In a matter that continues to evolve, the National Labor Relations Board has announced postponement of the implementation date for the posting of its controversial National Labor Relations Act Employee Rights Poster. Originally — as reported in our September 16 Newsletter — all covered employers were to post this Poster by November 14, 2011. However, the NLRB has now announced a new posting date of January 31, 2012. (This postponement does not impact the duty to post a NLRA Rights Poster on ARRA projects imposed by Executive Order 13496.)

While the NLRB claims the delay is necessary to allow “enhanced education and outreach to employers, particularly those who operate small and medium sized businesses,” it is more likely a response to a lawsuit brought by the National Association of Manufacturers (NAM) against the NLRB. The NAM lawsuit seeks to enjoin the posting requirement and have it declared unlawful. In the hearing on NAM’s Motion for an Injunction, the presiding judge asked the NLRB to “voluntarily” delay the posting date to give him sufficient time to review the parties’ arguments. The NLRB announced its postponement shortly thereafter. A further hearing is scheduled for mid-December to decide whether the posting requirement is lawful. It is possible that the January 31 implementation date may be postponed again if the judge has not decided the pending motions by that date.

As a practical matter, if and when the posting is required, an employer can avoid having its employees misunderstand the posting as an endorsement of unionism by displaying or circulating its opinion that it is “not a union employer” and that “the employer intends to lawfully maintain its non-union status.” Before communicating this or a similar message, the employer should consult with its counsel for an opinion regarding the legality of these messages.