An order, dated February 19, 2016, by the Board granted special permission to appeal and invited briefs over the issue of whether or not they will continue to permit Administrative Law Judges to issue orders granting settlement terms proposed by a respondent, to which no other party has agreed to, over the objections of the General Counsel.  Although these are relatively limited situations that arise, under Board procedures they definitely provide a mechanism to keep the General Counsel’s office in check over unreasonable settlement demands, especially in light of unfair labor practice claims that would normally be subject to a motion to dismiss or summary judgment if litigated in the courts.

Let’s be realistic, the Board normally does not take this action (brief invitation) unless it intends to change its practice. This is no more than a heads-up to all those who practice before the Board, that they are going to change their policy on this matter.  The invitation to file briefs over the current practice is simply providing lip service to the public and is truly not meant to engage in any high level discussion over the pros and cons of this procedure.   Like so many of the other changes which this Board has made since the Obama Administration has been in power, the best that can be hoped is that there will be a true change come the elections in November that would result in a change in the make-up of the Board and a reversal to the status quo ante for so many of these matters.   Let’s keep our fingers crossed.