Wyatt Employment Law Report

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NLRB Announces Contract with FMCS to Provide Mediators for its ADR Program

 By Edwin S. Hopson

On October 23, 2012, the National Labor Relations Board announced that, as part of its efforts to settle cases, it had contracted with the Federal Mediation and Conciliation Service (FMCS) to provide FMCS mediators to the parties who participate in the Board’s alternative dispute resolution (ADR) program.

According to the NLRB’s press release, “[s]ince 2005, the Board’s ADR program has provided parties with the assistance of a mediator to aid them in settling unfair labor practice cases pending before the Board.”  It went on to note that a settlement was reached in 60% of the cases mediated under the NLRB’s ADR program.   There will be no fees or expenses charged for using FMCS mediators in the ADR program.  The NLRB will stay further processing of the case while it is in the program, but generally may not be in the program longer than 30 days, and in no event longer than 60 days, according to the NLRB’s press release.

Up until now, the NLRB has primarily used an Administrative Law Judge, who has not been assigned to hear the case, to serve as mediator.  At this stage, complaint has already issued in the unfair labor practice case but the case has not yet been tried.  The FMCS contract will allow the NLRB to bring new resources to bear in resolving cases.  However, the parties will continue to have the opportunity to use the ADR program director in the NLRB’s Division of Judges as a mediator as well. 

In the initial stages, the FMCS mediator may not have a strong level of knowledge regarding the NLRA and Board law.  However, with training and experience developed over time, FMCS mediators should be able to have a favorable impact on the ADR process.