[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.