This week House Education and Workforce Chairman John Kline, along with 35 of his colleagues, filed an amicus brief with the DC Circuit Court in support of the NAM suit against the NLRB regarding the posting requirement. The NAM suit contends the NLRB does not have the authority under the National Labor Relations Act to compel employers subject to the Act to post a notice in their workplace. In addition, the NAM questions the Board’s ability to create a new unfair labor practice without Congressional action.
The amicus brief filed by Chairman Kline and other Members of Congress makes a compelling argument that “the NLRA and its legislative history demonstrate that the Board exceeded its authority, and acted contrary to the NLRA, by creating a notice obligation imposed on employers that are not parties to pending unfair labor practice or representation proceedings.” The brief gives the Court a well constructed history of the National Labor Relations Act and other similar statutes enacted by Congress to illustrate its intent – which clearly demonstrates Congress did not intend for the NLRB to have the authority to require all employers to post notices. The absence of any express authority for the NLRB to issue notice requirements is an important point, particularly given other labor-related acts included such authority.
Henry David Thoreau once said, “In human intercourse the tragedy begins, not when there is misunderstanding about words, but when silence is not understood.” It seems Thoreau’s observation also applies to government agencies that misinterpret silence and use it as justification for interjecting itself into areas in which it has no authority.
Reply briefs are due on November 22nd and the Court has scheduled oral argument for December 19th. A decision from the Court is expected prior to the January 31 effective date of the rule.
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