The NLRB announced today that it was going to hold a vote on its proposed regulations to upend the well established and longstanding representation case procedures. According to the NLRB's announcement today, the vote is over "whether to adopt a small number of amendments" proposed earlier this year. This may well be the understatement of the year as very few people, if any, believe that the NLRB will do anything short of adopting all of the proposed changes, not just a few unidentified amendments.
In fact, Member Hayes, in a scathing letter to Congress, also dated today, asserts his two colleagues are determined to issue a final rule before the expiration of Member Becker's term at the end of the year. In this letter, Member Hayes levels pointed criticism of the agency's rulemaking process as contrary to precedent and practice:
In my dissent to the Notice of Proposed Rulemaking, I criticized the majority's use of 'a rulemaking process that is opaque, exclusionary, and adversarial,' in contravention with the Administrative Procedure Act, the Government in Sunshine Act, and President Obama's January 21, 2009, Memorandum of Transparency and Open Government, and in sharp contrast to the Board's procedural practice during the 1987-1989 rulemaking for appropriate bargaining units in the healthcare industry. That criticism apparently made no impression on my colleagues, who have continued this process in the same manner, and without my participation; and who now have made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker's without regard to Board tradition or rule.
One wonders what the environment must be on the 11th floor of the NLRB where all the Members have their offices.
Of course, this latest news, while hardly surprising, makes one wonder the thought process of the NLRB. As noted earlier here, the NLRB postponed the requirement that all employers under its jurisdiction post rights notices after a public firestorm, accompanied by several lawsuits challenging the rule. That outcry was over a notice posting; what will the public's response be to this seemingly predetermined outcome? Litigation is certain to be filed. The NLRB's own public divisions are unlikely to calm the debate.
The NLRB's vote will be made at a public meeting and streamed live on the internet. More to come. . .