HOUSE_OVERSIGHT_022310.jpg

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
54039

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