In an effort to draw attention to alternatives to the standard grievance-resolution process, the National Labor Relations Board launched a new pilot program last month designed to enhance the use of its Alternative Dispute Resolution program.
This move “will increase participation opportunities for parties in the ADR program and help to facilitate mutually satisfactory settlements,” according to the NLRB, which says the board’s office of the executive secretary will proactively engage parties with cases pending before them, to determine whether their cases are appropriate for inclusion in the ADR program.
With this expansion, the NLRB is aiming to offer parties greater control over the outcome of their cases, by providing “more creative, flexible and customized settlements of their disputes,” says the organization.
“In addition to savings in time and money, parties who use the ADR program can broaden their resolution options, making the program particularly useful for cases where traditional settlement negotiations have been unsuccessful,” according to the NLRB, which notes that participation in the ADR program is voluntary, and parties entering into settlement discussions under the program can withdraw from participation at any time.
The NLRB has had an alternative dispute resolution program for pending unfair labor practice cases since December 2005, says Philip Miscimarra, a Washington-based partner in Morgan Lewis’ labor and employment practice, and former chair of the NLRB board.
The ADR program, which remains voluntary, “has been successful in resolving roughly 60 percent of cases,” says Miscimarra. The new pilot initiative, he adds, “appears to be an extension of the board’s very good track record of resolving unfair labor practice cases at earlier stages, before they reach the five-member NLRB.”
As Miscimarra points out, the ADR program has existed for nearly 13 years. So why did the NLRB choose to expand it now?
The announcement comes at a time when the organization faces budget constraints and is seeking to preserve resources, notes Arthur T. Carter, a shareholder at Littler Mendelson.
“Thus, while the NLRB already enjoys a very high settlement rate for unfair labor practices, this ADR initiative might provide an additional way for the NLRB and parties to better manage the process and to avoid the expense and delay associated with administrative trials.”
This new program could indeed aid employers and employees alike.
“Similar to any pre-litigation mediation program, [the ADR program] provides a means for the parties to get together in some form or fashion,” says Carter, “and allows them to discuss their interests and issues in a more structured, facilitated environment, rather than simply retreating to their corners when they don’t like the other side’s proposals and/or do not understand or appreciate the other side’s concerns.”
If the pilot is successful, he adds, “the benefits will be to conserve the resources of the parties, to avoid the conflict potentially engendered by litigation, and to resolve their disputes in a mutually acceptable manner.”
The new program’s effort to make more affirmative outreach regarding potential settlement could help parties resolve more pending cases sooner, adds Miscimarra.
“When settlements can be achieved, this enhances the ability of parties to move forward without being mired in the past, and it eliminates the risks associated with uncertainty regarding how pending cases will be resolved.”
Of course, the new program could present obstacles for employers and HR to overcome as well.
The most difficult task associated with every pending NLRB case is the attempt to predict the future, says Miscimarra.
“This means parties are required to evaluate whether they are likely to win or lose, what will be required and what it will cost if the outcome is unfavorable, whether litigation risks justify exploring potential settlement and whether the dispute is not amenable to settlement, based on the nature of the controversy or the unreasonableness of settlement terms.”
In a 2017 ruling, for example, the NLRB decided that it will approve “reasonable” NLRB settlements even if they do not involve a “full remedy,” says Miscimarra.
However, nearly every NLRB dispute involves “significant issues, about which parties tend to have very strong views,” he adds. “It is good news that the NLRB will take further steps to encourage parties to consider the possibility that they might work out a reasonable settlement–with help from an experienced mediator–more quickly than could result from waiting for the board’s resolution of the case.”
Carter suspects that many of the challenges facing the program are those that already exist–default language, notice posting, the NLRB’s efforts to obtain substantially full relief in the guise of a settlement rather than litigation, for example.
“If the neutrals are empowered to overcome these issues, and if the NLRB and union parties recognize the time value and risk of loss associated with litigation, hopefully some of these issues can be overcome,” he says. “But, if this is simply another mechanism to try and force employers into settling for full relief now or litigating and settling for full relief later, it simply adds another bureaucratic step in the process, and one against which employers will push hard.”