WASHINGTON D.C. — Last week, National Labor Relations Board Chairman Mark Pearce confirmed that the sole Republican member of the NLRB, Brian Hayes, threatened to resign from the federal agency over disagreements about the NLRB’s handling of a proposed rule to speed up union elections by disallowing some appeals until after a workplace vote occurs. (Employers typically try to delay an election so that they can use the time to persuade — or intimidate — employees to voting against joining a union.)
As I reported on November 21, by resigning from the NLRB, Hayes, a Republican, would effectively prevent the rule from being issued because the Supreme Court has ruled that the NLRB cannot make rules without only two members. The resignation of a board member to shut down the NLRB would be an unprecedented move in the nearly 80-year history of the NLRB. Unsurprisingly, many in organized labor are crying foul.
Now the ranking member of the House Committee on Education and the Workforce, Congressman George Miller (D-Calif.), is demanding an investigation into what external forces might be prompting Hayes to threaten to resign from the NLRB. “I have read reports of special interest organizations and individuals calling on you to resign precisely to incapacitate the Board. I am also in receipt of a November 21, 2011 letter from Board Chairman Pearce to you indicating that you have indeed threatened to resign,” wrote Miller.
“The open calls to resign, followed by the threats you allegedly have made, raise the specter of private requests as well. I am concerned that any decision to resign prematurely will be the result of objectionable motives or improper influence,” Miller continued.
Miller is demanding from Hayes all documents related to “communications between the Honorable Brian Hayes and any parties external to the National Labor Relations Board (“the Board) regarding Member Hayes’ resignation from the Board or future employment from December 1, 2010, through the date of this request.” Since Miller is in the minority party, he lacks subpoena power; thus, Hayes is unlikely to comply with Millers’ request.
A new letter from Pearce (PDF link) also raises questions about Hayes’ logic for resigning from the NLRB. Hayes wrote to House Education and Workforce Chairman John Kline that the rulemaking process and review of comments was not being done properly and “without my participation.” Hayes stated, “Until this week, my colleagues and the team of attorneys that they have enlisted from throughout the Agency have shared absolutely nothing with me or my staff save for a single CD which merely sorts or “codes” the over 65,000 public comments in differing degrees of support or opposition the rule.”
However, Pearce’s letter contradicts this claim. He says, “At no time did you request assistance in accessing those comments, although it was offered to you or for additional staff help in reviewing those comments.” Pearce adds, “You were invited to have your staff participate in the coding and review of comments. One member of your staff received training in coding, but, according to your Chief Counsel, never had time to participate because of other duties.” Pearce concludes that, “In sum, the record is clear that you chose not to make any member of your staff available to assist with large and complex task of reviewing and coding the comments. Every other Board member contributed several staff attorneys.”
The NLRB is slated to vote this Wednesday on the proposed rule that would move appeals about union elections. All eyes are on Hayes: Will he make history by resigning?
