U.S. District Judge James Boasberg wrote in his opinion that, “According to Woody Allen, 80 percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”
According to The Wall Street Journal, “As manipulative was the way President Obama’s NLRB appointees raced the new rules into the Federal Register and violated the normal standards of administrative procedure. In December 2011, former union lawyer Craig Becker's recess appointment to the labor board was about to expire, which with two seats vacant would have deprived the five-member NLRB of a quorum. When the final rule came up, the NLRB’s lone Republican commissioner, Brian Hayes, did not cast a vote. He was given only a matter of hours on the NLRB’s electronic ballot system before the Democratic majority went ahead and published it that day, without anyone requesting a response.”
In fact, the two member minority-majority ordered the Board’s Solicitor to issue the rule without Brain Hayes noting off on it, which is directly contrary to NLRB procedures governing the issuance of cases. They also – for the first time in the agency’s history – refused to permit a dissenting Board member the time to consider the rule they were adopting and issue a dissent with the majority, a critical role in the deliberative process.
In the end, the new rule has been shelved for the time being, but labor’s handpicked government regulators are not ceding any ground. Shortly after Judge Boasberg’s decision, NLRB Chairman Mark Pearce stated, “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation. We are determined to move forward.”
In the process of formulating the original rule, the NLRB received more than 65,000 comments from Americans with the vast majority opposing the change. Next, the NLRB recently issued its own 2011 annual report showing union elections normally only take 38 days, which is well below the agency’s goal of 42.
The reality is that there is absolutely no need for the ambush election rule outside of rewarding the President’s top political contributor. The business community must continue to ensure employees and employers vocally oppose this job-killing regulation. Even the government bureaucrats at the NLRB must be made to understand there will be political repercussions associated with their reckless behavior.
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