On Monday, December 11, 2017, the Board issued a decision holding that Administrative Law Judges can approve an employer’s offer to settle unfair labor practice charges so long as the settlement offer is “reasonable,” even if the general counsel and charging party object to the settlement. The case reverses Obama-era precedent that held that an ALJ can approve a settlement only if the settlement provides “complete relief” for every alleged unfair labor practice. That standard made it impractical for employers to settle unfair labor practice charges because employers received no compromise in exchange for foregoing full-blown litigation.
In the 3-2 decision in UPMC, 365 NLRB No. 153 (2017), the newly-formed Republican majority returned to the multi-factored “reasonableness” standard set out in Independent Stave, 287 NLRB 740 (1987). Under that standard, an ALJ will approve settlements that “effectuate the purposes and policies of the Act,” considering factors like whether the charging party or GC object to the settlement, whether the settlement is reasonable in light of the alleged violations, and whether the employer has engaged in a history of violations or breached previous settlement agreements. The UPMC decision makes it easier for employers to settle unfair labor practice charges short of full litigation.
The decision could be the first of many significant decisions this week, as Chairman Miscimarra’s term ends December 16, 2017.
This case follows on the heels of the new NLRB General Counsel’s Advice Memo announcing a significant policy shift in the GC’s office. It also follows on Miscimarra’s separate opinions in two other NLRB decisions involving settlements of unfair labor practice charges.