The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace last week filed a motion seeking summary judgment in their lawsuit against the National Labor Relations Board (NLRB) challenging the Board’s December 22, 2011 rule intended to expedite the union representation election process. The Chamber’s lawsuit, filed in December and recently amended, 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.

The Chamber’s February 3, 2012 motion, seeking summary judgment invalidating the rule, argues that the Board’s rulemaking process was flawed in that:

  • two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
  • the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
  • the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

On the same day, the Board also filed for summary judgment dismissing the suit. The Board’s brief argues that the Chamber’s suit is not ripe for adjudication; the agency is entitled to deference in rulemaking; the rule is consistent with all substantive provisions of the Act; and the Board "fully considered and appropriately rejected" all the Chamber’s substantive arguments against the rule in the course of its rulemaking process — which process was not "totally unjustified".

Employers must follow closely this litigation, and the other developments currently unfolding, as the implementation of this rule will change significantly the way representation proceedings are processed and the timeframe within which they will have to respond to them. We will post additional information here on the case and the broader issue as it becomes available.