On May 14, the US District Court for the District of Columbia held that only, “Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.” The court went on to state that without at least three members participating, the Board lacked the authority to issue the rule. This rule passed when there were only three members of the Board: Democratic appointees Mark Pearce and former member Craig Becker, and Republican Brian Hayes. The DC Court invalidated the rule because the Board did not have a quorum present when the vote took place – member Hayes was not present at the vote, although members Pearce and Becker marked Hayes as a no vote since he had shown disapproval for this rule in past hearings.
As it currently stands, the Board may not conduct an election using the procedures set forth in the rule. We expect, however, the Board will appeal. The earliest a court would rule on the appeal would be in October or November.
The Board also may attempt to reissue the rule. This would invite an additional legal challenge, particularly given three of the current Board members may be unlawful recess appointments. Members Block, Flynn and Griffin were all appointed during the January 2012 recess, or so claims the Obama Administration. Many in Congress and other interested parties claim that Congress was never in recess, therefore the President could not make recess appointments.
This represents yet another blow to the NRLB’s activist agenda. A few weeks ago, the SC Court knocked down the Notice Posting Rule, and soon thereafter the NRLB released a statement that they would not enforce the rule until all legal challenges were completed.