NLRB Decision Ends Longstanding Precedent of Approving Employer Proposed Consent Orders

NLRB Decision Ends Longstanding Precedent of Approving Employer Proposed Consent Orders
By Nicole Elgin and Lex Shvartsmann
Barran Liebman Law,

On August 22, 2024, the National Labor Relations Board (“NLRB” or “the Board”) issued a decision overruling the prior standard for approving consent orders and holding that the Board will no longer approve of consent orders for resolving unfair labor practice charges.

What are Consent Orders?

A consent order is a type of settlement agreement where a party against whom an unfair labor practice (ULP) charge has been filed may propose a resolution to be approved by the Board without agreement from the charging party or the General Counsel.

Previous Standard for Approving Consent Orders

The use of consent orders to resolve ULP charges was established in 1971, when the Board first approved its use in Local 201, Int’l Union of Elec., Radio & Mach. Workers, 188 NLRB 855 (1971). In the following years, some back and forth on the propriety of the standard for evaluating consent orders ensued. In 2017, the NLRB issued UPMC, 365 NLRB 152 (2017), re-establishing the “reasonableness” standard for evaluating consent orders.

The New Standard: Metro Health, Inc.

The holding in Metro Health, Inc., 373 NLRB 89 (2024) establishes that the Board will “entirely end the practice of approving consent orders.” In reaching this conclusion, the Board cites to the lack of support for consent orders in the Board’s Rules and Regulations, stating consent orders “fail[] to effectuate the policies of the Act.” Further, the Board held that consent orders create an “administrative burden” and “interfere with the General Counsel’s statutory prosecutorial authority.”

What This Means for Employers

Moving forward, employers will not be able to resolve unfair labor practice charges with consent orders. Although the Board in Metro Health, Inc. clarified that “true” mutual settlements are still an available pathway for resolving ULP claims, there is an increased likelihood of litigation for these charges.

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