Baker DC, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 22 April 2015
• Docket Number: Civil Action No. 15–0571 ABJ
• Citation: 102 F.Supp.3d 194
• Parties: Baker DC, LLC, et al., Plaintiffs, v. National Labor Relations Board, Defendant.
• Court: U.S. District Court — District of Columbia

102 F.Supp.3d 194

Baker DC, LLC, et al., Plaintiffs,

v.National Labor Relations Board, Defendant.

Civil Action No. 15–0571 ABJ

United States District Court, District of Columbia.

Signed April 22, 2015

Maurice Baskin, Littler Mendelson, P.C., Washington, DC, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON, United States District Judge

Plaintiffs Baker DC, LLC (“Baker”) and three of its employees, Shannon W. Cotton, Michael A. Murphy, and Jorge E. Gonzalez Villareal (“the employee plaintiffs”),¹bring this action against defendant, the National Labor Relations Board (“NLRB” or “the Board”), challenging the Board's Final Rule entitled “Representation—Case Procedures,” 79 Fed.Reg. 74,308 (Dec. 15, 2014)(“Final Rule”). Compl. [Dkt. # 1]; Am. Compl. [Dkt. # 12]. Specifically, they argue that the Final Rule exceeds the Board's authority under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq.,in violation of the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq.,and that the new requirements violate Baker's First Amendment right to refrain from speaking and its Fifth Amendment due process rights to privacy and to a full and fair elections process. Compl.; Am. Compl. On April 17, 2015, Baker moved for a temporary restraining order seeking to stay the enforcement of the Final Rule.²Mot. for Temporary Restraining Order [Dkt. # 3] (“Pl.'s Mot.”); Mem. in Supp. of Pl.'s Mot. [Dkt. # 3–1] (“Pl.'s Mem.”). Because the Court finds that Baker has failed to show that it or its employees will suffer irreparable harm if subjected to the Final Rule's requirements, the Court denies the motion for a temporary restraining order.

BACKGROUND

On December 15, 2014, the Board published the Final Rule in the Federal Register. 79 Fed.Reg. 74,308 (Dec. 15, 2014). The Final Rule implements twenty-five discrete changes to the procedures governing the election of union representatives for the purposes of collective bargaining. Id.74,308–10. As announced in December, it went into effect on April 14, 2015. Id.at 74,308.

On April 15, 2015, the United Construction Workers Local Union No. 202–Metropolitan Regional Council of Carpenters (“the Union”) filed a petition with the Board seeking to represent Baker's employees working as carpenters and laborers at construction sites in the District of Columbia area. Pl.'s Mem. at 1–2. The Board “has indicated to Baker its intent to process the petition,” and any related pre-election and election procedures, under the provisions of the Final Rule. Id.at 2.

On April 17, 2015, Baker filed a complaint accompanied by a motion for a temporary restraining order, alleging that the Final Rule violates the NLRA, the APA, and Baker's constitutional rights. Compl. ¶ 5. Specifically, Baker asserts that the Final Rule makes improper, “dramatic changes to the representation election process” because it:

• Requires employers to post a notice of election constituting compelled speech prior to any determination by the Board that the petition has sufficient merit to require an election to be held;

• Requires employers to file a burdensome written Statement of Position prior to any hearing being held, upon penalty of precluding employers from presenting evidence at the hearing on any issue not addressed in the Statement, contrary to the rights given to employers to present such evidence in Section 9 of the Act;

• Requires employers to disclose to a petitioning union confidential information about employees inside and outside the petitioned-for unit prior to any hearing being held, upon the same unlawful penalty;

• Postpones evidence taking and litigation over critical issues of voter eligibility until afteran election takes place;

• Requires employers to turn over employees' highly personal and private information such as personal phone numbers and e-mail addresses to labor organizations within two business days after a decision and direction of election is issued;[ ]

• Sharply limits the opportunity for employers to seek pre-election Board review, and a stay of the election, by eliminating a 25–day automatic waiting period for such review; and

• Eliminates employers' automatic right to post-election Board review (post-election review would now be discretionary).

Id.¶ 4. The motion for the temporary restraining order claims that Baker will be irreparably harmed by each of these requirements, Pl.'s Mem. at 2–3, but it only discusses two of them—the notice posting requirement and the disclosure of employee information—in detail when identifying the irreparable harm that supports injunctive relief. Id.at 11–12.

The Court held a telephone conference between the parties on the record on April 17, 2015, during which it gave the Board the opportunity to brief the issue of irreparable harm by April 20, 2015, and it granted Baker's request to respond by April 21, 2015. SeeMinute Entry (Apr. 17, 2015); Def.'s Opp. to Pl.'s Mot. as to Irreparable Harm [Dkt. # 8] (“Def.'s Opp.”); Pls.' Reply to Def.'s Opp. to Mot. for TRO with Regard to Irreparable Harm [Dkt. # 11] (“Pls.' Reply”). On April 21, 2015, along with its reply, Baker filed an amended complaint that added three of its employees as plaintiffs. Am. Compl. ¶ 10.

ANALYSIS

“A temporary restraining order is an extraordinary remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion.” Sibley v. Obama,810 F.Supp.2d 309, 310 (D.D.C.2011), citing Mazurek v. Armstrong,520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997); Munaf v. Geren,553 U.S. 674, 690–91, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). When considering a motion for a temporary restraining order, the Court must consider whether the movant has met its burden of demonstrating that “(1) it has a substantial likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not granted; (3) other interested parties will not suffer substantial harm if the injunction is granted; and (4) the public interest would be furthered by the injunction.” Sea Containers Ltd. v. Stena AB,890 F.2d 1205, 1208 (D.C.Cir.1989). “The court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction.” Morgan Stanley DW Inc. v. Rothe,150 F.Supp.2d 67, 72 (D.D.C.2001).

The D.C. Circuit “has set a high standard for irreparable injury”—it “ ‘must be both certain and great; [and] it must be actual and not theoretical.’ ” Chaplaincy of Full Gospel Churches v. England,454 F.3d 290, 297 (D.C.Cir.2006), quoting Wisc. Gas Co. v. FERC,758 F.2d 669, 674 (D.C.Cir.1985)(per curiam). A movant's failure to make a showing of irreparable injury is grounds for refusing to grant emergency relief, even if the other factors are met. See id.(“A movant's failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.”).

For that reason, the Court begins and ends with the irreparable harm analysis. Because plaintiffs have failed to demonstrate that any of the alleged injuries they have identified would be irreparable, or that these injuries are of the “certain and great” nature that would warrant enjoining the application of the Final Rule, the motion for a temporary restraining order will be denied.

I. Baker has failed to demonstrate that the Final Rule's requirement that it post an election notice irreparably injures its First Amendment rights.

Baker claims that the requirement in the Final Rule that it post a notice of election within two days after receipt of the Union's petition from the Board constitutes “[c]ompelled infringement of [its] free speech rights.” Pl.'s Mem. at 2. But while plaintiff offers pages of argument on why this notice posting rule is contrary to the First Amendment and the NLRA, it devotes only one sentence in its motion to the irreparable harm it will suffer as a result of this requirement: that “courts have held that infringements of freedom of speech ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Pl.'s Mem. at 12, quoting Elrod v. Burns,427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Baker reiterates this argument in its reply. Pls.' Reply at 2–3, quoting Elrod,427 U.S. at 373, 96 S.Ct. 2673.

The Court does not take issue with this general proposition, but Baker's bare assertion of a First Amendment violation, without more, is insufficient to make out irreparable harm. See, e.g.,Chaplaincy of Full Gospel Churches,454 F.3d at 301(“[T]his court has construed Elrodto require movants to do more than merely allege a violation of freedom of expression in order to satisfy the irreparable injury prong of the preliminary injunction frame-work. Rather, moving parties must also establish they are or will be engaging in constitutionally protected behavior to demonstrate that the allegedly impermissible government action would chill allowable individual conduct.”). Baker's argument on this point presupposes that it is correct on the merits of its First Amendment challenge to the Final Rule. Accordingly, the determination of whether Baker has met its burden to show irreparable harm requires some consideration of whether it has demonstrated a likelihood of success on the merits of its First Amendment claim.

Baker asserts that the notice posting requirement “violates the D.C. Circuit's holding in National Association of Manufacturers v. NLRB,717 F.3d 947, 955 (D.C.Cir.2013).”³Compl. ¶ 24; see alsoPl.'s Mem. at 6 (“The Board's mandatory notice implicates [plaintiff's] free speech rights just as surely as a law requiring it to post notices of political campaign meetings.”), citing Nat'l Ass'n of Mfrs.,717 F.3d at 959 n. 19. But that case is distinguishable, and it does not stand for the proposition that requirement to post an election notice necessarily constitutes a violation of an employer's free speech rights.

In that case, the D.C....