NLRB has a New Solution to Resolve Disputes Faster

Experts say a new NLRB initiative could help resolve cases faster and less expensively.
By: | August 7, 2018 • 4 min read
Topics: Employment Law
alternative dispute resolution

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.

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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.

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