January 2011 - National Labor Relations Board

10402 EVIDENCE OF SETTLEMENT NEGOTIATIONSsubpoena duces tecum is served on alleged discriminatees and/or counsel for the GeneralCounsel’s witnesses.Counsel for the General Counsel should consult with the Regional Office forconsideration of a possible special appeal or other action if the Administrative Law Judgeupholds the demand for production over the objection of counsel for the General Counsel.10402 Evidence of Settlement NegotiationsSettlement offers and discussions are normally inadmissible. Rule 408 of theFederal Rules of Evidence. Counsel for the General Counsel should not introduce suchevidence and should resist attempts of others to introduce it. But see Miami SystemsCorp., 320 NLRB 71 (1995), which held that threats during the course of grievancesettlement discussions are admissible.10403 Background Evidence and Use of Presettlement ConductIn cases involving postsettlement unfair labor practice allegations, unfair laborpractices or other statements and conduct prior to the settlement agreement may beconsidered in establishing the motive or object of respondent in its postsettlementactivities. Coastal Electric Cooperative, 311 NLRB 1126, 1132 (1993).10404 Appeals to BoardSec. 102.26, Rules and Regulations requires special permission of the Boardbefore a party may file a direct appeal to rulings and orders of the Administrative LawJudge. Requests for such permission should be made promptly in writing, with a copyserved on each other party and on the ALJ. Requests for Special Permission to Appealrulings and orders of the ALJ may also be filed electronically at the Agency’s websiteunder “Board/Office of the Executive Secretary.” See Sec. 11846.4. The request forspecial permission to appeal should succinctly state the ruling, the surroundingcircumstances and the grounds urged for reversal.Counsel for the General Counsel should consult with the Regional Office beforefiling a request with the Board for special permission to appeal. Factors to be weighedbefore deciding to specially appeal include the importance of the issue to the overallprosecution of the case and the likelihood that the Board will grant such specialpermission.Ordinarily, the hearing should not be delayed because a party seeks specialpermission to appeal a ruling or order. Counsel for the General Counsel should exercisediscretion in deciding whether to submit to the Board an opposition to the request.Revised 01/11