Invitation to File Briefs

09
CHAPTER

The Board as Policymaker: The Administrative Anomaly

The National Labor Relations Board (NLRB or the Board) occupies a distinct and often contentious position within the architecture of the American administrative state. It serves a dual function that is at once judicial and legislative, a hybrid existence that distinguishes it from Article III courts and most other federal agencies.1 Unlike a typical federal court, which is theoretically reactive and constrained to resolve only the specific dispute presented by the parties before it, the Board is charged by Congress with a proactive mandate: to formulate, interpret, and adapt national labor policy to the changing realities of the industrial economy.3 This responsibility requires the Board to function not merely as an arbiter of individual grievances, but as the primary architect of the rules governing the relationship between capital and labor in the United States.

However, the mechanisms by which the Board exercises this authority have been the subject of nearly a century of legal and academic debate. The National Labor Relations Act (NLRA) explicitly grants the Board the power to engage in “notice-and-comment” rulemaking a legislative process governed by the Administrative Procedure Act (APA) that involves publishing proposed rules in the Federal Register, soliciting public feedback, and issuing final regulations with the force of law.3 Yet, for the vast majority of its history, the Board has famously and controversially declined to utilize this rulemaking authority. Instead, it has chosen to formulate broad labor policy almost exclusively through the adjudication of individual unfair labor practice (ULP) and representation cases.5

The "Choice of Procedures" Doctrine

This reliance on adjudication to create prospective rules creates a fundamental tension. When the Board announces a new legal standard in a specific case such as changing the test for independent contractor status or the rules for union recognition it is effectively legislating. But because it is doing so within the context of a lawsuit between two private parties, it risks being accused of making “dog law” rules that are created after the conduct has occurred, catching the parties by surprise.3

The Supreme Court, most notably in SEC v. Chenery Corp. (Chenery II), has largely affirmed the Board’s discretion to choose between rulemaking and adjudication.4 The Court reasoned that agencies must have the flexibility to address problems as they arise in case law, particularly when a problem is too specialized or too novel to be addressed by a general rule. Nevertheless, the heavy reliance on adjudication has led to significant criticism regarding “policy oscillation.” Because the Board’s five members are political appointees who serve staggered five-year terms, the Board’s ideological composition shifts with the White House. Critics argue that this leads to a “pendulum” effect where labor law flip-flops violently from “pro-union” to “pro-management” every four to eight years, creating instability for the regulated community.3

The Genesis of the Invitation

To mitigate the inherent limitations of adjudication specifically its narrow focus on the facts of a single case and the lack of public participation the Board developed a procedural innovation: the Notice and Invitation to File Briefs (NIFB).1 This mechanism serves as a bridge between the two procedural worlds. By issuing a public invitation for amicus curiae (“friend of the court”) briefs in a pending case, the Board simulates the inclusivity and broad fact-gathering capability of notice-and-comment rulemaking while retaining the speed and flexibility of adjudication.2

The NIFB transforms a private dispute into a public forum. It allows the Board to solicit “legislative facts” broad empirical data, economic analysis, and industry-wide perspectives that the immediate parties to the case might not have the resources or the incentive to provide.2 In doing so, the Board attempts to build an administrative record that is robust enough to withstand judicial scrutiny, demonstrating that its decision was based on a comprehensive review of the legal landscape rather than mere political preference. Thus, Chapter 9 explores this critical instrument of Board power, detailing its mechanics, its strategic significance for practitioners, and its role in the volatile evolution of American labor law.

The Process: From Private Dispute to Public Forum

The issuance of an Invitation to File Briefs is not a routine occurrence; it is a deliberate and formal administrative action that marks a case for special consideration. The process begins deep within the Board’s internal casehandling machinery, usually after an Administrative Law Judge (ALJ) or a Regional Director has issued a decision and one or more parties have filed exceptions with the Board in Washington, D.C..10

Identifying the Vehicle

The first step in the process is the identification of a suitable “vehicle.” The Board receives thousands of cases each year, but only a select few present the factual clarity and legal ripeness necessary to justify a major shift in precedent. Board agents and Members screen incoming cases to find fact patterns that squarely present a legal issue the Board majority wishes to revisit.1 For example, if a new Board majority intends to overturn a precedent regarding employee handbook rules, they must wait for a case where an employer actually maintained a handbook rule that would be lawful under the old standard but unlawful under the proposed new standard.

Once a vehicle is identified, the Board drafts and issues a “Notice and Invitation to File Briefs.” This document is formally docketed and released to the public, often accompanied by a press release to ensure wide dissemination among the labor bar and the business community.10

The Anatomy of the Invitation

The content of the invitation is meticulously crafted. It does not merely ask for general thoughts on a topic; rather, it frames specific, often leading, questions that guide the amici toward the legal arguments the Board wishes to explore. These questions typically follow a tripartite structure:

    1. The Threshold Question: “Should the Board adhere to the standard in [Prior Precedent]?”
    2. The Modification Question: “If not, should the Board return to the standard in [Older Precedent], or adopt a new standard?”
    3. The Application Question: “How should the proposed standard apply to the facts of this case?”.12

This specificity serves a dual purpose. First, it focuses the briefing on the exact legal tests the Board is considering, ensuring that the resulting briefs are directly relevant to the decision-making process. Second, it acts as a signal of intent, essentially announcing to the world that the current law is on the chopping block.13

Participants and Filing Logistics

The invitation is explicitly open to the parties to the case and to interested amici curiae.1 The inclusion of amici is the defining feature of this process, differentiating it from standard appellate review where amicus participation is often more restricted or requires leave of the court.

      • Electronic Filing: In the modern era, all briefs must be filed electronically via the Board’s E-Filing system at nlrb.gov. This creates an immediate, publicly accessible docket, allowing stakeholders to read each other’s submissions in real-time.1
      • Strict Limitations: To manage the volume of submissions, the Board imposes strict constraints. Briefs are typically limited to 20 to 30 pages in length.1 This limitation forces contributors to be concise and discourages the “data dumps” that can characterize formal rulemaking comments. Furthermore, deadlines are tight, often ranging from 30 to 60 days, with extensions granted only for “compelling circumstances”.1
      • The “No Reply” Rule: A crucial procedural nuance is that while amici are invited to file initial briefs, they are often explicitly barred from filing responsive or reply briefs. Only the actual parties to the litigation are typically permitted to file responsive briefs to address the arguments raised by the amici.1 This rule is designed to prevent the docket from becoming an endless cycle of rebuttals and to preserve the primacy of the litigants whose actual rights are at stake.

The administration of this process falls to the Office of the Executive Secretary, which handles the docketing, manages extension requests, and ensures that all filings comply with the Board’s precise formatting and service requirements.1

Strategic Importance: The "Flare" Mechanism

For labor law practitioners, the issuance of an Invitation to File Briefs is arguably the most significant leading indicator of the Board’s future direction. In the specialized parlance of the labor bar, the invitation is often referred to as a “flare” or a “bat-signal” a visible warning shot alerting the community that the Board’s composition has shifted and that the new majority intends to exercise its power to alter the legal landscape.1

The Predictability of Reversal

The correlation between the issuance of an NIFB and a subsequent reversal of precedent is exceedingly high. The Board is an agency with limited resources and a massive backlog; it rarely expends the administrative capital to solicit and review dozens of amicus briefs merely to affirm the status quo.9 Consequently, when the Board asks, “Should we overrule Case X?”, the practical answer understood by the legal community is, “We intend to overrule Case X; please provide us with the best legal arguments to justify doing so.”

This signaling function is invaluable for strategic planning. It allows unions and employers to anticipate compliance changes months or even years before a final decision is issued. For instance, when the Board invited briefs on the independent contractor standard in The Atlanta Opera, companies utilizing gig economy models were effectively put on notice that the favorable SuperShuttle standard was likely doomed. Prudent counsel would immediately begin auditing their independent contractor agreements to see if they could survive scrutiny under the older, stricter FedEx II standard that the invitation hinted would return.14

The Role of the General Counsel

The strategic interplay between the Board (the adjudicators) and the General Counsel (the prosecutor) is central to the NIFB process. The General Counsel (GC) is independently appointed by the President and sets the prosecutorial agenda.19 The GC often instigates the invitation process by arguing in their brief to the Board that existing law is defective and should be changed. 

For example, a GC appointed by a Democratic president might prosecute a case involving employee handbooks and explicitly argue that the current Board precedent (established by a Republican Board) is too permissive. The Board then uses the NIFB to formally entertain the GC’s request. This highlights the coordinated nature of “policy oscillation”: the President appoints a GC with a specific reform agenda, the GC prosecutes cases advancing that agenda, and the Board uses NIFBs to validate and finalize that agenda into binding law.21

Managing the Narrative of "Oscillation"

The NIFB also serves a defensive strategic purpose for the Board itself. As noted, the Board is frequently criticized for “policy oscillation” changing the law based on political winds rather than legal necessity.3 By inviting broad public input, the Board attempts to clothe its political shifts in the garb of deliberative administrative procedure.  

When the final decision is issued, the majority opinion will invariably cite the amicus briefs extensively. They will argue that their decision to overrule precedent is not a whim, but is compelled by a “comprehensive review of the administrative record,” “empirical evidence presented by amici,” and the “broad consensus” of the labor-management community (or at least the segment of it that aligns with the Board’s view).5 In this way, the invitation process is a tool of legitimacy, intended to insulate the Board’s decisions from being overturned by appellate courts as “arbitrary and capricious”.24

Case Study Analysis: Precedents in Flux

To fully grasp the mechanics and impact of the Invitation to File Briefs, one must examine the specific instances where this process was utilized to effectuate major changes in labor law. The following case studies illustrate how the Board uses specific questions to guide the development of new legal standards, and how the “flare” mechanism plays out in practice.

The Atlanta Opera: The Battle for Independent Contractor Status

One of the most consequential uses of the NIFB in recent years occurred in The Atlanta Opera, Inc. (2023), a case that fundamentally reshaped the classification of workers in the gig economy.

    • The Context: The distinction between “employees” (who have rights under the NLRA) and “independent contractors” (who do not) is a threshold jurisdictional issue for the Board. For years, the legal standard had oscillated. The Obama-era Board had established the FedEx Home Delivery (FedEx II) standard, which minimized the importance of “entrepreneurial opportunity” and focused on strict common-law agency factors. The Trump-era Board subsequently overruled this in SuperShuttle DFW, Inc., which elevated “entrepreneurial opportunity” to the “animating principle” of the analysis, making it significantly easier for businesses to classify workers as contractors.13
    • The Invitation: In late 2021, the Biden Board issued a notice in The Atlanta Opera, explicitly asking two targeted questions:
        1. “Should the Board adhere to the independent-contractor standard in SuperShuttle DFW, Inc.?
        2. “If not, what standard should replace it? Should the Board return to the standard in FedEx Home Delivery… either in its entirety or with modifications?”.13
    • The Signaling Effect: The specificity of the invitation left little doubt about the Board’s intentions. By specifically naming FedEx II as the potential replacement, the Board signaled a desire to return to a more restrictive classification standard. This mobilized the business community, with groups like the Chamber of Commerce and the Coalition for a Democratic Workplace filing briefs arguing that SuperShuttle correctly interpreted D.C. Circuit precedent.25 Conversely, labor groups filed briefs detailing how the “entrepreneurial opportunity” test was being abused to misclassify workers who had no true independence.20
    • The Outcome: In its final decision, the Board did exactly what the invitation hinted at: it overruled SuperShuttle and returned to the FedEx II standard. The Board reasoned that SuperShuttle had impermissibly narrowed the common-law test by focusing too heavily on entrepreneurial opportunity at the expense of other factors like the employer’s right to control. The decision relied heavily on the briefing record to justify this return to “traditional common-law roots” and cited the failure of the SuperShuttle test to adequately protect statutory employees.20

Stericycle: The Handbook Wars

Another pivotal example of the NIFB in action is Stericycle, Inc., which addressed the legality of neutral employer work rules policies regarding confidentiality, civility, and media contact that might inadvertently interfere with employee rights.

    • The Context: In 2017, the Trump Board issued The Boeing Co., a landmark decision that established a categorical approach to work rules. Boeing created “Category 1” rules that were deemed always lawful because any interference with employee rights was outweighed by legitimate business justifications. This replaced the earlier, more litigious Lutheran Heritage standard, which asked whether a rule would “reasonably be construed” by an employee to prohibit protected activity.9
    • The Invitation: The Board invited briefs in Stericycle asking specifically whether it should overrule Boeing and whether it should adopt a new standard that better balances employer interests with employee Section 7 rights.12
    • The Strategic Shift: The invitation in Stericycle was crucial because Boeing had been widely praised by the management bar for providing clarity and reducing litigation. By inviting briefs, the Board sought to gather evidence on how Boeing’s categorical immunity might be chilling legitimate union activity. Amici were asked to provide examples of rules that were deemed lawful under Boeing but which effectively silenced workers.12
    • The Outcome: The Board subsequently issued the Stericycle decision (2023), adopting a new burden-shifting standard. Under this new rule, if the General Counsel proves a rule has a “reasonable tendency” to chill protected activity, the rule is presumptively unlawful. The employer can only rebut this by proving that the rule advances a “legitimate and substantial business interest” and that a more narrowly tailored rule would not suffice.9 The “narrowly tailored” requirement was a direct result of the arguments presented in the amicus briefing process, illustrating how the NIFB shapes the fine-print of the final rule.

Ralphs Grocery: The Collision of Labor Law and Arbitration

The Board also utilizes NIFBs to address the complex intersection of labor law and other federal statutes, particularly the Federal Arbitration Act (FAA).

    • The Context: Many employers require employees to sign mandatory arbitration agreements that include confidentiality clauses. The Board questioned whether these clauses interfered with the fundamental right of employees to access NLRB processes and file charges.1
    • The Invitation: In Ralphs Grocery Co. (2022), the Board issued a sophisticated invitation asking:
          1. “Should the Board abrogate the decision in Anderson Enterprises?”
          2. “Did the Board correctly hold in California Commerce Club that the Federal Arbitration Act privileges employers’ maintenance of confidentiality requirements?”.1
    • Significance: This invitation highlights the Board’s willingness to challenge judicial interpretations of the FAA. By inviting briefs, the Board sought legal ammunition to argue that specific confidentiality restrictions are not protected by the FAA if they impede federal law enforcement (i.e., filing Board charges). This effectively crowdsourced the legal research necessary to challenge the Supreme Court’s strong pro-arbitration jurisprudence.

The Cemex Controversy: The "Missing" Invitation

Perhaps the most illuminating case regarding the strategic importance and potential abuse of invitations is one where the invitation was arguably insufficient: Cemex Construction Materials Pacific, LLC (2023).

    • The Shift: Cemex fundamentally altered the union recognition process, reviving a modified version of the Joy Silk doctrine. It held that if a union demands recognition with majority support, the employer must either recognize the union or file an RM petition. If the employer commits unfair labor practices during the election period that require the election to be set aside, the Board will issue a remedial bargaining order, effectively bypassing a rerun election.31
    • The Controversy: While the Board did invite briefs in Cemex, the text of the invitation largely focused on remedies specifically, whether to expand “make-whole” remedies to include consequential damages.31 Critics, including the dissenting Board members and business groups like the Chamber of Commerce, argued that the Board did not explicitly invite briefs on the radical restructuring of the recognition process (the Joy Silk issue).25
    • The “Ambush” Critique: Business groups argued that this lack of specific notice violated due process and administrative norms. They contended that they were “ambushed” by a decision that changed the fundamental mechanics of union elections without having the opportunity to brief the structural statutory arguments.37 The dissenters on the Board, Members Kaplan and Ring, excoriated the majority for this, noting that in past major shifts (like Atlanta Opera), the Board had been careful to list the specific precedents to be overruled. In Cemex, the majority overruled Linden Lumber without a specific invitation to do so.25
    • Insight: Cemex proves the “flare” rule by exception. When the Board sends a clear flare (as in Atlanta Opera), the transition, while controversial, follows a predictable administrative path. When the flare is ambiguous or missing (as alleged in Cemex), the decision is more vulnerable to accusations of overreach and is likely to face a much harder road in the federal courts of appeals.9 The “missing invitation” in Cemex has become a central argument in the subsequent appellate litigation in the Ninth Circuit.25

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The Amicus Ecosystem: Participants and Influence

The “Invitation to File Briefs” mechanism has given rise to a specialized ecosystem of amici curiae third-party participants who file briefs to influence Board policy. These actors are not merely observers; they are integral to the Board’s “quasi-legislative” process, providing the data and arguments that fuel the Board’s opinions.

The Usual Suspects

The list of participants in NIFB proceedings is predictable and represents the polarized nature of American labor relations.

      • Management Side: The heavyweights of the business lobby are omnipresent. The U.S. Chamber of Commerce, the Coalition for a Democratic Workplace (CDW), the National Retail Federation (NRF), and the National Federation of Independent Business (NFIB) are frequent filers.25 These groups typically argue for stability, employer property rights, and adherence to stare decisis (precedent). They often focus on the economic disruption that new regulations would cause to business operations.
      • Labor Side: The major labor federations, led by the AFL-CIO and the Service Employees International Union (SEIU), are equally active. They are often joined by the National Employment Law Project (NELP) and other worker advocacy centers.30 These briefs focus on the remedial purposes of the NLRA, arguing for the expansion of employee rights to counter modern anti-union tactics.
      • Government and Academia: The Department of Justice (DOJ) sometimes files briefs when the Board’s decision touches on other federal laws (like antitrust or bankruptcy). Additionally, groups of law professors often file “academic” briefs providing high-level statutory interpretation or social science data.23 These academic briefs can be particularly influential because they offer a veneer of neutrality compared to the partisan arguments of the Chamber or the AFL-CIO.

Strategic Briefing: The "Brandeis Brief" Approach

Effective amicus briefs in NLRB proceedings often mirror the “Brandeis Brief” strategy used in constitutional law relying heavily on empirical data and social science rather than just abstract legal theory.43

      • Social Science Data: In cases like Atlanta Opera (independent contractors) or cases involving graduate student unionization, amici often submit studies on the economic realities of the gig economy or the nature of the academic advisor-student relationship.23 The Board cites this “empirical evidence” to justify why a legal rule must change to fit modern realities. For example, in the Columbia University decision regarding graduate students, the Board cited amicus briefs detailing the successful history of collective bargaining at public universities to refute the claim that unionization would harm academic freedom.23
      • Industry Impact: Trade associations use their briefs to detail the practical operational costs of a proposed rule change. For example, in Stericycle, business groups argued that a strict handbook rule would make it impossible to maintain civility in the workplace, potentially exposing employers to liability under harassment laws.25
      • Avoiding “Me-Too” Filings: Legal guides for amicus practitioners emphasize that “me-too” briefs which simply repeat the arguments of the main party are disfavored and often ignored. The most influential briefs provide a unique perspective, such as the specific impact on a niche industry (e.g., franchises, staffing agencies, or home care) that the main parties might overlook.45

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The Echo Chamber Effect

Critics note that the amicus process often functions as an echo chamber. The Board majority frequently cites the briefs that align with its pre-determined policy preference while distinguishing or dismissing contrary briefs.9 However, the presence of these briefs in the record is vital for appellate review. If the Board ignores substantial evidence presented by amici, a Court of Appeals may vacate the decision for being “arbitrary and capricious” under the APA.24 Therefore, even if the Board majority disagrees with an amicus brief, it is forced to engage with it in the text of the decision, which can create openings for the dissent or for appellate reversal.

Criticism, Dissent, and the Problem of "Ossification"

The ultimate audience for the Invitation to File Briefs is not just the public, but the Federal Courts of Appeals and the Supreme Court. The Board uses the NIFB process to insulate its decisions from judicial reversal, but this strategy is not without its detractors.

Pre-empting the "Arbitrary and Capricious" Standard

Under the APA, agency action can be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” A key indicator of arbitrary action is the failure to consider relevant factors or alternatives.24 By inviting briefs, the Board explicitly solicits these “relevant factors.” When the final decision addresses the arguments raised in the amicus briefs, it demonstrates that the Board engaged in a “hard look” at the issues, thereby earning greater deference from the judiciary.8 This is the “defensive” function of the invitation: it creates a record that proves the Board did its homework.

The Rulemaking Alternative and "Ossification"

Legal scholars have long argued that the Board should abandon “rulemaking by adjudication” in favor of formal APA notice-and-comment rulemaking.5 They contend that formal rulemaking provides greater transparency, stability, and public participation. However, the Board has historically resisted this due to “ossification” the fear that the formal rulemaking process is too slow, resource-intensive, and vulnerable to procedural litigation to be effective in the dynamic field of labor relations.2 

Formal rulemaking triggers a host of analytical requirements under the Regulatory Flexibility Act (RFA) and the Congressional Review Act (CRA) that do not apply to adjudication.2 The NIFB represents a strategic compromise. It avoids the procedural hurdles of the RFA and CRA while still capturing the benefits of public input.2 It allows the Board to be nimble (or “oscillating,” depending on one’s view) while maintaining a veneer of deliberative legislative process.

Dissenting Views from Within

The use and misuse of the NIFB is a frequent target of dissent from minority Board members. Members Kaplan and Ring have frequently dissented when the Board overturns precedent without a sufficiently broad invitation, or when they believe the invitation was a “sham” designed to reach a pre-ordained result.27

    • The “Clean Slate” Argument: Dissenters often argue that overruling precedent requires “compelling reasons,” and that simply having a new political majority is not a compelling reason.9 They point to the NIFB process as evidence of political activism rather than judicial neutrality. They argue that the Board treats settled law as a “clean slate” every time the administration changes, undermining the reliance interests of employers and unions.
    • The Remedial Ambush: As noted in the Cemex discussion, dissenters aggressively highlighted the lack of a specific invitation on the Joy Silk standard, arguing that the majority “ambushed” the parties by changing the law on a theory that was not fully briefed.25 This dissent serves as a roadmap for the appellate courts, flagging specific procedural defects that could justify overturning the Board’s decision.

Conclusion: The Invitation as a Political Instrument

The Invitation to File Briefs is the linchpin of the modern National Labor Relations Board’s policymaking apparatus. It is the mechanism by which the Board transforms from a dispute-resolution body into a national labor legislature.

For the practitioner, the NIFB is a critical diagnostic tool a “flare” that illuminates the path of future legal changes. It signals which precedents are vulnerable and provides a roadmap for the arguments that will shape the new law. For the academic, it is a fascinating hybrid of judicial and legislative procedure that highlights the unique flexibility and fragility of the administrative state. And for the political observer, it is the primary engine of “policy oscillation,” facilitating the rapid reversal of labor law with every change in presidential administration.

While the process is designed to ensure “well-reasoned” decisions that can “withstand judicial review,” it remains fundamentally a tool of political will. Whether used to expand union rights under decisions like Cemex and Atlanta Opera, or to restrict them under future Boards, the Invitation to File Briefs ensures that the “law of the land” in American workplaces remains a living, breathing, and perpetually shifting organism. The process creates a dynamic where no precedent is ever truly safe, and where the “friend of the court” can be the most powerful voice in the room.

Table 9.1: Comparative Analysis of Major NIFB Cases (2a017-2023)

Case Name Year Precedent at Risk Key Question in Invitation Outcome & Strategic Impact
The Atlanta Opera 2023 SuperShuttle (2019) Should the Board return to the FedEx II standard for independent contractors? Overruled SuperShuttle; returned to FedEx II (Common Law factors). Impact: Tightened worker classification, directly targeting gig economy models.
Stericycle, Inc. 2023 Boeing Co. (2017) Should the Board overrule Boeing regarding employer handbooks/work rules? Overruled Boeing; adopted new “narrowly tailored” burden-shifting test. Impact: Ended the era of categorical immunity for work rules; increased scrutiny on civility codes.
Ralphs Grocery 2022 Anderson Enterprises Do confidentiality clauses in arbitration agreements violate the NLRA? Ongoing/Mixed; signaled hostility toward confidentiality interference with Board access. Impact: Challenged the scope of the FAA in labor relations.
Tesla, Inc. 2022 Stabilus What is the standard for employer uniform policies vs. union insignia? Overruled Stabilus; reaffirmed right to wear union insignia absent “special circumstances.” Impact: Strengthened employee rights to display union support at work.
Cemex Construction 2023 Gissel / Joy Silk (Invited briefs on Remedies / Consequential Damages) Major Shift; Adopted modified Joy Silk framework for recognition orders. Impact: Highly controversial due to the scope of invitation; arguably the biggest change in recognition law in 50 years.

Table 9.2: Strategic Considerations for Amicus Briefs

Factor Description Best Practice for Practitioners
Timing Briefs usually due 30-60 days after Notice. File early if possible; coordinate with other coalition groups to avoid redundancy and maximize coverage of issues.
Content Limit of 20-30 pages. Focus on empirical data, industry-specific impact, or novel legal theory. Avoid “Me-Too” repetition of the main party’s brief.
Scope Parties vs. Amici rights. Remember: Amici usually cannot file responsive briefs (reply briefs). The initial filing is the only opportunity to influence the record.
Risk “Policy Oscillation.” Acknowledge the political reality; frame arguments around statutory interpretation (which is harder for future Boards to change) rather than just policy preference.

Report compiled by Senior Analyst, Administrative Law Division.

References & Selected Bibliography

I. National Labor Relations Board Cases & Decisions

    • The Atlanta Opera, Inc., 371 NLRB No. 45 (2021) (Notice and Invitation to File Briefs); 372 NLRB No. 95 (2023) (Decision and Order).
    • Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023).
    • Stericycle, Inc., 372 NLRB No. 113 (2023) (Overruling Boeing).
    • Ralphs Grocery Co., 371 NLRB No. 50 (2021) (Invitation to File Briefs regarding arbitration and confidentiality).
    • SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019).
    • The Boeing Co., 365 NLRB No. 154 (2017).
    • Tesla, Inc., 370 NLRB No. 101 (2021) (Invitation regarding union insignia).

II. NLRB Administrative Documents & Manuals

    • National Labor Relations Board, Office of the Executive Secretary. Guide to Board Procedures. Washington, D.C.: U.S. Government Printing Office.
    • National Labor Relations Board. NLRB Style Manual: A Guide for Legal Writing in Plain English.
    • National Labor Relations Board. NLRB Bench Book, Division of Judges.
    • National Labor Relations Board. Notices and Invitations to File Briefs. Available at nlrb.gov/cases-decisions/filing/invitations-to-file-briefs.

III. Academic Articles & Legal Commentary

    • Bodie, Matthew T. “NLRB Rulemaking: Political Reality Versus Procedural Fairness,” Yale Law Journal (citing 89 Yale L.J. 982).
    • Estreicher, Samuel. “Improving the Administration of the National Labor Relations Act Without Statutory Change,” 25 ABA Journal of Labor & Employment Law 1 (2009).
    • Flynn, Joan. “The Oscillation of Board Policy: Trends in Adjudication,” Emory Law Journal.
    • Kearney, Joseph D. & Merrill, Thomas W. “The Influence of Amicus Briefs on the Supreme Court,” 148 University of Pennsylvania Law Review 743 (2000).
    • Lubbers, Jeffrey S. “The Potential of Rulemaking by the NLRB,” 5 FIU Law Review 411 (2010).

IV. Practice Guides & Industry Analysis

    • American Bar Association. “Amicus Filings: With Friends Like These… What Judges and Lawyers Need to Know about Amici Curiae.”
    • Coalition for a Democratic Workplace. Amicus Brief in Cemex Construction Materials Pacific v. NLRB (9th Cir. 2024).
    • Law360. “7 Tips For Writing An Effective Amicus Brief” (June 8, 2016).
    • U.S. Chamber of Commerce. The National Labor Relations Board in the Obama Administration: What Changes to Expect (NLRB Insight).