NLRB Invites Briefs on Allocating Income in Backpay Awards | Practical Law

NLRB Invites Briefs on Allocating Income in Backpay Awards | Practical Law

On July 31, 2012, the National Labor Relations Board (NLRB) invited amicus briefs on the question of whether respondents found to have violated the National Labor Relations Act (NLRA) and owing backpay should be required to take certain steps to minimize the tax burden on recipients of backpay awards. The invitation to file briefs is contained in a decision in Latino Express, Inc.

NLRB Invites Briefs on Allocating Income in Backpay Awards

Practical Law Legal Update 2-520-7160 (Approx. 4 pages)

NLRB Invites Briefs on Allocating Income in Backpay Awards

by PLC Labor & Employment
Published on 02 Aug 2012 • USA (National/Federal)
On July 31, 2012, the National Labor Relations Board (NLRB) invited amicus briefs on the question of whether respondents found to have violated the National Labor Relations Act (NLRA) and owing backpay should be required to take certain steps to minimize the tax burden on recipients of backpay awards. The invitation to file briefs is contained in a decision in Latino Express, Inc.
On July 31, 2012, a three-member panel (Board) heading the NLRB's judicial functions invited interested parties to file briefs on whether the NLRB should require respondents that owe backpay to do either or both of the following:
  • Submit documentation to the Social Security Administration (SSA) so that an award is allocated to the year the income would have been earned, rather than recorded as a lump sum taxed in the year it is received.
  • Reimburse back-pay recipients for any excess income taxes they may owe because the backpay award is paid as a lump sum rather than allocated to the year the income would have been earned if the respondent had not violated the NLRA.
The NLRB published its invitation for briefs in a decision in Latino Express, Inc. In Latino Express, the NLRB found that the employer violated the NLRA by:
  • Discharging two employees because they supported the union and engaged in other protected concerted activities.
  • Prohibiting employees from discussing their terms and conditions of employment with one another.
  • Creating the impression that employees’ union activities were under surveillance.
  • Promising improved benefits to employees during a union organizing campaign.
  • Soliciting grievances and promising to remedy them during a union organizing campaign.
  • Coercively interrogating an employee about his union activities.
  • Threatening to discharge employees and to close and move the facility if they selected the union as their collective-bargaining representative.
  • Granting a wage increase during the union organizing campaign.
Briefs, which must not exceed 25 pages, must be electronically filed using the NLRB E-Filing system by October 1, 2012.
Board documents: