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

16, 1949), promulgating 29 CFR 516.18, the predecessor to 29 CFR 516.4.

5. The Teamsters 357 Decision

In response to the NPRM, the U.S. Chamber of Commerce submitted a comment that questions "how the proposal can be said to be consistent with" the Supreme Court's decision in Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667 (1961). Specifically, the Chamber accuses the Board of ignoring the Court's admonition in that case warning that "[w]here * * * Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme." Id. at 675. The Chamber reads this statement out of context.

To understand why the Board disagrees with the Chamber's view, further explanation of Teamsters 357 is necessary. In that case, the Supreme Court rejected the Board's conclusion that a union had committed an unfair labor practice by operating an exclusive hiring hall pursuant to an agreement that contained a nondiscrimination clause but not three additional clauses that the Board had previously declared in its Mountain Pacific decision to be necessary to prevent "'unlawful encouragement of union membership.'" Id. at 671 (quoting Mountain Pacific Chapter, 119 NLRB 883, 897 (1958)). The Court first noted that Congress had examined the operation of hiring halls and had decided not to ban them. Id. at 673-74. Next, the Court observed that NLRA Section 8(a)(3) "'does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited.'" Id. at 674-75 (emphasis added) (quoting Radio Officers' Union v. NLRB, 347 U.S. 17, 42-43 (1954)). Since the hiring hall agreement at issue in Teamsters 357 "specifically provide[d] that there will be no discrimination * * * because of the presence or absence of union membership," the Court determined that the Board was attempting to protect against nondiscriminatory encouragement of union membership. Id. at 675. This was impermissible because "[w]here * * * Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme." Id. at 676.

Properly understood, Teamsters 357 does not preclude the Board from issuing the notice posting rule. The union had not committed an unfair labor practice in that case because its hiring hall agreement did not encourage or discourage union membership by "discrimination." See id. at 674-75. By faulting the union for not including in its agreement clauses that the Board's Mountain Pacific rule had declared necessary to prevent "'unlawful encouragement of union membership,'" id. at 671 (quoting Mountain Pacific Chapter, 119 NLRB at 897), the Board had attempted to regulate hiring halls in a manner that was facially inconsistent with the discrimination requirement embedded in NLRA Section 8(a)(3) and (b)(2). Accordingly, the Chamber makes too much of the Court's statement prohibiting the Board from "establish[ing] a broader, more pervasive regulatory scheme" when "specific discriminatory practices" have already been outlawed. Id. at 676. By that, the Court simply meant to remind the Board that it may not administratively amend Section 8(a)(3) and (b)(2) to prohibit nondiscriminatory activity that might be viewed as undesirable because those statutory sections are clearly aimed only at "specific discriminatory practices." Id.46

This rulemaking does not involve those provisions of the NLRA that Teamsters 357 addressed. Accordingly, the Board does not view that case as controlling the outcome of this proceeding.

6. Miscellaneous Matters

The Center on National Labor Policy, Inc., argues that the Board "must be mindful of the Supreme Court's admonition in Lechmere[, Inc.] v. NLRB, 502 U.S. 527, 534 (1992), that an employer possesses First Amendment rights to its property." The Board disagrees that the property rights discussed in Lechmere emanate from the First Amendment, see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21 (1994) ("The right of employers to exclude union organizers from their private property emanates from state common law * * *."), and to the extent that the Center's reference to the First Amendment asserts a conflict between these regulations and employers' right to free speech, that argument is rejected for reasons explained above. After quoting extensively from Lechmere, the Center next contends that "if a union has no access to company property to communicate with employees, neither does the Board without Section 10(c) authority." The Board rejects this argument because it fails to recognize the important substantive difference between the conduct at issue in Lechmere, which involved "'trespassory organizational activity'" by nonemployees on the employer's grounds, id. at 535 (quoting Sears, Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180, 205 (1978)), and the regulations here which involve nothing more than the employer's responsibility to post an official notice of legal rights.

The Portland Cement Association (PCA) comments that the Board's failure to place the three law review articles that the Board cited to the NPRM 47 in the administrative docket is arbitrary and capricious. Although the Board provided the legal citations for these articles, PCA believes that it should not have to pay an electronic legal reporting service to access the material. The Board has placed these articles in the hard copy docket, but has not uploaded these articles to the electronic docket at http://www.regulations.gov, because such an action could violate copyright laws.48

Finally, one comment contends that requiring employers to set aside wall space for posting the notices violates the Takings Clause of the Fifth Amendment to the U.S. Constitution. The comment cites no authority for this proposition, which would seem to invalidate the notice-posting requirements under all other Federal and state workplace statutes. Accordingly, the Board rejects this contention.

In conclusion, the Board believe that it has fully demonstrated that it possesses sufficient statutory authority to enact the final rule, and therefore that it is not "in excess of statutory jurisdiction" or "short of statutory right" within the meaning of the Administrative Procedure Act, Section 706(2)(C), 5 U.S.C. 706(2)(C).

C. Factual Support for the Rule

As stated above, the Board found that the notice posting rule is needed because it believes that many employees are unaware of their NLRA rights and therefore cannot effectively exercise those rights. The Board based this finding on several factors: the comparatively small percentage of private sector employees who are represented by unions and thus have ready access to information about the

46 To the extent that the Board espoused a contrary view of Teamsters 357 in a prior rulemaking proceeding, that view is abandoned. See Union Dues Regulation, 57 FR 43635, 43637-38 (Sept. 22, 1992), withdrawn, 61 FR 11167 (Mar. 19, 1996).

47 See NPRM, 75 FR 80411 and fn. 3 above.

48 The Board has also placed the other non-case materials cited to in this final rule into the hard copy docket.

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