Sen. Orrin Hatch (R-UT) spoke on a conference call with bloggers today, primarily on the topic of the tax increases that will hit on Jan. 1 unless Congress extends the lower rates enacted in 2001 and 2003. Among other issues that arose were the Employee Free Choice Act, the potential of a lameduck session of Congress, and President Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

Sen. Hatch noted that President Obama made the recess appointment before there had even been a committee hearing on Berwick’s nomination, and then, after the appointment, nominated Berwick again. Hatch obviously saw a similarity with the handling of the nomination and subsequent recess appointment of Craig Becker, an SEIU and AFL-CIO counsel, to the National Labor Relations Board. Sen. Hatch:

They’ve got people on the National Labor Relations Board right now that think they can do though regulation, by the board, that which can’t get through the Senate of the United States of America.

The Senate is not going to give them card check, it’s just that simple. So what are they going to do? They’re going to come up with an approach, or have come up with an approach, that says only those who vote count in the card-check area, or in any other area – in other words, only 51 percent of those who vote, in the whole employment complex.

Now that kind of stuff has never been done before, but they’re doing it.

When they don’t have the ability to do what’s right, they’ll do what’s wrong. And to be honest with you, it’s giving us a lot of fits.

Given the context of the conversation, we took Hatch’s “they” to be the Obama Administration and Senate Democratic allies, supported by Big Labor.

Sen. Hatch is recalling the National Mediation Board’s decision in May to allow a union to be recognized if a simple majority of workers who cast ballots approved. The decision, which applies to workers at airlines and railroads, overturned a 76-year-old rule that governed union elections. The new rules went into effect on July 1, the NMB said in a news release.

The Senator’s comments raised a realistic concern: If one regulatory and quasi-judicial agency with an Obama-appointed majority on its board can make such a radical change in longstanding law, what’s to stop the NLRB from doing the same?

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