Business frets about lack of GOP member on labor board

Business groups are worried about the departure of the lone Republican on the National Labor Relations Board (NLRB), which has left Democrats with unified control ahead of President Obama’s second term.

Brian Hayes’s more than two-year stint at the labor board ended earlier this week, leaving the NLRB with three members who are all Democrats. 

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Hayes was a dissenting voice during his tenure, voting against many of the board’s decisions and once threatening to resign over a proposed regulation. Critics of the NLRB championed him for resisting an agenda at the board that they say has been tilted in favor of unions.

Amanda Wood, director of employment policy at the National Association of Manufacturers (NAM), said the business group wants “balance” on the board, which oversees union elections and labor practices.

“It’s not a Democrat-versus-Republican thing. It’s important to hear all sides of the argument when looking at these issues. … A fully functioning and balanced NLRB is key to issuing smart rules and thoughtful decisions,” Wood said. “We would encourage the administration to submit nominations as soon as they can.”

Other trade associations that have tracked the NLRB during the Obama administration agreed that Republican voices are needed.

“We would like to see the board properly constituted. Functionally, it allows a strident dissent to be issued on policies we disagree with,” said David French, senior vice president for government relations for the National Retail Federation (NRF).

The labor board will have at least three members — enough to form a quorum and issue decisions and regulations — until August 2013, when NLRB Chairman Mark Pearce’s term will end. President Obama recess-appointed the remaining two members, Democrats Sharon Block and Richard Griffin, earlier this year in January; both of their terms end in December 2013.

The NLRB is without a single GOP member because Terence Flynn — another Republican member who was recess-appointed, along with Block and Griffin — resigned earlier this year. He had allegedly leaked confidential information to others outside the agency but denied any wrongdoing.

Union officials say they, too, want a full labor board with five confirmed members and a confirmed general counsel. Lafe Solomon is acting general counsel for the agency at the moment.

“We want a fully confirmed board and general counsel in the tradition of the last quarter-century, with the majority going to the president’s party,” said Craig Becker, general counsel for the AFL-CIO and a former NLRB member who was recess-appointed by Obama. 

It’s not clear whether the Obama administration has plans to nominate new NLRB members. A White House spokesman said there were no personnel announcements to make at this time.

Traditionally, a group of new Democratic and Republican members are nominated together and sent to the Senate for confirmation.

“We think that this tradition should be carried out. That should include two Republicans,” Becker said.

With a functioning labor board as a high priority for unions, Obama made several controversial recess-appointments to the NLRB during his first term after nominations languished in the Senate.

But the president’s appointments of Block, Flynn and Griffin are being challenged in court by critics who argue the Senate was not in recess at the time. Some business lobbyists said they are holding off on making a major push for new NLRB nominees until those lawsuits are decided.

“We have been keeping our powder dry because we anticipate those court decisions will be coming down in the not-too-distant future,” French said.

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“Depending on how that shakes out, you might see some folks in the business community make a push to get a nominee on the board,” said Jim Plunkett, senior manager of labor law policy at the U.S. Chamber of Commerce. “We might be down to one board member.”

Becker, however, said the AFL-CIO is “fairly confident that the president’s authority will be upheld.” 

The Chamber, NAM and NRF and several other business groups have been party to lawsuits challenging NLRB decisions as well as the recess appointments.

In the meantime, business groups say Hayes’s voice of opposition will be missed at the NLRB. 

Hayes wrote a dissenting opinion regarding an NLRB regulation that required employers to display posters explaining workers’ rights to form a union. He also threatened to resign over another NLRB rule that would speed up union elections.

Many of the arguments from Hayes were used by NLRB critics in litigation and lobbying efforts on Capitol Hill. Both the poster and the election rule were struck down in court and are now making their way through the appeals process.

“In the poster case, Brian’s dissent formed the basis for proposed litigation. That’s not to say smart attorneys needed the dissent, but it does provide a bit of a road map to a potential challenge,” Plunkett said.

Becker, who served with Hayes on the NLRB, said it’s healthy to have opposing voices on the labor board.

“People are going to have strongly divergent views. We would expect them to express those views. … That’s what Brian did and that’s what we would expect any nominee to do,” Becker said. “That’s a healthy dialogue.”