As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011, at which time employers would have been required to post written notices consistent with the rule. However, in October 2011, the NLRB announced its decision to postpone the implementation date for the notice until January 31, 2012. Since that time, the legal challenges to the rule having continued. The federal judge hearing arguments on the matter in Washington, D.C. last month told the board attorneys that either the effective date would have to be further extended, or she would enjoin the NLRB from implementing it, as she needed more time to consider the briefs and oral arguments presented by both sides in the case.

On December 23, 2011, the NLRB agreed to postpone the effective date of the notice-posting to April 30, 2012. The Board stated that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in a parallel action challenging the rule. In October 2011, Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office stated that the Board’s initial postponement of implementation would “permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions for an unfair labor practice under the NLRA and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may extend the time within which employees may file ULP charges against that employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule, and a link to the preamble that summarizes the provisions of the final rule. Employers should also know that along with the obligation to post the rule will come the right to post a notice to employees of their right to choose not to unionize – however, wording of such a notice should be discussed and cleared with legal counsel prior to posting it.