Labor Relations Insight by Phillip Wilson: Let’s get ready to rumble….

by | Nov 30, 2011 | News

Today I feel a bit like a ring-side announcer. The NLRB held its meeting on the proposed “ambush election” rulemaking. Here are the highlights from the meeting:

  • Member Hayes says he is not going to resign from the Board. He believes resigning will further impair the Board’s already diminished credibility. He feels that it would be hypocritical to use a procedural maneuver to protest what he feels is an improper procedural maneuver on the other side. One can only hope that the other members are inspired by his example. Based on how Chairman Pearce closed the meeting, we will have to assume that so far nobody is planning to follow Hayes’ example.
  • Member Pearce (in one of those unfortunate “is this thing on?” moments) said that he’d be “cracking the whip” to make sure that a formal rule made it to Member Hayes before the end of the year when Member Becker’s term will expire.
  • Not surprisingly, Members Becker and Pearce voted in favor of the resolution to move forward on the more limited proposed rule while Member Hayes voted against.

Before revealing my scorecard for the match, let’s not forget the lead up. Over the Thanksgiving week members Hayes and Pearce (and Representative George Miller) exchanged “dueling letters” over the proposed meeting and whether Member Hayes would resign his position on the Board. Seeing everybody sitting in the same room discussing the rule after that week was a bit surreal. Overall things were pretty civil and, while everyone clearly disagreed on both substance and procedure, the Board members did disagree without being disagreeable. That being said, they clearly do disagree. It is clear that Becker and Pearce are determined to get this rule done by the end of the year. They both rejected the plea from Member Hayes to respect 75 years of Board tradition and not pass a rule with only two votes in favor. They both claimed that since they had followed the Administrative Procedure Act that they had authority to do pretty much whatever they want. Here’s how I scored the match. The exchanges between Becker and Hayes on the substance of the rules were strong. Hayes brought up some solid arguments for settling voter eligibility issues prior to the vote (in particular challenges regarding supervisor status). Member Becker responded with several examples where those decisions are routinely deferred under the current rules. If I were scoring this like a heavyweight fight I’d actually give Becker several of those rounds. Where Becker and Pearce failed was on the process arguments. That was where Hayes landed the best punches of the bout. Hayes did an excellent job making clear that what he was most concerned about was the credibility of the Board. He correctly pleaded with his peers to not just ignore Board tradition because they can. Just because the APA doesn’t require things like requiring 3 votes or allowing a dissent after review of the final rule doesn’t mean the Board should ignore those procedural traditions. The knockout punch came when Hayes asked his peers to not ask the question whether they can implement the rule by ignoring these traditions designed to give the Board stability and credibility by rushing it through before Becker’s term expires. Instead he asked them to consider whether they should do it. When Member Hayes announced today that he is not going to resign his membership he undoubtedly angered many who would like to see the Board immobilized. And if Chairman Pearce doesn’t ram through the proposed election procedure changes before the end of the year he will also anger many who want to see election periods dramatically shrunk. But what is politically expedient isn’t often what is right. The current Board has only about 20 workdays before it loses its quorum for another year and a half. It is a shame that the Board has lost so much credibility that for the second time in 5 years Congress has decided they would rather the Board just not function. My hope is that Chairman Pearce follow Member Hayes’ example and to think about what is in the best interest of the NLRB’s long-term credibility, not what is best for one Board constituency over another.

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