January 2011 - National Labor Relations Board

10350 PREHEARING CONFERENCES WITH PARTIESor documents and for ruling on a petition to revoke prior to trial. Secs. 11778 and11782.4. Any subpoena should be served on the party, with a copy sent to the attorney orother representative of the party or witness by mail or facsimile, depending upon thecircumstances.10350 Prehearing Conferences with PartiesCounsel for the General Counsel should, where appropriate, schedule a prehearingconference with respondent’s counsel to further explore settlement and factualstipulations. Secs. 10124, 10126.3, and 10128. In each case, careful considerationshould be given before evidence beyond that in the complaint is revealed to respondent inorder to reach a factual stipulation. Any such stipulation should be reduced to writingand signed as soon as possible. When a settlement is reached prior to hearing, theDivision of Judges should be immediately notified so that the matter can be removedfrom its hearing calendar.10351 Settlement JudgeIf settlement efforts have not been fruitful subsequent to issuance of complaint,the Regional Office should consider whether a settlement judge would be beneficial.Sec. 10154.2. Sec. 102.35(b), Rules and Regulations, provides for the assignment of anAdministrative Law Judge (herein a settlement judge), other than the trial judge, toconduct conferences and settlement negotiations, if all parties agree to the use of theprocedure. The initiative for the settlement judge may come from any party, the judgeassigned to hear the case or from the Division of Judges. Discussions between the partiesand the settlement judge are confidential and not admissible in the Board proceeding,except by stipulation of the parties. Further, the settlement judge cannot discuss anyaspect of the case with the trial judge and any documents disclosed in the settlementprocess may not be used in litigation, unless voluntarily produced or obtained pursuant tosubpoena. This procedure does not affect the role of the trial judge in terms of pursuingsettlement, resolving subpoena issues or working out stipulations. Sec. 10381. Thesettlement judge does not open the record.Where feasible, the settlement judge may require that the parties or theirrepresentatives attend the settlement conference in person, since such a meeting providesthe best opportunity to engage in a fruitful discussion. In addition, the allegeddiscriminatees should be encouraged to attend the conference. When only therepresentative of a party is present, the party, or an agent with full authority to settle,should be available by telephone. When personal attendance at a meeting is not feasible,the discussion could be conducted by conference call.The Regional Office representative should be familiar with the facts and legaltheory, as well as the settlement position of the charging party and the Regional Director.When discussing the facts, the Regional Office’s representative needs to be prepared todiscuss the nature of the evidence on specific violations, but should not reveal the namesof possible witnesses. Sec. 10128 and especially Sec. 10128.3. Any settlement agreedRevised 01/11