The NLRB encourages parties to resolve cases by settlement rather than litigation whenever possible. In fact, more than 90% of meritorious unfair labor practice cases are settled by agreement at some point in the process, either through a Board settlement or a private agreement.
Board Settlement Agreements
When an investigation by a Regional Office finds merit to an unfair labor practice charge, the Regional Director routinely gives the charged party an opportunity to settle before issuing a complaint. Regional staff members draft a proposed settlement agreement which fully remedies all of the meritorious unfair labor practice allegations. The charged party can agree to the terms or suggest changes, subject to approval by the Regional Director.
The goal is always to reach a settlement that is acceptable to the charging party, the charged party and the Agency. On rare occasions, the Regional Director may approve a settlement that the charged party agrees with but the charging party is unwilling to sign. In these cases, it would be the Regional Director’s position that the settlement substantially remedies the alleged unfair labor practices. The charging party may appeal the Director’s approval of the settlement to the NLRB Office of Appeals.
If the charged party agrees and signs the settlement, no complaint will be issued and the case will be closed after full compliance with the terms of the settlement agreement. If there is no settlement, the Region will issue a complaint and a hearing will be scheduled before an Administrative Law Judge. Throughout this process, the Region will continue to pursue a settlement which substantially remedies all meritorious unfair labor practice allegations.
This type of settlement fashioned in the Region is known as an Informal Board Settlement.
Much less common is a Formal Board Settlement, which is a written stipulation approved by the Board and results in the issuance of a Board order and often a court judgment. Formal settlements are typically sought in cases where the charged party has a history of committing unfair labor practices, or where an informal settlement is otherwise not appropriate.
Private Non-Board Agreements
Unfair labor practice charges may also be resolved by private agreement between the parties. However, before allowing charges to be withdrawn, the Regional Director must review and approve of the privatesettlement agreement. Because the Board must enforce public interests, and not private rights, it may reject a non-Board adjustment that violates the National Labor Relations Act or Board policy.
These agreements are subject to a higher level of scrutiny in cases where a merit determination has already been made, and may not be appropriate in circumstances such as when the charged party has engaged in a history of violations of the Act or has breached previous settlement agreements. Non-Board adjustments do not have the Board’s approval and are not policed by the Agency.