On July 10, 2018, the National Labor Relations Board (NLRB) announced the launch of a new pilot program to enhance the use of its existing alternative dispute resolution (ADR) program. Since 2005, the NLRB has offered assistance to parties in settling unfair labor practice matters pending before the Board through ADR procedures. According to the agency’s website, mediators helping participants through the ADR program have reached settlements in about 60 percent of cases, and all of those settlements have been approved by the Board. In its statement announcing the program, the NLRB said that the “new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements. Allowing parties greater control over the outcome of their cases, the NLRB’s ADR program can provide parties with more creative, flexible and customized settlements of their disputes.”
Rather than waiting for parties to request to participate, under the pilot program, the NLRB will proactively engage parties with cases pending before the Board to determine if their case is appropriate for the ADR program and encourage parties to utilize ADR. Parties also can continue to request to use the ADR program in an effort to resolve their cases. Previously, information regarding the ADR program would be mailed to parties after an administrative law judge’s initial decision. Under the pilot program, the NLRB’s Office of the Executive Secretary will actively contact parties with unfair labor practice cases before the Board and inform them of the option of using the ADR program. The Board will provide the parties with an experienced mediator, either from the Federal Mediation and Conciliation Service or the ADR program director, to facilitate confidential settlement discussions at no cost to the parties.
The NLRB’s statement suggests that the ADR program can be particularly useful in cases where traditional settlement negotiations have been unsuccessful. Those employers with pending matters before the Board are encouraged to confer with counsel to determine if their pending case may be appropriate for the ADR program.