How many new pro-union rules will the NLRB ram through in coming months? 

Earlier this week, I wrote about the real world problems with the National Labor Relations Board's new proposed rules to speed up union elections, which would punish small businesses in an attempt to expand union membership. Having written about the rules themselves, it's also worth elaborating on the insane process the NLRB is using to ram them through, which undercuts President Obama's own transparency guidance.

First, some context. Currently, there's a three-to- one Democratic majority on the NLRB. In August, the current chair Wilma Liebman's term will expire. Later in the year, the term of recess-appointed union lawyer Craig Becker will also expire. That would bring the board's composition down to a one-to-one deadlock. Given that Republicans have taken an increasingly adversarial stance toward the NLRB in wake of its general counsel's move to sue Boeing for building a nonunion factory in South Carolina, it's unlikely that the pro-union bloc will ever get stronger than it is now. So there's a tremendous incentive for the board to ram through as many union-friendly rules as possible as quickly as possible.

That seems to be the impetus for the expedited process they're using to advance the proposed "quickie election" rules. In the lone dissent in the decision to propose the rules (which you can download here), Brian Hayes explains in detail how the board is disregarding Obama's pledges for transparency by pushing through the rules without giving the affected parties enough time to provide input.

Hayes notes that back in 1987, when the board was considering a proposal of comparable scale in the health care industry, the rule making process took 2 years, with four public hearings, the last of which lasted 7 days. By contrast, the NLRB is currently trying to force through the sweeping new election rules over the next two and a half months, with just one scheduled public hearing.

In the dissent, Hayes cites Obama's executive order that states: "Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking."

Hayes goes on:

President Obama’s Memorandum on Transparency and Open Government, issued on January 21, 2009, makes clear that independent agencies have an obligation to do much more than provide minimum due process in order to assure that our regulatory actions implement the principles of transparency, participation, and collaboration. As explained in the subsequent directive from the Director of the Office of Management and Budget, these principles “form the cornerstone of an open government.”  Sadly, my colleagues reduce that cornerstone to rubble by proceeding with a rulemaking process that is opaque, exclusionary, and adversarial. The sense of fait accompli is inescapable.

The only question is, how many more examples of this will we see in the coming months?

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Philip Klein

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