CHAMBER OF COMMERCE OF THE UNITED STATES; SOUTH CAROLINA CHAMBER OF COMMERCE, Plaintiffs - Appellees,
NATIONAL LABOR RELATIONS BOARD; MARK PEARCE, in his official capacity as Chairman of the National Labor Relations Board; BRIAN HAYES, in his official capacity as member of the National Labor Relations Board; LAFE SOLOMON, in his official capacity as General Counsel; RICHARD F. GRIFFIN, JR., Member; TERENCE F. FLYNN, Member; SHARON BLOCK, Member, Defendants-Appellants, and CRAIG BECKER, in his official capacity as member of the National Labor Relations Board, Defendant. CHARLES J. MORRIS; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; CHANGE TO WIN; NATIONAL EMPLOYMENT LAW PROJECT, Amici Supporting Appellants, THE HONORABLE JOHN KLINE, Chairman, Committee on Education and the Workforce, United States House of Representatives; JOE WILSON; RODNEY ALEXANDER; STEVE PEARCE; GREGG HARPER; PHIL ROE; GLENN THOMPSON; TIM WALBERG; LOU BARLETTA; LARRY BUCSHON; SCOTT DESJARLAIS; TREY GOWDY; JOE HECK; BILL HUIZENGA; MIKE KELLY; JAMES LANKFORD; KRISTI NOEM; ALANNUNNELEE; REID RIBBLE; TODD ROKITA; AND DANIEL WEBSTER, United States Representatives, Amici Supporting Appellees.
Argued: March 19, 2013
Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cv-02516-DCN)
Dawn L. Goldstein, NATIONAL LABOR RELATIONS BOARD, Washington, DC., for Appellants. Lemuel Gray Geddie, Jr., OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Greenville, South Carolina, for Appellees.
Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Margery E. Lieber, Deputy Associate General Counsel, Eric G. Moskowitz, Assistant General Counsel, Abby Propis Simms, Deputy Assistant General Counsel, Joel F. Dillard, Kevin P. Flanagan, Micah P. S. Jost, NATIONAL LABOR RELATIONS BOARD, Washington, DC., for Appellants.
Benjamin P. Glass, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Charleston, South Carolina, Cheryl M. Stanton, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, New York, New York, for Appellees; Robin S. Conrad, Shane B. Kawka, Rachel L. Brand, NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., Howard M. Radzely, Jonathan C. Fritts, David M. Kerr, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellee Chamber of Commerce of the United States. Charles J. Morris, Professor Emeritus of Law, Dedman School of Law, SOUTHERN METHODIST UNIVERSITY, San Diego, California, for Charles J. Morris, Amicus Supporting Appellants. Lynn Rhinehart, AMERICAN FEDERATION OF LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS, Washington, D.C., for American Federation Of Labor And Congress Of Industrial Organizations, Amicus Supporting Appellants; Walter Kamiat, Washington, D.C., for Change to Win, Amicus Supporting Appellants; Catherine K. Ruckelshaus, Tsedeye Gebreselassie, NATIONAL EMPLOYMENT LAW PROJECT, New York, New York, for National Employment Law Project, Amicus Supporting Appellants; Edgar N. James, Jeff Vockrodt, JAMES & HOFFMAN, PC, Washington, D.C., for Amici Curiae Supporting Appellants. Charles I. Cohen, David R. Broderdorf, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C.; Joshua W. Dixon, K&L GATES LLP, Charleston, South Carolina; Philip A. Miscimarra, Ross H. Friedman, Rita Srivastava, MORGAN, LEWIS & BOCKIUS LLP, Chicago, Illinois; Andriette A. Roberts, MORGAN, LEWIS & BOCKIUS LLP, New York, New York, for Amici Curiae Supporting Appellees.
Before DUNCAN, FLOYD and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Floyd and Judge Thacker joined.
DUNCAN, Circuit Judge
The National Labor Relations Board (the "NLRB" or the "Board"), after notice and comment, promulgated a rule that would require employers subject to the National Labor Relations Act (the "NLRA" or the "Act"), 29 U.S.C. §§ 151-169, to post an official Board notice informing employees of their rights under the Act. Any employer failing to post the notice would be subject to: (1) a finding that it committed an unfair labor practice; (2) a tolling of statutes of limitation for charges of any other unfair labor practices; and (3) a finding of anti-union animus that would weigh against it in any proceedings before the Board. Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54, 006 (Aug. 30, 2011) (codified at 29 C.F.R. pt. 104).
The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce (collectively, "the Chamber") sought final review of the rule. The district court determined that in promulgating the notice-posting rule, the Board exceeded its authority, in violation of the Administrative Procedure Act (the "APA"). Looking to the plain language of the NLRA, its structure, its legislative history, and the notice provisions in other statutes, the court concluded that the Act does not provide the Board with the power to enact such a rule. The court therefore granted summary judgment to the Chamber.
We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.
After discussing the structure and purpose of the NLRA, we describe the background of the challenged rule. We then briefly recount the procedural history of this case.
The NLRA governs relations between private sector employers, labor unions, and employees. Congress enacted the NLRA--originally referred to as the "Wagner Act, " after its sponsor, Senator Robert F. Wagner--in 1935. Pub. L. No. 74-198, 49 Stat. 449 (1935). The Act has since been amended three times, most recently in 1974. See Labor Management Relations Act ("Taft-Hartley Act"), Pub. L. No. 80-101, 61 Stat. 136 (1947); Labor Management Reporting and Disclosure Act ("Landrum-Griffin Act"), Pub. L. No. 86-257, 73 Stat. 519 (1959); Health Care Amendments, Pub. L. No. 93-360, 88 Stat. 395 (1974).
The first section of the Act lays out the national labor policy, which the Board is intended to promote "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." 29 U.S.C. § 151. Section 2 provides definitions, and Sections 3, 4, and 5 establish the Board and lay out its structure.
Section 6--the focus of this case--confers rulemaking power on the Board, providing it with the "authority from time to time to make, amend, and rescind, in the manner prescribed by [the APA], such rules and regulations as may be necessary to carry out the provisions of [the NLRA]." Id. § 156. Section 7 lists employees' core labor rights, including the rights to organize, join unions, bargain collectively through representatives of their choosing, and engage in concerted activities for collective bargaining or mutual aid and protection. Section 8 lays out five specific unfair labor practices ("ULPs"). Of particular significance to this case, Section 8(a)(1) makes it a ULP "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." Id. § 158(a)(1). Section 8(c) provides that the expression of views in any form "shall not constitute or be evidence of [a ULP] . . ., if such expression contains no threat of reprisal or force or promise of benefit." Id. § 158(c).
The core, specified functions of the NLRB are (1) to conduct representation elections, and (2) to prevent and resolve ULPs. Section 9 of the NLRA provides for the first of these, authorizing the filing of representation petitions, in which a petitioner alleges that a substantial number of employees wish to be represented by a union for collective bargaining. Under that section, the Board has the authority to investigate questions of representation, hold secret-ballot elections, and certify the results thereof. Section 10 provides the Board with the authority to investigate, prevent, and remedy ULPs. All proceedings under Sections 9 and 10 "originate with the filing of charges or petitions by employees, labor unions, private employers, and other private parties." NLRB, 2011 FY Performance and Accountability Report 12, available at http://www.nlrb.gov/sites/default/files/documents/189/nlrb_2011_ par_508.pdf (last visited May 31, 2013); see also Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. at 54, 010 ("In both instances, the initiating document is filed by a private party."). Thus, "[a]lthough the Board is specifically empowered to 'prevent' unfair labor practices, 'the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.' In addition, certification 'procedures are set in motion with the filing of a representation petition.'" Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. at 54, 010 (quoting 2 The Developing Labor Law 2662, 2683 (John E. Higgins, Jr. ed., 5th ed. 2006)) (alterations omitted).
The final provision relevant to this case, Section 11, gives the Board investigatory powers "necessary and proper for the exercise of the powers vested in [the Board]" by Sections 9 and 10, including the right to issue subpoenas. 29 U.S.C § 161. Because of the reactive nature of the Board's functions under Sections 9 and 10, Section 11 provides it with no "roving investigatory powers." Notification of Employee Rights Under the National Labor Relations Act, 76 ...