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House Republicans Continue Legal Effort to Block NLRB’s Unlawful Poster Regulation

House Republicans have filed an amicus brief in support of legal efforts to overturn the National Labor Relation Board’s (NLRB) poster regulation. Issued by the board in August 2011, the controversial regulation requires virtually every private employer to post in the workplace a biased and vague notice of employees’ labor rights.

In response to the board’s action, organizations representing workers and employers initiated a legal challenge to nullify the rule and on April 13, 2012 the U.S. District Court of South Carolina struck down the regulation. Echoing the legal concerns raised by congressional Republicans in an earlier brief, the decision by U.S. District Judge David Norton held that the NLRB lacked the statutory authority to require employers to post the notice. In response, the NLRB has appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.

Congressional Republicans are now urging the federal appeals court to uphold the district court decision. As the brief states, "The Amici House Members have an interest in seeing that legislative choices made by Congress are not usurped by agencies that exceed their authority or create obligations that are contrary to federal law."

The congressional brief raises two critical legal issues:
1. Congress has not granted the board the authority to require a general notice posting by employers. Unlike the National Labor Relations Act, other labor and employment laws explicitly authorize notice postings. Absent that explicit authority, and a clear intent by the authors of the National Labor Relations Act to withhold that authority, the board’s regulation exceeds its lawful powers; and

2. Congress has restricted the board’s authority to actual parties, in pending cases, and adjudicated facts based on an evidentiary hearing. The limited scope of the board’s authority is central to the law’s constitutional standing, and it cannot be expanded at the whim of the current board majority.

To read the amicus brief, click here.

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