NLRB on the Brink

This Wednesday, the National Labor Relations board is scheduled to vote on a controversial proposed rule to streamline and accelerate the union election process.  The Board is acting now  because it could lose a quorum  when the recess appointment of Craig Becker expires at the end of the year.  Only three of the NLRB’s five spots are filled, and (under New Process Steel v. NLRB) there must be three active board members to adopt a new rule.

NLRB Board Member Brian Hayes, the lone Republican currently on the Board, opposes the new rule and believes the Board is moving too quickly — and cutting procedural corners — to approve the new rule.  As he detailed in a letter to Rep. John Kline, Chairman of the House Committee on Education and the Workforce, Hayes claims he will not be allowed to review the rule and draft a proposed dissent before the rule is published and that this “would contravene longstanding board tradition and the Board’s own internal operating rules.”  According to Hayes, the Board traditionally allows a potentially dissenting member 90 days to review a rule or decision and draft a dissent prior to publication and only overturns existing case precedent (as this rule would) if at least three NLRB board members support the move.   NLRB Chairman Mark Pearce responded with a letter of his own alleging that Hayes’ account was “inaccurate and misleading.”  (Rep. George Miller (D-CA) added a letter of his own, requesting information from Hayes about his complaints and communications with outside parties.)

Last week, the NYT reported that Hayes could refuse to attend the NLRB’s meeting on Wednesday, or even resign, in order to deprive the majority of a quorum to adopt the rule.  (See also this WSJ editorial on the dispute and threat to resign.)  It’s unclear whether a failure to attend Wednesday’s meeting would be sufficient to stop the NLRB’s majority from going ahead with the new rule.  Resigning from the Board would do more than block this rule, however.  It would also prevent the Board from taking action on any matter whatsoever — something which will happen in any event when Becker’s recess appointment expires.

The NLRB is often the site of partisan infighting.  Democratic appointees tend to support unions and Republican appointees do not. Still, this level of partisan division — and mutual mistrust — seems worse than usual.  As GWU law professor Charles Craver told the NYT this was the worst he’d seen in 40 years — and the worst may be yet to come.  Stay tuned.