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 Acting General Counsel Issues Report on NLRB Activities for FY 2011

By George J. Miller

On March 8, 2012, Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board, issued a Summary of Operations for fiscal year 2011 (October 1, 2010 — September 30, 2011), containing preliminary figures for the fiscal year.  This data reveals a continuing slowdown in labor union activity across the country, especially in representation election cases.  Some of the data includes:

  • total case intake during FY 2011 was 24,990, compared to 26,585 cases in FY 2010, representing a 5.9% decrease in overall intake;
  • unfair labor practice case intake was 22,177, a 5.1% decrease from the FY 2010 intake of 23,381;
  • total representation election case intake was 2,813, a 12.2% decrease from the FY 2010 intake of 3,204.

In addition, however, the NLRB was aggressive in pursuing unfair labor practice cases, most of which were against employers. The NLRB reported:

  • The Regional Offices won 87% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2011.
  • A total of $60,514,922 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, with 1,644 employees offered reinstatement.

The 87% win rate is something which employers (and unions) charged with unfair labor practices need to be very aware of in deciding whether to defend a case through trial or try to settle early in the process.


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NLRB’s Acting General Counsel Announces Revisions to Deferral Policy

By Edwin S. Hopson

On January 20, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, in a press release announced a revision to the Board’s existing policy regarding deferral of unfair labor practice charges to arbitration under collective bargaining agreements.  Citing concerns about delays in processing grievances to arbitration, Solomon directed Regional Directors as follows:

 Section 8(a)(1) and (3) Cases

 –Conduct Charging Party investigation, make arguable-merit determination, and determine whether arbitration is likely to be completed in less than a year.

 –If arbitration is likely to be completed in less than a year:

           –Defer and conduct quarterly reviews.

           –At the fourth quarterly review (in new and currently pending cases in deferral status), send “show cause” letters to all parties seeking an explanation of why deferral should not be revoked.

           –If the Charging Party does not respond, contact the Charging Party and any individual discriminatees before dismissing for failure to prosecute.

          –If there is insufficient reason to continue deferral, conduct a full investigation; if the charge is meritorious, submit the case to Advice; if the charge is non-meritorious, dismiss absent withdrawal.

         –If there is good reason to continue deferral, contact Advice.

 –If arbitration is not likely to be completed in less than a year:

         –Determine, in consultation with all parties, including any individual discriminatees, whether deferral is inappropriate because the delay is likely to frustrate the Board’s remedial ability or unduly disadvantage the Charging Party.

        –If deferral is deemed inappropriate, conduct a full investigation and, if the charge is meritorious, submit the case to Advice.

       –If deferral is considered appropriate despite the delay, contact Advice.

Section 8(a)(5) Cases

–Make deferral decisions and conduct quarterly reviews, as under existing policy.

–If  arbitration is not likely to be or has not been completed within a year, and the case implicates individuals’ statutory rights or involves serious economic harm to the Charging Party, the Region may at its discretion conduct a full investigation and submit the case to Advice in the same manner as Section 8(a)(1) and (3) cases.

Any questions regarding implementation of this revised policy are to be directed to the Division of Advice in Washington, D.C.


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NLRB Adopts New Remedial Policies Regarding Interest on Backpay and Notices to Employees or Members

By Edwin S. Hopson

In two decisions issued October 22, 2010, the National Labor Relations Board adopted two new remedial policies:

●adding daily compound interest to backpay and other monetary awards, and,

●requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases.

The Board’s stated goal was making NLRB remedies more effective as well as more in line with current legal and workplace practices.

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