In Chamber of Commerce v. NLRB (also embedded below), the D.C. District Court held that the election rule was invalid. Following the Supreme Court's New Process Steel decision, the NLRB needs three members to have a quorum to take official action. The NLRB adopted the election with 2 members voting in favor of the rule . . . and one member did not vote at all.
The Court's opinion opens with a colorful and succinct description of the holding:
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.This certainly make sense . . . but now, any time somebody is outvoted 2-1, they can just abstain and somehow the "1" beats the "2". Of course, if we keep a fully stocked 5-member NLRB, that won't be an issue (because any majority vote would necessarily be a quorum).
Image: NLRB logo used in commentary on the NLRB. Not official use.