Employment Law Report

NLRB Member Hayes Accuses Colleagues of Misleading House Committee on New Election Rule

By Edwin S. Hopson

In an unusual move, Member Brian Hayes, the only Republican on the National Labor Relations Board, has written a letter to the Chairman of the U.S. House Education and Workforce Committee criticizing the other two Democratic Members of the Board for scheduling a meeting on November 30, 2011, at which they will make a decision on the Board’s proposed new rule aimed at speeding the union representation election process.  Hayes claims that the meeting will violate Board rules and practice involving its deliberative process.  He also asserts that he has been left out of that process and has, for instance, not seen any summary of the some 65,000 comments received by the NLRB concerning the proposed new rule, nor been given adequate time to prepare a dissent regarding the new rule.  

Hayes also seems to accuse the majority on the Board of misleading the House Committee in a letter dated November 10, 2011, responding to a request from the Committee for a status report and timeline on the proposed new election rule. 

In a letter dated October 27, 2011, Committee Chairman John Kline had requested a number of items of information from the Board in order “[t]o better understand the process and timeline for the issuance of the new rule….”  In its November 10 response, the Board advised the Committee:

“The following is a timeline of past and anticipated actions on the rulemaking:

June 22, 2011 – Publication of proposed rule.

July 18-19, 2011 – Public meeting on proposed rule. 66 witnesses testified before the Board.

August 22, 2011 – Deadline for filing initial public comments.

Sept. 6, 2011 – Deadline for filing reply comments.

Unknown – Board vote on how to proceed on final rule.

Unknown – Draft of final rule circulated to Board Members.

Unknown – Publication of final rule in Federal Register.”

Hayes in his November 18 correspondence to the Committee states:

“The central fact omitted from the November 10 response letter is that there is a timeline for anticipated actions.  My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  Indeed, I was advised of this fact by the Board’s Chairman on the very day that the response letter was forwarded to your office.” [Emphasis in the original].

On November 18, 2011, Board Chairman Pearce announced the scheduling of the November 30 meeting at which a decision on the new rule will be made.  See prior post below dated November 18, 2011.

Also on November 18, 2011, Committee Chairman Kline wrote another letter to Board Chairman Pearce seeking information not supplied in the NLRB’s November 10 response and also stating:

“Needless to say, Member Hayes’ assertions are extremely troubling, as they would suggest you deliberately withheld information from the committee, if not knowingly provided the committee with misleading information.”

Kline requested a response from Board Chairman Pearce by November 29, 2011.

 The letters in question may be found on the Committee’s website at: