Back in June, I talked about an important case arising out of Connecticut, that dates all the way back to a long and notable strike by employees in 1999 against the Avery Heights facility in Hartford, Connecticut. You can read the full post about Church Homes (d/b/a Avery Heights) v. NLRB here.
As I said back then, the company asked the Court to review three questions:
- Did the Board unlawfully shift the burden of proof from the General Counsel by holding that it would find the Company acted for an independent unlawful purpose unless the Company proved that it had a legitimate reason for not disclosing its hiring plans to the Union?
- Did the Board err when it disregarded as hearsay the testimony of a witness as to why the Company did not inform the union of its staffing plans and required the Company to produce actual evidence of the Union’s potential for disruption?
- Did the Board err when it found that the Company hired permanent replacements for an independent unlawful purpose?
So what’s happened since then? Well, the NLRB (after several extensions of time) finally filed a brief opposing the employer’s request to have the Supreme Court grant certiorari (and basically to hear the case on the underlying merits).
The NLRB’s brief is available for download here. The NLRB arguments are what you would expect — that this case doesn’t present any novel issues of law or conflict with decisions from other circuits.
The U.S. Supreme Court is now scheduled to discuss this matter at a conference this Friday. A decision on whether to take the case could come shortly thereafter.