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In Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16 (D.C. Cir. Sept. 30, 2016), the Federal Court of Appeals in the District of Columbia ordered the National Labor Relations Board (“NLRB”) to pay approximately $18,000 in attorneys’ fees for engaging in bad faith litigation.  The National Labor Relations Board is the US government agency charged with enforcing US labor law in relation to union collective bargaining and unfair labor practices.

In Heartland, the NLRB stuck to its blanket non-acquiescence policy refusing to recognize any law of any circuit that conflicts with its precedent.  The issue at hand was whether an employer’s refusal to bargain on a matter allegedly contained in a collective bargaining agreement requires a “clear and unmistakable” waiver.  The Board maintained such a waiver is required. The D.C. Circuit’s long standing precedent is lawful refusals to bargain are judged based on the contents of a collective bargaining agreement (“CBA”) and are a question of “contract coverage.”  

In a harsh rebuke, the Circuit exclaimed “[i]n sum, the Board’s candor-free approach to nonacquiescence asks this Court to let the Board do what no private litigant ever could: make legal contentions not warranted by existing law and supported by no argument for modifying, reversing, or establishing new law. This is intolerable.  We are under no obligation to bless the desire of ‘federal agencies [to] be subject to no law at all – as indeed, it appears [the NLRB] believes to be the case.”

In an effort to hold the NLRB’s feet to the fire, in addition to awarding close to $18,000 in fees, the Circuit boldly stated “Let the word go forth; for however much the judiciary has emboldened the administrative state, we ‘say what the law is.’”

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.