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
BORK, Circuit Judge,
concurring:
I concur in Judge MacKinnon’s incisive and thorough opinion in almost all respects. Since decision of this case does not require it, however, I have not studied the Board’s past conduct in the detail necessary either to agree or disagree with his strong criticism of the Board. That is not to say that I do not think some criticism warranted. An agency with nationwide jurisdiction is not required to conform to every interpretation given a statute by a court of appeals. In this case, however, the Board appears less to have been seeking reconsideration of a legal issue than trying to achieve a desired result by a somewhat disingenuous treatment of the facts.