In a somewhat surprising, but possibly strategic move, the National Labor Relations Board (the “Board”) announced on October 5, 2011 that it would postpone until January 31, 2012 implementation of its new rule requiring nearly all private sector employers to post an 11” x 17” poster of employee rights under the National Labor Relations Act. This new poster requirement, which was reported in our September e-alert, has already been challenged in two federal court lawsuits, and there are efforts in Congress to block its implementation by denying funding to the Board for that purpose.

The Board stated in its announcement that it had decided to delay the poster requirement by more than two months “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” This action was taken with the concurrence of Member Brian E. Hayes, who dissented from the Board’s original decision to proceed with the new rule, and reflects his agreement of the postponement of the new rule.

Meanwhile, Congress is moving forward with legislation that would further delay or prohibit implementation of the new rule. Rep. Scott DesJarlais (R. Tenn) has introduced H.R. 2854, the Employer Free Choice Act, which would repeal outright the Board’s new poster rule. Rep. Benjamin Quayle (R. Ariz.) has introduced H.R. 2833, the Employee Workplace Freedom Act, which would also repeal the Board’s new poster rule. Sen. John Thune (R-S.D.) introduced S.1666 on October 6th that would prohibit the Board from implementing the poster requirement. Finally, through the budget process, Congress is considering amendments by members that would cut the Board’s budget by about 17% or more, specifically preventing it from enforcing the poster rule, addressing the Boeing Co. Complaint issue, and even a proposal to abolish the Board.

On the judicial front, the Board faces lawsuits in Washington, D.C. and South Carolina. The National Association of Manufacturers and the Coalition for a Democratic Workplace filed suit in the U.S. District Court for the District of Columbia (National Association of Manufacturers v. NLRB, D.D.C., No. 11-CV-1629, 9/12/11). One week later, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Businesses filed a second suit (National Right to Work Legal Defense & Education Foundation Inc. v. NLRB, D.D.C., No. 11-1683, 9/19/11).  These cases have been consolidated before District Judge Amy Berman Jackson, who has scheduled a hearing in the cases on December 19, 2011. And, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed suit in South Carolina(Chamber of Commerce of the United States v. NLRB, D.S.C., No. 11-2516, 9/20/11). As of this writing, a hearing has not been scheduled in the South Carolina case.

All of this points to an interesting and contentious time for the Board, employers, and employees. Stay tuned.