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NLRB Requests Amicus Briefs in Two Significant Cases

On Friday, February 19, 2016, the National Labor Relations Board invited interested individuals and organizations to file amicus briefs on two important legal issues where the Board is considering overturning existing precedent.

In one case, King Soopers, Inc., NLRB, No. 27-CA-129598 (2/19/16), the NLRB’s General Counsel has asked the Board to change its long-standing practice of awarding discriminatees with expenses incurred when seeking new employment only when the discriminatee received interim earnings.  Currently, the NLRB only awards reasonable search-for-work and interim employment expenses when the discriminatee receives interim earnings.  However, the General Counsel is now seeking to expand the types of cases where discriminatees can be awarded such expenses to cover situations where discriminates do not receive any interim earnings.  In other words, the General Counsel wants to re-write the law so that if a terminated employee searches for new work and incurs costs in the process, but does not find new work, the employer should still be liable for those expenses.  The deadline to file an amicus brief with the Board is March 18, 2016.

In the second case, U.S. Postal Serv., NLRB, No. 7-CA-142926 (2/19/16), the NLRB is seeking amicus briefs concerning whether the Board should allow administrative law judges (ALJs) to issue “consent orders,” subject to review by the Board, settling unfair labor practice cases where no party other than the Respondent has agreed to the terms of the settlement, and over the objection of the General Counsel.  Current Board practice permits ALJs to bless settlements without approval of the General Counsel or other parties.  The General Counsel is asking the Board to reverse precedent by not permitting ALJs to settle cases over the objection of the General Counsel, even if the ALJ believes that the Respondent’s settlement offer better effectuates the purposes of the NLRA than continuing to litigate the case.  Similarly, the due date to file briefs with the Board on this issue is March 18, 2016.

© 2020 Proskauer Rose LLP. National Law Review, Volume VI, Number 65


About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

Steven Porzio, Proskauer, labor attorney, employment lawyer,

Steven Porzio is an associate in the Labor & Employment Law Department and a member of both the Labor-Management Relations Group and Employment Law Counseling & Training Group. Steve assists both unionized and union-free clients with a full-range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing, and union contract campaigns. Steve has advised employers in a number of different industries in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.