In a major rebuke to the National Labor Relations Board (NLRB), the U.S. Court of Appeals for the District of Columbia Circuit has ordered the agency to pay a defendant’s attorney’s fees for pursuing a case that was clearly contrary to the court’s long-standing precedent.
The ruling by the D.C. Circuit in Heartland Plymouth Court MI, LLC v. NLRB, No. 15-1034 (D.C. Cir. September 30, 2016), does not mince words. According to the court, the only possible justification the NLRB could have had for pursuing this action was to flex its regulatory muscle and make the company pay, both literally and figuratively. It concluded that an attorney’s fee sanction was warranted because of the NLRB’s bad faith litigation tactics, stressing that the Board’s bad faith can be explained only by a belief that it holds itself “above the rest.”
But as the court concluded, the NLRB miscalculated its hierarchical position; the last word will always go to the courts, not the administrative agencies pushing their own particular agendas.
While the D.C. Circuit’s ruling cannot force the NLRB to change its policy of ignoring court rulings it does not like, the Board might want to heed this admonition from the court: “In 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.”
A copy of the D.C. Circuit’s decision in Heartland is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.