Chamber of Commerce v. NLRB

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:11-cv-02516-DCN. Mailed to: Charles J. Morries. [999129893]. [12-1757]

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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

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NUNNELEE; REID RIBBLE; TODD ROKITA;
United States Representatives,

AND

DANIEL

WEBSTER,

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
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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

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DUNCAN, Circuit Judge:
The
“Board”),

National
after

Labor

notice

Relations
and

Board

comment,

(the

“NLRB”

promulgated

a

or

rule

the
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 antiunion

animus

that

would

before the Board.
National

Labor

weigh

against

it

in

any

proceedings

Notification of Employee Rights Under the

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

sought final review of the rule.

(collectively,

“the

Chamber”)

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

provide the Board with the power to enact such a rule.
court therefore granted summary judgment to the Chamber.
4

not
The

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We

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agree

with

the

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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

employers, labor unions, and employees.
NLRA--originally

referred

to

as

the

5

sector

Congress enacted the

“Wagner

sponsor, Senator Robert F. Wagner--in 1935.

private

Act,”

after

its

Pub. L. No. 74-198,

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49 Stat. 449 (1935).

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The Act has since been amended three

times, most recently in 1974.

See Labor Management Relations

Act

L.

(“Taft-Hartley

Act”),

Pub.

No.

80-101,

61

Stat.

136

(1947); Labor Management Reporting and Disclosure Act (“LandrumGriffin 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

protecting

and

the

procedure
exercise

of

by

collective
workers

association,

self-organization,

representatives

of

negotiating

terms

the

their
and

own

of

full

and

choosing,

conditions

other mutual aid or protection.”

bargaining

of

and

freedom

designation
for

the

their

by
of
of

purpose

of

employment

or

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

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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,

their

bargain

choosing,

collectively

and

engage

in

through

representatives

concerted

activities

collective bargaining or mutual aid and protection.
lays

out

five

specific

unfair

labor

practices

of
for

Section 8

(“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

158(a)(1).

the

rights

guaranteed

in

[Section

7].”

Id.

§

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.”
The

core,

Id. § 158(c).

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.
that

section,

the

Board

has

the
7

authority

to

Under

investigate

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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

employers,
Performance

or

petitions

and

other

and

by

employees,

private

labor

parties.”

Accountability

Report

unions,
NLRB,

12,

private
2011

FY

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

with

are

representation

set

in

petition.’”

motion

Notification

the
of

filing
Employee

of

a

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
legislation, the NLRB’s reactive mandate stands in
contrast to the proactive roles of other labor agencies
have promulgated notice-posting requirements.
While the
only provides for processes that may be initiated by
(Continued)
8

labor
stark
that
NLRA
third

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The

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final

provision

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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

investigatory powers.”

11

provides

it

with

no

“roving

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

“Notification

of

promulgated
Employee

the

Rights

challenged
Under

the

rule,

titled

National

Labor

Relations Act,” on August 30, 2011, after a notice and comment
period.
Labor

Notification

Relations

Act,

of
76

Employee
Fed.

composed of three subparts.

Reg.

Rights
at

Under

54,006.

the

National

The

rule

is

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

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information

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and

procedures.”

information

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concerning

29 C.F.R. § 104.202(a).

basic

enforcement

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

notice, along with a remedial notice.

and

post

the

Id. § 104.213.

required
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

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charges.

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Id. § 104.214(a).

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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 noticeposting 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.”
Rules

Governing

Notification

of

Employee

Rights

Proposed
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.

3

The

Board

explained

that

Subpart C of the rule contains ancillary provisions not
relevant to this appeal.

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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 seventyseven 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

majority

rule,
of

the

Board

which

received

opposed

over

the

rule

7,000
or

submissions,

the

aspects

it.

of

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

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Notification
Relations

Filed: 06/14/2013

of

“dispute[d]

Act,

Employee
76

the

proposed rule.”

Fed.

board’s

Pg: 13 of 36

Rights
Reg.

Under

at

statutory

the

National

54,007.

Many

authority

to

Labor

comments
enact

the

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.

6

Additionally, 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

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Supp. 2d 34 (D.D.C. 2012).
to the NLRB.
to

the

D.C.

Pg: 14 of 36

That court granted summary judgment

The National Association of Manufacturers appealed
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. 356

7

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

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(1973).

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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

purposes

of

upheld
the

if

they

enabling

are

“reasonably

legislation.”

related

411

U.S.

(citations and internal quotation marks omitted).

to

the

at

369

The Board

reasons that Mourning provides the appropriate framework because
while

the

Chevron,

familiar

U.S.A.,

two-step

Inc.

v.

mode

Natural

of

analysis

Resources

laid

Defense

out

by

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.”
We
Chevron

find

this

case,

distinction

requires

that

a

Appellant’s Br. at 5.

untenable.
court

“defer

Mourning,
to

the

a

pre-

informed

experience and judgment of the agency to whom Congress delegated
appropriate

authority.”

411

U.S.
15

at

372

(emphasis

added).

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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.
Chamber’s view finds support in our precedent.

The

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
16

products

as

customarily

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marketed.’

However,

we

are

Pg: 17 of 36

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).
courts have followed the same approach.

Other

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).
a

rule

In AHA, the Supreme Court addressed a challenge to

defining

hospitals.

collective

bargaining

units

for

acute

care

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.
authorizes

The
the

Court

determined

Board

to

decide

that
whether
17

because
a

Section

designated

9(a)

unit

is

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appropriate for the purposes of collective bargaining, it could
promulgate
units

in

a

rule

acute

composition

proactively

care

of

such

defining

hospitals,
units

rather

through

collective
than

bargaining

determining

case-by-case

the

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.
issue

in

general

AHA

was

whether

Section

authority--granted

by

9(b)

Section

necessary to carry out Section 9.

limited
6--to

the

At

Board’s

enact

rules

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

representation elections.
Act’s

provisions

contain

ULP

charges

and

conducting

Indeed, the fact that none of the
language

specifically

limiting

the

Board’s authority to enact a notice-posting requirement reflects

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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).

narrow

be

statement

must

read

in

its

context;

it

This

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

the notice-posting rule under Chevron.

framework,

we

consider

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

unambiguously expressed intent of Congress.”
43.

effect

to

the

467 U.S. at 842-

Only “if the statute is silent or ambiguous with respect to

the specific issue” are we to proceed to Chevron’s second step,

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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

intent.

statutory

construction”

467 U.S. at 842 n.9.

to

ascertain

congressional

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

clear sense of congressional intent.”

found

to

yield

no

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.”
Bar

Ass’n,

430

F.3d

at

468

(citation

and

internal

Am.

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

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which

grants

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the

Board

Pg: 21 of 36

authority

to

issue

rules

“necessary to carry out” the provisions of the Act.

that

are

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

simply

that

the
the

empowering
agency

may

provision
‘make

.

of
.

a
.

statute
such

states

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

explained,

omitted).

However,

as

we

have

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

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Chevron’s second step.
the

informed

Congress
cannot

be

Mourning’s exhortation that we “defer to

experience

delegated
read

as

Pg: 22 of 36

and

judgment

appropriate
requiring

of

the

authority,”
us

to

defer

agency

id.
to

at
the

to

whom

372,

thus

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.’”
Bar Ass’n, 430 F.3d at 469 (quoting
1075, 1082 (D.C. Cir. 2001)).

Am.

Michigan v. EPA, 268 F.3d

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.”
384 (citation omitted).

AFL-CIO, 409 F.3d at

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

substantive provisions.”

Section

6

in

isolation

to

these

Chamber of Commerce v. NLRB, 856 F.

22

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Supp. 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

challenged

here

to

allow

through

the

proactive

rulemaking

of

the

sort

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 noticeposting 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

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determining

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whether

Congress

Pg: 24 of 36

has

specifically

addressed

the

question at issue, a reviewing court should not confine itself
to examining a particular statutory provision in isolation.
meaning--or
become

ambiguity--of

evident

when

certain

placed

in

words

or

context.”

phrases
FDA

v.

Williamson Tobacco Corp., 529 U.S. 133, 132 (2000).

may

The
only

Brown

&

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
Shell Oil Co., 519 U.S. 337, 341 (1997)).

Robinson v.

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.
reactive

roles:

We agree.

conducting

resolving ULP charges.

The NLRB serves expressly

representation

elections

and

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

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First,

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Section

aspirations

of

the

authority to act.
forth

the

1,

Pg: 25 of 36

which

NLRA,

lays
not

does

out

the

provide

purpose

and

Board

with

the

The Board argues that because Section 1 sets

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,

F.3d

466

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,

argument.

language

The

Board

in

the

contends

Board’s
that

own

the

brief

belies

challenged

rule

its
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,
“carried out.”

rights

are

not

functions

or

provisions

to

be

See Nat’l Ass’n of Mfrs., 2013 WL 1876234, at
25

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*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
provide

does
the

notices.
extends

Section

Board

8,

with

which

the

defines

power

to

ULPs

under

require

the

the

Act,

posting

of

The Board notes that its authority under Section 6
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

rights.

While

responsibility

to

educating
we

employees

recognize

“adapt

the

about

that

Act

to

the

their
Board

Section

changing

has

patterns

7
the
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

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bootstrap

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Section

8(a)(1)

Pg: 27 of 36

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
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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.”).

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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.
612.

AHA, 499 U.S. at

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.

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3.
We

also

particularly

find

the

vis-a-vis

history

of

the

congressional

NLRA

instructive,

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 “quasijudicial
labor

power”

being

practices

representatives

and
is

“restricted

to

to

in

cases

doubtful.”

S.

[the

enumerated]

which

Rep.

reprinted in 1 NLRA Leg. Hist. at 1100.

the

No.

unfair

choice

73-1184

of

(1934),

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.
No.

74-969

(1935),

reprinted

in

2

NLRA

Leg.

Cf. H.R. Rep.
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
30

its

employees

of

the

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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

13

at

the

very

least

that

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.

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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.
provision

was

very

similar

to

the

abrogation

and

This
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.
notice

requirements--which

were

signed
32

into

law

on

These

June

21,

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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

congressional regulation in the area.’”

of

evolving

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.
Polygraph

Protection

Act,

29

U.S.C.

§

2003;

See Employee

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

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occasion, Congress has amended a labor law to impose a noticeposting requirement.
2004,

Pub.

L.

No.

See Veterans’ Benefits Improvement Act of
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.
have

promulgated

mandates.

For

In contrast, other agencies that

notice-posting
instance,

requirements

the

EEOC,

which

have
is

proactive

granted

the

authority to require the posting of notices, 29 U.S.C. § 627; 42
U.S.C.

§

2000e-10(a);

proactively
regardless

file
of

42

U.S.C.

charges

whether

2000e-5(b), 2000e-8(a).

a

§

and

party

12115,

has

undertake

files

a

charge,

the

power

to

investigations,
42

U.S.C.

§§

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 noticeposting 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 noticeposting requirement, and we do not address that issue here. We
do note that requiring universal employer notice-posting is more
(Continued)
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Congress’s

continued

Pg: 35 of 36

exclusion

of

a

notice-posting

requirement from the NLRA, concomitant with its granting of such
authority

to

deliberate.

other

agencies,

can

fairly

be

considered

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

specifically to the topic at hand.”).

subsequently

and

more

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.

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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