On August 22, 2024, the National Labor Relations Board (NLRB or Board) issued a landmark decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras, ending the long-standing practice of approving “consent orders.” This ruling marks a significant shift in how labor disputes are resolved and narrows the methods in which employers may resolve unfair labor practice (ULP) charges.
Consent orders were agreements where an administrative law judge could resolve a ULP based on terms proposed by the employer, even if the charging party and the NLRB’s general counsel objected. For decades, consent orders were used as a means of resolving ULPs, provided they offered a full remedy for all of the violations alleged in the complaint. In Metro Health, Inc., however, the Board ruled that these consent orders were impermissible under the Board’s rules and the National Labor Relations Act (NLRA).
The Board’s majority opinion concluded that the use of consent orders in their current practice fails to serve the goals of the NLRA because they do not facilitate a truly mutual resolution of labor disputes. The decision highlighted that the practice of accepting consent orders was contrary to the language of the Board’s rules and regulations, created administrative difficulties and inefficiencies, and interfered with the prosecutorial authority of the general counsel.
Despite this ruling, the Board reaffirmed its longstanding practice of accepting mutual settlement agreements. Employers may, therefore, continue settling ULPs with the general counsel and/or a charging party in lieu of finally adjudicating an unfair labor practice case on the merits, provided the settlement would effectuate the policies of the NLRA.
The Metro Health, Inc. decision introduces greater risks for employers defending against ULPs. Without the option of consent orders, employers now face fewer opportunities for pre-hearing resolutions that are favorable to them. To resolve a ULP, employers must either negotiate a mutual settlement (likely on the general counsel’s terms) or proceed to a full adjudication, which can be costly and time-consuming.
For guidance on defending against and resolving unfair labor practice charges in this new legal landscape, please contact Employers Council’s Labor Relations department.
Drew Hintze is an attorney for Employers Council.