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The NLRB Encourages the Use of its Alternative Dispute Resolution Program

By: Adam Merrill

The National Labor Relations Board (“NLRB” or “Board”) is looking to enhance the use of its Alternative Dispute Resolution (“ADR”) program, which was established in 2005 to assist parties in settling unfair labor practice cases before the Board. According to the NLRB, its ADR program has been quite successful: parties who have chosen to participate in the ADR program have reached settlements in approximately 60 percent of cases, with the Board approving the parties’ settlements in each case.

With that in mind, on July 10, 2018, the NLRB announced that it is launching a new pilot program to encourage parties to participate in its ADR program. Previously, the parties were responsible for contacting the NLRB if they wished to participate in the ADR program. Now, under the new pilot program, the Board’s Office of the Executive Secretary will proactively reach out to parties with cases pending before the Board to determine whether the ADR program is an appropriate method of resolving their cases, with the goal of increasing the number of parties that participate in the ADR program.  Participation in the ADR program is voluntary, and a party who enters into settlement discussions under the program may withdraw from participation at any time.

The NLRB’s ADR program theoretically gives parties greater control over the outcome of their cases because they can work with the NLRB to reach creative, flexible, and customized settlements of their disputes. The program is seen as particularly useful for cases where traditional settlement negotiations have been unsuccessful. In addition, there are no fees or expenses for using the program, so parties may save time and money by participating in the Board’s ADR program.

Employers hit with unfair labor practice charges should expect to hear from the Board regarding the ADR Program, and would do well to work with competent counsel to consider whether making use of the Board’s ADR program could assist in resolving their pending case.