In a case that applies to the National Labor Relations Board (NLRB), but appears to be a mantra to all of the Obama administration agencies, the United States Court of Appeals for the District of Columbia Circuit issued a scathing rebuke to the NLRB for “abusive tactics and extremism." They ordered the Board to pay an employer nearly $18,000 in legal fees incurred due to the Board’s “bad faith litigation.”
In Heartland Plymouth Court MI, LLC v. NLRB, No. 15-1034 (DC Circuit Court of Appeals, September 30, 2016), the NLRB found Heartland violated its collective-bargaining agreement by failing to bargain over the effects of reducing employee hours. Heartland is a Michigan employer that provides individualized post-hospital skilled nursing.
As the court characterized the Board’s actions, it is “worth noting the Board’s suit was predicated upon its view that the employer’s refusal to bargain on a matter allegedly within a collective-bargaining agreement requires a ‘clear and unmistakable’ waiver.” However, the DC circuit noted that this has not been precedent in its jurisdiction and follows a rule that the contents of a collective-bargaining agreement is a question of “contract coverage.”
The initial case was filed by Heartland after the Board ruled against it in 2013. However, the case was held in abeyance until the Supreme Court ruled on the legitimacy of the recess appointments made by President Obama. After the Supreme Court decision ruled that the appointments were illegal, a new Board was appointed and confirmed by the Senate. That Board reinstated the Heartland decision.
Heartland appealed again. Heartland’s petition was granted, and the Board’s cross-petition to enforce its Order denied, in an unpublished Judgment without oral argument. In the cross petition denial, the Board neither confessed the error of the Order against Heartland under the DC Circuit precedent, nor sought to preserve its argument against its precedent for certiorari (or even en banc reconsideration). The Board also did not seek a transfer to the Sixth Circuit, which embraces the Board’s “clear and unmistakable” waiver policy.
Heartland, after the order, moved for attorney fees. The Board continued its challenge to the D.C. Circuit’s precedent and cross-petitioned for enforcement in that Court. “In lieu of its legitimate options,” the D.C. Circuit wrote, “the Board chose obstinacy.” Further, the Board for the first time asserted a policy of “nonacquiescence,” claiming a prerogative to “stake out its own position contrary” to any circuit, or all circuits.
The DC Circuit was underwhelmed by the Board’s arguments. The Court describes the Board’s rationale for nonacquiescence two-fold: (1) the NLRA’s multi-venue provision renders the Board clueless as to what circuit will govern the enforcement of its orders on appeal; and (2) the Board’s “uniform and nationwide” jurisdiction over labor policy gives it the right to disagree with any circuit, whenever it wants. Nonacquiesence allows the Board to oppose adverse circuit court decisions and bring national labor law questions to the Supreme Court for resolution, thus achieving a uniform and orderly administration of the NLRA.
The Court found that the Board’s history reveals “its primary goal is . . . to see its interpretation of the federal labor laws prevail in as many cases as possible, rather than to change contrary law in particular circuits or . . . serve as a percolator for the Supreme Court.” Therefore, the Board’s nonacquiescence argument in this case amounted to an attempt to “make legal contentions not warranted by existing law and supported by no argument for modifying, reversing, or establishing new law.” The Court declared that this approach is “intolerable.” Further, the Board’s choice to “pretend” that its Order did not conflict with the Court’s precedent amounted to a “lack of candor” and was “nonsensical.”
The Court noted that the case could have been transferred to the 6th Circuit, which adopts the standard the NLRB promotes, but it did not. The Court admonished the NLRB: “The Board chose to put its Order on a suicide mission with our precedent simply to lock horns with Heartland. The Board was the perpetrator here, not venue uncertainty.”
Heartland was awarded attorney fees.
What is unfortunate about this case is that it demonstrates the current administration’s flagrant attempt to create law and ignore precedent. For example, in its new Enforcement Guidance on Retaliation and Related Issues issued August 25, 2016, the EEOC expands the definition of retaliation and ignores Supreme Court precedent that retaliation is a “but-for” event. Lawsuits imposing attorney fees on the EEOC mark the same. The Department of Justice is pushing the limits of national origin discrimination by trying to impose strict liability on employers, among other things, contrary to the law in its recently proposed regulations concerning unfair immigration-related employment practices. OSHA tries changing definitions in regulations calling it a de minimis change without going through the regulatory process. The Office of Federal Contract Compliance Programs has consistently done the same.
With plaintiff attorneys heading the agencies, enforcement has run amok. HR has to be very concerned that there is no consistency in enforcement, and practices ok today may be illegal tomorrow. The morrow fears no better.
Source: McGuireWoods LLP