice. Failure to post the notice would constitute an unfair labor practice and toll the statute of limitations for filing an unfair labor practice charge. The NLRB investigates allegations of unfair labor practices made by employees, unions, employers, or other persons. In addition, if an employer knowingly fails to post the notice, the failure could be considered as evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. Note that at present, this is only a proposed rule, and employers are not required to post the notice unless and until the NLRB issues a final rule requiring the posting of the notice.

More information about the proposed rule and the notice is available at
The public is invited to provide comments on the proposed rule and notice until February 22, 2011, including whether it thinks the NLRB has the power to issue such a rule requiring the posting of the notice. Comments should be submitted either electronically to, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. To read the entire proposed rule, go to

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