(a) Even if formal proceedings have been initiated, the parties again have, at each stage, the full possibility of deciding the case by a consensual and law-adlic adjustment. After the complaint has been filed and the hearing scheduled, counsel and the regional director of the case give all interested parties every opportunity to present and review facts, arguments, settlement offers or accommodation proposals, unless time, the nature of the proceedings and the public interest do not permit it. Ultimately, after the decision to pay a fee, the employer has the right to resolve the issue as quickly as possible. NNRB`s participation in the informal resolution process is problematic and creates obstacles to a satisfactory solution. Most allegations of unfair labour practices (PLUs) against employers are either withdrawn, rejected or resolved. My article of February 7, 2014 discussed the mandate of the former General Counsel (GC) 2011 (GC Memo 11-04), in which the regional directors of the National Labor Relations Board (NLRB) were required to include the „standard language“ in any informal settlement agreement. Employers and their advisors face significant potential problems when a standard provision is included in these agreements. Among other things, a standard provision of the NLRB gives the right to revoke the entire transaction when a regional director finds, after investigation, that future royalties for unfair labour practices are questionable. It is much rarer to have a formal board of directors, which is a written provision approved by the House and which results in the adoption of a board order and, often, a court decision. Formal comparisons are generally sought in cases where, in the past, the party prosecuted commits unfair labour practices or where informal regulation is not appropriate. In the two cases discussed above, two different administrative judges accepted similar applications and accepted proposals for a transaction because of the strong objection of the Regional Director. In the first case, an application was filed by telephone with the administrative judge weeks before the scheduled trial date. AlJ reserved the verdict and made a well-written decision on the proposed transaction agreement and the contents of a personalized notification booking.
The NLRB focused on the lack of provisions for the publication of notifications and reintroductions and the inclusion of the overall confidentiality provision. It suggested that the agreement would have been acceptable if at least one of the following measures had been included: (1) a communication to unit staff, which assured them that they could exercise their legal rights without fear of reprisal; (2) Reintegrating the former employee; or (3) a more limited confidentiality clause allowing the worker and the union to report to other workers that the case has been successfully resolved (regardless of specific monetary conditions). According to the NLRB, the failure of the agreement to include any of these agreements meant that the unit`s employees did not know whether they would be at risk of adverse consequences and retaliation if they were in the same position as the alleged discrimination.