On August 22, 2024, the National Labor Relations Board (the ““Board”“) issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio San Pedras, 373 NLRB No. 89 (2024), marking a significant departure from its previous stance on accepting unilateral consent orders. This decision effectively eliminates the use of consent orders as a means of resolving unfair labor practice (“ULP”) charges—a practice that had been in place for over three decades.

Background concerning Consent Orders

Historically, the Board has allowed employers to resolve ULP charges through bilateral settlement agreements. These agreements involve mutual consent between the employer, the NLRB General Counsel, and/or the charging party (typically, the union or an employee).

Another method, known as a consent order, allowed employers to propose resolutions that could be approved by the Board even without the consent of the opposing party. This practice was first approved by the Board, in Electrical Workers, 188 NLRB 855 (1971), where the Board accepted an employer’s proposed resolution despite objections, provided that it offered “a full remedy for all of the violations alleged in the complaint.”

Over time, the standard for approving consent orders evolved. By 1987, in Independent Stave Co., 287 NLRB 740 (1987), the Board began applying a “reasonableness” standard, approving settlements if they “substantially remedied” the alleged violations and were deemed reasonable. This approach extended to consent orders, granting the Board and Administrative Law Judges (“ALJs”) discretion in resolving charges.

However, in 2016, the Board, in United States Postal Service, 364 NLRB 1704 (2016), reverted to a stricter standard, ruling that the Independent Stave approach was unsuitable for consent orders, as it did not adequately consider the lack of mutual consent from the charging party. This more exacting standard was short-lived, as the Board, in UPMC, 365 NLRB 1418 (2017) (discussed here), returned to the Independent Stave standard of applying reasonableness to consideration of consent orders.

The Metro Health Decision

In Metro Health, the Board not only overturned UPMC but significantly, ended the practice of accepting consent orders altogether. The Board’s decision was driven by several considerations:

  1. Lack of Regulatory Basis: The Board reasoned that its rules and regulations do not explicitly authorize consent orders since such orders do not require the mutual agreement between the parties.
  2. Prosecutorial Authority: The Board expressed concern that consent orders undermine the GC’s authority to control the prosecution of ULP charges, as they allow ALJs to resolve cases without the GC’s input.
  3. Public Policy: The Board argued that consent orders conflict with the National Labor Relations Act’s (“NLRA”) emphasis on mutual settlements and the efficient resolution of ULP charges. Unlike mutually-agreed settlements that are intended to foster “industrial peace,” consent orders—according to the Board—do not represent a true resolution of disputes and thus may not support the NLRA’s goals as effectively.
  4. Administrative Burden: The Board highlighted the substantial effort required to evaluate consent orders, noting that this burden would exist regardless of the standard applied.

Takeaways

The Metro Health decision marks a notable shift in the Board’s approach to resolving ULP charges, as employers must now seek mutual settlement agreements (including consent from the charging party) or prepare for litigation. This change increases the stakes for employers facing ULP charges, as it reduces the likelihood of pre-hearing resolutions on terms favorable to employers.

 We will continue to provide updates on this important topic as developments occur.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of L.D. Jones L.D. Jones

Larenz Jones is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.