By Tim Devaney - 06/10/14 06:00 AM EDT
As the lone Republican on one of the most controversial National Labor Relations Boards (NLRB) in recent history, Brian Hayes has often been the last line of resistance to a board dominated by former labor union executives.
Hayes joined the NLRB just in time to see the agency’s top lawyer go after Boeing’s new airplane manufacturing plant in South Carolina, in a 2011 case that thrust the labor board into the national spotlight.
He also had a front-row seat to President Obama’s highly contested recess appointments in January 2012, which have since been invalidated by three federal appeals courts and are awaiting a final decision by the Supreme Court in the coming weeks.
For Hayes, now a lawyer at Ogletree Deakins in D.C., it frequently felt like the cards were stacked against him during his tenure on the board from June 2010 through December 2012. But through it all, he saw it as an opportunity to voice a “different view of the universe,” as he put it in a recent interview with The Hill.
“There needs to be another voice,” Hayes said. “It provokes people to think about the issue in a different way than the majority has laid it out. Although it was frustrating at times not being able to bring people to my point of view, it was also very rewarding to be in a position to be able to articulate a different view of the universe.”
The NLRB is a federal agency established in 1935 to enforce the National Labor Relations Act. In recent years, it has served as a lightning rod for rising political tension between Republicans and Democrats.
Hayes believes the divisiveness at the NLRB is a part of the bigger problems facing Washington these days.
“We couldn’t reach a middle ground or consensus on an awful lot of cases,” Hayes said. “I see that problem not only at the NLRB, but I also see it as I look around at other federal agencies and on the Hill in general.”
House Republicans accuse the NLRB of having become too political under the Obama administration and have used it as a rallying cry to motivate their conservative base. Hayes said the “pendulum” has swung further to the left than it swung to the right under the Bush administration.
“The push has been so hard from the other side that there are people who harbor an awful lot of ill will and think that if we get the majority back, we’ll be as equally tough on the other side,” he said.
Hayes believes this is part of a not-so-subtle effort to increase union membership, which has suffered a sharp decline over the last 30 years and is now near an all-time low.
In January, the Labor Department reported that there were 14.5 million union members, or about 11 percent of the U.S. workforce, in 2013. That’s down from 17.7 million members, or about 20 percent of the workforce in 1983, when the agency began counting such data.
Hayes said the NLRB Democrats are doing just about everything they can to reverse this trend and boost union membership numbers.
“But you can’t vote for people,” Hayes said. “At the end of the day, someone’s still got to go in and vote about whether they want to be represented or not, and that you cannot change.”
Hayes believes many of the NLRB’s policies over the last few years have been aimed at making it easier for unions to gain a foothold in more U.S. workplaces around the country.
One such example is the 2011 case of Specialty Healthcare, in which the NLRB decided that small groups of employees could organize multiple “micro-unions” at a single workplace. So at a restaurant, for instance, the waiters and waitress could have their own union, which would be separate from the cooks union and the busboys union.
Hayes called the rule “nuts,” because, if a union does not have enough support to organize a company, they could use this rule to organize the small sections of employees who do want to join.
“It’s like gerrymandering a congressional district,” Hayes said. “If you can pick your voters, you better be able to prevail.”
Hayes said such a rule would give these micro-unions less negotiating power and also encourage employees to stay at their current positions and never try to rise within the company as their career takes off.
But micro-unions are far from the only NLRB rule that got Hayes fired up.
In November 2011, he nearly resigned in an effort to stop the labor board from moving forward with a rule that would speed up union elections.
House Republicans dubbed it the “quickie election” rule because it would allow employees to vote on whether to form a union in a few as 10 days after a petition is filed with the agency. They said it would not give companies enough time to prepare for an election.
Currently, it takes the NLRB an average of 38 days to hold an election after a petition is filed.
“I don’t know of anything the government does with more efficiency,” Hayes quipped. “I mean, it is the thing that they do best. They do it in a timely fashion.”
When the NLRB’s two Democrats (Craig Becker and Mark Gaston Pearce) informed him they were moving forward with the rule before listening to his concerns, Hayes threatened to resign, which would have prevented the labor board from issuing any new rules.
At the time, the NLRB was operating with three board members, and the Supreme Court had previously decided that was the minimum required to decide cases.
So Hayes reasoned he could halt what he saw as an unfair rule-making process by leaving the NLRB. He was outnumbered, making it was one of the few cards up his sleeve.
But Hayes never followed through with the threat.
“I felt, in that particular instance, my colleagues were manipulating the rules,” Hayes said. “But were I to resign, I would be doing the same exact thing that I was accusing them of doing.”
Shortly thereafter, Obama recess-appointed three new board members — including Democrats Richard Griffin and Sharon Block, as well as Republican Terence Flynn — over the Senate’s Christmas break, even though some Republicans continued holding pro forma sessions to prevent such recess appointments.
Their terms were short-lived. One year later, a federal appeals court invalidated the recess appointments, and the Supreme Court is currently considering an appeal by the Obama administration. Hayes believes the Supreme Court will throw out the recess appointments and order the NLRB’s new board members to reissue as many as 1,300 decisions.
“They’re going to have to go back and be decided by almost an entirely new board,” he said.
Shortly after leaving the NLRB, Hayes took a job at Ogletree Deakins, where he practices employment and labor law. But beginning in December, he expects to be back in front of the NLRB, this time arguing cases as a private attorney.