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Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
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ability to protect and enforce those
rights, this rule is "necessary" for
purposes of Section 6.
Aside from the rule's manifest
necessity, the notice posting
requirement fills a Chevron-type gap in
the NLRA's statutory scheme. Thus, as
discussed, the purpose of Section 1, as
implemented in Sections 7 and 8, is to
encourage the free exercise and
enforcement of the Act's provisions, and
fulfillment of that purpose depends on
the private initiative of employees and
employers to commence Board
representation proceedings pursuant to
Section 9 and Board unfair labor
practice proceedings pursuant to
Section 10. The effective working of the
NLRA's administrative machinery
therefore presupposes that workers and
their employers have knowledge of the
rights afforded by the statute and the
means for their timely enforcement. The
statute, however, has no provision with
respect to making that knowledge
available, a subject about which the
statute is completely silent.
This statutory gap has always been
present but was of less significance in
earlier years when the density of union
organization was greater, since, as is
widely recognized, unions have been a
traditional source of information about
the NLRA's provisions. See Lechmere,
Inc. v. NLRB, 502 U.S. 527, 531-32
(1992) (reaffirming that the Section 7
rights of employees interested in union
organization depend to some extent on
their having access to unions); Harlan
Fuel Co., 8 N.L.R.B. 25, 32 (1938)
(holding that the rights guaranteed to
employees by Section 7 include "full
freedom to receive aid, advice and
information from others concerning
[their self-organization] rights"); cf.
Chamber of Commerce of the United
States v. Brown, 554 U.S. 60, 68 (2008)
(observing that Section 7 "implies an
underlying right to receive
information"). Moreover, as rates of
unionization have declined, employees
are less likely to have experience with
collective bargaining or to be in contact
with other employees who have had
such experience. The statutory gap is
thus now important to the Board's
administration of the NLRA and its role
in enforcing employees' rights.
As the Supreme Court has observed,
The responsibility to adapt the Act to
changing patterns of industrial life is
entrusted to the Board. * * * It is the
province of the Board, not the courts, to
determine whether or not the "need" [for a
Board rule] exists in light of changing
industrial practices and the Board's
cumulative experience in dealing with labor-
management relations. For the Board has the
"special function of applying the general

provisions of the Act to the complexities of
industrial life," and its special competence in
this field is the justification for the deference
accorded its determination.
NLRB v. J. Weingarten, Inc., 420 U.S.
251, 266 (1975) (citations omitted).
Consistent with this understanding of
the Board's role, the notice-posting
regulations represent an attempt to
"adapt the Act" in light of recent
realities and "the Board's cumulative
experience." Id. The rule is wholly
consistent with the aims of the NLRA,
and the "need" for it now is heightened
given the "changing patterns of
industrial life." Id.
For all these reasons, this rule is
entitled to deference regardless of how
it is characterized because it is
"reasonably related to the purposes of
the enabling legislation," Thorpe, 393
U.S. at 280-81, and constitutes a
"'reasonable interpretation' of the
enacted text," Mayo, 131 S. Ct. at 714
(quoting Chevron, 467 U.S. at 844).
In response to the NPRM, a number of
arguments have been made challenging
the Board's statutory authority to
promulgate the notice posting rule. As
explained below, the Board does not
find merit in any of these arguments.
1. Limitations on the Board's
Rulemaking Authority Implied by
Sections 9 and 10 of the Act
Of the comments that address the
Board's statutory authority to issue this
rule, many express agreement with the
dissenting views of Member Hayes that
were published in the NPRM. Member
Hayes criticized the basis for the rule
and questioned the Board's statutory
authority to promulgate and enforce it.
See 75 FR 80415. He specifically
referred to Section 10 as an obstacle to
the proposed rule, because it
"indicate[d] to [him] 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.
Many comments submitted in
response to the NPRM, such as those of
the Texas Association for Home Care &
Hospice and those of the Independent
Bakers Association, interpret Section 10
to prohibit the Board from ordering any
affirmative act that does not address the
consequences of an unfair labor
practice. Although this proposition may
be true when the Board acts through
adjudication—the administrative
function to which Section 10 directly
applies—it does not perforce apply
when the Board specifies affirmative
requirements via rulemaking under
Section 6. See Clifton v. FEC, 114 F.3d
1309, 1312 (1st Cir. 1997) ("Agencies
are often allowed through rulemaking to

regulate beyond the express substantive
directives of the statute, so long as the
statute is not contradicted.") (citing
Mourning). If it did, then the Board's
longstanding rule mandating that
employers post an election notice three
days before a representation election
would be subject to challenge on that
ground. See 29 CFR 103.20; see also
Pannier Corp., Graphics Div. v. NLRB,
120 F.3d 603, 606–07 (6th Cir. 1997)
(rejecting an as-applied challenge to
§ 103.20). Furthermore, under American
Hospital Association, the Board's
exercise of its broad rulemaking
authority under Section 6 is presumed
to be authorized unless elsewhere in the
Act there is "language expressly
describing an exception from that
section or at least referring specifically
to the section." 499 U.S. at 613. Section
10 does not refer to the Board's Section
6 authority.
Some comments, such as those of the
Council on Labor Law Equality
(COLLE), contend that the Board has no
authority whatsoever to administer the
NLRA unless a representation petition
or unfair labor practice charge has been
filed under Sections 9 or 10,
respectively. The Board declines to
adopt such a narrow view of its own
authority. Certainly, the Board cannot
issue certifications or unfair labor
practice orders via rulemaking
proceedings. But that is not what this
rule does. As explained above, by
promulgating the notice-posting rule,
the Board is taking a modest step that
is "necessary to carry out the
provisions" of the Act, 29 U.S.C. 156,
and that also fills a statutory gap left by
Congress in the NLRA.
Moreover, the argument advanced by
COLLE and others fails to appreciate
that the Board's authority to administer
the Act is not strictly limited to those
means specifically set forth in the
NLRA. Rather, as the Supreme Court has
recognized, the NLRA impliedly
authorizes the Board to take appropriate
measures "to prevent frustration of the
purposes of the Act." NLRB v. Nash-
Finch Co., 404 U.S. 138, 142 (1971). By
way of example, the Supreme Court
pointed out that its decisions had
recognized the Board's implied
authority to petition for writs of
prohibition against premature
invocation of the review jurisdiction of
the courts of appeals, see In re NLRB,
304 U.S. 486, 496 (1938); to institute
contempt proceedings for violation of
enforced Board orders, see
Amalgamated Util. Workers v. Con.
Edison Co., 309 U.S. 261 (1940); and to
file claims in bankruptcy for Board-
awarded backpay, see Nathanson v.
NLRB, 344 U.S. 25 (1952). Relying on

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