A slim two-member majority on the National Labor Relations Board turns despotic as it moves to force a “quickie election” rule

The two remaining Democrats on the National Labor Relations Board are prepared to flout long-standing processes , traditions , and legal requirements for Board deliberations in order to force a “quickie election” rule on workers, employers, and their lone Republican colleague Brian Hayes.  Board Member Hayes should carefully consider whether or not to protect the institutional integrity of the Board by participating. 

On November 10, Hayes was informed by the current Board Chairman Mark Pearce that Pearce and Board Member Craig Becker plan to issue a final quickie election rule before Becker’s term ends next month. If Mr. Hayes does not have sufficient time to review and consider the rule and write a dissent, should that be his decision, so be it.  Hayes reported these and other actions in an unusual November 18 letter to Congressman John Kline, Chairman of the House Education and Workforce Committee.  

The majority’s extraordinary action contradicts 60 years of Board practice. Historically, the Board will not issue a major decision without the affirmative vote of three members of a Board. The Board has five members at full strength—three from the President’s party and two from the opposing party.  This wise practice has always promoted thoughtful analysis by encouraging dialogue among members with differing views.  

Unfortunately, the current Board is not interested in dialogue or differing views. Instead, this Board is bent on stacking the deck in favor of organized labor without regard to the facts or the law. This was amply demonstrated when they crafted the quickie election rule; the Democratic majority did so in secret.  

According to Hayes, his colleagues’ “exclusionary and adversarial” process continues.  “They are drafting a final rule with responses to comments filed without my participation or input. [I have] no indication of what portions of the 185-page proposed rule my colleagues intend to include, exclude, modify or add to their draft of the final rule.” 

Hayes’ letter was not unprovoked.  It was in response to a letter sent to Rep. Kline on behalf of the Board that claimed the Board’s time-line for issuing a quickie election rule was “unknown.”  In fact, the time-line was disclosed to Hayes that day.  

The majority’s letter also disingenuously claimed that while Hayes has been locked out of the agency’s deliberations and has not seen the majority’s final rule, he “will have adequate time to review a draft of the final rule and decide whether to approve it, propose modifications or offer a dissent.”  With an unusual public vote scheduled by the majority for November 30, that is well nigh impossible. 

This will be the first time in Board’s history that a minority Board member has been treated in such an arbitrary, capricious manner. As pointed out by Board Member Hayes in his letter, it also “contravenes the Board’s own internal rules regarding the circulation and issuance of dissenting opinions.” The rule referred to gives members 90 days to circulate a dissent.  Dissents are no small matter.  They are critically important for a reviewing court as they can draw attention to facts the majority may have minimized or passed over and often provide a decidedly different view of the law. 

The Supreme Court has said that the Board’s enabling statute, the National Labor Relations Act, “is wholly neutral on the question of unionization.” Nevertheless, former Democratic Chairman Wilma Liebman thinks otherwise.  Liebman told a surprised gathering of business representatives that the Board is not required to be neutral on the question of unionization.  

It should come as no real surprise then that a Board that views itself as untethered by the law that created it should feel free to try to dismantle long-standing Board processes and procedures that were honored and enforced by Boards appointed by Democrat and Republican presidents alike.  

The Obama Board has consistently demonstrated union partisanship, marginalizing the Board in the eyes of the Congress and those it protects and regulates.  The two remaining Democrats now threaten to permanently undermine the institutional integrity of the Board and its operations.  In a rush to deliver more favors for organized labor, Pearce and Becker are moving to abandon the agency’s critically important restraints on arbitrary Board action.  

Try as they might on November 30, this partisan majority will be unable to conceal their motives behind the false face of lofty rhetoric.  Board member Hayes should carefully consider whether to protect the institutional integrity of the Board – and the law’s requirement that the Board, not just a Board majority, deliberate – he should decline to participate or cast a vote.  

Peter Schaumber is a former Chairman of the NLRB