NLRB Reinstates “Reasonableness” Settlement Standard and Holds that Judge Properly Dismissed UPMC Single-Employer Claims

In a 3-2 decision, the National Labor Relations Board ruled today that an administrative law judge properly dismissed a single-employer claim against UPMC, based on UPMC’s offer to guarantee the performance by Presbyterian Shadyside of any remedial aspects of the Decision and Order which survive the exceptions and appeal process.  This case involves a complaint against UPMC and its affiliate, Presbyterian Shadyside, based on unfair labor practices that were allegedly committed by Presbyterian Shadyside.  There were no allegations or evidence that UPMC independently engaged in any alleged unfair labor practices.  The merits of the unfair labor practice allegations against Presbyterian Shadyside remain pending before the Board.
In today’s decision, the Board overruled a case decided last year—United States Postal Service, 364 NLRB No. 116 (2016) (Postal Service)—where a divided Board rejected the prior practice of permitting judges to accept a respondent’s proposed settlement terms, over the objection of the General Counsel and charging party, if the proposed settlement terms were deemed reasonable based on factors set forth in Independent Stave, 287 NLRB 740 (1987) (Independent Stave).  In Postal Service, the Board held that proposed settlement terms could be accepted in these circumstances only if they provided a full remedy for all violations alleged in the complaint.
UPMC’s guarantee was accepted by Administrative Law Judge Mark Carissimi in lieu of continued litigation over the claim that UPMC and Presbyterian Shadyside were a single employer.  The judge reasoned that UPMC’s guarantee provided a substantial benefit to employees by ensuring that remedial aspects of any final Board ruling would be satisfied “without the time-consuming and expensive course of litigating the single employer issue to its conclusion,” and “without the risk that further litigation . . . may result in a finding that UPMC and Presbyterian Shadyside are not, in fact, a single employer.”
In today’s decision, the Board upheld the judge’s acceptance of UPMC’s guarantee, resulting in dismissal of the complaint’s single-employer allegation.  By overruling Postal Service, the Board also reinstates the authority of judges to accept settlements over the objection of the General Counsel and charging parties, based on Independent Stave reasonableness factors, subject to Board review (applying the Independent Stave factors) if the General Counsel or charging party files exceptions with the Board.
Chairman Philip A. Miscimarra was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Members Mark Gaston Pearce and Lauren McFerran dissented in the case.