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5 Employer Takeaways from NLRB's New Rules

As of April 30th, 2012, the new NLRB procedures for union elections are in place. Dinsmore wrote about the details of these new rules last month (See Organized Labor’s Big Day). The issue now becomes what to do under this new world order. Employers no longer have the luxury of waiting until activity takes place to devise a plan - they must be more proactive. To make sure you’re prepared, we offer five simple but profoundly important actions to consider: 

1. Educate and Train Everyone 

Begin today by engaging in more frequent and detailed training of supervisors to be aware of union issues. Provide leadership training to supervisors that emphasizes behaving in a way that would not result in employee disaffection, such as lack of communication and lack of empowerment, which can create an environment that fosters union organizing. Also educate your organization’s Board of Directors and senior leadership about the impact of the new election procedures and impact of Specialty Healthcare (An NLRB decision allowing from organizing of small bargaining units. See NLRB’s New “Ambush Elections” Rule). Employers should also take a look at their workforces and define potential bargaining units under the new election procedures and Specialty Healthcare framework. 

2. Determine Supervisory Status 

Who is, and who is not, a supervisor as defined by the National Labor Relations Act in your organization? These people are your eyes, ears and voices in assessing vulnerability, understanding issues driving the activity and ultimately in educating employees in a 10-day campaign. 

3. Develop Processes and Protocols 

You must have a communications strategy and plan now and you should implement it as a normal course of business. This will assist in making sure it becomes a routine and can serve as a tool in your pre-emptive toolbox to minimize organizing vulnerability. Additionally, you must create protocols around communications , reporting of activity and responses to activity, and escalation up the chain to key decision makers. 

4. Analyze Your Organization

You should develop and implement a union vulnerability assessment and develop an action plan to address potential organizing issues. We also recommend you assess your union susceptibility through workplace audits, with or without the assistance of counsel. These audits should be incorporated into your organization’s annual business planning and strategy. 

5. Draft and Implement a Readiness Plan 

This should include the identification and creation of readiness response teams to mobilize in response to organizing activity. Under the new rules you will not have time to belatedly work through the details of a 42-day campaign. Instead you will need to have a campaign ready to launch when needed, knowing that a vote could occur as early as 10 days after a petition is filed. 

You may have already incorporated many of these suggestions into your business planning – but are they ingrained in your culture? For the aforementioned recommendations to be something other than fodder for discussion around a meeting table, these steps must become a part of your organizational culture and be tangibly supported from the top down. 

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume II, Number 132

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About this Author

Dinsmore’s Labor & Employment Practice Group is one of the largest in the region. The Group’s attorneys represent numerous public and private employers, including Fortune 500 companies, in matters throughout the country in all phases of employment law. We also assist national companies with respect to international labor and employment issues, as well as international companies with respect to their U.S. operations. Controversies that involve allegations of employment discrimination because of race, sex, religion, disability, national origin, veterans’ status, family...

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