On Monday, May 15, 2012, a Washington, D.C. federal judge invalidated the so-called “Hurry-Up” Election Rules of the National Labor Relations Board that previously became effective on April 30, 2012. The judge based his decision on the narrow procedural ground that in adopting the new rule, the Board did not have a quorum “present” when one of the three Members of the Board was informed of an email voting process on the rule, but did not vote for or against the rule, nor did he abstain from voting. In the short term, this ruling will require the NLRB to return to the prior election rules and procedures. The long term prospect of these rules effectively being adopted is questionable.
The importance of the issue is highlighted by a February Bloomberg Government report finding that unions win 89% of elections held within 15 days of the filing of an election petition, but only 58% of elections held within 36 to 40 days after an election request. The invalidated rules could have allowed union elections to occur within 15 days of a union filing, by significantly limiting procedural protections for workers and the employer which had been developed by the NLRB over decades. Under the prior, and now, re-instituted rules, elections typically occur 38 to 43 days after a filing, or later. Unions supporting the “hurry up” rules contend that employers use the delay to engage in tactics such as informational or allegedly intimidation campaigns, to “unfairly” sway workers from supporting and voting for union representation.
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