As discussed in the Employer Alerts issued August 30 and October 6, 2011 and January 4, 2012, the National Labor Relations Board (NLRB) issued a rule requiring essentially all private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The rule also provides sanctions for failing to post the notice including making the failure an unfair labor practice and tolling the six-month statute of limitation for filing an unfair labor practice charge where an employer failed to post the notice. The rule originally required employers to post the notice on November 14, 2011, but that implementation date was extended to January 31, 2012, and then to April 30, 2012 based on pending litigation.

On Friday, March 2, 2012, the U.S. District Court for the District of Columbia issued a decision in response to a legal challenge to the notice posting rule filed by the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW), two trade associations representing employers. The decision splits the rule into two portions, (1) the posting requirement, and (2) the potential sanctions for failing to post.

The court found that the NLRB was within its “broad rulemaking authority” to require the posting. Finding that the NLRA provided the NLRB with the “authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of [the NLRA],” the court held that the NLRB was acting within its powers in mandating the posting as a way to ensure that employees are aware of their rights under the NLRA. The court also found that the requirement was not arbitrary or capricious.