Highlights From Acting General Counsel’s Annual Operations Summary

Last week, AGC Lafe Solomon issued his annual summary of operations (pdf) for FY 2011. The summary reviews the various functions of the Acting General Counsel’s office, which include conducting secret ballot union elections and investigating and prosecuting unfair labor practice charges against employers and unions.

Of the information reported, perhaps the most interesting given the NLRB’s current regulatory efforts was the data on union representation elections.  The AGC reported that 91.7% of all union representation elections were completed within 56 days of filing the election petition.  Moreover, the median time taken to conduct the union election was 38 days from the filing of the petition.  Of the elections conducted, 89% were held pursuant to agreement of the parties.

Despite the speed with which regional offices conduct union elections, the NLRB continues to explore administrative rulemaking designed to accelerate the election cycle.  Moreover, in the face of evidence that the vast majority of elections are held pursuant to an agreement (i.e., without any litigation or disputes), the NLRB’s rulemaking process targets the elimination of various procedures the NLRB says lead to litigation that slows down the election process.

The AGC also reported that total case intake for union election petitions was down in FY 2011 by 12.2%.  This statistic is particularly striking given the continuing weakness in union membership data.  The Bureau of Labor Statistics reported earlier this year that union membership stood at 11.8% of the total workforce, and only 6.9% of the private sector workforce.  Given these numbers, a decline in representation petitions (one way in which unions can increase membership) is unexpected. 

Other highlights from the report of interest to the labor professional include:

• Total intake of all types of cases during FY 2011 was down 5.9%.
• Of the 22,177 total unfair labor practice cases filed in FY 2011, the AGC found that additional proceedings were warranted in 37% of them.
• The number of unfair labor practice complaints (which required the employer or union to defend its conduct before an administrative law judge (ALJ)) issued in FY 2011 increased to 1,342 cases.
• The AGC won 87% of all the cases litigated before the NLRB or an ALJ.
• The amount of backpay, fees, dues or fines recovered on behalf of employees was down significantly from FY 2010 at a total of just over $60 million.  The figure in 2010 was over $85 million.