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This story has received very little coverage, but today was nearly the day the National Labor Relations Board, for all intents and purposes, died. The NLRB is supposed to have 5 members, but presently has 3 because of Republican obstructionism. There are 2 Democrats and 1 Republican, Brian Hayes. Angry about new rules designed to limit endless employer appeals of scheduled workplace unionization votes in order to buy more time to defeat unions, Hayes threatened to resign from the board. Had he done so, the NLRB could not have reached a quorum and would have been paralyzed. Had this happened, there’s little reason to believe it ever it would have revived in a meaningful way. Maybe Republicans would have filled the positions when they took over, maybe they would have just let it die, but any chance it could have served as an fair arbiter for American labor would have ended.

Luckily, Hayes decided not to resign, citing his desire to not be an obstructionist (are we sure he’s actually a Republican?) and his respect for the institution. Crisis averted for now. But the long-term future of the NLRB remains up in the air because Hayes could bail at any time.

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  • GC

    What is required to change the quorum rules at the next meeting Hayes shows up at? It seems like this has to be a priority for the board to prevent further hostage-taking / tantrums.

    • Sebastian Dangerfield

      It would require an amendment to the quorum statute, which is about as likely as another stimulus bill, with a rider establishing a public option in place of the individual mandate in the PPACA. The Board tried, through a, shall we say, creative reading of the quorum provision of the NLRA, to function with two members from 2007-2009, when gridlock prevented the confirmation of any new members, but the Supreme Court (I think correctly) put a kibosh on that in the 2010 case of New Process Steel v. NLRB. I’m glad Hayes decided not to quit as a result of his tantrum over being out-voted on the question whether the lugubrious election procedures that the Board has been following should be streamlined, but he was, of course, a WATB over the whole affair. Good on Erik for posting about this issue, as it’s quite important. He is a welcome addition to the LGM roster.

  • DrDick

    I am pretty sure that they are going to drum him out of the party, then tar and feather him and run him out of town an a splintered rail.

  • TT

    Saudi women will have far more rights than U.S. workers, public and private, if the GOP ever decides to go full wingnut. Luckily, I think Wisconsin and Ohio have shown that there are limits to what Americans will tolerate, particularly during supremely difficult economic times. But, as with so much else, the GOP knows that relatively few people outside a narrow band pay attention to these less-visible issues. They’ll be back.

  • jefft452

    What exactly are the quorum rules?
    Does the board require 3 members present and voting? Or just that it have 3 sitting members?

    If the latter, is there any statute defining the resignation process?
    If not, why accept his letter of resignation?

  • jefft452

    If he resigns, cant there be 3 resess appointments?

    • Bill Murray

      that would imply there will be a recess while Obama is President

      • Right, this is the next front of the battle–Congress is never going into recess again.

        • Murc

          Oh, Erik. Of course they will.

          Just as soon as a Republican is President again.

          • Bill Murray

            Congressional Democrats could play hardball, too.

            • mpowell


  • Ian

    the long-term future of the NLRB remains up in the air because Hayes could bail at any time

    …or have a heart attack. If any of the remaining three members gets sick the board gets put on life support.

    • Sebastian Dangerfield

      Not necessary. Becker’s recess appointment expires at the end of the year. So there will be no quorum next year unless something fabulously unlikely happens in the Senate, and the Board will be unable to render decisions or make rules. (It seems generally accepted, however, that the General counsel can still supervise elections and certify unions.)

  • Njorl

    Perhaps Obama could offer the Republicans a compromise. He could nominate one candidate who carefully considers the merits of each complaint, and one who always sides with management.

    • Bill Murray

      but eventually we would get one who always sides with management and one who never sides with labor. It’s very bipartisan

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