A recent National Labor Relations Board (NLRB) decision has ended the practice of administrative law judge (ALJ) approval of consent orders to resolve unfair labor practice (ULP) charges. This is yet another development from the NLRB that makes it more difficult to settle charges and increases the likelihood those matters will end in litigation.

Quick Hits

• A recent decision from the NLRB found that consent orders undermine the NLRB general counsel’s prosecutorial authority and fail to facilitate a mutual resolution of labor disputes.
• For now, the NLRB will no longer accept consent orders, which are settlement terms unilaterally proposed by a respondent (typically an employer) without the consent of the general counsel or the charging party.
• Moving forward, only bilateral settlement agreements may be approved by the Board, i.e., those that involve mutual consent between the employer, the general counsel, and/or a charging party.

On August 22, 2024, the NLRB issued Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, in which it held that the Board will no longer accept consent orders. In a press release, the NLRB stated, “[T]he practice of accepting consent orders seems 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 forth in Independent Stave Co., 287 NLRB 740 (1987). Under Independent Stave, ALJs applied a four-factor test and exercised discretion to evaluate whether proposed resolution terms were reasonable and effectuated the purposes of the National Labor Relations Act. In overruling prior decisions accepting the practice of consent orders, the Board determined to apply the new standard both prospectively and retroactively to any open cases pending before the NLRB.

Next Steps

The decision in Metro Health is significant as it eliminates a previously available method for employers to resolve unfair labor practice charges on terms that an administrative law judge finds reasonable. Now, employers’ options for resolving ULP charges are limited to either reaching a settlement with the general counsel or the charging party, or proceeding to litigation.