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Quick Hits
- A recent decision from the NLRB found that consent orders undermine the NLRB general counsel’s prosecutorial authority and fail to facilitate a mutual resolution of labor disputes.
- For now, the NLRB will no longer accept consent orders, which are settlement terms unilaterally proposed by a respondent (typically an employer) without the consent of the general counsel or the charging party.
- Moving forward, only bilateral settlement agreements may be approved by the Board, i.e., those that involve mutual consent between the employer, the general counsel, and/or a charging party.
On August 22, 2024, the NLRB issued Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, in which it held that the Board will no longer accept consent orders. In a press release, the NLRB stated, “[T]he practice of accepting consent orders seems contrary to the language of the board’s Rules and Regulations, creates administrative difficulties and inefficiencies, and tends to interfere with the prosecutorial authority of the General Counsel.”
Before Metro Health, respondents could seek judicial approval of a consent order under the standards set forth in Independent Stave Co., 287 NLRB 740 (1987). Under Independent Stave, ALJs applied a four-factor test and exercised discretion to evaluate whether proposed resolution terms were reasonable and effectuated the purposes of the National Labor Relations Act. In overruling prior decisions accepting the practice of consent orders, the Board determined to apply the new standard both prospectively and retroactively to any open cases pending before the NLRB.
Next Steps
The decision in Metro Health is significant as it eliminates a previously available method for employers to resolve unfair labor practice charges on terms that an administrative law judge finds reasonable. Now, employers’ options for resolving ULP charges are limited to either reaching a settlement with the general counsel or the charging party, or proceeding to litigation.
Ogletree Deakins’ Traditional Labor Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog as new information becomes available.
Jennifer G. Betts is a shareholder in Ogletree Deakins’ Pittsburgh office and a member of the Steering Committee of the firm’s Traditional Labor Practice Group.
C. Thomas Davis is a shareholder in Ogletree Deakins’ Nashville office and practice group leader of the firm’s Traditional Labor Practice Group.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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