NLRB Expands Alternative Dispute Resolution Program

Allen Smith, J.D. By Allen Smith, J.D. August 17, 2018
NLRB Expands Alternative Dispute Resolution Program

​While it's not suitable for all cases, alternative dispute resolution (ADR) can be an option for employers instead of hearings before the National Labor Relations Board (NLRB). ADR has been in place since 2005 and was expanded this summer in a new pilot program to cases before the full board.

The NLRB has announced it will contact parties with cases pending before the board to determine if their cases are appropriate for inclusion in the ADR program. Or employers may contact the NLRB's office of the executive secretary and request that their cases be placed in the program.

The pilot program is an extension of the board's attempts to resolve unfair labor practices cases in early stages of litigation, noted Philip Miscimarra, an attorney with Morgan Lewis in Washington, D.C., and former chairman of the NLRB.

When new unfair labor practices charges are filed, the board's regional offices typically conduct investigations that result in the dismissal or withdrawal of approximately 60 percent of the cases, usually within approximately three or four months, he said. In approximately 90 percent of the remaining cases found to have probable merit, the regional offices successfully negotiate settlements.

If complaints are not resolved by regional offices, these cases often require substantial additional time for obtaining a hearing and a decision from an administrative law judge, Miscimarra noted. An appeal to the NLRB in Washington, D.C., takes even more time. The board often issues orders requiring reinstatement or the rescission of significant employment decisions many years after the actions have occurred. A mediated settlement can be much quicker.

Some Cases Are Not a Good Fit for Mediation

ADR is not available in representation proceedings, noted Steve Bernstein, an attorney with Fisher Phillips in Tampa.

So, ADR isn't available if an employer disputes whether:

  • A union has made the required showing of interest in support of a petition for unionization.
  • Workers have enough in common to be represented together in the same bargaining unit.
  • Union elections were conducted fairly.

When a union is a party to the litigation, ADR may be less likely to result in a resolution than if the litigation is just an individual's charge, Bernstein added. That's because unions may have competing interests, which can slow things down.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

Some discharge cases might have no reasonable chance for a mediated result, said Keith McCown, an attorney with Morgan, Brown & Joy in Boston. For example, if an employee was discharged for severe misconduct, but the board contends that there were also unlawful anti-union motives, reinstatement may be out of the question for the employer.

"Mediation calls for compromise. If none is likely, it's foolish to proceed," noted Michael Lotito, an attorney with Littler in San Francisco.

ADR Might Work in Other Cases

Cases involving back pay or other remedies owed may be perfect for mediation, Lotito added.

But if the back pay amounts are extremely large, mediation may be less likely to result in a resolution, Miscimarra said.

Molly Kaban, an attorney with Hanson Bridgett in San Francisco, noted that because the ADR program is free and on a tight time schedule—a case can remain in ADR for only 28 days absent an agreement to extend—parties risk little by participating. But she cautioned, "One potential drawback could be that facts or strategies are revealed to the other side that could give them an advantage should the case continue to a hearing."

However, if the employer has a real risk of liability, or the opposing party has been difficult to communicate with, ADR is a good option. Employers also should give mediation serious consideration if there are concerns about publicity, because a company can avoid a public hearing through ADR.

Sometimes an employee has strong feelings and just wants to be heard. ADR can give the worker that opportunity. Plus, the individual might be more willing to listen to a neutral party rather than the employer about the weaknesses in his or her case.

Bernstein noted that the ADR program often gives the parties the chance to accept less-rigid options than typically result in other types of NLRB resolutions. The NLRB often focuses on notice-posting at all facilities for 60 days as a condition of settlement outside of the ADR program. Its back-pay formula usually is fairly rigid as well. But with ADR, the formal-notice posting might be avoided and a more creative remedy provided, such as a neutral reference letter.

Initiate ADR Talks with NLRB?

As for whether employers should contact the NLRB about alternative resolution, Kaban said it can be an effective way to make sure the case is moving forward. "But if the employer does not want to appear eager to settle for strategic reasons, it may be best to wait until the ADR office contacts them," she said.

Miscimarra suggested that employers might initiate ADR talks with the NLRB if a complaint issues over a dispute that is no longer significant because of changed circumstances. For example, an alleged violation may have already been corrected. An alleged violation also might have been superseded by subsequent events, such as if a discharged employee had worked in a position that was eliminated later for independent reasons.

"In other cases, parties may fear that a request to participate in ADR will be perceived as a sign of weakness or lack of confidence in their case," he said. "For this reason, it is constructive for the board to expand its own efforts to evaluate whether ADR will be helpful in a broader range of cases."

Bernstein said that if ADR isn't on HR's radar as a potential option for resolving a dispute, it should be, even if in particular cases it is ruled out.



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