Isn’t the refusal of the Board to resolve supervisory status before the election going to inhibit employer rights to campaign against the union because they will not be in a position to determine who their supervisors are?

As the Board noted in its revised rules, parties have never had an absolute right to have all eligibility or inclusion issues determined prior to an election.  Although parties had the right to raise and litigate such issues, the Board and reviewing courts had made clear that those issues did not always have to be resolved by the regional director or the Board.  In fact, it was not unusual for the resolution of those issues to be deferred to the post-election stage by regional directors and/or the Board before the enactment of the Board’s revised rules.  Even if the regional director and/or the Board decided eligibility or inclusion issues, those determinations were not final and were subject to be appealed to the Board or challenged in court.  Moreover, the Board’s resolution of those issues was usually made just a few days before the election or after the election and thus, near the end or after the election campaign period.

However, not all issues of eligibility or inclusion will be deferred to the post election stage under the Board’s revised rules.  There may be circumstances where the regional director may allow litigation over eligibility or inclusion issues even if the number of employees affected is less than 10% of the unit.  If the number exceeds the 10% threshold, those issues will normally be addressed at the pre-election stage. 

Hearing officers will also continue to explore stipulations on all issues, including those that may ordinarily not be litigated at the pre-election stage.  Nothing precludes the parties from discussing the facts relevant to supervisory status and reaching an agreement with respect to whether or not certain individuals are supervisors. Finally, the Board noted that in virtually every case, even where there is uncertainty concerning the supervisory status of individual employees, the employer nevertheless has in its employ managers and supervisors whose status is not disputed and is undisputable.  An employer may certainly choose to use those acknowledged supervisors to articulate its views during the campaign.