While not accomplishing its goal of truncating union election campaign periods to 10 days, on Thursday, Dec. 22, 2011, the National Labor Relations Board (NLRB) is expected to issue amendments to its election rules that pose significant consequences for non-union employers. The Board is expected to issue the following major changes:
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A summary and links to the complete final rules are available at: www.nlrb.gov/news/board-adopts-amendments-election-case-procedures.
These changes pose a number of obstacles for employers facing union organizing drives. For starters, the fact that a pre-election hearing no longer delays the date of an election means that an employer will have to both campaign and prepare for what amounts to a trial at the same time. Thus, resources and time that previously could be dedicated solely to preparing for a hearing now will have to be spent on getting the company's campaign launched as quickly and efficiently as possible. Companies also will have to carefully evaluate which of their employees constitute "supervisors" under the National Labor Relations Act very early on (ideally before a petition for an election is ever filed) due to the fact the NLRB will not rule on this issue until after an election. Ensuring all supervisors are well-trained on the "dos and don'ts" of labor law as early as possible will be key because any unfair labor practices committed by a "supervisor" during a campaign can be imputed to the company and result in overturned election results or other penalties. Moreover, employers who receive unfavorable election rulings from a Regional Director will have limited avenues of relief because the NLRB may decline to even consider an arguably incorrect determination by a Region.
These are just a few of the numerous problems companies may encounter as the new rules are interpreted and implemented. The rules, however, will not take effect until April 2012 at the earliest, as legal challenges already have been filed.
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