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Diving certificate:
- The National Labor Relations Board will no longer accept or approve consent orders to settle an unfair labor practice charge based on terms offered by a defendant but rejected by the agency’s general counsel and the plaintiffs, a decision Thursday said.
- The NLRB’s decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras repeals its 2017 precedent, UPMCafter which a Republican majority affirmed the panel’s authority to approve settlements that further the goals of the National Labor Relations Act, even when such agreements are rejected by the general counsel and the plaintiffs.
- Instead, the 3:1 Democratic majority in Metropolitan Hospital ruled that consent decrees are not supported by the panel’s rules and regulations, create administrative challenges and inefficiencies, and tend to impinge on the general counsel’s authority. The NLRB’s lone Republican member, Marvin Kaplan, dissented.
Diving insight:
The case represents another area of the NLRA where the Board has changed its mind in recent years. As the Board transitioned to a Democratic majority during the Biden administration, it set about reversing Trump-era Board decisions, including those on Findings on anti-union hostility And the scope of the protected activity under the NLRA. It published a new final rule for joint employersadding another chapter to a political tug-of-war that has lasted almost a decade.
According to the Metropolitan Hospital In 1971, the NLRB first approved a consent decree over the objection of its general counsel and a plaintiff, ruling that such an order would protect the public interest and accomplish the goals of the NRLA. However, the panel stated that subsequent decisions “did not require that a consent decree provide all the remedies that the panel could order if it found the unfair labor practices as alleged.”
According to the board, this led to the Obama-era board’s decision in 2016 to United States Postal Serviceby restoring the 1971 standard that it would only consider full-remedial consent orders. The Trump-era Board in UPMC lifted Postal service and concluded that the full-remedies standard for consent decrees represented “an unwise and counterproductive departure from longstanding precedent.”
Settlement agreements are different from “true agreements” between the parties in an unfair labor practice dispute. Thursday’s decision reiterated that the NLRB’s “longstanding practice is to accept a settlement agreement between a defendant and the General Counsel and/or a plaintiff party rather than finally deciding an unfair labor practice case on the merits when acceptance of the agreement would give effect to the provisions of the Act.”
A press release dated August 22 states: NLRB Chair Lauren McFerran said The Metropolitan Hospital Decision preserves the benefits of settlements. “Because settlement decisions do not represent a true agreement between the opposing parties to resolve a case, they do not promote industrial peace in the same way as a true settlement,” she added.
