The NLRB has for some years stubbornly held that a union does not waive its right to bargain over a mandatory subject of bargaining unless there is clear and unmistakable waiver language in the collective bargaining agreement or otherwise. The Board also says that a union doesn’t waive its right to bargain merely because the subject matter is covered in the agreement. Even where a waiver is arguably clear and unmistakable, the Board regularly engages in hairsplitting to find that the parties to the collective bargaining agreement had not covered the specific circumstances at issue in the case. Thus, the Board frequently rules against employers who assert that a management rights clause allowed the employers to take action without bargaining over the decision or the effects of the decision.

Because of the Board’s position, employers regularly back down and choose to bargain rather than rely on their contract rights, to avoid lengthy and costly litigation at (and against) the Board. However, not all U.S. courts of appeal agree with the Board, specifically including the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit will find a waiver if the parties in their agreement “covered” the subject.

In the recent case of Heartland Plymouth Court MI v. NLRB, the nursing home employer had a collective bargaining agreement with a union that expressly allowed it to reduce hours or staff, and it conducted a layoff during the contract term without bargaining with the union. The union filed a charge, alleging that Heartland had violated its duty to bargain. The Regional Director issued a complaint, and the Board ultimately found that Heartland had violated the NLRA.

Heartland sought review at the D.C. Circuit, and the Court, following its precedent, refused to enforce the Board’s decision.

That’s good. But it gets better.

Heartland then asked the Court to require the Board to pay Heartland’s attorneys’ fees and costs because the Board continued to fight on appeal, even though the legal precedent in that circuit was clearly against it. The D.C. Circuit, in a scathing opinion, took the Board to task for what the Court called a “roguish form of nonacquiescence” to the Court’s precedential rulings. The Court criticized the Board’s approach in the case, which the Court saw as essentially one where the Board said, “We don’t care what the law says, if you want to beat us, you will have to fight us.” The Court also noted that the Board previously had ample opportunity to take the issue up to the Supreme Court but had chosen not to do so. Ultimately, because of the Board’s litigation “nonacquiescence” and “abusive tactics,” the Court awarded Heartland more than $17,000 in attorneys’ fees and costs related to the appeal.