The NLRB's Unfair Labor Practice Settlement Program: An Empirical Analysis of Participant Satisfaction

Article excerpt

This article examines participant satisfaction with the National Labor Relations Board's Unfair Labor Practice (ULP) Settlement Program, which was instituted in order to speed up the resolution of ULP disputes between unions and employers. Under this program an NLRB judge, who is not the trial judge, facilitates settlement conferences involving employers and labor organizations that are parties to a ULP dispute. The authors' survey found that Individuals who participated in the ULP Settlement Program held generally positive views about that experience. Based on their findings, the authors conclude that the program seems successful on all evaluative dimensions, and could be expected to have beneficial results if expanded to other types of disputes.

For more than a century, unions and employers in the United States have had a stormy relationship. The National Labor Relations Act (NLRA)1 created the National Labor Relations Board (NLRB) in part to stabilize labor-management relations by facilitating the collective bargaining process between unions and employers. The NLRA's broad, remedial purpose, as stated in section 1, is to eliminate imbalances in bargaining power and ensure that the process by which such agreements are reached are fair and equitable.2 However, over the years, attempts to solve these labor-management disputes have remained emotional and bitterly contested.

Historically, the NLRB's practice has been to fully litigate union-management disputes before administrative law judges in lengthy, complex legal proceedings.3 The supposedly simple process of determining whether employees wish to be represented by a labor organization and, if so, bargain a contract, has become anything but simple. Instead, the process of collective bargaining, and the public policy governing it, has evolved into a complicated administrative and legal process. For instance, the basic handbook, The Developing Labor Law, has 1,900 pages dealing with legal doctrine under the NLRA, followed by a table of cases that runs for an additional 300 pages.4 In general, this approach has resulted in trials lasting more than three days on average. It has also instilled in both parties the view that post-hearing briefs are an absolute right and written decisions are the only appropriate means of deciding a case.5 Undoubtedly, the result of this system is a two-edged sword for management and unions. For example, it has promoted antagonistic interplay between labor and management and minimized the idea that voluntary dispute resolution by both parties is possible.

The ULP Settlement Judge Program

On Feb. 1, 1995, the NLRB modified its rules in an attempt to change this situation.6 For the first time in its history, the Board gave its judges special authority to serve as settlement judges in unfair labor practice (ULP) cases (referred to here as the settlement judge rule).7 With this change, the ULP settlement program of the NLRB was born, challenging a long-standingadversarial legal culture.

Specifically, the settlement judge rule allows a judge "other than the trial judge" to be assigned to a case "to conduct settlement negotiations" in instances in which all parties agree to participate.8 The ULP settlement judge program enables judges to resolve many disputes quickly and informally, thereby avoiding long and costly litigation. For example, in 1997, the NLRB estimated that the average fully-litigated case cost $35,000 in appropriated funds, and that the ULP settlement judge program had saved the agency about $2.3 million annually since its inception.9

In addition, this program increased the productivity of judges. During its first two years, judges increased their settlements by about 15% annually and reduced the median lag time from close of trial to issuance of decision from 138 days to 112 days. Significantly, these improvements were achieved during a period when the NLRB caseload was steady and the number of judges fell by 20%. …