As we previously reported to you, the National Labor Relations Board ("NLRB") issued a Final Rule last year that required private-sector employers to post an 11 x 17 inch notice informing employees of their right under the National Labor Relations Act ("NLRA") to unionize, among other rights under the NLRA.

The rule applies to the majority of private-sector employers, whether unionized or not, and requires employers to post the notice in a conspicuous place, as well as on internet or intranet sites if the employer customarily posts personnel rules and policies in that manner.

The original effective date of the rule, November 14, 2011, was initially postponed to January 31, 2012. However, two lawsuits have since been filed, both of which seek to have the NLRB's controversial rule invalidated all together. In response, the NLRB postponed the effective date a second time to April 30, 2012, in order to "facilitate the resolution of the legal challenges that have been filed with respect to the rule."

On March 2, 2012, in the first decision handed down, a federal district court judge in Washington D.C. ruled the notice posting requirement itself was, in fact, valid and enforceable.

However, the judge invalidated two "blanket" provisions in the rule that purported to permit the NLRB: (1) to deem failure to post the notice an unfair labor practice in all circumstances, and (2) to toll the statute of limitations for employee claims against employers who failed to post the notice. As to each provision, the judge held that the NLRB had exceeded its authority and that such determinations should be made based on the facts and circumstances of each individual case.

The plaintiff in the case, National Association of Manufacturers, immediately appealed the judge's decision, and also sought an injunction preventing the NLRB from enforcing its notice posting requirement while the appeal is pending.

The judge declined to grant the injunction noting that the effective date had already been postponed twice and that "if the Court of Appeals ultimately determines that the Board exceeded its authority in promulgating the Rule, the employer can take the notice down." The judge further found that "increased employee awareness" of rights under the NLRA did not amount to irreparable harm to employers. It is likely the NLRB will also cross-appeal the invalidation of the two provisions discussed above.

For now, employers must plan to comply with the NLRB's April 30, 2012 effective date for posting the notice, unless the appellate court takes action.

The notice is available for no cost at https://www.nlrb.gov/poster.