United States Postal Service

National Labor Relations Board - Board Decisions

Aug 27, 2016

364 NLRB No. 116 (N.L.R.B. 2016)

364 NLRB No. 116
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United States Postal Service and Branch 256, National
Association of Letter Carriers (NALC), AFL–
CIO. Case 07–CA–142926
August 27, 2016
ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, AND MCFERRAN
This case is before us on the General Counsel’s Re-
quest for Special Permission to Appeal Administrative
Law Judge Christine E. Dibble’s order approving settle-
ment terms proposed by the Respondent, over the objec-
tions of the General Counsel and the Charging Party. As
the judge observed, the Board has referred to the resolu-
tion of an unfair labor practice in this manner—i.e., by
dismissal of the complaint based on settlement terms
proffered by a respondent and approved by a judge—as
in the nature of a “consent order.” See Electronic Work-
ers IUE Local 201 (General Electric Co.), 188 NLRB
855, 857 (1971).1 For the reasons explained below, we
clarify that the appropriate standard for evaluating orders
approving and incorporating the settlement terms pro-
posed by a respondent, over the objections of the General
Counsel and the charging party, is whether the order pro-
vides a full remedy for all of the violations alleged in the
complaint. Accordingly, the General Counsel’s request
is granted, and the appeal is granted on the merits.
Background
The complaint alleges that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act (the
Act) when an agent at its Swartz Creek facility in Michi-
gan threatened its employees with more vigorous en-
forcement of work rules if they chose to be represented
by a union steward or sought support and/or assistance
from a union. In advance of the scheduled trial, the Re-
spondent requested that the administrative law judge
approve a “unilateral settlement agreement,” to which
neither the General Counsel nor the Charging Party had
agreed.2 The General Counsel and Charging Party each

1 On February 19, 2016, the Board issued a notice inviting the par-
ties and interested amici to file briefs. The Respondent and four amici
(American Postal Workers Union, AFL–CIO; National Association of
Letter Carriers, AFL–CIO; National Rural Letter Carriers’ Association;
and Service Employees International Union) filed briefs, and the Gen-
eral Counsel filed a statement of position.
2 In Board practice and terminology, the term “unilateral settlement
agreement” typically has a different meaning. It refers to an agreement
between the General Counsel and the charged party, to which the
charging party has not agreed. See, e.g., NLRB Casehandling Manual,
filed an opposition to the Respondent’s request. The
General Counsel asserted that the Respondent is a recidi-
vist offender of employees’ statutory rights, and he ob-
jected that the proposed agreement’s scope was limited
to a single facility and that it included a 6-month sunset
clause limiting the General Counsel’s ability to seek a
default judgment if the Respondent failed to comply with
the agreement. The Charging Party argued that the no-
tice-posting provision of the agreement, which required
posting only at the Swartz Creek facility, was insufficient
because supervisors move throughout the postal district.
The judge evaluated the Respondent’s offer to settle
under the factors set forth in Independent Stave Co., 287
NLRB 740, 743 (1987).3 The judge found that the Re-
spondent’s offer was reasonable in light of the “relatively
minor and isolated nature” of the alleged violation, the
costs and risks of litigation, and the fact that the offer
provides “almost the same remedy that would be award-
ed if the General Counsel fully prevailed on the com-
plaint.” The judge concluded that “the Respondent’s
request, on balance, meets the standards set forth in In-
dependent Stave,” and she accepted the Respondent’s
offer to settle “as in the nature of a consent decree.”
The History of the Board’s Treatment of the Issue
The Board apparently first approved an order accept-
ing and incorporating the settlement offer of a respondent
party, without the agreement of either the General Coun-
sel or the charging party, in 1971, in General Electric
Co., above, 188 NLRB at 855. In that case, the General
Counsel issued a complaint alleging that the respondent
violated Section 8(b)(1)(A). The respondent proposed a
“Consent Board Order and Notice” to settle the com-
plaint allegations; the General Counsel and the charging
party objected. Id. The Board adopted the trial examin-
er’s recommendation to approve the proposed order on
the ground that it provided a full remedy for all of the

Part 1, Unfair Labor Practice Proceedings (Feb. 2016) (ULP Manual),
§§ 10150 (unilateral informal settlement agreements), 10164.7 (unilat-
eral formal settlement agreements). An agreement between the charged
party and the charging party to which the General Counsel has not
agreed is called a “non-Board settlement agreement,” see, e.g., Inde-
pendent Stave, 287 NLRB at 740–744, or a “non-Board adjustment,”
see, e.g., ULP Manual §§ 10124–10142.
3 Under Independent Stave, the Board considers all the circumstanc-
es surrounding a settlement agreement, including “(1) whether the
charging party(ies), the respondent(s), and any of the individual dis-
criminatee(s) have agreed to be bound, and the position taken by the
General Counsel regarding the settlement; (2) whether the settlement is
reasonable in light of the nature of the violations alleged, the risks
inherent in litigation, and the stage of the litigation; (3) whether there
has been any fraud, coercion, or duress by any of the parties in reaching
the settlement; and (4) whether the respondent has engaged in a history
of violations of the Act or has breached previous settlement agreements
resolving unfair labor practice disputes.” 287 NLRB at 743.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
violations alleged in the complaint, as amended. Id. The
Board observed that further proceedings could not result
in any changes in the proposed order and notice that
would be more favorable to the General Counsel and
charging party. Id. The Board concluded that, in such
circumstances, approval of the respondent’s “Consent
Board Order and Notice” would protect the public inter-
est and effectuate the purposes and policies of the Act.
Id.
The Board introduced a different standard in two 1991
cases: Copper State Rubber, 301 NLRB 138, and Food
Lion, Inc., 304 NLRB 602. As in General Electric, the
issue in both cases was whether to approve the respond-
ents’ offers to settle unfair labor practice allegations over
the objections of the General Counsel and the charging
parties. Instead of the “full remedy” standard that the
Board had applied in General Electric, the Board ana-
lyzed the proposed settlements by applying the factors
set forth in Independent Stave, supra, which had been
decided just a few years earlier. Although the Board
rejected the proposed settlements in both cases, it stated
that it might reach a different result in the future “if [the]
proffered adjustment covers all the allegations of the
complaint and effectuates the remedial purposes of the
Act.” Copper State Rubber, 301 NLRB at 134 fn. 3.
Since then, administrative law judges have approved
such “proffered adjustments,” referring to the resulting
dismissal order as “in the nature of a consent order, and
not a true ‘settlement’ between parties to the dispute.”
See, e.g., Heil Environmental, 10–CA–114054 et al.
(June 20, 2014). On review, the Board has evaluated
these “consent orders” by applying the Independent
Stave factors to assess whether they “substantially reme-
die[d] the violations alleged in the complaint.” Laborers
Local 872, , 28–CB–118809 (January 12, 2015) (empha-
sis added) (agreeing with the judge that the proposed
“unilateral settlement by consent order” met require-
ments of Independent Stave); see also Heil Environmen-
tal, supra (June 20, 2014) (same); Enclosure Suppliers,
LLC, 09–CA–046169 (July 14, 2011) (setting aside
“consent order” because it did not meet requirements of
Independent Stave).
Discussion
We find, contrary to the decisions in Copper State
Rubber and Food Lion, that Independent Stave is not the
appropriate standard for evaluating a judge’s order ap-
proving and incorporating the settlement terms proposed
by a respondent, over the objections of the General
Counsel and the charging party. The Independent Stave
standard was explicitly formulated to evaluate non-Board
settlements, that is, settlement agreements between a
respondent and a charging party or parties, to which the
General Counsel is not a party.4 The Independent Stave
Board justified permitting non-Board settlements that
failed to provide a full remedy for all of the complaint
allegations based on the Board’s longstanding “policy of
encouraging the peaceful, nonlitigious resolution of dis-
putes,” citing occasions on which “the Board ha[d] reit-
erated its commitment to private negotiated settlement
agreements.” 287 NLRB at 741.
The Board also explained that a party’s decision to en-
ter into a private settlement agreement that provides for
less than a full remedy entails a judgment concerning
litigation risk:
Each of the parties to a non-Board settlement recogniz-
es that the outcome of the litigation is uncertain and
that he may ultimately lose; thus, the party in deciding
to settle his claim without litigation compromises in
part, voluntarily foregoing the opportunity to have his
claim adjudicated on the merits in return for meeting
the other party on some acceptable middle ground. The
parties decide to accept a compromise rather than risk
receiving nothing or being required to provide a greater
remedy.
Id. at 743. It is deference to the charging party’s
judgment concerning its own interests in accepting less
than a full remedy, together with the well-established
policy favoring private dispute resolution, that justifies
compromising the Board’s remedial standards in approv-
ing a non-Board settlement. As the Board observed in
Independent Stave, “[w]hen we reject the parties’ non-
Board settlement simply because it does not mirror a full
remedy, we are consequently compelling the parties to
take the very risks that they have decided to avoid, as
well as depriving them of the opportunity to reach an
early restoration of industrial peace, which after all is a
fundamental aim of the Act.” Id.
Neither of the considerations that justify approving
non-Board settlements that lack the full remedy called
for under Board law are present in the case of a consent
order agreed to by no party other than the respondent.
The charging party and the respondent have not agreed to
a private resolution of their dispute. Nor has any party
seeking relief from the Board (whether the charging par-
ty or the General Counsel) agreed to accept a less-than-
full remedy for any reason.5 In the absence of any of the

4 In Independent Stave, the Board granted summary judgment as to
the three charging parties who accepted the settlement, but denied
summary judgment as to the fourth charging party, who did not. 287
NLRB at 744. The Independent Stave Board did not evaluate the “rea-
sonableness” of the proposed settlement as it related to the nonsettling
charging party.
5 The dissent’s description of our decision as addressing “consent
POSTAL SERVICE 3
policy considerations underlying Independent Stave, the
application of the Independent Stave standard lacks a
compelling justification.
We find that the more appropriate standard for evaluat-
ing an order approving and incorporating settlement
terms proposed by a respondent, over the objections of
the General Counsel and charging party, is the one origi-
nally adopted by the Board in General Electric, 188
NLRB at 855. In addition to the considerations dis-
cussed above, administrative economy is also served by
the application of the General Electric standard. The
Board should avoid situations in which a judge approves
a proffered consent order, only to have the Board reject it
as insufficient—requiring litigation to resume, after an
unfortunate delay. The exacting standard reflected in
General Electric should mean that judges will not ap-
prove consent orders in cases like this one and that the
Board will rarely be required to reverse a judge’s ap-
proval.
Accordingly, we hold that such a proposed order pro-
tects the public interest and effectuates the purposes and
policies of the Act only if it provides a full remedy for all
of the violations alleged in the complaint. In evaluating
the completeness of the remedy, we will ask whether the
proposed order includes all the relief that the aggrieved
party would receive under the Board’s established reme-
dial practices were the case successfully litigated by the
General Counsel to conclusion before the Board. We
overrule Copper State Rubber, 301 NLRB 138 (1991),
Food Lion, Inc., 304 NLRB 602 (1991), and similar cas-
es to the extent they are inconsistent with this decision.6

settlement agreements” misconceives the issue. This case involves
orders approving and incorporating the settlement terms proposed by a
respondent, over the objections of the General Counsel and the charg-
ing party. Thus, there is no “agreement” between any parties. The
fundamental misconception of such orders as “settlement agreements,”
notwithstanding that they are involuntarily imposed on all parties other
than the respondent, explains many of the dissent’s erroneous conclu-
sions. The dissent further errs in stating that under today’s decision,
“the respondent must agree to accept a default judgment.” As any
reader of the decision will confirm, the decision says no such thing.
The consent order before us, which we disapprove for other reasons,
provides for entry of a default judgment in the event that the respondent
violates the order, but only because the respondent proposed that provi-
sion. One need look no further than General Electric, the original “full
remedy” consent-order case, to find an approved consent order that
contains no provision for a default judgment. See 188 NLRB at 855-
856.
6 The dissent's fear that our decision will stymie the early resolution
of disputes is unfounded. Nothing in our decision prevents the General
Counsel and the charging party from agreeing to a proffered consent
order. And we certainly encourage such true settlements. Where the
General Counsel and the charging party object to a proffered consent
order, of course, they assume the risk that the Board ultimately will
grant less relief than the respondent has consented to—or even that the
Board will rule in favor of the respondent. This real possibility, it
Application to the Present Case
Applying the Board’s original standard here, we find
that the judge’s order approving the Respondent’s prof-
fered terms over the objection of the General Counsel
and Charging Party does not provide a full remedy for all
of the violations alleged in the complaint. The complaint
alleged that the Respondent violated Section 8(a)(1) by
threatening its employees with more vigorous enforce-
ment of work rules if they chose to be represented by a
union steward or sought support and/or assistance from a
union. The typical remedy for such violations is a cease-
and-desist order and a notice posting. Among other
things, the order in this case contains a 6-month sunset
clause, limiting the availability of the enforcement pro-
cedure to the 6 months following case closure.7 Thus, if
the Respondent were to violate the order after expiration
of the 6-month period, the General Counsel would have
no immediate recourse.8 Board orders providing reme-
dies for adjudicated violations do not place such limita-
tions on the effective duration of their terms. Indeed, the
vast majority of settlements bind the respondent indefi-
nitely. The sunset clause thus differs from the remedy
that would have been ordered had the case been success-
fully litigated to conclusion, and its inclusion in the in-
stant order precludes a finding that it provides a full rem-
edy for the violations alleged in the complaint.9
IT IS ORDERED that the appeal is granted, that the con-

seems to us, creates a strong incentive for the General Counsel to ac-
cept reasonable settlements—and, indeed, the overwhelming majority
of unfair labor practice cases are settled before they reach the Board. It
is surely the rare case, and we expect will continue to be the rare case,
where a respondent offers the General Counsel full or nearly full relief
only to be turned down.
7 Although the order provides for a default judgment and entry of a
court judgment enforcing the Board’s order in the event of non-
compliance by the Respondent, it further provides that,
“[n]otwithstanding the above, no default judgment will be sought by
the General Counsel for conduct occurring more than six months after
the closing of this case on compliance.”
8 The most that the order before us permits the General Counsel to
do in the event of such a violation of its terms is to litigate from square
one the complaint allegations that the consent order supposedly re-
solved. The dissent views this as an appropriate limitation on the Gen-
eral Counsel’s ability to enforce a Board order. We disagree. The
dissent’s approach reveals its flawed conception of what it means to
“resolve” a case; in keeping with this approach, the dissent appears to
advocate for permitting a party that agrees to a consent order to seek
judicial review of the order. We believe, as a general matter, that a
case that has been resolved should stay resolved, and that Board orders
should be capable of effective enforcement if they are violated.
9 The order also includes a nonadmission clause. The inclusion of
that clause does not preclude a finding that the order provides a full
remedy for all the violations alleged in the complaint because the order
provides for entry of a court judgment. See id. at Sec. 10164.5 (“If
respondent consents to the entry of a court judgment, it is possible to
include a nonadmission clause in the stipulation.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
sent order is set aside, and that this matter is remanded to
the judge for further action consistent with this Order.
Dated, Washington, D.C. August 27, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, my colleagues decide that the Board will
no longer permit the early resolution of cases—based on
terms the Board would find “reasonable”—where the
resolution has been agreed to by the respondent, without
the agreement of the General Counsel or other parties.
Such a resolution, which may be termed a consent set-
tlement agreement,1 will be impermissible unless two
things occur: (1) the respondent must agree to provide “a
full remedy”; and (2) the respondent must agree to accept
a default judgment that forever waives any right to liti-
gate the unproven allegations.
I believe this is an ill-advised change for several rea-
sons.
First, the Board’s holding today is self-contradictory in
a way that might be amusing if it were not for the fact
that the majority is making it more difficult to achieve an
early resolution of potentially serious allegations that are
the subject of Board litigation. At issue here is the
Board’s longstanding policy of approving the early vol-
untary resolution of a labor dispute—possibly within
days after a complaint issues—where the terms have
been agreed to by the respondent, and where the Board
would conclude that the terms are “reasonable.” This
standard is set forth in Independent Stave Co.,2 a unani-

1 In this opinion, the term “consent settlement agreement” refers to
settlement terms to which the respondent has agreed but the General
Counsel and charging party or parties have not.
2 287 NLRB 740 (1987). In Independent Stave, the Board articulat-
ed four factors it would consider when evaluating the reasonableness of
settlement terms, but it made clear these factors are non-exhaustive,
which means the Board would have broad discretion to decide what
constitutes “reasonable” settlement terms:
mous five-member Board decision dating back nearly 30
years. In today’s decision, the majority overrules our
reliance on the Independent Stave “reasonable” standard
whenever the General Counsel and charging parties op-
pose the settlement agreement. Here is the inherent con-
tradiction in the majority’s decision: if the Board would
find that the terms of a settlement agreement are “reason-
able” (which is the standard under Independent Stave),
this means the Board would find it is unreasonable not to
give effect to the settlement agreement. Moreover, if the
Board would find that settlement terms are “reasonable”
as defined in Independent Stave, this means the opposi-
tion of the General Counsel and other parties is unrea-
sonable. Stated differently, by holding that the Board
will no longer accept settlement agreements that the
Board would find “reasonable,” my colleagues are im-
posing an irrational constraint on themselves.3 In these
respects, I believe what my colleagues do today does not
reflect a “reasoned justification for departing from its
precedent.”4 Given that Congress entrusted the Board
with the responsibility to apply the Act to the “complexi-
ties of industrial life,”5 I think the Board can and should
trust itself to do what is “reasonable.” On this basis
alone, I dissent from my colleagues’ decision.
Second, my colleagues are not merely overruling so-
called “consent order” cases where settlement terms6

It is, of course, impossible to anticipate each and every factor which
will have relevance to our review. . . . At this juncture, we find it un-
necessary to provide an exhaustive list of all the factors which may
become relevant in individual cases. Generally, however, in evaluat-
ing such settlements in order to assess whether the purposes and poli-
cies underlying the Act would be effectuated by our approving the
agreement, the Board will examine all the surrounding circumstances
including, but not limited to, (1) whether the charging party(ies), the
respondent(s), and any of the individual discriminatee(s) have agreed
to be bound, and the position taken by the General Counsel regarding
the settlement; (2) whether the settlement is reasonable in light of the
nature of the violations alleged, the risks inherent in litigation, and the
stage of the litigation; (3) whether there has been any fraud, coercion,
or duress by any of the parties in reaching the settlement; and (4)
whether the respondent has engaged in a history of violations of the
Act or has breached previous settlement agreements resolving unfair
labor practice disputes.
Id. at 743 (emphasis added).
3 See Independent Stave, 287 NLRB at 741 (quoting Robinson
Freight Lines, 117 NLRB 1483, 1485 (1957) (“[T]he Board alone is
vested with lawful discretion to determine whether a proceeding, when
once instituted, may be abandoned.”)) (footnote and other citations
omitted).
4 E. I. DuPont de Nemours & Co. v. NLRB, 682 F.3d 65, 70 (D.C.
Cir. 2012).
5 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); see also
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The
responsibility to adapt the Act to changing patterns of industrial life is
entrusted to the Board.”).
6 The Board uses different terms for different types of settlements—
e.g., “unilateral settlement,” “non-Board settlement,” “private settle-
POSTAL SERVICE 5
were opposed by the General Counsel and the charging
parties,7 they are overruling applying Independent Stave
itself to the evaluation of consent settlement agreements.
However, the Independent Stave factors themselves
demonstrate that the Board intended to apply them to all
types of voluntary resolution of cases by settlement
agreement, including those opposed by charging parties
and/or the General Counsel. Thus, the first Independent
Stave factor is “whether the charging party(ies), the re-
spondent(s), and any of the individual discriminatee(s)
have agreed to be bound, and the position taken by the
General Counsel regarding the settlement.”8 Consistent
with the intent of the Board in Independent Stave, suc-
ceeding Boards have applied that decision to evaluate the
reasonableness of consent settlement agreements for the
past 25 years.9 Moreover, contrary to my colleagues,
they do not return today to the standard “originally
adopted by the Board” in Local 201, Electronic Workers
(General Electric), 188 NLRB 855 (1971), because the
Board in General Electric did not, in my colleagues’
words, “adopt[] the trial examiner’s recommendation to
approve the proposed order on the ground that it provid-
ed a full remedy for all of the violations alleged in the
complaint.”10 In General Electric, the trial examiner

ment,” “consent order”—but my colleagues argue that the settlement
terms at issue here do not represent a true “settlement” since they were
not agreed to by “parties to the dispute,” i.e., either the General Counsel
or the charging party in addition to the respondent. Majority opinion,
slip op. at 2 (quoting Heil Environmental, 10–CA–114054 et al. (June
20, 2014)). In my view, however, there is no good reason to apply a
different standard of review to evaluate these different types of settle-
ments. Regardless of whether or not a party other than the respondent
agrees to the terms, I believe the Board should approve the early resolu-
tion of unfair labor practice cases if it determines that the settlement
terms are “reasonable” under Independent Stave, supra.
7 See, e.g., Copper State Rubber, 301 NLRB 138 (1991); Food Li-
on, Inc., 304 NLRB 602 (1991).
8 Independent Stave, 287 NLRB at 743.
9 See, e.g., Local 872, 28–CB–118809, 2015 WL 153954 (Jan. 12,
2015) (agreeing with the judge that the proposed “unilateral settlement
by consent order” met requirements of Independent Stave); Heil Envi-
ronmental, 10–CA–114054 et al., 2014 WL 2812204 (June 20, 2014)
(same); Postal Service, 20–CA–31171 (May 27, 2004) (approving
under Independent Stave a unilateral settlement offer opposed by the
General Counsel and the charging party); Leprino Foods Co., 07–CB–
43599 (Jan. 24, 2003) (same); Caterpillar, Inc., 33–CA–10164 (May
13, 1996) (same); Propoco, Inc., d/b/a Professional Services, 2–CA–
27013 (June 26, 1995) (same). See also Lin Television Corp., 362
NLRB No. 197 (2015) (setting aside “consent order” as it did not meet
requirements of Independent Stave); Enclosure Suppliers, LLC, 09–
CA–046169, 2011 WL 2837659 (July 14, 2011) (same); Sea Jet Truck-
ing Corp., 327 NLRB 540, 550 (1999) (setting aside unilateral settle-
ment proposed by the respondent over the General Counsel’s and
charging party’s objection as it did not satisfy Independent Stave re-
quirements); Iron Workers Local 27 (Morrison-Knudson), 313 NLRB
215, 217 (1993) (same); Food Lion, Inc., 304 NLRB 602, 602 fn. 4
(1991) (same).
10 Majority opinion, slip op. at 1.
recommended approving a consent settlement agreement
that provided “a full remedy,” and the Board adopted the
trial examiner’s recommendation. Id. at 855. The Board
did not say that it was adopting the recommendation “on
the ground that” it provided a full remedy. The Board
did not say it would only approve consent settlement
agreements that provide “a full remedy.” Nor can a “full
remedy” standard be inferred from the General Electric
decision. Merely because the Board in General Electric
approved a consent settlement agreement that provided a
full remedy, it does not follow that it would reject a con-
sent settlement agreement that provided somewhat less
than a full remedy. A high jumper that clears the bar by
a foot would also clear it if he had jumped 6 inches low-
er. In short, my colleagues do not return to “the Board’s
original standard” for consent settlement agreements.
They announce a “full remedy” standard for the first time
in the Board’s history.
Third, I respectfully disagree with my colleagues’ sug-
gestion that the Board in Independent Stave favored the
voluntary resolution of cases only in “deference to the
charging party’s judgment.”11 Again, the Independent
Stave factors themselves contemplate that charging par-
ties might oppose the proffered settlement terms.12 It is
true that, in reference to the three charging parties who
accepted the settlement, the Board in Independent Stave
mentioned that it was “honoring the parties’ agreements”
and that the settlements eliminated risks that the parties
“have decided to avoid.”13 However, the Board charac-
terized the Act’s purposes more broadly as “encouraging
voluntary dispute resolution, promoting industrial peace,
conserving the resources of the Board, and serving the
public interest.”14 These purposes are advanced by the
Board’s acceptance of all settlements that the Board
deems “reasonable,” regardless of opposition by the
General Counsel or certain parties. The Board in Inde-
pendent Stave also renounced any requirement of “a full
remedy” for reasons that apply regardless of whether the
General Counsel or other parties might insist on such
relief. The Board stated:

11 Majority opinion, slip op. at 2.
12 287 NLRB at 743.
13 Id. As my colleagues observe, the Independent Stave Board did
not evaluate the reasonableness of the proposed settlement as to the
fourth charging party (employee Raley), who did not accept the settle-
ment. But the respondent in Independent Stave did not ask the Board
to approve the settlement as to Raley despite Raley’s objection. Rather,
the respondent asked the Board to find that Raley, by rejecting its set-
tlement offer, waived any right to claim employment based on the
complaint allegation that it unlawfully refused to hire him. Id. at 740.
The Board’s denial of summary judgment as to Raley, therefore, does
not mean the Board held that the Independent Stave standard was inap-
plicable to consent settlement agreements.
14 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
At this stage of the litigation we are confronted only
with alleged violations of the Act. Even though the al-
legations in the complaint issued after the Region's in-
vestigation and determination that reasonable cause ex-
ists to believe the allegations occurred, a charging par-
ty’s right to a [full] remedy can be enforced, upon the
authority of the Government, only after an adjudica-
tion. In addition, there are risks inherent in litigation.
For example, witnesses may be unavailable or uncoop-
erative; procedural delays may occur; the issues may
be complex or novel; supporting documentation may
have been destroyed or lost; and credibility resolutions
may have to be made by the administrative law judge.
By operating on a rigid requirement that the settlement
must mirror a full remedy, we would be ignoring the
realities of litigation.15
I agree with the Independent Stave Board that rejecting a
settlement agreement on the basis that it does not furnish
a “full remedy”—when settlement terms would be
deemed “reasonable” in light of the factors set forth in
Independent Stave—improperly fails to recognize that it
is never certain that the General Counsel and charging
parties will prevail in Board litigation.16
Fourth, I believe the Board should acknowledge that,
in many or most cases, less-than-complete but “reasona-
ble” settlement terms agreed to by the respondent at an
early stage17 will leave the parties in a better position
than would result from a Board adjudication, considering
the substantial burdens and time involved in Board pro-
ceedings. Unfortunately, the nature of Board litigation
entails substantial delay in getting unfair labor practices
resolved. Our procedures require the filing of a charge
that is investigated by one of the Board’s Regional Of-
fices, which decides whether to issue a complaint, which
is followed by a hearing before an administrative law
judge, with posthearing briefing in most cases. After the
judge issues a decision, parties have the right to file ex-
ceptions with the Board, which typically are supported
by another round of briefs, and the Board renders a deci-
sion, which can be followed by court appeals. When the
Board has found a violation and has ordered backpay and
other remedial measures, there are additional compliance

15 Id. at 742–743 (emphasis added).
16 See id. at 742 (“[T]here are risks inherent in litigation.”); id. at 743
(“[T]he outcome of the litigation is uncertain” and parties “may ulti-
mately lose.”).
17 In Independent Stave, for example, the settlements regarding three
of the charging parties were agreed to by the employer 10 days after the
issuance of the complaint. Id. at 743. In the instant case, the complaint
was issued on March 31, 2015, and the employer sought approval of the
settlement terms on May 20, 2015, roughly 2 weeks before the sched-
uled hearing commencement date of June 4, 2015.
proceedings handled by the Board’s Regional Offices,
which can result in additional hearings before adminis-
trative law judges, additional posthearing briefs, supple-
mental decisions by the judges, and further appeals to the
Board and the courts. In spite of everyone’s best efforts,
this lengthy litigation process consumes substantial time
and, too often, causes unacceptable delays before any
Board-ordered relief becomes available to the parties.18
Fifth, even if one applies the “full remedy” standard
adopted by my colleagues, I believe the settlement terms
at issue here must be deemed acceptable by the Board.
The single unfair labor practice alleged in this case is that
the Respondent threatened employees with more vigor-
ous enforcement of work rules if they chose to be repre-
sented by a union steward or sought support and/or assis-
tance from a union. The remedy that would be ordered
by the Board in this case after a full adjudication would
be an order to cease and desist and to post a remedial
notice. Under the terms of the consent settlement agree-
ment, the Respondent agrees to post a remedial notice
stating, among other things: “WE WILL NOT threaten
you with more vigorous enforcement of rules if you
choose to be represented by a union steward or seek sup-
port and/or assistance from a union,” and “WE WILL
NOT in any like or related manner interfere with, restrain
or coerce you in the exercise of your rights under Section
7 of the Act.” This is what the remedial notice would
say if the Board ordered the posting of a notice after a
full adjudication. Moreover, the Respondent has agreed
to post the remedial notice for 60 days, which is the
standard notice-posting period ordered by the Board in
adjudicated unfair labor practice cases. Moreover, going
beyond “the relief that the aggrieved party would receive
under the Board’s established remedial practices were the
case successfully litigated by the General Counsel to
conclusion before the Board”—the standard the majority
will now apply in evaluating consent settlement agree-
ments—the Respondent has agreed that under certain
circumstances set forth in the agreement’s default lan-
guage, it waives the right to oppose entry of a judgment
against itself by a United States court of appeals.

18 Many cases involve years of Board litigation, and often dozens or
even hundreds of employee-claimants. For example, the dispute in
CNN America, Inc., 361 NLRB No. 47 (2014)—involving approxi-
mately 300 employee-claimants—required 82 days of trial, more than
1,300 exhibits, more than 16,000 transcript pages, and more than 10
years of Board litigation, and the case still remains pending on appeal.
Another example, in the early stages of Board litigation, involves con-
solidated claims being pursued against McDonald’s USA, LLC, and 31
other employer parties, based on 61 unfair labor practice charges filed
in six NLRB regions alleging 181 unfair labor practices involving
employees at 30 restaurant locations. See, e.g., McDonald’s USA, LLC,
363 NLRB No. 91 (2016).
POSTAL SERVICE 7
My colleagues cite only one ground for concluding
that the consent settlement agreement fails to afford a
“full remedy” in this case: the settlement agreement pro-
vides for a default judgment in the event that the re-
spondent breaches the settlement agreement, but the de-
fault judgment provision is subject to a 6-month limita-
tion, which my colleagues call “a 6-month sunset
clause.”19 For three reasons, the presence of a “6-month
sunset clause” in the settlement agreement does not make
the agreement provide less than a “full remedy.”
First, an agreement’s default judgment language (with
or without a 6-month sunset clause) has nothing to do
with whether employees receive a “full remedy.” The
completeness of the remedy relates to the agreement’s
substantive terms (which, depending on the type of case,
may involve backpay, reinstatement, a cease-and-desist
order, and a remedial posting requirement). An agree-
ment’s default judgment language, and any 6-month
limitation on any default judgment, only relates to the
process by which the Board would enforce the settlement
in the event of a breach. Whether the settlement affords
a “full remedy” is determined by the substantive com-
mitments set forth in the agreement, which are different
from what occurs if the Respondent fails to abide by
those commitments. And as explained above, those sub-
stantive commitments represent a full remedy.20
Second, my colleagues define a “full remedy” as “all
the relief that the aggrieved party would receive under
the Board’s established remedial practices were the case
successfully litigated by the General Counsel to conclu-
sion before the Board.” As explained above, that “full
remedy” is provided in the consent settlement agreement
my colleagues reject in the instant case. As I have

19 The consent settlement agreement’s default judgment language
provided that, in the event of a breach of the agreement’s terms, the
respondent agreed to the entry of a default judgment, which waives the
respondent’s right to litigate the unproven allegations that gave rise to
the settlement, except the respondent may litigate the question of
whether it violated the agreement. The default language in the consent
settlement agreement provides that “no default judgment will be sought
by the General Counsel for conduct occurring more than six months
after the closing of this case on compliance.” My colleagues deny that
a respondent must agree to accept a default judgment for a proposed
settlement to pass muster under their decision today, but, as noted, the
6-month limitation on default judgments is the sole basis upon which
they reject the settlement at issue in this case.
20 Significantly, the Charging Party did not object to the inclusion of
either the non-admissions clause or the 6-month sunset clause in the
consent order. Its sole objection was that the consent order did not
provide more than the standard Board remedy—specifically, district-
wide notice posting. In support of their conclusion that the settlement
agreement fails to provide a full remedy, my colleagues (rightly) do not
cite the absence of district-wide notice posting. In these circumstances,
the majority’s insistence on what they deem a full remedy in “deference
to the charging party’s judgment concerning its own interests in accept-
ing less than a full remedy” rings a bit hollow.
shown, if this case were “successfully litigated by the
General Counsel to conclusion before the Board,” the
Respondent would be ordered to take the same remedial
steps that it agreed to take as outlined in the consent set-
tlement agreement. In fact, the consent settlement
agreement imposes more onerous requirements on the
Respondent than what would result from successful liti-
gation “before the Board.” Under Section 10(f) of the
Act, a respondent who loses before the Board has the
right to file a petition for review in a United States court
of appeals seeking to have the Board’s order modified or
set aside. Under the terms of the consent settlement
agreement, the Respondent waives this right.
Third, even if the “6-month sunset clause” might be
deemed relevant to the completeness of the remedy, it is
expressly permitted in informal settlements where, like
here, chances of default are low. See GC Memorandum
13-04, at 12 (March 19, 2013); OM Memorandum 14-48,
at 3 (April 10, 2014). As the judge observed, there is no
indication in this case of “a significant danger that the
Respondent will violate the Act in the future at that facil-
ity.” Moreover, not only has the Division of Operations-
Management within the Office of the General Counsel
decided that a 6-month “sunset clause” in the default
provisions of a settlement agreement is permissible when
chances of default are low, it has further decided that
“the six-month period may run from approval of the set-
tlement agreement rather than closure of the case.” OM
Memorandum 14-48, at 3 fn. 2. Six months from ap-
proval of the agreement is a shorter period of time than 6
months from closure of the case on compliance. Here,
the 6-month period runs from closure of the case on
compliance. In these circumstances, it appears that the
settlement terms encompass all of the voluntary remedial
actions that could be required of a respondent who alleg-
edly committed an isolated instance of an unfair labor
practice.21
For these reasons, I disagree with my colleagues’ deci-
sion to overrule Copper State Rubber, 301 NLRB 138
(1991), Food Lion, Inc., 304 NLRB 602 (1991), and sim-
ilar cases; I disagree with the decision to overrule the

21 Because the proposed 6-month “sunset clause” runs from the
closure of the case on compliance, it would have no effect on the en-
forceability, through default judgment, of any failure to comply with
the notice-posting provision. The clause does limit the period during
which the consent settlement agreement can be enforced through a
default judgment if the Respondent thereafter were to fail to comply
with its other provisions, but by the terms of the agreement the General
Counsel retains the ability—even after the 6-month period—to revoke
the agreement and litigate the settled allegation. A Board order in a
litigated case, or a settlement agreement without a default judgment
provision, similarly require further litigation before a court order re-
quiring compliance can be secured.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
application of Independent Stave to consent settlement
agreements, i.e., settlements opposed by the General
Counsel and charging parties; and I disagree with my
colleagues’ failure to affirm the judge’s approval of the
settlement terms agreed to by the Respondent. Again,
the practical effect of today’s decision will be to prevent
the Board from having any opportunity to secure volun-
tary early settlements—even when the Board itself would
find that the settlement terms are reasonable under Inde-
pendent Stave—merely because the settlement terms are
unreasonably opposed by the General Counsel and the
charging parties. Accordingly, I respectfully dissent.
Dated, Washington, D.C. August 27, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD