National Ass'n of Manufacturers v. National Labor Relations Board , 717 F.3d 947 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2012 Decided May 7, 2013
No. 12-5068
NATIONAL ASSOCIATION OF MANUFACTURERS, ET AL.,
APPELLANTS/CROSS-APPELLEES
v.
NATIONAL LABOR RELATIONS BOARD, ET AL.,
APPELLEES/CROSS-APPELLANTS
Consolidated with 12-5138
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cv-01629)
Maurice Baskin argued the cause for appellants/cross-
appellees. With him on the briefs were Peter N. Kirsanow,
Bryan Schwartz, Maynard Buck, Patrick O. Peters, Glenn M.
Taubman, William L. Messenger, John N. Raudabaugh, and H.
Christopher Bartolomucci. William G. Miossi entered an
appearance.
Doreen S. Davis, Charles I. Cohen, Jonathan C. Fritts, and
David R. Broderdorf were on the brief for amici curiae The
Honorable John Kline, Chairman, Committee of Education and
2
the Workforce, The House of Representatives, et al. in support
of appellants/cross-appellees.
Dawn L. Goldstein, Attorney, National Labor Relations
Board, argued the cause for appellees/cross-appellants. With her
on the briefs were 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, and Kevin P.
Flanagan, Attorney. Linda Dreeben, Deputy Associate General
Counsel, entered an appearance.
Lynn Rhinehart, Charles J. Morris, Christine L. Owens, and
Walter Kamiat were on the brief for amici curiae Professor
Charles J. Morris, et al. in support of appellees/cross-appellants.
Before: HENDERSON and BROWN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Concurring opinion filed by Circuit Judge HENDERSON,
with whom Circuit Judge BROWN joins.
RANDOLPH, Senior Circuit Judge: The National Labor
Relations Board declared in a rule that employers subject to its
jurisdiction would be guilty of an unfair labor practice if they
did not post on their properties and on their websites a
“Notification of Employee Rights under the National Labor
Relations Act.” 76 Fed. Reg. 54,006 (Aug. 30, 2011). The rule
applies to “nearly 6 million” employers, “the great majority” of
which are small businesses. Id. at 54,042–43. Trade associations
and other organizations representing employers across the
country filed complaints in the district court, claiming that the
3
Board’s rule violated the National Labor Relations Act and the
First Amendment to the Constitution.
The Board’s action departs from its historic practice. From
its inception in 1935, the Board has exhibited a “negative
attitude” toward setting down principles in rulemaking, rather
than adjudication. Bell Aerospace Co. v. NLRB, 475 F.2d 485,
496 (2d Cir. 1973) (Friendly, J.), aff’d in part, rev’d in part, 416
U.S. 267 (1974); see also R. Alexander Acosta, Rebuilding the
Board: An Argument for Structural Change, Over Policy
Prescriptions, at the NLRB, 5 FIU L. REV. 347, 351 (2010);
Jeffrey S. Lubbers, The Potential of Rulemaking by the NLRB,
5 FIU L. REV. 411 (2010). Despite its “broad” rulemaking
authority under § 6 of the National Labor Relations Act, Am.
Hosp. Ass’n v. NLRB, 499 U.S. 606, 613 (1991), the Board had
“used rulemaking as a means of announcing—or
considering—its policies on only a few occasions” until 1989,
the year in which it issued the substantive regulation upheld in
American Hospital, ROBERT A. GORMAN & MATTHEW W.
FINKIN, BASIC TEXT ON LABOR LAW: UNIONIZATION AND
COLLECTIVE BARGAINING 21 (2d ed. 2004).
The path leading to the posting rule goes back to 1993 when
a law professor petitioned the Board. See 75 Fed. Reg. 80,410,
80,411 (Dec. 22, 2010). Despite prodding from this law
professor and, later, several others, the Board declined to act.
Then, in 2010, the Board issued a notice of proposed
rulemaking. Id. at 80,410. After receiving more than 7000
comments, the Board published a final rule on August 30, 2011,
with Member Hayes dissenting. 76 Fed. Reg. 54,006.
The final rule 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 information and information concerning basic
4
enforcement procedures, in the language set forth in the
Appendix to Subpart A of this part.” 29 C.F.R. § 104.202(a). In
addition, employers who customarily communicate with their
employees electronically must publish the Board’s notice on
their intranet or internet sites. See id. § 104.202(f). The required
poster, which is published as an addendum to this opinion, must
be at least 11 inches by 17 inches and in a type size and format
the Board prescribes. See id. § 104.202(b). The poster informs
employees of their right to form, join, or assist a union; to
bargain collectively through representatives of their choosing;
to discuss wages, benefits, and other terms and conditions of
employment with fellow employees or a union; to take action to
improve working conditions; to strike and picket; or to choose
not to engage in any of these activities. See 29 C.F.R. pt. 104,
subpt. A, app. The poster also recites more specific employee
rights the Board derived from judicial and Board interpretations
of the Act. See 76 Fed. Reg. at 54,018.1 The poster states, for
example, that it is “illegal” for an employer to prohibit
employees “from wearing union hats, buttons, t-shirts, and pins
in the workplace” or to “[s]py on or videotape peaceful union
activities and gatherings or pretend to do so.” 29 C.F.R. pt. 104,
subpt. A, app. The poster also states that it is “illegal” for a
union to “[t]hreaten or coerce [an employee] in order to gain . . .
support for the union” or to “[r]efuse to process a grievance
because [the employee] ha[s] criticized union officials or . . . [is]
not a member of the union.” Id.
As an enforcement mechanism, the rule declares that an
employer’s failure to post the notice is an unfair labor
practice—that is, it “may be found to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed by
1
The final rule states that if the law developed by the courts or
the Board changes, the Board may—by “rules, regulations, or
orders”—alter the poster’s content. 29 C.F.R. § 104.202(c).
5
NLRA Section 7, 29 U.S.C. 157, in violation of NLRA Section
8(a)(1), 29 U.S.C. 158(a)(1).” 29 C.F.R. § 104.210.
Section 7 of the Act provides that employees
shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all
of such activities except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in [section 8(a)(3) of the
Act].
29 U.S.C. § 157. (Under § 8(a)(1) it is an “unfair labor practice”
for an employer “to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [section 7 of the Act].”
Id. § 158(a)(1).)
The rule contains two additional enforcement devices. The
Board may suspend the running of the six-month limitations
period for filing any unfair-labor-practice charge under § 10(b),
29 U.S.C. § 160(b), “unless the employee has received actual or
constructive notice that the conduct complained of is unlawful.”
29 C.F.R. § 104.214(a). And the Board may consider an
employer’s “knowing and willful refusal to comply with the
requirement to post the employee notice as evidence of unlawful
motive in a case in which motive is an issue.” Id. § 104.214(b).
The Board invoked § 6 of the Act as authority for the rule.
That section provides that the “Board shall have authority from
time to time to make, amend, and rescind, in the manner
6
prescribed by [the Administrative Procedure Act], such rules
and regulations as may be necessary to carry out the provisions”
of the Act. 29 U.S.C. § 156. The Board thought the rule was
necessary because employees were not aware of their rights
under the Act. See 76 Fed. Reg. at 54,006. The Board offered
three reasons why: unions now represent only a small
percentage of the private workforce, by the latest count just 7.3
percent;2 immigrants make up “an increasing proportion of the
nation’s work force” and “are unlikely to be familiar with their
workplace rights”; and many high-school students about to enter
the work force are not familiar with labor laws. 75 Fed. Reg. at
80,411.
“Enforcement of the NLRA,” the Board stated, “depend[s]
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.” 76 Fed. Reg. at 54,010.
By this, the Board meant that unfair-labor-practice cases must
begin with a charge filed by an employee or a union or an
employer. “The charge triggers an inquiry that may (or may not)
result in the issuance of a complaint by the Board . . . . However,
neither the Board nor its agents are authorized to institute
charges sua sponte.” GORMAN & FINKIN, BASIC TEXT ON LABOR
LAW, supra, at 10. Board orders finding an unfair labor practice
after proceedings on a complaint are “not self-executing.” Id. at
14. Rather, the Board must petition a court of appeals for
enforcement—that is, for a court order requiring the offending
party to comply with the Board’s order. See id.
2
The Bureau of Labor Statistics reported that unions represented
7.3 percent of private-sector employees in 2012. Press Release,
Bureau of Labor Statistics, Union Members–2012 (table 3) (Jan. 23,
2013), available at http://www.bls.gov/news.release/pdf/union2.pdf.
7
Member Hayes, dissenting, disputed both the Board’s
authority under § 6 and the evidentiary support the Board
majority relied upon in concluding the posting rule was needed.
See 76 Fed. Reg. at 54,037–42.
On cross-motions for summary judgment, the district court
ruled as follows. The court first decided that the Board had the
authority, under § 6 of the Act, to promulgate the posting rule.
See Nat’l Ass’n of Mfrs. v. NLRB, 846 F. Supp. 2d 34, 48
(D.D.C. 2012). Citing Mourning v. Family Publications Service,
Inc., 411 U.S. 356, 369 (1973), and other decisions, the court
determined that the rule was reasonably related to the purposes
of the Act, and that the plaintiffs’ contrary arguments, based
mainly on the Act’s legislative history, were unpersuasive. See
id. at 43–48. But citing § 8(a)(1) and § 8(c), of which more
hereafter, the court ruled that the Board had no authority to
make a “blanket advance determination that a failure to post will
always constitute an unfair labor practice,” although the court
did not preclude such a finding in an individual case. Id. at
54–55. The district court also held invalid the section of the rule
tolling the § 10(b) limitations period if the employer failed to
post the notice. Whether there should be tolling, the court ruled,
depended on equitable considerations that had to be determined
on a case-by-case basis. See id. at 55–58. As to the part of the
rule that permitted an employer’s failure to post to be considered
as evidence of an improper motive, the court asserted, first, that
plaintiffs had not made a specific argument against this
provision, and second, that even if they had done so, the court
would uphold it because “the Rule does not make a blanket
finding that will govern future individual adjudications or create
a presumption of anti-union animus whenever an employer fails
to post the provision.” Id. at 63 & n.26.
Having determined that two of the rule’s provisions were
invalid, the court turned to the question whether the entire rule
8
should fall. The court held that the Board would have wanted the
posting requirement to stand even if two of three means of
enforcing it were invalid. See id. at 61–63.
The case is here on plaintiffs’ appeal and the Board’s cross-
appeal.3
One month after the district court issued its opinion, the
United States District Court for the District of South Carolina
held that the Board lacked authority to promulgate the rule. See
Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778(D.S.C. 2012). The appeal in that case is now pending before the
Fourth Circuit.
I
Although the parties have not raised it, one issue needs to
be resolved before we turn to the merits of the case. After oral
argument in this case, we held that a recess appointment is
constitutionally valid only if the appointment is made during an
intersession recess of the Senate, to fill a vacancy that arose
during that same intersession recess. See Noel Canning v. NLRB,
705 F.3d 490, 506, 512, 514 (D.C. Cir. 2013). The Board had
four members when the Federal Register published the proposed
notice-posting rule on December 22, 2010. Three members,
Wilma B. Liebman, Mark G. Pearce, and Brian Hayes, were
confirmed by the Senate. See 156 CONG. REC. S5281 (daily ed.
June 22, 2010) (Pearce and Hayes); 152 CONG. REC. S8906–07
3
On April 17, 2012, a panel of this court granted plaintiffs’
motion for a stay of the rule pending these appeals. See Nat’l Ass’n of
Mfrs. v. NLRB, No. 12-5068, 2012 WL 4328371 (D.C. Cir. Apr. 17,
2012) (unpublished order).
9
(daily ed. Aug. 3, 2006) (Liebman).4 The fourth member, Craig
Becker, was appointed by the President on March 27, 2010,
during an intrasession recess of the Senate. To the extent that
Noel Canning applies—we assume, without deciding, that it
does—Becker’s appointment was constitutionally invalid.
The Board can lawfully act with a quorum of three
members. See 29 U.S.C. § 153(b); New Process Steel, L.P. v.
NLRB, 130 S. Ct. 2635, 2640 (2010). Chairman Liebman’s term
expired on August 27, 2011. Her seat was not immediately
filled. That left the Board without a valid quorum by the time
the final rule was published in the Federal Register on August
30, 2011. But assuming, again without deciding, that the
existence of a valid quorum is a jurisdictional issue or that we
otherwise may exercise our discretion to raise the issue sua
sponte, we see no problem here.
The Federal Register Act requires a regulation (or other
document) to be filed with the Office of the Federal Register
before it is published in the Federal Register. See 44 U.S.C.
§ 1503.5 The date and time of filing is noted on the document,
and upon filing, a copy of the document is immediately
available for public inspection in the Office of the Federal
Register, even though the document will not be published until
4
Wilma Liebman had been confirmed on November 8, 1997, for
the remainder of the term that expired on December 16, 1997, and for
a term that expired on December 16, 2002, see 143 CONG. REC.
S12,214 (daily ed. Nov. 8, 1997), and on November 14, 2002, for a
term that expired on August 27, 2006, see 148 CONG. REC. S11,031
(daily ed. Nov. 14, 2002).
5
Receipt of the document by the Office does not constitute
“filing.” Rather, a document is filed for public inspection “only after
it has been received, processed and assigned a publication date.” 1
C.F.R. § 17.2(a).
10
later. See id.6 The Federal Register Act further provides that the
filing of a document required to be published in the Federal
Register constitutes constructive notice to anyone subject to or
affected by it. See 44 U.S.C. § 1507.
In light of these provisions, we believe the date of filing is
the relevant time for determining whether the Board had a valid
quorum. Chairman Liebman signed the final rule on August 22,
2011, and the rule was filed with the Office of the Federal
Register on August 25, 2011, before her term expired, when the
Board still had a constitutionally appointed quorum. Once the
rule was filed with the Office of the Federal Register, the Board
had taken all the steps necessary to issue the rule—there was
nothing left for the Board to do. All that remained was for the
rule to be published in the Federal Register, but that was in the
hands of the Office of the Federal Register.
The Office of Legal Counsel of the Department of Justice
has also taken the view that, for purposes of determining
whether an agency has complied with a statutory deadline for
issuing regulations, promulgation takes place when the final
regulations are filed with the Office of the Federal Register,
regardless of when the regulations are published in the Federal
Register. See Federal Register Act—Date of “Promulgation” of
Law Enforcement Assistance Admin. Regs., 1 Op. O.L.C. 12(1977).
We employed similar reasoning in Braniff Airways, Inc. v.
Civil Aeronautics Board, when we concluded that an order of
the Civil Aeronautics Board was valid even though the chairman
resigned and the Board thereby lost a quorum between the time
6
Documents are also posted to the Office’s website. See
Electronic Public Inspection Desk, Office of the Federal Register,
http://www.ofr.gov/inspection.aspx.
11
the order was signed and entered and the time it was served on
the parties. See 379 F.2d 453, 459 (D.C. Cir. 1967). Although
the Aeronautics Board had stated that “a ‘proposed decision of
the Board does not become effective until an opinion and order
. . . has been approved, issued, and served,’” our view was that
“once all members have voted for an award and caused it to be
issued the order is not nullified because of incapacity,
intervening before the ministerial act of service, of a member
needed for a quorum.” Id.We recognize that in determining the timeliness of petitions
for review of agency rules, we have concluded that
“promulgation” takes place when a rule is published in the
Federal Register. See Horsehead Res. Dev. Co. v. EPA, 130 F.3d
1090 (D.C. Cir. 1997); Nat’l Grain & Feed Ass’n v.
Occupational Safety & Health Admin., 845 F.2d 345 (D.C. Cir.
1988) (per curiam). But the question when a rule is eligible for
judicial review is not the same as the question posed in this
case—namely, what is the time for testing the validity of the
Board’s rule. In National Grain, we distinguished between
“issuance” and “promulgation” to determine the timeliness of a
petition for review of an Occupational Safety and Health
Administration standard. The statute provided for review of a
standard “issued” under the statute no later than sixty days after
the standard was “promulgated.” Nat’l Grain & Feed Ass’n, 845
F.2d at 345 (quoting 29 U.S.C. § 655(f)) (emphasis omitted).
The agency’s regulations stated that a standard was issued when
it was “‘officially filed in the Office of the Federal Register.’”
Id. (quoting 29 C.F.R. § 1911.18(d)). But the agency had not
defined the term “promulgate,” and without a regulation
equating the date of promulgation with the date of issuance, we
declined the agency’s request to treat the terms as synonymous.
See id. at 345–46.
12
We are not constrained by such statutory terms and need not
determine when the Board’s rule was “promulgated.”7 Our
judgment is that the time of filing with the Office of the Federal
Register is the appropriate time for determining whether the
Board had a valid quorum. That the Board may have lost a
quorum before its rule was published did not render its rule
invalid.
II
The parties devote a large part of their briefs to the question
whether § 6 of the Act gave the Board authority to promulgate
its posting rule. We will begin our analysis with a different
provision—§ 8(c), which seems to us to control much of the
case. Section 8(c) states:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
7
Even within the Federal Register Act, the term “promulgated”
seems to have different meanings in different contexts. Compare 44
U.S.C. § 1503 (“When the original [document required or authorized
to be published] is issued, prescribed, or promulgated outside the
District of Columbia, and certified copies are filed before the filing of
the original, the notation shall be of the day and hour of filing of the
certified copies.”), and id. (“Every Federal agency shall cause to be
transmitted for filing the original and the duplicate originals or
certified copies of all such documents issued, prescribed, or
promulgated by the agency.”), with id. § 1505(c) (“In the event of an
attack or threatened attack upon the continental United States and a
. . . [suspension of] all or part of the requirements of law or regulation
for filing with the Office or publication in the Federal Register of
documents or classes of documents[,] . . . [t]he President shall
establish alternate systems for promulgating, filing, or publishing
documents or classes of documents affected by such
suspensions . . ..”).
13
graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this [Act], if such expression contains no
threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c).
Before the enactment of § 8(c) in 1947, the Supreme Court
had held that employers have free-speech rights under the First
Amendment “to engage in noncoercive speech about
unionization.” Chamber of Commerce of the U.S. v. Brown, 554
U.S. 60, 67 (2008). Believing that the Board was still
“regulat[ing] employer speech too restrictively,”
notwithstanding the Supreme Court’s decisions, id., Congress
enacted § 8(c) with its passage of the Taft-Hartley Act (more
formally known as the Labor Management Relations Act, 1947),
Pub. L. No. 80-101, 61 Stat. 136. Section 8(c) “expressly
precludes regulation of speech about unionization ‘so long as the
communications do not contain a threat of reprisal or force or
promise of benefit.’” Chamber of Commerce, 554 U.S. at 68(quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969))
(other internal quotation marks omitted).
“From one vantage,” the Court in Chamber of Commerce
explained, “§ 8(c) ‘merely implements the First Amendment,’
in that it responded to particular constitutional rulings of the
NLRB.” Id. at 67 (quoting Gissel Packing, 395 U.S. at 617).
“But,” the Court added, § 8(c)’s “enactment also manifested a
‘congressional intent to encourage free debate on issues dividing
labor and management.’” Id. (quoting Linn v. Plant Guard
Workers, 383 U.S. 53, 62 (1966)). And it has been suggested
that § 8(c) not only protects the right of free speech under the
First Amendment, but also “serves a labor law function of
allowing employers to present an alternative view and
14
information that a union would not present.” Healthcare Ass’n
of N.Y. State v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006).8
Although § 8(c) precludes the Board from finding
noncoercive employer speech to be an unfair labor practice, or
evidence of an unfair labor practice, the Board’s rule does both.9
8
Whether § 8(c) is broader than the First Amendment—in, for
example, prohibiting the Board from using noncoercive employer
speech as evidence bearing on an unfair labor practice, see Archibald
Cox, Some Aspects of the Labor Management Relations Act, 1947, 61
HARV. L. REV. 1, 19 (1947)—is an issue we need not decide. Nor do
we need to consider whether § 8(c) is narrower than the First
Amendment in some respects. See Richard A. Epstein, The Case
Against the Free Choice Act 26–27 (John M. Olin Law & Economics
Working Paper No. 452 (2d series), 2009) (noting that § 8(c)’s final
phrase—permitting speech only if it “contains no threat of reprisal or
force or promise of benefit”—“has no analogy anywhere else in First
Amendment law”). We also think it unimportant to this case that
§ 8(c) might be seen as a content-based regulation of labor speech, a
matter of consequence in some First Amendment cases. See Sorrell v.
IMS Health Inc., 131 S. Ct. 2653 (2011); Police Dep’t v. Mosley, 408
U.S. 92 (1972). The parties have raised none of the issues these
subjects would pose.
9
The district court decided that § 104.214(b), the “anti-union
animus” provision, was valid, even though the court thought plaintiffs
had not “specifically” challenged the provision and had not made “an
argument as to why that provision is invalid.” Nat’l Ass’n of Mfrs.,
846 F. Supp. 2d at 63 & n.26. But plaintiffs, in a supplemental
statement filed before the court’s ruling, insisted that their amended
complaint challenged the validity of the entire rule. And plaintiffs’
memorandum in support of their motion for summary judgment
expressly argued not only that § 8(c) barred the Board from finding
that an employer’s failure to post was an unfair labor practice, but also
that the Board could not treat a failure to post as “proof of anti-union
animus” on the part of an employer. Plaintiffs have sufficiently
15
Under the rule an employer’s failure to post the required notice
constitutes an unfair labor practice. See 29 C.F.R. §§ 104.210,
104.212.10 And the Board may consider an employer’s “knowing
and willful” noncompliance to be “evidence of antiunion animus
in cases in which unlawful motive [is] an element of an unfair
labor practice.” 76 Fed. Reg. at 54,035–36; see also 29 C.F.R.
§ 104.214(b).11 The Board, in other words, will use an
employer’s failure to post the notice as evidence of another
unfair labor practice.
In the preamble to its rule, and in its argument to this court,
the Board responds that it has not violated § 8(c) because the
poster is the Board’s speech, not the speech of any employer.
After all, the Board says, the words on the poster are the
Board’s, and the last line of the poster warns: “This is an official
Government Notice and must not be defaced by anyone.” 29
C.F.R. pt. 104, subpt. A, app.12
It is obviously correct that the poster contains the Board’s
speech. It is also without question that the Board is free to post
preserved the same argument in their brief and reply brief in this court.
10
We agree with the district court, Nat’l Ass’n of Mfrs., 846 F.
Supp. 2d at 52 n.15, that although § 104.210 states that the Board
“may” find an employer’s willful noncompliance to be an unfair labor
practice, it is clear from § 104.213 and the preamble to the rule that
“may” means “will.” The Board has not argued otherwise.
11
As examples of such unfair labor practices, the Board
mentioned plant-closing threats, firings or refusals to hire, and
interrogations of employees. See 76 Fed. Reg. at 54,035–36 (citing
cases); see also Cox, supra, 61 HARV. L. REV. at 19.
12
The Board did not explain how it expected to enforce this
warning.
16
the same message on its website, as it has done under the
heading “Rights We Protect.” See NLRB,
http://www.nlrb.gov/rights-we-protect (last visited Apr. 25,
2013). We also assume that the Board may deliver its message
directly to employees working for businesses over which the
Board has jurisdiction. But we doubt whether calling the poster
“Board speech” answers the question whether the rule violates
§ 8(c).
Our doubt stems, in part, from a comparison of § 8(c) with
the law established under the First Amendment. We approach
the question by considering some firmly established principles
of First Amendment free-speech law. The first is that the
“dissemination” of messages others have created is entitled to
the same level of protection as the “creation” of messages.
Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011). This
is why there was no First Amendment difference between the
free-speech rights of the publisher and the free-speech rights of
the creators of the advertisement in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). It is why the First Amendment
protects an individual’s disclosure of an illegally intercepted
communication even though the individual did not participate in
the communication (or in the illegal interception). See Bartnicki
v. Vopper, 532 U.S. 514 (2001). It is also why those handing out
leaflets prepared by others are exercising the First Amendment’s
“freedom of speech.” See, e.g., Murdock v. Pennsylvania, 319
U.S. 105 (1943); Lovell v. City of Griffin, 303 U.S. 444 (1938).
That § 8(c) embraces this principle is certain. The language
of § 8(c) explicitly covers more than just the “expressing” of the
speaker’s views. It covers as well the “dissemination” of “any
views, argument, or opinion,” as long as the “written, printed,
graphic, or visual” material disseminated is not coercive. 29
U.S.C. § 158(c).
17
Of course we are not faced with a regulation forbidding
employers from disseminating information someone else has
created. Instead, the Board’s rule requires employers to
disseminate such information, upon pain of being held to have
committed an unfair labor practice. But that difference hardly
ends the matter. The right to disseminate another’s speech
necessarily includes the right to decide not to disseminate it.
First Amendment law acknowledges this apparent truth: “all
speech inherently involves choices of what to say and what to
leave unsaid.” Pac. Gas & Electric Co. v. Pub. Utils. Comm’n,
475 U.S. 1, 11 (1986) (plurality opinion).
Chief Justice Roberts, writing for a unanimous Court, put
it this way in Rumsfeld v. Forum for Academic & Institutional
Rights, Inc.: “Some of [the] Court’s leading First Amendment
precedents have established the principle that freedom of speech
prohibits the government from telling people what they must
say.” 547 U.S. 47, 61 (2006). As examples, the Chief Justice
cited West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977).
In Barnette the Court held that “[t]o sustain the compulsory
flag salute” and pledge of allegiance in public schools would be
to conclude “that a Bill of Rights which guards the individual’s
right to speak his own mind, left it open to public authorities to
compel him to utter what is not in his mind.” 319 U.S. at 634.
Wooley held much the same: the First Amendment freedom
of speech “includes both the right to speak freely and the right
to refrain from speaking at all.” 430 U.S. at 714. New
Hampshire therefore could not coerce its citizens to display the
State motto “Live Free or Die” on their automobile license
plates, although presumably citizens could display it voluntarily.
As the Supreme Court put it in United States v. United Foods,
Inc.: “Just as the First Amendment may prevent government
18
from prohibiting speech, the Amendment may prevent the
government from compelling individuals to express certain
views . . ..” 533 U.S., 405, 410 (2001); see also Johanns v.
Livestock Mktg. Ass’n, 544 U.S. 550, 568 (2005) (Thomas, J.,
concurring); R.J. Reynolds Tobacco Co. v. Food & Drug
Admin., 696 F.3d 1205, 1211 (D.C. Cir. 2012).
We do not think these, and other such cases, may be
distinguished from this one on the Board’s terms. In Barnette
and in Wooley, as in this case, the government selected the
message and ordered its citizens to convey that message. The
Supreme Court’s opinions do not suggest that because the
messages were, to that extent, “government speech,” the First
Amendment did not apply. And we do not think it matters that
the Board has regulatory authority over the six million
employers subject to its rule. In Barnette and Wooley, the state
and local governments had regulatory authority over those
(public school children and automobile drivers) it ordered to
spread the message it selected. See also United Foods, 533 U.S.
at 410; R.J. Reynolds, 696 F.3d at 1211.
The Board—in its brief, but not in the rulemaking—argues
that this case is significantly different in light of the content of
the poster. The poster, the Board’s acting general counsel tells
us, merely recites the employee rights set forth in the National
Labor Relations Act (and in court and Board interpretations of
the Act). And so, the argument goes, this case is unlike Barnette
or Wooley because the Board’s message is “non-ideological.”
NLRB Br. 66. Even if we accepted the premise, the conclusion
would not follow.
The right against compelled speech is not, and cannot be,
restricted to ideological messages. Take for instance Riley v.
National Federation of the Blind of North Carolina, Inc., 487
U.S. 781 (1988). After recognizing that the First Amendment
19
protects “the decision of both what to say and what not to say,”
the Court cited Barnette and Wooley in holding that these and
other cases “cannot be distinguished simply because they
involved compelled statements of opinion while here we deal
with compelled statements of ‘fact.’” Riley, 487 U.S. at 797.13
Yet that distinction, rejected in Riley, is precisely the distinction
the Board’s acting general counsel urges us to adopt.
Plaintiffs here, like those in other compelled-speech cases,
object to the message the government has ordered them to
publish on their premises. They see the poster as one-sided, as
favoring unionization, because it “fails to notify employees,
inter alia, of their rights to decertify a union, to refuse to pay
dues to a union in a right-to-work state, and to object to payment
of dues in excess of the amounts required for representational
purposes.” Nat’l Ass’n of Mfrs. Br. 38; see also 76 Fed. Reg. at
54,022 (discussing comments).14 The Board responds that it was
entitled to make “editorial judgments” about what to put in and
what to leave out, NLRB Br. 68, and that “if an employer is
concerned that employees will get the wrong impression, it may
legally express its opinion regarding unionization as long as it
13
In addition to Barnette and Wooley, the Court cited Pacific
Gas, 475 U.S. 1 (plurality opinion), and Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974). The Supreme Court has thus
recognized that its “compelled-speech cases” apply to situations “in
which an individual must personally speak the government’s
message,” as well as those in which one must “host or accommodate
another speaker’s message.” Forum for Academic & Institutional
Rights, 547 U.S. at 63; see also Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Boston, 515 U.S. 557, 573–74 (1995).
14
The Board seemed to accept plaintiffs’ contention that its
poster must be even-handed. See NLRB Br. 68–69; 76 Fed. Reg. at
54,022.
20
does so in a noncoercive manner,” 76 Fed. Reg. at 54,022.15 Yet
even in cases in which the message was other than one the
government had devised, a “compelled-speech violation”
occurred when “the complaining speaker’s own message was
affected by the speech it was forced to accommodate.” Forum
for Academic & Institutional Rights, 547 U.S. at 63.
This brings us to what the Board considers its strongest
precedent—UAW-Labor Employment & Training Corp. v. Chao,
325 F.3d 360 (D.C. Cir. 2003). President Bush had issued an
Executive Order requiring government contractors to post
notices at their workplaces informing employees of their rights
not to be forced to join a union or to pay union dues for non-
representational activities. Three unions and the UAW brought
suit (the UAW was a government contractor). They argued that
the National Labor Relations Act preempted the Executive
Order. UAW, 325 F.3d at 362. This was their only argument.
They did not raise any “free-standing First Amendment claim.”
Id. at 364. We therefore did not reach the question whether the
posting requirement violated the contractors’ freedom of speech.
As to § 8(c), the unions could not plausibly claim that the
Executive Order violated this provision. The National Labor
Relations Board was not in the picture. That is, there was no
prospect of a contractor’s being charged with an unfair labor
practice for failing to post the required notice.16 As we put it,
15
Although the poster identifies the Board as its author, it does
not state that the employer had no choice but to display it. We suppose
an employer could post a statement next to the poster pointing out its
compulsory nature. Cf. PruneYard Shopping Ctr. v. Robins, 447 U.S.
74, 87 (1980).
16
The Board held in Rochester Manufacturing Co., 323 N.L.R.B.
260, 262 (1997), that employers do not commit unfair labor practices
if they fail to inform their employees of their rights not to be forced to
join a union or to pay union dues for non-representational activities.
21
“the activities described in § 8(c) do not ‘constitute an unfair
labor practice,’ except by negation, and are not ‘protected by’
the NLRA, except from the [Board] itself.” Id. at 365 (emphasis
omitted).
We acknowledged in UAW that “the right to speak”
includes “the right not to speak.” Id. And we assumed, in light
of the Supreme Court’s First Amendment decisions so holding,
“that the § 8(c) right includes the right not to speak.” Id. But the
§ 8(c) right was only against the Board’s finding an unfair labor
practice, or evidence thereof. Beyond that, “an employer’s right
to silence is sharply constrained in the labor context, and leaves
it subject to a variety of burdens to post notices of rights and
risks.” Id.
In its preamble to the posting rule, the Board interpreted
these passages to mean that under § 8(c) the Board may find that
employers commit unfair labor practices if they fail to
disseminate the Board’s message. See 76 Fed. Reg. at 54,013.
The Board’s interpretation of our opinion was mistaken.17 In
mentioning constraints on employer silence “in the labor
context,” we were not referring to an employer’s protection
against—as we put it—“the NLRA itself.” UAW, 325 F.3d at
365. We were making a different point: that apart from the
§ 8(c) bar against unfair-labor-practice charges, the National
Labor Relations Act did not give employers an unconstrained
right to silence. The Second Circuit said much the same in
See UAW, 325 F.3d at 363.
17
While an agency’s interpretation of its own precedent may be
entitled to deference, see Ceridian Corp. v. NLRB, 435 F.3d 352, 355
(D.C. Cir. 2006), we owe no deference to an agency’s interpretation
of judicial precedent, see New York New York, LLC v. NLRB, 313 F.3d
585, 590 (D.C. Cir. 2002).
22
Healthcare Ass’n, 471 F.3d at 98–100, another preemption
case.18
We return then to the question with which we began.
Suppose that § 8(c) prevents the Board from charging an
employer with an unfair labor practice for posting a notice
advising employees of their right not to join a union. Of course
§ 8(c) clearly does this. How then can it be an unfair labor
practice for an employer to refuse to post a government notice
informing employees of their right to unionize (or to refuse to)?
Like the freedom of speech guaranteed in the First Amendment,
§ 8(c) necessarily protects—as against the Board, see UAW, 325
F.3d at 365—the right of employers (and unions) not to speak.
This is why, for example, a company official giving a
noncoercive speech to employees describing the disadvantages
of unionization does not commit an unfair labor practice if, in
his speech, the official neglects to mention the advantages of
having a union.
18
In a footnote to its brief, the Board states that its rule satisfies
Zauderer v. Office of Disciplinary Counsel of the Supreme Court of
Ohio, 471 U.S. 626, 651 (1985), but it does not explain why that
decision has even the slightest bearing on this case. Under Zauderer,
the government may, consistently with the First Amendment, require
a party to a commercial transaction to make disclosures in order to
prevent that party from deceiving its customers. See R.J. Reynolds,
696 F.3d at 1215. (The Board essentially followed the same reasoning
in requiring unions to inform non-union employees of their right to
limit the amount of dues and fees they pay to the unions under
union-shop agreements. See Rochester Mfg. Co., 323 N.L.R.B. 260(1997); California Saw & Knife Works, 320 N.L.R.B. 224 (1995).) But
that has nothing to do with this case. As we said earlier, no one—and
certainly not the Board—has even suggested that the posting rule was
needed because employers are misleading employees about their rights
under the National Labor Relations Act.
23
We therefore conclude that the Board’s rule violates § 8(c)
because it makes an employer’s failure to post the Board’s
notice an unfair labor practice, and because it treats such a
failure as evidence of anti-union animus in cases involving, for
example, unlawfully motivated firings or refusals to hire—in
other words, because it treats such a failure as evidence of an
unfair labor practice.19 See Brown & Root, Inc. v. NLRB, 333
F.3d 628, 637–39 & n.7 (5th Cir. 2003).
III
The Board’s third method of enforcing its rule is to toll the
Act’s limitations period for filing unfair-labor-practice
charges.20 That time limit, added in 1947 as part of the Taft-
Hartley Act, is set forth in § 10(b) of the Act: “no complaint
shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom
19
Our conclusion here does not affect the Board’s rule requiring
employers to post an election notice (which similarly contains
information about employee rights) before a representation election,
29 C.F.R. § 103.20. Because the failure to post the required election
notice does not constitute an unfair labor practice but may be a basis
for setting aside the election, see id. § 103.20(d), the rule does not
implicate § 8(c).
20
The rule provides, in relevant part:
When an employee files an unfair labor practice charge, the
Board may find it appropriate to excuse the employee from
the requirement that charges be filed within six months after
the occurrence of the allegedly unlawful conduct if the
employer has failed to post the required employee notice
unless the employee has received actual or constructive
notice that the conduct complained of is unlawful.
29 C.F.R. § 104.214(a).
24
such charge is made, unless the person aggrieved thereby was
prevented from filing such charge by reason of service in the
armed forces, in which event the six-month period shall be
computed from the day of his discharge.” 29 U.S.C. § 160(b).
The tolling provision differs from the two other
enforcement methods we have discussed. It does not treat an
employer’s failure to post the notice as an unfair labor practice,
or as evidence of one. The district court nevertheless enjoined
the Board from enforcing the provision. The court ruled that the
provision “substantially amends the statute of limitations that
Congress expressly set out in the statute” and therefore “exceeds
[the Board’s] statutory authority under Chevron step one.”21
Nat’l Ass’n of Mfrs., 846 F. Supp. 2d at 58. We agree.
The Board characterized this portion of its rule as providing
for “equitable tolling.” 76 Fed. Reg. at 54,033. The Supreme
Court’s decision in Zipes v. Trans World Airlines, Inc., 455 U.S.
385 (1982), the Board said, “strongly supports” its tolling rule.
Id. We do not see it that way. Zipes held that the statutory time
limit for charges under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-5(e), was a statute of limitations, not a
jurisdictional requirement. Zipes, 455 U.S. at 393. Citing four
cases from the courts of appeals, the Court analogized Title
VII’s provision to § 10(b): “[T]he time requirement for filing an
unfair labor practice charge under the National Labor Relations
Act operates as a statute of limitations subject to recognized
equitable doctrines and not as a restriction of the jurisdiction of
the National Labor Relations Board, see NLRB v. Local 264,
Laborers’ Int’l Union, 529 F.2d 778, 781–785 (CA8 1976);
Shumate v. NLRB, 452 F.2d 717, 720 (CA4 1971); NLRB v. A.
E. Nettleton Co., 241 F.2d 130, 133 (CA2 1957); NLRB v. Itasca
21
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984).
25
Cotton Mfg. Co., 179 F.2d 504, 506–507 (CA5 1950) . . ..” Id.at 395 n.11. These four circuit court decisions held only that
§ 10(b) was not jurisdictional; none of the cases dealt with any
equitable doctrines.
To derive support from Zipes, the Board must have thought
that its tolling rule fell within one of the “recognized equitable
doctrines.” Id. Yet the Board made no effort to demonstrate that
when § 10(b) became law in 1947, Congress would have had
any basis for assuming that the six-month limitations period
might be modified by the sort of tolling rule the Board
announced sixty-four years later. As we read the Supreme
Court’s decisions dealing with tolling and other equitable
modifications of statutes of limitations, that should have been
the critical consideration. See Gabelli v. SEC, 133 S. Ct. 1216,
1220–24 (2013); Credit Suisse Sec. (USA) LLC v. Simmonds,
132 S. Ct. 1414, 1419–21 (2012); John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 137–38 (2008); Young v. United
States, 535 U.S. 43, 49–51 (2002); TRW Inc. v. Andrews, 534
U.S. 19, 27–31 (2001); id. at 37–39 (Scalia, J., concurring);
Rotella v. Wood, 528 U.S. 549, 555–61 (2000); Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363
(1991); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96
(1990); see also 3M Co. v. Browner, 17 F.3d 1453, 1460–63
(D.C. Cir. 1994); Adam Bain & Ugo Colella, Interpreting
Federal Statutes of Limitations, 37 CREIGHTON L. REV. 493
(2004); John F. Manning, What Divides Textualists from
Purposivists, 106 COLUM. L. REV. 70, 81–82 & n.42 (2006).
We wrote in 3M, in response to a federal agency’s argument
for an “equitable” tolling exception to a statute of limitations,
that we “are interpreting a statute, not creating some federal
common law.” 17 F.3d at 1461. The key to interpreting a
limitations statute and to determining the intent of Congress is
whether the particular exception to a particular statute of
26
limitations was generally recognized when Congress enacted the
statute. See United States v. Kubrick, 444 U.S. 111, 119–20
(1979). It is not enough that courts engaged in some sort of
“equitable tolling” at the time Congress passed the limitations
statute. “[D]ifferent types of equitable tolling . . . have been
recognized at different times . . ..” Bain & Colella, supra, 37
CREIGHTON L. REV. at 502. What matters is whether a particular
basis for suspending the running of the statute of limitations had
received judicial recognition when the statute became law. See
Credit Suisse Sec., 132 S. Ct. at 1421. After all, “Congress
cannot intend to incorporate, by silence, various forms of
equitable tolling that were not generally-recognized in the
common law at the time of enactment.” Bain & Colella, supra,
37 CREIGHTON L. REV. at 503.
Thus, if a particular exception was generally recognized
when Congress enacted the statute of limitations, a court may
presume that Congress intended the same equitable exception to
apply to the statute. If, on the other hand, the exception was not
generally recognized at that time, a court could not presume that
Congress intended it to suspend the running of the statutory
period. Cf. Meyer v. Holley, 537 U.S. 280, 286 (2003)
(“Congress’[s] silence, while permitting an inference that
Congress intended to apply ordinary background tort principles,
cannot show that it intended to apply an unusual modification of
those rules.”).
Rather than following these legal principles, the Board
relied on an analogy to the long-established equitable doctrine
of fraudulent concealment.22 See 76 Fed. Reg. at 54,033. This
doctrine, which the Board has applied to toll the § 10(b)
22
See, e.g., Holmberg v. Armbrecht, 327 U.S. 392 (1946); Bailey
v. Glover, 88 U.S. (21 Wall.) 342 (1874).
27
limitations period,23 has three elements: “fraudulent concealment
tolls a statute of limitations when (1) there has been ‘deliberate
concealment’ of (2) ‘material facts’ relating to the alleged
wrongdoing and (3) the wronged party does not know of those
facts and could not have discovered them through ‘reasonable
diligence.’” Int’l Ass’n of Machinists & Aerospace Workers v.
NLRB, 130 F.3d 1083, 1087 (D.C. Cir. 1997) (quoting
Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977)); see
also Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 429 & n.19
(1960). The Board, using what it termed its “intuitive sense,”
determined that even if the employee knew all the facts, in
which event the fraudulent-concealment doctrine would not
apply, the § 10(b) period could be suspended if the employee
lacked knowledge of the law. 76 Fed. Reg. at 54,033.
As Justice Scalia put it in a concurring opinion, this is “bad
wine of recent vintage.” TRW, 534 U.S. at 37. The Board
neglected to tie its theory to anything the 1947 Congress might
have intended, and it contradicted the Supreme Court’s ruling in
Kubrick, 444 U.S. 111. Kubrick argued that the limitations
period in the Federal Tort Claims Act (28 U.S.C. § 2401(b))
should not begin running until he not only became aware of his
injury but also learned of the law giving him a cause of action.
In rejecting this argument, the Court refused to treat “a
plaintiff’s ignorance of his legal rights” as if it were the same as
“his ignorance of the fact of his injury,” Kubrick, 444 U.S. at
122, a point we relied upon in 3M, 17 F.3d at 1461 n.14, when
we rejected a similar argument.
The Board also cited a dozen or so circuit court and district
court cases holding that an employer’s failure to post notices
required by Title VII of the Civil Rights Act and by the Age
23
See, e.g., Don Burgess Constr. Corp., 227 N.L.R.B. 765(1977), enforced, 596 F.2d 378 (9th Cir. 1979).
28
Discrimination in Employment Act (ADEA) warranted tolling.
See 76 Fed. Reg. at 54,033–34. We take no position on whether
those cases were correctly decided in light of the line of
Supreme Court decisions mentioned earlier.24 Whatever their
validity, the two earliest cases the Board cited were decided in
1977 and 1978, more than thirty years after Congress enacted
§ 10(b). And in one of those—Kephart v. Inst. of Gas Tech., 581
F.2d 1287, 1289 (7th Cir. 1978)—the court rested its tolling
decision on the intent of Congress as reflected in a Conference
Committee report.25
The short of the matter is that the Board has not invoked
any authority suggesting that the 1947 Congress intended to
allow § 10(b) to be modified in the manner of the Board’s
tolling rule. Whether one frames the Board’s tolling rule as
resting on the employer’s failure to post the Board’s notice or on
the charging employee’s lack of knowledge of his rights under
the National Labor Relations Act, the Board marshaled nothing
to show that by 1947 this was a generally accepted basis for
tolling limitations periods. We have already mentioned the
Supreme Court’s 1979 decision in Kubrick, which seems to us
24
As the district court in this case stated, there appears to be a
split in the circuits on the question whether failure to post under Title
VII or the ADEA warrants tolling of the limitations period. See Nat’l
Ass’n of Mfrs., 846 F. Supp. 2d at 57 n.20.
25
Kephart, 581 F. 2d at 1289, and several of the other cases the
Board relied upon described tolling for failure to post a notice required
by statute as a “penalty.” See Posey v. Skyline Corp., 702 F.2d 102,
104–05 (7th Cir. 1983); Bonham v. Dresser Indus., Inc., 569 F.2d 187,
193 (3d Cir. 1977). The Board concedes that its authority is remedial
only and that it may not exact penalties. See 76 Fed. Reg. at 54,031,
54,037. The Supreme Court has so held. See Wis. Dep’t of Indus.,
Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 288 n.5
(1986).
29
at odds with the Board’s approach. It is also noteworthy that a
comprehensive—and widely cited—survey of the law of statutes
of limitations, published only three years after enactment of the
Taft-Hartley Act, contains no mention of any equitable doctrine
comparable to the one reflected in the Board’s rule. See
Developments in the Law: Statutes of Limitations, 63 HARV. L.
REV. 1177 (1950).26 Even today courts do not generally
recognize lack of knowledge of the law as a basis for equitable
tolling. Some of the more recent cases from the circuits, dealing
with a wide variety of statutes, are set forth in the margin.27 As
the Tenth Circuit stated in a case dealing with the limitations
period in the Railroad Retirement Act, 45 U.S.C. § 231h, “we
are aware of no authority . . . which suggests that ignorance of
the law should warrant equitable tolling of a statute of
26
Before the Harvard Law Review study in 1950, the only
comprehensive study of statutes of limitations in America was “the
fourth edition of Wood’s Limitations in 1916.” 63 HARV. L. REV. at
1177 (referring to H.G. WOOD, A TREATISE ON THE LIMITATION OF
ACTIONS AT LAW AND IN EQUITY (Matthew Bender & Co. 4th ed.
1916)). This treatise makes clear that there was no recognized
equitable doctrine permitting the tolling of a statute of limitations on
the ground that the injured party did not know the law. See 2 WOOD,
supra, § 276c(1), at 1408–11.
27
See, e.g., Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007);
Ormiston v. Nelson, 117 F.3d 69, 72 n.5 (2d Cir. 1997); United States
v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004); Fierro v. Cockrell, 294
F.3d 674, 683 (5th Cir. 2002); Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 561–62 (6th Cir. 2000);
Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006); Frisby v.
Milbank Mfg. Co., 688 F.3d 540, 544 (8th Cir. 2012) (Arkansas law);
Luna v. Holder, 659 F.3d 753, 760 (9th Cir. 2011); United States v.
Denny, 694 F.3d 1185, 1191 (10th Cir. 2012); Jackson v. Astrue, 506
F.3d 1349, 1356 (11th Cir. 2007); United States v. Pollard, 416 F.3d
48, 55 (D.C. Cir. 2005); Shoshone Indian Tribe of the Wind River
Reservation v. United States, 672 F.3d 1021, 1032 (Fed. Cir. 2012).
30
limitations.” Gatewood v. R.R. Retirement Bd., 88 F.3d 886, 890
(10th Cir. 1996).
We therefore hold that the Board’s tolling rule is contrary
to § 10(b).
IV
Because all three of the means for enforcing the Board’s
posting requirement are invalid, we do not decide whether, as
plaintiffs also contend, the Board lacked the regulatory authority
to issue subpart A of its rule—the requirement that employers
post the notice specified in the appendix to that subpart. Subpart
A clearly is not severable. See MD/DC/DE Broadcasters Ass’n
v. FCC, 236 F.3d 13, 22–23 (D.C. Cir. 2001). “Severance and
affirmance of a portion of an administrative regulation is
improper if there is ‘substantial doubt’ that the agency would
have adopted the severed portion on its own.” Davis Cnty. Solid
Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997) (per
curiam) (quoting North Carolina v. FERC, 730 F.2d 790,
795–96 (D.C. Cir. 1984) (Scalia, J.)). If a reviewing court
severed the regulation in that situation, it would be performing
a function left to the agency. See Fed. Power Comm’n v. Idaho
Power Co., 344 U.S. 17, 20–21 (1952); cf. Zuber v. Allen, 402
F.2d 660, 674 (D.C. Cir. 1968).28 Here we know that the Board
would not have issued a posting rule that depended solely on
voluntary compliance. We know this because the Board rejected
that regulatory option in the preamble to its final rule. See 76
Fed. Reg. at 54,031. Subpart A must therefore fall along with
the rest of the Board’s posting rule.
28
Unlike in cases such as Zuber and MD/DC/DE Broadcasters
Ass’n, in this case the Board did not include a severability clause in its
rule and it did not include a statement on severability in its preamble
to the final rule.
31
V
For the reasons stated, the Board’s posting rule is vacated.
Affirmed in part and reversed in part.
ADDENDUM
Appendix to Subpart A—Text of Employee Notice
“EMPLOYEE RIGHTS UNDER THE NATIONAL
LABOR RELATIONS ACT
The National Labor Relations Act (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 National Labor Relations
Board (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.
“Under the NLRA, you have the right to:
• Organize a union to negotiate with your
employer concerning your wages, hours, and other
terms and conditions of employment.
• Form, join or assist a union.
32
• Bargain collectively through representatives of
employees’ own choosing for a contract with your
employer setting your wages, benefits, hours, and other
working conditions.
• Discuss your wages and benefits and other terms
and conditions of employment or union organizing
with your co-workers or a union.
• Take action with one or more co-workers to
improve your working conditions by, among other
means, raising work-related complaints directly with
your employer or with a government agency, and
seeking help from a union.
• Strike and picket, depending on the purpose or
means of the strike or the picketing.
• Choose not to do any of these activities,
including joining or remaining a member of a union.
“Under the NLRA, it is illegal for your employer
to:
• Prohibit you from talking about or soliciting for
a union during non-work time, such as before or after
work or during break times; or from distributing union
literature during non-work time, in non-work areas,
such as parking lots or break rooms.
• Question you about your union support or
activities in a manner that discourages you from
engaging in that activity.
• Fire, demote, or transfer you, or reduce your
hours or change your shift, or otherwise take adverse
action against you, or threaten to take any of these
actions, because you join or support a union, or
because you engage in concerted activity for mutual
aid and protection, or because you choose not to
engage in any such activity.
• Threaten to close your workplace if workers
choose a union to represent them.
33
• Promise or grant promotions, pay raises, or other
benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons,
t-shirts, and pins in the workplace except under special
circumstances.
• Spy on or videotape peaceful union activities and
gatherings or pretend to do so.
“Under the NLRA, it is illegal for a union or for
the union that represents you in bargaining with your
employer to:
• Threaten or coerce you in order to gain your
support for the union.
• Refuse to process a grievance because you have
criticized union officials or because you are not a
member of the union.
• Use or maintain discriminatory standards or
procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to
discriminate against you because of your union-related
activity.
• Take adverse action against you because you
have not joined or do not support the union.
“If you and your co-workers select a union to act
as your collective bargaining representative, your
employer and the union are required to bargain in good
faith in a genuine effort to reach a written, binding
agreement setting your terms and conditions of
employment. The union is required to fairly represent
you in bargaining and enforcing the agreement.
“Illegal conduct will not be permitted. If you
believe your rights or the rights of others have been
violated, you should contact the NLRB promptly to
protect your rights, generally within six months of the
unlawful activity. You may inquire about possible
violations without your employer or anyone else being
34
informed of the inquiry. Charges may be filed by any
person and need not be filed by the employee directly
affected by the violation. The NLRB may order an
employer to rehire a worker fired in violation of the
law and to pay lost wages and benefits, and may order
an employer or union to cease violating the law.
Employees should seek assistance from the nearest
regional NLRB office, which can be found on the
Agency’s Web site: http://www.nlrb.gov.
You can also contact the NLRB by calling
toll-free: 1–866–667–NLRB (6572) or (TTY)
1–866–315–NLRB (1–866–315–6572) for hearing
impaired.
If you do not speak or understand English well,
you may obtain a translation of this notice from the
NLRB’s Web site or by calling the toll-free numbers
listed above.
“*The National Labor Relations Act covers most
private-sector employers. Excluded from coverage
under the NLRA are public-sector employees,
agricultural and domestic workers, independent
contractors, workers employed by a parent or spouse,
employees of air and rail carriers covered by the
Railway Labor Act, and supervisors (although
supervisors that have been discriminated against for
refusing to violate the NLRA may be covered).
“This is an official Government Notice and must
not be defaced by anyone.”
29 C.F.R. pt. 104, subpt. A, app.
KAREN LECRAFT HENDERSON, with whom Circuit Judge
BROWN joins, concurring:
I fully agree with Judge Randolph’s analysis of NLRA
section 8(c) and wholeheartedly concur in his well-reasoned
opinion. See 29 U.S.C. § 158(c). Judge Brown and I would also
hold, however, that the Board is without authority to promulgate
the posting rule under NLRA section 6 as well—the issue Judge
Randolph does not reach in light of his reliance on section 8(c).
Section 6 provides: “The Board shall have authority from time
to time to make, amend, and rescind, in the manner prescribed
by subchapter II of chapter 5 of Title 5, such rules and
regulations as may be necessary to carry out the provisions of
this subchapter.” 29 U.S.C. § 156. Such “general rulemaking
authority,” although facially broad, “does not mean that the
specific rule the agency promulgates is a valid exercise of that
authority.” Colo. River Indian Tribes v. Nat’l Indian Gaming
Comm’n, 466 F.3d 134, 139 (D.C. Cir. 2006). Here, I do not
believe the posting rule—which creates a new species of unfair
labor practice unforeshadowed in the NLRA’s text—constitutes
a valid exercise of the Board’s section 6 authority because the
rule is not, as section 6 requires, “necessary” to carry out the
express provisions of the Act.
In the Final Rule, the Board claims the posting rule is
necessary to carry out sections 1 and 7 of the NLRA, 29 U.S.C.
§§ 151, 157. See 76 Fed. Reg. at 54,007 (§ 1); id. at 54,032
(§ 7). Section 1 consists of four paragraphs of general findings
the Congress made to justify regulating the collective bargaining
process in order to eliminate and mitigate “substantial
obstructions to the free flow of commerce,” 29 U.S.C. § 151.
Section 7 sets out the general rights “as to organization,
collective bargaining, etc. . . . [that e]mployees shall have,” id.§ 157. Neither section contains any particularized “provision”
that the Board can “carry out” by regulation or otherwise.* In
*
In the only other challenge to a section 6 regulation, the United
States Supreme Court upheld a regulation prescribing eight (and only
2
the past, we have rejected such a “general declaration of policy,”
by itself, as authority for a specific regulation, observing that
“ ‘[a]ll questions of government are ultimately questions of ends
and means.’ ” Colo. River Indian Tribes, 466 F.3d at 139
(quoting Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 290
(D.C. Cir. 1993)). An agency, we have stated, 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.’ ” Id. at 139-40 (quoting MCI Telecomms.
Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 n.4 (1994)).
And the Congress, in enacting the NLRA, prescribed that the
Board use reactive means to enforce its policies—namely,
through an unfair labor practice proceeding initiated by a
charging party or by resolving representation and election issues
when so petitioned by a party. See 29 U.S.C. § 160(empowering Board “as hereinafter provided, to prevent any
person from engaging in any unfair labor practice” and
thereinafter providing “[w]henever it is charged that any person
has engaged in or is engaging in any such [ULP], the Board . . .
shall have power to issue and cause to be served upon such
person a complaint stating the charges”), § 159 (authorizing
Board to “investigate” a petition by employees or employer
regarding representation and elections “[w]henever a petition
shall have been filed, in accordance with such regulations as
may be prescribed by the Board”), § 161 (setting out Board’s
eight) appropriate bargaining units for acute care hospitals—a
regulation that was “necessary to carry out” the Board’s obligation
under one of the substantive provisions of the Act, namely, section
9(b) (“The Board shall decide in each case whether, in order to assure
to employees the fullest freedom in exercising the rights guaranteed
by this subchapter, the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof . . . .” 29 U.S.C. § 159(b)). See Am. Hosp. Ass’n
v. NLRB, 499 U.S. 609 (1991).
3
“Investigatory powers . . . [f]or the purpose of all hearings and
investigations, which, in the opinion of the Board, are necessary
and proper for the exercise of the powers vested in it by sections
159 and 160) (emphases added); see also Republic Steel Corp.
v. NLRB, 311 U.S. 7, 10 (1940) (NLRA “is essentially remedial”
and employee’s right thereunder “is safeguarded through the
authority conferred upon the Board to require the employer to
desist from the unfair labor practices described and to leave the
employees free to organize and choose their representatives”);
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984) (“Quite early
on, the Court established that ‘the relief which the statute
empowers the Board to grant is to be adapted to the situation
which calls for redress’ ” (quoting NLRB v. Mackay Radio &
Tel. Co., 304 U.S. 333, 348 (1938))).
The Final Rule also claims that, as a practical matter, the
posting rule is “necessary” to ensure that employees know both
what their rights are under the Act and that the Board protects
those rights—thereby enabling employees to exercise them
under the substantive provisions of the Act. It further asserts
that the Board “has reason to think that most [employees] do
not” have such knowledge given “the low percentage of
employees who are represented by unions, . . . ; the increasing
proportion of immigrants in the work force, who are unlikely to
be familiar with their workplace rights; and lack of information
about labor law and labor relations on the part of high school
students who are about to enter the labor force”—citing as
authority three law review articles. Final Rule, 76 Fed. Reg. at
54,006 & nn.3-4; see also Appellees/Cross-Appellants Br. 15-
16. Even assuming these speculative assertions have some
factual basis and, as well, that providing such information is
“necessary to carry out” the Act’s provisions, there is nothing
in the text of the NLRA to suggest the burden of filling the
“knowledge gap” should fall on the employer’s shoulders.
Unions and the NLRB are at least as qualified to disseminate
appropriate information—easily and cheaply in this information
4
technology age—and in fact already do so. See, e.g.,
http://www.nlrb.gov/rights-we-protect (NLRB’s explanation of
covered employee rights, its protection of concerted activity,
employer and employee reciprocal rights and obligations and its
jurisdiction over private employers). The NLRA—and section
6 in particular—simply does not authorize the Board to impose
on an employer a freestanding obligation to educate its
employees on the fine points of labor relations law. See
Chamber of Commerce of U.S. v. NLRB, 856 F. Supp. 2d 778,
792 n.13 (D.S.C. 2012) (“Here, the Board’s interpretation of
Section 6 as authorizing the rule does not incorporate any
labor-related expertise. See Hi-Craft Clothing Co.[ v. NLRB],
660 F.2d [910,] 918[ (3d Cir. 1981)] (‘This is not a question of
the Board applying a broad statutory term to a specified set of
facts, but is a case of straightforward statutory construction.’)”).
In sum, given the Act’s language and structure are
manifestly remedial, I do not believe the Congress intended to
authorize a regulation so aggressively prophylactic as the
posting rule. Accord Chamber of Commerce, 856 F. Supp. 2d
at 790-92; see Amalgamated Transit Union v. Skinner, 894 F.2d
1362, 1364 (D.C. Cir. 1990) (“Where Congress prescribes the
form in which an agency may exercise its authority, . . . we
cannot elevate the goals of an agency’s action, however
reasonable, over that prescribed form.”).