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The new National Labor Relations Board rule streamlining union representation elections, challenged by a lawsuit from the U.S. Chamber of Commerce, has been thrown out by a federal judge on the grounds that the board lacked a quorum on the vote. While the NLRB only had three members instead of a full five at the time of the vote, three constitutes a quorum. However:
[Judge] Boasberg found that the Republican, Brian Hayes, did not technically participate in a final vote on the rule. When the rule was sent to Hayes electronically, he never formally voted because he already had expressed his opposition to it at a public hearing. But that was not enough to satisfy the strict requirements of the law, Boasberg ruled.
A quorum existed, a quorum had participated in hearings and deliberations. But because one person did not cast an electronic vote, the ruling is that a quorum did not exist. While the requirement for a quorum is more than a minor technicality, this ruling certainly is based on a technicality. If this had been the standard in Wisconsin when Gov. Scott Walker's anti-union budget repair bill was being considered, for instance, the 14 Democratic state senators would never have had to leave Wisconsin. They could have sat in the statehouse simply refusing to vote.

With President Obama's recess appointments to the NLRB, a quorum now exists without either Republican on the board casting a vote, and since the judge's ruling was solely on the quorum issue and not on the merits of the rule, Democratic members can vote the rule through again. Of course, the Chamber of Commerce is also suing over the validity of those recess appointments, and argues that that lawsuit puts a "cloud of uncertainty" over any decision the board makes relying on the votes of recess-appointed members.

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Comment Preferences

  •  I hate the US C of Commerce. (7+ / 0-)

    They are running attack ads here against Hochle and Slaughter.  Are they women haters too?  Are they more interested in politics than in business? Don't they know how much buying power women have?

     I'd love to see them under pressure from corporate members who have been pressured by citizens ala limbaugh, komen and alec.  Having funding dry up is a real wake-up call.

    If love could have saved you, you would have lived forever.

    by weck on Tue May 15, 2012 at 08:09:52 AM PDT

  •  What is scary (4+ / 0-)
    Recommended by:
    jbou, weck, dewtx, trumpeter

    is wondering just how far an Alito or a Scalia type will go in the service of Movement Conservatism from the bench.

    Can we assume there is a bottom, a basement, to the depths they will plunge? I don't know if we can do that.

    You can't assume good faith on the part of Conservatives in the Congress, and you can't assume respect for anything other than what helps the Right the most from Scalitos from the bench.

    When we try to figure out what might happen, it's often grounded in at least the assumption of a passing respect for previous legal decisions and the chaos that might be caused by just making shit up to achieve the most beneficial outcome to the Movement Conservative Right.

    I don't see how they have earned the comforting  assumption of "they wouldn't/couldn't do that".

    I see a lot of evidence that they can make shit up if they have to to just do what they want.

    It seems like this judge just came to the most beneficial conclusion for the C.o.C. crowd via the consevative version of the Chewbacca Defense from South Park.

    Ladies and gentlemen of the court, I have one final thing I want you to consider before I make my ruling. We are talking about a quorum. Was it, or was it not, achieved in this matter? Was the vote lawful, or should the outcome in question be struck down?

    Was, in fact, a quorum achieved?

    Well.

    Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

    Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a judge ruling on a very important labor case, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you leave this court room, does it make sense? No! Ladies and gentlemen of this court, it does not make sense! If Chewbacca lives on Endor, you must accept that a quorum simply did not exist!

    If you don't agree with my decision, blame George Lucas. Chewbacca! Ewoks! How can I rule any other way? I cannot. The rule is struck down.

    I am from the Elizabeth Warren wing of the Democratic Party

    by LeftHandedMan on Tue May 15, 2012 at 08:16:07 AM PDT

  •  This is not a problem (0+ / 0-)

    Obama is empowered by the Constitution to declare the Congress in recess any time he wants and can recess appoint any time he wants.

    It may actually be good, in that it makes workers' rights an issue when the NLRB votes this law(and hopefully the 2nd half of it as well) through.  I couldn't imagine unions would be pleased if the NLRB didn't go ahead and pass this again.

    I have a quick question concerning the posting rule: if it is found that the NLRB does not have a posting authority, could the department of labor inform workers of their unionization rights?

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