Chamber of Commerce v. National Labor Relations Board ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1757
CHAMBER OF COMMERCE OF THE UNITED STATES; SOUTH CAROLINA
CHAMBER OF COMMERCE,
Plaintiffs – Appellees,
v.
NATIONAL LABOR RELATIONS BOARD; MARK PEARCE, in his official
capacity as Chairman of the National Labor Relations Board;
BRIAN HAYES, in his official capacity as member of the
National Labor Relations Board; LAFE SOLOMON, in his
official capacity as General Counsel; RICHARD F. GRIFFIN,
JR., Member; TERENCE F. FLYNN, Member; SHARON BLOCK, Member,
Defendants – Appellants,
and
CRAIG BECKER, in his official capacity as member of the
National Labor Relations Board,
Defendant.
-----------------------------
CHARLES J. MORRIS; AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS; CHANGE TO WIN; NATIONAL
EMPLOYMENT LAW PROJECT,
Amici Supporting Appellants,
THE HONORABLE JOHN KLINE, Chairman, Committee on Education
and the Workforce, United States House of Representatives;
JOE WILSON; RODNEY ALEXANDER; STEVE PEARCE; GREGG HARPER;
PHIL ROE; GLENN THOMPSON; TIM WALBERG; LOU BARLETTA; LARRY
BUCSHON; SCOTT DESJARLAIS; TREY GOWDY; JOE HECK; BILL
HUIZENGA; MIKE KELLY; JAMES LANKFORD; KRISTI NOEM; ALAN
NUNNELEE; REID RIBBLE; TODD ROKITA; AND DANIEL WEBSTER,
United States Representatives,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cv-02516-DCN)
Argued: March 19, 2013 Decided: June 14, 2013
Before DUNCAN, FLOYD and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Floyd and Judge Thacker joined.
ARGUED: Dawn L. Goldstein, NATIONAL LABOR RELATIONS BOARD,
Washington, DC., for Appellants. Lemuel Gray Geddie, Jr.,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Greenville, South
Carolina, for Appellees. ON BRIEF: Lafe E. Solomon, Acting
General Counsel, Celeste J. Mattina, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Margery E. Lieber,
Deputy Associate General Counsel, Eric G. Moskowitz, Assistant
General Counsel, Abby Propis Simms, Deputy Assistant General
Counsel, Joel F. Dillard, Kevin P. Flanagan, Micah P. S. Jost,
NATIONAL LABOR RELATIONS BOARD, Washington, DC., for Appellants.
Benjamin P. Glass, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Charleston, South Carolina, Cheryl M. Stanton, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, PC, New York, New York, for
Appellees; Robin S. Conrad, Shane B. Kawka, Rachel L. Brand,
NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C.,
Howard M. Radzely, Jonathan C. Fritts, David M. Kerr, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for Appellee Chamber of
Commerce of the United States. Charles J. Morris, Professor
Emeritus of Law, Dedman School of Law, SOUTHERN METHODIST
UNIVERSITY, San Diego, California, for Charles J. Morris, Amicus
Supporting Appellants. Lynn Rhinehart, AMERICAN FEDERATION OF
LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS, Washington, D.C.,
for American Federation Of Labor And Congress Of Industrial
Organizations, Amicus Supporting Appellants; Walter Kamiat,
Washington, D.C., for Change to Win, Amicus Supporting
2
Appellants; Catherine K. Ruckelshaus, Tsedeye Gebreselassie,
NATIONAL EMPLOYMENT LAW PROJECT, New York, New York, for
National Employment Law Project, Amicus Supporting Appellants;
Edgar N. James, Jeff Vockrodt, JAMES & HOFFMAN, PC, Washington,
D.C., for Amici Curiae Supporting Appellants. Charles I. Cohen,
David R. Broderdorf, MORGAN, LEWIS & BOCKIUS LLP, Washington,
D.C.; Joshua W. Dixon, K&L GATES LLP, Charleston, South
Carolina; Philip A. Miscimarra, Ross H. Friedman, Rita
Srivastava, MORGAN, LEWIS & BOCKIUS LLP, Chicago, Illinois;
Andriette A. Roberts, MORGAN, LEWIS & BOCKIUS LLP, New York, New
York, for Amici Curiae Supporting Appellees.
3
DUNCAN, Circuit Judge:
The National Labor Relations Board (the “NLRB” or the
“Board”), after notice and comment, promulgated a rule that
would require employers subject to the National Labor Relations
Act (the “NLRA” or the “Act”), 29 U.S.C. §§ 151-169, to post an
official Board notice informing employees of their rights under
the Act. Any employer failing to post the notice would be
subject to: (1) a finding that it committed an unfair labor
practice; (2) a tolling of statutes of limitation for charges of
any other unfair labor practices; and (3) a finding of anti-
union animus that would weigh against it in any proceedings
before the Board. Notification of Employee Rights Under the
National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30,
2011) (codified at 29 C.F.R. pt. 104).
The Chamber of Commerce of the United States and the South
Carolina Chamber of Commerce (collectively, “the Chamber”)
sought final review of the rule. The district court determined
that in promulgating the notice-posting rule, the Board exceeded
its authority, in violation of the Administrative Procedure Act
(the “APA”). Looking to the plain language of the NLRA, its
structure, its legislative history, and the notice provisions in
other statutes, the court concluded that the Act does not
provide the Board with the power to enact such a rule. The
court therefore granted summary judgment to the Chamber.
4
We agree with the district court that the rulemaking
function provided for in the NLRA, by its express terms, only
empowers the Board to carry out its statutorily defined reactive
roles in addressing unfair labor practice charges and conducting
representation elections upon request. Indeed, there is no
function or responsibility of the Board not predicated upon the
filing of an unfair labor practice charge or a representation
petition. We further note that Congress, despite having enacted
and amended the NLRA at the same time it was enabling sister
agencies to promulgate notice requirements, never granted the
Board the statutory authority to do so. We therefore hold that
the Board exceeded its authority in promulgating the challenged
rule, and affirm.
I.
After discussing the structure and purpose of the NLRA, we
describe the background of the challenged rule. We then briefly
recount the procedural history of this case.
A.
1.
The NLRA governs relations between private sector
employers, labor unions, and employees. Congress enacted the
NLRA--originally referred to as the “Wagner Act,” after its
sponsor, Senator Robert F. Wagner--in 1935. Pub. L. No. 74-198,
5
49 Stat. 449 (1935). The Act has since been amended three
times, most recently in 1974. See Labor Management Relations
Act (“Taft-Hartley Act”), Pub. L. No. 80-101, 61 Stat. 136(1947); Labor Management Reporting and Disclosure Act (“Landrum-
Griffin Act”), Pub. L. No. 86-257, 73 Stat. 519 (1959); Health
Care Amendments, Pub. L. No. 93-360, 88 Stat. 395 (1974).
The first section of the Act lays out the national labor
policy, which the Board is intended to promote “by encouraging
the practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of
association, self-organization, and designation of
representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.” 29 U.S.C. § 151. Section 2
provides definitions, and Sections 3, 4, and 5 establish the
Board and lay out its structure. 1
1
Although the structure of the Board is not at issue in
this case, it bears noting that the Secretary of Labor at the
time of the NLRA’s passage expressed concern that while the NLRB
was to be “judicial in character,” the “disconcerting tasks of
administration” might make it “subject to distraction from
specific cases by the temptation to strengthen its prestige
through educational and administrative activities.” H.R. Rep.
No. 74-969 (1935), reprinted in 2 NLRB, Legislative History of
the National Labor Relations Act, 1935, at 2919 (1949) (“NLRA
Leg. Hist.”).
6
Section 6--the focus of this case--confers rulemaking power
on the Board, providing it with the “authority from time to time
to make, amend, and rescind, in the manner prescribed by [the
APA], such rules and regulations as may be necessary to carry
out the provisions of [the NLRA].” Id. § 156. Section 7 lists
employees’ core labor rights, including the rights to organize,
join unions, bargain collectively through representatives of
their choosing, and engage in concerted activities for
collective bargaining or mutual aid and protection. Section 8
lays out five specific unfair labor practices (“ULPs”). Of
particular significance to this case, Section 8(a)(1) makes it a
ULP “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [Section 7].” Id. §
158(a)(1). Section 8(c) provides that the expression of views
in any form “shall not constitute or be evidence of [a ULP] . .
., if such expression contains no threat of reprisal or force or
promise of benefit.” Id. § 158(c).
The core, specified functions of the NLRB are (1) to
conduct representation elections, and (2) to prevent and resolve
ULPs. Section 9 of the NLRA provides for the first of these,
authorizing the filing of representation petitions, in which a
petitioner alleges that a substantial number of employees wish
to be represented by a union for collective bargaining. Under
that section, the Board has the authority to investigate
7
questions of representation, hold secret-ballot elections, and
certify the results thereof. Section 10 provides the Board with
the authority to investigate, prevent, and remedy ULPs. All
proceedings under Sections 9 and 10 “originate with the filing
of charges or petitions by employees, labor unions, private
employers, and other private parties.” NLRB, 2011 FY
Performance and Accountability Report 12, available at
http://www.nlrb.gov/sites/default/files/documents/189/nlrb_2011_
par_508.pdf (last visited May 31, 2013); see also Notification
of Employee Rights Under the National Labor Relations Act, 76
Fed. Reg. at 54,010 (“In both instances, the initiating document
is filed by a private party.”). Thus, “[a]lthough the Board is
specifically empowered to ‘prevent’ unfair labor practices, ‘the
Board may not act until an unfair labor practice charge is filed
alleging a violation of the Act.’ In addition, certification
‘procedures are set in motion with the filing of a
representation petition.’” Notification of Employee Rights
Under the National Labor Relations Act, 76 Fed. Reg. at 54,010
(quoting 2 The Developing Labor Law 2662, 2683 (John E. Higgins,
Jr. ed., 5th ed. 2006)) (alterations omitted). 2
2
As we discuss in comparing the NLRA to other federal labor
legislation, the NLRB’s reactive mandate stands in stark
contrast to the proactive roles of other labor agencies that
have promulgated notice-posting requirements. While the NLRA
only provides for processes that may be initiated by third
(Continued)
8
The final provision relevant to this case, Section 11,
gives the Board investigatory powers “necessary and proper for
the exercise of the powers vested in [the Board]” by Sections 9
and 10, including the right to issue subpoenas. 29 U.S.C § 161.
Because of the reactive nature of the Board’s functions under
Sections 9 and 10, Section 11 provides it with no “roving
investigatory powers.” Notification of Employee Rights Under
the National Labor Relations Act, 76 Fed. Reg. at 54,010; see
also H.R. Rep. No. 74-969 (1935), reprinted in 2 NLRA Leg. Hist.
at 2932.
2.
The Board promulgated the challenged rule, titled
“Notification of Employee Rights Under the National Labor
Relations Act,” on August 30, 2011, after a notice and comment
period. Notification of Employee Rights Under the National
Labor Relations Act, 76 Fed. Reg. at 54,006. The rule is
composed of three subparts. Subpart A, which is at issue in
this appeal, provides that “[a]ll employers subject to the NLRA
must post notices to employees, in conspicuous places, informing
them of their NLRA rights, together with Board contact
parties, the authorizing legislation of these sister agencies
speaks to investigatory and enforcement functions that the
agencies may themselves initiate. See infra Part II.B.4.
9
information and information concerning basic enforcement
procedures.” 29 C.F.R. § 104.202(a). The text of the notice
explains to employees:
The [NLRA] guarantees the right of employees to
organize and bargain collectively with their
employers, and to engage in other protected concerted
activity or to refrain from engaging in any of the
above activity. Employees covered by the NLRA are
protected from certain types of employer and union
misconduct. This Notice gives you general information
about your rights, and about the obligations of
employers and unions under the NLRA. Contact the
[NLRB], the Federal agency that investigates and
resolves complaints under the NLRA, using the contact
information supplied below, if you have any questions
about specific rights that may apply in your
particular workplace.
Id. at Pt. 104, Subpt. A, App. (footnote omitted). It goes on
to list employees’ rights under the Act and provide information
as to how to “contact the NLRB promptly to protect your rights.”
Id.Subpart B makes failure to post the employee notice a ULP
under Section 8(a)(1) of the NLRA. Id. § 104.210. If, after an
adjudication, the Board finds that an employer has failed to
post the required notice, the Board will order the employer to
cease and desist the unlawful conduct and post the required
notice, along with a remedial notice. Id. § 104.213. If an
employee files a ULP charge complaining that an employer has
failed to post a notice, the Board may excuse the employee from
the usual six-month statute of limitations for any other ULP
10
charges. Id. § 104.214(a). Finally, the rule allows the Board
to “consider a knowing and willful refusal to comply with the
requirement to post the employee notice as evidence of unlawful
motive” in other proceedings before it. Id. § 104.214(b). 3
The Board’s principal rationale for introducing the notice-
posting rule was that “American workers are largely ignorant of
their rights under the NLRA, and this ignorance stands as an
obstacle to the effective exercise of such rights.” Proposed
Rules Governing Notification of Employee Rights Under the
National Labor Relations Act, 75 Fed. Reg. 80,410, 80,411 (Dec.
22, 2010) (codified at 29 C.F.R. pt. 104). The Board pointed to
the changing nature of the American workforce as part of the
cause of this knowledge gap--in particular, the Board noted that
“[t]he overwhelming majority of private sector employees are not
represented by unions, and thus lack an important source of
information about NLRA rights”; “[i]mmigrants, who comprise an
increasing proportion of the nation’s work force, are unlikely
to be familiar with their workplace rights, including their
rights under the NLRA”; and “high school students, many of whom
are about to enter the labor force, are uninformed about labor
law and labor relations.” Id. The Board explained that
3
Subpart C of the rule contains ancillary provisions not
relevant to this appeal.
11
employees’ lack of awareness of their rights stems in part from
the absence of any requirement that they be informed of those
rights. The Board noted that “[t]he 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.” Id. 4
The challenged rule is unusual in several respects. The
Board has only rarely engaged in rulemaking during its seventy-
seven year history. And it has never promulgated a notice-
posting rule of any kind. 5
In the public comment period that followed the promulgation
of the rule, the Board received over 7,000 submissions, the
majority of which opposed the rule or aspects of it.
4
As the Board observed, a number of other federal labor
statutes contain explicit employee notice provisions. See
Railway Labor Act (“RLA”), 45 U.S.C. § 152, Fifth, Eighth; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-10(a);
Age Discrimination in Employment Act, 29 U.S.C. § 627;
Occupational Health and Safety Act, 29 U.S.C. § 657(c); Employee
Polygraph Protection Act, 29 U.S.C. § 2003; Americans with
Disabilities Act, 42 U.S.C. § 12115; Family and Medical Leave
Act, 29 U.S.C. § 2619(a); Uniformed Service Employment &
Reemployment Rights Act, 38 U.S.C. § 4334(a).
5
The Board has, on a case-by-case basis, required
individual employers found to have committed ULPs to post
remedial Board-supplied notices informing employees of their
rights under the Act. See, e.g., Smithfield Packing Co., 344
N.L.R.B. 1, 15-16 (2004), aff’d, United Food and Commercial
Workers Union Local 204 v. NLRB, 447 F.3d 821, 828 (D.C. Cir
2006).
12
Notification of Employee Rights Under the National Labor
Relations Act, 76 Fed. Reg. at 54,007. Many comments
“dispute[d] the board’s statutory authority to enact the
proposed rule.” Id. at 54,008. 6
B.
On September 19, 2011, before the rule went into effect,
the Chamber filed a complaint in the District Court for the
District of South Carolina for injunctive relief against the
NLRB, its Members, and its General Counsel. The parties filed
cross motions for summary judgment on November 9, 2011, and the
district court granted summary judgment to the Chamber on April
13, 2012. This appeal followed.
Concurrently, the National Association of Manufacturers
filed a suit against the NLRB in the District Court for the
District of Columbia. See Nat’l Ass’n of Mfrs. v. NLRB, 846 F.
6Additionally, Member Brian Hayes dissented from the
Board’s Notice of Proposed Rulemaking, arguing that “[t]he Board
lacks the statutory authority to promulgate or enforce” the
rule. Proposed Rules Governing Notification of Employee Rights
Under the National Labor Relations Act, 75 Fed. Reg. at 80,415.
Specifically, Member Hayes determined that Section 6 was not
sufficient authority for imposing such a requirement: “[t]o the
contrary, Section 10 of the Act indicates to me 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. Member Hayes ultimately dissented
from the promulgation of the final rule as well. Notification
of Employee Rights Under the National Labor Relations Act, 76
Fed. Reg. at 54,037-42.
13
Supp. 2d 34 (D.D.C. 2012). That court granted summary judgment
to the NLRB. The National Association of Manufacturers appealed
to the D.C. Circuit, which reversed the district court’s
decision, holding that the notice-posting rule violates Section
8(c) of the NLRA, which prohibits the NLRB from finding employer
speech that is not coercive to be a ULP or evidence of a ULP.
Nat’l Ass’n of Mfrs. v. NLRB, --- F.3d ----, 2013 WL 1876234(D.C. Cir. May 7, 2013). 7 Judge Henderson, joined by Judge
Brown, wrote a concurrence, opining that the Board also lacked
authority under Section 6 to issue the rule. Id. (Henderson,
J., concurring).
II.
A.
Preliminary to our consideration of the challenged rule are
threshold inquiries as to the appropriate mode of analysis. We
first address the Board’s proposition that the notice-posting
rule should be analyzed under the deferential standard set forth
in Mourning v. Family Publications Service, Inc., 411 U.S. 3567
Although the Chamber made a similar argument below, the
parties did not address this issue in their briefs or during
oral argument before this court. Because we determine that the
Board had no authority to issue the rule, we do not reach the
question of whether it was also precluded from doing so by
Section 8(c).
14
(1973). Next, we choose between two competing lenses through
which to analyze the issue of the Board’s authority, determining
if, as the Board contends, the relevant question is whether
Congress intended to withhold authority to issue the challenged
rule from the Board, or if, as the Chamber argues, the relevant
question is whether Congress intended to grant that authority.
1.
We start with the Board’s argument that the challenged rule
is properly analyzed under Mourning. Mourning instructs that
rules issued pursuant to broad rulemaking grants such as Section
6 are to be upheld if they are “reasonably related to the
purposes of the enabling legislation.” 411 U.S. at 369(citations and internal quotation marks omitted). The Board
reasons that Mourning provides the appropriate framework because
while the familiar two-step mode of analysis laid out by
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), applies to an agency’s construction
of a statute, “Mourning’s aim is to analyze substantive rules
that carry out an agency’s enabling act, but do not necessarily
interpret specific statutory language.” Appellant’s Br. at 5.
We find this distinction untenable. Mourning, a pre-
Chevron case, requires that a court “defer to the informed
experience and judgment of the agency to whom Congress delegated
appropriate authority.” 411 U.S. at 372 (emphasis added).
15
Thus, Mourning applies only after a court has determined that
Congress has indeed delegated interpretative powers to that
agency. See AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir.
2005); see also City of Arlington v. FCC, --- S. Ct. ----, 2013
WL 2149789, at *8-9 (May 20, 2013) (holding that the Chevron
framework applies to an agency’s statutory interpretation
concerning the scope of its own authority).
2.
Notwithstanding the facial inapplicability of Mourning, the
Board contends that it should be considered to have the power to
promulgate the rule unless Congress expressly withheld that
authority.
The Chamber, on the other hand, contends that we should
invalidate the notice-posting rule unless we find that Congress
intended to delegate to the Board the power to issue it. The
Chamber’s view finds support in our precedent. Specifically, in
determining the appropriate framework under which to analyze the
Food and Drug Administration’s (“FDA’s”) power to promulgate a
challenged regulation, we deemed the question of whether
Congress intended to grant authority the appropriate one. See
Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th
Cir. 1998) (“The district court framed the issue as ‘whether
Congress has evidenced its clear intent to withhold from FDA
jurisdiction to regulate tobacco products as customarily
16
marketed.’ However, we are of opinion that the issue is
correctly framed as whether Congress intended to delegate such
jurisdiction to the FDA.”), aff’d, 529 U.S. 120 (2000). Other
courts have followed the same approach. See, e.g., Am. Bar
Ass’n v. FTC, 430 F.3d 457, 468 (D.C. Cir. 2005) (“Plainly, if
we were ‘to presume a delegation of power’ from the absence of
‘an express withholding of such power, agencies would enjoy
virtually limitless hegemony . . . .’” (quoting Ry. Labor Execs.
Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir.
1994))); Sierra Club v. EPA, 311 F.3d 853, 861 (7th Cir. 2002)
(“Courts ‘will not presume a delegation of power based solely on
the fact that there is not an express withholding of such
power.’” (quoting Am. Petroleum Inst. v. EPA, 52 F.3d, 1113,
1120 (D.C. Cir. 1995))).
In support of its contention to the contrary, the Board
cites American Hospital Association v. NLRB (“AHA”), 499 U.S.
606 (1991). In AHA, the Supreme Court addressed a challenge to
a rule defining collective bargaining units for acute care
hospitals. The plaintiffs there argued that because Section
9(b) of the NLRA requires the Board to make bargaining unit
determinations “in each case,” the Board could not use its
general rulemaking power under Section 6 to define bargaining
units. The Court determined that because Section 9(a)
authorizes the Board to decide whether a designated unit is
17
appropriate for the purposes of collective bargaining, it could
promulgate a rule proactively defining collective bargaining
units in acute care hospitals, rather than determining the
composition of such units through case-by-case adjudication.
The Court noted that “[a]s a matter of statutory drafting, if
Congress had intended to curtail in a particular area the broad
rulemaking authority granted in § 6, we would have expected it
to do so in language expressly describing an exception from that
section or at least referring specifically to the section.”
AHA, 499 U.S. at 613.
The language in AHA that provides the basis for the Board’s
argument, arising as it does in the context of a bargaining unit
determination as to which the Board has been legislatively
granted authority, is inapplicable to the challenged rule. At
issue in AHA was whether Section 9(b) limited the Board’s
general authority--granted by Section 6--to enact rules
necessary to carry out Section 9. Here, on the other hand,
there is simply no authority to be limited: as we emphasize
again, there is no general grant of power to the NLRB outside
the roles of addressing ULP charges and conducting
representation elections. Indeed, the fact that none of the
Act’s provisions contain language specifically limiting the
Board’s authority to enact a notice-posting requirement reflects
18
the absence of statutory authority for actions outside those
defined responsibilities as a threshold matter.
Moreover, in AHA, the Supreme Court was careful to limit
its determination that authority existed for the promulgation of
“the rule at issue in this case unless limited by some other
provision in the Act.” 499 U.S. at 610 (emphasis added). This
narrow statement must be read in its context; it does not
support the proposition that the NLRB may enact any rule it
wishes unless some provision of the Act expressly withholds
authority for it to do so, when no general authority has been
given by Congress in the first instance. Thus, in our analysis
here, we focus on the question of whether Congress intended to
grant the NLRB the authority to issue the challenged rule--and
not whether Congress intended to withhold that power.
B.
Having determined the appropriate framework, we consider
the notice-posting rule under Chevron. We ask “whether Congress
has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” 467 U.S. at 842-
43. Only “if the statute is silent or ambiguous with respect to
the specific issue” are we to proceed to Chevron’s second step,
19
asking “whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843.
Under Chevron’s first step, we must use the “traditional
tools of statutory construction” to ascertain congressional
intent. 467 U.S. at 842 n.9. We thus look to the text of the
statute, along with “the overall statutory scheme, legislative
history, the history of evolving congressional regulation in the
area, and . . . other relevant statutes.” Brown & Williamson,
153 F.3d at 162 (citations and quotation marks omitted). We are
only to employ the deference of step two when the “devices of
judicial construction have been tried and found to yield no
clear sense of congressional intent.” Gen. Dynamics Land Sys.,
Inc. v. Cline, 540 U.S. 581, 600 (2004). Because we do not
presume a delegation of power simply from the absence of an
express withholding of power, we do not find that Chevron’s
second step is implicated “any time a statute does not expressly
negate the existence of a claimed administrative power.” Am.
Bar Ass’n, 430 F.3d at 468 (citation and internal quotation
marks omitted).
1.
In assessing the validity of the notice-posting rule, we
begin by examining the plain language of the NLRA. See CSX
Transp., Inc. v. Ala. Dep’t of Revenue, 131 S. Ct. 1101, 1107
(2011). Thus, we look to the text of Section 6 of the Act,
20
which grants the Board authority to issue rules that are
“necessary to carry out” the provisions of the Act. 29 U.S.C. §
156.
We, like the Chamber, read the language in Section 6 as
requiring that some section of the Act provide the explicit or
implicit authority to issue a rule. Because the Board is
nowhere charged with informing employees of their rights under
the NLRA, we find no indication in the plain language of the Act
that Congress intended to grant the Board the authority to
promulgate such a requirement.
The Board contests this reading of the statute, arguing
that the word “necessary” is inherently ambiguous, bringing us
directly to Chevron’s step two. In support of this argument,
the Board relies, in part, on language from Mourning explaining
that “[w]here the empowering provision of a statute states
simply that the agency may ‘make . . . such rules and
regulations as may be necessary to carry out the provisions of
this Act,’” we are to sustain the validity of a regulation
promulgated thereunder “so long as it is ‘reasonably related to
the purposes of the enabling legislation.’” 411 U.S. at 369(citations omitted). However, as we have explained, this
guidance is relevant only once we have determined that a statute
is ambiguous. That is, we are only to defer to an agency’s
interpretation of what is “necessary” once we have progressed to
21
Chevron’s second step. Mourning’s exhortation that we “defer to
the informed experience and judgment of the agency to whom
Congress delegated appropriate authority,” id. at 372, thus
cannot be read as requiring us to defer to the agency’s
interpretation as we conduct our initial analysis of the Act.
Moreover, even if the term “necessary,” standing on its
own, may be deemed ambiguous, we need not automatically defer to
the Board’s interpretation. “‘Mere ambiguity in a statute is
not evidence of congressional delegation of authority.’” Am.
Bar Ass’n, 430 F.3d at 469 (quoting Michigan v. EPA, 268 F.3d
1075, 1082 (D.C. Cir. 2001)). Rather, “[t]he ambiguity must be
such as to make it appear that Congress either explicitly or
implicitly delegated authority to cure that ambiguity.” Id.“Even when Congress has stated that the agency may do what is
‘necessary,’ whatever ambiguity may exist cannot render nugatory
restrictions that Congress has imposed.” AFL-CIO, 409 F.3d at
384 (citation omitted). Thus, as the district court correctly
observed, “[t]he Board may not disregard restrictions Congress
has imposed on its authority in other sections of the governing
statute by relying on Section 6 in isolation to these
substantive provisions.” Chamber of Commerce v. NLRB, 856 F.
22Supp. 2d 778, 790 (D.S.C. 2012). 8 As we discuss in greater
detail below, the substantive provisions of the Act make clear
that the Board is a reactive entity, and thus do not imply that
Congress intended to allow proactive rulemaking of the sort
challenged here through the general rulemaking provision of
Section 6. 9
2.
Continuing with our analysis of the rule under Chevron’s
first step, we next consider the structure of the NLRA. “In
8
The Ninth Circuit drew the same conclusion in striking
down an NLRB regulation prohibiting Board employees from
producing files in response to subpoenas, reasoning that
although Section 6 authorizes the Board to “adopt rules and
regulations to carry out its functions in a manner consistent
with the fulfillment of the purposes of the Act,” the statute
“does not authorize the Board to promulgate rules and
regulations which have the effect of enlarging its authority
beyond the scope intended by Congress.” Gen. Eng’g, Inc. v.
NLRB, 341 F.2d 367, 374 (9th Cir. 1965).
9
The Board points out that in AHA the Supreme Court
approved the Board’s promulgation of a rule defining certain
bargaining units proactively--rather than in response to the
filing of a representation petition--as an acceptable use of the
power delegated to the Board under Section 6. However, the
determination of bargaining units is one of the roles Congress
expressly intended the Board to play. See 29 U.S.C. § 159. In
contrast, the NLRA--unlike many other labor statutes--is silent
as to any role for its administering agency in enacting notice-
posting requirements or any affirmative duty for employers to
post notices. Moreover, as the district court noted, the
bargaining units rule at issue in AHA “defined how the Board
would handle issues after the Board’s adjudicative authority was
triggered.” Chamber of Commerce, 856 F. Supp. 2d at 791. Here,
the Board attempts something distinct and novel: the proactive
imposition of a duty upon employers that does not flow from any
of the provisions of the Act.
23
determining whether Congress has specifically addressed the
question at issue, a reviewing court should not confine itself
to examining a particular statutory provision in isolation. The
meaning--or ambiguity--of certain words or phrases may only
become evident when placed in context.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 133, 132 (2000). Thus, in
addition to the language of Section 6 itself, we must look to
“the specific context in which that language is used, and the
broader context of the statute as a whole.” McLean v. United
States, 566 F.3d 391, 396 (4th Cir. 2009) (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997)). An examination of the
rest of the Act reveals no provision that a notice-posting rule
is “necessary” to carry out.
The Board points to a number of sections in the Act,
arguing that the rule is necessary to carry them out. The
Chamber responds that no provision in the Act requires employers
who have not committed labor violations to be subject to a duty
to post employee notices. We agree. The NLRB serves expressly
reactive roles: conducting representation elections and
resolving ULP charges. As an examination of the Act as a whole
makes evident, none of its sections imply that Congress intended
to grant the Board authority to issue the notice-posting rule
sua sponte.
24
First, Section 1, which lays out the purpose and
aspirations of the NLRA, does not provide the Board with
authority to act. The Board argues that because Section 1 sets
forth the Act’s policy in broad terms, it is “specifically
designed to permit the Board to spell out [its] applications.”
Appellant’s Br. at 39. However, any argument that the statute’s
statement of purpose can provide the agency with the authority
to promulgate any regulation in furtherance of that purpose is
unavailing. The NLRB is “‘bound, not only by the ultimate
purposes Congress has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those
purposes.’” Colo. River Indian Tribes v. Nat’l Indian Gaming
Comm’n, 466 F.3d 134, 139 (D.C. Cir. 2006) (quoting MCI
Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 n.4 (1994)).
Similarly, Section 7, which lists rights protected under
the Act, does not provide the Board with specific authority to
act. Indeed, language in the Board’s own brief belies its
argument. The Board contends that the challenged rule is
necessary to “carry out the core rights set forth by Section 7.”
Appellant’s Br. at 11 (internal quotation marks omitted).
However, while these rights exist thanks to the NLRA and are to
be protected in the manner set forth by the NLRA’s provisions,
significantly, rights are not functions or provisions to be
“carried out.” See Nat’l Ass’n of Mfrs., 2013 WL 1876234, at
25
*15 (Henderson, J., concurring) (“Neither [Section 1 nor Section
7] contains any particularized ‘provision’ that the Board can
‘carry out’ by regulation or otherwise.”).
Nor does Section 8, which defines ULPs under the Act,
provide the Board with the power to require the posting of
notices. The Board notes that its authority under Section 6
extends to defining what constitutes a ULP under Section
8(a)(1), and argues that Section 8 thus gives it authority to
promulgate the notice-posting rule, which makes it a ULP to fail
to post the employee notice. Specifically, from its power to
interpret what constitutes “interfere[nce] with, restrain[t], or
coerc[ion of] employees in the exercise of the rights guaranteed
in [Section 7],” 29 U.S.C. § 158(a)(1), the Board attempts to
extract the authority to create a new ULP based on the failure
to post notices educating employees about their Section 7
rights. While we recognize that the Board has the
responsibility to “adapt the Act to changing patterns of
industrial life,” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266
(1975), and that Congress did not “undertake the impossible task
of specifying in precise and unmistakable language each incident
which would constitute an unfair labor practice,” Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), we cannot
accept an interpretation of the Act that would allow the NLRB to
26
bootstrap Section 8(a)(1) into authority to enact the
unprecedented rule at issue here.
Finally, and of most significance, the notice-posting rule
is not “necessary to carry out” Sections 9 and 10, which set
forth the Board’s responsibilities for conducting representation
elections and adjudicating ULP charges. As we have discussed,
Sections 9 and 10 lay out reactive roles for the Board; the
processes they provide for are not set in motion until a party
files a representation petition or a ULP charge. The Board
contends that the Act presupposes knowledge of NLRA rights and
their enforcement mechanisms, and that “employee knowledge of
NLRA rights and how to enforce them within statutory timeframes
is crucial to effectuate Congress’s national labor policy
through the processes established by Sections 8, 9, and 10.”
Appellant’s Br. at 12. Essentially, the Board argues that
because the enforcement functions provided for by Sections 9 and
10 are reactive, it was necessary to proactively create the
challenged rule in order for employees to undertake their role
in instigating those processes. With this reasoning, the Board
attempts to derive from provisions governing the functions and
operation of the agency the authority to do something entirely
distinct from those functions, with the rationale that doing so
would make them more effective. However, regardless of how
laudable the NLRB’s goal of educating workers may be, “there is
27
nothing in the text of the NLRA to suggest the burden of filling
the ‘knowledge gap’ should fall on the employer’s shoulders.”
Nat’l Ass’n of Mfrs., 2013 WL 1876234, at *16 (Henderson, J.,
concurring). Put simply, we cannot accept the Board’s circular
argument; the Board may not justify an expansion of its role to
include proactive regulation of employers’ conduct by noting its
reactive role under the Act. 10
10
The Board also cites Section 11 of the Act in support of
its argument that had Congress intended to limit the Board’s
authority to promulgate the notice-posting regulation, it would
have expressed that limitation somewhere in the statute. The
Board contrasts Section 6, which contains no words of
limitation, with Section 11, which details the Board’s subpoena
power but explicitly limits that authority to “hearings and
investigations . . . necessary and proper for the exercise of
the powers vested in [the Board] by sections [9] and [10].” 29
U.S.C. § 161. This language in Section 11 demonstrates, argues
the Board, that “when Congress wants to limit the Board’s power
by reference to Sections 9 and 10, it does so explicitly.”
Appellant’s Br. at 30. We find this comparison unavailing
because it is based on the incorrect premise that the Board
should be considered to have the power to issue the challenged
rule unless Congress expressly withheld that authority.
Moreover, we note that in Section 11, the NLRA creates a
specific power, to which it attached specific limits. The
authority delegated under Section 6 is unquestionably broader,
but as we have explained, the fact that Congress did not attach
explicit limits to it does not make it limitless. Furthermore,
detailing limits similar to those in Section 11 could have
constrained the Board in ways not intended by Congress. See
Appellees’ Br. at 20 n.4 (“[I]t would not have made sense for
Congress to limit the Board’s rulemaking authority only to
Section 9 and 10 of the Act because that would have prevented
the Board, for example, from promulgating rules defining any
ambiguous provisions in Section 8.”).
28
Contrary to the Board’s assertions, our analysis of the
Act’s structure comports with the Supreme Court’s holding in
AHA. At issue in AHA was whether the Board could define
employee bargaining units proactively and universally, outside
the context of case-by-case adjudication. In that case, even
the challengers of the rule conceded that the Board could make
such a determination through adjudication. AHA, 499 U.S. at
612. Here, in contrast, the question is not whether the notice-
posting requirement could be established through rulemaking as
opposed to adjudication, but whether the Board has the authority
to require universal, preemptive notice-posting at all. 11 The
Board’s contention that AHA established that the NLRB has the
authority to undertake proactive measures such as the challenged
regulation thus reads the Court’s opinion too broadly. 12
11
We do not take issue with the Board’s practice of
requiring individual employers to post notices on a case-by-case
basis in response to ULP adjudications. See supra note 5.
12
The Board cites a number of cases in which it has
articulated rules of general applicability through adjudication
in arguing that it could have developed the challenged rule
through case-by-case adjudication. See, e.g., St. Francis Med.
Ctr., 347 N.L.R.B. 368, 369 (2006); Tech. Serv. Solutions, 324
N.L.R.B. 298, 301 (1997); Champagne Color, Inc., 234 N.L.R.B.
82, 82 (1978). However, those cases were all adjudications
resulting from ULPs and based on rights explicitly granted by
the NLRA. Here, the Board seeks to create a duty and a ULP from
whole cloth, based not on the rights enumerated in the NLRA,
which it does not specifically assert employers are infringing,
but on employees’ need--nowhere mentioned in the NLRA--to be
made aware of their rights under the Act.
29
3.
We also find the history of the NLRA instructive,
particularly vis-a-vis congressional treatment of sister
agencies with statutory authorization to require the posting of
notices. We find that the Act’s history provides no
countervailing evidence of an intent to bestow the Board with
the power to enact the challenged regulation.
Reports on early versions of the NLRA indicate that the
Board was designed to serve a reactive role, with its “quasi-
judicial power” being “restricted to [the enumerated] unfair
labor practices and to cases in which the choice of
representatives is doubtful.” S. Rep. No. 73-1184 (1934),
reprinted in 1 NLRA Leg. Hist. at 1100. There is no indication
in the Act’s legislative history of an intent to allow the Board
to impose duties upon employers proactively; indeed, if
anything, it appears to have been the intent of Congress that
the Board not be empowered to play such a role. Cf. H.R. Rep.
No. 74-969 (1935), reprinted in 2 NLRA Leg. Hist. at 2932
(noting that Section 11 does not grant the Board the powers of a
“roving commission”).
Of particular significance, Congress considered and
rejected a different notice provision in the NLRA that would
have required any employer that was a party to a contract that
conflicted with the NLRA to notify its employees of the
30
violation and indicate that the contract would be abrogated. S.
2926, 73rd Cong. § 304(b) (as introduced in Senate on Feb. 28,
1934), reprinted in 1 NLRA Leg. Hist. at 14; H.R. 8434 73rd
Cong. § 304(b) (as introduced in House Mar. 1, 1934), reprinted
in 1 NLRA Leg. Hist. at 1140. 13 In the spring of 1934, as the
bill was being considered, the Senate Committee on Education and
Labor expressed “unanimous” agreement for removing the section
containing that notice provision, 1 NLRA Leg. Hist. at 394-95,
and on May 26, 1934, a substitute bill--with the notice
provision removed--was reported favorably to the Senate. S.
2926, 73rd Cong. § 304(b) (as introduced in Senate on May 26,
1934), reprinted in 1 NLRA Leg. Hist. 1070-98. Although this
notice provision would have spoken to a different issue than the
one at hand, the fact that Congress considered the possibility
of a notice requirement indicates at the very least that
13
Along with the proposed requirement that employers notify
employees of contracts that violated the NLRA, the initial
versions of the Act made it a ULP to fail to provide that
notice. S. 2926, 73rd Cong. § 5(5) (as introduced in Senate on
Feb. 28, 1934), reprinted in 1 NLRA Leg. Hist., at 3; H.R. 8434
73rd Cong. § 5(5) (as introduced in House Mar. 1, 1934),
reprinted in 1 NLRA Leg. Hist. at 1130. The fact that the early
versions of the Act contained a specific, notice-related ULP
further weakens the Board’s attempt, addressed above, to
bootstrap authority for the challenged rule from its authority
to define what constitutes a ULP under Section 8(a)(1). Had
Congress intended to require the posting of notices, or make the
failure to do so be punishable as a ULP, it could have made that
intent clear in its legislation.
31
Congress was aware of the option of authorizing such action and
chose not to.
Moreover, at the same time as it excluded a notice
provision from the NLRA, Congress amended another labor statute,
the RLA, to include two notice provisions. Pub. L. No. 73-442,
48 Stat. 1185 (1934) (codified as amended at 45 U.S.C. § 151 et
seq.). First, Congress amended the RLA to require employers
subject to that Act to notify employees that, if any contract
requiring employees to join a union or not join a union had been
enforced, such contract was no longer binding. S. 3266, 73d
Cong. § 2, Fifth (as introduced Mar. 28, 1934), reprinted in 1
The Railway Labor Act of 1926: A Legislative History at 742
(Michael H. Campbell & Edward C. Brewer III eds. 1988) (“RLA
Leg. Hist.”); H.R. 9861, 73d Cong. § 2, Fifth (as introduced
Jun. 4, 1934), reprinted in 1 RLA Leg. Hist. at 894. This
provision was very similar to the abrogation and notice
provision included in the original NLRA House and Senate bills.
A second provision included in the amended RLA required
employers to inform their employees by printed notice of the
dispute-resolution provisions of the RLA. S. 3266, 73d Cong. §
2, Eighth (as introduced Mar. 28, 1934), reprinted in 1 RLA Leg.
Hist. at 743-44; H.R. 9861, 73d Cong. § 2, Eighth (as introduced
Jun. 4, 1934), reprinted in 1 RLA Leg. Hist. at 895-96. These
notice requirements--which were signed into law on June 21,
32
1934--support the proposition that when Congress intends for the
posting of notices to be required, it provides as much in its
legislation.
4.
Finally, we consider “‘the history of evolving
congressional regulation in the area.’” Brown & Williamson, 153
F.3d at 162 (quoting Dunn v. Commodity Futures Trading Comm’n,
519 U.S. 465, 475 (1997)). A comparison of the NLRA to
subsequent labor legislation provides additional evidence that
Congress did not intend to grant the Board the authority to
issue a notice-posting requirement.
In addition to the notice-posting requirement in the RLA,
Congress has included notice-posting requirements in a number of
other federal labor laws. Several labor statutes passed during
the span of years between 1935 and 1974, during which the NLRA
was amended three times, provide for the posting of notices.
See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-10(a); Age Discrimination in Employment Act, 29 U.S.C. §
627; Occupational Safety & Health Act, 29 U.S.C. § 657(c).
Since that time, a number of other labor statutes have been
passed that have required the posting of notices. See Employee
Polygraph Protection Act, 29 U.S.C. § 2003; Americans with
Disabilities Act, 42 U.S.C. § 12115; Family and Medical Leave
Act, 29 U.S.C. § 2619(a). Even more tellingly, on at least one
33
occasion, Congress has amended a labor law to impose a notice-
posting requirement. See Veterans’ Benefits Improvement Act of
2004, Pub. L. No. 108-454, § 203, 118 Stat. 3606 (2004)
(codified as amended at 38 U.S.C. § 4334).
The contrast between the roles the NLRA sets forth for the
NLRB and those that other federal labor statutes prescribe for
those of its sister agencies with notice-posting authority is of
particular significance. As we have discussed, the Board’s core
functions are reactive ones. In contrast, other agencies that
have promulgated notice-posting requirements have proactive
mandates. For instance, the EEOC, which is granted the
authority to require the posting of notices, 29 U.S.C. § 627; 42
U.S.C. § 2000e-10(a); 42 U.S.C. § 12115, has the power to
proactively file charges and undertake investigations,
regardless of whether a party files a charge, 42 U.S.C. §§
2000e-5(b), 2000e-8(a). The same is true of the Occupational
Safety & Health Administration, see 29 U.S.C. §§ 657, 659, as
well as the Department of Labor (“DOL”) more generally, see,
e.g., 29 U.S.C. §§ 211(a), 216(c), 217, 2005, 2616, 2617. 14
14
The Board compares the challenged rule to a DOL notice-
posting requirement, which it enacted under the Fair Labor
Standards Act (“FLSA”), despite that statute’s silence as to
notice-posting. The Board points us to no authority analyzing
whether that statute grants the DOL authority to enact a notice-
posting requirement, and we do not address that issue here. We
do note that requiring universal employer notice-posting is more
(Continued)
34
Congress’s continued exclusion of a notice-posting
requirement from the NLRA, concomitant with its granting of such
authority to other agencies, can fairly be considered
deliberate. See Brown & Williamson, 529 U.S. at 133 (2000)
(“[T]he meaning of one statute may be affected by other Acts,
particularly where Congress has spoken subsequently and more
specifically to the topic at hand.”). Had Congress intended to
grant the NLRB the power to require the posting of employee
rights notices, it could have amended the NLRA to do so.
congruous with the DOL’s proactive roles in enforcing the FLSA
than it is with the NLRB’s reactive roles. Unlike the NLRB, the
DOL has the ability under the FLSA to proactively conduct
investigations and file enforcement actions. 29 U.S.C. §§
211(a), 216(c), 217; see DOL, Enforcement Under the Fair Labor
Standards Act, http://www.dol.gov/elaws/esa/flsa/screen74.asp
(last visited May 31, 2013). Furthermore, in enacting its
notice-posting rule, the DOL was acting pursuant to an enabling
statute distinct in relevant respects from the NLRA. In
particular, the FLSA included a recordkeeping requirement, 29
U.S.C. § 211(c), and the DOL promulgated its notice-posting
regulation under its authority to enforce that provision, see 29
C.F.R. § 516.4.
35
III.
For the foregoing reasons, 15 the judgment of the district
court is
AFFIRMED.
15
Having determined under Chevron’s first step that the
NLRA unambiguously does not grant authority to the NLRB to
promulgate the challenged rule, our analysis ends, and we do not
proceed to Chevron’s second step.
36