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The National Labor Relations Board (NLRB) recently said it will no longer accept “consent orders,” in which an unfair labor practice is settled based on terms offered by one single party, known as “the Respondent,” but rejected by the other parties involved in the dispute (“the Charging Party and the General Counsel”).
In an Aug. 22 decision, the NLRB overruled a 2017 court case that upheld the practice of approving unilateral settlements, i.e., those reached without the agreement of the charging parties or the board’s general counsel. In the case of unfair labor practices (ULPs), respondents are typically employers, while charging parties are often unions or individuals who filed the ULP.
The practice of resolving ULPs unilaterally “fails to serve the goals of the National Labor Relations Act because it does not facilitate a truly mutual resolution of labor disputes,” the NLRB wrote in a statement regarding the decision. “Because consent orders do not represent a real agreement between opposing parties to resolve a case, they do not promote labor peace in the same manner as a true settlement,” said Lauren McFerran, NLRB chairman.
The NLRB said it will continue to accept “true settlement agreements,” that is, those decided with the support of both the respondent and general counsel, and/or a charging party.
Zoom out. With this recent decision, the NLRB returns to a standard that was first restored in 2016 under the Obama administration, and subsequently reversed during the Trump administration.
Now that the NLRB will no longer accept unilateral settlements, employers facing ULPs will either have to come to a mutual agreement or pursue litigation until a complaint is resolved, according to attorneys with law firm Proskauer Rose LLP.
Of course, a change in administration following the presidential election this November could mean newly appointed NLRB members will once again reverse course on consent orders, keeping HR pros on their toes.