During oral argument in a lawsuit challenging the National Labor Relations Board’s notice posting rule, presiding judge Amy Berman Jackson of the U.S. District Court for the D.C. Circuit suggested that the agency postpone the rule’s January 31, 2012 implementation date. The rule at issue – Notification of Employee Rights under the National Labor Relations Act – mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. Notably, the rule permits the NLRB to toll the six-month statute of limitations period for filing a ULP complaint if the employer fails to post the required notice. Moreover, the rule allows the NLRB to deem the failure to post the notice evidence of anti-union animus in a case where such an allegation is raised.

The consolidated lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Fund Inc. (NRTW) alleges that the agency overstepped its statutory authority and ignored congressional intent in promulgating the rule. In a press release, NAM reports that at the December 19 hearing Judge Berman Jackson “acknowledged the complexities of the issues presented in the case and again encouraged the Board attorneys to discuss delaying implementation of the rule until the court has reached an opinion.” A similar lawsuit contesting the NLRB rule has been filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce.

Several bills also have been introduced to rescind this posting rule, although to date, none have advanced.

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