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NLRB member Hayes back in the saddle

December 02, 2011

As we mentioned in our Nov. 29 post, the lone Republican on the National Labor Relations Board (NLRB), Brian Hayes, caused a stir last week after reportedly threatening to resign from the NLRB. Hayes’ resignation would have stripped the NLRB of a quorum – the NLRB needs at least three members to conduct any business. Thus, Hayes’ resignation would have shut down the NLRB until President Obama could nominate, and get Senate confirmation for, new members.

Hayes’ threat came amid the NLRB’s November 18, 2011 announcement that it would hold a meeting on November 30, 2011, to vote on a revised version of the NLRB’s original proposal to speed up union elections. Shortly thereafter, Hayes threatened to resign from the NLRB.

Despite all the buzz, Hayes did not resign, and he attended the November 30 meeting but not before forcing Chairman Pearce to issue, prior to the meeting, a summary of his proposed revisions to the rule.

Throughout this saga, Hayes had expressed concern about the legality of the NLRB’s actions. Specifically, Hayes questioned whether the NLRB could adopt a final rule drastically different from the original proposal without going through the rulemaking process. Hayes has consistently expressed his objection to the NLRB essentially ignoring the over 65,000 comments submitted by the public in response to the original proposal. Chairman Pearce put Hayes’ concerns to rest in his summary, where the NLRB conceded that a final rule would not come out of the November 30 meeting. The statement released by the NLRB regarding the purpose of the meeting states: “If the resolution is approved by a majority of the Board, a final rule will be drafted and circulated among the members for a subsequent vote. No final rule can issue without such approval.”

It should go without saying that Hayes voted against the resolution, and Chairman Pearce and Member Craig Becker voted in favor. Near the end of the meeting, Hayes expressed concern regarding the NLRB’s credibility. As a matter of policy and despite any legal authority to the contrary, Hayes believes the NLRB should not move initiatives forward without at least three affirmative votes.

The resolution allows the NLRB to publish a revised final rule regarding union elections. The final rule will be subject to yet another vote, which must occur prior to December 31, 2011, when Becker’s recess appointment will expire and leave the NLRB with only two members.

The revised version of the rule is significantly pared down from the original proposal. Despite the revisions, the newly proposed rule will still have the effect of significantly speeding up union elections because it proposes to eliminate the 25-day waiting period to schedule elections. Normally, this period allows the NLRB to review challenges to bargaining unit decisions.

Chairman Pearce believes eliminating this period should be welcomed because the revised proposal will only affect about 10% of elections — those that are contested. The other 90% are usually held in agreement by the employer and the union. Uncontested elections average 38 days, while contested elections average 101 days.

While this may be the case, Chairman Pearce ignores the fact that what he sees as unnecessary litigation (which extends the time to complete the election) is an absolute necessity for employers who object to the unionization of their workforce.

To follow additional developments, stay tuned . . . 

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