J.G. Kern Enterprises, Inc. v. National Labor Relations Board

Under the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB” or the "Board”) is charged with protecting the right of employees to engage in concerted, protected activity including union representation, and to refrain from such activity/representation. 29 U.S.C. § 157. The NLRB reviews complaints of unfair labor practices under the NLRA to determine if any such unlawful conduct has occurred by preponderant evidence. 29 U.S.C. § 160(c). The Board is bound by the Administrative Procedure Act (“APA”) to adhere to valid and consistent precedents and policies, absent a non-arbitrary explanation for reversing the agency’s applications of the law. 5 U.S.C. § 706(2)(A). This Court has recently held that reviewing courts should not defer to interpretations of law by agencies governed by the APA; rather, courts must independently decide a statute’s “best meaning.” Loper Bright Enterprises v. Raimondo, Nos. 22-451 and 22-1219, 144 S. Ct. 2244 (2024) (overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). With this background, the questions presented here, on which the circuits are split, are:

1. Whether the NLRB is precluded from relying on precedent vacated by a court of appeals in issuing an order that is arbitrary and capricious;

2. Whether courts of appeal following Loper Bright are precluded from enforcing NLRB orders that ignore court rulings under the NLRB’s so-called “non-acquiescence” doctrine.