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01/30/2004
by Ross Runkel at LawMemo

NLRB Law Memo 01/30/2004
by LawMemo.Com - First in Employment Law

Unifirst Corp. (1-CA-39267, 39321; 341 NLRB No. 1) Indian Orchard, MA Jan. 16, 2004.

The Board decided to publish a previously unpublished Order in the bound volumes of its decisions.

In the unpublished Order of December 9, 2003, Members Liebman and Walsh granted the General Counsel's request to reject the Respondent's reply to the General Counsel's resubmission of its brief in support of the administrative law judge's decision. Member Schaumber dissented. Citing National Metalcrafters, 276 NLRB 90, fn. 1 (1985), the majority wrote: "The Board's Rules make no provision for a brief in reply to a brief filed in support of an administrative law judge's decision, and the Board accordingly has stricken such a reply brief." They found no special circumstances to warrant a departure from the Board's Rules and stated: "to the extent that the brief in support filed by the General Counsel contained argument that is no longer relevant, the Board, consistent with its established policy, will disregard it."

In dissent, Member Schaumber concluded: "For justice to be done, it must be done with equitable administration. In these circumstances, the Board's administration of justice is, or appears to be, inequitable, and its denial of an opportunity to respond unfair." He found that the content of the General Counsel's brief, which was not written in support of the judge's decision, but which is being submitted for that purpose, provides ample cause for accepting the Respondent's brief in reply. He would, therefore, grant the Respondent's motion for the Board to consider its reply to the General Counsel's resubmitted posthearing brief, or in the alternative, its objections to that brief.

(Members Liebman, Schaumber, and Walsh participated.)

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