As discussed prior to the holiday season, the National Labor Relations Board (NLRB) went from four members to three, when Member Brian Hayes’ term expired on December 16. While the Board still has the requisite three members to maintain their quorum, so the agency can continue to function by issuing case decisions and rules, one has to wonder whether these decisions and/or rules will be thoughtful and well-rounded with these remaining three members. After all, the three current members are all of one school of thought and one political party. Although in the past few weeks the Board has issued case decisions still containing the lone alternative legal approach articulated by Brian Hayes through his dissents, those will soon become a thing of the past. We soon will no longer receive the benefit of hearing all sides of an argument, a benefit which is crucial for a fully functioning and respected NLRB.
As some of have mentioned, historically it has been rare for the Board to issue case decisions or rules when only three members are sitting and they are all of one political persuasion. This is particularly noteworthy and something the Administration should be aware of if they wish for the agency to be a considered a fair arbiter in the labor law sphere. This is not about Republicans versus Democrats, but rather, it is about issuing well-rounded decisions which take into account all facets of an issue. Waiting for a minority member to be appointed and confirmed before issuing decisions would assure due process and integrity in the NLRB. It is vital to have another opinion heard, but as we have seen time and time again with the NLRB, under this Administration, deep-rooted precedent and tradition are often ignored or overturned.
This is true with the current Board, as they have announced business will continue as usual, despite there being no voice of opposition. How can employers, or the public as a whole, believe in a fair labor process from this Board when differing view will never see the light of day until someone from the opposing party is appointed to fill Member Hayes’ vacant position? The only way for there to be any trust in the process and for the system to be taken seriously, is to have a fully functioning NLRB, which not just a one-sided opinion, but opinions and rules with alternative reasoning and rationale.