NLRB Ordered to Pay Up for ‘Bad Faith Litigation’

Judge: labor arbiter guilty of ‘administrative hubris’

September 30, 2016

A federal judge on Friday ordered the nation’s top labor arbiter to pay a company’s legal fees after the agency engaged in "administrative hubris" and "bad faith litigation."

Washington, D.C., Appeals Court Judge Janice Rogers Brown said that the National Labor Relations Board wrongfully ruled that Heartland Health Care Center violated its collective bargaining agreement by reducing employee hours. Judge Brown ruled that the agency, which oversees labor disputes and union elections, took actions beyond the scope of federal law. She ordered the agency to pay the company nearly $18,000 in legal fees, which were incurred by "bad faith litigation" on the agency’s part.

"The Board’s conduct before our Court makes out a clear case of bad faith litigation. …The Board’s obstinacy forced Heartland to waste time and resources fighting for a freedom the Board knew our precedent would provide," the ruling said. "It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs"

Brown, who was appointed to the Court of Appeals by George W. Bush after a lengthy filibuster from Senate Democrats, said that judges have allowed executive agencies to expand beyond the scope of congressional intent. She called on her fellow judges to rein in executive overreach in labor matters and other regulatory affairs.

"Let the word go forth: for however much the judiciary has emboldened the administrative state, we ‘say what the law is,’" she wrote. "Administrative hubris does not get the last word under our Constitution. And citizens can count on it."

Judge Patricia Millett, who was appointed to the court after Senate Democrats invoked the nuclear option to overcome Republican filibusters, dissented from Brown’s majority, just weeks after criticizing the board for overlooking sexist and racist insults during union strikes. She said that she was not persuaded that the board’s actions met the "extraordinary standards" for determining "bad faith litigation."

"This case, by its terms, does not implicate at all the majority opinion’s concerns about a Board refusal to acquiesce in the face of uniformly adverse circuit precedent," Millett said.

The agency, which requested $275 million for the 2017 fiscal year, can afford to settle the legal fees, according to Brown. She said that forcing the board to pay attorney fees would send a message beyond the relatively meager pay out.

"We recognize the Board’s unimpeded access to the public [funds] means these modest fees can be dismissed as chump change. But money does not explain the Board’s bad faith; ‘the pleasure of being above the rest’ does," she said.

The NLRB did not return request for comment.

Published under: NLRB