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54010
Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations

Statutory Authority, below, the Board
believes that it has been Congressionally
authorized to make this regulatory
decision in the interests of carrying out
the provisions of the Act.
Many comments argue that the Board
should heed the use of the word
"necessary" in Section 6. For instance,
the Portland Cement Association
comments that Section 6 requires the
Board to demonstrate that: (1) The
specific rule being proposed is, in fact,
necessary, and (2) the adoption of the
proposed rule will carry out one or more
specific provisions of the Act.39 The
Board believes, for the reasons
expressed in subsection C, Factual
Support, below, that the requisite
showing of necessity has been made.
And, as explained below, the adoption
of the proposed rule is consistent with
Section 1 and will help effectuate
Sections 7, 8, 9 and 10 of the NLRA.
The Board, however, disagrees with
the Motor & Equipment Manufacturers
Association's assertion based upon the
case of West Virginia State Board of
Education v. Barnette 40 that the Board
needs to show "a grave and immediate
danger" before enacting a rule. First,
that case held that that very rigorous
standard of review is required only
where a First Amendment freedom is
alleged to have been infringed. The
Court further noted that where the First
Amendment is not implicated, the
government may regulate an area so
long as it has a "rational basis" for
doing so. As explained in subsection B,
Statutory Authority, below, this rule
infringes upon no First Amendment
interests, and consequently, the rule
should be judged on a standard similar
to the "rational basis" test laid out in
Barnette. It was in fact just such a
deferential standard which the Supreme
Court used to examine the Board's
health care rule in AHA. There, the
Court found that even if it read Section
9 to find any ambiguity, it still would
have deferred to the Board's "reasonable
interpretation of the statutory text," and
found the Board authorized under
Sections 6 and 9 to enact the health care
bargaining unit rule at issue. 41 No
"grave and immediate danger" was
found to be required prior to the Board
enacting that rule. This ruling was also
consistent with the Supreme Court's
earlier holdings in Thorpe and
Mourning, in which regulations
promulgated under broadly phrased
grants of authority needed to be only

39 See also comment of Americans for Limited
Government, citing to AFL-CIO v. Chao, 409 F.3d
377, 391 (D.C. Cir. 2005) for the same principle.
40 319 U.S. 624, 639 (1943).
41 499 U.S. at 614.

"reasonably related to the purposes of
the enabling legislation." 42 For the
reasons shown below, that standard is
more than met in the present rule.
B. The Board's Statutory Authority To
Issue This Rule
The National Labor Relations Act
does not directly address an employer's
obligation to post a notice of its
employees' rights arising under the Act
or the consequences an employer may
face for failing to do so. However, as
stated, NLRA Section 6 empowers the
Board to promulgate legislative rules "as
may be necessary to carry out the
provisions" of the Act. 29 U.S.C. 156. A
determination of necessity under
Section 6 made by the Board, as
administrator of the NLRA, is entitled to
deference. See Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 86 (2002).
Furthermore, even in the absence of
express rulemaking authority, "the
power of an administrative agency to
administer a congressionally created
* * * program necessarily requires the
formulation of policy and the making of
rules to fill any gap left, implicitly or
explicitly, by Congress." Morton v. Ruiz,
415 U.S. 199, 231 (1974). Under the
well-known test articulated by the
Supreme Court in Chevron U.S.A. Inc. v.
Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), courts will
defer to the Board's reasonable
interpretation of a gap left by Congress
in the NLRA.
An examination of the provisions of
the whole law demonstrate how the
notice-posting rule is a legitimate
exercise of both legislative rulemaking
authority under Section 6 and implied
gap-filling authority under Chevron, 467
U.S. at 843. Section 1 of the NLRA
explains that Congress deliberately
chose the means of "encouraging the
practice and procedure of collective
bargaining" and "protecting the exercise
of workers of full freedom of
association, self-organization, and
designation of representatives of their
own choosing" in order to combat the
substantial burdens on commerce
caused by certain employer and labor
union practices as well as by the
inherent "inequality of bargaining
power between employees * * * and
employers." 29 U.S.C. 151.43 Section 7

42 Mourning, 411 U.S. at 369 (quoting Thorpe, 393
U.S. at 280-81).
43 These regulations are entirely compatible with
the national labor policy, as expressed in Section
1, "to eliminate the causes of certain substantial
obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when
they have occurred." 29 U.S.C. 151 (fifth
paragraph). As explained below, the Board's ability
to "eliminate" the causes of labor strife and
depressed wage rates, "which have the intent or

therefore sets forth the core rights of
employees "to self-organization"; "to
form, join, or assist labor organizations";
"to bargain collectively"; and "to engage
in other concerted activities"; as well as
the right "to refrain from any or all such
activities." Id. § 157. Section 8 defines
and prohibits union and employer
"unfair labor practices" that infringe on
employees' Section 7 rights, id. § 158,
and Section 10 authorizes the Board to
adjudicate unfair labor practice claims,
id. § 160, subject to the NLRA'S
procedural six-month statute of
limitations, see Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 395 n.11
(1982). Finally, Section 9 authorizes the
Board to conduct representation
elections and issue certifications. 29
U.S.C. 159.
Notably, the NLRA does not give the
Board or its General Counsel roving
investigatory powers. Although the
Board is specifically empowered to
"prevent" unfair labor practices, id.
§ 160(a), "[t]he Board may not act until
an unfair labor practice charge is filed
* * * alleging a violation of the Act."
2 The Developing Labor Law 2683 (John
E. Higgins, Jr. ed., 5th ed. 2006). In
addition, certification "procedures are
set in motion with the filing of a
representation petition." Id. at 2662. In
both instances, the initiating document
is filed by a private party. Id. at 2683
(citing 29 CFR 102.9); id. at 2662-63
(citing 29 U.S.C. 159(c)(1)(A), (B), and
(e)(1)).
Enforcement of the NLRA and
effectuation of Congress's national labor
policy therefore depend on the
existence of outside actors who are not
only aware of their rights but also know
where they may seek to vindicate them
within appropriate timeframes. The
Department of Labor made a similar
finding in an analogous rulemaking
proceeding under the Fair Labor
Standards Act: "effective enforcement of
the [FLSA] depends to a great extent
upon knowledge on the part of covered
employees of the provisions of the act
and the applicability of such provisions
to them, and a greater degree of
compliance with the act has been
effected in situations where employees
are aware of their rights under the law."
14 FR 7516, 7516 (Dec. 16, 1949). Given
the direct relationship between
employees' timely awareness of their
rights under the NLRA and the Board's

necessary effect of burdening or obstructing
commerce," id., depends on workers' knowledge of
their rights and the protections provided by the
NLRB. The Board therefore rejects the argument of
the Manufacturer's Association of South Central
Pennsylvania that both the notice-posting rule and
the Board's general assertion of rulemaking
authority are inconsistent with Section 1.

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