Uniformity, Loper Bright, and the National Labor Relations Board: Can the Board’s Nonacquiescence Policy Survive in a Post-Chevron World?

Authors

Alexander MacDonald, Workplace Policy Institute

Document Type

Essay

Abstract

As chairman of the National Labor Relations Board, Donald Dotson was nothing if not controversial. Though he headed the Board for five years, he was never shy about criticizing the Board’s practices. He often argued that the Board had skewed its policies toward organized labor and inserted itself in disputes best left to private negotiation. That criticism put him at odds with his fellow Board members and frequently landed him on the wrong side of divided opinions. Even members who shared his core philosophy sometimes shied away from joining his assaults on the Board itself.

So it was on September 10, 1987, when he filed a blistering dissent in Arvin Industries. On its face, the case presented a dry question of procedure: if an employee wanted to challenge an agreement between an employer and a union, how long did she have to file her charge? In one sense, the question had already been answered. The employer’s plant was in Alabama, and the relevant court of appeals, the Eleventh Circuit, had already found that an employee had six months from the date the agreement was signed. But in Arvin Industries, the Board disagreed. The Board thought the better rule was to start the clock anew every time the agreement was applied. So a Board majority disregarded the court’s view, followed its own rule, and allowed the complaint to go forward.

Dotson’s frustration was palpable. In dissent, he lamented that for decades, the Board had engaged in a policy of “nonacquiescence”—essentially, following the Board’s own view of the law even when that view clashed with judicial precedent. In his view, this policy was impossible to square with the relevant statute—the National Labor Relations Act (NLRA). The NLRA gave courts the authority to review the Board’s orders and set them aside when necessary. In other words, the statute subordinated the Board to the federal judiciary’s view of the law. And no amount of policy or practice could justify ignoring such an explicit statutory command:

Experience confirms that which is implicit in this grant of [judicial] authority: a Board decision will be enforced by a circuit court only when it accords with circuit precedent. Thus, however attractive the policy of nonacquiescence may have been as a response to the perceived need to promote a national labor policy, the simple fact remains that such a policy is legally untenable. It conflicts with fundamental tenets of our Federal system and ignores the plain language of the statute.

Dotson resigned only three months later. And in separately published articles, he continued to lob criticisms at nonacquiescence. But he never managed to change minds at the Board. Citing a need for national uniformity, the Board has continued to ignore circuit precedent in favor of its own legal views. It has done so even in the face of scholarly criticism, judicial rebukes, and sanctions for badfaith litigation. Even today, it asserts the right to ignore judicial decisions in favor of its own views of the law.

Recommended Citation

Alexander MacDonald, Uniformity, Loper Bright, and the National Labor Relations Board: Can the Board’s Nonacquiescence Policy Survive in a Post-Chevron World?, 100 Notre Dame L. Rev. Reflection 183 ().
Available at: https://scholarship.law.nd.edu/ndlr_online/vol100/iss3/3