                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1757


CHAMBER OF COMMERCE OF THE UNITED STATES; SOUTH CAROLINA
CHAMBER OF COMMERCE,

                Plaintiffs – Appellees,

          v.

NATIONAL LABOR RELATIONS BOARD; MARK PEARCE, in his official
capacity as Chairman of the National Labor Relations Board;
BRIAN HAYES, in his official capacity as member of the
National Labor Relations Board; LAFE SOLOMON, in his
official capacity as General Counsel; RICHARD F. GRIFFIN,
JR., Member; TERENCE F. FLYNN, Member; SHARON BLOCK, Member,

                Defendants – Appellants,

          and

CRAIG BECKER, in his official capacity as member of the
National Labor Relations Board,

                Defendant.

-----------------------------

CHARLES J. MORRIS; AMERICAN FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS; CHANGE TO WIN; NATIONAL
EMPLOYMENT LAW PROJECT,

                Amici Supporting Appellants,

THE HONORABLE JOHN KLINE, Chairman, Committee on Education
and the Workforce, United States House of Representatives;
JOE WILSON; RODNEY ALEXANDER; STEVE PEARCE; GREGG HARPER;
PHIL ROE; GLENN THOMPSON; TIM WALBERG; LOU BARLETTA; LARRY
BUCSHON; SCOTT DESJARLAIS; TREY GOWDY; JOE HECK; BILL
HUIZENGA; MIKE KELLY; JAMES LANKFORD; KRISTI NOEM; ALAN
NUNNELEE; REID RIBBLE; TODD ROKITA;      AND    DANIEL   WEBSTER,
United States Representatives,

                Amici Supporting Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cv-02516-DCN)


Argued:   March 19, 2013                      Decided:   June 14, 2013


Before DUNCAN, FLOYD and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Floyd and Judge Thacker joined.


ARGUED: Dawn L. Goldstein, NATIONAL LABOR RELATIONS BOARD,
Washington, DC., for Appellants.       Lemuel Gray Geddie, Jr.,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Greenville, South
Carolina, for Appellees.     ON BRIEF: Lafe E. Solomon, Acting
General Counsel, Celeste J. Mattina, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Margery E. Lieber,
Deputy Associate General Counsel, Eric G. Moskowitz, Assistant
General Counsel, Abby Propis Simms, Deputy Assistant General
Counsel, Joel F. Dillard, Kevin P. Flanagan, Micah P. S. Jost,
NATIONAL LABOR RELATIONS BOARD, Washington, DC., for Appellants.
Benjamin P. Glass, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Charleston,   South  Carolina,   Cheryl   M.  Stanton,  OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, PC, New York, New York, for
Appellees; Robin S. Conrad, Shane B. Kawka, Rachel L. Brand,
NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C.,
Howard M. Radzely, Jonathan C. Fritts, David M. Kerr, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for Appellee Chamber of
Commerce of the United States.      Charles J. Morris, Professor
Emeritus of Law, Dedman School of Law, SOUTHERN METHODIST
UNIVERSITY, San Diego, California, for Charles J. Morris, Amicus
Supporting Appellants.   Lynn Rhinehart, AMERICAN FEDERATION OF
LABOR & CONGRESS OF INDUSTRIAL ORGANIZATIONS, Washington, D.C.,
for American Federation Of Labor And Congress Of Industrial
Organizations, Amicus Supporting Appellants; Walter Kamiat,
Washington,   D.C.,  for   Change   to   Win,  Amicus  Supporting

                                   2
Appellants; Catherine K. Ruckelshaus, Tsedeye Gebreselassie,
NATIONAL EMPLOYMENT LAW PROJECT, New York, New York, for
National Employment Law Project, Amicus Supporting Appellants;
Edgar N. James, Jeff Vockrodt, JAMES & HOFFMAN, PC, Washington,
D.C., for Amici Curiae Supporting Appellants. Charles I. Cohen,
David R. Broderdorf, MORGAN, LEWIS & BOCKIUS LLP, Washington,
D.C.; Joshua W. Dixon, K&L GATES LLP, Charleston, South
Carolina;   Philip  A.   Miscimarra,  Ross   H.  Friedman,  Rita
Srivastava, MORGAN, LEWIS & BOCKIUS LLP, Chicago, Illinois;
Andriette A. Roberts, MORGAN, LEWIS & BOCKIUS LLP, New York, New
York, for Amici Curiae Supporting Appellees.




                                 3
DUNCAN, Circuit Judge:

     The    National    Labor     Relations      Board      (the    “NLRB”        or   the

“Board”),    after    notice    and   comment,     promulgated            a    rule    that

would require employers subject to the National Labor Relations

Act (the “NLRA” or the “Act”), 29 U.S.C. §§ 151-169, to post an

official Board notice informing employees of their rights under

the Act.      Any employer failing to post the notice would be

subject to: (1) a finding that it committed an unfair labor

practice; (2) a tolling of statutes of limitation for charges of

any other unfair labor practices; and (3) a finding of anti-

union   animus   that   would     weigh   against      it    in     any       proceedings

before the Board.           Notification of Employee Rights Under the

National    Labor    Relations    Act,    76   Fed.    Reg.       54,006       (Aug.    30,

2011) (codified at 29 C.F.R. pt. 104).

     The Chamber of Commerce of the United States and the South

Carolina    Chamber     of     Commerce   (collectively,            “the        Chamber”)

sought final review of the rule.               The district court determined

that in promulgating the notice-posting rule, the Board exceeded

its authority, in violation of the Administrative Procedure Act

(the “APA”).        Looking to the plain language of the NLRA, its

structure, its legislative history, and the notice provisions in

other   statutes,     the    court    concluded       that    the    Act        does   not

provide the Board with the power to enact such a rule.                                  The

court therefore granted summary judgment to the Chamber.

                                           4
     We    agree   with   the   district        court    that    the    rulemaking

function provided for in the NLRA, by its express terms, only

empowers the Board to carry out its statutorily defined reactive

roles in addressing unfair labor practice charges and conducting

representation     elections    upon    request.         Indeed,    there   is   no

function or responsibility of the Board not predicated upon the

filing of an unfair labor practice charge or a representation

petition.    We further note that Congress, despite having enacted

and amended the NLRA at the same time it was enabling sister

agencies to promulgate notice requirements, never granted the

Board the statutory authority to do so.                 We therefore hold that

the Board exceeded its authority in promulgating the challenged

rule, and affirm.



                                       I.

     After discussing the structure and purpose of the NLRA, we

describe the background of the challenged rule.                 We then briefly

recount the procedural history of this case.

                                       A.

                                       1.

     The    NLRA    governs      relations        between       private     sector

employers, labor unions, and employees.                  Congress enacted the

NLRA--originally    referred     to    as   the   “Wagner       Act,”   after    its

sponsor, Senator Robert F. Wagner--in 1935.                Pub. L. No. 74-198,

                                            5
49 Stat. 449 (1935).           The Act has since been amended three

times, most recently in 1974.               See Labor Management Relations

Act   (“Taft-Hartley      Act”),    Pub.     L.   No.     80-101,       61    Stat.    136

(1947); Labor Management Reporting and Disclosure Act (“Landrum-

Griffin Act”), Pub. L. No. 86-257, 73 Stat. 519 (1959); Health

Care Amendments, Pub. L. No. 93-360, 88 Stat. 395 (1974).

      The first section of the Act lays out the national labor

policy, which the Board is intended to promote “by encouraging

the   practice   and      procedure    of    collective        bargaining        and   by

protecting     the     exercise     by      workers       of     full        freedom   of

association,         self-organization,             and          designation           of

representatives      of    their    own     choosing,      for    the        purpose   of

negotiating    the   terms    and     conditions      of    their       employment     or

other mutual aid or protection.”                 29 U.S.C. § 151.              Section 2

provides definitions, and Sections 3, 4, and 5 establish the

Board and lay out its structure. 1




      1
       Although the structure of the Board is not at issue in
this case, it bears noting that the Secretary of Labor at the
time of the NLRA’s passage expressed concern that while the NLRB
was to be “judicial in character,” the “disconcerting tasks of
administration” might make it “subject to distraction from
specific cases by the temptation to strengthen its prestige
through educational and administrative activities.”    H.R. Rep.
No. 74-969 (1935), reprinted in 2 NLRB, Legislative History of
the National Labor Relations Act, 1935, at 2919 (1949) (“NLRA
Leg. Hist.”).



                                             6
       Section 6--the focus of this case--confers rulemaking power

on the Board, providing it with the “authority from time to time

to make, amend, and rescind, in the manner prescribed by [the

APA], such rules and regulations as may be necessary to carry

out the provisions of [the NLRA].”                 Id. § 156.      Section 7 lists

employees’ core labor rights, including the rights to organize,

join    unions,      bargain     collectively      through      representatives         of

their    choosing,         and     engage    in    concerted       activities          for

collective bargaining or mutual aid and protection.                            Section 8

lays    out   five    specific     unfair    labor    practices      (“ULPs”).          Of

particular significance to this case, Section 8(a)(1) makes it a

ULP “to interfere with, restrain, or coerce employees in the

exercise      of   the    rights     guaranteed    in     [Section      7].”      Id.    §

158(a)(1).         Section 8(c) provides that the expression of views

in any form “shall not constitute or be evidence of [a ULP] . .

., if such expression contains no threat of reprisal or force or

promise of benefit.”           Id. § 158(c).

       The    core,      specified    functions      of   the    NLRB     are    (1)    to

conduct representation elections, and (2) to prevent and resolve

ULPs.     Section 9 of the NLRA provides for the first of these,

authorizing the filing of representation petitions, in which a

petitioner alleges that a substantial number of employees wish

to be represented by a union for collective bargaining.                            Under

that    section,      the    Board     has   the     authority       to   investigate

                                              7
questions of representation, hold secret-ballot elections, and

certify the results thereof.             Section 10 provides the Board with

the authority to investigate, prevent, and remedy ULPs.                             All

proceedings under Sections 9 and 10 “originate with the filing

of   charges   or    petitions      by    employees,       labor   unions,    private

employers,     and     other     private      parties.”            NLRB,     2011    FY

Performance     and     Accountability            Report     12,     available      at

http://www.nlrb.gov/sites/default/files/documents/189/nlrb_2011_

par_508.pdf (last visited May 31, 2013); see also Notification

of Employee Rights Under the National Labor Relations Act, 76

Fed. Reg. at 54,010 (“In both instances, the initiating document

is filed by a private party.”).              Thus, “[a]lthough the Board is

specifically empowered to ‘prevent’ unfair labor practices, ‘the

Board may not act until an unfair labor practice charge is filed

alleging a violation of the Act.’                  In addition, certification

‘procedures     are     set    in        motion    with      the    filing     of    a

representation       petition.’”          Notification       of    Employee    Rights

Under the National Labor Relations Act, 76 Fed. Reg. at 54,010

(quoting 2 The Developing Labor Law 2662, 2683 (John E. Higgins,

Jr. ed., 5th ed. 2006)) (alterations omitted). 2


      2
       As we discuss in comparing the NLRA to other federal                     labor
legislation, the NLRB’s reactive mandate stands in                              stark
contrast to the proactive roles of other labor agencies                          that
have promulgated notice-posting requirements.     While the                      NLRA
only provides for processes that may be initiated by                            third
     (Continued)
                                             8
       The   final       provision      relevant        to    this   case,     Section      11,

gives the Board investigatory powers “necessary and proper for

the exercise of the powers vested in [the Board]” by Sections 9

and 10, including the right to issue subpoenas.                          29 U.S.C § 161.

Because of the reactive nature of the Board’s functions under

Sections     9    and     10,    Section       11   provides     it     with    no   “roving

investigatory powers.”                 Notification of Employee Rights Under

the National Labor Relations Act, 76 Fed. Reg. at 54,010; see

also H.R. Rep. No. 74-969 (1935), reprinted in 2 NLRA Leg. Hist.

at 2932.

                                               2.

       The       Board     promulgated          the      challenged          rule,    titled

“Notification        of    Employee        Rights       Under    the     National       Labor

Relations Act,” on August 30, 2011, after a notice and comment

period.      Notification          of    Employee       Rights       Under    the    National

Labor   Relations         Act,    76    Fed.    Reg.     at    54,006.         The   rule    is

composed of three subparts.                    Subpart A, which is at issue in

this appeal, 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




parties, the authorizing legislation of these sister agencies
speaks to investigatory and enforcement functions that the
agencies may themselves initiate. See infra Part II.B.4.



                                                    9
information      and    information      concerning      basic    enforcement

procedures.”      29 C.F.R. § 104.202(a).          The text of the notice

explains to employees:

        The [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
        [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.

Id. at Pt. 104, Subpt. A, App. (footnote omitted).                 It goes on

to list employees’ rights under the Act and provide information

as to how to “contact the NLRB promptly to protect your rights.”

Id.

      Subpart B makes failure to post the employee notice a ULP

under Section 8(a)(1) of the NLRA.            Id. § 104.210.     If, after an

adjudication, the Board finds that an employer has failed to

post the required notice, the Board will order the employer to

cease    and   desist   the   unlawful   conduct   and   post    the   required

notice, along with a remedial notice.              Id. § 104.213.        If an

employee files a ULP charge complaining that an employer has

failed to post a notice, the Board may excuse the employee from

the usual six-month statute of limitations for any other ULP


                                         10
charges.      Id. § 104.214(a).        Finally, the rule allows the Board

to “consider a knowing and willful refusal to comply with the

requirement to post the employee notice as evidence of unlawful

motive” in other proceedings before it.                Id. § 104.214(b). 3

       The Board’s principal rationale for introducing the notice-

posting rule was that “American workers are largely ignorant of

their rights under the NLRA, and this ignorance stands as an

obstacle to the effective exercise of such rights.”                         Proposed

Rules      Governing    Notification     of        Employee     Rights    Under     the

National Labor Relations Act, 75 Fed. Reg. 80,410, 80,411 (Dec.

22, 2010) (codified at 29 C.F.R. pt. 104).                    The Board pointed to

the changing nature of the American workforce as part of the

cause of this knowledge gap--in particular, the Board noted that

“[t]he overwhelming majority of private sector employees are not

represented     by     unions,   and   thus    lack    an     important   source    of

information about NLRA rights”; “[i]mmigrants, who comprise an

increasing proportion of the nation’s work force, are unlikely

to    be   familiar    with   their    workplace      rights,       including     their

rights under the NLRA”; and “high school students, many of whom

are about to enter the labor force, are uninformed about labor

law    and   labor     relations.”      Id.         The     Board   explained      that


       3
       Subpart C of the rule contains ancillary provisions not
relevant to this appeal.



                                              11
employees’ lack of awareness of their rights stems in part from

the absence of any requirement that they be informed of those

rights.    The Board noted that “[t]he NLRA is almost unique among

major Federal labor laws in not including an express statutory

provision requiring employers routinely to post notices at their

workplaces informing employees of their statutory rights.”                 Id. 4

      The challenged rule is unusual in several respects.                    The

Board has only rarely engaged in rulemaking during its seventy-

seven year history.         And it has never promulgated a notice-

posting rule of any kind. 5

      In the public comment period that followed the promulgation

of   the   rule,   the   Board   received   over    7,000   submissions,     the

majority     of    which   opposed    the    rule     or    aspects   of     it.


      4
       As the Board observed, a number of other federal labor
statutes contain explicit employee notice provisions.        See
Railway Labor Act (“RLA”), 45 U.S.C. § 152, Fifth, Eighth; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-10(a);
Age Discrimination in Employment Act, 29 U.S.C. § 627;
Occupational Health and Safety Act, 29 U.S.C. § 657(c); Employee
Polygraph Protection Act, 29 U.S.C. § 2003; Americans with
Disabilities Act, 42 U.S.C. § 12115; Family and Medical Leave
Act, 29 U.S.C. § 2619(a); Uniformed Service Employment &
Reemployment Rights Act, 38 U.S.C. § 4334(a).
      5
        The Board has, on a case-by-case basis, required
individual employers found to have committed ULPs to post
remedial Board-supplied notices informing employees of their
rights under the Act.   See, e.g., Smithfield Packing Co., 344
N.L.R.B. 1, 15-16 (2004), aff’d, United Food and Commercial
Workers Union Local 204 v. NLRB, 447 F.3d 821, 828 (D.C. Cir
2006).



                                        12
Notification    of    Employee       Rights      Under   the    National           Labor

Relations     Act,   76     Fed.    Reg.    at    54,007.           Many     comments

“dispute[d]    the    board’s       statutory      authority        to     enact    the

proposed rule.”      Id. at 54,008. 6

                                       B.

    On September 19, 2011, before the rule went into effect,

the Chamber filed a complaint in the District Court for the

District of South Carolina for injunctive relief against the

NLRB, its Members, and its General Counsel.                 The parties filed

cross motions for summary judgment on November 9, 2011, and the

district court granted summary judgment to the Chamber on April

13, 2012.   This appeal followed.

    Concurrently,         the    National     Association      of    Manufacturers

filed a suit against the NLRB in the District Court for the

District of Columbia.           See Nat’l Ass’n of Mfrs. v. NLRB, 846 F.


    6
        Additionally, Member Brian Hayes dissented from the
Board’s Notice of Proposed Rulemaking, arguing that “[t]he Board
lacks the statutory authority to promulgate or enforce” the
rule.  Proposed Rules Governing Notification of Employee Rights
Under the National Labor Relations Act, 75 Fed. Reg. at 80,415.
Specifically, Member Hayes determined that Section 6 was not
sufficient authority for imposing such a requirement: “[t]o the
contrary, Section 10 of the Act indicates to me that the Board
clearly lacks the authority to order affirmative notice-posting
action in the absence of an unfair labor practice charge filed
by an outside party.”    Id.  Member Hayes ultimately dissented
from the promulgation of the final rule as well.    Notification
of Employee Rights Under the National Labor Relations Act, 76
Fed. Reg. at 54,037-42.



                                            13
Supp. 2d 34 (D.D.C. 2012).      That court granted summary judgment

to the NLRB.      The National Association of Manufacturers appealed

to   the   D.C.   Circuit,   which    reversed   the   district   court’s

decision, holding that the notice-posting rule violates Section

8(c) of the NLRA, which prohibits the NLRB from finding employer

speech that is not coercive to be a ULP or evidence of a ULP.

Nat’l Ass’n of Mfrs. v. NLRB, --- F.3d ----, 2013 WL 1876234

(D.C. Cir. May 7, 2013). 7           Judge Henderson, joined by Judge

Brown, wrote a concurrence, opining that the Board also lacked

authority under Section 6 to issue the rule.            Id. (Henderson,

J., concurring).



                                     II.

                                     A.

     Preliminary to our consideration of the challenged rule are

threshold inquiries as to the appropriate mode of analysis.            We

first address the Board’s proposition that the notice-posting

rule should be analyzed under the deferential standard set forth

in Mourning v. Family Publications Service, Inc., 411 U.S. 356


     7
       Although the Chamber made a similar argument below, the
parties did not address this issue in their briefs or during
oral argument before this court. Because we determine that the
Board had no authority to issue the rule, we do not reach the
question of whether it was also precluded from doing so by
Section 8(c).



                                           14
(1973).         Next, we choose between two competing lenses through

which to analyze the issue of the Board’s authority, determining

if,   as    the       Board   contends,      the      relevant      question      is    whether

Congress intended to withhold authority to issue the challenged

rule from the Board, or if, as the Chamber argues, the relevant

question is whether Congress intended to grant that authority.

                                                1.

      We start with the Board’s argument that the challenged rule

is properly analyzed under Mourning.                             Mourning instructs that

rules issued pursuant to broad rulemaking grants such as Section

6   are    to     be    upheld   if    they     are        “reasonably      related     to     the

purposes         of    the    enabling       legislation.”              411     U.S.    at    369

(citations and internal quotation marks omitted).                                     The Board

reasons that Mourning provides the appropriate framework because

while      the    familiar       two-step       mode        of    analysis      laid    out    by

Chevron,        U.S.A.,       Inc.   v.   Natural          Resources       Defense     Council,

Inc., 467 U.S. 837 (1984), applies to an agency’s construction

of a statute, “Mourning’s aim is to analyze substantive rules

that carry out an agency’s enabling act, but do not necessarily

interpret specific statutory language.”                          Appellant’s Br. at 5.

      We    find       this    distinction          untenable.            Mourning,     a     pre-

Chevron     case,       requires      that      a    court       “defer    to   the    informed

experience and judgment of the agency to whom Congress delegated

appropriate           authority.”         411       U.S.    at    372     (emphasis     added).

                                                     15
Thus, Mourning applies only after a court has determined that

Congress    has   indeed      delegated    interpretative       powers     to   that

agency.      See AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir.

2005); see also City of Arlington v. FCC, --- S. Ct. ----, 2013

WL 2149789, at *8-9 (May 20, 2013) (holding that the Chevron

framework    applies      to    an     agency’s     statutory     interpretation

concerning the scope of its own authority).

                                         2.

     Notwithstanding the facial inapplicability of Mourning, the

Board contends that it should be considered to have the power to

promulgate    the      rule   unless    Congress     expressly    withheld      that

authority.

     The Chamber, on the other hand, contends that we should

invalidate the notice-posting rule unless we find that Congress

intended to delegate to the Board the power to issue it.                         The

Chamber’s view finds support in our precedent.                  Specifically, in

determining the appropriate framework under which to analyze the

Food and Drug Administration’s (“FDA’s”) power to promulgate a

challenged     regulation,       we    deemed      the   question     of   whether

Congress intended to grant authority the appropriate one.                        See

Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 161 (4th

Cir. 1998) (“The district court framed the issue as ‘whether

Congress has evidenced its clear intent to withhold from FDA

jurisdiction      to     regulate      tobacco     products      as   customarily

                                              16
marketed.’          However,   we    are     of       opinion     that     the       issue    is

correctly framed as whether Congress intended to delegate such

jurisdiction to the FDA.”), aff’d, 529 U.S. 120 (2000).                                    Other

courts have followed the same approach.                           See, e.g., Am. Bar

Ass’n v. FTC, 430 F.3d 457, 468 (D.C. Cir. 2005) (“Plainly, if

we were ‘to presume a delegation of power’ from the absence of

‘an   express   withholding         of    such    power,        agencies       would       enjoy

virtually limitless hegemony . . . .’” (quoting Ry. Labor Execs.

Ass’n    v.   Nat’l    Mediation     Bd.,       29     F.3d     655,     671    (D.C.       Cir.

1994))); Sierra Club v. EPA, 311 F.3d 853, 861 (7th Cir. 2002)

(“Courts ‘will not presume a delegation of power based solely on

the   fact    that    there    is   not    an     express         withholding         of    such

power.’” (quoting Am. Petroleum Inst. v. EPA, 52 F.3d, 1113,

1120 (D.C. Cir. 1995))).

      In support of its contention to the contrary, the Board

cites American Hospital Association v. NLRB (“AHA”), 499 U.S.

606 (1991).     In AHA, the Supreme Court addressed a challenge to

a   rule   defining     collective        bargaining          units    for      acute       care

hospitals.      The plaintiffs there argued that because Section

9(b) of the NLRA requires the Board to make bargaining unit

determinations        “in   each    case,”       the    Board      could       not    use    its

general rulemaking power under Section 6 to define bargaining

units.        The     Court    determined         that        because      Section          9(a)

authorizes     the    Board    to   decide       whether      a    designated         unit    is

                                                 17
appropriate for the purposes of collective bargaining, it could

promulgate      a    rule    proactively         defining     collective        bargaining

units   in    acute        care   hospitals,       rather     than    determining        the

composition      of       such    units    through     case-by-case         adjudication.

The Court noted that “[a]s 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.”

AHA, 499 U.S. at 613.

      The language in AHA that provides the basis for the Board’s

argument, arising as it does in the context of a bargaining unit

determination         as    to    which    the    Board   has    been       legislatively

granted authority, is inapplicable to the challenged rule.                                At

issue   in     AHA    was    whether       Section     9(b)    limited       the    Board’s

general      authority--granted             by     Section      6--to       enact      rules

necessary to carry out Section 9.                      Here, on the other hand,

there is simply no authority to be limited: as we emphasize

again, there is no general grant of power to the NLRB outside

the     roles        of     addressing           ULP   charges        and       conducting

representation elections.                 Indeed, the fact that none of the

Act’s   provisions          contain       language     specifically         limiting    the

Board’s authority to enact a notice-posting requirement reflects



                                                  18
the absence of statutory authority for actions outside those

defined responsibilities as a threshold matter.

      Moreover, in AHA, the Supreme Court was careful to limit

its determination that authority existed for the promulgation of

“the rule at issue in this case unless limited by some other

provision in the Act.”          499 U.S. at 610 (emphasis added).                   This

narrow   statement     must     be    read    in    its   context;     it   does    not

support the proposition that the NLRB may enact any rule it

wishes   unless     some   provision      of    the    Act    expressly     withholds

authority for it to do so, when no general authority has been

given by Congress in the first instance.                     Thus, in our analysis

here, we focus on the question of whether Congress intended to

grant the NLRB the authority to issue the challenged rule--and

not whether Congress intended to withhold that power.

                                         B.

      Having   determined       the    appropriate        framework,   we     consider

the notice-posting rule under Chevron.                 We ask “whether Congress

has directly spoken to the precise question at issue.                          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.”                     467 U.S. at 842-

43.   Only “if the statute is silent or ambiguous with respect to

the specific issue” are we to proceed to Chevron’s second step,



                                               19
asking “whether the agency’s answer is based on a permissible

construction of the statute.”             Id. at 843.

      Under Chevron’s first step, we must use the “traditional

tools   of     statutory     construction”            to   ascertain       congressional

intent.      467 U.S. at 842 n.9.            We thus look to the text of the

statute, along with “the overall statutory scheme, legislative

history, the history of evolving congressional regulation in the

area, and . . . other relevant statutes.”                         Brown & Williamson,

153 F.3d at 162 (citations and quotation marks omitted).                          We are

only to employ the deference of step two when the “devices of

judicial     construction      have    been      tried      and    found   to   yield   no

clear sense of congressional intent.”                      Gen. Dynamics Land Sys.,

Inc. v. Cline, 540 U.S. 581, 600 (2004).                           Because we do not

presume a delegation of power simply from the absence of an

express    withholding       of    power,    we       do   not    find   that   Chevron’s

second step is implicated “any time a statute does not expressly

negate the existence of a claimed administrative power.”                                Am.

Bar   Ass’n,    430   F.3d    at    468     (citation       and    internal     quotation

marks omitted).

                                            1.

      In assessing the validity of the notice-posting rule, we

begin by examining the plain language of the NLRA.                               See CSX

Transp., Inc. v. Ala. Dep’t of Revenue, 131 S. Ct. 1101, 1107

(2011).      Thus, we look to the text of Section 6 of the Act,

                                                 20
which    grants     the      Board     authority             to    issue          rules       that    are

“necessary to carry out” the provisions of the Act.                                        29 U.S.C. §

156.

       We, like the Chamber, read the language in Section 6 as

requiring that some section of the Act provide the explicit or

implicit    authority         to    issue        a    rule.        Because             the    Board    is

nowhere charged with informing employees of their rights under

the NLRA, we find no indication in the plain language of the Act

that    Congress       intended       to    grant       the       Board       the      authority       to

promulgate such a requirement.

       The Board contests this reading of the statute, arguing

that the word “necessary” is inherently ambiguous, bringing us

directly to Chevron’s step two.                        In support of this argument,

the Board relies, in part, on language from Mourning explaining

that    “[w]here       the    empowering             provision      of        a    statute       states

simply     that    the       agency        may       ‘make    .    .      .       such       rules    and

regulations as may be necessary to carry out the provisions of

this    Act,’”    we    are    to     sustain         the     validity            of   a     regulation

promulgated thereunder “so long as it is ‘reasonably related to

the purposes of the enabling legislation.’”                                       411 U.S. at 369

(citations       omitted).          However,           as     we    have          explained,         this

guidance is relevant only once we have determined that a statute

is ambiguous.          That is, we are only to defer to an agency’s

interpretation of what is “necessary” once we have progressed to

                                                      21
Chevron’s second step.         Mourning’s exhortation that we “defer to

the   informed    experience       and   judgment      of   the    agency      to   whom

Congress   delegated        appropriate    authority,”         id.     at    372,    thus

cannot    be    read   as    requiring     us    to    defer      to   the    agency’s

interpretation as we conduct our initial analysis of the Act.

      Moreover, even if the term “necessary,” standing on its

own, may be deemed ambiguous, we need not automatically defer to

the Board’s interpretation.              “‘Mere ambiguity in a statute is

not evidence of congressional delegation of authority.’”                             Am.

Bar Ass’n, 430 F.3d at 469 (quoting                   Michigan v. EPA, 268 F.3d

1075, 1082 (D.C. Cir. 2001)).             Rather, “[t]he ambiguity must be

such as to make it appear that Congress either explicitly or

implicitly delegated authority to cure that ambiguity.”                              Id.

“Even when Congress has stated that the agency may do what is

‘necessary,’ whatever ambiguity may exist cannot render nugatory

restrictions that Congress has imposed.”                    AFL-CIO, 409 F.3d at

384 (citation omitted).            Thus, as the district court correctly

observed, “[t]he Board may not disregard restrictions Congress

has imposed on its authority in other sections of the governing

statute    by    relying      on    Section      6    in    isolation        to     these

substantive provisions.”            Chamber of Commerce v. NLRB, 856 F.




                                            22
Supp. 2d 778, 790 (D.S.C. 2012). 8               As we discuss in greater

detail below, the substantive provisions of the Act make clear

that the Board is a reactive entity, and thus do not imply that

Congress   intended    to   allow     proactive   rulemaking   of   the   sort

challenged     here   through   the    general    rulemaking   provision   of

Section 6. 9

                                       2.

     Continuing with our analysis of the rule under Chevron’s

first step, we next consider the structure of the NLRA.                    “In

     8
       The Ninth Circuit drew the same conclusion in striking
down an NLRB regulation prohibiting Board employees from
producing files in response to subpoenas, reasoning that
although Section 6 authorizes the Board to “adopt rules and
regulations to carry out its functions in a manner consistent
with the fulfillment of the purposes of the Act,” the statute
“does   not  authorize   the  Board   to promulgate  rules  and
regulations which have the effect of enlarging its authority
beyond the scope intended by Congress.”     Gen. Eng’g, Inc. v.
NLRB, 341 F.2d 367, 374 (9th Cir. 1965).
     9
       The Board points out that in AHA the Supreme Court
approved the Board’s promulgation of a rule defining certain
bargaining units proactively--rather than in response to the
filing of a representation petition--as an acceptable use of the
power delegated to the Board under Section 6.       However, the
determination of bargaining units is one of the roles Congress
expressly intended the Board to play. See 29 U.S.C. § 159. In
contrast, the NLRA--unlike many other labor statutes--is silent
as to any role for its administering agency in enacting notice-
posting requirements or any affirmative duty for employers to
post notices.     Moreover, as the district court noted, the
bargaining units rule at issue in AHA “defined how the Board
would handle issues after the Board’s adjudicative authority was
triggered.” Chamber of Commerce, 856 F. Supp. 2d at 791. Here,
the Board attempts something distinct and novel: the proactive
imposition of a duty upon employers that does not flow from any
of the provisions of the Act.


                                            23
determining     whether     Congress     has       specifically       addressed     the

question at issue, a reviewing court should not confine itself

to examining a particular statutory provision in isolation.                          The

meaning--or    ambiguity--of        certain        words   or   phrases      may   only

become     evident   when     placed    in    context.”         FDA     v.   Brown    &

Williamson Tobacco Corp., 529 U.S. 133, 132 (2000).                          Thus, in

addition to the language of Section 6 itself, we must look to

“the specific context in which that language is used, and the

broader context of the statute as a whole.”                      McLean v. United

States, 566 F.3d 391, 396 (4th Cir. 2009) (quoting                      Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997)).                   An examination of the

rest of the Act reveals no provision that a notice-posting rule

is “necessary” to carry out.

     The    Board    points    to   a   number       of    sections    in    the   Act,

arguing that the rule is necessary to carry them out.                               The

Chamber responds that no provision in the Act requires employers

who have not committed labor violations to be subject to a duty

to post employee notices.           We agree.        The NLRB serves expressly

reactive      roles:      conducting         representation       elections          and

resolving ULP charges.         As an examination of the Act as a whole

makes evident, none of its sections imply that Congress intended

to grant the Board authority to issue the notice-posting rule

sua sponte.



                                              24
       First,     Section         1,       which     lays        out      the     purpose       and

aspirations       of    the     NLRA,       does     not     provide        the    Board     with

authority to act.           The Board argues that because Section 1 sets

forth   the     Act’s     policy       in    broad        terms,    it     is     “specifically

designed to permit the Board to spell out [its] applications.”

Appellant’s Br. at 39.                However, any argument that the statute’s

statement of purpose can provide the agency with the authority

to promulgate any regulation in furtherance of that purpose is

unavailing.         The    NLRB       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.’”        Colo. River Indian Tribes v. Nat’l Indian Gaming

Comm’n,     466    F.3d        134,    139        (D.C.     Cir.       2006)    (quoting        MCI

Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 n.4 (1994)).

       Similarly, Section 7, which lists rights protected under

the Act, does not provide the Board with specific authority to

act.      Indeed,       language       in    the    Board’s        own    brief     belies      its

argument.         The     Board       contends      that     the       challenged        rule    is

necessary to “carry out the core rights set forth by Section 7.”

Appellant’s       Br.     at     11     (internal          quotation       marks        omitted).

However, while these rights exist thanks to the NLRA and are to

be protected in the manner set forth by the NLRA’s provisions,

significantly,         rights     are       not    functions       or     provisions       to    be

“carried out.”           See Nat’l Ass’n of Mfrs., 2013 WL 1876234, at

                                                    25
*15 (Henderson, J., concurring) (“Neither [Section 1 nor Section

7] contains any particularized ‘provision’ that the Board can

‘carry out’ by regulation or otherwise.”).

     Nor     does    Section       8,    which    defines         ULPs    under    the     Act,

provide     the    Board    with    the    power       to    require      the    posting     of

notices.      The Board notes that its authority under Section 6

extends     to    defining       what     constitutes         a     ULP    under     Section

8(a)(1), and argues that Section 8 thus gives it authority to

promulgate the notice-posting rule, which makes it a ULP to fail

to post the employee notice.                   Specifically, from its power to

interpret what constitutes “interfere[nce] with, restrain[t], or

coerc[ion of] employees in the exercise of the rights guaranteed

in [Section 7],” 29 U.S.C. § 158(a)(1), the Board attempts to

extract the authority to create a new ULP based on the failure

to   post    notices       educating      employees          about       their    Section    7

rights.           While     we     recognize          that     the       Board     has      the

responsibility        to    “adapt       the     Act    to    changing          patterns    of

industrial life,” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266

(1975), and that Congress did not “undertake the impossible task

of specifying in precise and unmistakable language each incident

which   would       constitute      an    unfair       labor       practice,”       Republic

Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), we cannot

accept an interpretation of the Act that would allow the NLRB to



                                                 26
bootstrap       Section        8(a)(1)    into     authority      to     enact       the

unprecedented rule at issue here.

        Finally, and of most significance, the notice-posting rule

is not “necessary to carry out” Sections 9 and 10, which set

forth the Board’s responsibilities for conducting representation

elections and adjudicating ULP charges.                   As we have discussed,

Sections 9 and 10 lay out reactive roles for the Board; the

processes they provide for are not set in motion until a party

files a representation petition or a ULP charge.                          The Board

contends that the Act presupposes knowledge of NLRA rights and

their enforcement mechanisms, and that “employee knowledge of

NLRA rights and how to enforce them within statutory timeframes

is   crucial     to    effectuate        Congress’s      national      labor   policy

through the processes established by Sections 8, 9, and 10.”

Appellant’s      Br.   at      12.    Essentially,       the   Board    argues      that

because the enforcement functions provided for by Sections 9 and

10   are   reactive,      it    was   necessary     to   proactively     create     the

challenged rule in order for employees to undertake their role

in instigating those processes.               With this reasoning, the Board

attempts to derive from provisions governing the functions and

operation of the agency the authority to do something entirely

distinct from those functions, with the rationale that doing so

would    make   them   more      effective.        However,    regardless      of   how

laudable the NLRB’s goal of educating workers may be, “there is

                                              27
nothing in the text of the NLRA to suggest the burden of filling

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

Nat’l Ass’n of Mfrs., 2013 WL 1876234, at *16 (Henderson, J.,

concurring).   Put simply, we cannot accept the Board’s circular

argument; the Board may not justify an expansion of its role to

include proactive regulation of employers’ conduct by noting its

reactive role under the Act. 10




     10
        The Board also cites Section 11 of the Act in support of
its argument that had Congress intended to limit the Board’s
authority to promulgate the notice-posting regulation, it would
have expressed that limitation somewhere in the statute.        The
Board   contrasts   Section    6,  which   contains   no  words  of
limitation, with Section 11, which details the Board’s subpoena
power but explicitly limits that authority to “hearings and
investigations . . . necessary and proper for the exercise of
the powers vested in [the Board] by sections [9] and [10].” 29
U.S.C. § 161. This language in Section 11 demonstrates, argues
the Board, that “when Congress wants to limit the Board’s power
by reference to Sections 9 and 10, it does so explicitly.”
Appellant’s Br. at 30.        We find this comparison unavailing
because it is based on the incorrect premise that the Board
should be considered to have the power to issue the challenged
rule   unless   Congress    expressly   withheld   that  authority.
Moreover, we note that in Section 11, the NLRA creates a
specific power, to which it attached specific limits.           The
authority delegated under Section 6 is unquestionably broader,
but as we have explained, the fact that Congress did not attach
explicit limits to it does not make it limitless. Furthermore,
detailing limits similar to those in Section 11 could have
constrained the Board in ways not intended by Congress.         See
Appellees’ Br. at 20 n.4 (“[I]t would not have made sense for
Congress to limit the Board’s rulemaking authority only to
Section 9 and 10 of the Act because that would have prevented
the Board, for example, from promulgating rules defining any
ambiguous provisions in Section 8.”).



                                   28
       Contrary to the Board’s assertions, our analysis of the

Act’s structure comports with the Supreme Court’s holding in

AHA.        At   issue   in   AHA   was   whether   the   Board   could   define

employee bargaining units proactively and universally, outside

the context of case-by-case adjudication.                 In that case, even

the challengers of the rule conceded that the Board could make

such a determination through adjudication.                 AHA, 499 U.S. at

612.    Here, in contrast, the question is not whether the notice-

posting requirement could be established through rulemaking as

opposed to adjudication, but whether the Board has the authority

to require universal, preemptive notice-posting at all. 11                   The

Board’s contention that AHA established that the NLRB has the

authority to undertake proactive measures such as the challenged

regulation thus reads the Court’s opinion too broadly. 12

       11
        We do not take issue with the Board’s practice of
requiring individual employers to post notices on a case-by-case
basis in response to ULP adjudications. See supra note 5.
       12
        The Board cites a number of cases in which it has
articulated rules of general applicability through adjudication
in arguing that it could have developed the challenged rule
through case-by-case adjudication.   See, e.g., St. Francis Med.
Ctr., 347 N.L.R.B. 368, 369 (2006); Tech. Serv. Solutions, 324
N.L.R.B. 298, 301 (1997); Champagne Color, Inc., 234 N.L.R.B.
82, 82 (1978).     However, those cases were all adjudications
resulting from ULPs and based on rights explicitly granted by
the NLRA. Here, the Board seeks to create a duty and a ULP from
whole cloth, based not on the rights enumerated in the NLRA,
which it does not specifically assert employers are infringing,
but on employees’ need--nowhere mentioned in the NLRA--to be
made aware of their rights under the Act.


                                            29
                                                  3.

        We    also      find        the     history         of     the     NLRA       instructive,

particularly         vis-a-vis            congressional                treatment       of    sister

agencies with statutory authorization to require the posting of

notices.          We     find        that     the        Act’s          history       provides    no

countervailing evidence of an intent to bestow the Board with

the power to enact the challenged regulation.

      Reports on early versions of the NLRA indicate that the

Board was designed to serve a reactive role, with its “quasi-

judicial       power”    being        “restricted           to    [the     enumerated]       unfair

labor        practices        and     to     cases          in     which        the    choice     of

representatives          is    doubtful.”              S.       Rep.     No.    73-1184     (1934),

reprinted in 1 NLRA Leg. Hist. at 1100.                                There is no indication

in the Act’s legislative history of an intent to allow the Board

to    impose      duties        upon        employers            proactively;          indeed,    if

anything, it appears to have been the intent of Congress that

the Board not be empowered to play such a role.                                    Cf. H.R. Rep.

No.   74-969      (1935),       reprinted         in        2    NLRA    Leg.     Hist.     at   2932

(noting that Section 11 does not grant the Board the powers of a

“roving commission”).

      Of       particular           significance,               Congress        considered       and

rejected a different notice provision in the NLRA that would

have required any employer that was a party to a contract that

conflicted       with     the        NLRA    to        notify      its     employees        of    the

                                                       30
violation and indicate that the contract would be abrogated.                     S.

2926, 73rd Cong. § 304(b) (as introduced in Senate on Feb. 28,

1934), reprinted in 1 NLRA Leg. Hist. at 14; H.R. 8434 73rd

Cong. § 304(b) (as introduced in House Mar. 1, 1934), reprinted

in 1 NLRA Leg. Hist. at 1140. 13             In the spring of 1934, as the

bill was being considered, the Senate Committee on Education and

Labor expressed “unanimous” agreement for removing the section

containing that notice provision, 1 NLRA Leg. Hist. at 394-95,

and       on   May   26,   1934,   a    substitute      bill--with    the     notice

provision removed--was reported favorably to the Senate.                         S.

2926, 73rd Cong. § 304(b) (as introduced in Senate on May 26,

1934), reprinted in 1 NLRA Leg. Hist. 1070-98.                    Although this

notice provision would have spoken to a different issue than the

one at hand, the fact that Congress considered the possibility

of    a    notice    requirement       indicates   at    the   very   least    that


      13
       Along with the proposed requirement that employers notify
employees of contracts that violated the NLRA, the initial
versions of the Act made it a ULP to fail to provide that
notice. S. 2926, 73rd Cong. § 5(5) (as introduced in Senate on
Feb. 28, 1934), reprinted in 1 NLRA Leg. Hist., at 3; H.R. 8434
73rd Cong. § 5(5) (as introduced in House Mar. 1, 1934),
reprinted in 1 NLRA Leg. Hist. at 1130. The fact that the early
versions of the Act contained a specific, notice-related ULP
further weakens the Board’s attempt, addressed above, to
bootstrap authority for the challenged rule from its authority
to define what constitutes a ULP under Section 8(a)(1).      Had
Congress intended to require the posting of notices, or make the
failure to do so be punishable as a ULP, it could have made that
intent clear in its legislation.



                                             31
Congress was aware of the option of authorizing such action and

chose not to.

     Moreover,      at   the   same   time       as    it    excluded      a     notice

provision from the NLRA, Congress amended another labor statute,

the RLA, to include two notice provisions.                   Pub. L. No. 73-442,

48 Stat. 1185 (1934) (codified as amended at 45 U.S.C. § 151 et

seq.).      First, Congress amended the RLA to require employers

subject to that Act to notify employees that, if any contract

requiring employees to join a union or not join a union had been

enforced, such contract was no longer binding.                       S. 3266, 73d

Cong. § 2, Fifth (as introduced Mar. 28, 1934), reprinted in 1

The Railway Labor Act of 1926: A Legislative History at 742

(Michael H. Campbell & Edward C. Brewer III eds. 1988) (“RLA

Leg. Hist.”); H.R. 9861, 73d Cong. § 2, Fifth (as introduced

Jun. 4, 1934), reprinted in 1 RLA Leg. Hist. at 894.                               This

provision     was   very   similar    to        the    abrogation      and      notice

provision included in the original NLRA House and Senate bills.

A   second    provision    included      in      the    amended      RLA       required

employers to inform their employees by printed notice of the

dispute-resolution provisions of the RLA.                   S. 3266, 73d Cong. §

2, Eighth (as introduced Mar. 28, 1934), reprinted in 1 RLA Leg.

Hist. at 743-44; H.R. 9861, 73d Cong. § 2, Eighth (as introduced

Jun. 4, 1934), reprinted in 1 RLA Leg. Hist. at 895-96.                           These

notice   requirements--which      were     signed      into    law   on    June     21,

                                           32
1934--support the proposition that when Congress intends for the

posting of notices to be required, it provides as much in its

legislation.

                                             4.

       Finally,      we     consider          “‘the        history          of        evolving

congressional regulation in the area.’”                       Brown & Williamson, 153

F.3d at 162 (quoting Dunn v. Commodity Futures Trading Comm’n,

519    U.S.   465,   475    (1997)).          A        comparison      of   the       NLRA   to

subsequent labor legislation provides additional evidence that

Congress did not intend to grant the Board the authority to

issue a notice-posting requirement.

       In addition to the notice-posting requirement in the RLA,

Congress has included notice-posting requirements in a number of

other federal labor laws.           Several labor statutes passed during

the span of years between 1935 and 1974, during which the NLRA

was amended three times, provide for the posting of notices.

See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-10(a); Age Discrimination in Employment Act, 29 U.S.C. §

627;   Occupational       Safety    &    Health         Act,   29   U.S.C.        §    657(c).

Since that time, a number of other labor statutes have been

passed that have required the posting of notices.                            See Employee

Polygraph     Protection     Act,       29   U.S.C.       §    2003;    Americans         with

Disabilities Act, 42 U.S.C. § 12115; Family and Medical Leave

Act, 29 U.S.C. § 2619(a).           Even more tellingly, on at least one

                                                  33
occasion, Congress has amended a labor law to impose a notice-

posting requirement.               See Veterans’ Benefits Improvement Act of

2004,       Pub.    L.    No.     108-454,        §    203,     118    Stat.     3606    (2004)

(codified as amended at 38 U.S.C. § 4334).

       The contrast between the roles the NLRA sets forth for the

NLRB and those that other federal labor statutes prescribe for

those of its sister agencies with notice-posting authority is of

particular significance.                As we have discussed, the Board’s core

functions are reactive ones.                  In contrast, other agencies that

have     promulgated            notice-posting          requirements         have     proactive

mandates.           For        instance,    the        EEOC,       which   is    granted       the

authority to require the posting of notices, 29 U.S.C. § 627; 42

U.S.C.      §   2000e-10(a);         42    U.S.C.       §     12115,   has      the   power     to

proactively             file      charges     and           undertake         investigations,

regardless         of    whether    a     party       files    a    charge,     42    U.S.C.    §§

2000e-5(b), 2000e-8(a).                 The same is true of the Occupational

Safety & Health Administration, see 29 U.S.C. §§ 657, 659, as

well as the Department of Labor (“DOL”) more generally, see,

e.g., 29 U.S.C. §§ 211(a), 216(c), 217, 2005, 2616, 2617. 14


       14
        The Board compares the challenged rule to a DOL notice-
posting requirement, which it enacted under the Fair Labor
Standards Act (“FLSA”), despite that statute’s silence as to
notice-posting.   The Board points us to no authority analyzing
whether that statute grants the DOL authority to enact a notice-
posting requirement, and we do not address that issue here. We
do note that requiring universal employer notice-posting is more
     (Continued)
                                                      34
     Congress’s       continued     exclusion      of   a   notice-posting

requirement from the NLRA, concomitant with its granting of such

authority     to     other   agencies,     can     fairly   be    considered

deliberate.        See Brown & Williamson, 529 U.S. at 133 (2000)

(“[T]he meaning of one statute may be affected by other Acts,

particularly    where    Congress   has   spoken   subsequently    and   more

specifically to the topic at hand.”).            Had Congress intended to

grant the NLRB the power to require the posting of employee

rights notices, it could have amended the NLRA to do so.




congruous with the DOL’s proactive roles in enforcing the FLSA
than it is with the NLRB’s reactive roles. Unlike the NLRB, the
DOL has the ability under the FLSA to proactively conduct
investigations and file enforcement actions.       29 U.S.C. §§
211(a), 216(c), 217; see DOL, Enforcement Under the Fair Labor
Standards   Act,   http://www.dol.gov/elaws/esa/flsa/screen74.asp
(last visited May 31, 2013).       Furthermore, in enacting its
notice-posting rule, the DOL was acting pursuant to an enabling
statute distinct in relevant respects from the NLRA.           In
particular, the FLSA included a recordkeeping requirement, 29
U.S.C. § 211(c), and the DOL promulgated its notice-posting
regulation under its authority to enforce that provision, see 29
C.F.R. § 516.4.



                                          35
                              III.

     For the foregoing reasons, 15 the judgment of the district

court is

                                                       AFFIRMED.




    15
        Having determined under Chevron’s first step that the
NLRA unambiguously does not grant authority to the NLRB to
promulgate the challenged rule, our analysis ends, and we do not
proceed to Chevron’s second step.



                                 36
