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March 13, 2012

NLRB Workers' Rights Posting Requirement Lawful

As we previously advised, the National Labor Relations Board (“NLRB”) adopted a rule requiring all employers covered by the National Labor Relations Act (“NLRA”), regardless of union status, to conspicuously post a notice of employee rights under the NLRA beginning April 30, 2012.  The notice provides information to employees about the right to organize a union, bargain collectively, and engage in protected concerted activity – as well as the right to refrain from such activity.  Our Client Alerts regarding the adoption of this rule are available here, here and here.  A copy of the notice is available on the NLRB’s website, at

The NLRB’s initial rule included penalties for noncompliance with the rule, including considering the failure to post the notice as an independent unfair labor practice and tolling the statute of limitations to file unfair labor practice charges for acts allegedly committed during the period in which an employer failed to post the notice.

However, on March 2, 2012, a federal district court judge ruled that while the NLRB does have the authority to require all employers covered by the NLRA to post the notice, the NLRB exceeded its authority in promulgating the unfair labor practice and tolling provisions.  National Association of Manufacturers v. NLRB, No. 11-1629 (D.D.C. Mar. 2, 2012).  It should be noted that while failure to post the notice is not a per se unfair labor practice it may still be viewed as evidence of anti-union animus.  The National Association of Manufacturers has appealed this decision.  Another challenge to this NLRB posting rule is still pending in the U.S. District Court in South Carolina.

As it now stands, beginning April 30, 2012 all employers – including non-union employers – covered by the NLRA must comply with the NLRB notice posting rules.  We will keep you apprised of developments.  Please do not hesitate to contact us with any questions.