NLRB Saw Total Case Intake Fall in FY 2012; Election Petitions Down More Than 6 Percent

By Lawrence E. Dubé

The National Labor Relations Board experienced nearly a 3 percent decrease in total case intake during fiscal year 2012, with more than a 6 percent decrease in representation case filings, Acting General Counsel Lafe E. Solomon reported in a summary of operations released Jan. 11 (Memorandum GC 13-01).

The agency received a total of 24,275 cases filed under the National Labor Relations Act in FY 2012, which ended Sept. 30, 2012, compared with 25,004 in the previous fiscal year, according to Solomon’s summary. The total includes 21,629 unfair labor practice (ULP) cases, which is a 2.5 percent decrease from the 22,175 filed in FY 2011, and 2,646 representation cases, a 6.5 percent drop from the previous year’s intake of 2,829.

The representation case filings included 2,484 petitions for certification or decertification of a union representative, down 5.7 percent from 2,634 in FY 2011, and 162 deauthorization, unit amendment, or unit clarification petitions, down 9.5 percent from 179 the previous period.

Still Meeting ‘Overarching Casehandling Goals’

Solomon reported that NLRB met two of its three “overarching casehandling goals” for FY 2012, and missed the third goal by only a fraction of 1 percent.

Agency personnel completed 84.5 percent of all representation cases within 100 days, falling just short of an 85.2 percent goal. The agency closed 72.7 percent of all ULP cases within 120 days, exceeding a goal of 72 percent. The agency also closed 83.8 percent of ULP cases found to merit formal proceedings, surpassing a target of 80.3 percent.

The board’s regional offices issued 1,314 ULP complaints during FY 2012, down from 1,342 in the previous year.

According to the summary, NLRB defines the ULP case “merit factor” as the percentage of cases in which a regional director finds that formal proceedings are warranted. Solomon wrote that the merit factor, which has fluctuated between 32 percent and 40 percent since 1980, was 36.5 percent in FY 2012, slightly lower than the previous year’s merit factor of 37 percent.

NLRB regional offices obtained 6,742 settlements in 91 percent of merit cases last year, compared with 6,246 settlements in FY 2011 and a settlement rate of 93 percent. The summary reported the settlement rate has ranged between 91 percent and 99.5 percent during the past 10 years.

In prosecuting ULP cases before administrative law judges and the board, the regional offices won 90.1 percent in whole or in part during FY 2011, higher than the 87 percent rate reported the year before. The win rate has ranged between 78 percent and 91 percent during the past 10 years, according to the summary.

Regional offices recovered more than $44.3 million in back pay or reimbursement of union fees, dues, and fines on behalf of employees in FY 2011, down from $60.5 million the previous period, and obtained offers of reinstatement for 1,241 employees, compared with 1,644 in FY 2011.

Median Time to Elections Stays at 38 Days

The board’s regional offices conducted 1,611 initial representation elections during FY 2011, up 13.2 percent from 1,423 the previous year.

Solomon reported that 90 percent of the elections during FY 2012 were held pursuant to agreements between the parties, compared with 89 percent in FY 2011. The agency’s goal is to conduct at least 85 percent of elections under voluntary election agreements.

Regional directors issued 169 pre-election decisions in contested representation cases after a hearing during FY 2012, in a median time of 34 days, compared with 203 decisions in a median time of 33 days the previous year.

The elections were conducted in a median time of 38 days after the filing of the petition; the median for FY 2011 and FY 2010 also was 38 days, satisfying the agency’s target median of 42 days. Solomon said 93.9 percent of all initial representation elections occurred within 56 days of the filing of an election petition, compared with 91.7 percent in FY 2011. The agency’s goal is 90 percent.

Investigative hearings regarding postelection objections and/or challenges were conducted in 42 cases, down slightly from 45 cases the year before. According to Solomon, decisions or supplemental reports issued in those cases in a median of 43 days. He said objections and/or challenges that could be resolved without a hearing were filed in 70 cases. Decisions or supplemental reports issued in a median of 21 days. The performance goals are 80 median days for hearing cases and 32 median days in nonhearing cases.

Appeals, Advice, and Injunction Activity

The Office of Appeals, which hears appeals from a regional director’s refusal to issue a ULP complaint, received 1,892 appeals during FY 2012, a 4 percent decrease from the 1,970 appeals received the prior period. The rate of reversal of regional directors’ dismissals was .7 percent, lower than the 1 percent rate recorded a year ago.

The Division of Advice, which advises the regional offices on novel or complex legal issues, received 595 cases and processed them in a median of 20 days during FY 2012, compared with the receipt of 654 cases and a median processing time of 16 days the previous period.

Section 10(j) of the NLRA authorizes the board to petition a federal district court for interim injunctive relief in unfair labor practice cases pending before NLRB.

The board normally authorizes Section 10(j) filings, and in FY 2012 the board authorized injunctive action in 58 cases, compared with 59 authorized a year earlier. NLRB regional offices filed Section 10(j) petitions in federal district courts in 37 cases in FY 2012, compared with 45 filings in FY 2011.

Solomon reported that in FY 2012, the board had a Section 10(j) “success rate” of 97 percent, representing the percentage of authorized Section 10(j) cases in which NLRB achieved either a satisfactory settlement or a substantial litigation victory. The success rate reported for FY 2011 was 93 percent, while in FY 2010 the agency attained a 92 percent rate.

Public Information Efforts Described

NLRB field offices received 119,992 inquiries from the public in FY 2012, a 3.5 percent increase from 115,959 inquires in FY 2011.

The agency also has a toll-free telephone number, which received more than 37,323 calls, up from 32,133 in FY 2011.

Commenting on the year-end statistics, Solomon wrote, “the record of performance achieved by the staffs of the Headquarters and Regional Offices of the General Counsel in Fiscal Year 2012 based on preliminary statistical reports was once again outstanding.”

By Lawrence E. Dubé

Text of the acting general counsel’s report is available at http://about.bloomberglaw.com/files/2013/01/dlrcases.nsf_.pdf.