NLRB Likely to Punt on "Quickie Election" Proposal For Now

Observers of the National Labor Relations Board (NLRB) believe that today will be a red-letter date for the 77-year-old panel charged with remedying unfair labor practices.  With two vacancies on the five-member panel and two of the three members Obama appointees with strong ties to organized labor, the stage is a set for a vote on the major unions’ much-cherished rules change to shorten the time frame for union elections.
Known as the “quickie election” plan, the rules change would, as the Wall Street Journal explained last week, “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 before the union holds a secret ballot election.”

Late last night, sources close to the NLRB told HUMAN EVENTS that the panel was likely to duck controversy for now by putting off the up-or-down vote on the “quickie election” that would have surely created controversy and chaos. However, the same sources also insisted to us that , before the 2012 elections, the NLRB’s “Obama majority” would almost surely try to re-address the measure that has been so divisive.
There is little question, then, why Big Labor so desperately wanted the rules change that the Journal denounces as a “putsch” or that it would have passed with the votes of two of the three NLRB members who are so closely tied to the unions: Chairman Mark Pearce, who has represented union leaders as a private attorney, and Craig Becker, a longtime labor lawyer who has worked for both the AFL-CIO and the Service Employees International Union (SEIU).
But there’s one wrinkle should the “quickie election” measure be enacted.  Lone Republican NLRB member Brian Hayes has publicly voiced his anger at what he considers being marginalized and shut out in the crafting of the all-important ruling expected to come down today.  In a letter to House Education Committee Chairman John Kline (R-Minn.), Hayes pointed out that he had not been given the 90 days members are historically allowed to write their dissents and “that I would be limited to doing so after publication of the rule.”
Taking his anger a step further, Hayes has hinted he may not attend today’s session in which the rules changed will be voted on.  There are even bubbling rumors Hayes may resign from the NLRB altogether, which would cripple the panel under the Supreme Court’s New Process Steel v. NLRB ruling last year (which set three members as the quorum for NLRB rulings).
In that event, an even more intriguing question could be raised:  What will President Obama will do when the recess appointments of his two choices for the NLRB, Pearce and Becker, run out later this year?  A President historically makes recess appointments when Congress is out of session, and Presidents since Washington have exercised this constitutional prerogative.  But Obama would have a particular problem, in that House Republicans have worked to keep the House of Representatives they control in session year-round, and thus provide a roadblock to any future recess appointments.
President Theodore Roosevelt faced a similar situation, and nonetheless got what he wanted.  On Dec. 7, 1903, the Senate of the 58th Congress closed its first session and immediately—that is, within seconds—commenced its second session.  Roosevelt characterized this moment as a “constructive recess” between the two sessions and used the opportunity to make roughly 160 recess appointments.
Whether Obama follows the Teddy Roosevelt example, and what Brian Hayes does, will be two developments sure to attract attention in terms of the relationship between the White House and Congress—not to mention the future of the NLRB.