NLRB consent orders are a thing of the past (for now)

On August 22, 2024, the National Labor Relations Board (NLRB) issued a decision in Metro Health, Inc., holding it will no longer accept or approve consent orders issued by administrative law judges (ALJs) in unfair labor practice proceedings. The decision means the only way to resolve an unfair labor practice charge is to obtain an agreement from the Board’s Office of General Counsel (GC) on every term in a settlement.

Consent orders

Generally, obtaining a consent order is a procedure an employer can use to resolve a case by proposing a resolution the ALJ can approve without obtaining an agreement from the Board’s GC or from the employee who filed the unfair labor practice charge.

Although the Board has changed the standard it has used through the years to determine when a consent order is proper, the ability to use a consent order has been around since 1971.

Facts

Metro Health operates a hospital in Puerto Rico. A union representing its employees filed an unfair labor practice charge against it for failing to provide the union with requested information. The employer and the GC exchanged proposals for an informal settlement but weren’t able to reach an agreement.

The employer then filed a request with the ALJ to approve a proposed consent order. As part of the proposed consent order, the employer agreed to provide the union with the exact information it had previously requested. So, the purpose for filing the unfair labor practice charge, which was to obtain the information, was met.