Washington, DC – Today, House and Senate Democrats announced plans to reintroduce on February 28 the Protecting the Right to Organize (PRO) Act, a bill that would limit employees’ right to secret ballots, greatly diminished opportunities for those who operate or wish to operate a franchise business, and completely eliminate many pathways to self employment and opportunities for gig work.
The following statement can be attributed to Coalition for a Democratic Workplace Chair Kristen Swearingen:
“The PRO Act is a naked attempt to increase union membership at the expense of employees’ rights to privacy and association, employers’ constitutional right to free speech and opportunities for small businesses. We are disappointed members of Congress are willing to cater to union demands for legislation that clearly threatens the livelihoods of small business owners and is an open attack on the franchise and self employment business models that have fueled innovation, entrepreneurship, and job creation.
“Simply put, the PRO Act would be a disaster. Congress should immediately reject this legislation and protect the rights of workers and employers across the nation.”
Washington, DC – On February 9, CDW filed an amicus brief before the US Court of Appeals for the 5th Circuit in Tesla v NLRB. Our brief calls on the court to reverse the Board’s 2022 decision essentially making all uniform and dress code policies in the workplace presumptively unlawful. The Board said if a policy effectively limits the wearing of union insignia in any way, even if the policy is neutrally applied, the policy should be considered unlawful. The only way the employer can escape liability under the Board’s new theory is to meet the onerous burden of proving the policy is justified due to “special circumstances,” a narrow exception that the Board rarely, if ever, finds employers satisfy.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The Board’s decision attacks common sense workplace dress code policies even though these policies have nothing to do with unions or union support. Workplaces throughout the economy use these policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments. The Board’s decision will leave workplaces less safe for workers and consumers and put at risk the investments employers have made to further their businesses. The 5th Circuit should reverse this illogical decision and give employers the ability to enforce common sense dress code policies in the workplace.”
Washington, DC – On February 8, the Coalition for a Democratic Workplace, along with six other employer organizations, filed an amicus brief before the NLRB on a case against Starbucks in which the Board’s General Counsel Jennifer Abruzzo is attempting to eliminate employer speech rights in union organizing drives as well as employees’ right to secret ballots in union representation elections. CDW’s brief condemns the General Counsel’s proposed changes for violating the National Labor Relations Act, the First Amendment, and numerous judicial decisions affirming these fundamental rights.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The NLRB’s General Counsel wants to force unions on employees who have voted against union representation and silence any debate on the merits of a particular union or union representation generally. In her brief in this case, the General Counsel is demanding that the Board abandon decades of settled law and bring back policies that were soundly rejected by prior Boards, the Supreme Court, and Congress. Not only are the arguments she makes without legal foundation, but the substantive policies she’s pursuing are fundamentally at odds with employees’ right to make an informed choice by secret ballot election, the NLRA’s legislative history, and the First Amendment.
“The Supreme Court, Board, and Congress have routinely protected employees’ right to secret ballot elections, acknowledging that a private ballot election following ‘robust debate’ is by far the best means of ensuring workers can freely choose whether or not they want union representation. The Supreme Court has said our labor laws favor ‘uninhibited robust, and wide-open debate in labor disputes’ and that ‘secret elections are generally the most satisfactory – indeed the preferred – method of ascertaining whether a union has majority support.’ Congress has rejected attempts to eliminate secret ballots in union elections and supported free debate, and President John F. Kennedy said it is essential the law provide for union election campaigns ‘in which both parties can present their viewpoints.’
“The General Counsel is seeking to use her political position to do an end run around the Supreme Court and Congress to force unions on employees that don’t want them and end debate on issues that should be debated. The Board should unequivocally reject this outrageous ideological crusade.”
The fellow amici on the brief were Associated Builders and Contractors, the Chamber of Commerce, Independent Electrical Contractors, International Foodservice Distributors Association, National Association of Wholesaler-Distributors, and National Retail Federation.
Washington, DC – On December 7, the Coalition for a Democratic Workplace filed comments in response to the NLRB’s notice of proposed rulemaking altering the joint employer standard under the NLRA. As our comments explain, the proposed rule will undermine collective bargaining and destabilize labor relations, is arbitrary and capricious, and diverges from the common law. It ignores federal law, Congressional intent, and court precedent and, in doing so, threatens existing economic relationships and future opportunities for millions of entrepreneurs.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The joint employer standard created by this rule won’t help ensure workers can collectively bargain with the appropriate employers but will actually force businesses to the negotiating table that have no involvement in the workers’ terms and conditions of employment. The standard calls into question routine contractual terms, like quality control standards, workplace safety requirements, or hours of operation, and decimates businesses’ corporate social responsibility initiatives to the detriment of their workers, their consumers, and their communities.
“This radical proposal will destabilize labor relations and potentially destroy business models that have furthered the nation’s economic progress, created entrepreneurial opportunities for Americans nationwide, and provided millions of jobs to the nation’s workforce.
“The Board is once again pursuing extreme policies to further a radical agenda rather than trying to fulfill their statutory obligations to act as a neutral arbiter of the law and stabilize labor relations. This is simply bad policy that will achieve bad results. The Board should abandon this rulemaking in its entirety.”
Washington, DC – On November 8, 2022, the Coalition for a Democratic Workplace filed an amicus brief before the Supreme Court in Glacier Northwest, calling on the Court to affirm its own precedent that “unions are not immune from state tort suits when they intentionally destroy an employer’s property.” Without such a ruling, employers will be left without a remedy for the intentional destruction of their property, harming businesses, workers, communities, and the economy.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“There is no federal law that gives unions or their members a free pass for intentionally destroying someone else’s property. Unions, like everyone else, need to settle disputes within the confines of the law. Without property protections, local communities, workers, and businesses will suffer the collateral damage that will inevitably arise as businesses are harmed and potentially crushed by vandalism.”
On November 1, the Coalition for a Democratic Workplace (CDW), along with the US Chamber of Commerce, Associated Builders and Contractors, Associated Builders and Contractors of CT, CT Business & Industry Association, CT Retail Merchants Association, National Association of Home Builders, National Federation of Independent Business, and National Retail Federation, filed a lawsuit challenging Connecticut’s recently enacted law that bans employers from discussing workplace issues, including union representation and pending legislation or regulations, with their employees.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Connecticut’s law unquestionably violates the First Amendment as well as the National Labor Relations Act and is simply bad policy that hurts employers and employees alike. The law infringes on employers’ right to discuss with employees critical issues that undeniably impact the workforce and the business. At the same time, the law limits employees’ access to vital information they need to make an informed decision on whether or not to vote for union representation, including their employer’s response to any potentially misleading union allegations or promises.
“The state of Connecticut cannot be allowed to pick and choose which of its citizens have free speech rights. CDW will continue to fight back against these unlawful attacks on employers.”
Washington, DC – On October 27, the National Labor Relations Board’s (NLRB) General Counsel, Jennifer Abruzzo, continued her assault on free speech rights with her complaint against Amazon CEO Andy Jassy. Abruzzo alleges Jassy violated the National Labor Relations Act (NLRA) by discussing in media interviews his opinion of the ongoing union effort to organize Amazon facilities. Jassy’s comments clearly fall within the NLRA protected employer speech provisions in Section 8 (c), which states:
The 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.
The NLRA speech rights are an extension of the rights guaranteed by the First Amendment.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The NLRB general counsel Abruzzo is on a crusade to cancel any debate on the pros and cons of unionization and is willing to trample the First Amendment in the process. Workers have a right to hear from both sides – the union and the employer – on what unionization could mean for them and their work lives, including about the possible disadvantages of a specific union attempting to organizing their workplace or union representation generally. The government should ensure workers are fully informed of their options when deciding the critical question of whether or not they want union representation in the workplace, not try to keep workers in the dark through an unconstitutional attempt to muzzle employers.
“Abruzzo’s attempts to silence CEOs and companies benefits no one but unions hoping to collect more dues.”
Washington, DC – Recent reports have indicated that labor organizations are once again demanding the Senate pass the woefully misguided Protecting the Right to Organize (PRO) Act (H.R. 842, S. 420).
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The PRO Act is a wishlist of radical labor policies that would upend federal labor law, abandon the government’s responsibility to remain neutral in labor-management relations, and do significant damage to the economy. It would infringe on the rights of workers and employers alike and would cost millions of American jobs, threaten vital supply chains already struggling to recover from the COVID-19 pandemic, and diminish opportunities for entrepreneurs and small business owners.
“The bill tries to increase union density and union leverage at the bargaining table at any cost. The Board is completely ignoring the negative impacts this rulemaking could have on workers, businesses, and the economy. For example, an American Action Forum study found the bill’s independent contractor provision could cost up to $57 billion nationwide, and the joint-employer changes would cost franchises up to $33.3 billion a year, lead to over 350,000 job losses, and increase lawsuits by 93%.
“Voters too recognize that this bill is a disaster. A national survey conducted by Forbes Tate found the following opposition to major provisions within the PRO Act:
“The PRO Act would be a disaster for employees, employers, and the economy. At a time of soaring inflation, signs of a pending recession, supply chain disruptions, and severe workforce shortages, Congress should focus instead on finding ways to alleviate some of the economic pain Americans are feeling nationwide.”
Washington, DC – On September 12, CDW sent a letter to the House Education and Labor Committee expressing serious concerns with the Protecting the Right to Organize (PRO) Act and recent activity and policies pursued by the National Labor Relations Board (NLRB) and its General Counsel, Jennifer Abruzzo.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Economic analyses have proven that the PRO Act would have devastating consequences for the economy. It would cause economic upheaval at a time when our economy is still struggling with recovering from the COVID-19 pandemic. Inflation is rising, fears of a recession are top of mind, supply chains continue to lag behind demand, and workforce shortages are limiting economic growth. Particularly concerning at this moment in time is the PRO Act’s provision removing the 70-year ban on secondary strikes. As seen by the recently threatened rail strike, this provision alone could shut down the country’s supply chain. Surveys have also shown that the PRO Act is not supported by the public. Congress should abandon the PRO Act and work towards helping the economy get back on track.
“At the same time as Congress pursues this misguided legislation, the NLRB and General Counsel Abruzzo are attempting to rewrite labor law to force unions on workers whether they want one or not. They are trying to eliminate secret ballots in union representation elections and wipe out employers’ First Amendment rights during union organizing campaigns. They are putting employers in an impossible position by forcing them to tolerate discriminatory behavior in the workplace despite the clear violation of federal anti-discrimination laws that such tolerance would require. The Board is pursuing a new joint-employer standard that would destroy small and local businesses. This NLRB and General Counsel Abruzzo are pursuing radical policies without any consideration for the damaging effects they will cause for the regulated community.
“And now, there are allegations that NLRB staff are colluding with labor unions in representation elections and unfair labor practices cases against specific employers. This is simply beyond the pale. The NLRB is supposed to be a neutral arbiter of the law, and instead, staffers are tilting the balance in favor of their preferred side.
“Congress should demand the NLRB and General Counsel Abruzzo stop rewriting labor law to impose their own beliefs on the nation’s economy. The economy simply cannot right itself while simultaneously struggling to keep up with the never-ending radicalization of labor policy.”
Washington, D.C. – On September 6, the Coalition for a Democratic Workplace issued the following statement in response to the National Labor Relations Board’s newly released proposed rulemaking that would radically expand the joint employer standard under the NLRA, creating massive confusion for business operations and labor relations nationwide, inviting unnecessary and costly litigation, and imposing unwarranted liability.
The following can be attributed to CDW Chair Kristen Swearingen:
“Today, the NLRB launched its effort to radically alter labor-management relations, upending years of precedent and jeopardizing the stability of vital business relationships and the American economy overall. The Biden NLRB is threatening to put at risk nearly every contractual relationship nationwide by dramatically expanding the standard used to determine when two or more employers are jointly responsible for a group of employees.
“The NLRB’s proposed rulemaking is more damaging than we anticipated. The proposal goes beyond the controversial Obama-era BFI Board decision by requiring a joint employment determination based on ambiguous concepts of indirect and reserved control. As NLRB Members Kaplan and Ring explained clearly in their dissent, the proposed rule ‘would not merely return the Board to the BFI standard but would implement a standard considerably more extreme than BFI.’
“Whether by accident or design, the proposal disincentivizes larger companies from contracting, franchising or licensing with small and local businesses by injecting uncertainty and unnecessary liability into business relationships. The end result is fewer opportunities for entrepreneurs wishing to invest in their local economy, fewer local jobs, and fewer options for consumers.
“The Board failed to provide any justification for this proposed radical change, which is less clear and harder to apply than the existing 2020 rule, and ignored the DC Circuit’s clear rebuke for ‘oversh[ooting] the common-law mark’ with its BFI decision.
“Members Kaplan and Ring stated in their dissent, ‘The Act’s purpose of promoting collective bargaining is best served by a joint-employer standard that places at the bargaining table only those entities that control terms and conditions that are most material to collective bargaining.’ CDW could not agree more. It’s time for the Board to stop pursuing radical policies at the behest of labor unions, start abiding by the true intent of the Act, and consider the real-life implications of their actions on American workers, business owners, and the economy.”
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About The Coalition for a Democratic Workplace
CDW is a broad-based coalition of hundreds of organizations representing hundreds of thousands of employers and millions of employees in various industries across the country concerned with a long-standing effort by some in the labor movement to make radical changes to the National Labor Relations Act without regard to the severely negative impact they would have on employees, employers, and the economy. CDW was originally formed in 2005 in opposition to the so-called Employee Free Choice Act (EFCA) – a bill similar to the PRO Act – that would have stripped employees of the right to secret ballots in union representation elections and allowed arbitrators to set contract terms regardless of the consequence to workers or businesses.
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