Labor Board’s GOP Majority Reverses Obama-Era Settlement Policy

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By Hassan A. Kanu

The new GOP majority at the federal labor board modified the agency’s procedures for reaching a settlement over a labor complaint, issuing what could be the opening salvo in a flurry of decisions expected to overturn Obama-era workplace policies.

The ruling reverses a 2016 precedent that said administrative law judges could only accept a proposed settlement if it provides a full remedy for each of the unfair labor practices alleged. The board’s new majority ruled 3-2 that settlements can be accepted so long as the offer is deemed “reasonable” by the judge, and even if the charging party objects to the settlement terms.

The decision could be the first of several significant rulings in the coming weeks, as the board is set to revert to a 2-2 partisan split when Chairman Philip Miscimarra’s (R) term ends Dec. 16. Board members and staff typically work in overdrive to issue decisions in these circumstances because any work the outgoing member has performed in a case may have to be duplicated if a final decision isn’t issued before their term ends.

“Because of the combination of having the commencement of members in successive months, and in conjunction with my impending departure, we’ve had different priorities associated with trying to get as many cases as we can efficiently addressed and resolved,” Miscimarra, the board’s chairman, told Bloomberg Law in an exclusive interview last week. Marvin Kaplan (R) and William Emanuel (R) were confirmed to the board this year.

Joint Employer Sidestepped

The board’s ruling came in UPMC and UPMC Presbyterian Shadyside, 365 NLRB No. 153, in which employees alleged that a medical center illegally interfered with their efforts to organize. Miscimarra was joined by Kaplan and Emanuel in the ruling.

The decision also allows ALJ’s to accept a “reasonable” offer over the general counsel’s objections.

The determination of what’s a “reasonable” settlement depends on factors established in Independent Stave Co., 287 NLRB 740 (1987), the board said in a statement. The GC or charging party can file an exception—or appeal—to the settlement.

Many stakeholders expect the two new members to join the incoming Republican pick in additional split decisions that will overturn a series of Obama-era decisions.

The board’s top prosecutor, Peter Robb—another recently confirmed Trump nominee— issued a general counsel’s memo Dec. 1 that many worker advocates described as unprecedented in terms of the broad range of issues he selected for review.

The memo was issued simply to prepare his offices to present new arguments to a board that recently flipped parties, Robb told Bloomberg Law Dec. 4.

The case also contained a question regarding whether two of the charged entities were a single, joint employer—another hot-button issue the board’s new majority is expected to act on. The question wasn’t reached in this case to expedite the decision, the board said in a release.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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