I understand the need to “push the envelope” when you sit in the position of being a prosecutor, as does the General Counsel for the NLRB, but the Board itself does not sit in that role. Nor should it ignore the legal directions of the Supreme Court, and other courts of this land, which have clearly indicated that its position in D.R. Horton simply oversteps the bounds of legal authority. And in continuing to ignore these decisions, the Board simply loses credibility in the legal community.
The Board, once again, continues in its trend of losing such credibility with its recent decision in the case of Murphy Oil USA. Members Harry Johnson and Philip Miscimarra do a thorough job, in their respective dissents in that case, laying out the reasons why D.R. Horton is not supported by the case law. Each dissent is not an academic paper in which their determinations and arguments rely solely on extrapolating from current legal theories, but rather, they simply restate the law that is currently in place. There are no surprises here. This has all been said before by many others.
So now a procedure that worked so well in the real world for both employees and employers in resolving workplace disputes is hampered in its continued implementation by the Board’s needless adherence to a position that is legally unsupportable. At this point, if there is ever a case for sanctions for filing a frivolous appeal, this is one, if the Board continues in its efforts to push the D.R. Horton analysis further up to the Courts of Appeal. It is time to put this matter to rest, and perhaps this is the only effective means of insuring that it is done sooner versus later.