Heartland Plymouth Court MI, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 30 September 2016
• Docket Number: No. 15-1034,C/w No. 15-1045,15-1034
• Parties: Heartland Plymouth Court MI, LLC, doing business as Heartland Health Care Center–Plymouth Court, Petitioner/Cross–Respondent v. National Labor Relations Board, Respondent/Cross–Petitioner
• Court: U.S. Court of Appeals — District of Columbia Circuit

838 F.3d 16

Heartland Plymouth Court MI, LLC, doing business as Heartland Health Care Center–Plymouth Court, Petitioner/Cross–Respondent

v.National Labor Relations Board, Respondent/Cross–Petitioner

No. 15-1034

C/w No. 15-1045

United States Court of Appeals, District of Columbia Circuit.

Decided September 30, 2016

Charles P. Roberts III, Constangy, Brooks, Smith & Prophete LLP, argued the case for Petitioner/Cross–Respondent. With him on the briefs was Clifford H. Nelson, Jr., Attorney.

Paul A. Thomas, Trial Attorney, Contempt, Compliance, and Special Litigation Branch, National Labor Relations Board, argued the cause for Respondent/Cross–Petitioner. With him on the briefs were Dawn L. Goldstein, Deputy Assistant General Counsel and David H. Mori, Supervisory Attorney.

Before: Brown and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Millett

.

Brown

, Circuit Judge:

Heartland Plymouth Court MI, LLC (“Heartland”) successfully petitioned this Court to review an Order of the National Labor Relations Board (“the Board” or “NLRB”). The Order found Heartland violated its collective-bargaining agreement by failing to bargain over the effects of reducing employee hours. In granting the petition, we also denied the Board's cross-application to enforce its Order. Neither outcome was a surprise. As we explained in our Judgment, and as this Court had explained over a decade earlier, we possess a “fundamental and long-running disagreement” with the Board over “whether an employer has violated section 8(a)(5) of the National Labor Relations Act [NLRA] when it refuses to bargain with its union over a subject allegedly contained in a collective[-]bargaining agreement.” See Enloe Med. Ctr. v. NLRB , 433 F.3d 834, 835 (D.C. Cir. 2005)

. 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.”

Emphasizing the real-world consequences of forcing parties to waste time and resources litigating, Heartland moves here for an award of attorney fees. In response, the Board provided a sweeping—and startling—defense of its nonacquiescence policy. The Board said it would be justified in refusing to apply the law of any circuit. The Board's logic makes no exception for the scenario in Heartland's case, where the Board knew that it would end up in a circuit with adverse law. Nor does the Board reject nonacquiescence when any presentation would be a putsch—i.e. , when no circuit at all supports the Board's legal position . See NLRB Atty Fee Resp. Br. at 13 & n.8. Because the Board's actions go beyond whatever limited justification nonacquiescence may have, we agree with Heartland that the Board is guilty of bad faith, grant Heartland's motion for attorney fees, and award it $17,649.00.

I. Factual Summary

Our Judgment already details the facts giving rise to the Board's NLRA suit against Heartland, and we need not repeat them here. See Dkt. No. 1611466 (hereinafter “Judgment”). For purposes of nomenclature, however, 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. Our precedent, in contrast, consistently rejects that view; considering the contents of a collective-bargaining agreement is a question of “contract coverage.” This difference will manifest itself in the Board's conduct before our Court, which informs Heartland's motion for attorney fees.

Heartland first appealed the Board's adverse Order to our Court in 2013. See Case No. 13–1227. Due to the Supreme Court's pending decision in NLRB v. Noel Canning , ––– U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014)

, Heartland's appeal was held in abeyance. When the Supreme Court found the recess appointments of two Board members unconstitutional, the Board set aside its Order against Heartland, and moved to dismiss Heartland's appeal. We granted the Board's motion; the Board reassigned Heartland's case to a new panel—now properly comprised of Senate-confirmed Board members—and readopted its prior Order. See JA 533–34. Unsurprisingly, Heartland appealed the Order here again. The Board, too, knew that this was Heartland's second appeal to the D.C. Circuit. See NLRB Merits Br. Cert. as to Parties, Rulings, and Related Cases (“The ruling under review has previously been before the Court.”); NLRB Atty Fee Resp. Br. at 4 (“On January 29, 2015, a panel of the reconstituted Board issued a new Decision and Order incorporating its earlier decision by reference .”) (emphasis added).

Given our well-established “contract coverage” precedent, Heartland's second appeal was pre-ordained.¹ Accordingly, Heartland's petition was granted, and the Board's cross-petition to enforce its Order denied, in an unpublished Judgment without oral argument. See FED. R. APP. 34(a)(2)

;

D.C. CIR. R. 34(j)

; D.C. CIR. R. 36(d). As we said, “[t]he Board's refusal to adhere to our precedent dooms its decision before this court.” Judgment at 2. While our Court previously recognized the Board's right of nonacquiescence, see

Enloe , 433 F.3d at 838, we did so with a certain end in mind. See Judgment at 2. Namely, we presumed the Board would recognize a stalemate with our case law, one resolvable by seeking certiorari to the Supreme Court. See

Enloe , 433 F.3d at 838.

In this case, the Board neither confessed the error of the Order against Heartland under our law, nor sought to preserve its argument against our precedent for certiorari (or even en banc reconsideration). The Board did not seek a transfer to the Sixth Circuit either. The Sixth Circuit embraces the Board's “clear and unmistakable” waiver policy. See, e.g. , Beverly Health and Rehab. Servs., Inc. v. NLRB , 297 F.3d 468, 480 (6th Cir. 2002)

. Further, Michigan, covered by the Sixth Circuit, is where Heartland's operations exist and where the conduct underlying the Board's dispute occurred. See Judgment at 1–2. It is thus the only other jurisdiction in which the NLRA permits an appeal on these facts. See 29 U.S.C. § 160(f) (permitting petitions to review the Board's decisions to be filed “in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein [any aggrieved] person resides or transacts business, or in the United States Court of Appeals for the District of Columbia”).²

In lieu of its legitimate options, the Board chose obstinacy. The Board cross-petitioned our Court to enforce its Order. In its responsive brief, the Board spent several pages asking us to uphold its “clear and unmistakable” waiver policy here. See NLRB Merits Br. at 17–20. Our adverse precedent made only a cameo appearance, where the Board spent a few sentences on an illusory distinction. See id. at 21–22 (stating Enloe

does not apply “[b]ecause the effects of the change in hours are not matters that were covered by the parties' agreement,” so, to the Board, “the contract coverage doctrine does not play a role”). The Board's tactics forced Heartland to waste resources in replying. See Heartland Merits Reply Br. at 2–3, 8–10.

Given the Board's behavior, it is little wonder that when Heartland moved for attorney fees, it sought fees under both the “not-substantially-justified” and “bad faith” provisions of the Equal Access to Justice Act. See 28 U.S.C. § 2412(b)

(allowing “bad faith” attorney fee awards against the United States government); § 2412(d)(1)(A) (allowing attorney fee awards against the United States government “unless the court finds ... the position of the United States was substantially justified....”).³ Though Heartland also argues for attorney fees related to the Board's conduct at the administrative level, our award applies only to the Board's conduct before our Court.

Replying to Heartland's motion, the Board referenced its general policy of flouting any circuit's NLRA interpretation with which the Board disagrees—a policy described colloquially as “nonacquiescence.” The Board's rationale for nonacquiescence is two-fold: (1) the NLRA's multi-venue provision, see 29 U.S.C. § 160(f)

, 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. See NLRB Atty Fee Resp. Br. at 13–14. The Board ignores the fact that these two rationales invoke different forms of nonacquiescence. But, the breadth of the Board's argument reveals the first reason is largely delusory. The second reason—a species of nonacquiescence known as “intracircuit nonacquiescence”—provides the Board's overarching rationale. The Board thinks its right to disagree extends beyond preferring one circuit's position to another in a split, but also includes “stak[ing] out its own position contrary” to any circuit. See

id. at 13. The Board identifies no limit to its nonacquiescence. Neither the Board's abusive tactics nor the extremism asserted in opposition to Heartland's motion for attorney fees are justified.

II. The Propriety of Nonacquiescence

We begin first with the goal of nonacquiescence, as stated by the Board itself over sixty years ago: to “achieve[ ]” “a uniform and orderly administration of a national act, such as the [NLRA].” See Ins. Agents Int'l Union , 119 NLRB 768, 773 (1957)

. By “determin[ing]” “whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme...