07/31/2024: An Advice Memo About Statements Made in Settlement Talks

Another application of the single-facility presumption.

Bloodworks Northwest, 19-RC-341186 (Regional Election Decision)

This decision addresses whether a single-facility bargaining unit at Bloodworks Northwest's Silverdale location is appropriate. The key points of the legal analysis are:

1. The Regional Director applied the single-facility presumption, which holds that a petitioned-for single-facility unit is presumptively appropriate unless it has been so effectively merged or functionally integrated that it has lost its separate identity (citing Dixie Belle Mills, Inc., 139 NLRB 629 (1962)).

2. The Director analyzed the factors for rebutting the presumption: central control over operations/labor relations, similarity of employee skills/functions/working conditions, degree of employee interchange, distance between locations, and bargaining history.

3. While there was some centralized control, the Director found significant local autonomy in day-to-day supervision at the Silverdale facility.

4. Employee skills, functions and working conditions were similar across facilities, but this factor was given less weight than local autonomy and interchange.

5. The Director found limited employee interchange, with only 4.63% of shifts at Silverdale worked by employees from other locations.

6. The geographic separation of Silverdale, requiring ferry travel, supported finding it to be a distinct facility.

7. There was no relevant bargaining history.

8. The Director concluded the single-facility presumption was not rebutted and the petitioned-for Silverdale unit was appropriate.

Key cases applied:

Dixie Belle Mills, Inc., 139 NLRB 629 (1962) - Established the single-facility presumption for bargaining units.

California Pacific Medical Center, 357 NLRB 197 (2011) - Held that the party opposing a single-facility unit bears the heavy burden of rebutting its presumptive appropriateness.

Wolf Creek Nuclear Operating Corporation, 365 NLRB No. 55 (2017) - Interpreted Board rules to give preclusive effect to prior Regional Director decisions in subsequent representation proceedings.

United Federation LEOS (Inner Parish Security Corp.), 10-CB-321806 (Advice Memo)

This advice memo addresses the admissibility of statements made during settlement negotiations as evidence of an unfair labor practice. The key points of the legal analysis are:

1. The memo concludes that even if the union's statement during settlement negotiations was unlawful, it would be inadmissible under Federal Rule of Evidence 408.

2. Rule 408 bars the introduction of statements made during compromise negotiations to prove liability or invalidity of a claim.

3. The Board has held that contents of bona fide settlement negotiations are inadmissible under Rule 408.

4. An exception exists for independently unlawful conduct during settlement discussions.

5. In this case, the alleged violation was closely intertwined with the matter being settled, relying entirely on a statement about the settlement claim amount.

6. The memo distinguishes this case from situations where unlawful statements during negotiations were admissible because they were unrelated to the matter being settled.

7. Based on this analysis, the memo recommends dismissing the charge.

The advice memo does not provide specific details about the statements in question. It only mentions that:

1. The alleged Section 8(b)(1)(A) violation was based on a statement made during settlement negotiations.

2. The statement was related to "the amount of the settlement claim."

3. The statement was made in the context of settling a grievance, which the union had come to understand "lacked merit."

The memo focuses on the legal analysis of whether such statements would be admissible as evidence, rather than detailing the content of the statements themselves. The lack of specifics about the statements is likely due to the confidential nature of settlement discussions and the memo's focus on the broader legal principle of admissibility under Rule 408.

Key cases applied:

General Service Employees Union Local No. 73, 240 NLRB 462 (1979) - Held that contents of bona fide settlement negotiations are inadmissible under Rule 408.

St. George Warehouse, Inc., 349 NLRB 870 (2007) - Established that evidence of independently unlawful conduct during settlement discussions can be introduced and adjudicated.

Contee Sand and Gravel, 274 NLRB 574 (1985) - Held that Rule 408 precludes admission of evidence closely intertwined with unfair labor practices under discussion in settlement negotiations.