NLRB races to finalize disastrous snap election rule

posted at 1:55 pm on November 21, 2011 by Tina Korbe

This summer, I wrote about the National Labor Relations Board’s proposal to shorten union election periods to limit the amount of time businesses have to make a case against unionization to their employees. As I wrote at the time, the attempt to institute snap elections is among the most aggressive moves made by the Democratic members of the NLRB. And so it continues to be …

To finalize the proposed rule, the NLRB has to act quickly. The ordinarily five-member Board is down to just three members — two Democrats and one Republican. Democratic member Craig Becker’s term expires at the end of this year — and, without a quorum, the NLRB could not issue new rules (oh, the horror!). The president won’t be able to appoint new members, either, because Congress has him in a procedural stranglehold.

According to precedent, the Board isn’t even really supposed to issue a rule without at least three votes in favor — but the Democratic NLRB-ers appear prepared to ignore that precedent in this instance, as the lone GOP member of the Board, Brian Hayes, will assuredly vote against the finalized rule.

The two NLRB Democrats have scheduled for Nov. 30 a vote on a modified version of the proposed rule. But here’s the catch: They have blatantly excluded Hayes from the revision process. After the NLRB issued its notice of proposed rulemaking in June, commenters submitted more than 65,000 responses to the rule — but the Democratic members of the NLRB haven’t informed Hayes of how they plan to address those responses in the final rule.

Nor have they informed him of what portions of the proposed rule they plan to include, exclude or modify in the final version. They did offer him a compromise take-it-or-leave-it proposal last Tuesday, with a deadline of last Friday to approve or disapprove.

Again, precedent dictates that, if two members approve of a final draft of a proposed rule, they circulate that draft and give any potentially dissenting member at least 90 days to act on the circulated draft before they formally issue the rule. No such draft has been circulated and the vote to issue the rule is scheduled for just nine days from now.

Understandably, Hayes is angry at his exclusion from the board’s actions to revise the rule — and, last Friday, sent a letter to lawmakers to express his frustration.

House Republicans want to do what they can to circumvent the NLRB’s rule: The House plans to vote soon on a measure that would override any changes to union election rules. But, while it will likely pass the House, it surely won’t pass the Senate.

A quick reminder of what’s at stake if the new rule passes: Businesses will have about half the time they presently have to address the potential pitfalls of unionization. Former NLRB Peter Schaumber explained it well this summer: ”Imagine a political election in which only one party were given the opportunity to tell voters its side of the story, and could set an election date only days away, all without prior notice to the other side.”

Longer election periods don’t deprive union representatives of the chance to make their case to workers: They just ensure that management also has a chance to make a case. As I wrote in June, “The NLRB betrays its insecurity. The desirability of unions must be very in doubt to prompt the board to issue these rules — for, surely, if it is in workers’ best interest to join a union, workers will discern that even after they hear their employer’s side of the story.”

No excuse exists for this rule and especially not for the shady way it’s about to be passed. As this RedState piece points out, at this point, it appears the only way to prevent the rule’s passage would be for Hayes to resign.


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