NLRB Reduces Case Backlog, Cuts Age of Cases In Half

The National Labor Relations Board (NLRB) announced in mid October that it issued 341 decisions in contested cases during from October 1, 2011, through September 30, 2012. The agency issued decisions in 277 unfair labor practice cases and 64 representation cases.

The NLRB also said it cut the median age of pending cases to 108 days from 219 days – a reduction of nearly 50 percent. All Board decisions can be found on the NLRB website. 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.
• 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. However, the Board found that the employer’s “courtesy” policy was unlawfully overbroad. More such cases are pending.
• Immigration status and back pay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine back pay 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. 

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