The National Labor Relations Board issued a press release today touting its work in fiscal year 2012. Between October 1, 2011 and September 30, 2012, the NLRB issued 341 decisions in contested cases – 277 unfair labor practice cases and 64 representation cases. Included in those decisions were nine of its 10 oldest decisions. By removing those from its docket, the average age of pending cases was cut in half from 219 days to 108 days.
The Board’s press release highlights the significant topics it addressed in FY 2012:
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.
The statement also referenced the new election rules it passed that were designed to "streamline the representation case process." However, as we have discussed in this blog, the new "quickie" election rules are currently suspended pending legal challenges, and several of the holdings in the decisions referenced above (e.g., class action waivers and the Specialty Healthcare standard) are currently being challenged in appellate courts. We will continue to provide updates on those issues and other labor law developments as they occur.