But the decision was challenged by a couple of employers' interest groups and ultimately ran aground on the Board's statutory quorum requirement. Three members must "participate" in any decision:
But whether the standard is “mere presence” or “participation,” the difficulty is in applying that standard to an online vote. When the very concept of a quorum seems designed for a meeting in which people are physically present in the same place, what does it mean to be present or to participate in a decision that takes place across wires? In other words, how does one draw the line between a present but abstaining voter (who may be counted toward a quorum) and an absent voter (who may not be) when the voting is done electronically?Here, a draft of the proposed rule was circulated by email to all three remaining members. Two indicated an affirmative response. The third never responded, not realizing that his failure to do so would lead to a failure to participate. To no avail, the Board argued that the third member's participation in previous discussions and procedural decisions (in which he had made his opposition clear) and his subsequent release of a statement explaining his opposition satisfied the quorum requirement.
As District Judge Boasberg explained:
[H]e simply did not show up – in any literal or even metaphorical sense. Had he affirmatively expressed his intent to abstain or even acknowledged receipt of the notification, he may well have been legally “present” for the vote and counted in the quorum. Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason. In any event, his failure to be present or participate means that only two members voted, and the rule was then sent for publication that very day.One other interesting point is the footnoted discussion of the applicability of Chevron deference to the Board's interpretation of its statutory provisions. There is, as the judge noted, an argument that a reviewing court should defer to the Board's determination of whether the quorum requirement has been satisfied: that is, if the Board considers it unnecessary for a formal vote to be recorded, a reviewing court should not interfere. But in the New Process Steel case, the Supreme Court of the United States did not apply Chevron deference to the quorum provision; and, stranger still, the Board did not raise the point in its argument.
As the judge noted, Woody Allen was quite correct to observe that 80% of life is just showing up.
H/T Jonathan Adler at the Volokh Conspiracy.