United States District Court, D. Columbia.
For BAKER DC, LLC, Plaintiff (1:15-cv-00571-ABJ): Maurice Baskin, LEAD ATTORNEY, LITTLER MENDELSON, P.C., Washington, DC.
For SHANNON W. COTTON, MICHAEL A. MURPHY, JORGE E. GONZALEZ VILLAREAL, Plaintiffs (1:15-cv-00571-ABJ): Glenn M. Taubman, LEAD ATTORNEY, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA; Maurice Baskin, LEAD ATTORNEY, LITTLER MENDELSON, P.C., Washington, DC.
For NATIONAL LABOR RELATIONS BOARD, Defendant (1:15-cv-00571-ABJ): Dawn Laura Goldstein, Kevin Patrick Flanagan, Nancy Ellen Kessler Platt, LEAD ATTORNEYS, NATIONAL LABOR RELATIONS BOARD, Washington, DC.
For CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, COALITION FOR A DEMOCRATIC WORKPLACE, NATIONAL ASSOCIATION OF MANUFACTURERS, NATIONAL RETAIL FEDERATION, SOCIETY FOR HUMAN RESOURCE MANAGEMENT, Movants (1:15-cv-00571-ABJ): Allyson Newton Ho, LEAD ATTORNEY, MORGAN LEWIS & BOCKIUS LLP, Dallas, TX.
For Chamber of Commerce of The United States of America, Coalition For A Democratic Workplace, National Association of Manufacturers, National Retail Federation, Society For Human Resource Management, Plaintiffs: Allyson Newton Ho, LEAD ATTORNEY, MORGAN LEWIS & BOCKIUS LLP, Dallas, TX USA; David R. Broderdorf, II, Jonathan C. Fritts, Michael W. Steinberg, LEAD ATTORNEYS, MORGAN, LEWIS & BOCKIUS LLP, Washington, DC USA.
For Baker Dc, LLC, 15ca571, Plaintiff: Maurice Baskin, LEAD ATTORNEY, LITTLER MENDELSON, P.C., Washington, DC USA.
For Shannon W. Cotton, 15ca571, Michael A. Murphy, 15ca571, Jorge E. Gonzalez Villareal, 15ca571, Plaintiffs: Glenn M. Taubman, LEAD ATTORNEY, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA USA; Maurice Baskin, LEAD ATTORNEY, LITTLER MENDELSON, P.C., Washington, DC USA.
For National Labor Relations Board, Defendant: Dawn Laura Goldstein, Kevin Patrick Flanagan, Nancy Ellen Kessler Platt, LEAD ATTORNEYS, NATIONAL LABOR RELATIONS BOARD, Washington, DC USA.
For National Right to Work Legal Defense & Education Foundation, Inc., Amicus: Glenn M. Taubman, LEAD ATTORNEY, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA USA.
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" ), bring 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. Mot. 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.
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:
o 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;
o 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;
o 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;
o Postpones evidence taking and litigation over critical issues of voter eligibility until after ...