NLRB Justifies Notice-Posting Rule Under NLRA Authority

54010 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations Statutory Authority, below, the Board believes that it has been Congressionally authorized to make this regulatory decision in the interests of carrying out the provisions of the Act. Many comments argue that the Board should heed the use of the word “necessary” in Section 6. For instance, the Portland Cement Association comments that Section 6 requires the Board to demonstrate that: (1) The specific rule being proposed is, in fact, necessary, and (2) the adoption of the proposed rule will carry out one or more specific provisions of the Act.?9 The Board believes, for the reasons expressed in subsection C, Factual Support, below, that the requisite showing of necessity has been made. And, as explained below, the adoption of the proposed rule is consistent with Section 1 and will help effectuate Sections 7, 8, 9 and 10 of the NLRA. The Board, however, disagrees with the Motor & Equipment Manufacturers Association’s assertion based upon the case of West Virginia State Board of Education v. Barnette *° that the Board needs to show “‘a grave and immediate danger’’ before enacting a rule. First, that case held that that very rigorous standard of review is required only where a First Amendment freedom is alleged to have been infringed. The Court further noted that where the First Amendment is not implicated, the government may regulate an area so long as it has a “‘rational basis” for doing so. As explained in subsection B, Statutory Authority, below, this rule infringes upon no First Amendment interests, and consequently, the rule should be judged on a standard similar to the “rational basis” test laid out in Barnette. It was in fact just such a deferential standard which the Supreme Court used to examine the Board’s health care rule in AHA. There, the Court found that even if it read Section 9 to find any ambiguity, it still would have deferred to the Board’s “reasonable interpretation of the statutory text,” and found the Board authorized under Sections 6 and 9 to enact the health care bargaining unit rule at issue.41 No “orave and immediate danger’ was found to be required prior to the Board enacting that rule. This ruling was also consistent with the Supreme Court’s earlier holdings in Thorpe and Mourning, in which regulations promulgated under broadly phrased grants of authority needed to be only 39 See also comment of Americans for Limited Government, citing to AFL-CIO v. Chao, 409 F.3d 377, 391 (D.C. Cir. 2005) for the same principle. 40319 U.S. 624, 639 (1943). 41499 U.S. at 614. “reasonably related to the purposes of the enabling legislation.” 42 For the reasons shown below, that standard is more than met in the present rule. B. The Board’s Statutory Authority To Issue This Rule 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. However, as stated, NLRA Section 6 empowers the Board to promulgate legislative rules “‘as may be necessary to carry out the provisions” of the Act. 29 U.S.C. 156. A determination of necessity under Section 6 made by the Board, as administrator of the NLRA, is entitled to deference. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002). Furthermore, even in the absence of express rulemaking authority, “the power of an administrative agency to administer a congressionally created * * * program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”’ Morton v. Ruiz, 415 U.S. 199, 231 (1974). Under the well-known test articulated by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), courts will defer to the Board’s reasonable interpretation of a gap left by Congress in the NLRA. An examination of the provisions of the whole law demonstrate how the notice-posting rule is a legitimate exercise of both legislative rulemaking authority under Section 6 and implied gap-filling authority under Chevron, 467 U.S. at 843. Section 1 of the NLRA explains that Congress deliberately chose the means of “encouraging the practice and procedure of collective bargaining” and ‘protecting the exercise of workers of full freedom of association, self-organization, and designation of representatives of their own choosing” in order to combat the substantial burdens on commerce caused by certain employer and labor union practices as well as by the inherent “inequality of bargaining power between employees * * * and employers.” 29 U.S.C. 151.48 Section 7 42 Mourning, 411 U.S. at 369 (quoting Thorpe, 393 U.S. at 280-81). 43 These regulations are entirely compatible with the national labor policy, as expressed in Section 1, “to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred.” 29 U.S.C. 151 (fifth paragraph). As explained below, the Board’s ability to “eliminate” the causes of labor strife and depressed wage rates, ‘““which have the intent or therefore sets forth the core rights of employees ‘“‘to self-organization’’; “to form, join, or assist labor organizations”; “to bargain collectively”; and “to engage in other concerted activities’; as well as the right “to refrain from any or all such activities.” Id. § 157. Section 8 defines and prohibits union and employer “unfair labor practices” that infringe on employees’ Section 7 rights, id. § 158, and Section 10 authorizes the Board to adjudicate unfair labor practice claims, id. § 160, subject to the NLRA’s procedural six-month statute of limitations, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11 (1982). Finally, Section 9 authorizes the Board to conduct representation elections and issue certifications. 29 U.S.C. 159. Notably, the NLRA does not give the Board or its General Counsel roving investigatory powers. Although the Board is specifically empowered to “prevent” unfair labor practices, id. § 160(a), “[t]he Board may not act until an unfair labor practice charge is filed * * * alleging a violation of the Act.” 2 The Developing Labor Law 2683 John E. Higgins, Jr. ed., 5th ed. 2006). In addition, certification “procedures are set in motion with the filing of a representation petition.” Jd. at 2662. In both instances, the initiating document is filed by a private party. Id. at 2683 (citing 29 CFR 102.9); id. at 2662-63 (citing 29 U.S.C. 159(c)(1)(A), (B), and (e)(1)). Enforcement of the NLRA and effectuation of Congress’s national labor policy therefore depend on the existence of outside actors who are not only aware of their rights but also know where they may seek to vindicate them within appropriate timeframes. The Department of Labor made a similar finding in an analogous rulemaking proceeding under the Fair Labor Standards Act: “effective enforcement of the [FLSA] depends to a great extent upon knowledge on the part of covered employees of the provisions of the act and the applicability of such provisions to them, and a greater degree of compliance with the act has been effected in situations where employees are aware of their rights under the law.”’ 14 FR 7516, 7516 (Dec. 16, 1949). Given the direct relationship between employees’ timely awareness of their rights under the NLRA and the Board’s necessary effect of burdening or obstructing commerce,” id., depends on workers’ knowledge of their rights and the protections provided by the NLRB. The Board therefore rejects the argument of the Manufacturer’s Association of South Central Pennsylvania that both the notice-posting rule and the Board’s general assertion of rulemaking authority are inconsistent with Section 1. HOUSE_OVERSIGHT_022281