On March 14, 2018, NLRB General Counsel Peter Robb issued a memorandum in response to questions and concerns raised at the Midwinter Meeting of the American Bar Association’s Practice and Procedure Under the National Labor Relations Act Committee of the Labor and Employment Law Section. This is an annual tradition for the General Counsel of the National Labor Relations Board.
As the newly confirmed General Counsel, this is Robb’s first time issuing such a report. For those who don’t have the time to read all 27 pages, here are some highlights.
Reorganization of Field Operations
In his first months as General Counsel, Robb has raised many eyebrows and ruffled a fair number of feathers. This has primarily occurred through his designs on reorganizing how the NLRB’s field offices operate.
On this subject, the GC’s memorandum offers:
The General Counsel is currently soliciting input from Agency HQ and Field staff for the purpose of formulating recommended changes to existing case processing procedures. At an appropriate future point, the General Counsel, again in deliberation with Agency staff, will examine and may propose, as appropriate, recommended changes to the structure of the Field offices. No decisions have been made at this time.
The report further indicates that the changes are under consideration for budgetary purposes, adding:
The results of such changes may be to generate benefits in several potential areas, including perhaps: improvement in the efficiency, timeliness, quality of services and organizational decision making, elimination of unnecessary levels of management and administrative support, maximization of employee performance, reduction in travel and other case processing expenses.
The General Counsel also suggests that any changes to the structure of the field offices “will be open for public comment prior to implementation.” He identifies a target effective date of October 1, 2018.
Unfair Labor Practices
In the memorandum the General Counsel reports case-handling statistics for Fiscal Year 2017.
The NLRB received 19,280 charges last year. It settled 95% of them. The agency issued 1,263 formal complaints based on charges. Overall, the NLRB found merit in only 38.6% of the charges filed.
The report includes much more data on topics including:
- Motions for Summary Judgment
- Deferrals
- Subpoenas
- Section 10(j) Injunctions
- Submissions to the Division of Advice
- Charges on Particular Subjects
Representation Cases
Union representation petitions resulted in 1,205 elections in FY 2017. Unions won 71% of these elections. Across these elections 80.5% of the 81,646 eligible employees voted. Overall, 46.7% of the eligible employees voted “yes” and 33.7% voted “no.”
The NLRB also conducted 173 decertification elections. Unions won 32% of these elections, yielding a 68% decertification rate.
The GC’s memorandum also includes a chart of days to election from FY08 to FY17. From 2008 to 2014, there was a median each year of 37 or 38 days from filing of an election petition to the date of the election. In 2015 the number dropped to 33. Over the past two years it has been much lower at 23 days.
The average size of bargaining units has ranged from 24 to 28 between FY07 and FY17. The 2017 average of 24 employees matches that of 2007, 2009, and 2017.
More to Come from the General Counsel and the NLRB
This will not be the last we hear about the NLRB this year. There is still one vacancy on the 5-member Board. Management-side labor attorney John Ring awaits Senate confirmation. When he, or someone else, joins the Board, the new member will join Chairman Marvin Kaplan and Member Bill Emanuel giving the NLRB a Republican majority. They are likely to get back to work changing Obama-era precedents favorable to labor.
One issue still on the table is the fate of the Obama Board’s so-called “quickie” election rules. Late last year a temporary Republican majority issued a request for information suggesting an interest in changing the representation procedures. The Board has now twice extended the time to respond to the RFI. The current deadline is April 18, 2018.
Labor attorneys representing both sides will also be interested to see whether and how the General Counsel proposes to reorganize the NLRB’s field offices. This could significantly affect how the agency operates.