For many years, alternative dispute resolution (ADR) has been increasing in popularity as a means of resolving legal controversies. ADR methods including mediation and arbitration can help avoid lawsuits or get them out of the court systems more expeditiously. On July 10, 2018, the National Labor Relations Board (NLRB) launched a pilot program to ramp up its use of ADR.
ADR in Labor Disputes
ADR is common in labor disputes. Most collective bargaining agreements between unions and employers provide for arbitration of grievances that the parties can’t mutually resolve. There, arbitration replaces court litigation over breach of contract claims.
Mediation, usually through the Federal Mediation and Conciliation Service (FMCS), also plays a role in resolving disputes between unions and employers in collective bargaining.
NLRB Pilot Program
According to the NLRB’s press release, “[t]he new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.”
The program tasks the NLRB’s Office of the Executive Secretary with “proactively” engaging parties to determine whether their cases should enter the ADR program. Parties may also initiate a request to participate in the program. The NLRB’s ADR program imposes no direct fees or costs on the parties.
Once in the ADR program, parties may voluntarily withdraw from it at any time. Their cases would then proceed under standard NLRB procedures.
History of the NLRB’s ADR Program
The NLRB’s ADR program itself is not new. It was initially established in 2005 to assist parties in resolving pending unfair labor practice cases. The Board reports that approximately 60% of the cases entering the program have settled with the assistance of a mediator.
The NLRB typically provides mediators through the FMCS. Settlement discussions in mediation remain confidential.
According to its website, “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.”
What Employers Should Expect
In announcing this “pilot program” the NLRB seems to be emphasizing the value of a program it already had in place. It is also apparently making ADR available to parties earlier. Consequently, employers can expect the NLRB’s Regional Offices to encourage greater participation in ADR to resolve unfair labor practice charges. Whether this pressure should be welcomed will depend on the facts of a particular case. But it is a good idea to discuss the possibility of mediation with your labor relations team upon receipt of a charge, as there may be cases where relatively early participation would be beneficial. The value of mediation may appear later in other cases, and not at all in some.
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