NLRB Advice Memoranda, United Federation LEOS (Inner Parish Security Corp.), National Labor Relations Board, (Feb 28, 2024)

The Region submitted this case for advice as to whether a statement made by ​     ​ during settlement negotiations for an unfair labor practice charge is admissible to establish that the statement constituted a Section 8(b)(1)(A) violation. We conclude that this allegation should be dismissed, absent withdrawal.

The instant charge alleges that United Federation LEOS-PBA (the Union) violated Section 8(b (1)(A) when ​     ​ told the Charging Party that the Union would have been willing to offer ​     ​ more to settle ​     ​ charge (in related case 10-CB-317276) if ​     ​ had not filed an unfair labor practice charge that required the Union to incur legal expenses.

On June 6, 2023, ​     ​ informed the Charging Party that it was considering making a cash offer to settle ​     ​ charge in case 10-CB-317276, which alleges the Union arbitrarily or discriminatorily failed to process the Charging Party's grievance regarding Inner Parrish's refusal to allow ​     ​ to work for ​     ​ days until ​     ​ expired firearms credentials were renewed. [1]

On June 8, the Union emailed the Charging Party, writing in part, “[T]he Union is willing to pay you a reasonable amount if you agree to withdraw the charge. If you are willing to discuss settlement, please let me know how much money you lost because of Inner Parrish's actions…. I would appreciate your response as soon as possible.” On or about June 15 or 16^th the Charging Party spoke with ​     ​ Union representative, who told ​     ​ to contact ​     ​.

Meanwhile, on June 16, ​     ​ filed a position statement in 10-CB-317276.

On June 26, the Charging Party attempted to send ​     ​ an email with ​     ​ estimated lost wages ​     ​ hours of pay, or $ ​     ​ ), but later realized that the email address ​     ​ had for ​     ​ was incorrect and that the email had been returned as undeliverable. On July 2, the Charging Party called ​     ​ to relay that a coworker had told ​     ​ the Union was trying to contract ​     ​ After that phone call, ​     ​ forwarded ​     ​ ​     ​ June 26 email with the estimate of ​     ​ lost wages to ​     ​ Union representative, who then forwarded it to ​     ​.

Thereafter, on July 4, the Charging Party called ​     ​; ​     ​ asserts that during this call, ​     ​ told ​     ​ the Union would not pay ​     ​ the entire amount ​     ​ had lost in wages because ​     ​ had to file a response to ​     ​ labor charge against the Union. Thereafter, on July 4, ​     ​ sent the Charging Party the following, allegedly coercive email:

After we spoke this morning, I informed ​     ​ [] about our conversation and your email to [your Union representative.] Because ​     ​ did not hear from you for so long, ​     ​ was required to submit a position statement to the Region. Not only did this require paying legal fees which could have been used as part of a settlement, it also supported the conclusion that your grievance lacked merit. Nevertheless, if you agree in writing to withdraw the unfair labor practice charge, LEOS will pay you $ ​     ​ full settlement. Please let me know if you accept this settlement offer.

On July 11, 2023, the Charging Party filed the instant 8(b)(1)(A) charge alleging that the statement in the July 4 email was unlawfully coercive as it indicated that the Union would have offered ​     ​ a higher settlement amount had ​     ​ refrained from participating in Board activity. The Union contends that it never made an offer of any specific amount but rather had merely asked the Charging Party about ​     ​ loss, so there was no reduction in the Union's offer. It contends that the June 4 letter explained at the facts had changed since the Union's June 8 email: the Union now believed ​     ​ grievance lacked merit and had incurred legal fees in responding to the Region.

As to the alleged 8(b)(1)(A) coercive statement we conclude that the evidence is insufficient to establish a violation under the Act. ​     ​s email focused on the fact that ​     ​ had not heard back from the Charging Party and thus was forced to continue litigating the charge. In this context, the statements about the settlement amount were unrelated to the Charging Party's participation in Board activity but rather stemmed from ​     ​ lack of timely communication about a possible settlement and the Union's new understanding that the underlying grievance lacked merit.

Even assuming the statement was unlawful, we conclude that it would nevertheless be inadmissible under Rule 408 of the Federal Rules of Evidence, which bars the introduction of statements or conduct made in compromise negotiations for the purpose of proving liability for, invalidity of, or amount of a claim as a statement during settlement discussions. The Board has held that the contents of discussions that are part of bona fide settlement negotiations are inadmissible under Rule 408. General Service Employees Union Local No.73, 240 NLRB 462 (1979) citing Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO (Altemost Construction Co.), 222 NLRB 1276, footnote 1 (1976). However, if a respondent engages in independently unlawful conduct during a settlement discussion, evidence of that conduct can be introduced, and the matter can be adjudicated. St. George Warehouse, Inc., 349 NLRB 870 (2007).

Here, the alleged Section 8(b)(1)(A) violation was closely intertwined with the matter being settled and indeed relies entirely on a statement made regarding the amount of the settlement claim. As such, it would be inadmissible under Rule 408. See Contee Sand and Gravel, 274 NLRB 574, fn. 1 (1985) (Rule 408 precludes admission of evidence of parties oral agreement on a new contract to establish subsequent Heinz 8(a)(5) violation where the agreement was part of settlement of charges that alter egos abrogated prior contract; the new agreement was “closely intertwined with the unfair labor practices under discussion”); compare Vulcan-Hart Corp. v. NLRB, 718 F.2d 269, 277 (8th Cir. 1983) (admission of evidence of an unlawful reinstatement offer made in attempted grievance settlement not barred by Rule 408 where merits of the matter being settled, i.e., the discharge grievance, were unrelated to the matter being litigated); Cirker's Moving & Storage Co., 313 NLRB 1318, 1326-1327 (1994) (employer statements conditioning employee's reinstatement on his resignation from union office, made during negotiations to settle the employee's discharge grievance, admissible as evidence of an independent violation unrelated to discharge grievance); Miami Systems Corp., 320 NLRB 71, 72, 75 (1995) (Rule 408 does not prohibit the introduction of evidence of threats made during settlement discussions).

Accordingly, the Region should dismiss the charge, absent withdrawal.

This email closes this case in Advice. Please reach out with any questions.

Thank you,

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Advice

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