When complaints of Unfair Labor Practices issued by regional directors do not lead to settlement, they typically result in a hearing before an NLRB Administrative Law Judge. As in any court proceeding, both parties prepare arguments and present evidence, witnesses, and experts. After evaluating the evidence, the judges issue initial decisions. ALJ decisions are subject to review by the Board in Washington D.C., composed of five Members nominated by the President and confirmed by the Senate. Any or all parties can appeal by filing exceptions.
In considering an appeal, the Board reviews the case record, including all all documents produced by the regional investigation. Often a panel of three Board Members will decide a case, but the full Board usually considers novel or potentially precedent changing cases. The Board issues several hundred decisions per year.
Board decisions may be appealed to an appropriate U.S. Court of Appeals, and ultimately to the U.S. Supreme Court.
Invitations to file briefs
When considering significant or potentially precedential cases, the Board may invite briefs from any interested parties to gather an array of viewpoints and experiences. A list of recent invitations is here.
Alternative Dispute Resolution Program
Since December 2005, the National Labor Relations Board’s alternative dispute resolution (ADR) program has assisted parties in settling unfair labor practice cases pending before the Board. For parties who have chosen to participate in the ADR program, mediators have assisted parties in reaching settlements in approximately 60% of the cases. The Board approved the parties’ settlements in each of those cases.
Participation in the Board’s ADR program is voluntary, and a party who enters into settlement discussions under the program may withdraw its participation at any time. There are no charged fees or expenses for using the program. The Board will provide the parties with an experienced mediator, either a mediator with the Federal Mediation and Conciliation Service or the ADR program director, to facilitate confidential settlement discussions and explore resolution options that serve the parties’ interests.
The Board established the ADR program in response to the success experienced by other federal agencies and the federal courts in settling contested cases through ADR, as well as the success of the NLRB’s own settlement judge program at the trial level. ADR programs provide the parties with several benefits, including savings in time and money, greater control over the outcome of their cases, and more creative, flexible, and customized resolutions of their disputes. Settlement discussions conducted with the assistance of an ADR mediator tend to broaden resolution options, often going beyond the legal issues in controversy, and can be particularly useful where traditional settlement negotiations are likely to be unsuccessful or have already been unsuccessful.
If you have any questions regarding the ADR program, or wish to participate in the program, you may contact the ADR program director, Gary Shinners, at (202) 273-3737.
Two-member Board Cases
For 27 months ending in the spring of 2010, the Board operated with three seats vacant. The two remaining members issued hundreds of decisions; in June, 2010, the Supreme Court ruled in New Process Steel that the two members lacked the authority to do so. About 100 two-member decisions were returned to the Board for reconsideration; as of early 2011, new decisions had been issued in all but a few of them. More information, including a list of affected Board decisions, is available here.