Comment on 4th Circuit Panel’s Decision in U.S. Chamber
v. NLRB
by Charles J. Morris
© 2013 Charles
J. Morris
The decision
in City of Arlington responded to the
question of “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that
concerns the agency’s statutory authority
(that is, its jurisdiction).” Justice Scalia’s majority opinion stressed
that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretation
is a mirage” and noted that “there is no
difference, insofar as the validity of agency action is concerned, between
an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its
exceeding authorized application of authority that it unquestionably has.” The Court concluded that these alleged
distinctions
can all be reframed as questions about the scope of agencies’
regulatory jurisdiction―and
they are all questions to which the Chevron
framework applies....Once those labels are sheared away it becomes clear that
the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or
not.
Among other things, the Supreme Court was repeating
the Chevron requirement that
If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress. [But] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
Chevron further
states that when the agency makes rules to fill the gap, “[s]uch legislative
regulations are given controlling weight unless they are arbitrary, capricious,
or manifestly contrary to the statute."
It is uncontested in this case that the notice-posting rule conforms to
the declared policy of the statute and is not arbitrary, capricious, or
manifestly contrary to the statute. This
is a garden-variety Chevron step-two case notwithstanding the obfuscation
created by the Duncan opinion.
Clearly the NLRA is silent as to the specific
issue, which is the promulgation of the notice-posting rule in question,
therefore step two clearly applies,
which means giving deference to the Board’s reasonable interpretation of its
authority―authority
which was expressly granted by Section 6 of the Act. Ignoring the aforesaid Chevron requirements for step
one, Judge Duncan’s opinion sought to use Chevron’s reference to “employing traditional tools of statutory
construction” in an attempt to justify her conclusion that the rule was not
authorized, hence a step one
situation, but her opinion overlooked that this reference limited such coverage
to Congressional “intention on the
precise question in issue” only, i.e. to the specific notice-posting
requirement. Instead, her opinion, which
evidently was based on a blinders view of the statutory scheme, asserted that
“there is no function or responsibility of the Board not predicated upon the
filing of an unfair labor practice charge or a representation petition” and
that “the Board is a reactive entity,” hence not intended to “allow proactive
rulemaking.” Even if that observation
were correct―which
it is not, for the Board has a recognized and long-established proactive
function―it would
not satisfy the Chevron or City of Arlington requirement of finding
specificity as to the action in issue.
Indeed, the Board has both adjudicatory (i.e.
quasi-judicial) and rulemaking (i.e. quasi-legislative) functions. It has issued innumerable proactive prophylactic rules regarding
employer conduct. For example: The rule requiring employers to provide unions
with the names and addresses of eligible voters in representative elections, Excelsior Underwear, Inc., 156 NLRB 1236
(1966), and NLRB v. Wyman-Gordon, 394 U.S. 759 (1969); the rule
prohibiting employers from enforcing no-solicitation rules on company property
in non-work areas on non-work time, violation of which constitutes Section
8(a)(1) “interference,” Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945); the rule requiring employers
in union-recognized workplaces to allow the presence of a union representative
during an investigatory-disciplinary hearing when requested by the interviewee,
otherwise Section 8(a)(1) is violated, NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975);
the rule prohibiting an employer from not allowing employees to discussing
wages among themselves, which would constitute a Section 8(a)(1) “interference,”
Jeannette Corp. v. NLRB, 532 F.2d 916 (3rd Cir.
1976); and the rule prohibiting employers from discharging employees for
concertedly quitting work to protest working conditions, which would violate
Section 8(a)(1), NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962).
Most of the Board’s rulemaking has been achieved through
the process of adjudication, which the Supreme Court has recognized to be a
choice the Board usually may make notwithstanding the Court’s expressed preference
for Section 6 rulemaking, NLRB v. Bell
Aerospace Co., 416 U.S. 267, 292-293 (1974). As the Court stated in that case, absent special circumstances the “function of filling in the interstices
of [legislation] should be performed as much as possible, through [Section 6]
quasi-legislative promulgation of rules to be applied in the future.” That Supreme Court preference was ignored by
Duncan’s opinion, which in effect deleted Section 6 from the Act, or at least denied
it any substantive functions. Likewise unmentioned
was the Supreme Court’s broad and clear description of the Board’s rulemaking
authority in American Hospital
Association v. NLRB (499 U.S. 606,613 (1991), which declared that
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.
Despite the panel’s efforts to limit the impact of that
case, the above definitive Supreme Court statement of the authority conferred
by Section 6 was never referred to or discussed in the Duncan opinion.
The key questions in this case closely resemble
what the Board and Supreme Court confronted in NLRB v. City Disposal systems, Inc., 465 U.S. 822 (1984), where the
Court upheld the Board’s definition of “concerted activity” in Section 7 to include
an employee’s assertion of a right grounded in a collective-bargaining
agreement. In City of Arlington the
Court cited City Disposal Systems for
the proposition that “Chevron applies
to cases in which an agency adopts a construction of a jurisdictional provision
of a statute it administers.”
Section 6’s authorization of the Board’s substantive
rulemaking, which was overtly reconfirmed by Taft-Hartley’s legislative history,
Legislative History of the Labor-Management Relations Act, 1947 (1974) at 49,
99, 109, 226, 317, 330, 336, 366, 426, and House Conference Report at 542,
which the Duncan opinion chose to ignore, fully supports the Board’s issuance
of the notice-posting rule which, for proper reasons was deemed “necessary” within the meaning of
Section 7. Likewise, the broad language
of Section 6, which covers all “provisions” of the Act, not just the reactive
ones designated by the Chamber and agreed to by the Duncan opinion, also covers
Sections 1, 7, and 8(a)(1).
The decision in Chamber
v. NLRB is thus ripe for reversal, hopefully by its own court pursuant to
en banc review.
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