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ICYMI: The Woody Allen Rule


Some of the Obama Administration's worst regulatory abuses have arrived via the National Labor Relations Board (NLRB)—think of its lawsuit to stop Boeing from making airplanes in the right-to-work state of South Carolina. But such overreach is too much for at least one federal judge, who on Monday overturned the board's political favor to the AFL-CIO that threw out longstanding union election laws and was designed to make organizing easier.

At issue in the case are so-called "quickie" elections, which allow unions to secretly gather signatures for an election and then ambush management at the 11th hour. Among other ultra-politicized changes, elections could take place in as few as 10 to 14 days from the petition filing, depriving companies of their legitimate rights to express their views on collective bargaining.

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.

Mr. Becker claimed that Mr. Hayes had "effectively indicated his opposition" and therefore he was "present" even though he was not, in fact, present. Basically, the NLRB argued that the quorum requirement was satisfied because there were three members in office when the rule was "approved."

This novel interpretation earned a stinging rebuke from District of Columbia federal Judge James Boasberg. "According to Woody Allen," he writes, "eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, showing up is even more important than that. Indeed, it is the only thing that matters." He adds that the NLRB's majority position was an attempt to end run "a limit on the agency's power to act" and "would render the three-member quorum requirement meaningless."

Given the NLRB spectacle of the last three years, this probably won't be the only time the commission loses in court—or the only time that judges need to invoke Mr. Allen to describe its absurdity.

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