NLRB Will No Longer Approve Consent Orders | Ogletree, Deakins, Nash, Smoak & Stewart, PC

(co-author: Leah Shepherd)

A recent decision by the National Labor Relations Board (NLRB) ended the practice of administrative law judges approving consent orders to resolve unfair labor practice charges. This is a new development by the NLRB that makes it more difficult to resolve charges and increases the likelihood that these cases will end up in litigation.

Quick shots

• A recent NLRB decision found that consent orders undermine the prosecutorial authority of the NLRB’s general counsel and do not facilitate the mutual resolution of employment disputes.
• For now, the NLRB will no longer accept consent orders, which are settlement terms unilaterally proposed by a defendant (usually an employer) without the consent of the attorney general or the plaintiff.
• In the future, only bilateral settlement agreements may be approved by the Commission, i.e. those involving mutual consent between the employer, the Attorney General and/or the complainant.

On August 22, 2024, the NLRB issued Metro Health, Inc. d/b/a Metropolitano Rio Piedras Hospitalin which it ruled that the board would no longer accept consent orders. In a press release, the NLRB said: “The practice of accepting consent orders appears to be 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 out in Stave Co. Independent287 NLRB 740 (1987). Under Independent scopeThe ALJs applied a four-factor test and exercised discretion to evaluate whether the proposed resolution terms were reasonable and implemented the purposes of the National Labor Relations Act. In reversing prior decisions accepting the practice of consent orders, the Board decided to apply the new standard both prospectively and retroactively to all cases pending before the NLRB.

Next steps

The decision in Metro Health This measure is significant because it eliminates a method previously available to employers to resolve unfair labor practice charges on terms that an administrative law judge finds reasonable. Employers’ options for resolving unfair labor practice charges are now limited to either reaching an agreement with the attorney general or the complaining party or filing a lawsuit.