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Chamber of Commerce of United States v. National Labor Relations Board

United States District Court, D. Columbia.

July 29, 2015


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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.

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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

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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.


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. 15-0571 (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. Baker DC, LLC v. NLRB, No. 15-0571 (ABJ),

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102 F.Supp.3d 194, 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 both employers and labor organizations, and, in particular, it provides: " [i]t shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Id. § 158(a)(1). Section 158(c) protects parties' free speech, and it provides that " [t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit." Id. § 158(c).

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Section 159(b) states that it is the Board's duty to determine the appropriate unit for the purposes of collective bargaining, " in order to assure to employees the fullest freedom in exercising the rights" guaranteed by the NLRA. Id. § 159(b). Accordingly, when employees and their employer are unable to agree on whether the employees should be represented by a labor union, section 159(c) sets out the procedures for resolving that issue. Id. § 159(c). First, an employee, union, or employer files a petition for an election through one of the Board's regional offices. Id. § 159(c)(1). Second, if there is reasonable cause to believe that a " question of representation" [2] exists, the Board will " provide for an appropriate hearing upon due notice," which the Court will refer to as the " pre-election hearing." Id. The pre-election hearing may be conducted by an officer or employee of one of the Board's regional offices, called the hearing officer. Id. If it is determined that a question of representation does exist, the Board directs an election by secret ballot, and it certifies the results of that election. Id.

Section 153 of the NLRA allows the Board to delegate its section 159 authority to its regional directors, permitting them " to determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists, and to direct an election or take a secret ballot . . . and certify the results thereof." Id. § 153(b). While a hearing officer may conduct the pre-election hearing, he may not make " any recommendations with respect thereto," as decisions regarding elections are reserved for the regional directors and the Board. See id. § 159(c)(1). " [U]pon the filing of a request [for review] with the Board by any interested person, the Board may review any action of a regional director delegated to him," but review by the Board does not operate as a stay of the regional director's action. Id. § 153(b).

III. Regulatory Background

After announcing the proposed rule and subjecting it to a notice and comment period,[3] the Board published the Final Rule in the Federal Register on December 15, 2014. 79 Fed.Reg. at 74,308, 74,311. Two Board members dissented. Id. at 74,430-60 (dissent). As was announced in December, the Final Rule went into effect on April 14, 2015. See id. at 74,308. It implemented twenty-five changes to the procedures governing the election of union representatives for collective bargaining purposes. Id. at 74,308-10 (summarizing amendments). Those changes are codified within 29 C.F.R. Parts 101, 102, and 103.

Although the Chamber plaintiffs seek to have the entire Final Rule invalidated, see

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Chamber Mot. at 44,[4] they have raised specific objections to only some of the changes implemented by the Final Rule. See Chamber Mot. at 10. The Baker plaintiffs object to the same provisions. Baker Am. Compl. ¶ 4. Those provisions are:

o The requirement that, " [w]ithin 2 business days after service of the notice of hearing, the employer . . . post the [Board's] Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically." 29 C.F.R. § 102.63(a)(2).
o The requirement that the employer file a written " Statement of Position" before the pre-election hearing is scheduled to begin, detailing its position on a range of issues, or risk waiving its ability to litigate those issues at the pre-election hearing. Id. § § 102.63(b)(1)(i), 102.66(d).
o The provision clarifying that the purpose of the pre-election hearing " is to determine if a question of representation exists," and permitting regional directors to decline to take evidence on or litigate " individuals' eligibility to vote or inclusion in an appropriate unit." Id. § 102.64(a).
o The provision stating that, once the pre-election hearing has been held and a direction of election issued by the regional director, " [t]he regional director shall schedule the election for the earliest date practicable consistent with these rules." Id. § 102.67(b).
o The requirement that the employer, within two business days after the direction of election, provide a " voter list" to the regional director and the parties to the election proceeding, containing " the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular ('cell') telephone numbers) of all eligible voters." Id. § 102.67( l ).
o The elimination of parties' ability to stipulate to mandatory postelection Board review through a stipulated election agreement. Id. at 101.28; 102.62(b).[5]

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Plaintiffs contend that certain of these provisions violate the NLRA or the Constitution, and that several are the result of arbitrary and capricious rulemaking. Each challenged provision and the specific grounds for plaintiffs' objections are discussed in greater detail below.


I. Motion to Dismiss

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that " a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448, 361 U.S. App.D.C. 6 (D.C. Cir. 2004) (" As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction." ). " [B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971, 358 U.S. App.D.C. 56 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court " is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241, 251 U.S. App.D.C. 145 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, " a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. National Academy of Sciences, 974 F.2d 192, 197, 297 U.S. App.D.C. 406 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S. App.D.C. 270 (D.C. Cir. 2005).

II. Summary Judgment

Summary judgment is appropriate when the pleadings and evidence show that " there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). However, in cases involving review of agency action under the APA, Rule 56 does not apply due to the limited role of a court in reviewing the administrative record. Select Specialty Hosp. - Akron, LLC v. Sebelius, 820 F.Supp.2d 13, 21 (D.D.C. 2011).

Under the APA, a court must " hold unlawful and set aside agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or " without observance of procedure required by law." Id. § 706(2)(D). However, the scope of review is narrow. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The agency's decision is presumed to be valid, see Am. Radio Relay League, Inc. v. FCC, 617 F.2d 875, 879, 199 U.S. App.D.C. 293 (D.C. Cir. 1980), and a court must not " substitute its judgment for that of the agency." State Farm, 463 U.S. at 43.

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When a plaintiff challenges an agency's authority to act, a court analyzes the agency's interpretation of the authorizing statute using the two-step procedure set forth in Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the court must determine " whether Congress has directly spoken to the precise question at issue." Id. at 842. " 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." Id. at 842-43. Courts " use 'traditional tools of statutory construction' to determine whether Congress has unambiguously expressed its intent," Serono Labs., Inc., v. Shalala, 158 F.3d 1313, 1319, 332 U.S. App.D.C. 407 (D.C. Cir. 1998), quoting Chevron, 467 U.S. at 843 n.9, including the statute's text, structure, purpose, and legislative history. Bell A. Tel. Cos. v. FCC, 131 F.3d 1044, 1047, 327 U.S. App.D.C. 390 (D.C. Cir. 1997).

If the court concludes that the statute is either silent or ambiguous, the second step of the review process is to determine whether the interpretation proffered by the agency is " based on a permissible construction of the statute." Chevron, 467 U.S. at 843. Once a reviewing court reaches the second step, it must accord " considerable weight" to an executive agency's construction of a statutory scheme it has been " entrusted to administer." Id. at 844. Indeed, " under Chevron, courts are bound to uphold an agency interpretation as long as it is reasonable -- regardless whether there may be other reasonable, or even more reasonable, views." Serono Labs., 158 F.3d at 1321.

If an agency's construction of the applicable statute satisfies Chevron, the court is still bound to ensure that the challenged action is not otherwise arbitrary and capricious. Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228, 376 U.S. App.D.C. 385 (D.C. Cir. 2007). Agency action will be upheld if the agency involved " has considered the relevant factors and articulated a 'rational connection between the facts found and the choice made.'" Id., quoting Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 68, 342 U.S. App.D.C. 61 (D.C. Cir. 2000). The review is " [h]ighly deferential" and it " presumes the validity of agency action." AT& T Corp. v. FCC, 220 F.3d 607, 616, 343 U.S. App.D.C. 23 (D.C. Cir. 2000). The agency may rely on comments submitted during the notice and comment period as justification for the rule, so long as the submissions are examined critically. See Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1125, 237 U.S. App.D.C. 390 (D.C. Cir. 1984). But it " need not -- indeed cannot -- base its every action upon empirical data; depending upon the nature of the problem, an agency may be 'entitled to conduct . . . a general analysis based on informed conjecture.'" Chamber of Commerce v. SEC, 412 F.3d 133, 142, 366 U.S. App.D.C. 351 (D.C. Cir. 2005), quoting Melcher v. FCC, 134 F.3d 1143, 1158, 328 U.S. App.D.C. 319 (D.C. Cir. 1998).


I. The Nature and Justiciability of the Challenges to the Final Rule

A. The Facial Challenge to the Final Rule

The Court must first address the Board's contention that those provisions of the Final Rule that provide regional directors with a measure of discretion, such as those concerning the scope of the pre-election hearing and the length of the campaigning period, are " not ripe for a pre-enforcement facial challenge," and that plaintiffs' challenges to those provisions

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should be dismissed.[6] Board Mot. at 4; see also Board Reply at 1-3; Board 2d Reply at 1-4. According to the Board, because the Final Rule grants regional directors the discretion to determine whether individual voter eligibility and inclusion issues will be litigated at the pre-election hearing, and because it " contains no rigid time targets" for the length of representation election proceedings, plaintiffs' facial challenge is " ill-suited for review at this time." Board Mot. at 5-6. In support of this argument, the Board relies on Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), which held that a party bringing a facial challenge to a regulation must prove that " no set of circumstances exists under which the regulation would be valid." Board Mot. at 4-5, quoting Flores, 507 U.S. at 301.

The Chamber plaintiffs submit that because they " challenge an agency's purely legal interpretation of a statute, not an exercise of discretion," their " pre-implementation challenge" to the discretionary aspects of the Final Rule is ripe. Chamber Reply at 2-3. In other words, because the Final Rule has gone into effect, their attacks on its facial validity are justiciable, even as to the discretionary provisions. Hr'g Tr. 21:19-22:18. The Court agrees with this contention; as the D.C. Circuit has observed, " a purely legal claim in the context of a facial challenge . . . is presumptively reviewable," especially where it is a claim " that an agency's action is arbitrary and capricious or contrary to law." Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 215, 377 U.S. App.D.C. 234 (D.C. Cir. 2007), quoting Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272, 1282, 368 U.S. App.D.C. 23 (D.C. Cir. 2005). Indeed, this interpretation is consistent with Flores, which set out the no set of circumstances test as the standard for consideration of a facial challenge on its merits. See 507 U.S. at 301.

The Chamber plaintiffs maintain, though, that the no set of circumstances test should not apply. They state that " [t]he D.C. Circuit has made clear that '[t]he Supreme Court has never adopted a no set of circumstances test to assess the validity of a regulation challenged as facially incompatible with governing statutory law.'" Chamber Reply at 3-4, quoting Nat'l Mining Assoc. v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1407, 330 U.S. App.D.C. 329 (D.C. Cir. 1998). But the Court of Appeals subsequently clarified that observation, and it has stated that the National Mining Association decision " was made in the mistaken belief" that the Supreme Court had never before applied the " no set of circumstances" test to a facial statutory challenge, when in fact it " had done just that several years earlier in Flores." Sherley v. Sebelius, 644 F.3d 388, 397, 396 U.S. App.D.C. 1 n.** (D.C. Cir. 2011); see also Amfac Resorts, LLC v. Dep't of Interior, 282 F.3d 818, 826, 350 U.S. App.D.C. 191 (D.C. Cir. 2002) (stating that the National Mining Association decision " apparently overlooked" the Supreme Court's ruling in Flores ), vacated in part on other grounds sub nom. Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Recognizing that it was " bound . . . by a higher authority," the Sherley Court followed Flores in applying the no set of circumstances test to a facial challenge to agency regulations, despite the conflicting panel decision in National Mining Association. 644 F.3d at 397 n.**.[7]

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In Flores, a class of juvenile aliens challenged a final rule implemented by the Immigration and Naturalization Service (" INS" ). 507 U.S. at 299-300. The situation was similar to the one facing this Court:

[T]his is a facial challenge to INS regulation 242.24. Respondents do not challenge its application in a particular instance; it had not yet been applied in a particular instance -- because it was not yet in existence -- when their suit was brought . . . and it had been in effect only a week when the District Court issued the judgment invalidating it. We have before us no findings of fact, indeed no record, concerning the INS's interpretation of the regulation or the history of its enforcement. We have only the regulation itself and the statement of basis and purpose that accompanied its promulgation.

Id. at 300-01. Under the circumstances, the Court held that " [t]o prevail in such a facial challenge," the respondents " must establish that no set of circumstances exists under which the [regulation] would be valid." Id. at 301, quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). This test applied to " both the constitutional challenges, and the statutory challenge." Id., citing Schall v. Martin, 467 U.S. 253, 268 n.18, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), and INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 188, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991).

Given the procedural posture of this case, the Court will adopt the approach taken by the D.C. Circuit panel in Sherley and follow Flores here. Accord Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 1-15-CV-026 RP, 2015 WL 3609116, at *4 (W.D. Tex. June 1, 2015). (applying no set of circumstances test in parallel challenge to the Final Rule). Applying that precedent, the Court finds that the facial challenge to the discretionary provisions of the Final Rule is ripe for consideration, and the Board's partial motion to dismiss will be denied. To succeed on their motion for summary judgment, plaintiffs must show that there is no set of circumstances under which the Final Rule could be applied consistently with the NLRA or the Constitution.[8]

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B. The Baker Plaintiffs' As-Applied Challenge

Baker filed its initial complaint on April 17, 2015, three days after the Final Rule went into effect and before proceedings under the Final Rule had begun. But while this action has been pending, the Baker plaintiffs have proffered evidence along the way, alerting the Court about how the Final Rule is being applied in the ongoing election proceeding at the company. See, e.g., Baker Opp. at 1-2 (" appris[ing] the Court of events that have transpired in the related Board representation proceeding since the filing of the [UCW] petition" ).[9] The Baker plaintiffs contend that, in light of the application of the Final Rule to the ongoing election proceeding, the Board can no longer contend that the consolidated legal challenge is not ripe for review. Id. at 5.

As discussed above, the Court agrees that plaintiffs' facial challenge to the Final Rule is justiciable at this time, even absent any specific developments in the Baker election proceeding. But to the extent that the Baker plaintiffs seek to recharacterize their complaint as including an as-applied challenge, see Baker Br. at 1 (" Baker's Complaint states both a facial and as-applied challenge to the [Final] Rule." ), that challenge would not be ripe. Essentially, the Baker plaintiffs are asking this Court to hit a moving target -- to take notice of, and rule on, the propriety of the regional director's decisions in their representation case as it unfolds and before it is complete. The very nature of this request makes it clear that any as-applied claims are not justiciable until the entire election process and the subsequent Board review has come to its conclusion.

At the outset, the Court questions whether Baker's original or amended complaint can even be construed as asserting an as-applied challenge. The original complaint was filed on April 17, 2015, just three days after the Final Rule went into effect and well before any of its provisions had been applied to Baker. See Baker Compl. And the amended complaint is identical in every material respect to the original complaint. Compare Baker Compl. with Baker Am. Compl. Both complaints allege only that the Final Rule on its face is contrary to the NLRA, the APA, and the Constitution, and that it is arbitrary and capricious -- not because of how it has been or will be applied to Baker

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or its employees, but because of the way it was written. See Baker Compl. ¶ ¶ 12-38; Baker Am. Compl. ¶ ¶ 12-38.[10] Ripeness is to be determined at the time the complaint is filed. See, e.g., Ctr. for Sci. in Pub. Interest v. FDA, No. Civ. A. 03-1962 (RBW), 2004 WL 2218658, at *3 (D.D.C. Sept. 17, 2004) (" When a court reviews claims for ripeness or standing to pursue a claim, such review is conducted based on the facts that existed at the time the complaint was filed." ). Therefore, since the Baker plaintiffs' complaint and amended complaint were filed before the Final Rule was fully applied to Baker, the Court could find on this ground alone that they do not state an as-applied challenge.

Further, even if the Court generously construed the Baker complaints to include such a challenge, it would not be ripe. The Baker plaintiffs assert that their extrinsic evidence " show[s] as a matter of public record and undisputed facts that the allegations of the Complaint regarding the [Final] Rule's adverse impact on the Baker plaintiffs were true." Baker Br. at 2; see also id. at 3 (" Baker's supplemental information merely establishes that a number of these identified adverse impacts have in fact occurred." ). But these assertions of ongoing or imminent injury-in-fact go to the Baker plaintiffs' standing to bring these challenges -- which has not been contested -- and they do not establish the ripeness of any as-applied challenge as a prudential matter.

" The fundamental purpose of the ripeness doctrine is 'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Sprint Corp. v. FCC, 331 F.3d 952, 957, 356 U.S. App.D.C. 367 (D.C. Cir. 2003), quoting Nat'l Park Hospitality, 538 U.S. at 807-08. While the constitutional aspect of ripeness may involve the same impending injury-in-fact requirement that is necessary for standing, the prudential aspect of ripeness requires more: a court must " balance[] 'the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427-28, 322 U.S. App.D.C. 135 (D.C. Cir. 1996), quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). The fitness of an issue for judicial decision depends on whether there are " contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (citations omitted).

Here, to the extent the Baker plaintiffs wish to reformulate their claim as an as-applied challenge, they are asking the Court to engage in precisely the sort of premature analysis of an unfinished administrative process that the ripeness doctrine is designed to prevent. There are many points in the representation election

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proceeding at which the Baker plaintiffs' objections to the discretionary decisions made under the Final Rule could be rendered moot: UCW could lose the election, the number of challenged voters could be too small to affect the results, or the Board could grant a request to review the regional director's decision and overturn it. There has yet to be a formal, final outcome, and these potential future events weigh against a finding that an as-applied challenge is ripe.[11]

Furthermore, once the process is complete, this would not be the forum in which the Baker plaintiffs could obtain review in any event. Even if Baker loses at each of these administrative stages, it can refuse to bargain with UCW, thereby triggering an unfair labor practice hearing, and it can seek review of the result of that hearing before the D.C. Circuit pursuant to 29 U.S.C. § 160(f). Through that provision, " Congress declared that the person aggrieved by a Board representation decision is obliged to precipitate an unfair labor practice proceeding as a means of securing review in the appellate courts." Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1311, 234 U.S. App.D.C. 209 (D.C. Cir. 1984) (emphasis added) (citation omitted); see also id. at 1310 (" The cases are legion holding that, as a general rule, Board orders emanating from representation proceedings are not directly reviewable in court." ). The Baker plaintiffs insist that they are " not actually asking [the Court] to enjoin the representation proceeding that's ongoing," and that they are only asking the Court " to enjoin, to vacate" the Final Rule. Hr'g Tr. 69:1-5; see also Baker Opp. at 5 n.3 (" Plaintiffs are not seeking to enjoin an ongoing representation proceeding; they are seeking to set aside an unlawful Rule." ). If that is so, then the facial challenge, which is the only aspect of the Baker plaintiffs' complaint that is ripe, should suffice to serve that purpose.

As for the Baker plaintiffs' APA challenge, the Court cannot consider evidence of what is transpiring in the ongoing representation case proceedings, because its review of the Board's action under the APA is limited to the administrative record that was before the agency at the time it made its decision. See 5 U.S.C. § 706; James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095, 317 U.S. App.D.C. 281 (D.C. Cir. 1996); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam) (" In applying [the abuse of discretion] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." ). Thus, how the Final Rule has been applied to Baker and its employees since it went into effect is not properly part of any challenge under the APA,[12] and what is

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pending before the Court is the consolidation of plaintiffs' facial attack on the Final Rule, to be analyzed under the Flores test.

II. The Individual Challenges to the Final Rule

In examining each of plaintiffs' challenges to the Final Rule, the Court cannot help but notice that the complaints are largely conclusory and argumentative.[13] They rely heavily on the repetition of disparaging labels, referring to the Final Rule as the " 'ambush' or 'quickie' election rule" that compels employees to " 'vote now, understand later.'" Chamber Mot. at 1, quoting 79 Fed.Reg. at 74,430 (dissent). This tendency to speak in broad terms continued well into the parties' lengthy, but often nebulous, memoranda. Faced with this lack of specificity, the Court struggled at oral argument to get counsel to identify which provisions of the Final Rule violated which provisions of the NLRA or the Constitution and how. Counsel resisted being pinned down, insisting that the analysis should be conducted at the 30,000 foot level. This may be because when one descends to the level of the particular, the provisions at issue are not quite as described. On its face, the Final Rule does not necessarily lead to the outcomes to which plaintiffs object, because it accords the Board's regional directors considerable discretion to apply its provisions in a manner that is appropriate to individual circumstances.

Plaintiffs fended off the Court's attempts to zero in on specific regulatory language, maintaining that it is the entire Final Rule -- the combination of the requirement to submit an early Statement of Position, the claimed elimination of the pre-election hearing on voter eligibility issues, the shortening of the presumptive minimum time period between the petition and the election, and the denial of an opportunity to agree to stipulate to full Board review -- that violates the statutory regime as a whole. But this attempt to look at the regulatory changes in the aggregate fails if the component parts have been inaccurately portrayed, or if they each pass muster under the applicable statutory and constitutional provisions. So the Court must proceed to examine each of the challenged regulations individually, notwithstanding plaintiffs' disinclination to do so.

The motions present no genuine issues of material fact, and so the case may be properly decided on summary judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The questions presented are: (1) whether the challenged portions of the Final Rule violate the NLRA; (2) whether those provisions violate the First and Fifth Amendments of the Constitution of the United States; and (3) whether the decision to implement the Final Rule was arbitrary and capricious under the APA. The Court undertakes

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this review bound by the long line of Supreme Court precedent which emphasizes that " Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees." NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). " The control of the election proceedings, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone." NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940). It is with this direction in mind that the Court reviews each of the challenged provisions of the Final Rule.

A. The Posting Requirement

The Final Rule provides that " [w]ithin 2 business days after service of the notice of hearing, the employer shall post the [Board's] Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically if the employer customarily communicates with its employees electronically." 29 C.F.R. § 102.63(a)(2) (" the Posting Requirement" ). Under the prior regulations, the posting of such a notice was voluntary, and the notice was less detailed. 79 Fed.Reg. at 74,309.

As an exhibit to its motion for a TRO, Baker submitted a copy of the notice it was required to post, making it part of the record in this case. See Ex. 1 to Baker TRO Mot., Baker DC, LLC v. NLRB, No. 15-0571 (ABJ) [Dkt. # 3-2] at 11-12. The notice is emblazoned with the text " National Labor Relations Board" at the top and bottom, and that text is bracketed by two N.L.R.B. seals. Id. The phrase " THIS IS AN OFFICIAL GOVERNMENT NOTICE" is printed in bold-face, capital letters at the bottom of the second page. Id. at 12.

The notice informs employees that a petition has been filed by UCW, which is " seeking an election to become certified as the representative" of Baker's employees. Id. at 11. It also states that, under " Federal ...

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