NLRB Reinstates “Reasonableness” Standard for Settlements

The National Labor Relations Board has reinstated the practice of permitting NLRB Administrative Law Judges to accept an employer’s offer to settle an unfair labor practice complaint, over the objections of the NLRB General Counsel and the union, if the Board finds the proposed settlement terms to be reasonable.

In 2016, the Board under the Obama administration ruled in United States Postal Service that ALJs could not accept a settlement offer to which the NLRB GC and the union objected, unless the offer provided “a full remedy for all violations alleged in the complaint.” This position was a rejection of the prior “reasonableness” standard articulated in the 1987 case of Independent Stave, to which the Board now returns in UPMC and its subsidiary, UPMC Presbyterian Shadyside.

This decision was the first issued by the full five-member Board following President Trump’s appointment of two Republican members, and it was quickly followed by several other decisions that overturned controversial positions taken by the Obama Board, which we addressed in our e-lerts, NLRB Overturns “Overwhelming Community of Interest” Standard and Duty to Bargain Principle (December 18, 2017) and NLRB Overturns Employee Handbook and Joint Employer Standards (December 15, 2017). These decisions followed the issuance of a Memorandum by newly-instated NLRB GC Peter Robb, in which he called into question many of the decisions and positions that had been asserted by the Obama-era Board, which we discussed in our blog post, The Light at the End of the NLRB’s Tunnel? The flurry of such decisions, however, has come to a pause following Board Chair Miscimarra’s departure on December 15 and pending appointment of a new Board member.