As the National Labor Relations Board shifts to a Republican majority, a ruling this week constitutes the first of what many expect will be a series of reversals to Obama-era workplace policies.
On December 11, 2017, the National Labor Relations Board ("Board") restored itself as the "exclusive power to deal with unfair labor practices and to prescribe the appropriate remedy" for such violations. This move came in UPMC & UPMC Presbyterian Shadyside, 365 NLRB No. 153 (2017), in which the Board ruled 3-2 that settlement offers may be approved over the charging party and General Counsel's objections if reasonable.
The ruling departed from precedent established just one year prior, in United States Postal Service, 364 NLRB No. 116 (2016), precluding administrative law judges from accepting settlement offers that do not fully remedy each violation alleged when objected to by parties or General Counsel. The Board says that the full remedy standard "tied the hands not only of administrative judges but also of the Board itself." The standard placed the power of determining what constitutes an appropriate remedy for unfair labor practices with the charging party and the General Counsel. In ruling that reasonable, but less-than-full, settlement offers may be accepted despite any objections thereto, the Board freed itself of what it characterized as "an unacceptable constraint" on its ability to wholly exercise its statutory authority.
Reasonableness of settlement offers will be decided based on a nonexhaustive list of factors, which include:
- whether the charging party(ies), the respondent(s), and any of the individual discriminatee(s) have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether the respondent has engaged in a history of violations of the [National Labor Relations Act] or has breached previous settlement agreements resolving unfair labor practice disputes.
No single factor is determinative; however, the second factor clearly weighs the heaviest. The result of this inquiry, as acknowledged by the Board, could be enforcement of "reasonable settlement terms that are somewhat less than what would result if the General Counsel prevailed on every allegation of the complaint after litigating the case to completion." But, to quote Chairman Miscimarra, "a high jumper that clears the bar by a foot would also clear it if he had jumped 6 inches lower." In the eyes of the Board, so too would a labor complainant.
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