NLRB Ends 50-Year Practice Of Approving Consent Orders

In a 3-1 decision issued on Aug. 26, the National Labor Relations Board (NLRB) ended its long-standing practice of approving consent orders. Consent orders permit an administrative law judge to resolve an unfair labor practice case prior to adjudication based on terms offered solely by the respondent.

As legal experts at Ballard Spahr LLP explained, the NLRB’s decision “will make it more difficult for employers to settle cases at the NLRB unless they are willing to accept the full remedy sought by the general counsel.” The board’s majority likened the practice of approving consent orders to a unilateral resolution between an administrative law judge and respondent, concluding for the first time in more than 50 years that the NLRB’s own rules do not permit judges to “adjust cases” in this manner.

The NLRB’s majority also argued allowing judges to approve consent orders intrudes on the general counsel’s prosecutorial authority under the National Labor Relations Act, and that the practice “poses administrative challenges and inefficiencies” for the NLRB.

The NLRB said would continue to evaluate true settlement agreements, or agreements between a respondent and at least one additional party, but clarified that consent orders are “not settlement agreements in any sense.”

Calling the majority’s decision “radical,” the lone dissenting NLRB accused the majority of giving the general counsel “carte blanche” to force cases through litigation in order to suit the general counsel’s own agenda.