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Michael Cetta, Inc., dba Sparks Restaurant v. National Labor Relations Board

Paid petition · United States Court of Appeals for the District of Columbia Circuit, No. 18-1165 · judgment May 20, 2019

Certiorari denied · January 13, 2020
Pre-decision estimate: 8% cert probability (95% interval 5%–13%)

Before the decision, about 2× the 4.1% base rate. The model weighted this up for a D.C. Circuit decision below, a circuit split argued in the petition, and a business petitioner.

Questions presented

  1. Whether the Court of Appeals erred in holding striking employees had been discharged in violation of the National Labor Relations Act (“NLRA”), even though none of the striking employees ever claimed they had been discharged, by finding a hypothetical prudent employee reasonably could have concluded the employer’s allegedly ambiguous statements meant striking employees had been discharged?

  2. Whether the “mutual understanding” of “permanent employment” required by NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), and its progeny is established under the NLRA when an employer issues offer letters of permanent employment to replacement employees, and those employees thereafter commence (or continue) employment, all prior to the time striking employees deliver to the employer an unconditional offer of return to work?

Counsel of record

For petitioner
Jon Schuyler Brooks
Freeborn & Peters LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Proceedings

  1. Jan 13 2020
    Petition DENIED.
  2. Dec 18 2019
    DISTRIBUTED for Conference of 1/10/2020.
  3. Dec 16 2019
    Waiver of right of respondent NLRB to respond filed.
  4. Nov 12 2019
    Petition for a writ of certiorari filed. (Response due December 16, 2019)