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ICYMI: The NLRB Putsch

The NLRB Putsch

The descent of the National Labor Relations Board from independent referee to a wholly owned AFL-CIO subsidiary is speeding up. Now its two Democratic appointees are attempting to ram through a new rule requiring quickie organizing elections, with barely any notice and little consultation with its sole GOP member.

Once a sleepy, ostensibly independent agency, the NLRB has become the point of the spear for Democratic labor policy since Republicans took the House last year. Earlier this year its general counsel sued to block Boeing from making its planes at a new plant in South Carolina, a case that is still proceeding and could kill thousands of jobs.

Now Chairman Mark Pearce, an Obama appointee, says he'll hold a vote next Wednesday on rules to shorten the time frame for union elections. The fire drill is intended to approve the union-favored plan before the recess appointment of the board's other Democrat expires and they lose their quorum.

President Obama gave longtime union lawyer Craig Becker a recess appointment in March 2010 after even Senate Democrats considered him too radical to confirm, but that appointment expires at the end of the year. The Obama appointees need at least two of the NLRB's three occupied seats (two are vacant) to approve new rules.

Originally floated in June as a proposed rule-making, the plan would shorten to as little as 10 to 14 days the period between the time a union seeks an election to organize a work site and the election date. Under current rules, companies typically have five to six weeks to make their case to employees before the union holds a secret-ballot election. The Becker-Pearce putsch would give labor organizers months to quietly pitch workers, then give targeted companies less than two weeks to react and make their own case before a quickie election.

This is Big Labor's version of speed dating, and no wonder. Union membership is down to some 7% of the private workforce, and falling. Fewer workers want to join unions as they see what has happened to the competitiveness of union-dominated industries. Labor's response is to rig the rules so that companies have little time and fewer resources to educate workers about the risks posed by unions. When unions couldn't get a "card check" bill banning secret-ballot elections through even a Democratic Congress, they turned to the NLRB for this and other dirty work.

Mr. Pearce's ram-job has drawn the ire of the NLRB's lone Republican commissioner, Brian Hayes. In a letter to House Education and Workforce Chairman John Kline, Mr. Hayes notes that while nearly 66,000 comments had been received on the original version of the proposed rule, he has been cut out of the loop on any responses to the comments by his fellow commissioners or any modifications made to the final rule that differ from the original draft.

On the merits of the new rule, Mr. Hayes wrote last summer that, "Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize or, rather, to effectively eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

The NLRB's tradition has been to overturn standing law only with the votes of at least three board members, but Messrs. Pearce and Becker are above, or shall we say beneath, such niceties. According to Mr. Hayes's letter, he was advised that "in the event I didn't agree with [the final rule], it would, nonetheless, be approved and published based on their two member vote." Since he wouldn't be granted the traditional 90 days to review the rule and write a dissent, he writes that he was "advised that I would be limited to doing so after publication of the rule."

Mr. Hayes has said that he may boycott Wednesday's meeting, and that without his participation or agreement to delegate authority the Becker-Pearce hijacking may be illegal under the Supreme Court's guidelines for quorum requirements in 2010's New Process Steel v. National Labor Relations Board. But Messrs. Pearce and Becker will probably proceed anyway.

If Mr. Hayes resigned from the NLRB before Wednesday's vote, then the two Democrats would have a harder time ignoring the law. It's a disgrace that an NLRB member should have to contemplate resignation to prevent an abuse of regulatory process, but Mr. Hayes deserves support if he does. A resignation would draw attention to the way the power of this supposedly nonpartisan agency is being twisted to save unions from the consequences of their antibusiness excesses.

To learn about the committee's oversight of the NLRB's ambush election proposal, click here.

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