NFIB recently filed briefs at the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, the U.S. Court of Appeals for the Fifth Circuit, and the Court of Appeals of the State of Virginia in cases involving important small business issues, including union elections and OSHA’s workplace safety rules, among others.

Cemex Construction Materials Pacific, LLC. v. NLRB

NFIB filed an amicus brief at the U.S. Court of Appeals for the Ninth Circuit regarding a new National Labor Relations Board (NLRB) framework for union representation elections. “The new standard affects various small businesses across the country,” said Elizabeth Milito, Executive Director of the NFIB Small Business Legal Center. “The NLRB ignored precedent and rolled out an unreasonable standard by putting the burden on employers to petition the NLRB for a secret ballot election. At a minimum, the Board should adhere to normal procedure and allow public input for new standards that will affect employers throughout the country.” The brief argues two main points:

1. The new NLRB framework makes it easier for the Board to order that an employee recognize and bargain with a union even if the union lost an NLRB supervised secret ballot election.
2. NLRB overstepped its authority and made a policy change that Congress previously rejected.

City and County of San Francisco, California v. EPA

NFIB filed an amicus brief at the U.S. Supreme Court arguing the standard for National Pollutant Discharge Elimination System (NPDES) permits is confusing, opening businesses to activist lawsuits. The brief argues two main points:

1. The Ninth Circuit’s ruling harms the business community and the economy.
2. The Ninth Circuit’s ruling creates a split with the second circuit while conflicting with the CWA’s text and design.

Starbucks Corp. v. M. Kathleen McKinney

NFIB filed an amicus brief in the U.S. Supreme Court arguing that authorization for the National Labor Relations Board (NLRB) to seek temporary injunction against employers and unions (Section 10(j) Injunctions) gives too much consideration to the NLRB and is harmful and disruptive to businesses. The brief makes two arguments:

1. The court has rejected special rules for special areas of law.
2. The court should reject the NLRB Exceptionalism.

Allstates v. Su

NFIB filed an amicus brief at the U.S. Supreme Court stating that OSHA’s workplace safety rules are an unconstitutional delegation of the legislative powers. “Small business owners vote for Congressional representatives to legislate, not unelected federal bureaucrats,” said Milito. “We are hopeful the Court will hear this case and agree that OSHA does not have the statutory authority to issue workplace safety standards.”

Highlander v. VA Department of Wildlife Resources

NFIB filed an amicus brief at the Court of Appeals of the State of Virginia contending state conservation officers seizing and searching an individual’s personal property without a warrant. “The Fourth Amendment to the U.S. Constitution provides the baseline protection of property rights,” NFIB State Director in Virginia Julia Hammond said. “The Commonwealth can expand on those rights but can’t reduce them. Unfortunately, the lower court’s decision has had that impact by allowing conservation officers to seize and search personal property without a warrant. We are hopeful that the court of appeals will interpret the Virginia Constitution to provide even more protection for property rights.” The brief argues two main points:

1. The Fourth Amendment of the U.S. Constitution, providing minimum property protections that Virginia must recognize, prohibits the search and seizure of personal property that occurred in this case.
2. Small businesses will suffer if the court of appeals concludes that law enforcement may seize and search personal property without a warrant or exigent circumstances.

Texas v. Biden

NFIB filed an amicus brief at the U.S. Court of Appeals for the Fifth Circuit questioning whether the Department of Labor (DOL) has the authority to increase the minimum wage for federal contractors. “At a time when small businesses are battling historic inflation and labor shortages, this decision will have economic consequences for many small business contractors,” said Milito. “Small business owners already strive to provide their employees with the highest wages and benefits they can afford. Mandating further increases to their operating costs will only make it harder for them to do so.” NFIB’s brief argues two main points:

1. The Procurement Act is a limited Congressional delegation of legislative authority.
2. The court must subject the rule to meaningful judicial review.

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and the U.S. Supreme Court.