The nurses who lost their jobs thanks to Trump’s new labor secretary nominee
Bryce Covert

The law is what the courts say it is (Marbury v. Madison). Acosta is well within the mainstream on this issue. The NLRB is not empowered to carve out the exception you want. We have had too much of administrative agencies disregarding the law and the decisions of the courts placed over them. The NLRB has been a particularly bad offender. If you do not like the statute passed by congress, get it changed legitimately, not by subverting it. The fact that some previous NLRB contingent ruled otherwise is a poor basis for your position, but typical of mushy liberal jurisprudence, which hopefully will be declining.

Acosta appears to be a strict constructionist and a careful scholar. I assume you prefer judges who try to rewrite the law according to their own lights or what feels good.

Your effort to demonize him will resonate with those who share the Bader-Ginsberg philosophy and gull the ignorant, but probably won’t win many converts.


Section 8(g) expressly states that before commencing a strike at a health care institution a union “shall, not less than ten days prior to such action, notify the institution in writing” and that the “notice shall state the date and time that such action will commence.” The meaning of this mandatory language could not be plainer or the Congress’s intent in enacting it clearer. The notice must provide ten days notice of a strike specifying the day and time it is to occur. Neither the initial notices the locals sent on March 14–15, 1996 nor the “extension” sent on March 27 satisfy this requirement. Although the former provided adequate notice of a strike to commence on April 29, as it turned out the strike did not begin until three days after that date; the extension, on the other hand, accurately identified the date of the strike but did not afford the requisite ten days’ notice. Nor do either fall within the single statutory exception to the otherwise rigid notice requirement: that “[t]he notice, once given, may be extended by the written agreement of both parties.”

Despite the plain meaning of the statute, the Board contends that it is somehow ambiguous because it does not expressly state that agreement of the parties is the only means to obtain an extension. No such express provision is necessary. If the Congress had intended to allow either party to extend the notice unilaterally, it could easily have said so — but it did not. Instead the Congress carved out but a single express exception — when both parties consent in writing — an exception that would be unnecessary if either party could unilaterally extend the notice at will. This is a case where “the cannons [sic] of avoiding surplusage and expressio unius are at their zenith” because “they apply in tandem.” Independent Ins. Agents, Inc. v. Hawke, 211 F.3d 638, 645 (D.C.Cir.2000) (citing Halverson v. Slater, 129 F.3d 180, 184–86 (D.C.Cir.1997)). The Board’s ambiguity argument therefore fails.

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