Why the Hurry?

The National Labor Relations Board is determined to pass new election rules that will cut the time before a vote on union representation is held down to a matter of a couple of weeks. In their rush to put the new rules into effect, the board is cutting procedural corners and quite possibly violating the law.

The labor board ordinarily has five members, but due to difficulties in getting members appointed and confirmed the board has only three members now. One appointment, the controversial Craig Becker, was made during a recess, without Senate approval, and his term ends at the end of December, at which point the panel will be left with two members and its ability to do even routine business, let alone make major rules changes, will be in doubt.

In order to push its agenda as far as possible the Board has scheduled a vote to formalize the new election rules on Nov. 30.  These rules are themselves extremely controversial, as they would put employers at a serious disadvantage whenever a vote is held to certify a union in a workplace. American labor law has long recognized an employer’s right to make the case against unionizing, but if the new rules take effect employers will have only a couple of weeks (actual timing will vary somewhat) to respond to union organizers, when they usually have had around a month.

The three current members are not unanimous in support of the new rules. NLRB member Brian Hayes has expressed concerns about the sped-up election process, and is now raising the alarm over violations of NLRB’s procedures as the new election rules are being put together. According to Hayes, he has yet to be given a full accounting of public comments to the new rules, nor has he been fully informed how the other two members of the board are amending their proposed election rules.

But most alarming of all, the two other members of the board seem determined to push through a major change to labor law with just two out of three votes. In the past the board has waited until it has three votes, even when it has been short-staffed, before making any substantive changes to laws or procedures. In fact, there is speculation that Hayes will resign in order to prevent the board from having a quorum.

The National Labor Relations Board generally tries to act like a judicial body, but partisan politics has always been a part of its operations. That politics is getting more and more raw.  As we've said before, Congress needs to step in and set some limits here.