HOUSE_OVERSIGHT_022280.jpg

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations
54009

in a Wagner Act-era Senate hearing, as cited by Americans for Limited Government (ALG), in which it was acknowledged that the language of Section 6 indeed grants "broad powers" to the Board.27

And in January of this year, a unanimous Supreme Court, in Mayo Foundation for Medical Education and Research v. United States, affirmed this key principle that a broad grant of statutory rulemaking authority conveys authority to adopt legislative rules.28 Mayo concerned in part the question of how much deference a Treasury Department tax regulation should receive. In Mayo, an amicus argued that the Treasury Department's interpretation should receive less deference because it was issued under a general grant of rulemaking authority, as opposed to an interpretation issued under a specific grant of authority.29 The Court responded by first explaining its earlier holding in U.S. v. Mead, that Chevron deference is appropriate "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." 30 Then, in significant part, the Court observed:

Our inquiry in that regard does not turn on whether Congress's delegation of authority was general or specific.
* * * * *
The Department issued the full-time employee rule pursuant to the explicit authorization to "prescribe all needful rules and regulations for the enforcement" of the Internal Revenue Code. 26 U.S.C. 7805(a). We have found such "express congressional authorizations to engage in the process of rulemaking" to be "a very good indicator of delegation meriting Chevron treatment." 31

And so, all nine members of the Supreme Court agreed on the following key principle: an express, albeit general, grant of rulemaking authority is fully sufficient for an agency to receive Chevron deference for its rulemaking. It follows that a broad grant of rulemaking authority will suffice for the agency to engage in legislative rulemaking in the first place. Thus, the Supreme Court's

rulings continue to fully support a broad construction of Section 6.

Disputing this conclusion, ALG asserts that Section 6 was intended to be used "primarily" for procedural rulemaking, and cites a Senate report from the Wagner Act's legislative history. That Senate report explains: "[i]n no case do the rules have the force of law in the sense that criminal penalties or fines accrue for their violation, and it seems sufficient that the rules prescribed must be ‘necessary to carry out the provisions’ of the act." 32 The Board disagrees. The cited language merely proclaims the obvious, that no criminal penalties or fines accrue for violating the Board's rules. However, laws such as the NLRA that do not impose criminal penalties or fines for their violation can also have the "force of law" (which is perhaps why the Senate report used the limiting phrase "in the sense of"). The Supreme Court has previously recognized that final Agency orders under Sections 10 (e) and (f) of the Act, despite their non-self enforcing nature, have "the force and effect of law." 33 So too, do the Board's rules have the force and effect of law, as held by the Supreme Court in AHA.34

Several comments discuss whether Board Rule 103.20, which mandates the posting of an election notice in a workplace three working days prior to a representation election, should be considered analogous to the proposed rule. The United Food and Commercial Workers International Union (UFCW) comments that the election rule is, like the proposed rule, only minimally burdensome and further noted that it has never been challenged. 35 ALG disagrees that the election rule should be considered analogous here, because although in the election context a notice posting is the most feasible means to inform employees about an upcoming election that is occurring at a specific

place and time, that is not the case in the NLRA rights context, in which employees can just search the Internet to find out more information. The Board agrees with the UFCW that posting a notice is a minimally burdensome way to ensure that employees receive certain information, although obviously, the proposed notice will reach many more employers over a much longer period of time than do election notices. And ALG's acknowledgment that a notice posting in the workplace is in fact sometimes the most feasible means to inform employees of important information supports the Board's belief, explained below, that workplace notice posting is a more efficient way of informing employees of their NLRA rights than relying on information available on the Internet.

A few comments argue that the Board is a law enforcement agency only, and should not be engaging in rulemaking for that reason. One comment asserts that "Congress did not intend to "empower the NLRB to be a rulemaking body, but rather an investigatory/enforcement agent of the NLRA." 36 The Board responds that by enacting Section 6, Congress plainly and explicitly intended to, and did, "empower the NLRB to be a rulemaking body." And, as shown above, AHA conclusively found that the Board is empowered to use its rulemaking powers, as the Court had previously indicated in Wyman-Gordon and Bell Aerospace.37

A joint comment submitted by Douglas Holtz-Eakin and Sam Batkins argues against the Board's assertion of Section 6 authority here by asserting that "the Supreme Court has circumscribed NLRB rulemaking in the past: 'The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.'" However, that comment neglects to provide the citation for that quotation, American Ship Building Co. v. NLRB,38 which was not a rulemaking case but an adjudication. In any event, the Board does not agree that this rule presumes to make a major policy decision properly made by Congress alone. As explained in subsection B,

27 Statement of Donald A. Callahan, U.S. Senate Committee on Education and Labor, March 29, 1935, Legislative History of the National Labor Relations Act, U.S. Government Printing Office, 1949, p. 2002.
28 131 S. Ct. 704, 713-14 (2011).
29 Id. at 713.
30 Id. (quoting United States v. Mead, 533 U.S. 218, 226-27 (2001)); see also Chevron, 467 U.S. at 842-43 (announcing two-part framework for determining whether courts should grant deference to agency interpretations of enabling statutes).
31 Mayo, 131 S. Ct. at 713-14 (emphasis added and citations omitted).
32 See Comparison of S. 2926 (73d Congress) and S. 1958 (74th Congress) 24 (Comm. Print 1935), reprinted in 1 Legislative History of the National Labor Relations Act, 1935, (1949) at 1349.
33 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54 (1975) (ordering disclosure of such Agency opinions under the FOIA, and quoting legislative history of the FOIA to that effect, H.R. Rep. No. 1497, p. 7, U.S. Code Cong. & Admin. News, 1966, p. 2424).
34 499 U.S. at 609-10. But even if one were to construe the report in the way advocated by the comment, such reports themselves do not have the force and effect of law, see Lincoln v. Vigil, 508 U.S. 182, 192 (1993); AHA, 499 U.S. at 616, and thus at best are only potential evidence of legislative intent.
35 However, it is incorrect that the rule has never been challenged; it has been challenged and upheld. See Pannier Corp. v. NLRB, 120 F.3d 603, 606-07 (6th Cir. 1997) (rejecting an as-applied challenge to Rule 103.20).
36 Comment of Manufacturers' Association of South Central Pennsylvania.
37 In National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir. 1973), the court rejected the argument that the FTC's prosecutorial functions rendered it unsuitable for issuing rules. By way of example, it noted that the NLRB is similar to the FTC in its methods of adjudication and enforcement, but the Supreme Court had repeatedly encouraged the Board to utilize its rulemaking powers. Id. at 684.
38 380 U.S. 300, 318 (1965).

HOUSE_OVERSIGHT_022280