Dissenting Opinion Challenges NLRB's Authority to Impose Workplace Notice‑Posting Rule

54038 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations No Statutory Authority for the Proposed Rule The majority concedes that the “National Labor Relations Act does not directly address an employer’s obligation to post a notice of its employees’ rights arising under the Act or the consequences an employer may face for failing to do so.”’ In fact, the NLRA 173 makes no mention of any such putative obligation. The majority further acknowledges that the NLRA “is almost unique among major Federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces informing employees of their statutory rights.’’ Despite the obvious import of these admissions, the majority concludes that the Board’s plenary authority under Section 6 of the Act to make rules “necessary to carry out the provisions of the Act” permits promulgation of the rule they advocate. I disagree. Congress did not give specific statutory authority to the Board to require the posting of a general rights notice when it passed the Wagner Act in 1935. Just one year earlier, however, Congress amended the Railway Labor Act (“RLA’’) to include an express notice-posting requirement. 45 U.S.C. 152 Eighth; Pub. L. No. 73-442, 48 Stat. 1185, 1188 (1934). As the Supreme Court noted, the RLA served as the model for the National Labor Relations Act. NLRBB v. Pennsylvania Greyhound Lines, 303 U.S. 261 (1938). See also NLEB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 44 (1937); H. J. Heinz Co. v. NLRB, 311 U.S. 514, 524-525(1941). That Congress did not include an express notice-posting requirement when passing the Wagner Act the following year strongly implies, if not compels, the conclusion that Congress did not intend for the Board to have regulatory authority to require such a notice. Nothing in the legislative history hints of any concern by Congress about the need for employers to notify employees generally of their rights under the new enacting statute. Since 1935, despite extensive revisions in the Taft-Hartley Act amendments of 1947 and the Landrum-Griffin Act amendments of 1959, Congress has never added such authority. On the other hand, when Congress has subsequently desired to include a general rights notice-posting requirement, it has done so expressly in other federal labor and employment 173 Throughout this dissent, I will refer generally to the statute we administer as the NLRA, unless the discussion focuses on a specific historical version, such as the Wagner Act. laws. See Title VII of the Civil Rights Act of 1964 (Title VID), 42 U.S.C. 2000e—10, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 627, The Occupational Safety and Health Act, 29 U.S.C. 657(c), the Americans with Disabilities Act (ADA), 42 U.S.C. 12115, the Family and Medical Leave Act (FMLA), 29 U.S.C. 2619(a), and the Uniformed Service Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4334(a). The majority points out that the Department of Labor (DOL) promulgated a notice-posting rule under the Fair Labor Standards Act (FLSA), although that statute does not contain a specific statutory provision on workplace postings. However, the FLSA, unlike the NLRA, imposes a data-collection and recordkeeping requirement on employers. 29 U.S.C. 211{c). DOL’s Wage and Hour Administrator promulgated the notice-posting regulation in 1949 in reliance on this requirement. It appears that the propriety of the FLSA rule has never been challenged, perhaps because, unlike the rule promulgated herein, there are no citations or penalties assessed for the failure to post. This is a significant point of distinction that warrants further discussion. It must be constantly borne in mind that the rule promulgated today makes the failure to post the required notice a violation of the Act. The majority misleadingly seeks to decouple obligation from violation in its analysis by discussing the latter in the context of enforcement of the assertedly lawful notice-posting rule. That is nonsense. Making noncompliance an unfair labor practice is integral to the rule and, consequently, integral to an analysis of whether the notice-posting requirement is a permissible exercise of the Board’s rulemaking authority. Of the aforementioned agencies that have notice-posting requirements, none of them makes the failure to post unlawful, absent additional specific statutory authorization. Only the RLA, Title VII, FMLA, and the Occupational Safety Act (OSHA) have such authorizing language. ADA, the ADEA, the FLSA, and the USERRA do not. Consequently, an employer’s failure to post a notice under those statutes is not subject to sanction as unlawful. Thus, both before and after the Wagner Act, Congress has consistently manifested by express statutory language its intent to impose a general notice-posting duty on employers with respect to the rights of employees under various federal labor laws. Only one administrative agency promulgated a notice-posting requirement in the absence of such language in its enabling statute. No agency has made the failure to comply with a notice-posting requirement unlawful absent express statutory authorization, until today. The explicit inclusion of notice- posting provisions and permissible sanctions by Congress in other labor legislation undercuts the majority’s claim that this notice-posting rule is not a “major policy decision properly made by Congress alone.” Strangely, the majority does not merely contend that this pattern in comparable labor legislation fails to prove that Congress did not intend that the Board should have the rulemaking authority under Section 6 to mandate the notice posting at issue here. They conversely contend that it proves Congress must have intended to confer such authority on the Board! 174 Perhaps cognizant of the weakness of this position, the majority attempts to downplay the import of Congressional silence on the Board’s authority to mandate notice posting and to enforce that mandate through unfair labor practice sanctions. They cite Cheney R.R. Co. v. ICC, 902 F. 2d 66, 68-69 (D.C. Cir. 1990), for the proposition that the maxim “‘expressio unius est exclusio alterius,” which holds that the special mention of one thing indicates an intent for another thing not be included elsewhere, may not always be a useful tool for interpreting the intent of Congress. Obviously, the usefulness of this tool depends on the context of a particular statute. Independent Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000) (applying the maxim). In my view, the absence of an express notice provision in the NLRA, and the failure to amend the Act to include one when Congress expressly included notice posting provisions in other labor statutes, shows that it did not intend to authorize the Board to promulgate this rule.175 Arguing to the contrary, the majority asserts that the notice-posting rule is 174 Of course, this reasoning would seem to dictate that the failure of the Board to inform its own employees of their general rights under the Federal Labor Relations Act is an unfair labor practice, even though that statute imposes no such express requirement. To date, I am not aware that this agency, or any other, views itself as subject to such an enforceable obligation. 175 The majority contends that the fact that the rule comes 76 years after the NLRA was enacted is not a “condition of validity.” Mayo Foundation for Medical Education and Research v. United States, 131 S.Ct. 704, 713-14 (2011) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740 (1996) (“neither antiquity nor contemporaneity with the statute is a condition of validity.”). I have no problem with that proposition, but if the Board lacks statutory authority to promulgate a rule, it is of no matter that it attempts to do so in year 1 or year 76 of its existence. HOUSE_OVERSIGHT_022309