Nursing Home Wins Fee Award Due to NLRB "Obstinacy"

Employment Law

The National Labor Relations Board has been ordered by the D.C. Circuit to pay more than $17,000 in attorney's fees to a Michigan nursing home for engaging in bad faith, "nonsensical" litigation.  The court rebuked the NLRB for filing a cross-appeal that it knew would not succeed in an effort to force the nursing home to pay more in legal fees to fight the Board's claims.  The Board’s view of the law in the relevant area has been adopted by other circuits but repeatedly rejected by the D.C. Circuit.  The court stated that a "general policy of flouting any circuit’s NLRA interpretation with which the Board disagrees" was not an adequate justification for the litigation.  In its rebuke, the court called the Board’s actions "a stubborn refusal to recognize any law" and that its "reasoning is nonsensical" based on the court’s precedent.  The Board was "asking the court to do what no private litigant ever could” by filing an argument in a court where existing precedent expressly opposes their contentions, which the court considered to be "intolerable."  It was clear to the court that "the Board's conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs: 'Even if we think you will win, we will still make you pay.'" The court found the totality of the Board’s actions to warrant reimbursement of legal fees based on a bad faith litigating strategy that "speaks for itself."