On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties to consider whether the Board should continue to permit Administrative Law Judges to issue “consent orders,” subject to review by the Board, incorporating the terms proposed by the respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the Board’s General Counsel.

The Board consistently has maintained a policy to encourage settlements which effectuate the purposes of the National Labor Relations Act.  Consistent with the policy, an Administrative Law Judge is authorized to accept a proposed settlement even if the General Counsel and the charging party oppose such action.  Thus, a respondent may propose a unilateral agreement, which the Administrative Law Judge may approve, based on the totality of the circumstances surrounding the agreement, in the form of a “consent order.”

In United States Postal Service, the Administrative Law Judge approved a unilateral settlement agreement by “consent order” over the objection of the charging party and the Board’s general counsel.  In seeking review, the General Counsel averred that the respondent is a recidivist that has committed hundreds of labor law violations across its many facilities.  According to the General Counsel, the “consent order,” which restricted the settlement to one facility and included a six-month sunset clause, is contrary to the Board’s goals of preventing recidivism and monitoring compliance with decisions.

The Board’s invitation to file briefs asks two questions:

  1. May the Board, consistent with Section 3(d) of the National Labor Relations Act, continue to permit administrative law judges to issue a “consent order,” subject to review by the Board, incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel?
  2. If Section 3(d) does allow the Board’s current practice, should the Board alter or discontinue the practice as a matter of policy?

Briefs are due by March 18, 2016, with responsive filings by April 1, 2016.