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

Alexander MacDonald*

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.¹ 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.²

So it was on September 10, 1987, when he filed a blistering dissent in Arvin Industries.³ 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?⁴ In one sense, the question had already been answered. The employer’s plant was in Alabama,⁵ 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.⁶ 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.⁷ So a Board majority disregarded the court’s view, followed its own rule, and allowed the complaint to go forward.⁸

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.⁹ 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.¹⁰ 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.¹¹

Dotson resigned only three months later.¹² And in separately published articles, he continued to lob criticisms at nonacquiescence.¹³ 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.¹⁴ It has done so even in the face of scholarly criticism,¹⁵ judicial rebukes,¹⁶ and sanctions for badfaith litigation.¹⁷ Even today, it asserts the right to ignore judicial decisions in favor of its own views of the law.¹⁸

© 2025 Alexander MacDonald. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Alexander MacDonald is a shareholder at Littler Mendelson P.C., and a co-chair of Workplace Policy Institute. He practices labor law and administrative law in Washington, DC.

1 See, e.g., Dotson Resigning from NLRB, Wash. Post (Dec. 7, 1987), https:// www.washingtonpost.com/archive/politics/1987/12/08/dotson-resigning-from-nlrb /d7170b88-5f56-4ebf-ab3d-8faf1ef0982e/ [https://perma.cc/Z8MY-J9LG] [hereinafter Dotson Resigning] (describing controversies during Dotson’s term as chair); Steven Greenhouse, Labor Board Stirs Up a Storm, N.Y. Times (Feb. 5, 1984), https://www.nytimes.com /1984/02/05/business/labor-board-stirs-up-a-storm.html [https://perma.cc/Z94KLSGG] (same).

2 See Dotson Resigning, supra note 1 (observing that Dotson often found himself in dissent in latter part of his term).

3 See Arvin Indus., 285 N.L.R.B. 753 (1987).

4 See id. at 753–54.

5 Id. at 763.

6 See Benson v. Gen. Motors Corp., 716 F.2d 862, 863–64 (11th Cir. 1983) (holding that statute of limitations under 29 U.S.C. § 160(b) started to run when employees should reasonably have learned of the agreement).

7 See Arvin Indus., 285 N.L.R.B. at 753, 755–56.

8 See id. at 756.

9 See id. at 761–62 (Dotson, dissenting).

10 Id. at 761 (citing 29 U.S.C. § 160(e), (f) (2018)).

11 Id. at 762 (footnotes omitted).

12 See Dotson Resigning, supra note 1.

13 See Donald L. Dotson & Charles M. Williamson, NLRB v. the Courts: The Need for an Acquiescence Policy at the NLRB, 22 Wake Forest L. Rev. 739 (1987) (calling for an end to nonacquiescence).

14 See, e.g., D.L. Baker, Inc., 351 N.L.R.B. 515, 529 n.42 (2007) (setting out nonacquiescence policy); Pathmark Stores, Inc., 342 N.L.R.B. 378, 378 n.1 (2004) (“It has been the Board’s consistent policy for itself to determine whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court’s opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise.” (quoting Iowa Beef Packers, Inc., 144 N.L.R.B. 615, 616 (1963))); Gas Spring Co., 296 N.L.R.B. 84, 97 (1989) (rejecting employer’s argument based on a circuit case denying enforcement because the court’s decision did not reflect “Board law”); see also W. Cab Co., 365 N.L.R.B. 761, 761 n.4 (2017) (criticizing administrative law judge for applying circuit rather than Board precedent).

15 See, e.g., Ross E. Davies, Remedial Nonacquiescence, 89 Iowa L. Rev. 65, 77–78, 101109 (2003) (criticizing Board for using nonacquiescence to impose remedies it could not otherwise impose under applicable circuit law); Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz, 99 Yale L.J. 801, 814–20 (1990) (concluding that Board’s nonacquiescence policy could not be justified in terms of venue uncertainty and uniformity, but instead, appears to reflect Board’s wishes to impose its own view of the law). But see Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 724–25, 739 (1989) (arguing that Board’s policy could be justified in some cases under principles of deference to administrative agencies under now-defunct Chevron doctrine).

16 See, e.g., Heartland Plymouth Ct. MI, LLC v. NLRB, 838 F.3d 16, 23–29 (D.C. Cir. 2016); NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537, 561 (6th Cir. 2015) (McKeague, J., dissenting); Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1067 (D.C. Cir. 2001); Glenmark Assocs., Inc. v. NLRB, 147 F.3d 333, 345 (4th Cir. 1998); NLRB v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74, 75 (9th Cir. 1987); Beverly Enters. v. NLRB, 727 F.2d 591, 592–93 (6th Cir. 1984); Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 357 & n.12 (6th Cir. 1983); Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979); see also Scott Kafker, Nonacquiescence by the NLRB: Combat Versus Collaboration, 3 Lab. Law. 137, 137 (1987) (“The response of the courts has been unanimous, unequivocal condemnation.”).

17 See Heartland Plymouth, 838 F.3d at 27, 20–29 (awarding fees under Equal Access to Justice Act for bad-faith nonacquiescence) (“[T]he Board’s candor-free approach to nonacquiescence asks this Court to let the Board do what no private litigant ever could: make legal contentions not warranted by existing law and supported by no argument for modifying, reversing, or establishing new law. This is intolerable.”); Enerhaul, Inc. v. NLRB, 710 F.2d 748, 751, 750–51 (11th Cir. 1983) (awarding Equal Access to Justice Act fees when Board sought to enforce order based on a legal theory “that ha[d] been clearly and repeatedly rejected” by the Eleventh Circuit).

18 See, e.g., Airgas USA, LLC, 373 N.L.R.B. No. 102, at *1 n.2 (Sept. 18, 2024) (refusing to change approach to remedies after rejection in circuit court “under the Board’s longestablished policy of nonacquiescence”); Nat’l Lab. Rels. Bd., Bench Book: An NLRB Trial Manual § 13-100 (Jeffrey D. Wedekind et al. eds., 2023) https://www.nlrb.gov/sites /default/files/attachments/pages/node-174/april-2023-bench-book.pdf [https:// perma.cc/HFJ6-ZHUF] (“Administrative law judges must follow and apply Board precedent, notwithstanding contrary decisions by courts of appeals, unless and until the Board precedent is overruled by the Supreme Court or the Board itself.”)