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Mandatory Union Notices Delayed

January 26, 2012

Oregon Employers: Mandatory Union Notices Delayed Again Until April 30
By J.L. Wilson
Associated Oregon Industries
Oregon’s Largest Business Advocate

Late last year, AOI advised its members that they needed to comply with new National Labor Relations Board (NLRB) rules – slated to go into effect on January 31 – that requires nearly all employers in Oregon to post a notice of an employee’s right to unionize. The posting also lists a number of unlawful employer actions as well as contact information for the NLRB.

The regulation requires that all employers covered by the National Labor Relations Act conspicuously post the notice where other employment notices are customarily posted, as well as on a company “intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.”

This regulation has been delayed again – this time until April 30.

Why is the regulation so important?

AOI members should be advised that the potential penalties for failing to post the notice are significant. First, the very failure to post this new notice can, by itself, constitute an unfair labor practice according to the regulation.

Additionally, the Board may extend the Act’s six-month limitation period for the filing of any other unfair labor practice charge against an employer who fails to post, even if the failure to post has nothing whatsoever to do with that charge. Furthermore, a knowing and willful failure to post may be used as evidence of unlawful motive by the employer regarding any such charge.

These are very significant penalties. AOI members are advised to understand the new regulation and prepare for compliance.

The good news; however, is that the National Association of Manufacturers (NAM) has challenged the new rule in federal court. AOI, NAM, and a litany of other business groups believe that the NLRB is out-of-bounds and does not have authority under the law to issue such regulations.

For instance, the National Labor Relations Act only allows the NLRB to enforce notice postings for specific employers only in the event of a filing of representation or an unfair labor practice charge. It does not give broad authority to the NLRB to assert jurisdiction over any employer absent these events. You can see NAM’s legal challenge here.

Oral arguments in the case – NAM v. NLRB – were made in federal court on December 19. As a result of the pending lawsuit, Judge Amy Berman Jackson requested that the NLRB postpone implementation of the new rule until April 30.

A decision on this important case is expected soon.

AOI will continue to monitor these new regulations and court challenges and report to our members.

  
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