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An Unfortunate Spectacle at the NLRB



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The ranking Democratic member of the House Education and Workforce Committee, Rep. George Miller, is a man of integrity. So is Brian Hayes, the sole Republican member of the National Labor Relations Board. But Miller’s recent statement that Hayes was “threatening to shut down the Board if fellow Members make policy choices with which he disagrees” has unfairly maligned Hayes. Representative Miller’s statement was made with insufficient knowledge of the facts and NLRB processes and procedures.

The issue is a “quickie election” rule that was proposed by the board’s three-member majority last June to reduce the time for a union election to as little as 10 to 14 days. But the proposed rule is a solution in search of a problem: The board conducts workplace elections in a median time of 38 days — a remarkably timely record. Although the majority cited “delay” as the reason for these dramatic changes, they did not define when “delay” occurs or otherwise justify the changes they were proposing.

Such a quickie election rule, if adopted, would achieve a goal long sought by organized labor: to limit, if not eliminate, an employer’s ability to express its views on unionization to its employees, and its employees’ right to hear those views and make an informed choice. The only story the employee would hear is the union story.

If Hayes told Chairman Mark Pearce that he “could” resign, it was to protect the institutional integrity of the board. Hayes undoubtedly had learned that the now two-member Democratic majority intended to adopt a “quickie election” rule without a third member in the majority. This would contravene procedures that have been honored and enforced for 64 years by boards controlled by Democrats and Republicans alike. Such a final rule would be adopted before agency staff could complete their review of just under 67,000 public comments — and, most significantly, without deliberating with Hayes over the content of the rule it intends to adopt. By announcing a public vote on a yet undisclosed rule, the majority was seeking to force a Hayes vote, with the apparent view of violating a written board procedure that requires every sitting board member to sign off on all published board decisions either by joining the majority, writing a dissent, or otherwise authorizing its issuance.

Dissenting opinions are an integral part of the board’s deliberative process. Once a dissent circulates, the majority responds. The dialogue continues until each opinion is fully developed or one side abandons all or part of its position and the two sides resolve the issue. The majority is seeking to eliminate this deliberative process in order to adopt a “quickie election” rule before NLRB member Craig Becker’s term ends in a few weeks.

One thing is certain: To date, there have been no board deliberations on this rule. The hearing scheduled for tomorrow, November 30, is the first face-to-face board deliberation on a “quickie election” rule since the Democrats took control of the board over 17 months ago. It was hurriedly noticed by the board majority after reading a copy of Hayes’s letter to House committee chairman Rep. John Kline, but before he sent it. Hayes’s letter complained about the lack of board deliberations and the majority’s intent to dictate a final rule. By sharing his letter in advance, Hayes was obviously reaching out to his colleagues in an effort to reach an accord. His colleagues’ response: they immediately noticed a last-minute first “deliberation” and vote on a final proposed rule — the content of which they had not yet disclosed — and then authored a disingenuous, misleading public letter to Hayes. #more#

In light of these developments, Hayes will undoubtedly participate tomorrow. It is standard practice, however, for a dissenting board member “to reserve” casting a vote pending receipt of the majority’s written decision. An outline of the majority’s proposed final rule was only just released this afternoon, 24 hours before the public vote, but — as members have consistently done in the past — Hayes will wait for majority’s final written rule and the accompanying decision supporting it. He can then study it, pose questions to the majority members and their staffs responsible for the decision, and then determine his vote.

The unfortunate spectacle we are witnessing at the NLRB is the result of appointing members to the board who ignore their legal obligation to be neutral on the question of unionization. Instead, they perceive their role as serving a constituency and believe that the ends justify the means — however unwise or imprudent. They are not concerned that they will leave an agency permanently deprived of its legitimate processes. Congress should immediately revisit the processes used to select members of the NLRB to ensure that America is served by a non-partisan board that understands its legal mandate and is committed to act fairly and in the full spirit of the law.

— Peter Schaumber is a former chairman of the National Labor Relations Board.



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