NEW CONCEPTS FOR LIVING, INC., v. NATIONAL LABOR RELATIONS BOARD
Nos. 22-3301 and 22-3426
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 4, 2024
PRECEDENTIAL
Argued September 28, 2023
New Concepts for Living, Inc., Petitioner in No. 22-3301
National Labor Relations Board, Petitioner in No. 22-3426
NLRB Nos: 1 : 22-CA-187407; 1 : 22-CA-195819; 1 : 22-CA-197088; 1 : 22-CA-205843; 1 : 22-CA-208390
Argued September 28, 2023
Before: KRAUSE, AMBRO, and SMITH, Circuit Judges
(Filed: March 4, 2024)
Maurice Baskin [ARGUED]
Emily Carapella
Littler Mendelson
815 Connecticut Avenue NW
Suite 400
Washington, DC 20006
Counsel for New Concepts for Living, Inc.
Ruth E. Burdick
Elizabeth A. Heaney
Joel Heller [ARGUED]
National Labor Relations Board
Appellate and Supreme Court Litigation Branch
1015 Half Street SE
Washington, DC 20570
Counsel for the National Labor Relations Board
OPINION OF THE COURT
SMITH, Circuit Judge.
New Concepts for Living, Inc. (“New Concepts“) seeks review of an order of the National Labor Relations Board (“NLRB” or the “Board“) determining that New Concepts engaged in unfair labor practices by pushing to decertify its employees’ union. An administrative law judge (“ALJ“) dismissed all eight charges against New Concepts. Although the Board affirmed the ALJ‘s dismissal of three of those charges, the Board reversed his dismissal of five others by a two-to-one vote. New Concepts petitioned for review, and the NLRB cross-petitioned for enforcement. After a thorough review of the record, we hold that the Board majority‘s five reversals are not supported by substantial evidence. We will therefore grant New Concepts’ petition for review and deny the NLRB‘s cross-application for enforcement.
I. Factual Background
New Concepts is a nonprofit corporation that provides services for people with disabilities at several facilities located in northern New Jersey. In 2007, the Communications Workers of America, Local 1040 (the “Union“), began representing a bargaining unit of approximately 90 New Concepts employees. The most recent collective
In August 2016, the parties began negotiations to reach a successor agreement. Around the same time, momentum was building to decertify the Union. Specifically, New Concepts employee Andre Marshall and several other employees gathered signatures from coworkers on a petition in support of decertification. Although the negotiations that had begun in August did not result in a new CBA, the parties did agree to meet again in late October 2016.
Meanwhile, New Concepts CEO Steve Setteducati spoke at a series of staff meetings in October and answered questions posed by employees. In the wake of those meetings, Marshall filed a decertification petition with the NLRB. New Concepts then informed the Union that it would suspend bargaining, reasoning that the petition gave rise to a good faith doubt that the Union was actually supported by a majority of the unit. The NLRB scheduled a decertification vote which, in turn, led the Union to file an unfair labor practice charge. Filing of the charge blocked further processing of the petition and resulted in an indefinite postponement of the vote. Marshall then chose to withdraw the decertification petition.
On December 28, 2016, New Concepts distributed to its employees a memorandum (the “December Memo“) which informed them of their right to resign from the Union. The December Memo began by stating that New Concepts had “received numerous questions” from employees concerning the deduction of union dues from their paychecks. R. 1434. The Memo went on to state that more than two years had passed since the CBA had expired and that the employees’ payment of dues remained voluntary. Id. The Memo also cautioned that “[employees] have the right to resign from membership in the Union and [from] paying dues at any time, BUT the Union may take the position that [they] can only revoke . . . [dues] deduction authorizations twice a year.” That meant, the Memo explained, that if employees chose not to revoke authorization by December 30, “[they] may be forced to pay Union Dues for another 6 months.” Id. The Memo assured employees that there would be “no reward for stopping Union Dues or punishment for continuing to pay Union Dues.” Id. Attached to the December Memo was a form letter titled “Resignation/Dues Revocation Letter.” R. 1432. Addressed to both the Union and New Concepts, the form letter provided a means for those who signed it to “resign from membership in CWA Local 1040[,]” reiterated that the employee understood that resignation would “have no effect on [his/her] employment[,]” stated that resignation required that “both the union and the company . . . immediately cease enforcing the dues check-off authorization[,]” and noted that “payment of union dues” was a requirement of membership. Id.
Approximately 90% of the employees (80 individuals) signed and returned the form letter to New Concepts, which, in turn, forwarded the letters to the Union. Though the Union regarded the form letter as not binding, it nonetheless suspended the collection of dues from all employees, whether or not they had signed the form letter.
The parties resumed bargaining in January 2017 and continued those efforts
For its part, the Union attempted – unsuccessfully – to revive support among unit members. Union employee Donna Ingram led those efforts. She candidly acknowledged that members “were dissatisfied” with prior enforcement of the contract and with the “complete lack of communication” from those who had served previously as union representatives. R. 3187. And despite efforts by the Union to revive support after the decertification petition was withdrawn, Ingram conceded that the “reception by employees was not positive.” R. 3188. For example, the “Union was turned away by employees on multiple occasions both at employee facilities and from the employees’ individual residences.” R. 3188-89. Ingram also attempted to gather new authorization forms throughout 2017. And although she claimed to have received a few dozen authorization cards in response to her efforts, she “acknowledged she was only speculating” as to that estimate and admitted “that some of those were likely duplicates.” R. 3189. By August 2017, “only a handful of employees” remained who had “actually authorized dues to be deducted, with nearly every employee having already requested in writing” that their deductions cease. Id.
On August 15, 2017, Setteducati distributed to employees a memorandum (the “August Memo” and, together with the December Memo, the “Memos“) instructing them on how they could resume or start paying dues. R. 1435. The August Memo began by reminding employees that New Concepts had, in 2016, received “numerous questions” from employees about dues deductions, and that since then, “over 95%” of New Concepts employees, including both “new” and “long term staff,” had chosen not to pay dues. Id. The August Memo went on to explain the impetus behind its having been sent: to rebut the Union‘s allegation that New Concepts, through the distribution of the December Memo, had “coerced” employees into not paying Union Dues. Id. Setteducati wrote: “As you know, that‘s just not true. BUT, to prove that, [New Concepts is] attaching to this memo [an authorization form] that you can sign and return if you want to start paying Union Dues.” Id. (emphasis in original). The August memo re-emphasized that the payment of dues was voluntary and that there would be “no reward for NOT paying Union Dues” nor “punishment for resuming or starting to pay” dues. Id. (emphasis in original). Despite the information and assurances provided to employees in the August Memo, New Concepts did not receive any completed cards authorizing the payment of union dues.
In September 2017, New Concepts announced its intention to poll employees as to their support for the Union. By letter, New Concepts informed the Union that it had a good faith doubt of the Union‘s majority status. Specifically, New Concepts pointed to: (1) unit employees’ lack of participation at bargaining sessions; (2) the fact that nearly every employee had elected to stop paying dues; (3) the fact that no employees opted to resume dues deduction after New Concepts circulated the August Memo; and (4) the claim that roughly 50% of unit employees had backed Marshall‘s decertification petition. The poll was conducted on September 21 and mimicked the process used in an NLRB election. Voting was by secret ballot and included oversight by a retired judge. The Union declined an invitation to participate in any way or to even have an observer present. With approximately
II. Procedural History
The NLRB‘s General Counsel filed a complaint against New Concepts alleging, in eight respects, that New Concepts violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the “Act“).
The ALJ conducted a hearing in the fall of 2018 during which he heard testimony and made credibility determinations. He found all of New Concepts’ witnesses to be credible. Specifically, he found Setteducati “to have been straightforward in answering questions without regard for any particular agenda,” and New Concepts’ attorney to have testified “honestly” and with “candor” about the motivation behind New Concepts’ bargaining positions. J.A. 42. The ALJ also found the Union‘s lead negotiator, Ingram, to be credible, and several Union lay witnesses to be mostly credible, but he found two of the Union‘s witnesses to be “less than credible.” Id. The ALJ then dismissed all the allegations, concluding that “[n]otwithstanding that I have not found [New Concepts] to have violated the Act in any of the manner[s] alleged, the General Counsel‘s position ignores the fundamental truth underlying this case, that it was the Union‘s own absence over the span of multiple years that ultimately led to its loss of support.” Id. at 45.
The General Counsel and the Union filed exceptions to the ALJ‘s decision. The Board upheld the ALJ‘s credibility determinations and affirmed the dismissals of the first three of the General Counsel‘s charges. However, a two-member majority of the Board reversed the ALJ‘s dismissal of the other five. The majority concluded that the December and August Memos were coercive and that New Concepts engaged in overall bad faith bargaining. As to the September 2017 poll, the Board decided that it was not grounded in a good faith doubt about the Union‘s majority status, that it failed to adhere to two required safeguards, and that it did not provide an adequate basis for the withdrawal of recognition from the Union. Board member Ring dissented from the reversal of those five dismissals.
This appeal followed.
III. Jurisdiction and Standard of Review
The Board had jurisdiction over this matter pursuant to
We are “highly deferential” in our review of orders of the Board. Trimm Assocs., Inc. v. NLRB, 351 F.3d 99, 102 (3d Cir. 2003). This Court “will uphold the Board‘s interpretation of the NLRA so long as it is rational and consistent with the Act.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 201 (1991) (internal citation and quotation marks omitted). We “exercise plenary review over questions of law and the Board‘s application of legal precepts” and accept the Board‘s factual determinations if they are “supported by substantial evidence.” Spectacor Mgmt. Grp. v. NLRB, 320 F.3d 385, 390 (3d Cir. 2003) (internal citation omitted). Substantial evidence requires “more than a scintilla[,]” which means such evidence that “a reasonable mind might accept as adequate to support a conclusion.” Adv. Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 606 (3d Cir. 2016) (internal citation omitted).
The Supreme Court has clarified that “a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board‘s view.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). And “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board‘s.” Id. at 496. If the Board does not reject the examiner‘s credibility determinations, we “review the Board‘s decision in light of the [examiner‘s] undisturbed finding that [a witness] testified truthfully.” NLRB v. Alan Motor Lines, Inc., 937 F.2d 887, 892 (3d Cir. 1991).
IV. Forfeiture
The General Counsel argues that New Concepts has forfeited arguments under § 10(e) of the NLRA and the NLRB‘s corresponding regulation,
Section 10(e) of the NLRA states that “[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”
The Board has promulgated regulations to flesh out § 10(e)‘s requirements. See
Section 10(e) does not preclude our review of the key issues in this case related to the alleged unfair labor practices. First, the General Counsel‘s reliance on Oldwick is misplaced; there, “petitioner never even filed an answer to the amended complaint.” 732 F.2d at 342 (emphasis in original). Second, the Board was clearly on notice of the key issues in the case before us. For example, Space Needle, LLC, 362 NLRB 35 (2015), features prominently within the Board‘s own written opinions. The Board majority, rather than raise Space Needle as part of an entirely new argument, addressed Space Needle to respond to the ALJ‘s discussion of the standard for “employer communications regarding dues deduction and resignation of union membership.” J.A. 7.4 The General Counsel‘s own exceptions, as well as the ALJ‘s opinion, also referenced
“ministerial” assistance, the standard set forth in Space Needle. R. 3139, J.A. 42. New Concepts maintains that it “did not need to explicitly mention Space Needle . . . to make the central objection” regarding “the applicable and controlling” standard. Reply Br. 10-11. We agree.
As to New Concepts’ other allegedly forfeited arguments, many are simply expansions upon portions of the record. For example, the NLRB claims that “New Concepts . . . belatedly challenges the Board‘s factual finding that no employees asked New Concepts for help resigning from [the Union].” NLRB Br. 26. But the ALJ‘s opinion explicitly addressed the existence of “employee questions[.]” J.A. 42. New Concepts, rather than challenging an undisputed finding of the Board, seeks on appeal to clarify the existence and nature of those questions. Any remaining arguments are ordinary rebuttals to the Board
The “crucial question in a section [10](e) analysis is whether the Board received adequate notice of the basis for the objection.” NLRB v. FedEx Freight, Inc., 832 F.3d 432, 437 (3d Cir. 2016) (internal citation and quotation marks omitted). Here, we are satisfied that this notice requirement has been met.
V. Departure from Precedent
New Concepts argues that, in applying Space Needle, the Board departed from its own precedent in Peoples Gas System, Inc., 275 NLRB 505 (1985). We do not agree.
The Board has construed the Act to require employers to walk a fine line when engaging with employees on matters concerning union representation. On the one hand, the Act protects employees’ right to resign from a union, as well as employers’ ability to “inform employees of their rights[.]” Peoples Gas, 275 NLRB at 508. On the other hand, employers must refrain from creating an “atmosphere . . . of coercion, intimidation, or union animus.” Id. (internal citation omitted). An employer “may lawfully provide neutral information to employees regarding their right to withdraw their union support, provided that the employer offers no assistance, makes no attempt to monitor whether employees do so, and does not create an atmosphere wherein employees would tend to feel peril in refraining from withdrawing.” Space Needle, 362 NLRB at 36 (cleaned up).
In Peoples Gas, the Board determined that an employer‘s dues checkoff memorandum did not violate the Act. 275 NLRB at 509. There, the CBA provided for an annual period during which employees could revoke their dues authorizations. Id. at 505. After several employees asked supervisors about revoking dues authorizations, the employer sent letters to all employees just before the dues revocation period began, informing them that they had a “short opportunity in the next few days” to discontinue the dues checkoff or to resign from their union. Id. at 506. Each letter included a dues checkoff form. The letter noted that the employer was not “urging [employees] either to remain [] member[s] of the Union or to resign from the Union, or to discontinue the dues checkoff.” Id. Rather, any decision to leave would “not make any difference in . . . treatment by the Company.” Id. The Board concluded that the language of the letter “assured employees that the decision to remain a member of the union or to resign” would “make no difference in their terms and conditions of employment.” Id. at 508. The Board also found that the employer had both a contractual basis (the annual dues revocation period under the CBA) and an extracontractual basis (the employee questions about dues revocation) for sending the letter, and so concluded that the employer did not violate the Act. Id. The Board contrasted its decision with previous cases in which employers “had no contractual or other valid reason for” distributing
The Board distinguished Peoples Gas in its Space Needle decision. In the latter case, the employer distributed to its employees a letter “advising employees of their options regarding the payment of dues, including the revocation of dues authorizations and resignation from union membership.” 362 NLRB at 35. The Board noted that, unlike in Peoples Gas and similar cases, the Space Needle employer “did not distribute its letters in anticipation of a contractually-established window period for revocation” and so lacked a contractual basis for providing employees with information about how to revoke dues authorizations or resign from the union. Id. at 37. The Space Needle employer also inserted itself into the dues revocation process such that it was able to monitor employee responses by “requiring the sample resignation letters to be requested directly from management.” Id. And though the letter made clear that an employee‘s resignation from the union would not alter the terms of his employment, it provided no explicit assurances against repercussions for choosing “not to resign . . . union membership.” Id. The Board therefore concluded that the employer violated § 8(a)(1) of the Act. Id.
New Concepts primarily argues that Space Needle “departed from Board precedent.” New Concepts Br. 20.6 Yet New Concepts hedges by arguing that, “regardless of its
validity, Space Needle is not on point[.]” Id. at 21.7 The Board members themselves spill a great deal of ink debating the appropriate standard for employer conduct when interacting with employees on matters affecting their union representation.8 We believe it unnecessary to wade into that debate. It is “the primary responsibility of the Board and not of the courts to strike the proper balance between” employers and employees. Vesuvius Crucible Co. v. NLRB, 668 F.2d 162, 166 (3d Cir. 1981) (internal quotation marks and citation omitted). Nor need we do so in deciding this case.
Regardless of the nature of New Concepts’ arguments concerning Board precedent, it is enough that we simply conclude that Space Needle is distinguishable on its facts from Peoples Gas.9 The employer in
contractual and extracontractual basis for sending letters to employees. 275 NLRB at 508-09. And its letter contained adequate assurances that employees could “decide for [themselves] without pressure from . . . the company[.]” Id. at 508. By contrast, the employer in Space Needle lacked a contractual basis for the distribution of its letter, monitored employee responses, and provided no explicit assurances against repercussions for choosing to remain part of the union. 362 NLRB at 37. Further, to the extent that Space Needle narrowed the permissible range of employer conduct to “ministerial or passive aid[,]” Id. at 36 (internal citation omitted), that rule is “rational and consistent with the Act” and so is entitled to deference. Litton, 501 U.S. at 201.
We conclude, then, that the Board majority‘s application of Space Needle did not represent a departure from its own precedent.
VI. Substantial Evidence Analysis
The Board majority determined that New Concepts engaged in unfair labor practices when it solicited employees to resign from the Union, bargained in bad faith, polled employees’ Union support, and, ultimately, withdrew recognition from the Union. We conclude that the majority‘s determinations are not supported by substantial evidence.
A. The December Memo
The Board majority decided that the December Memo violated the Act. In reaching that conclusion, it determined that New Concepts lacked a contractual basis for sending the Memo because neither the Union‘s own communications nor the most recent CBA imposed a December 30 deadline for revoking dues authorization. The majority also determined that New Concepts lacked an extracontractual basis for sending the Memo. In the majority‘s view, New Concepts tracked the identities of employees who chose to resign, and its Memo failed to provide adequate assurances against reprisals.
These determinations lack support in the record. As to a December 30 deadline, although employees who signed New Concepts’ authorization form “might have been able to revoke their authorizations at any time,” many of the unit members “were still bound to the Union‘s dues-deduction card.” J.A. 27, n.19. The card permitted revocation of dues-checkoff authorizations only twice a year after December 31. Id. Further, the December Memo simply stated that “the Union may take the position that you can only revoke your Union Dues payroll deduction authorizations twice a year,” and that “[employees] may be forced to pay Union Dues for another 6 months.” R. 1434 (emphases added). In advising of that possibility, New Concepts correctly sounded a note of caution. For at least some employees, a deadline did appear to exist. And even if it did not, the use of “may” is hardly a declaration that a deadline actually loomed. In short, New Concepts had a
contractual basis for distributing the December Memo. And because the record shows that New Concepts received employee questions concerning the deduction of dues and the possibility of resignation, it had an extracontractual basis for distribution of the Memo.
With respect to tracking employee responses, the Board majority took issue with New Concepts’ role as the intermediary charged with submitting completed dues forms to the Union. As such, their opinion declared that New Concepts knew “exactly which employees chose to resign
The December Memo makes clear that payment of dues remained voluntary and that there would be “no reward for stopping Union Dues or punishment for continuing to pay Union Dues.” R. 1434. And the Memo stated explicitly that resignation from the Union had “no effect on . . . employment.” R. 1432. The Board majority acknowledged as much but concluded that the Memo “contained no assurance[s]” with respect to “resign[ation] from the Union.” J.A. 8. This argument is no more than hair-splitting. The December Memo made clear that “payment of union dues” was a requirement of membership. R. 1432. And, when pressed at oral argument, Board Counsel acknowledged that an employee could not remain a member of the Union without paying dues. ECF No. 46 at 33-34. It should be obvious, then, that an employee could reasonably infer that by stopping the authorization of dues deduction she thereby intended to withdraw her union membership. Accordingly, the Memo contained adequate assurances against reprisal.11
Finally, the Board majority‘s insistence that New Concepts solicited responses to the December Memo is unsupported by the record. In dismissing the charge related to the December Memo, the ALJ pointed out that “although the [General Counsel] alleged two supervisory employees . . . had solicited employees to sign withdrawal forms, neither of these individuals was called to testify” and no “evidence [was] elicited to [show the] alleged solicitation[.]” J.A. 43. The record supports the ALJ‘s observation.
New Concepts’ distribution of the December Memo did not violate the Act, and the Board majority‘s conclusion to the contrary was not supported by substantial evidence.
B. The August Memo
The Board majority determined that the August Memo also violated the Act. In support, it repeated the conclusions it advanced about the December Memo
As was the case with the December Memo, there was no evidence of tracking. Not a single employee returned a completed card authorizing the payment of union dues. New Concepts’ mere awareness of that fact, due to its administrative role in deducting dues payments, is hardly sufficient to make out a case for tracking. With respect to reprisals, the August Memo was just as clear as the December Memo had been: dues payments were voluntary, “[t]here [was] no reward for NOT paying Union Dues,” and there “[was] no punishment for resuming or starting to pay Union Dues.” R. 1435 (cleaned up). And New Concepts did assert a dues-based justification for distributing the August Memo. The August Memo went on to explain that it was intended to rebut the Union‘s accusations of coercion by providing employees with information on how “to start paying Union Dues.” Id.
The Board majority‘s determinations with respect to the August Memo are thus not supported by substantial evidence.
C. Bargaining Conduct
Section 8(a)(5) of the Act prohibits an employer from “refus[ing] to bargain collectively with the representatives of [its] employees[.]”
The Board has long held that, “in some cases, the content of specific proposals” is relevant to determining whether the proposal was made in good faith. Altura Commc‘n Sols., LLC, 369 NLRB No. 85, 1 (2020). As relevant here, the Board may consider “regressive bargaining” tactics in “determining whether there has been bad-faith bargaining,” especially where “the proponent of a regressive proposal fails to provide an explanation for it, or the [explanation] appears dubious[.]” In re Hardesty Co., Inc., 336 NLRB 258, 260 (2001). The Board has found a party to have engaged in regressive bargaining where the party has offered a proposal that cuts back on existing terms of employment or retracts a term or terms of the party‘s prior proposal. Id. The Board has also found regressive bargaining to have occurred where a party offers a proposal that it “could not reasonably have expected the Union to agree to.” U.S. Ecology Corp., 331 NLRB 223, 224 (2000).
As the Board has previously recognized, “[r]egressive bargaining . . . is not unlawful in itself; rather, it is unlawful if it is for the purpose of frustrating the possibility of agreement.” Id. at 225. The Board has long construed the duty to bargain in good faith to include “conduct[] both at and away from the bargaining table.” Pub. Serv. Co. of Okla., 334 NLRB 487, 487 (2001) (internal citation omitted). The Board has found violations of that duty where a party‘s “conduct away from the bargaining table confirms that it was focused more intently on eliminating its bargaining obligation . . . than on successfully
Here, the Board majority concluded that New Concepts’ “proposals on three issues — a wage freeze, elimination of dues checkoff and union security, and elimination of arbitration — were regressive and offered for the purpose of frustrating agreement.” J.A. 13. The ALJ had concluded otherwise, characterizing these proposals as “no more than hard bargaining on the part of an employer who knew it had the upper hand at the bargaining table.” Id. at 44. We agree with the ALJ.
As a starting point, both parties reserved the right to modify their proposals over the course of their bargaining.12 With respect to wages, New Concepts’ prioritization of merit pay and later wage reopener proposals reflected the reality of rising costs in the midst of stagnant state funding. And New Concepts obviously knew it had the upper hand after the decertification petition was filed. It is true that, in its first bargaining proposal, New Concepts proposed a merit pay system, but later proposed a wage freeze with a possible reopener upon receiving additional funding from the state. Yet the Board majority‘s conclusion — that this “unexplained decision to withdraw its merit pay proposal is especially glaring,” J.A. 13 — blinks reality. As the ALJ noted, “[t]he wage freeze and reopener proposal . . . came after [the] initial proposal for merit pay was dismissed out-of-hand by the Union.” Id. at 44. This was no more than the ordinary give and take of nearly all bilateral negotiations.
With respect to dues checkoff and union shop, it is true that New Concepts proposed to remove both from the contract. But as the ALJ observed, these proposals, “while clearly anathema to the Union, were within [New Concepts‘] rights to make, and were accompanied by an explanation as to why [New Concepts] was resistant to those provisions.” Id. As the ALJ further noted, “the fact that [New Concepts] proposed agreeing to union shop if the Union agreed to a poll of its members, rather than being evidence of bad faith, was evidence of the genuine nature of its explanation as to why it was so resistant to a union shop.” Id. Quite simply, the record here is replete with evidence of employee dissatisfaction with the Union. The Board majority conceded that “[a]n employer‘s philosophical opposition . . . does not, by itself, constitute bad-faith bargaining.” Id. at 14 (citation omitted). And, as the dissenting Board member reasoned, when viewed in the context of the bargaining environment — over 90% of the bargaining unit had just resigned — these proposals could have easily reflected “employees’ wishes.” Id. at 35.
With respect to arbitration, it is true that New Concepts proposed to remove or alter the arbitration provision from the contract. Witnesses for New Concepts testified that “cost concerns motivated . . . opposition to arbitration,” a contention that may seem counterintuitive to those familiar with transaction costs inherent in traditional litigation. And it is also true that the parties “had never arbitrated a dispute, so there [was] no history of expensive arbitrations . . . [a]nd it is generally understood that arbitration is less
Finally, the Board majority determined that New Concepts’ conduct away from the bargaining table focused on elimination of its bargaining duty rather than on negotiation. It relied on the fact that, after two months of bargaining, New Concepts suspended bargaining “1 day after the decertification petition was filed[.]” J.A. 15. The majority also relied, in large part, on the alleged unlawfulness of the December and August Memos to further demonstrate bad faith away from the bargaining table. But the suspension of bargaining after the decertification petition could reasonably be interpreted to reflect a desire to suspend negotiations while the Union‘s future was in doubt. And, as we have concluded supra, the December and August Memos were lawful.
The Board majority‘s determination with respect to bargaining is not supported by substantial evidence.
D. Poll and Withdrawal
As the ALJ acknowledged, “[a]bsent unusual circumstances, the polling of employees by an employer will be violative of . . . the Act” because it is an attempt “to ascertain employee views and sympathies regarding unionism,” which “tends to cause fear of reprisal[.]” J.A. 44 (citing Struksnes Constr. Co., 165 NLRB 1062, 1063 (1967)). But, if an employer has “a reasonable doubt about a union‘s continued majority status,” it may “test the accuracy of that doubt” by “poll[ing] its employees about their union sentiments.” Texas Petrochemicals Corp., 296 NLRB 1057, 1061 (1989). A poll is lawful only if (1) the poll‘s purpose is to assess a “union‘s claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.” Struksnes, 165 NLRB at 1063. All five safeguards must be met. See Grenada Stamping & Assembly, 351 NLRB 1152, 1152 n.4 (2007).
The Board majority concluded that the September 2017 poll of employees was inconsistent with the requirements under Struksnes and that New Concepts thus unlawfully withdrew recognition from the Union. In support, it determined that New Concepts lacked a good faith doubt as to the Union‘s majority status, and that New Concepts violated Struksnes safeguards three (assurances against reprisals) and five (other unfair labor practices or coercive atmosphere).
While we fully recognize that the polling of employees is disfavored, we agree with the ALJ that “this is the unusual case where [New Concepts] was lawfully able to poll its employees.” J.A. 45. New Concepts had a good faith doubt about the Union‘s majority status. A decertification petition had been filed, few unit members attended bargaining sessions, over 90% of the unit had withdrawn authorization for dues checkoffs over eight months earlier, and not a single employee requested dues to be deducted in response to New Concepts’ offer to do so. Although we agree that “[n]one of these items would support an employer‘s withdrawal of recognition, individually or even taken together[,]” they do “support a good-faith doubt on the part of [New Concepts] sufficient to allow it to conduct a lawful poll.” Id. We are satisfied
VII. Conclusion
While it is a common human trait to want to get something for nothing, almost no one wants to pay something and receive nothing in return. As the ALJ concluded, the “General Counsel‘s position ignores the fundamental truth underlying this case, that it was the Union‘s own absence over the span of multiple years that ultimately led to its loss of support.” J.A. 45. For the reasons set forth above, we conclude that the Board majority‘s determinations regarding the alleged unfair labor practices are not supported by substantial evidence. We will therefore grant New Concepts’ petition for review and deny the NLRB‘s cross-application for enforcement.
KRAUSE, Circuit Judge, concurring.
I join Judge Smith‘s excellent majority opinion without reservation. I write separately, however, to call attention to an argument that continues to be invoked by the National Labor Relations Board (“NLRB” or the “Board“) and that exposes a troubling gap between Section 10(e) of the National Labor Relations Act (“NLRA“), and the Board‘s regulation at
In the former, Congress excluded from judicial consideration any “objection” to the ALJ‘s decision that was not “urged before the Board” absent extraordinary circumstances,
The consequence of this expansive interpretation of Section 10(e) is that the Board‘s General Counsel, when confronting an arguably meritorious argument on appeal, has an ace in the deck, which he pulled here: While nominally citing the statute, the General Counsel in fact relies on cases applying the regulation to argue that — notwithstanding that an issue was fairly raised before the Board, and even if the Board actually addressed it — the issue is not “properly before the Court” if the General Counsel now says that it was raised without sufficient compliance with the regulation. Answering Br. 23.
That is a dubious proposition for two reasons. First, the regulation appears neither a reasonable nor an administrable
I. The Regulation Is Not Entitled to Deference
The prerequisites to judicial review imposed by the regulation are far more numerous and expansive than the statute, raising the question whether the regulation is entitled to Chevron deference1 or instead “crosses the line from permissible statutory interpretation . . . to ultra vires regulation contrary to the clear intent of Congress.” Shalom Pentecostal Church v. Acting Sec‘y, Dep‘t of Homeland Sec., 783 F.3d 156, 158 (3d Cir. 2015); Administrative Procedure Act (“APA“),
A. The Conflict Between Section 10(e) and the Board‘s Regulation
The NLRA authorizes the Board to “make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions” of the Act.
To “carry out” the purpose of Section 10(e)‘s exhaustion requirement — that is, ensuring that parties “first give the Board an opportunity to rule upon all material
In response to exceptions, the adverse party — presumably the prevailing party before the ALJ — “may file” an answering brief or file “cross-exceptions” of its own that conform with the precise requirements of the regulation. Id.
By its terms, then, the Board‘s regulation imposes different, more cumbersome, and less straightforward requirements on a litigant to preserve its opportunity for judicial review. While the statute requires merely that a party “urge[]” an “objection” before the Board,
B. The Practical Consequences of The Board‘s Regulation
Confronted with a regulation that is inconsistent in many respects with the statute it purports to interpret, the courts and litigants have struggled to understand what suffices to satisfy issue-exhaustion under Section 10(e) and whether the administrative exhaustion scheme, purporting to implement what under Woelke is a jurisdictional statutory requirement, itself defines the courts’ jurisdiction. The conclusions
For starters, the courts diverge on whether fair notice to the Board or compliance with the regulatory specifications is the sine qua non of issue exhaustion under Section 10(e). Some have focused on the notice function,4 considering an
issue exhausted, for example, even where the opposing party raised it in its exceptions before the Board.5 But others have held that, even where fairly presented to the Board and/or actually addressed in its opinion, the issue was not exhausted unless the party seeking to raise the issue on appeal itself raised the issue before the Board.6
Other points of contention resulting from the regulation‘s imprecision include whether a party who prevailed before the ALJ must still file “exceptions” to preserve an issue for appeal;7 the specificity of pleading required to satisfy
Section 10(e);8
may consider in assessing exhaustion;9 and whether failure to comply with the regulation should be excused when the policies behind Section 10(e) are not implicated.10 The extent
of this confusion raises serious questions about whether the regulation is a lawful interpretation of the statute under Chevron or is arbitrary or capricious under theThe most profound confusion spawned by the regulation, however, concerns the extent to which it defines the courts’ subject matter jurisdiction. Because the Supreme Court has held Section 10(e)‘s issue-exhaustion requirement to be jurisdictional and the regulation purports to expound on that requirement, a number of courts have opined that regulatory noncompliance itself strips the court of jurisdiction.11 This has (citation omitted)); IBEW v. NLRB, 973 F.3d 451, 461 (5th Cir. 2020) (same); Facet Enters., Inc., 907 F.2d 963, 970-72 (10th Cir. 1990) (collecting cases where courts considered issues not previously raised to the Board because Section 10(e)‘s underlying policies were not implicated).
serious consequences for petitioners who may unwittingly lose their right to Article III review, and it is all the more concerning in view of the complexity and imprecision of the regulation—confounding the courts, let alone litigants. As explained below, however, the Board lacks authority to define the scope of federal jurisdiction, so to the extent the regulation professes to add jurisdictional requirements to those prescribed by Congress, it would appear ultra vires for that reason as well.
C. Whether the Regulation Is Owed Deference
Under the APA, we “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, [or] an abuse of discretion.”
It is true, of course, that “the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue,” Weinberger v. Salfi, 422 U.S. 749, 765 (1975), but there is also a “strong presumption that Congress intends judicial review of administrative action,” Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986). As the Supreme Court recently observed in Smith v. Berryhill, the burden on an agency to rebut that presumption with statutory language or structure is a heavy one, 139 S. Ct. 1765, 1776-77 (2019), and for the same reasons the Court there rejected the argument that the Social Security Administration had “the power to determine ‘the scope of the judicial power vested by [the statute] or to determine conclusively when its dictates are satisfied,‘” id. at 1779 (quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990)), the NLRB cannot claim that Congress delegated it such power here.
Even accepting that Congress “empowered [the Board] to create a scheme of administrative exhaustion,” it “did ‘not empower the [agency] to regulate the scope of the judicial power vested by the statute.‘” Id. at 1778-79 (quoting Adams Fruit Co., 494 U.S. at 650). To the contrary, in Section 10(e), Congress exercised that power itself, requiring only that an objection be “urged before the Board” as a precondition to judicial review.
contrary to the statute and beyond the agency‘s delegated authority. See id. at 1778-79.
Viewed as a nonjurisdictional administrative-exhaustion scheme, however, the regulation is within the agency‘s purview to promulgate. See id. at 1777 (recognizing that the SSA “is empowered to define the steps claimants must generally take” to satisfy administrative exhaustion). But even where gap filling is permissible, the agency‘s response must be “based on a permissible construction of the statute” and not be “unreasonable, arbitrary, capricious, or contrary to the plain language of the [statute],” Armstrong World Inds., Inc. v. Comm‘r, 974 F.2d 422, 430, 442 (3d Cir. 1992) (quoting Chevron, 467 U.S. at 843); see also
The Board, for example, can use § 102.46(a) as a regulatory shield to protect the agency on appeal and further its policy prerogatives, exercising its discretion to deem parties’ arguments forfeited as it pleases, all with the knowledge that its discretion directly affects our ability to hear an argument. See, e.g., Special Touch Home Care Servs., Inc., 349 N.L.R.B. 759, 760 (2007). At the same time, the Board can wield § 102.46 as a regulatory sword, claiming parties forfeited arguments by failing to adhere to Board procedure, even though the General Counsel made no motion before the Board to strike deficient filings for noncompliance and the Board itself elected to proceed below without requiring such strict adherence. And that is precisely what happened here: New Concepts failed to file any exceptions or cross-exceptions, instead providing the Board with a short letter and the brief it filed with the ALJ. But the Board appears to
Such tactics have serious consequences for parties, who, having invested years litigating unfair-labor-practice claims, may lose their right to appeal due to technicalities, and in such circumstances, the Courts of Appeals may have occasion to question the validity of the regulatory requirements themselves. At a minimum, we should not apply them reflexively. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (refusing to enforce prison-grievance exhaustion requirements against a prisoner, particularly because of their “rapid filing deadlines” that could “trap the inexperienced and unwary inmate, ordinarily indigent and unrepresented by counsel, with a substantial claim“); Bowen v. City of New York, 476 U.S. 467, 482-83 (1986) (waiving administrative exhaustion requirements in a class action against the SSA where claimants “would be irreparably injured” if exhaustion were enforced); Ritz-Carlton Hotel Co v. NLRB, 123 F.3d 760, 763 (3d Cir. 1997) (concluding that
In sum, whether viewed as ultra vires to the extent it purports to impose jurisdictional limitations or unreasonable to the extent it is unclear and inconsistently applied,
II. Section 10(e)‘s Exhaustion Requirement May Not Be Jurisdictional
Four decades ago, the Court held in Woelke that Section 10(e)‘s exhaustion requirement is “jurisdictional.”13 456 U.S. at 665-66. Over two decades ago, it again referenced its holding in Woelke that “the Court of Appeals lacked jurisdiction to review objections not raised before the [NLRB].” Sims, 530 U.S. at 107-08 (citing Woelke in discussion of administrative exhaustion in the Social Security Act to illustrate that the “requirements of administrative issue exhaustion are largely creatures of statute“). But in more recent years, the Supreme Court has undertaken to “ward off profligate use” of the term “jurisdictional,” Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (quoting Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153 (2013))—distinguishing between a “‘jurisdictional’ prescription
The distinction matters because “[h]arsh consequences attend the jurisdictional brand.” Santos-Zacaria, 143 S. Ct. at 1112 (quoting Davis, 139 S. Ct. at 1849). Unlike claim-processing rules, “[j]urisdictional requirements cannot be waived or forfeited, must be raised by courts sua sponte, and . . . do not allow for equitable exceptions.” Boechler, 142 S. Ct. at 1497. For that reason, the Court held in Arbaugh v. Y&H Corp. that we should impose those consequences only if Congress “clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional.” 546 U.S. 500, 515-16 (2006). A “plausible or even preferable reading is not enough to make [such] a statement clear.” Jaludi v. Citigroup & Co., 57 F.4th 148, 152 (3d Cir. 2023) (citing Boechler, 142 S. Ct. at 1499). Rather, because exhaustion is “a quintessential claim-processing rule” that is ordinarily not jurisdictional, “we would need unmistakable evidence, on par with express language addressing the court‘s jurisdiction.” Santos-Zacaria, 143 S. Ct. at 1112-13. And if a statute is susceptible to “multiple plausible interpretations . . . —only one of which is jurisdictional it is difficult to make the case that the jurisdictional reading is clear.” Boechler, 142 S. Ct. at 1498.
Given that high threshold, it is no wonder that the Court, since Arbaugh, “ha[s] yet to hold that any statutory exhaustion requirement is jurisdictional when applying the clear-statement rule.” Santos-Zacaria, 143 S. Ct. at 1112-13 (recounting numerous cases since Arbaugh in which the Court declined to classify a statutory requirement as jurisdictional). We, too, in following the Court‘s instruction to “trea[t] as nonjurisdictional . . . threshold requirements that claimants must complete, or exhaust” for judicial review, id. (alteration and omission in original) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)), have classified (or, in some cases, reclassified) exhaustion requirements previously considered jurisdictional as nonjurisdictional claim-processing rules.14
Section 10(e)‘s exhaustion requirement may also be ripe for reconsideration. Indeed, the Sixth Circuit, albeit nonprecedentially, has observed that “[S]ection 10(e)‘s exhaustion requirement strikes us as a nonjurisdictional claim-processing rule[]” and has characterized Woelke as the type of
“drive-by jurisdictional ruling[]” that the Supreme Court has instructed courts to disregard. Sysco Grand Rapids, LLC v. NLRB, 825 Fed. App‘x 348, 356-57 (6th Cir. 2020) (internal citations and quotation marks omitted). To ascertain whether Congress intended the exhaustion requirement to be jurisdictional (and, hence, whether Woelke has been abrogated), we must consider its “text, context, and relevant historical treatment.” T-Mobile Ne. LLC v. City of Wilmington, 913 F.3d 311, 324 (3d Cir. 2019) (citation omitted).
Starting with the text, Section 10(e) states that “[n]o objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”
The exhaustion requirement‘s statutory context within Section 10(e) also indicates it is nonjurisdictional. As apparent in Attachment A, the first few sentences of Section 10(e) do speak clearly to the jurisdiction of the Courts of Appeals, providing that upon the filing of a petition for review and notice to the respondent, “the court . . . shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such [relief].”
proximity of this sentence to the prior sentences conferring subject-matter jurisdiction does not suffice; there must be a “clear tie” between the jurisdictional grant and the provision in question, and the “fact that [they] appear in the same provision, [or] even the same sentence” does not amount to a clear statement from
That brings us to the exhaustion requirement‘s historical treatment—the one factor that, as a consequence of Woelke, decidedly supports its status as jurisdictional. But the Supreme Court has not reconsidered this provision of Section 10(e) in the 40 years since that case, and, as the Sixth Circuit recognized in Sysco Grand Rapids, 824 Fed. App‘x at 356-57, its refusal since Arbaugh to hold any exhaustion requirement jurisdictional under the clear statement rule, see Santos-Zacaria, 143 S. Ct. at 1112-13, portends a different outcome when it does.18
In short, it is not clear that Section 10(e)‘s exhaustion requirement is properly considered jurisdictional at all, but if it is, as the Board continues to assert, that only confirms the propriety of a narrow—not expansive—interpretation in
ATTACHMENT A
29 U.S.C. § 160 . Prevention of unfair labor practices
[. . .]
(e) Petition to court for enforcement of order; proceedings; review of judgment
The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall
(f) Review of final order of Board on petition to court
Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Board, and thereupon the aggrieved party shall file in the court the record in the proceeding, certified by the Board, as provided in section 2112 of title 28. Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e), and shall have the same jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board; the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive.
ATTACHMENT B
29 C.F.R. § 102.46 . Exceptions and brief in support; answering briefs to exceptions; cross-exceptions and brief in support; answering briefs to cross-exceptions; reply briefs; failure to except;
(a) Exceptions and brief in support. Within 28 days, or within such further period as the Board may allow, from the date of the service of the order transferring the case to the Board, pursuant to § 102.45, any party may (in accordance with Section 10(c) of the Act and §§ 102.2 through 102.5 and 102.7) file with the Board in Washington, DC, exceptions to the Administrative Law Judge‘s decision or to any other part of the record or proceedings (including rulings upon all motions or objections), together with a brief in support of the exceptions. The filing of exceptions and briefs is subject to the filing requirements of paragraph (h) of this section
(1) Exceptions. (i) Each exception must:
(A) Specify the questions of procedure, fact, law, or policy to which exception is taken;
(B) Identify that part of the Administrative Law Judge‘s decision to which exception is taken;
(C) Provide precise citations of the portions of the record relied on; and
(D) Concisely state the grounds for the exception. If a supporting brief is filed, the exceptions document must not contain any argument or citation of authorities in support of the exceptions; any argument and citation of authorities must be set forth only in the brief. If no supporting brief is filed, the exceptions document must also include the citation of authorities and argument in support of the exceptions, in which event the exceptions document is subject to the 50-page limit for briefs set forth in paragraph (h) of this section.
(ii) Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged will be deemed to have been waived. Any exception which fails to comply with the foregoing requirements may be disregarded.
(2) Brief in support of exceptions. Any brief in support of exceptions must contain only matter that is included within the scope of the exceptions and must contain, in the order indicated, the following:
(i) A clear and concise statement of the case containing all that is material to the consideration of the questions presented.
(ii) A specification of the questions involved and to be argued, together with a reference to the specific exceptions to which they relate.
(iii) The argument, presenting clearly the points of fact and law relied on in support of the position taken on each question, with specific page citations to the record and the legal or other material relied on.
(b) Answering briefs to exceptions. (1) Within 14 days, or such further period as the Board may allow, from the last date on which exceptions and any supporting brief may be filed, a party opposing the exceptions may file an answering brief to the exceptions, in accordance with the filing requirements of paragraph (h) of this section.
(2) The answering brief to the exceptions must be limited to the questions raised in the exceptions and in the brief in support. It must present clearly the points of fact and law relied on in support of the position taken on each question. Where exception has been taken to a factual finding of the Administrative Law Judge and the party filing the answering brief proposes to support the Judge‘s finding, the answering brief must specify those pages of the record which the party contends support the Judge‘s finding.
(d) Answering briefs to cross-exceptions. Within 14 days, or such further period as the Board may allow, from the last date on which cross-exceptions and any supporting brief may be filed, any other party may file an answering brief to such cross-exceptions in accordance with the provisions of paragraphs (b) and (h) of this section. Such answering brief must be limited to the questions raised in the cross-exceptions.
(e) Reply briefs. Within 14 days from the last date on which an answering brief may be filed pursuant to paragraphs (b) or (d) of this section, any party may file a reply brief to any such answering brief. Any reply brief filed pursuant to this paragraph (e) must be limited to matters raised in the brief to which it is replying, and must not exceed 10 pages. No extensions of time will be granted for the filing of reply briefs, nor will permission be granted to exceed the 10-page limit. The reply brief must be filed with the Board and served on the other parties. No further briefs may be filed except by special leave of the Board. Requests for such leave must be in writing and copies must be served simultaneously on the other parties.
(f) Failure to except. Matters not included in exceptions or cross-exceptions may not thereafter be urged before the Board, or in any further proceeding.
(g) Oral argument. A party desiring oral argument before the Board must request permission from the Board in writing simultaneously with the filing of exceptions or cross-exceptions. The Board will notify the parties of the time and place of oral argument, if such permission is granted. Oral arguments are limited to 30 minutes for each party entitled to participate. No request for additional time will be granted unless timely application is made in advance of oral argument.
(h) Filing requirements. Documents filed pursuant to this section must be filed with the Board in Washington, DC, and copies must also be served simultaneously on the other parties. Any brief filed pursuant to this section must not be combined with any other brief, and except for reply briefs whose length is governed by paragraph (e) of this section, must not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited.
(i) Amicus curiae briefs. Amicus curiae briefs will be accepted only by permission of the Board. Motions for permission to file an amicus brief must state the bases of the movant‘s interest in the case and why the brief will be of benefit to the Board in deciding the matters at issue. Unless the Board directs otherwise, the following procedures will apply.
(1) The Board will consider motions to file an amicus brief only when: (a) A party files exceptions to an Administrative Law Judge‘s decision; or (b) a case is remanded by the court of appeals and the Board requests briefing from the parties.
(2) In circumstances where a party files exceptions to an Administrative Law Judge‘s decision, the motion must be filed with the Office of the Executive
(3) The motion must be accompanied by the proposed amicus brief and must comply with the service and form prescribed by § 102.5. The brief may be no more than 25 pages in length.
(4) A party may file a reply to the motion within 7 days of service of the motion. A party may file an answering brief to the amicus brief within 14 days of issuance of the Board‘s order granting permission to file the amicus brief. Replies to an answering brief will not be permitted.
(5) The Board may direct the Executive Secretary to solicit amicus briefs. In such cases, the Executive Secretary will specify in the invitation the due date and page length for solicited amicus briefs, and the deadline for the parties to file answering briefs. Absent compelling reasons, no extensions of time will be granted for filing solicited amicus briefs or answering briefs.