Dive Brief:
- The National Labor Relations Board will no longer accept or approve consent orders to resolve an unfair labor practice charge based on terms that are offered by a respondent but opposed by the agency’s general counsel and charging parties, it said in a decision Thursday.
- NLRB’s decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras overturns its 2017 precedent, UPMC, under which a Republican majority upheld the board’s ability to approve consent orders that effectuate the purposes of the National Labor Relations Act, even if such agreements are opposed by the general counsel and charging parties.
- Instead, the 3-1 Democratic majority in Hospital Metropolitano held that consent orders are not supported by the board’s rules and regulations, pose administrative challenges and inefficiencies, and tend to interfere with the authority of the general counsel. NLRB’s lone Republican member, Marvin Kaplan, dissented.
Dive Insight:
The case constitutes yet another area of the NLRA on which the board has flipped-flopped in recent years. Since the board shifted to a Democratic majority during the Biden administration, it went to work reversing decisions made by the Trump-era board including those on anti-union animus findings and the scope of protected activity under the NLRA. It also published a new joint-employer final rule, adding another chapter to a political tug-of-war that is almost one decade long.
According to the Hospital Metropolitano decision, NLRB first approved a consent order over the objection of its general counsel as well as a charging party in 1971, holding that such an order would protect the public interest and effectuate the purposes of the NRLA. However, the board said that subsequent decisions “did not require that a consent order provide for all the relief that the board might order if it found the unfair labor practices as alleged.”
Per the board, this led to the 2016 Obama-era board’s decision in United States Postal Service, in which it restored the 1971 standard by which it would only consider full-remedy consent orders. The Trump-era board in UPMC overruled Postal Service and found that the full-remedy standard on consent orders “an ill-advised and counterproductive departure from longstanding precedent.”
Consent orders are distinguished from “true settlements” between parties in an unfair labor practice dispute, and Thursday’s decision reiterated that NLRB “has a longstanding practice of accepting a settlement agreement between a respondent and the General Counsel and/or a charging party in lieu of finally adjudicating an unfair labor practice case on the merits, where accepting the settlement would effectuate the policies of the Act.”
In an Aug. 22 press release, NLRB Chairman Lauren McFerran said the Hospital Metropolitano decision preserves the benefits of settlements. “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,” she added.
