National Ass'n of Manufacturers v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2012 Decided May 7, 2013

No. 12-5068

NATIONAL ASSOCIATION OF MANUFACTURERS, ET AL.,

APPELLANTS/CROSS-APPELLEES

v.

NATIONAL LABOR RELATIONS BOARD, ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with 12-5138

Appeals from the United States District Court

for the District of Columbia

(No. 1:11-cv-01629)

Maurice Baskin argued the cause for appellants/cross-

appellees. With him on the briefs were Peter N. Kirsanow,

Bryan Schwartz, Maynard Buck, Patrick O. Peters, Glenn M.

Taubman, William L. Messenger, John N. Raudabaugh, and H.

Christopher Bartolomucci. William G. Miossi entered an

appearance.

Doreen S. Davis, Charles I. Cohen, Jonathan C. Fritts, and

David R. Broderdorf were on the brief for amici curiae The

Honorable John Kline, Chairman, Committee of Education and

2

the Workforce, The House of Representatives, et al. in support

of appellants/cross-appellees.

Dawn L. Goldstein, Attorney, National Labor Relations

Board, argued the cause for appellees/cross-appellants. With her

on the briefs were 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, and Kevin P.

Flanagan, Attorney. Linda Dreeben, Deputy Associate General

Counsel, entered an appearance.

Lynn Rhinehart, Charles J. Morris, Christine L. Owens, and

Walter Kamiat were on the brief for amici curiae Professor

Charles J. Morris, et al. in support of appellees/cross-appellants.

Before: HENDERSON and BROWN, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Concurring opinion filed by Circuit Judge HENDERSON,

with whom Circuit Judge BROWN joins.

RANDOLPH, Senior Circuit Judge: The National Labor

Relations Board declared in a rule that employers subject to its

jurisdiction would be guilty of an unfair labor practice if they

did not post on their properties and on their websites a

“Notification of Employee Rights under the National Labor

Relations Act.” 76 Fed. Reg. 54,006 (Aug. 30, 2011). The rule

applies to “nearly 6 million” employers, “the great majority” of

which are small businesses. Id. at 54,042–43. Trade associations

and other organizations representing employers across the

country filed complaints in the district court, claiming that the

3

Board’s rule violated the National Labor Relations Act and the

First Amendment to the Constitution.

The Board’s action departs from its historic practice. From

its inception in 1935, the Board has exhibited a “negative

attitude” toward setting down principles in rulemaking, rather

than adjudication. Bell Aerospace Co. v. NLRB, 475 F.2d 485,

496 (2d Cir. 1973) (Friendly, J.), aff’d in part, rev’d in part, 416

U.S. 267 (1974); see also R. Alexander Acosta, Rebuilding the

Board: An Argument for Structural Change, Over Policy

Prescriptions, at the NLRB, 5 FIU L. REV. 347, 351 (2010);

Jeffrey S. Lubbers, The Potential of Rulemaking by the NLRB,

5 FIU L. REV. 411 (2010). Despite its “broad” rulemaking

authority under § 6 of the National Labor Relations Act, Am.

Hosp. Ass’n v. NLRB, 499 U.S. 606, 613 (1991), the Board had

“used rulemaking as a means of announcing—or

considering—its policies on only a few occasions” until 1989,

the year in which it issued the substantive regulation upheld in

American Hospital, ROBERT A. GORMAN & MATTHEW W.

FINKIN, BASIC TEXT ON LABOR LAW: UNIONIZATION AND

COLLECTIVE BARGAINING 21 (2d ed. 2004).

The path leading to the posting rule goes back to 1993 when

a law professor petitioned the Board. See 75 Fed. Reg. 80,410,

80,411 (Dec. 22, 2010). Despite prodding from this law

professor and, later, several others, the Board declined to act.

Then, in 2010, the Board issued a notice of proposed

rulemaking. Id. at 80,410. After receiving more than 7000

comments, the Board published a final rule on August 30, 2011,

with Member Hayes dissenting. 76 Fed. Reg. 54,006.

The final rule provides that “[a]ll employers subject to the

NLRA must post notices to employees, in conspicuous places,

informing them of their NLRA rights, together with Board

contact information and information concerning basic

4

enforcement procedures, in the language set forth in the

Appendix to Subpart A of this part.” 29 C.F.R. § 104.202(a). In

addition, employers who customarily communicate with their

employees electronically must publish the Board’s notice on

their intranet or internet sites. See id. § 104.202(f). The required

poster, which is published as an addendum to this opinion, must

be at least 11 inches by 17 inches and in a type size and format

the Board prescribes. See id. § 104.202(b). The poster informs

employees of their right to form, join, or assist a union; to

bargain collectively through representatives of their choosing;

to discuss wages, benefits, and other terms and conditions of

employment with fellow employees or a union; to take action to

improve working conditions; to strike and picket; or to choose

not to engage in any of these activities. See 29 C.F.R. pt. 104,

subpt. A, app. The poster also recites more specific employee

rights the Board derived from judicial and Board interpretations

of the Act. See 76 Fed. Reg. at 54,018.1 The poster states, for

example, that it is “illegal” for an employer to prohibit

employees “from wearing union hats, buttons, t-shirts, and pins

in the workplace” or to “[s]py on or videotape peaceful union

activities and gatherings or pretend to do so.” 29 C.F.R. pt. 104,

subpt. A, app. The poster also states that it is “illegal” for a

union to “[t]hreaten or coerce [an employee] in order to gain . . .

support for the union” or to “[r]efuse to process a grievance

because [the employee] ha[s] criticized union officials or . . . [is]

not a member of the union.” Id.

As an enforcement mechanism, the rule declares that an

employer’s failure to post the notice is an unfair labor

practice—that is, it “may be found to interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed by

1

The final rule states that if the law developed by the courts or

the Board changes, the Board may—by “rules, regulations, or

orders”—alter the poster’s content. 29 C.F.R. § 104.202(c).

5

NLRA Section 7, 29 U.S.C. 157, in violation of NLRA Section

8(a)(1), 29 U.S.C. 158(a)(1).” 29 C.F.R. § 104.210.

Section 7 of the Act provides that 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 refrain from any or all

of such activities except to the extent that such right

may be affected by an agreement requiring

membership in a labor organization as a condition of

employment as authorized in [section 8(a)(3) of the

Act].

29 U.S.C. § 157. (Under § 8(a)(1) it is an “unfair labor practice”

for an employer “to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in [section 7 of the Act].”

Id. § 158(a)(1).)

The rule contains two additional enforcement devices. The

Board may suspend the running of the six-month limitations

period for filing any unfair-labor-practice charge under § 10(b),

29 U.S.C. § 160(b), “unless the employee has received actual or

constructive notice that the conduct complained of is unlawful.”

29 C.F.R. § 104.214(a). And the Board may consider an

employer’s “knowing and willful refusal to comply with the

requirement to post the employee notice as evidence of unlawful

motive in a case in which motive is an issue.” Id. § 104.214(b).

The Board invoked § 6 of the Act as authority for the rule.

That section provides that the “Board shall have authority from

time to time to make, amend, and rescind, in the manner

6

prescribed by [the Administrative Procedure Act], such rules

and regulations as may be necessary to carry out the provisions”

of the Act. 29 U.S.C. § 156. The Board thought the rule was

necessary because employees were not aware of their rights

under the Act. See 76 Fed. Reg. at 54,006. The Board offered

three reasons why: unions now represent only a small

percentage of the private workforce, by the latest count just 7.3

percent;2 immigrants make up “an increasing proportion of the

nation’s work force” and “are unlikely to be familiar with their

workplace rights”; and many high-school students about to enter

the work force are not familiar with labor laws. 75 Fed. Reg. at

80,411.

“Enforcement of the NLRA,” the Board stated, “depend[s]

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.” 76 Fed. Reg. at 54,010.

By this, the Board meant that unfair-labor-practice cases must

begin with a charge filed by an employee or a union or an

employer. “The charge triggers an inquiry that may (or may not)

result in the issuance of a complaint by the Board . . . . However,

neither the Board nor its agents are authorized to institute

charges sua sponte.” GORMAN & FINKIN, BASIC TEXT ON LABOR

LAW, supra, at 10. Board orders finding an unfair labor practice

after proceedings on a complaint are “not self-executing.” Id. at

14. Rather, the Board must petition a court of appeals for

enforcement—that is, for a court order requiring the offending

party to comply with the Board’s order. See id.

2

The Bureau of Labor Statistics reported that unions represented

7.3 percent of private-sector employees in 2012. Press Release,

Bureau of Labor Statistics, Union Members–2012 (table 3) (Jan. 23,

2013), available at http://www.bls.gov/news.release/pdf/union2.pdf.

7

Member Hayes, dissenting, disputed both the Board’s

authority under § 6 and the evidentiary support the Board

majority relied upon in concluding the posting rule was needed.

See 76 Fed. Reg. at 54,037–42.

On cross-motions for summary judgment, the district court

ruled as follows. The court first decided that the Board had the

authority, under § 6 of the Act, to promulgate the posting rule.

See Nat’l Ass’n of Mfrs. v. NLRB, 846 F. Supp. 2d 34, 48

(D.D.C. 2012). Citing Mourning v. Family Publications Service,

Inc., 411 U.S. 356, 369 (1973), and other decisions, the court

determined that the rule was reasonably related to the purposes

of the Act, and that the plaintiffs’ contrary arguments, based

mainly on the Act’s legislative history, were unpersuasive. See

id. at 43–48. But citing § 8(a)(1) and § 8(c), of which more

hereafter, the court ruled that the Board had no authority to

make a “blanket advance determination that a failure to post will

always constitute an unfair labor practice,” although the court

did not preclude such a finding in an individual case. Id. at

54–55. The district court also held invalid the section of the rule

tolling the § 10(b) limitations period if the employer failed to

post the notice. Whether there should be tolling, the court ruled,

depended on equitable considerations that had to be determined

on a case-by-case basis. See id. at 55–58. As to the part of the

rule that permitted an employer’s failure to post to be considered

as evidence of an improper motive, the court asserted, first, that

plaintiffs had not made a specific argument against this

provision, and second, that even if they had done so, the court

would uphold it because “the Rule does not make a blanket

finding that will govern future individual adjudications or create

a presumption of anti-union animus whenever an employer fails

to post the provision.” Id. at 63 & n.26.

Having determined that two of the rule’s provisions were

invalid, the court turned to the question whether the entire rule

8

should fall. The court held that the Board would have wanted the

posting requirement to stand even if two of three means of

enforcing it were invalid. See id. at 61–63.

The case is here on plaintiffs’ appeal and the Board’s cross-

appeal.3

One month after the district court issued its opinion, the

United States District Court for the District of South Carolina

held that the Board lacked authority to promulgate the rule. See

Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778

(D.S.C. 2012). The appeal in that case is now pending before the

Fourth Circuit.

I

Although the parties have not raised it, one issue needs to

be resolved before we turn to the merits of the case. After oral

argument in this case, we held that a recess appointment is

constitutionally valid only if the appointment is made during an

intersession recess of the Senate, to fill a vacancy that arose

during that same intersession recess. See Noel Canning v. NLRB,

705 F.3d 490, 506, 512, 514 (D.C. Cir. 2013). The Board had

four members when the Federal Register published the proposed

notice-posting rule on December 22, 2010. Three members,

Wilma B. Liebman, Mark G. Pearce, and Brian Hayes, were

confirmed by the Senate. See 156 CONG. REC. S5281 (daily ed.

June 22, 2010) (Pearce and Hayes); 152 CONG. REC. S8906–07

3

On April 17, 2012, a panel of this court granted plaintiffs’

motion for a stay of the rule pending these appeals. See Nat’l Ass’n of

Mfrs. v. NLRB, No. 12-5068, 2012 WL 4328371 (D.C. Cir. Apr. 17,

2012) (unpublished order).

9

(daily ed. Aug. 3, 2006) (Liebman).4 The fourth member, Craig

Becker, was appointed by the President on March 27, 2010,

during an intrasession recess of the Senate. To the extent that

Noel Canning applies—we assume, without deciding, that it

does—Becker’s appointment was constitutionally invalid.

The Board can lawfully act with a quorum of three

members. See 29 U.S.C. § 153(b); New Process Steel, L.P. v.

NLRB, 130 S. Ct. 2635, 2640 (2010). Chairman Liebman’s term

expired on August 27, 2011. Her seat was not immediately

filled. That left the Board without a valid quorum by the time

the final rule was published in the Federal Register on August

30, 2011. But assuming, again without deciding, that the

existence of a valid quorum is a jurisdictional issue or that we

otherwise may exercise our discretion to raise the issue sua

sponte, we see no problem here.

The Federal Register Act requires a regulation (or other

document) to be filed with the Office of the Federal Register

before it is published in the Federal Register. See 44 U.S.C.

§ 1503.5 The date and time of filing is noted on the document,

and upon filing, a copy of the document is immediately

available for public inspection in the Office of the Federal

Register, even though the document will not be published until

4

Wilma Liebman had been confirmed on November 8, 1997, for

the remainder of the term that expired on December 16, 1997, and for

a term that expired on December 16, 2002, see 143 CONG. REC.

S12,214 (daily ed. Nov. 8, 1997), and on November 14, 2002, for a

term that expired on August 27, 2006, see 148 CONG. REC. S11,031

(daily ed. Nov. 14, 2002).

5

Receipt of the document by the Office does not constitute

“filing.” Rather, a document is filed for public inspection “only after

it has been received, processed and assigned a publication date.” 1

C.F.R. § 17.2(a).

10

later. See id.6 The Federal Register Act further provides that the

filing of a document required to be published in the Federal

Register constitutes constructive notice to anyone subject to or

affected by it. See 44 U.S.C. § 1507.

In light of these provisions, we believe the date of filing is

the relevant time for determining whether the Board had a valid

quorum. Chairman Liebman signed the final rule on August 22,

2011, and the rule was filed with the Office of the Federal

Register on August 25, 2011, before her term expired, when the

Board still had a constitutionally appointed quorum. Once the

rule was filed with the Office of the Federal Register, the Board

had taken all the steps necessary to issue the rule—there was

nothing left for the Board to do. All that remained was for the

rule to be published in the Federal Register, but that was in the

hands of the Office of the Federal Register.

The Office of Legal Counsel of the Department of Justice

has also taken the view that, for purposes of determining

whether an agency has complied with a statutory deadline for

issuing regulations, promulgation takes place when the final

regulations are filed with the Office of the Federal Register,

regardless of when the regulations are published in the Federal

Register. See Federal Register Act—Date of “Promulgation” of

Law Enforcement Assistance Admin. Regs., 1 Op. O.L.C. 12

(1977).

We employed similar reasoning in Braniff Airways, Inc. v.

Civil Aeronautics Board, when we concluded that an order of

the Civil Aeronautics Board was valid even though the chairman

resigned and the Board thereby lost a quorum between the time

6

Documents are also posted to the Office’s website. See

Electronic Public Inspection Desk, Office of the Federal Register,

http://www.ofr.gov/inspection.aspx.

11

the order was signed and entered and the time it was served on

the parties. See 379 F.2d 453, 459 (D.C. Cir. 1967). Although

the Aeronautics Board had stated that “a ‘proposed decision of

the Board does not become effective until an opinion and order

. . . has been approved, issued, and served,’” our view was that

“once all members have voted for an award and caused it to be

issued the order is not nullified because of incapacity,

intervening before the ministerial act of service, of a member

needed for a quorum.” Id.

We recognize that in determining the timeliness of petitions

for review of agency rules, we have concluded that

“promulgation” takes place when a rule is published in the

Federal Register. See Horsehead Res. Dev. Co. v. EPA, 130 F.3d

1090 (D.C. Cir. 1997); Nat’l Grain & Feed Ass’n v.

Occupational Safety & Health Admin., 845 F.2d 345 (D.C. Cir.

1988) (per curiam). But the question when a rule is eligible for

judicial review is not the same as the question posed in this

case—namely, what is the time for testing the validity of the

Board’s rule. In National Grain, we distinguished between

“issuance” and “promulgation” to determine the timeliness of a

petition for review of an Occupational Safety and Health

Administration standard. The statute provided for review of a

standard “issued” under the statute no later than sixty days after

the standard was “promulgated.” Nat’l Grain & Feed Ass’n, 845

F.2d at 345 (quoting 29 U.S.C. § 655(f)) (emphasis omitted).

The agency’s regulations stated that a standard was issued when

it was “‘officially filed in the Office of the Federal Register.’”

Id. (quoting 29 C.F.R. § 1911.18(d)). But the agency had not

defined the term “promulgate,” and without a regulation

equating the date of promulgation with the date of issuance, we

declined the agency’s request to treat the terms as synonymous.

See id. at 345–46.

12

We are not constrained by such statutory terms and need not

determine when the Board’s rule was “promulgated.”7 Our

judgment is that the time of filing with the Office of the Federal

Register is the appropriate time for determining whether the

Board had a valid quorum. That the Board may have lost a

quorum before its rule was published did not render its rule

invalid.

II

The parties devote a large part of their briefs to the question

whether § 6 of the Act gave the Board authority to promulgate

its posting rule. We will begin our analysis with a different

provision—§ 8(c), which seems to us to control much of the

case. Section 8(c) states:

The expressing of any views, argument, or opinion, or

the dissemination thereof, whether in written, printed,

7

Even within the Federal Register Act, the term “promulgated”

seems to have different meanings in different contexts. Compare 44

U.S.C. § 1503 (“When the original [document required or authorized

to be published] is issued, prescribed, or promulgated outside the

District of Columbia, and certified copies are filed before the filing of

the original, the notation shall be of the day and hour of filing of the

certified copies.”), and id. (“Every Federal agency shall cause to be

transmitted for filing the original and the duplicate originals or

certified copies of all such documents issued, prescribed, or

promulgated by the agency.”), with id. § 1505(c) (“In the event of an

attack or threatened attack upon the continental United States and a

. . . [suspension of] all or part of the requirements of law or regulation

for filing with the Office or publication in the Federal Register of

documents or classes of documents[,] . . . [t]he President shall

establish alternate systems for promulgating, filing, or publishing

documents or classes of documents affected by such

suspensions . . ..”).

13

graphic, or visual form, shall not constitute or be

evidence of an unfair labor practice under any of the

provisions of this [Act], if such expression contains no

threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c).

Before the enactment of § 8(c) in 1947, the Supreme Court

had held that employers have free-speech rights under the First

Amendment “to engage in noncoercive speech about

unionization.” Chamber of Commerce of the U.S. v. Brown, 554

U.S. 60, 67 (2008). Believing that the Board was still

“regulat[ing] employer speech too restrictively,”

notwithstanding the Supreme Court’s decisions, id., Congress

enacted § 8(c) with its passage of the Taft-Hartley Act (more

formally known as the Labor Management Relations Act, 1947),

Pub. L. No. 80-101, 61 Stat. 136. Section 8(c) “expressly

precludes regulation of speech about unionization ‘so long as the

communications do not contain a threat of reprisal or force or

promise of benefit.’” Chamber of Commerce, 554 U.S. at 68

(quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969))

(other internal quotation marks omitted).

“From one vantage,” the Court in Chamber of Commerce

explained, “§ 8(c) ‘merely implements the First Amendment,’

in that it responded to particular constitutional rulings of the

NLRB.” Id. at 67 (quoting Gissel Packing, 395 U.S. at 617).

“But,” the Court added, § 8(c)’s “enactment also manifested a

‘congressional intent to encourage free debate on issues dividing

labor and management.’” Id. (quoting Linn v. Plant Guard

Workers, 383 U.S. 53, 62 (1966)). And it has been suggested

that § 8(c) not only protects the right of free speech under the

First Amendment, but also “serves a labor law function of

allowing employers to present an alternative view and

14

information that a union would not present.” Healthcare Ass’n

of N.Y. State v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006).8

Although § 8(c) precludes the Board from finding

noncoercive employer speech to be an unfair labor practice, or

evidence of an unfair labor practice, the Board’s rule does both.9

8

Whether § 8(c) is broader than the First Amendment—in, for

example, prohibiting the Board from using noncoercive employer

speech as evidence bearing on an unfair labor practice, see Archibald

Cox, Some Aspects of the Labor Management Relations Act, 1947, 61

HARV. L. REV. 1, 19 (1947)—is an issue we need not decide. Nor do

we need to consider whether § 8(c) is narrower than the First

Amendment in some respects. See Richard A. Epstein, The Case

Against the Free Choice Act 26–27 (John M. Olin Law & Economics

Working Paper No. 452 (2d series), 2009) (noting that § 8(c)’s final

phrase—permitting speech only if it “contains no threat of reprisal or

force or promise of benefit”—“has no analogy anywhere else in First

Amendment law”). We also think it unimportant to this case that

§ 8(c) might be seen as a content-based regulation of labor speech, a

matter of consequence in some First Amendment cases. See Sorrell v.

IMS Health Inc., 131 S. Ct. 2653 (2011); Police Dep’t v. Mosley, 408

U.S. 92 (1972). The parties have raised none of the issues these

subjects would pose.

9

The district court decided that § 104.214(b), the “anti-union

animus” provision, was valid, even though the court thought plaintiffs

had not “specifically” challenged the provision and had not made “an

argument as to why that provision is invalid.” Nat’l Ass’n of Mfrs.,

846 F. Supp. 2d at 63 & n.26. But plaintiffs, in a supplemental

statement filed before the court’s ruling, insisted that their amended

complaint challenged the validity of the entire rule. And plaintiffs’

memorandum in support of their motion for summary judgment

expressly argued not only that § 8(c) barred the Board from finding

that an employer’s failure to post was an unfair labor practice, but also

that the Board could not treat a failure to post as “proof of anti-union

animus” on the part of an employer. Plaintiffs have sufficiently

15

Under the rule an employer’s failure to post the required notice

constitutes an unfair labor practice. See 29 C.F.R. §§ 104.210,

104.212.10 And the Board may consider an employer’s “knowing

and willful” noncompliance to be “evidence of antiunion animus

in cases in which unlawful motive [is] an element of an unfair

labor practice.” 76 Fed. Reg. at 54,035–36; see also 29 C.F.R.

§ 104.214(b).11 The Board, in other words, will use an

employer’s failure to post the notice as evidence of another

unfair labor practice.

In the preamble to its rule, and in its argument to this court,

the Board responds that it has not violated § 8(c) because the

poster is the Board’s speech, not the speech of any employer.

After all, the Board says, the words on the poster are the

Board’s, and the last line of the poster warns: “This is an official

Government Notice and must not be defaced by anyone.” 29

C.F.R. pt. 104, subpt. A, app.12

It is obviously correct that the poster contains the Board’s

speech. It is also without question that the Board is free to post

preserved the same argument in their brief and reply brief in this court.

10

We agree with the district court, Nat’l Ass’n of Mfrs., 846 F.

Supp. 2d at 52 n.15, that although § 104.210 states that the Board

“may” find an employer’s willful noncompliance to be an unfair labor

practice, it is clear from § 104.213 and the preamble to the rule that

“may” means “will.” The Board has not argued otherwise.

11

As examples of such unfair labor practices, the Board

mentioned plant-closing threats, firings or refusals to hire, and

interrogations of employees. See 76 Fed. Reg. at 54,035–36 (citing

cases); see also Cox, supra, 61 HARV. L. REV. at 19.

12

The Board did not explain how it expected to enforce this

warning.

16

the same message on its website, as it has done under the

heading “Rights We Protect.” See NLRB,

http://www.nlrb.gov/rights-we-protect (last visited Apr. 25,

2013). We also assume that the Board may deliver its message

directly to employees working for businesses over which the

Board has jurisdiction. But we doubt whether calling the poster

“Board speech” answers the question whether the rule violates

§ 8(c).

Our doubt stems, in part, from a comparison of § 8(c) with

the law established under the First Amendment. We approach

the question by considering some firmly established principles

of First Amendment free-speech law. The first is that the

“dissemination” of messages others have created is entitled to

the same level of protection as the “creation” of messages.

Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011). This

is why there was no First Amendment difference between the

free-speech rights of the publisher and the free-speech rights of

the creators of the advertisement in New York Times Co. v.

Sullivan, 376 U.S. 254 (1964). It is why the First Amendment

protects an individual’s disclosure of an illegally intercepted

communication even though the individual did not participate in

the communication (or in the illegal interception). See Bartnicki

v. Vopper, 532 U.S. 514 (2001). It is also why those handing out

leaflets prepared by others are exercising the First Amendment’s

“freedom of speech.” See, e.g., Murdock v. Pennsylvania, 319

U.S. 105 (1943); Lovell v. City of Griffin, 303 U.S. 444 (1938).

That § 8(c) embraces this principle is certain. The language

of § 8(c) explicitly covers more than just the “expressing” of the

speaker’s views. It covers as well the “dissemination” of “any

views, argument, or opinion,” as long as the “written, printed,

graphic, or visual” material disseminated is not coercive. 29

U.S.C. § 158(c).

17

Of course we are not faced with a regulation forbidding

employers from disseminating information someone else has

created. Instead, the Board’s rule requires employers to

disseminate such information, upon pain of being held to have

committed an unfair labor practice. But that difference hardly

ends the matter. The right to disseminate another’s speech

necessarily includes the right to decide not to disseminate it.

First Amendment law acknowledges this apparent truth: “all

speech inherently involves choices of what to say and what to

leave unsaid.” Pac. Gas & Electric Co. v. Pub. Utils. Comm’n,

475 U.S. 1, 11 (1986) (plurality opinion).

Chief Justice Roberts, writing for a unanimous Court, put

it this way in Rumsfeld v. Forum for Academic & Institutional

Rights, Inc.: “Some of [the] Court’s leading First Amendment

precedents have established the principle that freedom of speech

prohibits the government from telling people what they must

say.” 547 U.S. 47, 61 (2006). As examples, the Chief Justice

cited West Virginia State Board of Education v. Barnette, 319

U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977).

In Barnette the Court held that “[t]o sustain the compulsory

flag salute” and pledge of allegiance in public schools would be

to conclude “that a Bill of Rights which guards the individual’s

right to speak his own mind, left it open to public authorities to

compel him to utter what is not in his mind.” 319 U.S. at 634.

Wooley held much the same: the First Amendment freedom

of speech “includes both the right to speak freely and the right

to refrain from speaking at all.” 430 U.S. at 714. New

Hampshire therefore could not coerce its citizens to display the

State motto “Live Free or Die” on their automobile license

plates, although presumably citizens could display it voluntarily.

As the Supreme Court put it in United States v. United Foods,

Inc.: “Just as the First Amendment may prevent government

18

from prohibiting speech, the Amendment may prevent the

government from compelling individuals to express certain

views . . ..” 533 U.S., 405, 410 (2001); see also Johanns v.

Livestock Mktg. Ass’n, 544 U.S. 550, 568 (2005) (Thomas, J.,

concurring); R.J. Reynolds Tobacco Co. v. Food & Drug

Admin., 696 F.3d 1205, 1211 (D.C. Cir. 2012).

We do not think these, and other such cases, may be

distinguished from this one on the Board’s terms. In Barnette

and in Wooley, as in this case, the government selected the

message and ordered its citizens to convey that message. The

Supreme Court’s opinions do not suggest that because the

messages were, to that extent, “government speech,” the First

Amendment did not apply. And we do not think it matters that

the Board has regulatory authority over the six million

employers subject to its rule. In Barnette and Wooley, the state

and local governments had regulatory authority over those

(public school children and automobile drivers) it ordered to

spread the message it selected. See also United Foods, 533 U.S.

at 410; R.J. Reynolds, 696 F.3d at 1211.

The Board—in its brief, but not in the rulemaking—argues

that this case is significantly different in light of the content of

the poster. The poster, the Board’s acting general counsel tells

us, merely recites the employee rights set forth in the National

Labor Relations Act (and in court and Board interpretations of

the Act). And so, the argument goes, this case is unlike Barnette

or Wooley because the Board’s message is “non-ideological.”

NLRB Br. 66. Even if we accepted the premise, the conclusion

would not follow.

The right against compelled speech is not, and cannot be,

restricted to ideological messages. Take for instance Riley v.

National Federation of the Blind of North Carolina, Inc., 487

U.S. 781 (1988). After recognizing that the First Amendment

19

protects “the decision of both what to say and what not to say,”

the Court cited Barnette and Wooley in holding that these and

other cases “cannot be distinguished simply because they

involved compelled statements of opinion while here we deal

with compelled statements of ‘fact.’” Riley, 487 U.S. at 797.13

Yet that distinction, rejected in Riley, is precisely the distinction

the Board’s acting general counsel urges us to adopt.

Plaintiffs here, like those in other compelled-speech cases,

object to the message the government has ordered them to

publish on their premises. They see the poster as one-sided, as

favoring unionization, because it “fails to notify employees,

inter alia, of their rights to decertify a union, to refuse to pay

dues to a union in a right-to-work state, and to object to payment

of dues in excess of the amounts required for representational

purposes.” Nat’l Ass’n of Mfrs. Br. 38; see also 76 Fed. Reg. at

54,022 (discussing comments).14 The Board responds that it was

entitled to make “editorial judgments” about what to put in and

what to leave out, NLRB Br. 68, and that “if an employer is

concerned that employees will get the wrong impression, it may

legally express its opinion regarding unionization as long as it

13

In addition to Barnette and Wooley, the Court cited Pacific

Gas, 475 U.S. 1 (plurality opinion), and Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241 (1974). The Supreme Court has thus

recognized that its “compelled-speech cases” apply to situations “in

which an individual must personally speak the government’s

message,” as well as those in which one must “host or accommodate

another speaker’s message.” Forum for Academic & Institutional

Rights, 547 U.S. at 63; see also Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Boston, 515 U.S. 557, 573–74 (1995).

14

The Board seemed to accept plaintiffs’ contention that its

poster must be even-handed. See NLRB Br. 68–69; 76 Fed. Reg. at

54,022.

20

does so in a noncoercive manner,” 76 Fed. Reg. at 54,022.15 Yet

even in cases in which the message was other than one the

government had devised, a “compelled-speech violation”

occurred when “the complaining speaker’s own message was

affected by the speech it was forced to accommodate.” Forum

for Academic & Institutional Rights, 547 U.S. at 63.

This brings us to what the Board considers its strongest

precedent—UAW-Labor Employment & Training Corp. v. Chao,

325 F.3d 360 (D.C. Cir. 2003). President Bush had issued an

Executive Order requiring government contractors to post

notices at their workplaces informing employees of their rights

not to be forced to join a union or to pay union dues for non-

representational activities. Three unions and the UAW brought

suit (the UAW was a government contractor). They argued that

the National Labor Relations Act preempted the Executive

Order. UAW, 325 F.3d at 362. This was their only argument.

They did not raise any “free-standing First Amendment claim.”

Id. at 364. We therefore did not reach the question whether the

posting requirement violated the contractors’ freedom of speech.

As to § 8(c), the unions could not plausibly claim that the

Executive Order violated this provision. The National Labor

Relations Board was not in the picture. That is, there was no

prospect of a contractor’s being charged with an unfair labor

practice for failing to post the required notice.16 As we put it,

15

Although the poster identifies the Board as its author, it does

not state that the employer had no choice but to display it. We suppose

an employer could post a statement next to the poster pointing out its

compulsory nature. Cf. PruneYard Shopping Ctr. v. Robins, 447 U.S.

74, 87 (1980).

16

The Board held in Rochester Manufacturing Co., 323 N.L.R.B.

260, 262 (1997), that employers do not commit unfair labor practices

if they fail to inform their employees of their rights not to be forced to

join a union or to pay union dues for non-representational activities.

21

“the activities described in § 8(c) do not ‘constitute an unfair

labor practice,’ except by negation, and are not ‘protected by’

the NLRA, except from the [Board] itself.” Id. at 365 (emphasis

omitted).

We acknowledged in UAW that “the right to speak”

includes “the right not to speak.” Id. And we assumed, in light

of the Supreme Court’s First Amendment decisions so holding,

“that the § 8(c) right includes the right not to speak.” Id. But the

§ 8(c) right was only against the Board’s finding an unfair labor

practice, or evidence thereof. Beyond that, “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.” Id.

In its preamble to the posting rule, the Board interpreted

these passages to mean that under § 8(c) the Board may find that

employers commit unfair labor practices if they fail to

disseminate the Board’s message. See 76 Fed. Reg. at 54,013.

The Board’s interpretation of our opinion was mistaken.17 In

mentioning constraints on employer silence “in the labor

context,” we were not referring to an employer’s protection

against—as we put it—“the NLRA itself.” UAW, 325 F.3d at

365. We were making a different point: that apart from the

§ 8(c) bar against unfair-labor-practice charges, the National

Labor Relations Act did not give employers an unconstrained

right to silence. The Second Circuit said much the same in

See UAW, 325 F.3d at 363.

17

While an agency’s interpretation of its own precedent may be

entitled to deference, see Ceridian Corp. v. NLRB, 435 F.3d 352, 355

(D.C. Cir. 2006), we owe no deference to an agency’s interpretation

of judicial precedent, see New York New York, LLC v. NLRB, 313 F.3d

585, 590 (D.C. Cir. 2002).

22

Healthcare Ass’n, 471 F.3d at 98–100, another preemption

case.18

We return then to the question with which we began.

Suppose that § 8(c) prevents the Board from charging an

employer with an unfair labor practice for posting a notice

advising employees of their right not to join a union. Of course

§ 8(c) clearly does this. How then can it be an unfair labor

practice for an employer to refuse to post a government notice

informing employees of their right to unionize (or to refuse to)?

Like the freedom of speech guaranteed in the First Amendment,

§ 8(c) necessarily protects—as against the Board, see UAW, 325

F.3d at 365—the right of employers (and unions) not to speak.

This is why, for example, a company official giving a

noncoercive speech to employees describing the disadvantages

of unionization does not commit an unfair labor practice if, in

his speech, the official neglects to mention the advantages of

having a union.

18

In a footnote to its brief, the Board states that its rule satisfies

Zauderer v. Office of Disciplinary Counsel of the Supreme Court of

Ohio, 471 U.S. 626, 651 (1985), but it does not explain why that

decision has even the slightest bearing on this case. Under Zauderer,

the government may, consistently with the First Amendment, require

a party to a commercial transaction to make disclosures in order to

prevent that party from deceiving its customers. See R.J. Reynolds,

696 F.3d at 1215. (The Board essentially followed the same reasoning

in requiring unions to inform non-union employees of their right to

limit the amount of dues and fees they pay to the unions under

union-shop agreements. See Rochester Mfg. Co., 323 N.L.R.B. 260

(1997); California Saw & Knife Works, 320 N.L.R.B. 224 (1995).) But

that has nothing to do with this case. As we said earlier, no one—and

certainly not the Board—has even suggested that the posting rule was

needed because employers are misleading employees about their rights

under the National Labor Relations Act.

23

We therefore conclude that the Board’s rule violates § 8(c)

because it makes an employer’s failure to post the Board’s

notice an unfair labor practice, and because it treats such a

failure as evidence of anti-union animus in cases involving, for

example, unlawfully motivated firings or refusals to hire—in

other words, because it treats such a failure as evidence of an

unfair labor practice.19 See Brown & Root, Inc. v. NLRB, 333

F.3d 628, 637–39 & n.7 (5th Cir. 2003).

III

The Board’s third method of enforcing its rule is to toll the

Act’s limitations period for filing unfair-labor-practice

charges.20 That time limit, added in 1947 as part of the Taft-

Hartley Act, is set forth in § 10(b) of the Act: “no complaint

shall issue based upon any unfair labor practice occurring more

than six months prior to the filing of the charge with the Board

and the service of a copy thereof upon the person against whom

19

Our conclusion here does not affect the Board’s rule requiring

employers to post an election notice (which similarly contains

information about employee rights) before a representation election,

29 C.F.R. § 103.20. Because the failure to post the required election

notice does not constitute an unfair labor practice but may be a basis

for setting aside the election, see id. § 103.20(d), the rule does not

implicate § 8(c).

20

The rule provides, in relevant part:

When an employee files an unfair labor practice charge, the

Board may find it appropriate to excuse the employee from

the requirement that charges be filed within six months after

the occurrence of the allegedly unlawful conduct if the

employer has failed to post the required employee notice

unless the employee has received actual or constructive

notice that the conduct complained of is unlawful.

29 C.F.R. § 104.214(a).

24

such charge is made, unless the person aggrieved thereby was

prevented from filing such charge by reason of service in the

armed forces, in which event the six-month period shall be

computed from the day of his discharge.” 29 U.S.C. § 160(b).

The tolling provision differs from the two other

enforcement methods we have discussed. It does not treat an

employer’s failure to post the notice as an unfair labor practice,

or as evidence of one. The district court nevertheless enjoined

the Board from enforcing the provision. The court ruled that the

provision “substantially amends the statute of limitations that

Congress expressly set out in the statute” and therefore “exceeds

[the Board’s] statutory authority under Chevron step one.”21

Nat’l Ass’n of Mfrs., 846 F. Supp. 2d at 58. We agree.

The Board characterized this portion of its rule as providing

for “equitable tolling.” 76 Fed. Reg. at 54,033. The Supreme

Court’s decision in Zipes v. Trans World Airlines, Inc., 455 U.S.

385 (1982), the Board said, “strongly supports” its tolling rule.

Id. We do not see it that way. Zipes held that the statutory time

limit for charges under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-5(e), was a statute of limitations, not a

jurisdictional requirement. Zipes, 455 U.S. at 393. Citing four

cases from the courts of appeals, the Court analogized Title

VII’s provision to § 10(b): “[T]he time requirement for filing an

unfair labor practice charge under the National Labor Relations

Act operates as a statute of limitations subject to recognized

equitable doctrines and not as a restriction of the jurisdiction of

the National Labor Relations Board, see NLRB v. Local 264,

Laborers’ Int’l Union, 529 F.2d 778, 781–785 (CA8 1976);

Shumate v. NLRB, 452 F.2d 717, 720 (CA4 1971); NLRB v. A.

E. Nettleton Co., 241 F.2d 130, 133 (CA2 1957); NLRB v. Itasca

21

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837 (1984).

25

Cotton Mfg. Co., 179 F.2d 504, 506–507 (CA5 1950) . . ..” Id.

at 395 n.11. These four circuit court decisions held only that

§ 10(b) was not jurisdictional; none of the cases dealt with any

equitable doctrines.

To derive support from Zipes, the Board must have thought

that its tolling rule fell within one of the “recognized equitable

doctrines.” Id. Yet the Board made no effort to demonstrate that

when § 10(b) became law in 1947, Congress would have had

any basis for assuming that the six-month limitations period

might be modified by the sort of tolling rule the Board

announced sixty-four years later. As we read the Supreme

Court’s decisions dealing with tolling and other equitable

modifications of statutes of limitations, that should have been

the critical consideration. See Gabelli v. SEC, 133 S. Ct. 1216,

1220–24 (2013); Credit Suisse Sec. (USA) LLC v. Simmonds,

132 S. Ct. 1414, 1419–21 (2012); John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 137–38 (2008); Young v. United

States, 535 U.S. 43, 49–51 (2002); TRW Inc. v. Andrews, 534

U.S. 19, 27–31 (2001); id. at 37–39 (Scalia, J., concurring);

Rotella v. Wood, 528 U.S. 549, 555–61 (2000); Lampf, Pleva,

Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363

(1991); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96

(1990); see also 3M Co. v. Browner, 17 F.3d 1453, 1460–63

(D.C. Cir. 1994); Adam Bain & Ugo Colella, Interpreting

Federal Statutes of Limitations, 37 CREIGHTON L. REV. 493

(2004); John F. Manning, What Divides Textualists from

Purposivists, 106 COLUM. L. REV. 70, 81–82 & n.42 (2006).

We wrote in 3M, in response to a federal agency’s argument

for an “equitable” tolling exception to a statute of limitations,

that we “are interpreting a statute, not creating some federal

common law.” 17 F.3d at 1461. The key to interpreting a

limitations statute and to determining the intent of Congress is

whether the particular exception to a particular statute of

26

limitations was generally recognized when Congress enacted the

statute. See United States v. Kubrick, 444 U.S. 111, 119–20

(1979). It is not enough that courts engaged in some sort of

“equitable tolling” at the time Congress passed the limitations

statute. “[D]ifferent types of equitable tolling . . . have been

recognized at different times . . ..” Bain & Colella, supra, 37

CREIGHTON L. REV. at 502. What matters is whether a particular

basis for suspending the running of the statute of limitations had

received judicial recognition when the statute became law. See

Credit Suisse Sec., 132 S. Ct. at 1421. After all, “Congress

cannot intend to incorporate, by silence, various forms of

equitable tolling that were not generally-recognized in the

common law at the time of enactment.” Bain & Colella, supra,

37 CREIGHTON L. REV. at 503.

Thus, if a particular exception was generally recognized

when Congress enacted the statute of limitations, a court may

presume that Congress intended the same equitable exception to

apply to the statute. If, on the other hand, the exception was not

generally recognized at that time, a court could not presume that

Congress intended it to suspend the running of the statutory

period. Cf. Meyer v. Holley, 537 U.S. 280, 286 (2003)

(“Congress’[s] silence, while permitting an inference that

Congress intended to apply ordinary background tort principles,

cannot show that it intended to apply an unusual modification of

those rules.”).

Rather than following these legal principles, the Board

relied on an analogy to the long-established equitable doctrine

of fraudulent concealment.22 See 76 Fed. Reg. at 54,033. This

doctrine, which the Board has applied to toll the § 10(b)

22

See, e.g., Holmberg v. Armbrecht, 327 U.S. 392 (1946); Bailey

v. Glover, 88 U.S. (21 Wall.) 342 (1874).

27

limitations period,23 has three elements: “fraudulent concealment

tolls a statute of limitations when (1) there has been ‘deliberate

concealment’ of (2) ‘material facts’ relating to the alleged

wrongdoing and (3) the wronged party does not know of those

facts and could not have discovered them through ‘reasonable

diligence.’” Int’l Ass’n of Machinists & Aerospace Workers v.

NLRB, 130 F.3d 1083, 1087 (D.C. Cir. 1997) (quoting

Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977)); see

also Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 429 & n.19

(1960). The Board, using what it termed its “intuitive sense,”

determined that even if the employee knew all the facts, in

which event the fraudulent-concealment doctrine would not

apply, the § 10(b) period could be suspended if the employee

lacked knowledge of the law. 76 Fed. Reg. at 54,033.

As Justice Scalia put it in a concurring opinion, this is “bad

wine of recent vintage.” TRW, 534 U.S. at 37. The Board

neglected to tie its theory to anything the 1947 Congress might

have intended, and it contradicted the Supreme Court’s ruling in

Kubrick, 444 U.S. 111. Kubrick argued that the limitations

period in the Federal Tort Claims Act (28 U.S.C. § 2401(b))

should not begin running until he not only became aware of his

injury but also learned of the law giving him a cause of action.

In rejecting this argument, the Court refused to treat “a

plaintiff’s ignorance of his legal rights” as if it were the same as

“his ignorance of the fact of his injury,” Kubrick, 444 U.S. at

122, a point we relied upon in 3M, 17 F.3d at 1461 n.14, when

we rejected a similar argument.

The Board also cited a dozen or so circuit court and district

court cases holding that an employer’s failure to post notices

required by Title VII of the Civil Rights Act and by the Age

23

See, e.g., Don Burgess Constr. Corp., 227 N.L.R.B. 765

(1977), enforced, 596 F.2d 378 (9th Cir. 1979).

28

Discrimination in Employment Act (ADEA) warranted tolling.

See 76 Fed. Reg. at 54,033–34. We take no position on whether

those cases were correctly decided in light of the line of

Supreme Court decisions mentioned earlier.24 Whatever their

validity, the two earliest cases the Board cited were decided in

1977 and 1978, more than thirty years after Congress enacted

§ 10(b). And in one of those—Kephart v. Inst. of Gas Tech., 581

F.2d 1287, 1289 (7th Cir. 1978)—the court rested its tolling

decision on the intent of Congress as reflected in a Conference

Committee report.25

The short of the matter is that the Board has not invoked

any authority suggesting that the 1947 Congress intended to

allow § 10(b) to be modified in the manner of the Board’s

tolling rule. Whether one frames the Board’s tolling rule as

resting on the employer’s failure to post the Board’s notice or on

the charging employee’s lack of knowledge of his rights under

the National Labor Relations Act, the Board marshaled nothing

to show that by 1947 this was a generally accepted basis for

tolling limitations periods. We have already mentioned the

Supreme Court’s 1979 decision in Kubrick, which seems to us

24

As the district court in this case stated, there appears to be a

split in the circuits on the question whether failure to post under Title

VII or the ADEA warrants tolling of the limitations period. See Nat’l

Ass’n of Mfrs., 846 F. Supp. 2d at 57 n.20.

25

Kephart, 581 F. 2d at 1289, and several of the other cases the

Board relied upon described tolling for failure to post a notice required

by statute as a “penalty.” See Posey v. Skyline Corp., 702 F.2d 102,

104–05 (7th Cir. 1983); Bonham v. Dresser Indus., Inc., 569 F.2d 187,

193 (3d Cir. 1977). The Board concedes that its authority is remedial

only and that it may not exact penalties. See 76 Fed. Reg. at 54,031,

54,037. The Supreme Court has so held. See Wis. Dep’t of Indus.,

Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 288 n.5

(1986).

29

at odds with the Board’s approach. It is also noteworthy that a

comprehensive—and widely cited—survey of the law of statutes

of limitations, published only three years after enactment of the

Taft-Hartley Act, contains no mention of any equitable doctrine

comparable to the one reflected in the Board’s rule. See

Developments in the Law: Statutes of Limitations, 63 HARV. L.

REV. 1177 (1950).26 Even today courts do not generally

recognize lack of knowledge of the law as a basis for equitable

tolling. Some of the more recent cases from the circuits, dealing

with a wide variety of statutes, are set forth in the margin.27 As

the Tenth Circuit stated in a case dealing with the limitations

period in the Railroad Retirement Act, 45 U.S.C. § 231h, “we

are aware of no authority . . . which suggests that ignorance of

the law should warrant equitable tolling of a statute of

26

Before the Harvard Law Review study in 1950, the only

comprehensive study of statutes of limitations in America was “the

fourth edition of Wood’s Limitations in 1916.” 63 HARV. L. REV. at

1177 (referring to H.G. WOOD, A TREATISE ON THE LIMITATION OF

ACTIONS AT LAW AND IN EQUITY (Matthew Bender & Co. 4th ed.

1916)). This treatise makes clear that there was no recognized

equitable doctrine permitting the tolling of a statute of limitations on

the ground that the injured party did not know the law. See 2 WOOD,

supra, § 276c(1), at 1408–11.

27

See, e.g., Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007);

Ormiston v. Nelson, 117 F.3d 69, 72 n.5 (2d Cir. 1997); United States

v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004); Fierro v. Cockrell, 294

F.3d 674, 683 (5th Cir. 2002); Graham-Humphreys v. Memphis

Brooks Museum of Art, Inc., 209 F.3d 552, 561–62 (6th Cir. 2000);

Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006); Frisby v.

Milbank Mfg. Co., 688 F.3d 540, 544 (8th Cir. 2012) (Arkansas law);

Luna v. Holder, 659 F.3d 753, 760 (9th Cir. 2011); United States v.

Denny, 694 F.3d 1185, 1191 (10th Cir. 2012); Jackson v. Astrue, 506

F.3d 1349, 1356 (11th Cir. 2007); United States v. Pollard, 416 F.3d

48, 55 (D.C. Cir. 2005); Shoshone Indian Tribe of the Wind River

Reservation v. United States, 672 F.3d 1021, 1032 (Fed. Cir. 2012).

30

limitations.” Gatewood v. R.R. Retirement Bd., 88 F.3d 886, 890

(10th Cir. 1996).

We therefore hold that the Board’s tolling rule is contrary

to § 10(b).

IV

Because all three of the means for enforcing the Board’s

posting requirement are invalid, we do not decide whether, as

plaintiffs also contend, the Board lacked the regulatory authority

to issue subpart A of its rule—the requirement that employers

post the notice specified in the appendix to that subpart. Subpart

A clearly is not severable. See MD/DC/DE Broadcasters Ass’n

v. FCC, 236 F.3d 13, 22–23 (D.C. Cir. 2001). “Severance and

affirmance of a portion of an administrative regulation is

improper if there is ‘substantial doubt’ that the agency would

have adopted the severed portion on its own.” Davis Cnty. Solid

Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997) (per

curiam) (quoting North Carolina v. FERC, 730 F.2d 790,

795–96 (D.C. Cir. 1984) (Scalia, J.)). If a reviewing court

severed the regulation in that situation, it would be performing

a function left to the agency. See Fed. Power Comm’n v. Idaho

Power Co., 344 U.S. 17, 20–21 (1952); cf. Zuber v. Allen, 402

F.2d 660, 674 (D.C. Cir. 1968).28 Here we know that the Board

would not have issued a posting rule that depended solely on

voluntary compliance. We know this because the Board rejected

that regulatory option in the preamble to its final rule. See 76

Fed. Reg. at 54,031. Subpart A must therefore fall along with

the rest of the Board’s posting rule.

28

Unlike in cases such as Zuber and MD/DC/DE Broadcasters

Ass’n, in this case the Board did not include a severability clause in its

rule and it did not include a statement on severability in its preamble

to the final rule.

31

V

For the reasons stated, the Board’s posting rule is vacated.

Affirmed in part and reversed in part.

ADDENDUM

Appendix to Subpart A—Text of Employee Notice

“EMPLOYEE RIGHTS UNDER THE NATIONAL

LABOR RELATIONS ACT

The National Labor Relations Act (NLRA)

guarantees the right of employees to organize and

bargain collectively with their employers, and to

engage in other protected concerted activity or to

refrain from engaging in any of the above activity.

Employees covered by the NLRA* are protected from

certain types of employer and union misconduct. This

Notice gives you general information about your rights,

and about the obligations of employers and unions

under the NLRA. Contact the National Labor Relations

Board (NLRB), the Federal agency that investigates

and resolves complaints under the NLRA, using the

contact information supplied below, if you have any

questions about specific rights that may apply in your

particular workplace.

“Under the NLRA, you have the right to:

• Organize a union to negotiate with your

employer concerning your wages, hours, and other

terms and conditions of employment.

• Form, join or assist a union.

32

• Bargain collectively through representatives of

employees’ own choosing for a contract with your

employer setting your wages, benefits, hours, and other

working conditions.

• Discuss your wages and benefits and other terms

and conditions of employment or union organizing

with your co-workers or a union.

• Take action with one or more co-workers to

improve your working conditions by, among other

means, raising work-related complaints directly with

your employer or with a government agency, and

seeking help from a union.

• Strike and picket, depending on the purpose or

means of the strike or the picketing.

• Choose not to do any of these activities,

including joining or remaining a member of a union.

“Under the NLRA, it is illegal for your employer

to:

• Prohibit you from talking about or soliciting for

a union during non-work time, such as before or after

work or during break times; or from distributing union

literature during non-work time, in non-work areas,

such as parking lots or break rooms.

• Question you about your union support or

activities in a manner that discourages you from

engaging in that activity.

• Fire, demote, or transfer you, or reduce your

hours or change your shift, or otherwise take adverse

action against you, or threaten to take any of these

actions, because you join or support a union, or

because you engage in concerted activity for mutual

aid and protection, or because you choose not to

engage in any such activity.

• Threaten to close your workplace if workers

choose a union to represent them.

33

• Promise or grant promotions, pay raises, or other

benefits to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons,

t-shirts, and pins in the workplace except under special

circumstances.

• Spy on or videotape peaceful union activities and

gatherings or pretend to do so.

“Under the NLRA, it is illegal for a union or for

the union that represents you in bargaining with your

employer to:

• Threaten or coerce you in order to gain your

support for the union.

• Refuse to process a grievance because you have

criticized union officials or because you are not a

member of the union.

• Use or maintain discriminatory standards or

procedures in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to

discriminate against you because of your union-related

activity.

• Take adverse action against you because you

have not joined or do not support the union.

“If you and your co-workers select a union to act

as your collective bargaining representative, your

employer and the union are required to bargain in good

faith in a genuine effort to reach a written, binding

agreement setting your terms and conditions of

employment. The union is required to fairly represent

you in bargaining and enforcing the agreement.

“Illegal conduct will not be permitted. If you

believe your rights or the rights of others have been

violated, you should contact the NLRB promptly to

protect your rights, generally within six months of the

unlawful activity. You may inquire about possible

violations without your employer or anyone else being

34

informed of the inquiry. Charges may be filed by any

person and need not be filed by the employee directly

affected by the violation. The NLRB may order an

employer to rehire a worker fired in violation of the

law and to pay lost wages and benefits, and may order

an employer or union to cease violating the law.

Employees should seek assistance from the nearest

regional NLRB office, which can be found on the

Agency’s Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling

toll-free: 1–866–667–NLRB (6572) or (TTY)

1–866–315–NLRB (1–866–315–6572) for hearing

impaired.

If you do not speak or understand English well,

you may obtain a translation of this notice from the

NLRB’s Web site or by calling the toll-free numbers

listed above.

“*The National Labor Relations Act covers most

private-sector employers. Excluded from coverage

under the NLRA are public-sector employees,

agricultural and domestic workers, independent

contractors, workers employed by a parent or spouse,

employees of air and rail carriers covered by the

Railway Labor Act, and supervisors (although

supervisors that have been discriminated against for

refusing to violate the NLRA may be covered).

“This is an official Government Notice and must

not be defaced by anyone.”

29 C.F.R. pt. 104, subpt. A, app.

KAREN LECRAFT HENDERSON, with whom Circuit Judge

BROWN joins, concurring:

I fully agree with Judge Randolph’s analysis of NLRA

section 8(c) and wholeheartedly concur in his well-reasoned

opinion. See 29 U.S.C. § 158(c). Judge Brown and I would also

hold, however, that the Board is without authority to promulgate

the posting rule under NLRA section 6 as well—the issue Judge

Randolph does not reach in light of his reliance on section 8(c).

Section 6 provides: “The Board shall have authority from time

to time to make, amend, and rescind, in the manner prescribed

by subchapter II of chapter 5 of Title 5, such rules and

regulations as may be necessary to carry out the provisions of

this subchapter.” 29 U.S.C. § 156. Such “general rulemaking

authority,” although facially broad, “does not mean that the

specific rule the agency promulgates is a valid exercise of that

authority.” Colo. River Indian Tribes v. Nat’l Indian Gaming

Comm’n, 466 F.3d 134, 139 (D.C. Cir. 2006). Here, I do not

believe the posting rule—which creates a new species of unfair

labor practice unforeshadowed in the NLRA’s text—constitutes

a valid exercise of the Board’s section 6 authority because the

rule is not, as section 6 requires, “necessary” to carry out the

express provisions of the Act.

In the Final Rule, the Board claims the posting rule is

necessary to carry out sections 1 and 7 of the NLRA, 29 U.S.C.

§§ 151, 157. See 76 Fed. Reg. at 54,007 (§ 1); id. at 54,032

(§ 7). Section 1 consists of four paragraphs of general findings

the Congress made to justify regulating the collective bargaining

process in order to eliminate and mitigate “substantial

obstructions to the free flow of commerce,” 29 U.S.C. § 151.

Section 7 sets out the general rights “as to organization,

collective bargaining, etc. . . . [that e]mployees shall have,” id.

§ 157. Neither section contains any particularized “provision”

that the Board can “carry out” by regulation or otherwise.* In

*

In the only other challenge to a section 6 regulation, the United

States Supreme Court upheld a regulation prescribing eight (and only

2

the past, we have rejected such a “general declaration of policy,”

by itself, as authority for a specific regulation, observing that

“ ‘[a]ll questions of government are ultimately questions of ends

and means.’ ” Colo. River Indian Tribes, 466 F.3d at 139

(quoting Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 290

(D.C. Cir. 1993)). An agency, we have stated, is “ ‘bound, not

only by the ultimate purposes Congress has selected, but by the

means it has deemed appropriate, and prescribed, for the pursuit

of those purposes.’ ” Id. at 139-40 (quoting MCI Telecomms.

Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 n.4 (1994)).

And the Congress, in enacting the NLRA, prescribed that the

Board use reactive means to enforce its policies—namely,

through an unfair labor practice proceeding initiated by a

charging party or by resolving representation and election issues

when so petitioned by a party. See 29 U.S.C. § 160

(empowering Board “as hereinafter provided, to prevent any

person from engaging in any unfair labor practice” and

thereinafter providing “[w]henever it is charged that any person

has engaged in or is engaging in any such [ULP], the Board . . .

shall have power to issue and cause to be served upon such

person a complaint stating the charges”), § 159 (authorizing

Board to “investigate” a petition by employees or employer

regarding representation and elections “[w]henever a petition

shall have been filed, in accordance with such regulations as

may be prescribed by the Board”), § 161 (setting out Board’s

eight) appropriate bargaining units for acute care hospitals—a

regulation that was “necessary to carry out” the Board’s obligation

under one of the substantive provisions of the Act, namely, section

9(b) (“The Board shall decide in each case whether, in order to assure

to employees the fullest freedom in exercising the rights guaranteed

by this subchapter, the unit appropriate for the purposes of collective

bargaining shall be the employer unit, craft unit, plant unit, or

subdivision thereof . . . .” 29 U.S.C. § 159(b)). See Am. Hosp. Ass’n

v. NLRB, 499 U.S. 609 (1991).

3

“Investigatory powers . . . [f]or the purpose of all hearings and

investigations, which, in the opinion of the Board, are necessary

and proper for the exercise of the powers vested in it by sections

159 and 160) (emphases added); see also Republic Steel Corp.

v. NLRB, 311 U.S. 7, 10 (1940) (NLRA “is essentially remedial”

and employee’s right thereunder “is safeguarded through the

authority conferred upon the Board to require the employer to

desist from the unfair labor practices described and to leave the

employees free to organize and choose their representatives”);

Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984) (“Quite early

on, the Court established that ‘the relief which the statute

empowers the Board to grant is to be adapted to the situation

which calls for redress’ ” (quoting NLRB v. Mackay Radio &

Tel. Co., 304 U.S. 333, 348 (1938))).

The Final Rule also claims that, as a practical matter, the

posting rule is “necessary” to ensure that employees know both

what their rights are under the Act and that the Board protects

those rights—thereby enabling employees to exercise them

under the substantive provisions of the Act. It further asserts

that the Board “has reason to think that most [employees] do

not” have such knowledge given “the low percentage of

employees who are represented by unions, . . . ; 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”—citing as

authority three law review articles. Final Rule, 76 Fed. Reg. at

54,006 & nn.3-4; see also Appellees/Cross-Appellants Br. 15-

16. Even assuming these speculative assertions have some

factual basis and, as well, that providing such information is

“necessary to carry out” the Act’s provisions, there is nothing

in the text of the NLRA to suggest the burden of filling the

“knowledge gap” should fall on the employer’s shoulders.

Unions and the NLRB are at least as qualified to disseminate

appropriate information—easily and cheaply in this information

4

technology age—and in fact already do so. See, e.g.,

http://www.nlrb.gov/rights-we-protect (NLRB’s explanation of

covered employee rights, its protection of concerted activity,

employer and employee reciprocal rights and obligations and its

jurisdiction over private employers). The NLRA—and section

6 in particular—simply does not authorize the Board to impose

on an employer a freestanding obligation to educate its

employees on the fine points of labor relations law. See

Chamber of Commerce of U.S. v. NLRB, 856 F. Supp. 2d 778,

792 n.13 (D.S.C. 2012) (“Here, the Board’s interpretation of

Section 6 as authorizing the rule does not incorporate any

labor-related expertise. See Hi-Craft Clothing Co.[ v. NLRB],

660 F.2d [910,] 918[ (3d Cir. 1981)] (‘This is not a question of

the Board applying a broad statutory term to a specified set of

facts, but is a case of straightforward statutory construction.’)”).

In sum, given the Act’s language and structure are

manifestly remedial, I do not believe the Congress intended to

authorize a regulation so aggressively prophylactic as the

posting rule. Accord Chamber of Commerce, 856 F. Supp. 2d

at 790-92; see Amalgamated Transit Union v. Skinner, 894 F.2d

1362, 1364 (D.C. Cir. 1990) (“Where Congress prescribes the

form in which an agency may exercise its authority, . . . we

cannot elevate the goals of an agency’s action, however

reasonable, over that prescribed form.”).