NLRB Establishes Permanent ADR Program for Settling Unfair Labor Practice Cases
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Tuesday, April 7, 2009 |
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Based
on the success of the National Labor Relations Board's pilot
alternative dispute resolution (ADR) program, the Board has decided to
make the program permanent. The pilot program, which assisted the
parties in settling unfair labor practice cases pending before the
Board, began in December 2005. During its operation, 44 cases were
processed in the program. NLRB-assigned neutrals assisted the 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. The Board will provide the parties with an experienced
neutral, usually an NLRB administrative law judge, to facilitate
confidential settlement discussions to explore resolution options that
serve the parties' interests. Depending on the parties' preference, the
settlement conferences will be held in person, telephonically, or by
videoconference.
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.
In announcing the Board's decision to make the program permanent,
Chairman Wilma B. Liebman stated:
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 neutral may broaden
resolution options, often by going beyond the legal issues in
controversy, and may be particularly useful where traditional
settlement negotiations are likely to be unsuccessful or have already
been unsuccessful. Our experience with the pilot ADR program
demonstrates that participation in the program provides the parties
with a process for expeditiously resolving their disputes, which serves
to effectuate the purposes of the Act.
Other features of the Board's ADR program include:
·
The parties may request assignment of an Agency administrative law
judge to serve as the neutral. The program director, however, is also
available to serve in that capacity. The judge who heard the underlying
case will not be appointed.
· The Board will stay further
processing of the unfair labor practice case for 30 days from the first
meeting with the neutral or until the parties reach a settlement,
whichever occurs first. Requests for extension of the stay beyond the
30 days will be granted only with the approval of and in the sole
discretion of the neutral and the program director upon a showing that
such an extension is supported by good cause. However, no case may be
in the program for more than 60 days.
· The preferred method of
conducting settlement conferences is to have the parties or their
representatives attend in person, and therefore the neutral will make
every reasonable effort to meet with the participants face-to-face at
the parties' location. Settlement conferences by telephone or through
videoconference may be held if the parties so desire.
· Parties
may be represented by counsel at the conferences, but representation by
counsel is not required. Each party must have in attendance, however, a
representative who has the authority to bind the party to the terms of
a settlement agreement.
· The parties may be asked to submit to
the neutral a confidential pre-conference memo setting forth what is in
dispute between the parties, prior settlement efforts, and anything
else that the parties would like to bring to the neutral's attention.
The memo will be treated as a confidential submission unless the party
that prepared the memo authorizes release to the other parties.
· The neutral has no authority to impose a settlement.
·
Discussions between the neutral and the participants will be
confidential, and there will be no communication between the program
and the Board on specific cases submitted to the ADR program, except
for procedural information such as case name, number, and status.
·
Nothing in the ADR program is intended to discourage or interfere with
settlement negotiations that the parties wish to conduct outside the
program.
· Deadlines for filing pleadings with the Board will be
stayed effective the date that the case enters the ADR program. In the
event the case is removed from the program, the time period for filing
will begin running again from where it left off.
· Settlements
reached are subject to approval in accordance with the Board's existing
procedures for approving settlements.
· No party will be charged fees or expenses for using the program.
Questions regarding the program may be addressed to the program
director, Gary Shinners, who may be contacted by telephone at (202)
273-3737, or by email at [email protected].
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