Labor board approves controversial union election rule in 2-1 vote

The National Labor Relations Board (NLRB) voted Wednesday to move forward with portions of a controversial union election rule after the board’s lone Republican member showed up to register his opposition.

The two Democratic members of the labor board, Chairman Mark Pearce and Craig Becker, voted to advance the proposal, while Brian Hayes, a Republican, voted no.

The wildcard of Wednesday’s vote was Hayes, who has threatened to resign over the union election rule. Speculation swirled this week that Hayes might torpedo Wednesday’s action by making good on his threat to quit or by simply refusing to participate. 

The labor board will now draft a final version of the rule and hold another vote on it.

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The NLRB proposal has attracted widespread attention in Washington and the business world. Labor unions say it would help reduce delays in union elections, but business groups argue it gives employers little time to talk to their employees about unionization before a vote takes place.

Hayes claims the Democrats on the NLRB have frozen him out of the deliberations over the union rule in a bid to rush it through by the end of the year.  

If Hayes resigned, it would effectively shut down the NLRB by denying it the three-member quorum required by a 2010 Supreme Court decision. It’s unclear, however, whether he can stop NLRB action by refusing to participate. 

Some former labor board officials said Hayes needed to at least offer a “no” vote and a dissent on the rule for it to go forward. Other former NLRB officials disagreed, arguing that nothing in the labor board’s statute would stop a rule going forward that has a two-member majority vote in a three-member board. 

During the public meeting before the vote, Hayes said he believes a major change in labor law, like the proposal, should not be issued without three affirmative votes from the labor board. Hayes said he considered resigning but rejected that option because the NLRB’s reputation would be “collateral damage.”

“My view remains this is a fundamentally flawed rule and is the product of the fundamentally flawed process,” Hayes said.

Both Pearce and Becker defended the rule and the process behind it, saying the NLRB has gone to great lengths to be open and transparent during the proposal’s consideration.

 Pearce also thanked Hayes for saying he wouldn’t resign and hoped they could continue to work together in the future.

Labor advocates cheered the NLRB for moving forward with the rule.

“Today’s vote is a step in the right direction toward giving more men and women a fair vote in the workplace to help rebalance our economy and rebuild the middle class,” said Kimberly Freeman Brown, executive director of American Rights at Work, a labor advocacy group, in a statement. “Cutting back on the excessive delays and litigation that plague the current system will be good for employers, employees and taxpayers who foot the bill.”

Business groups said that they will continue to keep close watch on the labor board.

“The amended proposal still looks like a solution in search of a problem, since unions already win a majority of elections, most issues are resolved by agreement and the vast majority of elections are held in a timely manner. With some members of the board still calling for ambush elections, employers will need to watch future NLRB nominations that much more closely,” said Glenn Spencer, executive director of the U.S. Chamber of Commerce’s Workforce Freedom Initiative.

The NLRB did not consider the full union election rule Wednesday, voting only on portions that would limit litigation surrounding union elections. 

The board did not vote on measures that could speed up union elections and share workers’ contact information with union organizers, among other changes. Those provisions are still under consideration for a future vote, according to the NLRB.

Time is short at the NLRB to move forward on the rule. Becker’s recess appointment expires at the end of the year, when Congress is expected to adjourn. That will bring the labor board down to two members, denying it a quorum. 

Senate Republicans are expected to block any new nominees to the board. 

The House passed legislation Wednesday from Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, that would block the NLRB’s union election rule. That bill is expected to die in the Senate.  

— Updated at 8:12 p.m.