January 2011 - National Labor Relations Board

10130 SUBSTANCE OF SETTLEMENT AGREEMENTseveral liability, if one party fails to meet its obligation, the other party is responsible forthe entire amount. It is advisable to ascertain the exact amount of the liability and toapportion it appropriately within the settlement agreement so long as there is no concernabout either party fulfilling its commitment. Where there is such concern, the agreementshould not attempt to apportion the liability between the employer and the union.In cases in which all charged parties indicate a desire to settle, each should pay itsequal share. If one charged party is willing to settle, but the other insists on trial of thecase, a settlement agreement may be taken from the party willing to settle. Appropriateprovisions should, however, assure that the settling charged party will bear only itsproportionate share of the backpay liability, unless efforts to obtain payment of theremaining portion of the backpay from the other respondent(s) should fail followingsuccessful prosecution of the case. It is suggested that the full amounts of backpay(including the portion owed by the party refusing to enter into the settlement) be setopposite the names of the alleged discriminatees in the “make-whole” provisions of theagreement and that language similar to the following be inserted in another paragraph ofthe agreement:For purposes of this agreement [stipulation], the respectiveamounts of backpay set forth herein represent the full loss ofearnings of these employees respectively to this date. Upon[approval of this agreement] [entry of a Board order pursuantto this stipulation], [the settling charged party] will payimmediately to each of said employees one half of the amountset forth opposite that individual’s name. If the GeneralCounsel succeeds in litigation against [the other chargedparty], [the settling charged party] will pay the remainingportion of each such amount on being informed by theRegional Director that reasonable efforts to obtain paymentfrom [the other charged party] have failed.10130.6 Departure from Equal Proportions BasisOne of two potential joint-and-several charged parties may be willing to settle bypaying its share of the backpay, as well as the share of the other charged party. Suchoffer should not be solicited as part of the settlement agreement. However, if such desireis a voluntary one and all reasonable efforts to obtain settlement from the other chargedparty have failed, full payment may be accepted from one in order to avoid hardship tothe individuals involved. Any such agreement should provide the following:The Regional Office may, in all other respects, process the case furtheragainst the other charged partyThe payment satisfies the make whole requirementsThe Regional Office will not seek any payment from the other chargedpartyRevised 01/11