Court analysis challenges NLRB's authority to require employer posting of NLRA rights

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54039 entitled to deference under the analysis set forth in Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron, where Congress has not “directly addressed the precise question at issue,”’ id. at 842-843, that rulemaking authority may be used in order “‘to fill any gap left, implicitly or explicitly, by Congress.” Id. at 843. Even assuming that the absence of an explicit posting requirement in the NLRA is not interpreted as clear expression of Congressional intent, the majority fails to persuade that Congress delegated authority in Section 6 of the NLRA for the Board to fill a putative statutory gap by promulgating a rule that an employer commits an unfair labor practice by failing to affirmative notify its employees of their rights under the NLRA. As the Supreme Court has explained, ‘the ultimate question is whether Congress would have intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007). There is no doubt that there are many gaps and ambiguities in the NLRA that Congress intended for the Board to address, using its labor expertise, either through adjudication or rulemaking. However, the existence of ambiguity in a statute is not enough per se to warrant deference to the agency’s interpretation of its authority in every respect. The ambiguity must be such as to make it appear that Congress either explicitly or implicitly delegated authority to cure that ambiguity. Am. Bar Ass’n v. FTC, 430 F.3d 457, 469 (D.C. Cir. 2005); Motion Picture Ass’n of America, Inc. v. FCC, 309 F. 3d 796, 801 (D.C. Cir. 2002) (“MPAA ’’) (“agency’s interpretation of [a] statute is not entitled to deference absent a delegation of authority from Congress to regulate in the areas at issue.”’). Thus, even when an administrative agency seeks to address what it believes is a serious interpretive problem, the Supreme Court has said that the agency “may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’’’ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125(2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517(1988)). Further, the statute at issue must be considered as a “symmetrical and coherent regulatory scheme.”’ Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). In our case, the exercise of rulemaking authority under Section 6 is not self-effectuating; it must be shown to relate reasonably to some other provision as part of the overall statutory scheme contemplated by Congress.175 Nothing in the text or the regulatory structure of the NLRA suggests that the Board has the authority to promulgate the notice-posting rule at issue in order to address a gap in the statutory scheme for resolving questions concerning representation through Section 9, or in preventing, through Sections 8 and 10, specifically enumerated unfair labor practices that adversely affect employees’ Section 7 rights. On the contrary, it is well-established that the Board lacks independent authority to initiate or to solicit the initiation of representation and unfair labor practice proceedings, and Section 10(a) limits the Board’s powers to preventing only the unfair labor practices listed in Section 8 of the Act. Yet the majority asserts that it may exceed these limitations by requiring employers to post a notice of employee rights and illustrative unfair labor practices at all times, regardless of whether a petition had been filed or an employer has been found to have committed an unfair labor practice. The majority’s reliance on a combination of Section 7, 8, and 10 warrants special mention. They reason that an employer interferes with Section 7 rights in general, and thereby violates Section 8(a)(1), by failing to give continuous notice to employees of those rights. It may be a truism that an employee must be aware of his rights in order to exercise them, but it does not follow that it is the employer under our statutory scheme who must provide enlightenment or else incur liability for violating those rights. The new unfair labor practice created by the rule bears no reasonable relation to any unfair labor practice in the NLRA’s pre- existing enforcement scheme developed over seven decades.!77 It certainly bears 176 See, e.g., Mourning v. Family Publications Service, Inc., 411 U.S. 356, (1973) Unlike here, the Federal Reserve Board easily met this standard in Mourning when issuing a disclosure regulation under the Truth in Lending Act, even though that Act did not explicitly require lenders to make such disclosures. In sustaining the regulation, the Court ound the regulation to be within the Federal Reserve’s rulemaking authority and, in light of the egislative history, the disclosure requirement was not contrary to the statute. ‘The crucial distinction, * * * [was that] the disclosure requirement was in act enforced through the statute’s pre-existing remedial scheme and in a manner consistent with it.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94 (2002). 177 The Senate report on the Wagner bill stressed that unfair labor practices were “‘strictly limited to those enumerated in section 8. This is made clear by paragraph 8 of section 2, which provides that ‘The term ‘unfair labor practice’ means unfair labor practice listed in Section 8,” and by Section 10(a) empowering the Board to prevent any unfair labor no relation to the few examples the majority can muster in Board precedent. The only instance with even a passing resemblance to the rights notice-posting requirement here is the requirement that a union give notice of Beck 178 and General Motors 17° rights. However, the failure to give such a notice is not per se unlawful. It becomes an unfair labor practice only when a union, without giving notice, takes the affirmative action of seeking to obligate an employee to pay fees and dues under a union-security clause.18° Beyond that, a union has no general obligation to give employees notice of their Beck and General Motors rights; much less does it violate the NLRA by failing to do so. By contrast, the rule promulgated today imposes a continuing obligation on employers to post notice of employees’ general rights and, even absent any affirmative act involving those rights, makes the failure to maintain such notice unlawful.181 Unlike my colleagues, I find that the Supreme Court’s opinion in Local 357, Teamsters v. NLRB, 365 U.S. 667 (1961), speaks directly to this point. In that case, the Board found a hiring hall agreement unlawfully discriminatory per se because, even though it included an express anti-discrimination practice “listed in Section 8.” Thus, “[nJeither the National Labor Relations Board nor the courts are given any blanket authority to prohibit whatever labor practices that in their judgment are deemed to be unfair.” S. Rep. No. 573, 74th Cong., 1st Sess. 17 (1935) at 8-9 reprinted in Legislative History of the National Labor Relations Act of 1935, Vol. Hat 2307-2308 (1985). 178 Communications Workers v. Beck, 487 U.S. 735 (1988). 179 NLRB v. General Motors, 373 U.S. 734 (1963). 180 California Saw & Knife Works, 320 NLRB 224, 233 (1995). 181 None of the FMLA cases cited by the majority support finding that a failure to post a general notice of employee rights under the NLRA is unlawful. In Bachelder, the Ninth Circuit actually ound “unavailing” the employer’s argument that it had satisfied all its specific FMLA notice obligations because it had complied with the FMLA’s general posting rule. Id. at 1127, In. 5. Rather, the court found that because the employer ailed to “notify” an employee which of the four FMLA’s “leave year” calculation methods it had chosen, the employer “interfered” with that employee’s rights and, therefore, improperly used he employee’s FMLA covered absences as a “negative factor’ when taking the affirmative adverse action of discharging her. Similarly, in neither Greenwell v. Charles Machine Works, Inc., 2011 WL 1458565 (W.D.Okla., 2011); Smith v. Westchester County, 769 F. Supp 2d 448 (S.D.N.Y. 2011), was the FMLA general posting requirement at issue. Smith did not involve a notice issue and Greenwell involved the employer’s failure to comply with a different notification obligation under the FMLA. In any event, as previously stated, FMLA expressly provides that employers give notice to employees of rights thereunder and expressly provides for sanctions if notice is not given. The NLRA does neither. HOUSE_OVERSIGHT_022310