Board Issues Decision Ending Practice of Consent Orders

Today, the Board issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras overruling UPMC (2017) and holding that the Board will no longer accept “consent orders,” where an Administrative Law Judge resolves an unfair labor practice case based on terms offered by the Respondent but objected to by both the Charging Party and the General Counsel.

The Board majority concludes that the current practice fails to serve the goals of the National Labor Relations Act because it does not facilitate a truly mutual resolution of labor disputes. The decision explains that the practice of accepting consent orders seems contrary to the language of the Board’s Rules and Regulations, creates administrative difficulties and inefficiencies, and tends to interfere with the prosecutorial authority of the General Counsel.

The Board, however, reaffirmed its longstanding practice of accepting true settlement agreements between a respondent and the General Counsel and/or a charging party in lieu of finally adjudicating an unfair labor practice case on the merits, where accepting the settlement would effectuate the policies of the Act.

“Because consent orders do not represent a real agreement between opposing parties to resolve a case, they do not promote labor peace in the same manner as a true settlement,” said Chairman Lauren McFerran. “Our decision in Hospital Metropolitano preserves the benefits of true settlements, while eliminating a practice that has no foundation in the Act or our regulations.”

Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.