The National Labor Relations Board (NLRB) is the federal government agency responsible for enforcing the statute dealing with labor organizing and unfair labor practices. It consists of a five-member board and a General Counsel (GC), all of whom are appointed by the President and confirmed by the Senate. Complaints of labor law violations are first heard by an administrative law judge (ALJ). The board hears appeals of ALJ decisions, with the GC acting as prosecutor. The Senate recently confirmed two new NLRB appointees, giving Republicans a 3-2 majority for the first time in years. A decision issued by the NLRB in December 2017 seems to support claims that the new board will take a much more “pro-business” approach. The decision in UPMC, 365 NLRB No. 153 (2017), reverses a 2016 ruling that dealt with the NLRB’s authority to impose an employer’s settlement offer over the objections of both the charging party and the GC.
The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing for the purpose of collective bargaining. Workers alleging unfair labor practices and other violations of the NLRA may file a complaint with the NLRB. As with many administrative proceedings, the case first goes before an ALJ, who may conduct a trial and issue a ruling. A party can then appeal the ALJ’s ruling to the board. Prior to 2016, ALJs had considerable discretion regarding the disposition of cases. This was a key issue in the UPMC case.
A 2016 decision from the NLRB, U.S. Postal Service, 364 NLRB No. 116, effectively ended an earlier practice that allowed ALJs to impose a settlement offered by a respondent, without the charging party’s or GC’s agreement, if the ALJ determined that the settlement offer was reasonable. The NLRB first allowed this in Electronic Workers IUE Local 201 (General Electric Co.), 188 NLRB 855 (1971), when an ALJ approved a settlement offer as though it were a consent order. The ALJ found that “further hearing herein…could not result in any changes in the proposed Consent Order and Notice,” and the proposed settlement “would be more favorable to the General Counsel and Charging Party” despite their lack of consent. Id. at 857.
The NLRB identified criteria for assessing the reasonableness of a settlement offer in Independent Stave Co., 287 NLRB 740 (1987). These criteria included whether the parties had agreed to the settlement, the reasonableness of the settlement “in light of the nature of the violations alleged” and other considerations, fraud or duress during settlement negotiations, and any history of prior NLRA violations or breaches of settlement agreements by the respondent. Id. at 743.
In Postal Service, the NLRB ruled that the Independent Stave factors were inadequate to protect the charging party’s rights or the public interest. It found that the General Electric decision had sought to provide a “full remedy,” and it therefore ruled that an ALJ may only impose a proposed settlement “if it provides a full remedy for all of the violations alleged in the complaint.” Postal Service at 3. In UPMC, however, the board overruled Postal Service in a 3-2 ruling. The board affirmed the view of a dissenting board member in Postal Service, who stated that the “full remedy” standard “imposed an unacceptable constraint on the Board itself.” UPMC at 1.
If you need to speak to an employment attorney about a dispute in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.
More Blog Posts:
NLRB Judge Rules in Favor of Workers in Wrongful Termination Claim, The New Jersey Employment Attorney Blog, July 10, 2017
NLRB Counsel Issues Memo on Labor Practices at Universities, The New Jersey Employment Attorney Blog, April 25, 2017
Court Rules Against “Persuader Rule” Regarding Union Organizing Rights, The New Jersey Employment Attorney Blog, February 26, 2017