Operations In Fiscal Year 1988 - National Labor Relations Board

NLRB Procedure 37ment must substantially remedy every violation alleged, "wentbeyond using the remedy for the alleged violations as a benchmarkby which to evaluate the reasonableness of the settlement."The Board, overruling Clear Haven, rejectedthe limited approach to settlement agreements set forth inClear Haven in favor of an expanded approach which willevaluate the settlement in light of all factors present in the caseto determine whether it will effectuate the purposes and policiesof the Act to give effect to the settlement.In this regard, the Board stated that it willexamine all the surrounding circumstances including, but notlimited to, (1) whether the charging party(ies), therespondent(s), and any of the individual discriminatee(s) haveagreed to be bound, and the position taken by the GeneralCounsel regarding the settlement; (2) whether the settlement isreasonable in light of the nature of the violations alleged, therisks inherent in litigation, and the stage of the litigation; (3)whether there has been any fraud, coercion, or duress by anyof the parties in reaching the settlement; and (4) whether therespondent has engaged in a history of violations of the Act orhas breached previous settlement agreements resolving unfairlabor practice disputes. .Examining the settlements in this case in light of these factors,the Board approved the agreements. The Board noted that thethree discriminatees, who were also the charging parties, the respondent,and the union all approved the settlements, and thecase was settled 10 days after issuance of the complaint. Viewingthe settlements against the customary risks inherent in any litigationand in light of the early stage of the proceedings and thenature of the allegations, the Board found the settlements to bereasonable. Noting also that there was no evidence of fraud, coercion,or duress or of prior violations or breaches of prioragreements committed by the respondent, the Board concludedthat "honoring the parties' agreements advances the Act's purposeof encouraging voluntary dispute resolution, promoting industrialpeace, conserving the resources of the Board, and servingthe public interest."In American Pacific Concrete Pipe Co., 19 the Board consideredwhether a settlement agreement waiving an employee's backpayclaim barred further litigation on the backpay issue.The affected employee, the company, and the union executedan agreement providing that the respondent would pay the employee$20,000 in return for a waiver of the backpay claim. TheGeneral Counsel refused to approve the agreement and, in a subsequentbackpay specification proceeding, the administrative law19 290 NLRB No. 77 (Members Johansen, Babson, and Cracmft; Chairman Stephens concurring inthe result).