observing, in our circuit’s first embrace of nonacquiescence, it would be “unwise” to oppose it, “particularly in light of the instances in which positions taken by the Board were first repeatedly rejected by a large number 9 of circuits, then accepted by others, and later accepted by the Supreme Court”
How later courts described this case
- observing, in our circuit’s first embrace of nonacquiescence, it would be “unwise” to oppose it, “particularly in light of the instances in which positions taken by the Board were first repeatedly rejected by a large number 9 of circuits, then accepted by others, and later accepted by the Supreme Court”
- declining to agree or disagree with criticism of Board but noting that "[a]n agency with nationwide jurisdiction is not required to conform to every interpretation given a statute by a court of appeals"
- in evaluating employment under the National Labor Relations Act, “[w]hen a driver pays a fixed rental, regardless of his earnings on a particular day, and when he retains all the fares he collects without having to account to the company in any way, there is a strong inference that the cab company involved does not exert control over ‘the means and manner’ of his performance.”
- suggesting that administrative agency may decline to follow circuit court decisions with which it disagrees even within same circuit
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge,
concurring:
I concur in all of the court’s opinion except for Part IV. I cannot concur with the condemnation of Board behavior contained in that Part. Although a number of circuit courts have voiced similar condemnations of the Board’s practice of adhering to positions even after numerous circuit courts have refused enforcement, see, e.g., Allegheny General Hospital v. NLRB, 608 F.2d 965 , 968-970 (3d Cir.1979); Ithaca College v. NLRB, 623 F.2d 224 , 227-230 (2d Cir.1980), I believe the better position was that taken by the Fifth Circuit when confronted with analogous behavior in S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 , 1278-1279 (5th Cir.1981). There the agency “respectfully decline[d] to follow” controlling precedent, arguing “that an administrative agency charged with the duty of formulating uniform and orderly national policy in adjudications is not bound to acquiesce in the views of the U.S. courts of appeals that conflict with those of the agency.” Chief Judge Godbold’s opinion “assume[d] without deciding that the Commission is free to decline to follow decisions of the courts of appeals with which it disagrees, even in cases arising in those circuits” (footnote omitted), but pointed out that a circuit court panel did “not have that freedom but must follow the precedent set by prior panels * * * until and unless they *385 are reversed by the court en banc or by the Supreme Court.” To go beyond Chief Judge Godbold’s view may be unwise, particularly in light of the instances in which positions taken by the Board were first repeatedly rejected by a large number of circuits, then accepted by others, and later accepted by the Supreme Court. See, e.g., Charles D. Bonnano Linen Service, Inc. v. NLRB, 454 U.S. 404 , 102 S.Ct. 720 , 70 L.Ed.2d 656 (1982) (Court upheld Board’s position that had initially been rejected by five circuits and then accepted by two, including one which had previously rejected it); NLRB v. Enterprise Ass’n of Steam Pipefitters, 429 U.S. 507 , 97 S.Ct. 891 , 51 L.Ed.2d 1 (1977) (Court upheld Board’s position that had initially been rejected by five circuits and then accepted by two).