And so the saga of the runaway NLRB continues. Last Friday, the D.C. Circuit Court of Appeals, widely recognized as our nation’s leader in administrative law, issued a hard-hitting opinion sharply criticizing the NLRB for its bad-faith pursuit of litigation against an employer and awarding the employer its attorneys’ fees. Heartland Plymouth Court v. NLRB.
Many moons ago, the NLRB fashioned its “policy of nonacquiescence.” This policy essentially states that the NLRB doesn’t believe it has to follow a ruling of any federal appellate court on an issue with which the NLRB disagrees until the Supreme Court orders it to do so. This peculiar view of our separation of powers took center stage in this case, when the NLRB took a legal position in the D.C. Circuit that the court has repeatedly found bankrupt for over two decades. The Court took extraordinary umbrage with the NLRB’s attempt to push an issue it has lost many times in that Court. And what better way to get a true feel for the Court’s ire than a direct quote: “Facts may be stubborn things, but the Board’s longstanding ‘nonacquiescence’ towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: ‘We don’t care what the law says, if you want to beat us, you will have to fight us.’” To which we say “Amen!”