NLRB case production in FY 2012: With 341 decisions issued, backlog is reduced, age of pending cases cut in half

The National Labor Relations Board issued 341 decisions in contested cases during Fiscal Year 2012 (October 1, 2011 through September 30, 2012), tackling many of its oldest cases. 

In resolving nine of the 10 oldest cases it faced at the start of the fiscal year, the Board cut the median age of pending cases in half – from 219 days to 108 days. Decisions were issued in 277 unfair labor practice cases and 64 representation cases.

Also during this period, the Board finalized a rule to streamline the representation case process (currently suspended pending court challenges), and invited briefs from the public on several significant issues, including the employment status of certain university faculty members and graduate teaching assistants.

The composition of the Board changed several times during the fiscal year. The recess appointment of Member Craig Becker expired on Jan. 3. Three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn - were recess-appointed by President Obama and took office in early January. Member Flynn resigned his position effective July 24. The Board currently stands at four members, with Chairman Mark Pearce and Member Brian Hayes in addition to Members Griffin and Block.

All Board decisions can be found on the NLRB website here. Some highlights of FY2012 case production follow.

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.