The National Labor Relations Board (NLRB) recently released its casehandling summary for fiscal year 2012, which ended September 30, 2012. Given the NLRB’s recent penchant for overturning precedent and making a lot of waves in the past year, one might predict that the NLRB has effectively drummed up business—but surprisingly, the opposite appears to be true. The casehandling information shows an overall decrease in unfair labor practice charges and representation cases, and importantly, a significant reduction in the total money recovered by the regional offices.
There was a 3 percent decrease in the total number of cases (24,275) filed with the NLRB for fiscal year 2012, representing a 2.5 percent decrease in unfair labor practice charges (21,629) and a 6 percent decrease in representation cases filed (2,646). Despite this good news, however, employers, and particularly employers of union-free or partially unionized workforces, still have cause for concern. The NLRB reported a 13 percent increase in initial representation elections, which indicates that unions are actively seeking to organize new groups of employees.
The NLRB completed 84.5 percent of the representation cases within 100 days, and 90 percent of the elections were held pursuant to pre-election agreements. Elections were conducted an average of 38 days after the filing of the petition, which is identical to last year, and within the NLRB’s target median of 42 days. The consistency is particularly telling given the NLRB’s new “quickie election” rules, which, as we reported last year, remain on hold pending the outcome of several lawsuits. These updated statistics undercut organized labor’s oft-repeated claim that employers use the current election rules to unfairly delay election proceedings.
The NLRB closed nearly 73 percent of the unfair labor practice cases within 120 days after filing. Of the 21,629 unfair labor practice charges filed, the regional offices issued complaints in only 1,314 of those cases. The regional directors found that formal proceedings would have been warranted in 36.5 percent of the unfair labor practice charges filed, however, over 91 percent of them settled before the commencement of proceedings. Significantly, the regional offices won over 90 percent of the unfair labor practice charges that were litigated, one of the highest success rates for the regional offices in the past ten years. Regional offices recovered more than $44.3 million dollars in back pay, fines and dues. This is down significantly from the $60.5 million recovered the previous year.
Despite the reduction in total cases, the NLRB has seen an increase in public inquiries and questions. The NLRB’s field offices received 119,992 inquiries from the public about the National Labor Relations Act, representing a 3.5 percent increase. The NLRB also received more than 37,323 calls on its toll-free telephone number, a 16 percent increase from the prior year.
Finally, looking ahead, the NLRB is undergoing further personnel changes as Member Hayes’ term recently expired. As the only remaining Republican on the NLRB, employers certainly will miss his presence and his strenuous dissents in cases where the majority overturned long-standing precedent. The NLRB is also facing challenges to the validity of its current three-Member quorum. In early 2012, President Obama used recess appointments (appointing NLRB members while Congress is in recess), to appoint three new NLRB members. Employers and business supporters have a lawsuit pending before the U.S. Court of Appeals for the D.C. Circuit, which argues that the appointments were invalid because the Senate briefly held a pro forma session on the day of the appointments. If the Appellate Court agrees and declares the appointments invalid this will eliminate the NLRB’s decisions from the past year—an obviously significant result. We will continue to monitor the case and provide appropriate updates as necessary.
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