your honor may please the court you might want to pull the shark link your honor that morning and they please the court my name is dawn l goldstein i'm here representing the national labor relations board in this case the rule being challenge in this case stablish as a duty for employers within the board's jurisdiction to post an official board notice informing employees of their rights under the national labor relations act this role corrects a longstanding anomaly until now the board has been almost alone among agencies and departments administering major federal labor and claimant laws because all the other agencies  such agencies have acquired covers covered of lawyers to routinely post workplace notices informing employees of their rights based on statutory authorization that is that is correct your honor and i guess that sort of gets sort of to the heart of my problem so if you could help me with that congress has had and i come from a title seven background so i'm very familiar with the posting of notices here though turn chosen not to so doesn't that caution the core from taking the step that congress apparently for whatever reason whitely or wrongly if they're not looking to a particular topic that is the one issue those reenactments don't really speak to whether they were concerned noticed posting or didn't concern notice posting and i can give you the page on it but  same time it was drafted the way congress i'm in did the railway labor to include an express notice requir your honor what's what's interesting and relevant about the his three the legislative history of both the provisions in the railway labor act and the national labor relations act is that there is a remarkable absence  legislative history on either on having noticed posting in railway labor relations act and a no no legislative history either on why there isn't one in the  the pattern also actually that you see with title seven there is no legislative history on title seven's notice posting provision either and never write we just what we know what they did know what they did we know they did we but what what we think the the only logical conclusion that can be gleaned from this real absence of legislative history is that this was simply considered an interstate szell matter when their silence in a statute there's a lot of different reasons why there might be that silence it might be that congress expressly delegated the authority or or implicitly delegated the authority to the agency to let them make their own decision whether it was necessary at that time or another time section six  ers from time to time as a pointed out or congress may simply not have thought about it there were a lot of other provisions in the national labor relations act that got a lot of attention nothing about notice posting ever came up years thank you judge floyd what we explain in our briefs is that this rule is first of all necessary to to carry out the full in free exercise of section seven rights because that exercise depends on employees knowing that those rights exist and that the board protects those rights an employee is much less likely to take an action if they think that they could be fired for it with no recourse moreover the act carries out sections eight nine and ten because our process is not self initiating we are not a roving commission the fact that employees know about their rights and they know they have to come to the board within six months which is one of the shorter  frames that knowledge is crucial to actually it's the same time room as the hundred in the days right but at that time when it was inactive in one thousand thirty five it was considered certainly very short and and processes don't work if employees don't know they have to come to us within six months at least with title seven there is a poster on the in the coffee room telling you that there is no poster right now for the n r a but that sort of same ability to initiate action that the your honor that is that is certainly true but your honor we don't see those limitations on the board's actions under sections eight and ten as speaking in any way to the board's section six rule making power that it's been granted that was explained in a upheld in the american hospital association case which explains that the board has the right to from time to time as conditions warrant and gauge and substance of legislative rulemaking when necessary to carry out the provisions of the act and moreover one thing that's important to realize is that this rule is enforced  way as all other unfair labor practice cases nothing happens to any employer until there is a charge filed with the board and once there was a charge filed it's in the regulation that the regional director is expected to contact that employer ask that the notice the foot up and only if it's not put up might there be a complaint issued and a case that goes to the board the only way the only remedies for not putting th are a unfair labor practice finding are possibly equitable tolling and possibly an animist finding but that's it so it's proceeding exactly the same way as all of our other unfair labor practice cases and certainly it's come back to this idea of affirmative duty that the chamber mentions a great deal and the board has frequently imposed affirmative duty on the employers under its jurisdiction and of course the chamber well knows that we impose such judi's then we impose such rules we cited to you the chambers brief in one garden where they admitted that when the board issues and a rule in adjudication that rule applies to all the employers under the board's jurisdiction and so the as we explained in our brief the board can impose a four affirmative duties under section eighty one such as the duty to bargain such as the duty to give names and addresses when necessary that was that technology services he construed it as meaning that it actually has to there has to be already wording in the statute in order to make it necessary just to have no no i was i was simply reacting to your characterization of the board's ability to do this i guess quite traditionally well that's exactly actually the power that we've been given by section six and at this point let me explain that we have two  effect it will be administered on a case by case basis that exactly like all of our other unfair labor practice cases there's not going to be roving commissions going into workplaces to see if the poster is up if we get a charge  then then we will investigate and asked the employer to put it up but it's in the regulation that we're expecting that there will be compliance once employers know their responsibility so i'm just going to briefly explain that we do have two distinct strands of our arguments we have our morning and we have our severance danced around the morning part is our section six legislative rule making authority which permits us to enact rules which are not necessarily grounded in the exact words of the statute but so long as we're carrying out the provisions and furthering the purposes and not acting contrary to the statute that's a that's a rule making power that that the board possesses it sounds almost unlimited in the way that you described it there is principle it's very much not unlimited we know that we couldn't rely on just carrying out section one that would not be sufficient to carry out provisions under the act we can act in a way that's contrary to the statute and we can't use or a major policy area that can only be decided by congress but judge that or a major policy area is tobacco major policy area as it is extending into a area of that the board never has such as when the f t c the side that regulate lawyers as financial institutions we are only regulating the employers we have all we have regulated for seventy five years there's no expansion that's happening here and i mean i just want to rand's where imposing a duty just like all the duties we've imposed under weingarten and washington aluminum onto employers that a duty that they have to obey or else are subject to an unfair labor practice char i'm going to reserve the rest of my time for about requirements on employers that have not done anything they've not course any employee they don't have an election petition they've done nothing wrong whatsoever under the law and it is essentially although they did not create the n l r b as a roving agency how to do it and could have done so but they did not in fact they empowered them under section tin as here and after provided to protect any person from exemption from violating or creating unfair labor practice in violation of section eight so if the plain text was relied on quite vividly by judge norton in reaching his decision he noted if there is no mention of a notice whatsoever in the statutory language and as you correctly pointed out earlier in the legislative history in the amakosa brief by the congressman in this case a narrow notice was proposed in the original wagner act which was deleted by senator wagner himself and the parallel between the railway labor act and  b is very striking but there's no mention of notices no requirement of employers to provide education on the statute and section ten limits and also the structure of the law as a whole creates what i have described as  as an agency was created to be an impartial referee not to advocate for one side or the other but rather to take care of the rights of employees to make a free choice in whether or not they want to be represented by a union or engage in collective bargaining while the other rights under section seven hear the employers have done none of that in reaching his decision judge floyd are allowed on chevron vs an r t c which both was the controlling case and i think it is here to judge for judge norton concluded that this regulation didn't pass the test of chevron one and at the board cannot bypass chevron one by relying on the ten year old morning case which was decided ten years before che in short he found the language under brown and williamson as you point out when an agency is trying to expand or to become reactive than proactive this court needs to look at it very carefully and apply the statutory tools of construction that we've all known since law school but the language of the statute is important the structure of the statute the structure was to set up a level playing field and n l r b can only act in those cases brought before it and that's replete in the record in nine and ten and specifically the language of number ten is important there are certainly limits to what the n l r b can do the statute may be may have been silent on the question of a particular notice but it was not silent only authority granted the n l r b at all there are lots and lots of limitations placed there does no one fan correctly have believe that you cannot rely on the aspirational goals that is pairing section one with section six because that would interviews saying anything of that nature if section one is the only limit as something that they could do to the board argues that section of chevron two should apply here but everyone agrees that to get the chevron to you must pass the first chevron one test and in this case that simply has not happened the board also argues there's a gap to be filled with is really not a gap at all yeah created an agency with limited powers and no intent to increase that roving commission the other statutory law is not only title seven judge not and judge not can but eight others also include notice provisions and this one does not so congress knows how to create a defective notice or window require it and they simply have not done so here as far as the enforcement mechanism found so lou that in her argument this creates a sixth unfair labor practice section eight of the law as five unfair labor practices this would create a six that is the failure to post that notice even that certainly doesn't bash everyone one because chevron want to addressed five unfair labor practices not six it also addresses ten section ten b of the statute which is a six months statute of limitations they would change that and supposed it clearly not authorized under chevron one and the presumption of unanimous really is not mentioned anywhere in the statute and is beyond the scope of the act so the enforcement mechanism alone could not be severed from this and would render the regulation invalid without other arguments in conclusion i'm happy to answer any questions but we believe that a decision is a dyno review but we believe that those norms decision was well founded and ought to be affirmed the inquiry is limited to the chevron one analysis and the intent of congress was very clear biased on the plains text of the statute the structure of the statute and the legislative history and finally congress knows how to impose those requirements if they want to the labor board really wants to do that they know the way to the gap page thirty four note seventeen of our opening brief we explained that when legislative consideration at those times was addressed to other matters it was addressed to health care rulemaking addressed to the adding of the section eight b then it is inappropriate to give weight to that inaction because notice posting wasn't brought up during any of those amendments times and there was a supreme court case aaron versus s c c that we cite for that next as to the breaking up of section three o four b that did not pass in one nine hundred thirty five this was the focus of the congressional miki brief the one one of the very few things that judge norton and judge jackson in d c agreed upon is that that history is completely irrelevant it's really apples and oranges section three zero four b was a would have required a particular rise notice to particular employees that their particular individual contract is being abrogated it has nothing to do with the kind of notice of the board promulgated here telling all employees any nationally standardise format what their rights are under the national act next point the the chamber's repeatedly said that we're requiring employers to educate employees that's in no way true going to use this as a demonstration a this is they the same poster that the board is sent out thousands of prior to the d c circuit injunction and all it is is an eleven by seventeen poster which tells employees they have the right to join to engage in section seven activities they have the right not to engage in section seven activities it gives examples of illegal he said in the record the wording of it is in the joint appendix at the end of the federal register notice this is sort of a visual of what it looks like it gives examples of what unions can do that are illegal and it tells employees that the union is required to represent them fairly in bargaining though this this is what all the fuss is all about going to their point about referees they say the chamber asserts that the board's job is to be a referee and to take care of rights and to make sure employees have a free choice in what they're doing here on earth that decision necessarily implicate that those employees have knowledge about what rights they're choosing to exercise or not exercise you can make a decision you can't make a choice if you don't know what the legal landscape turning to morning morning is still good law it's still been cited in this circuit in other circuits it's never been questioned or overturned for it's a very good example of carolina and all over the country that employees had to be given rights of what the reason was for their addiction before they could be evicted and the supreme court found that to further the purposes of the housing act not to be in conflict with it and allowed the hard to do that as an exit as a promise of their legislative role making power turning to their aid a one arguments the one thing that they've never wrestled with is that was pending for a long time and we have actually had been going case by case there would you to cation the renumber of different hand book cases where there are rules that are found to be unlawful under the act and have to have to be changed making that the supreme court and scholars have begged us to engage in for decades that it's it brings the whole country and we had an extensive notice and comment process to determine the wording of a poster based on an adjudication would have been very difficult we wanted to get but your honor the all these handbook cases are are just examples of a larger problem that employees don't know their rights the board perceive the solution to be a national poster nationally standardise aimed at everybody and we thought the best way to do that is to  friendly in the supreme courts that all the scholars suggestions that we engage in substantive rulemaking as we have the power to do unquestionably under section sex and the american hospital at its also just want to note that the f l s a also has a regulatory notice posting that  briefed at this level but the judge norton has not passed on the legality of our ten b equitable tolling mechanism but we do believe that that is a equitable way a lawful way of enforcing the act that is very common to other employment notice regimes and then finally the animists mechanism was never challenged by the chamber in district court and it is our position if they waived that challenge so we would ask that you would uphold us either on the morning ground or on the chevron ground that we're considering a one thank you very much we will come down in group counseling take a short recess