Card Checks and Balances

Since the demise of the Employee Free Choice Act (or “card check bill”) following the 2010 midterm election, the Obama Administration has increasingly pushed labor-management relations policy through the executive branch. Throughout 2011, the National Labor Relations Board (NLRB) issued significant case decisions and substantive regulations.

One of these recent NLRB actions is its election case procedures rule, which was published on Dec. 22, 2011, and is not-so-affectionately known as the “quick election” or “ambush election” rule. The final quick election rule is a narrower version of the proposed rule released in June 2011, but it intends to shorten the time to as few as 18-19 days by which employers can respond to representation petitions. The rule is scheduled to take effect on April 30, 2012.

Specifically, the quick election rule will shorten the timeframe prior to union elections by limiting to only petition questions the issues considered at a pre-election hearing. Thus, the rule will allow NLRB hearing officers to defer representational disputes, including the eligibility of voters, until after the election is held. Board officials may regularly rule on which employees – including supervisors – are eligible to vote after an election.

If it seems odd to you that a government agency would decide which voters’ votes will count once the election is over, SHRM agrees with you. It gives the board – whether it is Democratic- or Republican-controlled – too much power to manipulate representation election results.

Most importantly, the quick election rule’s goal of intending to reduce time prior to a union election is unnecessary. A recent NLRB annual report revealed that the median time from a representation petition to an election was 38 days in Fiscal Year 2010. This reasonable 38-day average period currently gives employees ample time to hear both the union and employer perspectives on collective bargaining leading up to a representation election. The quick election rule will prevent employees from receiving information they need to make the most informed decision on a union.

Key members of Congress are working to repeal the NLRB’s quick election rule before it takes effect. Former HR professional and SHRM member Sen. Mike Enzi (R-WY) and Rep. Phil Gingrey (R-GA) introduced Senate Joint Resolution 36 and House Joint Resolution 103, respectively, on Feb. 16. If adopted, these joint resolutions would nullify the quick election rule.

The resolutions are based on the Congressional Review Act of 1996 (CRA), which allows the Senate and House to consider a joint resolution of disapproval that can stop a federal agency from implementing a rule or regulation. Such a CRA resolution needs only a simple majority (51 votes) to pass the Senate if acted upon within 60 legislative days, beginning in this case when Congress officially received the rule on Feb. 3 (in other words, by roughly the end of May). If the CRA resolution passed both the House and Senate and is not vetoed by President Obama, the NLRB’s quick election rule would be repealed. And our system of checks and balances hums along nicely.

SHRM supports the Enzi/Gingrey resolution to ensure employees aren’t rushed to make a union decision. About 200 SHRM members will be on Capitol Hill this week lobbying members of Congress to support the resolution this week.

If you are a SHRM member, you can tell your members of Congress that you support the resolution too by clicking here.