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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54013 But even if the new rule is understood to compel employer speech, Section 8(c) ““merely implements the First Amendment.” Brown, 554 U.S. at 67 (quoting NLEB v. Gissel Packing Co., 395 U.S. 575, 617 (1969)). Thus, if a First Amendment challenge to the rule must fail, so too must a challenge based on Section 8(c). Such was the holding of the D.C. Circuit in UAW v. Chao. There, the court was presented with a preemption argument, grounded in Section 8(c), challenging a Federal procurement regulation that required contractors to post a notice informing their employees of certain NLRA rights. The D.C. Circuit interpreted Section 8(c) as coextensive with the scope of free speech rights protected by the First Amendment and upheld the procurement regulation in light of well- established free speech jurisprudence in the labor context. See 325 F.3d at 365. 3. Lack of Contemporaneity With the Enactment of the NLRA Several comments attack the notice- posting regulation for its lack of contemporaneity with the enactment of the NLRA. For example, many comments criticize the regulation by noting that ‘‘this is a new rule interpreted into the Act 75 years after its passage.”’ The Board rejects these contentions for two reasons. First, the Supreme Court has repeatedly “‘instructed that ‘neither antiquity nor contemporaneity with [a] statute is a condition of [a regulation’s] validity.”’ Mayo, 131 S. Ct. at 712 (alterations in original) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740 (1996)); see also Smiley, 517 U.S. at 740 (deferring to a regulation “issued more than 100 years after the enactment” of the statutory provision that the regulation construed). Second, the argument fails to consider that much has changed since 1935, the year the NLRA was enacted. Unionization rates are one example. As pointed out in the NPRM and as confirmed by comments submitted by the Association of Corporate Counsel’s Employment and Labor Law Committee, unionization rates increased during the early years of the Act, peaking at around 35 percent of the workforce in the mid-1950s. But since then, the share of the workforce represented by labor unions has Pilchak attorneys to revise the rule to specify that employers ‘‘may post a notice of equal dignity which advises employees of * * * additional rights and realities.” Alternatively, the Pilchak attorneys propose that the Board amend the rule to permit employers to “alter the Poster and include additional rights.” Adopting this suggestion would compromise the integrity of the notice as a communication from the government. It, too, is therefore rejected. plummeted to approximately 8 percent. As a result, fewer employees today have direct, everyday access to an important source of information regarding NLRA rights and the Board’s ability to enforce those rights. As noted above, “tlhe responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.”’ J. Weingarten, Inc., 420 U.S. at 266. It would therefore be an abdication of that responsibility for the Board to decline to adopt this rule simply because of its recent vintage. Accordingly, the Board finds such arguments unpersuasive. 4, Comparison With Other Statutes That Contain Notice-Posting Requirements Many comments note, as the Board did in the NPRM, that several other labor and employment statutes enacted by Congress contain express notice- posting provisions. See 75 FR 80411 (listing such statutes). Though a few such comments, such as those of the International Brotherhood of Teamsters, applaud the Board for “‘fill[ing] this glaring and indefensible gap,” the bulk of these comments instead argue that the lack of a parallel statutory provision in the NLRA negates the existence of Board authority to issue this rule. The Board notes that inferences gleaned from side-by-side comparisons to other statutes have diminished force when an agency uses its gap-filling authority under Chevron. There are many possible reasons why Congress did not include an express notice- posting provision in the NLRA. “Perhaps that body consciously desired the [agency] to strike the balance at this level * * *; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question * * * Chevron, 467 U.S. at 865. But, “[flor judicial purposes, it matters not which of these things occurred.” Id. Indeed, the central premise behind Chevron and its progeny is that agencies should be allowed reasonable latitude to fill gaps arising from congressional silence or ambiguity. Accordingly, “the contrast between Congress’s mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion.’’ Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (labeling the expressio unius est exclusio alterius canon “an especially feeble helper’ in Chevron cases). Arguments contrasting the NLRA with other federal enactments that contain notice-posting requirements might have some persuasive force if there were evidence that Congress had considered and rejected inserting such a requirement into the Act. However, nothing in the legislative history of the Act so indicates. Indeed, there is not the slightest hint that the omission of a notice-posting requirement was the product of legislative compromise and therefore implies congressional rejection of the idea. Cf. Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 384-85 (7th Cir. 2010) (en banc) (Posner, J., concurring) (inferring a private right of action from statutory silence in a case where such silence was not the product of “legislative compromise’’). For these reasons, the Board rejects the Motor and Equipment Manufacturers Association’s unsupported suggestion that there has been an affirmative “legislative determination not to include a posting requirement by employers that have not violated the Act.” A number of comments point out that Congress included a general notice- posting provision in the Railway Labor Act (RLA), which predates the NLRA. Given the relative proximity of these two enactments, some comments regard the absence of a notice-posting provision in the NLRA as strong evidence that Congress did not intend for there to be one. For reasons just explained, the Board does not find a side-by-side comparison with the RLA availing. In addition, the Board notes that although the NLRA and the RLA share several common features, the NLRA was not perfectly modeled after the RLA. See Bhd. of R.R. Trainmen v. Chi, River & Ind. R.R. Co., 353 U.S. 30, 31 n.2 (1957) (“The relationship of labor and management in the railroad industry has developed on a pattern different from other industries. The fundamental premises and principles of the Railway Labor Act are not the same as those which form the basis of the National Labor Relations Act * * *.”’). Finally, the Board notes that other federal departments and agencies have not understood Congress’s failure to include an express provision containing a notice-posting requirement in a federal labor or employment statute as a bar to such a regulatory requirement. Like the NLRA, the Fair Labor Standards Act (FLSA), which was passed in 1938, does not contain a provision requiring employers to post a notice of pertinent employee rights. Yet the Department of Labor adopted a notice requirement now codified at 29 CFR 516.4. Furthermore, the Board is unaware of any challenge to the Labor Department’s authority to promulgate or enforce the FLSA notice requirement, which has been in effect for over 60 years. See 14 FR 7516 (Dec. HOUSE_OVERSIGHT_022284