DLR Institutes New “Unilateral Settlement” Procedure

Taking a page from the NLRB’s playbook, the Massachusetts Department of Labor Relations (DLR) recently added another technique to their skill set: the “Unilateral Settlement.”  In a case involving the City of Newton and the Newton Municipal Employees Association, MUP-09-5694 (June 26, 2012) (here), the DLR, in the first known instance of which we are aware, approved a ‘settlement’ without the express approval on the record of one of the parties.  (It is not clear whether or to what extent the ‘non-approving’ party may have informally agreed behind the scenes.)

The settlement includes a financial award and a posting.  The posting does not acknowledge liability, but sets out the affirmative action the employer will take and contains a statement by the employer agreeing not to violate Chapter 150E.

According to the Commission’s decision, the Unilateral Settlement procedure was as follows:  (1) after a Complaint issued, the City and the Union attempted to mediate the Union’s unfair labor practice charge, to no avail; (2) the City then presented the DLR with the last offer it had given the Union and asked the DLR to accept the proposal and dismiss the case; (3) the DLR then reviewed the proposal and determined that it “remedie[d] the allegations in the Complaint” and therefore “further proceedings … would not effectuate the purposes of the Law; and (4) the DLR then withdrew the Complaint.

The DLR found support for this procedure in M.G.L. c. 150E, s. 11(b), which permits the DLR to dismiss charges when further proceedings would not effectuate the purposes of the Law, and 456 CMR 15.04(1), which allows the DLR to withdraw Complaints previously issued when a charging party does not make reasonable efforts to resolve a matter.

It is not clear to what extent the DLR will be utilizing this new procedure, but it appears to be a sign that the Department’s already-intensive focus on mediation is not reducing the caseload as much as DLR officials would like.  The new practice raises a couple of questions: (1) How different may the settlement proposal be from what the charging party would obtain if it went forward and won?  It is not clear from the Newton case materials whether the financial figure, for example, was discounted in any way.  (2) Also, as mentioned above, how much input, if any, do charging parties have into these settlements?  Are these settlements to be imposed on unwilling participants, or will there be ‘behind the scenes’ discussions to assure at least a modicum of acquiescence?  (3) What are the appeal rights of charging parties, if any, after the DLR withdraws a complaint pursuant to a “Unilateral Settlement”?

These and other issues will surely be answered in the coming months and years.  We will try to keep you informed of new developments as they arise.