Dysfunction at the NLRB

Steve Greenhouse, in the New York Times (registration required), has a good overview on the partisan infighting at the NLRB.  The 2 Democrats are pushing for an approval vote on new rules for conducting representation elections. Republican Member Hayes opposes the rules and claims he has been locked out of the process of formulating them. It is unclear whether Hayes has been excluded or has refused to participate. What is clear is Member Hayes could resign before the vote and deprive the two remaining Board Members from having the necessary 3 member quorum to conduct business. It is increasingly likely no new Board Members will be confirmed until after the 2012 elections. Member Becker's interim appointment expires when Congress adjourns at the end of the year. Republicans are already prepared to stay in session to prevent any recess appointments.

Will Republicans shut down the NLRB?

We know after New Process Steel the NLRB has to have 3 members to have a quorum. We also know Member Becker's recess appointment expires when Congress adjourns at the end of the year. Unless there is a confirmation or another recess appointment the NLRB will only have 2 members when Becker's appointment expires. Now some Republicans are urging Member Hayes to resign before the Board can implement controversial changes to the election process used to determine whether workers can unionize their employer's workplace. I think it is very likely Congressional gridlock will prevent the NLRB from having a quorum until some point after the 2012 election.

New election rules imminent?

The NLRB has issued a press release setting a November 30th vote on some portion of the new rules proposed for conducting NLRB elections. Is this a "ram through" of quickie elections before Member Becker's interim appointment expires? Maybe.

Preparation for 2 Member NLRB

The NLRB has delegated its authority to the General Counsel to act 

full authority over court litigation matters that otherwise would require Board authorization and full authority to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act, sections 206–210, 29 U.S.C. 176–180. These delegations shall become effective during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.

This action is taken due to the likelihood the NLRB will have only 2 members when the recess appointment of Member Becker expires.