Monday, May 14, 2012
The decision is Chamber of Commerce v. NLRB, ____F. Supp. 2d____ (D.D.C. May 14, 2012) and can be downloaded here, Download DDC decision
According to the judge, "Member Hayes ... did not vote on the adoption of the final rule when it was circulated through the JCMS system on December 16, 2011." The judge explained:
"T]he December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required. Because the final rule was promulgated without the requisite quorum, the Court must set it aside on that ground and does not reach Plaintiffs' remaining arguments."
Looks like this is another issue headed to the Supremes.
Mitchell H. Rubinstein