National Labor Relations Board (NLRB) Administrative Law Judges (ALJs) have regained the power to approve partial settlements of Unfair Labor Practice charges (ULPs) – even if the NLRB’s General Counsel, and the charging parties themselves, disagree.
This practice, known as the “reasonableness” settlement standard, was restored on Monday, December 11th, when the NLRB’s five-member Board affirmed an ALJ order that had applied the standard in favor of two ULP respondents and thus overturned a 2016 Board decision that had rescinded the standard. The Board’s vote was 3-2 and divided along partisan lines, with the Board’s three Republicans voting in favor of restoring the reasonableness standard and the two Democrats voting against.
Monday’s decision involved twenty-two (22) separate ULPs, filed by the Service Employees International Union (SEIU) against the University of Pittsburgh Medical Center (UPMC) and subsidiary UPMC Presbyterian Shadyside. The multiple ULPs were consolidated into a single case.
Among other things, the SEIU alleged that UPMC and UPMC Presbyterian Shadyside were a single employer for purposes of liability. Over the objections of SEIU and the NLRB General Counsel, ALJ Carissimi accepted UPMC’s offer to guarantee the performance of any remedies awarded against UPMC Presbyterian Shadyside in exchange for dropping the single-employer issue.
Judge Carissimi rationalized that UPMC’s agreement to serve as a guarantor in relation to UPMC Presbyterian Shadyside rendered the single-employer issue – a complex issue that could require years of extensive litigation to resolve – fundamentally moot. The Board agreed, reasoning that the NLRB General Counsel’s objection that UPMC could no longer be held directly liable for the acts of UPMC Presbyterian Shadyside was not enough to vacate Judge Carissimi’s partial settlement of the matter.
The Board’s reviving of the reasonableness standard, which is generally viewed as more favorable to management than employees and unions, could be the first of many reversals of Obama Administration-era Board decisions widely viewed as “labor-friendly.”
Check back for updates as ALJ decisions continue to progress through the pipeline and reach Board review. In the meantime (and as always), HR Legalist urges employers to reach out to preferred legal counsel and find out how this decision may affect their business practices.
A copy of the Board’s opinion can be viewed here.