Wyatt Employment Law Report


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Acting NLRB General Counsel Issues Report on FY 2012 Results

By Edwin S. Hopson

On January 11, 2013, NLRB Acting General Counsel Lafe Solomon released a summary of activities for the Fiscal Year 2012. The following statistics are some that Solomon highlighted on the NLRB’s website:

  • Initial elections in union representation elections were conducted in a median of 38 days from the filing of the petition.
  • A 91.0% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
  • The Regional Offices won 90.1% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part.
  • 94.5% of the 73 Board decisions under review by the US Courts of Appeals were enforced or affirmed in whole or in part.
  • A total of $44,316,059 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines. 1,241 employees were offered reinstatement.

According to his report, the NLRB’s total case intake during fiscal year 2012 was 24,275 compared to 25,004 cases in the prior fiscal year, a decrease of 3%. Unfair labor practice cases decreased by 2.5% from the previous year, and total representation cases decreased 6.5% from the prior year.


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NLRB Announces Case Statistics for Fiscal Yeal 2012

By Edwin S. Hopson

On October 16, 2012, the National Labor Relations Board announced that in the fiscal year just ended on September 30, 2012, it had issued 341 decisions in contested cases.  Of that total, 277 were unfair labor practice cases and 64 were representation cases.  It also stated that the median age of pending cases was reduced from 219 days to 108 days.

It was also noted that there was considerable turnover in board members during this past fiscal year:  the recess appointment of Member Craig Becker expired on Jan. 3, 2012; three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn – were recess-appointed by the President and took office in early January, 2012; and Member Flynn resigned his position effective July 24, 2012. The Board currently has four of the five board member positions filled by Chairman Mark Pearce, and Members Hayes, Griffin and Block.  Hayes’ term expires on December 16, 2012.

In its October 16 press release, the Board listed a number of cases of significance that were decided this past fiscal year:

“Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.”