Part I on Daily Kos was here. Second of the issues often complained about is NLRB delay. So lets take a look at the facts.
crossposted from unbossed
The discussion about delay is mainly about delay in holding elections, but it can also include delay in trying cases. I recently summarized the NLRB’s statistics for FY2008, including those about delay.
Elections
When I have asked people to guess how long it takes to hold an NLRB election, I often get the answer "years and years."
Try less than two months.
83.5% of all representation (i.e. election) cases were completed within 100 days. That means start to finish up all the paperwork - not till the election was held. That median time to hold an election from the date the petition was filed was just slightly longer than one month. Median means that this is the halfway point - so half were less and half more. But those above the median did not go on forever. Almost all were completed in less than two months – 95.1% were held within 56 days of the filing of the petition.
Those that take longer are because there was no agreement by the employer and union or that one of the parties to the election decided to challenge the election results. In both cases, that delay is likely to come from the employer. And lest it come as a surprise to you, American employers do not exactly have a history of welcoming unions with open arms. Their tactic often is to fight by trying to delay.
However, despite the problem of employer opposition, almost all – 91.8% of elections were held by agreement of the parties. That means they agreed to which jobs were eligible to vote for unionization and they agreed to the date and times and all other details.
For FY2008, 73 elections that had post-elections objections or challenges filed. Those process were completed in a median time of 72 days. 45 of those challenges or objections were resolved without a hearing, i.e. with agreement.
So with elections the real story is relatively short times to election and a process that mostly involves agreement.
Unfair labor practice cases
The story with unfair labor practice cases (the ones that can lead to money remedies for employees), the story is much the same. Keep in mind that what happens with ULPs is that a charge is filed. The NLRB investigates it (much like a prosecutor would investigate a charge that a crime was committed) and decides whether there is evidence that means the NLRB can prove a violation of the NLRA. If it is decided the NLRB can prove a violation at trial, a complaint is issued, and if it is not settled, a trial is held. Appeals can be taken from the trial to the Board in Washington, DC, and from their decision to a federal court of appeals.
So given all that has to happen, how long do NLRB ULP cases take?
Three-quarters of just the cases that take the most time are completed within one year.
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%).
I know a year is a long time. But to be fair you have to compare with how these time periods compare with other litigation. It is a rare civil case that involves going to trial and through the whole process in less than a year. Taking an appeal to the courts of appeals is guaranteed to take 2-3 years. So when you look at the whole picture, the NLRB’s times are not bad. Sure they could possibly be better, but to do that you need more judges and more NLRB employees. That is not against the law, but it would mean funding the NLRB so it can hire those additional employees.