Notification of Employee Rights Under the National Labor Relations Act, 54006-54050 [2011-21724]

Agencies

• National Labor Relations Board

[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Rules and Regulations]
[Pages 54006-54050]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21724]



[[Page 54005]]

Vol. 76

Tuesday,

No. 168

August 30, 2011

Part II





 National Labor Relations Board





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29 CFR Part 104





Notification of Employee Rights Under the National Labor Relations Act; 
Final Rule

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

[[Page 54006]]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 104

RIN 3142-AA07


Notification of Employee Rights Under the National Labor 
Relations Act

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: On December 22, 2010, the National Labor Relations Board 
(Board) issued a proposed rule requiring employers, including labor 
organizations in their capacity as employers, subject to the National 
Labor Relations Act (NLRA) to post notices informing their employees of 
their rights as employees under the NLRA. This final rule sets forth 
the Board's review of and responses to comments on the proposal and 
incorporates any changes made to the rule in response to those 
comments.
    The Board believes that many employees protected by the NLRA are 
unaware of their rights under the statute and that the rule will 
increase knowledge of the NLRA among employees, in order to better 
enable the exercise of rights under the statute. A beneficial side 
effect may well be the promotion of statutory compliance by employers 
and unions.
    The final rule establishes the size, form, and content of the 
notice, and sets forth provisions regarding the enforcement of the 
rule.

DATES: This rule will be effective on November 14, 2011.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, 1099 14th Street, NW., 
Washington, DC 20570, (202) 273-1067 (this is not a toll-free number), 
1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Background on the Rulemaking

    The NLRA, enacted in 1935, is the Federal statute that regulates 
most private sector labor-management relations in the United States.\1\ 
Section 7 of the NLRA, 29 U.S.C. 157, guarantees that
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    \1\ Labor-management relations in the railroad and airline 
industries are governed by the Railway Labor Act, 45 U.S.C. 151 et 
seq.

    Employees shall have the right to self-organization, to form, 
join, or assist labor organizations, to bargain collectively through 
representatives of their own choosing, and to engage in other 
concerted activities for the purpose of collective bargaining or 
other mutual aid or protection, and shall also have the right to 
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refrain from any or all such activities[.]

    In Section 1, 29 U.S.C. 151, Congress explained why it was 
necessary for those rights to be protected:

    The denial by some employers of the right of employees to 
organize and the refusal by some employers to accept the procedure 
of collective bargaining lead to strikes and other forms of 
industrial strife or unrest, which have the intent or the necessary 
effect of burdening or obstructing commerce[.] * * *
* * * * *
    Experience has proved that protection by law of the right of 
employees to organize and bargain collectively safeguards commerce 
from injury, impairment, or interruption, and promotes the flow of 
commerce by removing certain recognized sources of industrial strife 
and unrest, by encouraging practices fundamental to the friendly 
adjustment of industrial disputes arising out of differences as to 
wages, hours, or other working conditions, and by restoring equality 
of bargaining power between employers and employees.
* * * * *
    It is declared to be the policy of the United States 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 by encouraging the practice and procedure of 
collective bargaining and by protecting the exercise by workers of 
full freedom of association, self-organization, and designation of 
representatives of their own choosing, for the purpose of 
negotiating the terms and conditions of their employment or other 
mutual aid or protection.

Thus, Congress plainly stated that, in its judgment, protecting the 
rights of employees to form and join unions and to engage in collective 
bargaining would benefit not only the employees themselves, but the 
nation as a whole. The Board was established to ensure that employers 
and, later, unions respect the exercise of employees' rights under the 
NLRA.\2\
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    \2\ The original NLRA did not include restrictions on the 
actions of unions; those were added in the Labor-Management 
Relations (Taft-Hartley) Act of 1947, 29 U.S.C. 141 et seq., Title 
I.
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    For employees to fully exercise their NLRA rights, however, they 
must know that those rights exist and that the Board protects those 
rights. As the Board explained in its Notice of Proposed Rulemaking 
(NPRM), 75 FR 80410, it has reason to think that most do not.\3\ The 
Board suggested a number of reasons why such a knowledge gap could 
exist--the low percentage of employees who are represented by unions, 
and thus lack an important source of information about NLRA rights; the 
increasing proportion of immigrants in the work force, who are unlikely 
to be familiar with their workplace rights; and lack of information 
about labor law and labor relations on the part of high school students 
who are about to enter the labor force.\4\
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    \3\ The Board cited three law review articles in which the 
authors contended that American workers are largely unaware of their 
NLRA rights, that the Board can take action to vindicate those 
rights, and that this lack of knowledge stands in the way of 
employees' effectively exercising their rights. Peter D. DeChiara, 
``The Right to Know: An Argument for Informing Employees of Their 
Rights under the National Labor Relations Act,'' 32 Harv. J. on 
Legis. 431, 433-434 (1995); Charles J. Morris, ``Renaissance at the 
NLRB--Opportunity and Prospect for Non-Legislative Procedural Reform 
at the Labor Board,'' 23 Stetson L. Rev. 101, 107 (1993); Morris, 
``NLRB Protection in the Nonunion Workplace: A Glimpse at a General 
Theory of Section 7 Conduct,'' 137 U. Pa. L. Rev. 1673, 1675-1676 
(1989). 75 FR at 80411.
    \4\ Id.
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    Of greatest concern to the Board, however, is the fact that, except 
in very limited circumstances, no one is required to inform employees 
of their NLRA rights.\5\ The Board is almost unique among agencies and 
departments administering major

[[Page 54007]]

Federal labor and employment laws in not requiring employers routinely 
to post notices at their workplaces informing employees of their 
statutory rights.\6\ Given this common practice of workplace notice-
posting, it is reasonable for the Board to infer that a posting 
requirement will increase employees' awareness of their rights under 
the NLRA.\7\ Further support for that position is President Obama's 
recent Executive Order 13496, issued on January 30, 2009, which 
stressed the need for employees to be informed of their NLRA rights. 
Executive Order 13496 requires Federal contractors and subcontractors 
to include in their Government contracts specific provisions requiring 
them to post notices of employees' NLRA rights. On May 20, 2010, the 
Department of Labor issued a Final Rule implementing the order 
effective June 21, 2010. 75 FR 28368, 29 CFR part 471.
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    \5\ The Board requires that employees be notified of their NLRA 
rights in only the following narrow circumstances: (1) For the three 
working days before a Board-conducted representation election, the 
employer is required to post a notice of election including a brief 
description of employee rights; see 29 CFR 103.20. (2) When an 
employer or a union has been found to have violated employee rights 
under the NLRA, it is required to post a notice containing a brief 
summary of those rights. (3) Before a union may seek to obligate 
newly hired nonmember employees to pay dues and fees under a union-
security clause, it must inform them of their right under NLRB v. 
General Motors, 373 U.S. 734 (1963), and Communications Workers v. 
Beck, 487 U.S. 735 (1988), to be or remain nonmembers and that 
nonmembers have the right to object to paying for union activities 
unrelated to the union's duties as the bargaining representative and 
to obtain a reduction in dues and fees of such activities. 
California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub 
nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied 
sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The same notice must 
also be given to union members if they did not receive it when they 
entered the bargaining unit. Paperworkers Local 1033 (Weyerhaeuser 
Paper Co.), 320 NLRB 349, 350 (1995), rev'd. on other grounds sub 
nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated sub 
nom. United Paperworkers Intern. Union v. Buzenius, 525 U.S. 979 
(1998). (4) When an employer voluntarily recognizes a union, the 
Board has required that the employer must post a notice informing 
employees: (i) That the employer recognized the union on the basis 
of evidence that it was designated by a majority of the unit 
employees; (ii) the date of recognition; (iii) that all employees, 
including those who previously signed cards for the recognized 
union, have the right to be represented by a labor organization of 
their choice, or no union at all; (iv) that within 45 days of the 
date of the notice a decertification or rival petition, supported by 
30 percent or more of the unit employees, may be filed with the 
Board and will be processed to an election; and, (v) that if no 
petition is filed within 45 days, the recognition will not be 
subject to challenge for a reasonable period to allow the employer 
and union to negotiate a collective-bargaining agreement. Dana 
Corp., 351 NLRB 434 (2007).
    \6\ See, e.g., Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e-10(a); Age Discrimination in Employment Act, 29 U.S.C. 
627; Family and Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair 
Labor Standards Act, 29 CFR 516.4 (implementing 29 U.S.C. 211). 75 
FR 80411.
    \7\ As set forth in the NPRM, two petitions were filed to 
address this anomaly. 75 FR 80411.
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    After due consideration, the Board has decided to require that 
employees of all employers subject to the NLRA be informed of their 
NLRA rights. Informing employees of their statutory rights is central 
to advancing the NLRA's promise of ``full freedom of association, self-
organization, and designation of representatives of their own 
choosing.'' NLRA Section 1, 29 U.S.C. 151. It is fundamental to 
employees' exercise of their rights that the employees know both their 
basic rights and where they can go to seek help in understanding those 
rights. Notice of the right of self-organization, to form, join, or 
assist labor organizations, to bargain collectively, to engage in other 
concerted activities, and to refrain from such activities, and of the 
Board's role in protecting those statutory rights is necessary to 
effectuate the provisions of the NLRA.
    The Board believes that the workplace itself is the most 
appropriate place for communicating with employees about their basic 
statutory rights as employees. Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, 
574 (1978) (``[T]he plant is a particularly appropriate place for the 
distribution of [NLRA] material.'').
    Accordingly, and pursuant to its rulemaking authority under Section 
6 of the NLRA, the Board proposed a new rule requiring all employers 
subject to the NLRA to post a copy of a notice advising employees of 
their rights under the NLRA and providing information pertaining to the 
enforcement of those rights. 75 FR 80411. For the reasons discussed 
more fully below, the Board tentatively determined that the content of 
the notice should be the same as that of the notice required under the 
Department of Labor's notice posting rule, 29 CFR part 471. Id. at 
80412. Also, as discussed at length below, the Board proposed that 
failure to post the notice would be found to be an unfair labor 
practice--i.e., to interfere with, restrain, or coerce employees in the 
exercise of their NLRA rights, in violation of Section 8(a)(1) of the 
NLRA. Id. at 80414. The Board also proposed that failure to post the 
notice could lead to tolling of the 6-month statute of limitations for 
filing unfair labor practice charges, and that knowing and willful 
failure to post the notice could be considered as evidence of unlawful 
motive in unfair labor practice cases. Id. The Board explained that the 
burden of compliance would be minimal--the notices would be made 
available at no charge by the Board (both electronically and in hard 
copy), and employers would only be required to post the notices in 
places where they customarily post notices to employees; the rule would 
contain no reporting or recordkeeping requirements. Id. at 80412. 
Finally, the Board expressed its position that it was not required to 
prepare an initial regulatory flexibility analysis of the proposed rule 
under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and that 
the notice posting requirement was not subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. Id. at 80415-80416.
    The Board invited comments on its legal authority to issue the 
rule, the content of the notice, the requirements for posting the 
notice, the proposed enforcement scheme, the definitions of terms in 
the proposed rule, and on its positions concerning the Regulatory 
Flexibility Act and the Paperwork Reduction Act. The Board stated that 
comments would be accepted for 60 days following the publication of the 
NPRM in the Federal Register, or until February 22, 2011. The Board 
received 6,560 comments by February 22. However, many late-filed 
comments were also submitted, and the Board decided to accept all 
comments that it received on or before March 23.\8\
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    \8\ March 23, 2011 was the date that the Board downloaded all of 
the electronic and (pdf. versions of) hard copy comments it had 
received from https://www.regulations.gov and subsequently uploaded 
into a text analytics tool for coding and review.
    A few commenters submitted their comments in both electronic and 
hard copy form. Because all comments received are included in the 
numbers cited in text above, those numbers overstate somewhat the 
number of individuals, organizations, etc. that submitted comments.
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    In all, 7,034 comments were received from employers, employees, 
unions, employer organizations, worker assistance organizations, and 
other concerned organizations and individuals, including two members of 
Congress. The majority of comments, as well as Board Member Hayes' 
dissent, oppose the rule or aspects of it; many opposing comments 
contain suggestions for improvement in the event the Board issues a 
final rule. Many comments, however, support the rule; a few of those 
suggest changes to clarify or strengthen the rule. The Board wishes to 
express its appreciation to all those who took the time to submit 
thoughtful and helpful comments and suggestions concerning the proposed 
rule.\9\
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    \9\ Many comments charge that the Board is issuing the rule for 
political reasons, to encourage and spread unionism, to discourage 
employers and employees from engaging in direct communication and 
problem solving, to drive up union membership in order to retain 
agency staff, and even to ``line [its] pockets.'' The Board responds 
that its reasons for issuing the rule are set forth in this 
preamble.
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    After careful consideration of the comments received, the Board has 
decided to issue a final rule that is similar to that proposed in the 
NPRM, but with some changes suggested by commenters. The most 
significant change in the final rule is the deletion of the requirement 
that employers distribute the notice via email, voice mail, text 
messaging or related electronic communications if they customarily 
communicate with their employees in that manner. Other significant 
changes include clarifications of the employee notice detailing 
employee rights protected by the NLRA and unlawful conduct on the part 
of unions; clarification of the rule's requirements for posting notices 
in foreign languages; allowing employers to post notices in black and 
white as well as in color; and exemption of the U.S. Postal Service 
from coverage of the rule. The Board's responses to the comments, and 
the changes in the rule and in the wording of the required notice of 
employee rights occasioned by the comments, are explained below. (In 
his dissent, Board Member Hayes raises a number of points that are also 
made in some of the comments. The Board's responses to those comments 
should be understood as responding to the dissent as well.) \10\
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    \10\ The Board majority's reasoning stands on its own. By its 
silence, the majority does not adopt any characterization made by 
the dissent of the majority's rationale or motives.

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[[Page 54008]]

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.
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    \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.
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    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\
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    \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.
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    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.
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    \15\ 131 S.Ct. 704, 713-14 (2011).
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    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:
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    \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).

    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\
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    \19\ Id. at 369 (quoting Thorpe, 393 U.S. at 280-81).

    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\
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    \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)).
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    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:
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    \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.

    As a matter of statutory drafting, if Congress had intended to 
curtail in a particular area the broad rulemaking authority granted 
in Sec.  6, we would have expected it to do so in language expressly 
describing an exception from that section or at least referring 
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specifically to the section.\26\

    \26\ Id. at 613 (emphasis added).
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    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

[[Page 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\
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    \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.
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    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:
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    \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).

    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\
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    \31\ Mayo, 131 S. Ct. at 713-14 (emphasis added and citations 
omitted).

    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\
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    \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.
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    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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,

[[Page 54010]]

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.
---------------------------------------------------------------------------

    \38\ 380 U.S. 300, 318 (1965).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 
``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.
---------------------------------------------------------------------------

    \40\ 319 U.S. 624, 639 (1943).
    \41\ 499 U.S. at 614.
    \42\ Mourning, 411 U.S. at 369 (quoting Thorpe, 393 U.S. at 280-
81).
---------------------------------------------------------------------------

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 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. Sec.  157. Section 8 defines and prohibits 
union and employer ``unfair labor practices'' that infringe on 
employees' Section 7 rights, id. Sec.  158, and Section 10 authorizes 
the Board to adjudicate unfair labor practice claims, id. Sec.  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.
---------------------------------------------------------------------------

    \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 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.
---------------------------------------------------------------------------

    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. Sec.  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

[[Page 54011]]

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 Sec.  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

[[Page 54012]]

that precedent in Nash-Finch Co., the Supreme Court concluded that the 
Board also had implied authority ``to enjoin state action where [the 
Board's] federal power preempts the field.'' 404 U.S. at 144. Like 
these judicially recognized powers, the notice-posting requirement that 
is the subject of this rulemaking has not been specifically provided 
for by Congress. But the cited cases demonstrate that Congress need not 
expressly list a power for the Board to legitimately exercise it. 
Indeed, the notice-posting requirement is not even an implied power of 
the Board in the same sense as those previously mentioned. Rather, it 
is the product of the Board's exercise of express rulemaking authority 
and inherent gap-filling authority, both of which have been delegated 
to the Board by Congress.
2. The First Amendment and Section 8(c) of the NLRA
    A handful of commenters argue that the notice-posting requirement 
violates the First Amendment to the Constitution, Section 8(c) of the 
NLRA, or both. For example, the Center on National Labor Policy, Inc. 
maintains that ``compelling an employer to post its property with a 
Notice that asserts the statutory `rights' and employer obligations, 
runs counter to constitutional views long protected by the Supreme 
Court.'' The Center also argues that the ``proposed poster would impede 
the employer's statutory right to express itself on its own property.'' 
Along these same lines, the National Right to Work Legal Defense 
Foundation, Inc. and others on whose behalf it writes contend that 
``the Board's proposal for forced speech favoring unionization directly 
conflicts with the First Amendment and longstanding federal labor 
policy under Section 8(c) that employers and unions should be able to 
choose themselves what to say about unionization.'' These concerns were 
echoed by the National Association of Wholesaler-Distributors. In 
addition, two attorneys affiliated with Pilchak Cohen & Tice, P.C., 
which they describe as ``a management-side labor and employment law 
firm,'' argue that the notice-posting requirement ``tramples upon 
employers' Free Speech rights by regulating the content of information 
that employers are required to tell employees and by compelling them to 
post the Notice containing pro-union NLRA rights, when it is almost 
assuredly not the employers' prerogative to do so.'' The Independent 
Association of Bakers goes further and characterizes the regulation as 
an unconstitutional ``gag order'' that ``prohibits the employer from 
telling the truth about the impact a union might pose to his 
business.'' The Board rejects these arguments.
    As an initial matter, requiring a notice of employee rights to be 
posted does not violate the First Amendment, which protects the freedom 
of speech. Indeed, this rule does not involve employer speech at all. 
The government, not the employer, will produce and supply posters 
informing employees of their legal rights. The government has sole 
responsibility for the content of those posters, and the poster 
explicitly states that it is an ``official Government Notice''; nothing 
in the poster is attributed to the employer. In fact, an employer has 
no obligation beyond putting up this government poster. These same 
considerations were present in Lake Butler Apparel Co. v. Secretary of 
Labor, 519 F.2d 84, 89 (5th Cir. 1975), where the Fifth Circuit 
rejected as ``nonsensical'' an employer's First Amendment challenge to 
the Occupational Safety and Health Act requirement that it post an 
``information sign'' similar to the one at issue here. As in Lake 
Butler, an employer subject to the Board's rule retains the right to 
``differ with the wisdom of * * * this requirement even to the point * 
* * of challenging its validity. * * * But the First Amendment which 
gives him the full right to contest validity to the bitter end cannot 
justify his refusal to post a notice * * * thought to be essential.'' 
Id.; see also Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309-10 (10th 
Cir. 1976) (dicta) (rejecting a constitutional challenge to a 
requirement that an employer post a copy of an OSHA citation).
    But even if the Board's notice-posting requirement is construed to 
compel employer speech, the Supreme Court has recognized that 
governments have ``substantial leeway in determining appropriate 
information disclosure requirements for business corporations.'' Pac. 
Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 15 n.12 (1985). This 
discretion is particularly wide when the government requires 
information disclosures relevant to the employment relationship. Thus, 
as the D.C. Circuit has observed, ``an employer's right to silence is 
sharply constrained in the labor context, and leaves it subject to a 
variety of burdens to post notices of rights and risks.'' UAW-Labor 
Employment & Training Corp. v. Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) 
(UAW v. Chao) (citing Lake Butler, 519 F.2d at 89). Accordingly, the 
Board's notice-posting requirement is not susceptible to a First 
Amendment challenge.\44\
---------------------------------------------------------------------------

    \44\ The decision of the intermediate state court in Smith v. 
Fair Employment & Housing Commission, 30 Cal. Rptr. 2d 395 (Cal. Ct. 
App. 1994), rev'd on other grounds, 913 P.2d 909 (Cal. 1996), lends 
no support to arguments challenging these regulations on First 
Amendment grounds. There, the California Court of Appeal held that a 
landlord's right to freedom of speech was ``implicate[d],'' id. at 
401-02, by a state fair housing agency's remedial order requiring 
her to sign, post, and distribute notices ``setting out the 
provisions of [the fair housing statute], the outcome of th[e] case, 
and the statement that [she] practices equal housing opportunity.'' 
913 P.2d at 914. The Smith case is not persuasive here because the 
notice at issue in Smith would not merely have set forth the rights 
of prospective buyers or renters but also would have contained a 
signed statement from the landlord which would have given the false 
appearance that she agreed with the state's fair housing ``concepts 
and rules,'' despite her religious beliefs to the contrary. 30 Cal. 
Rptr. 2d at 401. That feature of the case has no parallel here. 
Here, by contrast, employers are not required to sign the 
informational notice, and as noted, nothing in the poster is 
attributed to them. The Board further notes that the Smith decision 
is not authoritative because it was superseded by the California 
Supreme Court's grant of review in that case. See 913 P.2d at 916 
n.*.
---------------------------------------------------------------------------

    The Board is equally satisfied that the rule does not violate NLRA 
Section 8(c), 29 U.S.C. 158(c), which creates a safe harbor for 
noncoercive speech in the unfair labor practice area. Specifically, 
Section 8(c) shields from unfair labor practice liability ``[t]he 
expressing of any views, argument or opinion,'' provided that ``such 
expression contains no threat of reprisal or force or promise of 
benefit.'' Id. (emphasis added). A government poster containing 
accurate, factual information about employees' legal rights ``merely 
states what the law requires.'' Lake Butler, 519 F.2d at 89. For that 
reason, ``[t]he posting of the notice does not by any stretch of the 
imagination reflect one way or the other on the views of the 
employer.'' Id.\45\
---------------------------------------------------------------------------

    \45\ The Employers Association of New Jersey is therefore off 
the mark when it argues that the notice-posting requirement is 
preempted under the principles of Lodge 76, International Ass'n of 
Machinists & Aerospace Workers v. Wisconsin Employment Relations 
Commission, 427 U.S. 132 (1976), as an attempt to regulate employer 
speech ``about unionization and collective bargaining.'' As 
explained above, the employer's choice whether to express its own 
views, arguments, or opinions is wholly unaffected by a requirement 
to post a government-provided notice summarizing what the law 
requires. Indeed, consistent with both Machinists and the policy of 
Section 8(c) ```to encourage free debate on issues dividing labor 
and management,''' Brown, 554 U.S. at 67 (quoting Linn v. United 
Plant Guard Workers, Local 114, 383 U.S. 53, 62 (1966)), employers 
remain free under this rule--as they have in the past--to express 
noncoercive views regarding the exercise of these rights as well as 
others. See, e.g., United Techs. Corp., 274 N.L.R.B. 609, 609, 618-
20, 624-26 (1985), enforced sub nom. NLRB v. Pratt & Whitney Air 
Craft Div.v., United Techs. Corp., 789 F.2d 121 (2d Cir. 1986); 
Warrensburg Bd. & Paper Corp., 143 N.L.R.B. 398, 398-99 (1963), 
enforced, 340 F.2d 920 (2d Cir. 1965). For this reason, the Board 
finds it unnecessary to adopt the proposal made by the Pilchak 
attorneys to revise the rule to specify that employers ``may post a 
notice of equal dignity which advises employees of * * * additional 
rights and realities.'' Alternatively, the Pilchak attorneys propose 
that the Board amend the rule to permit employers to ``alter the 
Poster and include additional rights.'' Adopting this suggestion 
would compromise the integrity of the notice as a communication from 
the government. It, too, is therefore rejected.

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[[Page 54013]]

    But even if the new rule is understood to compel employer speech, 
Section 8(c) ```merely implements the First Amendment.''' Brown, 554 
U.S. at 67 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617 
(1969)). Thus, if a First Amendment challenge to the rule must fail, so 
too must a challenge based on Section 8(c). Such was the holding of the 
D.C. Circuit in UAW v. Chao. There, the court was presented with a 
preemption argument, grounded in Section 8(c), challenging a Federal 
procurement regulation that required contractors to post a notice 
informing their employees of certain NLRA rights. The D.C. Circuit 
interpreted Section 8(c) as coextensive with the scope of free speech 
rights protected by the First Amendment and upheld the procurement 
regulation in light of well-established free speech jurisprudence in 
the labor context. See 325 F.3d at 365.
3. Lack of Contemporaneity With the Enactment of the NLRA
    Several comments attack the notice-posting regulation for its lack 
of contemporaneity with the enactment of the NLRA. For example, many 
comments criticize the regulation by noting that ``this is a new rule 
interpreted into the Act 75 years after its passage.'' The Board 
rejects these contentions for two reasons.
    First, the Supreme Court has repeatedly ``instructed that `neither 
antiquity nor contemporaneity with [a] statute is a condition of [a 
regulation's] validity.''' Mayo, 131 S. Ct. at 712 (alterations in 
original) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740 
(1996)); see also Smiley, 517 U.S. at 740 (deferring to a regulation 
``issued more than 100 years after the enactment'' of the statutory 
provision that the regulation construed). Second, the argument fails to 
consider that much has changed since 1935, the year the NLRA was 
enacted. Unionization rates are one example. As pointed out in the NPRM 
and as confirmed by comments submitted by the Association of Corporate 
Counsel's Employment and Labor Law Committee, unionization rates 
increased during the early years of the Act,