HOUSE_OVERSIGHT_022282.jpg

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54011 ability to protect and enforce those rights, this rule is ‘‘necessary”’ for purposes of Section 6. Aside from the rule’s manifest necessity, the notice posting requirement fills a Chevron-type gap in the NLRA’s statutory scheme. Thus, as discussed, the purpose of Section 1, as implemented in Sections 7 and 8, is to encourage the free exercise and enforcement of the Act’s provisions, and fulfillment of that purpose depends on the private initiative of employees and employers to commence Board representation proceedings pursuant to Section 9 and Board unfair labor practice proceedings pursuant to Section 10. The effective working of the NLRA’s administrative machinery therefore presupposes that workers and their employers have knowledge of the rights afforded by the statute and the means for their timely enforcement. The statute, however, has no provision with respect to making that knowledge available, a subject about which the statute is completely silent. This statutory gap has always been present but was of less significance in earlier years when the density of union organization was greater, since, as is widely recognized, unions have been a traditional source of information about the NLRA’s provisions. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 531-32 (1992) (reaffirming that the Section 7 rights of employees interested in union organization depend to some extent on their having access to unions); Harlan Fuel Co., 8 N.L.R.B. 25, 32 (1938) (holding that the rights guaranteed to employees by Section 7 include “full freedom to receive aid, advice and information from others concerning [their self-organization] rights”’); cf. Chamber of Commerce of the United States v. Brown, 554 U.S. 60, 68 (2008) (observing that Section 7 “implies an underlying right to receive information’’). Moreover, as rates of unionization have declined, employees are less likely to have experience with collective bargaining or to be in contact with other employees who have had such experience. The statutory gap is thus now important to the Board’s administration of the NLRA and its role in enforcing employees’ rights. As the Supreme Court has observed, The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board. * * * Itis the province of the Board, not the courts, to determine whether or not the “need” [for a Board rule] exists in light of changing industrial practices and the Board’s cumulative experience in dealing with labor- management relations. For the Board has the “special function of applying the general provisions of the Act to the complexities of industrial life,” and its special competence in this field is the justification for the deference accorded its determination. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (citations omitted). Consistent with this understanding of the Board’s role, the notice-posting regulations represent an attempt to “adapt the Act’’ in light of recent realities and “the Board’s cumulative experience.” Id. The rule is wholly consistent with the aims of the NLRA, and the “need” for it now is heightened given the “changing patterns of industrial life.”’ Id. For all these reasons, this rule is entitled to deference regardless of how it is characterized because it is “reasonably related to the purposes of the enabling legislation,” Thorpe, 393 U.S. at 280-81, and constitutes a “‘ reasonable interpretation’ of the enacted text,’ Mayo, 131 S. Ct. at 714 (quoting Chevron, 467 U.S. at 844). In response to the NPRM, a number of arguments have been made challenging the Board’s statutory authority to promulgate the notice posting rule. As explained below, the Board does not find merit in any of these arguments. 1. Limitations on the Board’s Rulemaking Authority Implied by Sections 9 and 10 of the Act Of the comments that address the Board’s statutory authority to issue this rule, many express agreement with the dissenting views of Member Hayes that were published in the NPRM. Member Hayes criticized the basis for the rule and questioned the Board’s statutory authority to promulgate and enforce it. See 75 FR 80415. He specifically referred to Section 10 as an obstacle to the proposed rule, because it ““ndicate[d] to [him] that the Board clearly lacks the authority to order affirmative notice-posting action in the absence of an unfair labor practice charge filed by an outside party.” Id. Many comments submitted in response to the NPRM, such as those of the Texas Association for Home Care & Hospice and those of the Independent Bakers Association, interpret Section 10 to prohibit the Board from ordering any affirmative act that does not address the consequences of an unfair labor practice. Although this proposition may be true when the Board acts through adjudication—the administrative function to which Section 10 directly applies—it does not perforce apply when the Board specifies affirmative requirements via rulemaking under Section 6. See Clifton v. FEC, 114 F.3d 1309, 1312 (1st Cir. 1997) (“Agencies are often allowed through rulemaking to regulate beyond the express substantive directives of the statute, so long as the statute is not contradicted.’’) (citing Mourning). If it did, then the Board’s longstanding rule mandating that employers post an election notice three days before a representation election would be subject to challenge on that ground. See 29 CFR 103.20; see also Pannier Corp., Graphics Div. v. NLBB, 120 F.3d 603, 606-07 (6th Cir. 1997) (rejecting an as-applied challenge to § 103.20). Furthermore, under American Hospital Association, the Board's exercise of its broad rulemaking authority under Section 6 is presumed to be authorized unless elsewhere in the Act there is “language expressly describing an exception from that section or at least referring specifically to the section.”’ 499 U.S. at 613. Section 10 does not refer to the Board’s Section 6 authority. Some comments, such as those of the Council on Labor Law Equality (COLLE), contend that the Board has no authority whatsoever to administer the NLRA unless a representation petition or unfair labor practice charge has been filed under Sections 9 or 10, respectively. The Board declines to adopt such a narrow view of its own authority. Certainly, the Board cannot issue certifications or unfair labor practice orders via rulemaking proceedings. But that is not what this tule does. As explained above, by promulgating the notice-posting rule, the Board is taking a modest step that is ‘necessary to carry out the provisions”’ of the Act, 29 U.S.C. 156, and that also fills a statutory gap left by Congress in the NLRA. Moreover, the argument advanced by COLLE and others fails to appreciate that the Board’s authority to administer the Act is not strictly limited to those means specifically set forth in the NLRA. Rather, as the Supreme Court has recognized, the NLRA impliedly authorizes the Board to take appropriate measures “to prevent frustration of the purposes of the Act.’’ NLRB v. Nash- Finch Co., 404 U.S, 138, 142 (1971). By way of example, the Supreme Court pointed out that its decisions had recognized the Board’s implied authority to petition for writs of prohibition against premature invocation of the review jurisdiction of the courts of appeals, see In re NLRB, 304 U.S. 486, 496 (1938); to institute contempt proceedings for violation of enforced Board orders, see Amalgamated Util. Workers v. Con. Edison Co., 309 U.S. 261 (1940); and to file claims in bankruptcy for Board- awarded backpay, see Nathanson v. NLRB, 344 U.S. 25 (1952). Relying on HOUSE_OVERSIGHT_022282