NLRB changes course on consent orders . . . again

The National Labor Relations Board (NLRB) has long allowed employers and unions to resolve cases arising from unfair labor practice charges without a full adjudication on the merits. The most common way this is accomplished is through a bilateral settlement agreement in which the employer, the union, and the NLRB’s General Counsel all agree to the terms of settlement. A second and more controversial way in which complaints have been resolved (some might prefer the word “terminated” instead of resolved) without completing the litigation process is through consent orders.

A consent order comes about when the respondent (i.e., an employer) proposes terms by which to resolve a dispute that the administrative law judge (ALJ) presiding over the case accepts over the objections of the charging party and General Counsel. In other words, a consent order, despite its name, doesn’t have to be consented to by all parties. If the ALJ approves the employer’s proposed terms, then she will enter a consent order, effectively ending the case short of a full adjudication on the merits.

Long and winding road of consent orders

The NLRB’s existential struggle with consent orders started in Electrical Workers IUE Local 201, decided in 1971 (only a year earlier the Beatles’ released their final number one hit, “The Long and Winding Road”—an apt title for the NLRB’s relationship with consent orders.).