The National Labor Relations Board has been criticized for its nonacquiescence policy, under which the Board interprets the national Labor Relations Act, issues an order, and then defends this order before a circuit court that previously had rejected the Board's interpretation of the Act. In this Article, Professor Rebecca White begins by stating that the NLRB's nonacquiescence policy is both lawful and proper. From this basic premise, White then argues that courts of appeals should abandon the "law of the circuit" doctrine when confronting Board nonacquiescence. She contends the policy concerns that justify application of the "law of the circuit"-- which include providing guidance and certainty to district courts, lawyers, and parties -- are not applicable when a court of appeals confronts a Board order that conflicts with a prior circuit decision. White concludes that a retreat from a rigid application of circuit law in this area would decrease forum shopping and increase uniformity of federal labor law.
Rebecca H. White,
Time for a New Approach: Why the Judiciary Should Disregard the "Law of the Circuit" When Confronting Nonacquiescence by the National Labor Relations Board
Available at: https://digitalcommons.law.uga.edu/fac_artchop/325