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

II. Authority

Section 6 of the NLRA, 29 U.S.C. 156, provides that "The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act." As discussed in detail below, the Board interprets Section 6 as authorizing the rule.

A. The Board's Section 6 Rulemaking Authority

Numerous comments dispute the Board's statutory authority to enact the proposed rule. Many note the fact that the Board's rulemaking is constrained by Congressional intent as evidenced in its enabling statute. For instance, the American Trucking Association quotes a Ninth Circuit case explaining that Section 6 "does not authorize the Board to promulgate rules and regulations which have the effect of enlarging its authority beyond the scope intended by Congress," 11 and similarly, the Motor & Equipment Manufacturers Association asserts, "A regulation cannot stand if it is contrary to the statute." 12 The Board agrees that it may not exercise its rulemaking authority in a way contrary to that intended by Congress, but for the reasons discussed below it also does not believe that it has done so in this rule.

Several comments assert that because NLRA Section 6 is written in general, rather than specific, terms, the Board is not empowered to enact the proposed rule. For example, Associated Builders and Contractors argues that "the lack of express statutory language under Section 6 of the NLRA to require the posting of a notice of any kind 'is a strong indicator, if not dispositive, that the Board lacks the authority to impose such a requirement * * *.'' 13 And the Heritage Foundation likewise argues that the Board's reliance upon its general Section 6 rulemaking authority does not suffice to meet the Administrative Procedure Act's requirement that the NPRM must "reference the legal authority under which the rule is proposed." 14

The Board believes that these comments are in error because the courts' construction of other statutes' general rulemaking authority, as well as Section 6 in particular, fully support its reading of this statutory provision. In fact, earlier this year, the Supreme Court issued a decision in Mayo Foundation for Medical Education and Research v. United States 15 (discussed more fully below), unanimously reaffirming the principle that a general grant of rulemaking authority fully suffices to confer legislative (or binding) rulemaking authority upon an agency.

Even prior to Mayo, a long line of both non-NLRA and NLRA cases supported reading Section 6 in the manner suggested by the Board. Over forty years ago, in Thorpe v. Housing Authority, 16 the Supreme Court found that the expansive grant of rulemaking authority in Section 8 of the Housing Act was sufficient to grant legislative rulemaking power to the Department of Housing and Urban Development. The Court further noted that "[s]uch broad rule-making powers have been granted to numerous other federal administrative bodies in substantially the same language." 17 A few years later, in Mourning v. Family Publication Services, 18 the Court reaffirmed its stance in Thorpe:

Where the empowering provision of a statute states simply that the agency may 'make * * * such rules and regulations as may be necessary to carry out the provisions of this Act,' we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' 19

Following the Supreme Court's lead, key circuit decisions then extended the notion that broad grants of rulemaking authority conveyed legislative rulemaking power. 20 Although the Board had historically chosen to make policy by adjudications, the Supreme Court, consistent with the non-NLRA case law, used a pair of Board enforcement cases to unanimously emphasize the existence of the Board's legislative rulemaking authority, NLRB v. Wyman-Gordon Co.21 and NLRB v. Bell Aerospace.22

In 1991, after the Board enacted a rule involving health care units, the Supreme Court unanimously upheld that rule in American Hospital Association v. NLRB.23 The Supreme Court found that that the general grant of rulemaking authority contained in Section 6 of the Act "was unquestionably sufficient to authorize the rule at issue in this case unless limited by some other provision in the Act." 24 As in AHA, there is no such limitation here on the Board's authority to enact the proposed Rule, as explained further below. As Senator Tom Harkin and Representative George Miller 25 emphasized in their comment, the Supreme Court in AHA examined "the structure and the policy of the NLRA," in order to conclude:

As 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. 26

Thus, the Court could not have been clearer that unless the Board is "expressly" limited in some manner, Section 6 empowers the Board to make "such rules and regulations as may be necessary to carry out the provisions of this Act." This point was underscored

11 Gen. Eng'g, Inc. v. NLRB, 341 F.2d 367, 374 (1965).
12 Citing United States v. O'Hagan, 521 U.S. 642, 673 (1997). However, the Supreme Court actually held there that an agency's interpretation of its enabling statute must be given "controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute." (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). There, the Court upheld the rule and found it was not arbitrary, capricious, or manifestly contrary to the statute.
13 Quoting Member Hayes' dissent, 75 FR 80415.
14 See 5 USC 553(b)(2). For this conclusion, the Heritage Foundation cites Global Van Lines, Inc., v. ICC, 714 F.2d 1290, 1297-98 (5th Cir. 1983). But Global Van Lines did not find that a general statement of authority can never meet the APA's requirements to specify the legal authority for the rule. Instead, the Fifth Circuit held that that portion of the APA is violated when an agency chooses to rely on additional statutory provisions in support of its rule for the first time on appeal, and those grounds do not appear elsewhere in the administrative record. See id. at 1298-99. Here, in contrast, the grounds for the Board's rule are clearly laid out in subsection B, Statutory Authority, below.
15 131 S.Ct. 704, 713-14 (2011).
16 393 U.S. 268 (1969).
17 Id. at 277 n. 28 (citations omitted). The rulemaking grant there at issue provided that HUD may, "from time to time *** make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act," id. at 277, quite similar to Section 6 of the NLRA.
18 411 U.S. 356 (1973).
19 Id. at 369 (quoting Thorpe, 393 U.S. at 280-81).
20 Nat'l Ass'n. of Pharm. Mfrs. v. FTC, 637 F.2d 877, 880 (2d Cir. 1981) ("this generous construction of agency rulemaking authority has become firmly entrenched"); Nat'l Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 686 (D.C. Cir. 1973) ("plain, expansive language" of the rulemaking grant at issue, together with the "broad, undisputed policies" meant to be furthered by Congress's enactment of the Federal Trade Commission Act of 1914, sufficed to grant the FTC substantive rulemaking authority).
21 394 U.S. 759, 764 (1969) (plurality opinion of Fortas, J., joined by Warren, C.J., Stewart, J., and White, J.), 770 (Black, J., Marshall, J., and Brennan, J), 777, 779 (Douglas, J.), 783 n. 2 (Harlan, J.).
22 416 U.S. 267, 295 (1974) (majority opinion of Powell, J., and dissenting opinion of White, J. (and three other justices)).
23 499 U.S. 606 (1991) (AHA).
24 Id. at 609-10 (emphasis added).
25 (Hereafter, Harkin and Miller.) Senator Harkin is the Chairman of the Senate Committee on Health, Education, Labor, and Pensions. Representative Miller is Ranking Member on the House Committee on Education and the Workforce.
26 Id. at 613 (emphasis added).

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