National Labor Relations Board acting general counsel Lafe Solomon gave his office high marks last week in an annual review of case-handling performance. In his Summary of Operations [PDF] for fiscal year 2012, Solomon called the work of staff in the Washington D.C. and regional offices outstanding.
Solomon noted that the agency met two out of three of its "overarching goals, closing:
- 72.7 percent of all unfair labor practice cases within 120 days (target: 72.0 percent).
- 83.8 percent of all meritorious unfair labor practice cases within 365 days (target: 80.3 percent).
- 84.5 percent of all representation cases within 100 days (target: 85.2 percent).
Overall, case intake declined 3 percent in fiscal year 2012, with unfair labor practice charges dropping 2.5 percent to 21,629 and representation case intake falling 6.5 percent to 2,646. The NLRBs processes can only be initiated when a member of the public files either an unfair labor practice charge or a representation petition.
The intake dip surprised Scott Silverman, of counsel at Akerman Senterfitt in Tampa, particularly, he says, given the efforts of the office of the GC and the Board to have the [National Labor Relations] Act applied in non-union workplaces.
Since he was appointed in June 2010, Solomon has actively publicized the applicability of the NLRA to both union and non-union workers.
Silverman has counseled management in labor and employment law for more than 15 years. He has watched union penetration in the private workforce drop during that time. The Bureau of Labor Statistics will release a report later this month on current union membership. But in 2011, just 11.8 percent of the workforce belonged to unions, compared to 1983, when membership exceeded 20 percent.
Silverman still stresses the importance of union avoidance training for employers. In fiscal year 2012, the median time between the filing of a petition and an initial representation election was just 38 days. That number was four days below the offices target of 42 days, and Silverman says it doesnt allow sufficient time for an employer who has never done any training to win an election.
The low number also demonstrates that, as they are, elections are not unduly protracted, he says. That argument has been made by employers to dispute the need for an expedited election rule. Implementation of the NLRBs rule speeding up the process was suspended last spring.
Doreen Davis, a partner in the New York office of Jones Day, agrees that the 38-day figure points out why theres no need for rulemaking on so-called quickie elections.
Davis started her career as an NLRB lawyer. Now a member of the firms labor and employment practice who focuses on NLRB advice and litigation, union organizational activities, and collective bargaining, she says the NLRB does an outstanding job.
Davis notes that despite a decline in petitions, unions are successfully finding alternate means of unionization, including engaging in corporate campaigns, as an alternative to the NLRB election process.
With overall intake down, the agency tallied fewer remedies on behalf of employees in fiscal year 2012. The regional offices recovered $44.3 million in back pay or reimbursement of fees, dues, and fines last year, compared to $60.5 million in fiscal year 2011. Additionally, a smaller number of workers were reinstated1,241, compared to 1,644 a year earlier.
Some of the decline could also be attributable to agreements between parties to withdraw charges and settle disputes on their own. Because of what Davis calls onerous mandatory language inserted in agency settlements in the last couple of years, many of her clients are opting to enter private, non-board settlements. Those settlements are not accounted for in the GCs report.
Other accomplishments noted by Solomon include:
- 93.9 percent of all initial elections were conducted within 56 days of filing a petition.
- A 91 percent settlement rate achieved by regional offices in unfair labor practice cases.
- Regional offices won 90.1 percent of Board or administrative law judge unfair labor practice and compliance decisions in whole or in part.
- 94.5 percent of Board decisions reviewed by appellate courts were enforced or affirmed in whole or in part.
Summing up the offices performance, Silverman says, In terms of meeting their goals for the year, they did.