Chamber of Commerce, et al. v. National Labor Relations Board

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace sued the National Labor Relations Board (NLRB) to challenge the NLRB’s new “ambush election rule,” which will make it significantly more difficult for employers, especially small employers, to respond to union campaigns. The Chamber's lawsuit explains that the National Labor Relations Board's final "ambush election rule" imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections. The rulemaking process has been the subject of significant public controversy because of the Board’s rush to issue the rule before board member and former union lawyer Craig Becker’s recess appointment expires on December 31. The lawsuit argues that the blatantly partisan purpose of this rule is to ensure that employers have no time to talk to their workers about unionizing, and that the only information workers will get will come from the union. According to the Chamber’s complaint, the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and free speech and due process constitutional rights. 

On February 3, 2012, the Chamber moved for summary judgment, asking the court to strike down the rule.  The Chamber argues that the NLRB’s rulemaking process suffers from a host of “fatal flaws.” As the Chamber’s lawsuit explains, two Board members short-circuited the rulemaking process by denying the third member the opportunity to fully participate in the rulemaking – all in an effort to issue the rule before controversial board member Craig Becker’s recess appointment expired. Thus, the rule was issued without a lawful quorum. Moreover, the actions taken by two of the board members to fast-track the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow the Board’s well-established practice with respect to overturning precedent only by the affirmative vote of three members. The motion also argues that the new rule completely eviscerates the statutory right under the NLRA to pre-election hearings.

The U.S. District Court for the District of Columbia ruled that the Ambush Election Rule is invalid "because no quorum ever existed for the pivotal vote in question." Accordingly, the court granted the Chamber's motion for summary judgment and denied the defendant's motion.

Complaint filed 12/20/2011. Amended complaint filed 2/3/2012. Cross-motions for summary judgment filed 2/3/2012. Decided 5/14/2012.