Chamber of Commerce of U.S. v. Nat'l Labor Relations Bd., Civil Action No. 15–0009 (ABJ)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtAMY BERMAN JACKSON, United States District Judge
Citation118 F.Supp.3d 171
Parties Chamber of Commerce of the United States of America, et al., Plaintiffs, v. National Labor Relations Board, Defendant.
Decision Date29 July 2015
Docket NumberCivil Action No. 15–0009 (ABJ)

118 F.Supp.3d 171

Chamber of Commerce of the United States of America, et al., Plaintiffs,
v.
National Labor Relations Board, Defendant.

Civil Action No. 15–0009 (ABJ)

United States District Court, District of Columbia.

Signed July 29, 2015


118 F.Supp.3d 177

Allyson Newton Ho, Morgan Lewis & Bockius LLP, Dallas, TX, David R. Broderdorf, II, Jonathan C. Fritts, Michael W. Steinberg, Morgan, Lewis & Bockius LLP, Maurice Baskin, Littler Mendelson, P.C., Washington, DC, Glenn M. Taubman, National Right to Work Legal Defense Foundation, Springfield, VA, for Plaintiffs.

Dawn Laura Goldstein, Kevin Patrick Flanagan, Nancy Ellen Kessler Platt, National Labor Relations Board, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs the Chamber of Commerce of the United States of America, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management ("the Chamber plaintiffs") have brought this action challenging a new set of regulations promulgated by the National Labor Relations Board ("NLRB" or "the Board") to govern union elections. They claim that the rule, entitled " Representation—Case Procedures," 79 Fed.Reg. 74,308 (Dec. 15, 2014) ("the Final Rule"), exceeds the Board's statutory authority under the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 –169. They also contend that the Final Rule is arbitrary and capricious and should be set aside under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and that it violates employers' First and Fifth Amendment rights. Compl. [Dkt. # 1] ("Chamber Compl."). In a separate action, Baker DC, LLC ("Baker") and three of its employees (collectively, "the Baker plaintiffs") also challenged the Final Rule on similar grounds, Am. Compl., Baker DC, LLC v. NLRB, No. 15–0571(ABJ) [Dkt. # 12] ("Baker Am. Compl."), and the Court consolidated the two cases. Order (Apr. 22, 2015) [Dkt. # 31] ("Consolidation Order"). After considering the points and authorities set forth in the briefs submitted by both sides and the arguments presented at the hearing, the Court will uphold the Final Rule.

Plaintiffs mount a broad attack on the rule as a whole, claiming that it "makes sweeping changes to the election process" and that it "sharply curtails" employers' statutory, due process, and constitutional rights. Pls.' Mot. for Summ. J. & Mem. in Supp. [Dkt. # 17] ("Chamber Mot.") at 1–3; see also Baker Am. Compl. ¶¶ 4–5, 11. But these dramatic pronouncements are predicated on mischaracterizations of what the Final Rule actually provides and the disregard of provisions that contradict plaintiffs' narrative. And the claims that the regulation contravenes the NLRA are largely based upon statutory language or legislative history that has been excerpted or paraphrased in a misleading fashion. Ultimately, the statutory and constitutional challenges do not withstand close inspection, and what is left is a significant policy disagreement with the outcome of a lengthy rulemaking process. This is apparent from the Chamber plaintiffs' heavy

118 F.Supp.3d 178

reliance upon the dissent to the Final Rule published by two members of the Board. See 79 Fed.Reg. at 74,430 –60 (dissent).

Plaintiffs' policy objections may very well be sincere and legitimately based, but in the end, this case comes down to a disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures. Given the level of deference that applies in an APA case, particularly in the labor context, and for the additional reasons set forth in more detail below, the Court does not find grounds to overturn the Final Rule.1 The Board's motion for summary judgment will be granted.

BACKGROUND

I. Factual and Procedural Background

The Chamber plaintiffs are organizations and associations that "collectively represent millions of employers and human resource professionals in companies covered by the NLRA and subject to the Final Rule." Chamber Compl. ¶¶ 11–16. They bring this action challenging the Final Rule on behalf of their members. Id. ¶¶ 11–15. The Chamber plaintiffs filed a motion for summary judgment, and the Board filed a combined partial motion to dismiss pursuant to Rule 12(b)(1) and cross-motion for summary judgment, and those motions have been fully briefed. Chamber Mot.; Def.'s Partial Mot. to Dismiss & Cross–Mot. for Summ. J. [Dkt. # 22] ("Board Mot."); Pls.' Mem. in Opp. to Board Mot. & in Further Supp. of Chamber Mot. [Dkt. # 25] ("Chamber Reply"); Def.'s Reply in Supp. of Board Mot. [Dkt. # 27] ("Board Reply"). The Court also received an amicus brief in support of the Chamber plaintiffs. Amicus Brief of the Nat'l Right to Work Legal Def. & Educ. Found., Inc., in Supp. of Pls. [Dkt. # 19] ("Amicus Brief").

The Baker plaintiffs are a District of Columbia employer and three of its employees. Baker Am. Compl. ¶¶ 9–10. After the United Construction Workers Local Union No. 202–Metropolitan Regional Council of Carpenters ("UCW") filed a petition with the Board seeking to represent Baker's employees for collective bargaining purposes, Baker filed a separate action with this Court on April 17, 2015, challenging the application of the Final Rule to Baker and its employees on many of the same grounds as the Chamber plaintiffs. Compl., Baker DC, LLC v. NLRB, No. 150571(ABJ) [Dkt. # 1] ("Baker Compl."). That same day, Baker filed a motion for a temporary restraining order seeking to enjoin the enforcement of the Final Rule. Pl.'s Mot. for TRO, Baker DC, LLC v. NLRB, No. 15–0571(ABJ) [Dkt. # 3] ("Baker TRO Mot."); Pl.'s Mem. in Supp. of Baker TRO Mot., Baker DC, LLC v. NLRB, No. 15–0571(ABJ) [Dkt. # 3–1] ("Baker TRO Mem."). Baker filed an amended complaint, adding three of its employees as plaintiffs, on April 21, 2015. Baker Am. Compl. After finding that the Baker plaintiffs had failed to show that they would suffer irreparable harm if they were subjected to the regulatory regime implemented by the Final Rule pending resolution of the case on the merits, the Court denied the motion for injunctive relief and consolidated the Baker action with the Chamber plaintiffs' case.

118 F.Supp.3d 179

Baker DC, LLC v. NLRB, 102 F.Supp.3d 194, No. 15–0571(ABJ), 2015 WL 1941516 (D.D.C. Apr. 22, 2015); Consolidation Order.

After the consolidation, the Baker plaintiffs joined the Chamber plaintiffs' motion for summary judgment and filed a supplemental opposition to the Board's motion, Opp. of Baker Pls. to Board Mot. [Dkt. # 32] ("Baker Opp."), to which the Board replied. Def.'s Reply to Baker Opp. [Dkt. # 33] ("Board 2d Reply"). All parties were heard at a hearing on the summary judgment motions on May 15, 2015. See Tr. of Hr'g (May 15, 2015) [Dkt. # 38] ("Hr'g Tr."). The Baker plaintiffs also filed a supplemental brief at the Court's direction. Supplemental Post–Hr'g Br. of Baker Pls. in Resp. to Ct.'s Req. [Dkt. # 37] ("Baker Br."). In joining the Chamber plaintiffs' challenge to the Final Rule, the Baker plaintiffs also rely on the arguments advanced in Baker's motion for a temporary restraining order. See Baker Opp. at 1.

II. Statutory Background

The National Labor Relations Act is the federal statute that regulates private sector labor-employer relations in the United States. 29 U.S.C. §§ 151 –169. It was first passed by Congress in 1935, Pub.L. No. 74–198, 49 Stat. 449 (1935), and it has since been amended several times. See, e.g., Labor Management Relations (Taft–Hartley) Act, Pub.L. No. 80–101, 61 Stat. 136 (1947); Labor–Management Reporting and Disclosure (Landrum–Griffin) Act, Pub. L. No. 86–257, 73 Stat. 519 (1959); Act of July 26, 1974, Pub.L. No. 93–360, 88 Stat. 395 (1974).

The Act begins with a declaration of national policy:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred 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. This statement is followed by a number of substantive provisions, including several that are relevant to this case.

Sections 153 through 156 establish the National Labor Relations Board. Id. §§ 153–156. Section 156 provides the Board with "authority from time to time to make, amend, and rescind ... such rules and regulations as may be necessary to carry out the provisions" of the NLRA. Id. § 156. Section 157 is a declaration of the rights that employees "shall have," including "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively ... [and] to refrain from any or all of such activities." Id. § 157. Section 158(a) defines unfair labor practices for...

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16 practice notes
  • Am. Great Lakes Ports Ass'n v. Zukunft, Civil Action No.: 16–1019 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 3, 2017
    ...v. Office of Thrift Supervision , 569 F.3d 514, 519 (D.C. Cir. 2009) ; see also Chamber of Commerce of United States of Am. v. NLRB , 118 F.Supp.3d 171, 183 (D.D.C. 2015) ("The agency ... need not—indeed cannot—base its every action upon empirical data; depending upon the nature of the prob......
  • Am. Ass'n of Cosmetology Sch. v. Devos, Civil Action No.: 17-0263 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 28, 2017
    ...consideration to issues raised during the notice-and-comment period. See Chamber of Commerce of United States of Am. v. NLRB , 118 F.Supp.3d 171, 217–18 (D.D.C. 2015). One cannot assert that a particular portion of a regulation is arbitrary or capricious because it does not address a shortc......
  • Am. Fed'n of Labor & Cong. of Indus. Organizations v. Nat'l Labor Relations Bd., Civ. No. 20-cv-0675 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2020
    ...of two Board members. See id. The 2014 rule survived a subsequent court challenge, see generally Chamber of Commerce v. N.L.R.B. , 118 F. Supp. 3d 171 (D.D.C. 2015) ; Associated Builders & Contractors of Texas, Inc. v. N.L.R.B. , No. 1:15-CV-026, 2015 WL 3609116, at *1 (W.D. Tex. June 1, 20......
  • Ctr. for Biological Diversity v. Everson, Civil Action No. 15-477 (EGS), Civil Action No. 16-910 (EGS) (
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 28, 2020
    ...in Salerno and Flores rather than Chevron. See Chamber of Commerce of the United States of America v. Nat'l Labor Relations Bd. , 118 F. Supp. 3d 171, 184-85 & n.8 (D.D.C. 2015) (applying the "no set of circumstances" test to a " ‘pre-implementation challenge’ to the discretionary aspects o......
  • Request a trial to view additional results
16 cases
  • Am. Great Lakes Ports Ass'n v. Zukunft, Civil Action No.: 16–1019 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 3, 2017
    ...v. Office of Thrift Supervision , 569 F.3d 514, 519 (D.C. Cir. 2009) ; see also Chamber of Commerce of United States of Am. v. NLRB , 118 F.Supp.3d 171, 183 (D.D.C. 2015) ("The agency ... need not—indeed cannot—base its every action upon empirical data; depending upon the nature of the prob......
  • Am. Ass'n of Cosmetology Sch. v. Devos, Civil Action No.: 17-0263 (RC).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 28, 2017
    ...consideration to issues raised during the notice-and-comment period. See Chamber of Commerce of United States of Am. v. NLRB , 118 F.Supp.3d 171, 217–18 (D.D.C. 2015). One cannot assert that a particular portion of a regulation is arbitrary or capricious because it does not address a shortc......
  • Am. Fed'n of Labor & Cong. of Indus. Organizations v. Nat'l Labor Relations Bd., Civ. No. 20-cv-0675 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2020
    ...of two Board members. See id. The 2014 rule survived a subsequent court challenge, see generally Chamber of Commerce v. N.L.R.B. , 118 F. Supp. 3d 171 (D.D.C. 2015) ; Associated Builders & Contractors of Texas, Inc. v. N.L.R.B. , No. 1:15-CV-026, 2015 WL 3609116, at *1 (W.D. Tex. June 1, 20......
  • Ctr. for Biological Diversity v. Everson, Civil Action No. 15-477 (EGS), Civil Action No. 16-910 (EGS) (
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 28, 2020
    ...in Salerno and Flores rather than Chevron. See Chamber of Commerce of the United States of America v. Nat'l Labor Relations Bd. , 118 F. Supp. 3d 171, 184-85 & n.8 (D.D.C. 2015) (applying the "no set of circumstances" test to a " ‘pre-implementation challenge’ to the discretionary aspects o......
  • Request a trial to view additional results

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