That Darned NLRB!

The ways some folks talk you would think that the National Labor Relations Board was headed by Satan and that the National Labor Relations Act was written by satanic hordes out to destroy workers. So let’s see what this spawn of the damned was up to this past fiscal year. Then you can decide: Spawn of Satan or Agency trying to do its job of protecting worker rights to organize and bargain collectively?

What did the NLRB do in the last year? Well, first they won a lot of cases, a whole heck of a lot of cases. And they won a lot millions of dollars for workers.

The Regional Offices won 90.8% of Board and Administrative Law Judge decisions in whole or in part in FY 2008, significantly higher than the 85% rate experienced in FY 2007. Over the last 10 years, the percentage of wins, in whole or in part, has ranged between 78% and 90.8%.

The Regional Offices recovered $70,001,594 on behalf of employees as backpay or reimbursement of fees, dues, and fines in FY 2008, compared to $110,388,806 in FY 2007. In FY 2008, a total of 1,564 employees were offered reinstatement, compared to 2,456 in FY 2007.

One criticism of the NLRB is that it takes forever to process cases. That criticism is true only if forever is measured in days. Here are the statistics for the most recent Fiscal Year. Cases were closed in

· 83.50% of all representation (i.e. election) cases within 100 days (target 80%),

· 68.10% of all unfair labor practice cases within 120 days (target 68%), and

· 75.22% of all meritorious unfair labor practice cases (i.e. those that include not just investigation but filing a complaint and potentially trying the case) within 365 days (target 75%).

By the way, I think it should be noted that those criticisms about egregious delay are not directed against other agencies, including the EEOC or OSHA whose cases can pend for years as they work their way through the agency and courts of appeals.

The argument against the NLRB also seems to assume that it is the Board or the law itself that somehow drags cases out, rather than the more logical insight that it is employer opposition and anti-unionism that leads them to fight to the death.

I think you cannot go wrong in understanding how labor rights function in this country by betting that the problem is employer hatred of unions and willingness to go to the mat to fight them.

NLRB staff work includes fielding questions from the public about their rights.

The Agency’s 51 field offices received 154,028 public inquiries in FY 2008, an 18.6% decrease from the 189,172 received during FY 2007. The public can contact the Agency through a toll-free telephone service designed to provide easy and cost-free access to information to the public. Callers to the toll-free number may listen to messages recorded in English and Spanish that provide a general description of the Agency’s mission and connections to other government agencies or to Information Officers located in the Agency’s Regional Offices. In FY 2008, the toll-free telephone service received 53,077 calls, of which 20,364 were connected to Regional Offices for further assistance. In FY 2007, the toll-free telephone service received 68,556 calls, of which 24,547 were for further assistance by the Regions.

Case filings are up. Remember the increase here and lower staff levels in assessing the time to handle a case.

Total case intake during FY 2008 was 25,901, compared to 25,471 cases in FY 2007, representing a 1.7% increase in overall intake. Unfair labor practice case intake was 22,501, a 1.6% increase from the FY 2007 intake of 22,147. Representation case intake was 3,400 a 2.3% increase from the FY 2007 intake of 3,324. Petitions filed in unit deauthorization, unit amendment and unit clarification (UD, AC and UC) cases decreased by 11.9% from the previous year’s intake with the filing of 245 petitions in FY 2008 compared to 278 filed in FY 2007.

These results occurred even though the Board had a smaller staff.

The average professional staff handling the workload in the Regional Offices decreased during FY 2008 to 821 employees as compared to 855 in FY 2007. The Agency has engaged in limited hiring from FY 2002 through FY 2008 due to delays in the enactment of our final budgets and the decline in case intake. Despite this reduced hiring, the field offices were able to contain their inventory of pending cases, even achieving a slight decrease. There were 3,792 situations pending at the end of FY 2007. At the end of FY 2008, that number decreased to 3,570.

More details on elections. Some claim that the NLRB election process causes litigation, while card check process are the result of agreements. However, almost all NLRB elections are held based on agreements between the parties. This past year, only 169 elections were contested and required a decision to be made by the NLRB Regional Director. Those decisions were issued in a median time of 36 days from the filing of the petition.

Here are the statistics from this past year.

The Regions conducted 2,085 initial representation elections in FY 2008, of which 91.8% were held pursuant to agreement of the parties, compared to 2,080 initial elections and a 91.2% election agreement rate for FY 2007. Actual performance thus continues to exceed our goal, which is to conduct 85% of elections pursuant to voluntary election agreements.

In FY 2008, the median time to proceed to an election from the filing of a petition was 38 days, one day less than the 39 median days achieved in FY 2007, and below our target median of 42 days. Most critically, 95.1% of all initial representation elections were conducted within 56 days of the filing of the petition in FY 2008, compared to 93.9% in FY 2007, and above our target of 90%.

In 73 cases post-election objections and/or challenges were filed requiring the conduct of an investigative hearing. Decisions or Supplemental Reports issued in those cases in 72 median days. In 45 cases post-election objections and/or challenges were filed that could be resolved without a hearing. Decisions or Supplemental Reports in those cases issued in 28 median days. The goal in hearing cases is 80 median days and in non-hearing cases 32 median days.

You can find the full report here.

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