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Cases and Decisions

Cases & Decisions

Invitations to File Briefs

The National Labor Relations Board occasionally invites the public to file amicus briefs in cases of significance or high interest. Listed below are current and recent invitations - each with a short description of the issues involved and filing deadlines. Briefs should be filed with the Office of the Executive Secretary; contact information is provided in the text of each invitation.

NLRB Invites Briefs on Mandatory Arbitration Clauses

Washington, D.C., January 18, 2022 - In a notice issued today in Ralphs Grocery Company 371 NLRB No. 50 (2021) the National Labor Relations Board invites parties and amici to submit briefs addressing whether the Board should adopt a new legal standard to determine whether confidentiality requirements in a mandatory arbitration agreement  violate Section 8(a)(1) of the National Labor Relations Act and other legal issues related to mandatory arbitration agreements.

To aid in the consideration of these issues, the Board now invites the filing of briefs in order to afford the parties and interested amici the opportunity to address the following questions.

1.  Should the Board abrogate the decision in Anderson Enterprises, where it overruled its earlier decision in the instant case?  Does the arbitration policy at issue in the instant case interfere with employees’ right to file Board charges or otherwise access the Board’s processes?

2.  Did the Board correctly hold in California Commerce Club that the Federal Arbitration Act privileges employers’ maintenance of confidentiality requirements in arbitration agreements that would otherwise violate Section 8(a)(1) by interfering with employees’ exercise of their rights guaranteed by Section 7? 

3.  If, contrary to California Commerce Club, the FAA does not prevent the Board from reviewing arbitration confidentiality requirements under the National Labor Relations Act, what standard should the Board apply to determine whether such requirements are lawful?

Chairman McFerran and Members Wilcox and Prouty joined in issuing the notice and invitation for the Board. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC on or before March 21, 2022. The parties (but not amici) may file responsive briefs on or before April 4, 2022, which shall not exceed 30 pages in length.  No other responsive briefs will be accepted.  Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

 

NLRB Invites Briefs Regarding Work Rules Standard

Washington, D.C., January 06, 2022 - In a notice issued in Stericycle, Inc. 371 NLRB No. 48 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should adopt a new legal standard to determine whether employer work rules violate Section 8(a)(1) of the National Labor Relations Act. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, which include the right to form a union, the right to bargain with their employer over terms and conditions of employment, and the right to join together in other ways for their mutual aid and protection. 

In 2017, the Board established a new standard for analyzing the lawfulness of employer work rules in Boeing Co., 365 NLRB No. 154 (2017), which was later refined in LA Specialty Produce Co., 368 NLRB No. 93 (2019).

Given the ubiquity of employer work rules and the importance of ensuring that such rules do not interfere with the exercise of employees’ rights under Section 7 of the Act any more than is justified by legitimate employer interests, the Board believes that it is appropriate, with public participation, to evaluate the standard adopted in Boeing, revised in LA Specialty Produce, and applied in subsequent cases.

In today’s notice, the Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

1. Should the Board continue to adhere to the standard adopted in Boeing Co. and revised in LA Specialty Produce Co.?

2. In what respects, if any, should the Board modify existing law addressing the maintenance of employer work rules to better ensure that:

(a) the Board interprets work rules in a way that accounts for the economic dependence of employees on their employers and the related potential for a work rule to chill the exercise of Section 7 rights by employees;

(b) the Board properly allocates the burden of proof in cases challenging an employer’s maintenance of a work rule under Section 8(a)(1); and

(c) the Board appropriately balances employees’ rights under Section 7 and employers’ legitimate business interests?

3. Should the Board continue to hold that certain categories of work rules—such as investigative-confidentiality rules as addressed in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, (2019), non-disparagement rules as addressed in Motor City Pawn Brokers, 369 NLRB No. 132 (2020), and rules prohibiting outside employment as addressed in Nicholson Terminal & Dock Co., 369 NLRB No. 147 (2020), and G&E Real Estate Management Services d/b/a Newmark Grubb Knight Frank, 369 NLRB No. 121 (2020)—are always lawful to maintain?

Chairman McFerran and Members Wilcox and Prouty joined in issuing the notice and invitation for the Board. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC on or before March 7, 2022. The parties (but not amici) may file responsive briefs on or before March 22, 2022 which shall not exceed 30 pages in length.  No other responsive briefs will be accepted.  Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

 

NLRB Invites Briefs Regarding Independent Contractor Standard

Washington, D.C., December 27, 2021 — In a notice issued in The Atlanta Opera, Inc. 371 NLRB No. 45 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining the independent contractor status of workers.

In 2019, in SuperShuttle DFW, Inc., the Board overruled the prior standard for determining independent contractor status which was set forth in FedEx Home Delivery in 2014. The Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

  1. Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)?
  2. If not, what standard should replace it?  Should the Board return to the standard in FedEx Home Delivery, 361 NLRB 610, 611 (2014), either in its entirety or with modifications?

Chairman McFerran and Members Wilcox and Prouty issued the notice and invitation. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, D.C., on or before February 10, 2022.  The parties (but not amici) may file responsive briefs on or before February 25, 2022 which shall not exceed 30 pages in length.  No other responsive briefs will be accepted.  Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

 

NLRB Invites Briefs Regarding Appropriate Bargaining Units

Washington, D.C., December 7, 2021 — In a notice issued in American Steel Construction 371 NLRB No. 41 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit. 

In PCC Structurals 365 NLRB No. 160 (2017), as revised in The Boeing Co., 368 NLRB No. 67 (2019), the Board overruled the prior standard for determining if a proposed bargaining unit is an appropriate unit, which was set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).  The Board invites the filing of briefs to afford the parties and interested amici the opportunity to address the following questions:

  1. Should the Board adhere to the unit-determination standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019)?
  2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?

Chairman McFerran and Members Wilcox and Prouty issued the notice and invitation. Members Kaplan and Ring dissented. 

Briefs not exceeding 20 pages in length may be filed with the Board in Washington, D.C., on or before Friday, January 21, 2022. The parties (but not amici) may file responsive briefs on or before Monday, February 7, 2022, which shall not exceed 30 pages in length.  No other responsive briefs will be accepted. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

 

NLRB Invites Briefs Regarding Consequential Damage Remedy for Employees

Washington, D.C., November 10, 2021 — In a notice issued in Thryv, Inc. 371 NLRB No. 37 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should expand its traditional make-whole remedy for employees who are discharged, laid off, or otherwise discriminated against to more fully account for their actual economic losses.  The Board will consider whether to establish a practice of awarding a fuller accounting of “consequential damages,” in addition to loss of earnings and benefits, to employees who suffer unfair labor practices.

The Board’s traditional remedy for unlawful layoffs or terminations requires that employees be reinstated to their previous or substantially equivalent positions and be made whole for their loss of earnings and benefits, along with the search-for-work and interim employment expenses they incurred because of the unlawful conduct.

In the notice and invitation to file briefs, the Board asked for briefing on the following questions:

  1. Should the Board modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where these damages are a direct and foreseeable result of a respondent’s unfair labor practice?
  2. Alternatively, should the make-whole remedy include relief for consequential damages only upon findings of egregious violations by a respondent?
  3. If consequential damages are to be included in make-whole relief, how should they be proved, and what would be required to demonstrate that they are a direct and foreseeable result of an employer’s unfair labor practice?
  4. What considerations support making the proposed change to the Board’s traditional make-whole remedies?
  5. What considerations support retaining the Board’s traditional exclusion of consequential damages from its make-whole remedies?

Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty unanimously issued the notice and invitation.

Briefs not exceeding 20 pages in length shall be filed with the Board in Washington, D.C., on or before Monday, December 27, 2021. The parties (but not amici) may file responsive briefs on or before Tuesday, January 11, 2022, which shall not exceed 30 pages in length.  No other responsive briefs will be accepted. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

 

***Update 12/15/2021***

To aid in the consideration of the issues raised in this case, the Board has extended the time for filing briefs from the parties and interested amici now to Monday, January 10, 2022. Parties (but not amici) now have until Tuesday, January 25, 2022 to submit responsive briefs.  Parties and amici should note that, as set forth in the order granting this extension of time, henceforth any future motion for extension of time to file briefs in this case will be denied absent compelling circumstances. 
 

» An archive of previous invitations and briefs can be found here.