The National Labor Relations Board (Board) continues its shift toward pro-union and pro-employee policies. In the recent case Metro Health, Inc., d/b/a Hospital Metropolitano Rio San Pedras, the Board ended its long-term practice of accepting consent orders as a means of resolving unfair labor practice charges.  

For over 30 years, the Board has allowed parties to resolve unfair labor practice charges without proceeding to litigation and without a full adjudication on the merits. This was typically done by letting the parties enter into a bilateral settlement agreement. Another method used by the Board was to resolve the charges with a consent order. A consent order is proposed by the employer and then approved by the Board without the agreement or consent of the charging party and/or the General Counsel.  

With the Metro decision the Board removes the option of employer-proposed ‘reasonable’ resolutions and returns to enforcing a policy that favors mutually negotiated settlement terms to resolve unfair labor practice charges.  

What Does it Mean? 

The biggest impact of the Metro decision is that it removes one of the employer’s strongest pre-litigation resolution tools. The inability to independently propose reasonable remedial steps to substantially resolve the charges puts employers in the position of having to spend time and money to engage in traditional mediation or face litigation to achieve the same ends.  

Unfortunately, the decision also signals a continuing trend toward the expansion of employee rights and a reduction in employer-friendly resolutions.