NLRB Will No Longer Accept Disputed “Consent Orders.”

In the latest u-turn, the National Labor Relations Board states that it will no longer accept “consent orders” where an Administrative Law Judge resolves an unfair labor practice case on terms proposed by the Respondent (typically an employer) but objected to by both the Charging Party (typically a union) and the NLRB’s General Counsel. (Not all parties must consent to a “consent order,” unlike a settlement agreement, which does require all-party consent).

In a 1971 case, the Board accepted a consent order over the objection of the General Counsel and charging party, finding that such consent order would promote the purposes and policies of the Act and offered a “full remedy” for the violation. But in subsequent cases, the Board approved consent orders that only “substantially remedied” the unfair labor practices. In 2016, however, the Obama Board issued a decision, Postal Service, in which it returned to the full-remedy consent order standard. Only a year later, the Trump Board reversed course in UMPC, holding that consent orders should be approved if deemed reasonable by the ALJ and the Board.

But now, in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, the Biden Board states that it will no longer accept consent orders to which both the Charging Party and the General Counsel object, even if a full-remedy is proposed. The Board contends that the practice “does not facilitate a truly mutual resolution of labor disputes.” Rather, it “seems contrary to the Board’s Rules and Regulations, creates administrative difficulties and inconveniences, and tends to interfere with the prosecutorial authority of the General Counsel.”

This is an unfortunate development for employers, who previously may have been able to resolve matters on reasonable grounds, even if the General Counsel and/or union were not being realistic. This will likely result in fewer resolutions and more onerous settlement agreements – at least until there is another change in administration and another reversal of position.