Updated: Nov. 30, 4:30PM
Despite threats from the sole Republican member of the National Labor Relations Board that he’d quit over a controversial union elections law, the board voted two-to-one on Wednesday to advance part of a rule that union leaders said would decrease delays in the elections process.
The board only voted on portions of the rule that would limit litigation surrounding elections. But GOP member Brian Hayes said that the board’s decision to advance the rules went against tradition.
“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.
“Regardless of whether a two member majority has the technical authority to act or whether there is no internal rule expressly applicable to this situation, I believe the change in current law and procedure without three affirmative votes would be contrary to the spirit of the board’s deliberative traditions, established and honored over decades… and that such actions will ultimately cause harm to the agency and the constituents that we serve,” Hayes continued.
Hayes noted that the upcoming expiration of another board member’s recess appointment would reduce the board to two members, denying them quorum for an indefinite period.
“With all due respect, this is not an emergency situation,” Hayes said. “Board members come and go under our statutory plan. Their timely replacement is a matter for the president and the United States Senate to arrange. In fact, two board member nominations have been pending in the Senate since January of this year. Inaction or disagreement on the nominations is not by itself a justification for preemptive or perceptive rule-making action by two of three sitting board members.”
“Further, no matter how passionately my colleagues believe that the proposed rule will right some fundamental wrong, I trust that they are fully aware that on some quadrennial occasion, the partisan pendulum will swing and the very precedent that they established by changing the law with only two votes may facilitate reversal of that law, presuming Congress does not act first,” Hayes said.
As the Associated Press reported, Hayes absence would have brought the board to a standstill:
But the board’s lone GOP member, Brian Hayes, has threatened to quit the agency over his objection to the planned rules, an unprecedented move that would render the board powerless to approve any new measures at all. The board needs at least three members to make any decisions.
If Hayes leaves, only two members — both Democrats — would remain instead of the five members it’s supposed to have. Congressional Republicans have blocked President Barack Obama from filling the other two vacancies at the board.
The board hasn’t yet finalized the rule, and a resignation by Hayes would still effectively block the measure. But he indicated Wednesday that he’s weighed and rejected that option.
“First, it’s not in my nature to be obstructionist,” Hayes said. “Second, as a practical matter, my resignation might not mute the issue… Lastly, however, and most importantly, I believe resignation would cause the very same harm and collateral damage to the reputation of this agency and to the interests of its constituents as would the issuance of a controversial rule without three affirmative votes and in the wake of a flawed decisional process. I cannot be credibly critical of the latter and engage myself in the former.”