When we reported yesterday that the National Labor Relations Board announced it had scheduled a November 30th vote regarding “a small number” of the changes to its election procedures that the Board proposed back in June, we speculated that current Board dynamics might prevent the Board from adopting a wide range of the controversial measures included in the proposed rule.  Not so fast, it would seem…

In a letter sent yesterday by lone Republican Board Member Brian Hayes to Chairman John Kline (R-MN) of the House Committee on Education and the Workforce, Hayes expressed his serious concerns and more disconcerting circumstances than might have been anticipated:

My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  …  I was further advised that in the event I did not agree with the final R Case Rule, it would, nonetheless, be approved and published based on their two-member vote.  Moreover, if, as will necessarily be the case, I am not afforded the requisite opportunity to review and draft a dissent to the rule, I was advised that I would be limited to doing so after publication of the rule.  … [T]hese actions would contravene long-standing Board tradition and the Board’s own operating rules.   These rules and traditions have been established to protect the legitimacy of the Board.  They cannot, in my view, simply be case aside in pursuit of a singular policy agenda without doing irreparable harm to the Board’s legitimacy.

This reported approach resembles that taken by the National Mediation Board, when in early 2010, following the appointment of a former union president to the Board, the agency excluded dissenting voices from the process of revising a decades-old election rule.  That change too was designed to facilitate private sector union organizing.  Member Hayes adds the troubling suggestion that his colleagues at the NLRB might not be simply considering this approach for the passage of this Proposed Rule, but for a variety of other pending Board matters as well:

…since Member Becker’s recess appointment will expire in less than 90 days, it is quite clear that the two Board members nevertheless intend to breach the Board’s internal operating rule and, for the first time in the history of this agency, not allow the requisite time for preparing or circulating a dissent.  Indeed, as noted above, I have been specifically advised of this fact both with respect to publication or a final rule and with respect to a number of significant cases currently pending before the Board.

Finally, his reference to  the “Workforce Democracy and Fairness Act” (H.R. 3094) in his letter’s conclusion, suggests that the two-Member bloc may intend to pass some of the more radical changes included in the Proposed Rule after all:

…I note that my colleagues’ rush to final rulemaking judgment is taken in the face of active consideration of H.R. 3094, provisions of which are in direct conflict with the Board’s proposed Rule.  Although I make no comment concerning the merits of this legislative proposal, I believe its pendency provides yet another reason why my two colleagues should suspend their rulemaking efforts.

Circulation of this letter is certain to revive some of the calls for Member Hayes to step down in advance of the November 30th vote in order to deny the Board a quorum to act.  The legal reasoning laid out by Member Hayes in opposition to the Board’s current course might suggest he thinks such drastic measures are unnecessary to prevent promulgation of this rule.  But this should make for an interesting next ten days at the NLRB.

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