National Labor Relations Board Chairman Mark Pearce is not happy with Brian Hayes, the lone Republican on the board. Hayes, if you’ll recall, sent a letter to lawmakers last Friday to express his dismay at the NLRB’s rush to adopt a rule that would allow snap union elections — an election process that would grant union representatives ample time to make a case for unionization but that would limit the amount of time company representatives would have to make a case against unionization.
In the letter, Hayes explained that he had been excluded from the initial rulemaking, as well as the revision process. He outlined the several ways the NLRB appears ready to abandon precedent so as to advance this snap election agenda. The board — now down to just three members, when it ordinarily consists of five — is prepared to pass the rule with just two votes (a simple majority for the now-three-member board), for example, when precedent suggested at least three votes are necessary to issue a rule, no matter the size of the board at any given time.
But Chairman Pearce says Hayes’ letter was utterly disingenuous. In a response letter to Hayes, Pearce claims that Hayes was kept fully abreast of the rulemaking process, was repeatedly invite to participate more deeply in that process and yet chose not to do so. Pearce asserts the authority of the Board to pass the rule with just two assenting votes — and says Hayes seems to think due process means “interminable process or, at least, process that extends until the Board is either disabled from acting or its composition changes.”
It’s hard to believe Hayes would refuse to engage in the revision process unless he had good reason to believe his input would be rejected — but, even if he did refuse to engage, if he did it as an attempt to forestall this disastrous rule, then delay and avoidance were excusable. In fact, the most interesting part of Pearce’s letter comes when he writes that Hayes has in the past indicated his willingness to resign should the Board proceed to consider such patently unfair practices as snap elections. Pearce writes:
In mid-October, I specifically discussed with you a potential schedule for consideration of the rulemaking. You did not offer any alternative schedule. You did not present me with any specific concerns you may have had with the substance of the proposed rules. Instead, you indicated that, if the Board proceeded with consideration of the matter, you would consider resigning your position.
In early November, in response to your suggestion that you would resign, thereby depriving the Board of a quorum and preventing the issuance of any form of final rule as well as the adjudication of many cases now pending before the Board, I offered to delay publication of a final rule …
I like how Pearce writes as though it would assuredly be a problem if the NLRB couldn’t issue any form of the final rule. (What would we do without the NLRB???) And, while he says he offered to delay publication of the final rule, he also scheduled for Nov. 30 a meeting to discuss and vote on the rule. That date falls conspicuously before the end of the term of the third member of the Board.
But, most importantly, to judge by Pearce’s letter, Hayes would consider resignation. That seems to me a good thing, for, as I’ve written before, that might be the only way to stop the adoption of snap elections.