In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board’s lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.
What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority. That practice is not to take action that changes existing law without the affirmative votes of at least three Board members. The only justification offered by the majority for deviating from that process is that the historical practice has not been applied to rulemaking. The reason this is the case, however, is that in the past, when the Board has fallen to three members, no two-member majority appears to have considered rulemaking, let alone moved forward with it. The Board has rarely considered substantive rulemaking on a scale of this nature even with a full five-member Board. It last did so in the late 1980s, when it took over two years of hearings, testimony, and comments before the Board issued a final rule on appropriate units in the health care industry.
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