On April 19, the NLRB announced Volkswagen workers in Chattanooga, Tennessee, voted in favor of union representation. The vote was held via secret ballot in an NLRB-supervised election at the workplace.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Secret ballot elections are the gold standard for a reason. They guarantee workers can fully vote their conscience without undue pressure from others. Workers at the Volkswagen plant in Chattanooga, Tennessee, had an opportunity to vote via secret ballots in an election supervised by the NLRB and in the most accessible location for all of the workers — the workplace. All workers considering unionization must be given this same opportunity to ensure they can make their choice without intimidation, harassment, or coercion from anyone.
“Time and time again, data proves that in-person elections held via secret ballots under NLRB supervision at the workplace result in the highest voter participation. The NLRB should hold such elections wherever and whenever possible to guarantee that workers’ true wishes about representation are implemented.
“CDW remains concerned about efforts to silence employers during organizing drives. In January, 33 Senators urged auto companies currently targeted by UAW to pledge to remain neutral during the unionization campaign. Demanding neutrality harms the election process and infringes on workers’ right to be fully informed before voting. Workers must be able to hear robust debate about the merits of unionization before making such an impactful decision.”
On April 11, CDW sent a letter to members of the House of Representatives urging them to support the Start Applying Labor Transparency (SALT) Act, which would amend the Labor-Management Reporting and Disclosure Act to require labor organizations register “salts” with the Department of Labor.
The following can be attributed to CDW Chair Kristen Swearingen:
“The use of salts is an inherently coercive tactic that unions use to trick workers into supporting unionization. Salts obtain jobs in a nonunionized workplace, destabilize labor-management relations, and then urge unionization on the workers. Salts are under no obligation to tell their colleagues what their true intentions are, misleading workers and violating their right to know who is trying to persuade them. Just look to the recent Starbucks organizing campaign for proof that workers do not appreciate being misled.
“Under the LMRDA, employers are required to report when they hire consultants to speak with employees about organizing, but the law is completely silent on unions’ use of salts, a practice that relies on misleading and deceiving workers.
“The SALT Act is much-needed legislation that would ensure workers have full transparency on who is trying to coerce or persuade them during union organizing drives. CDW urges Congress to support the SALT Act to protect workers, guarantee transparency, and ensure labor stability.”
On April 10, the Senate passed HJRes 98, a Congressional Review Act resolution to nullify the NLRB’s joint employer final rule. The resolution already passed the House, meaning the bill is headed to President Biden’s desk for signature.
The following can be attributed to CDW Chair Kristen Swearingen:
“The NLRB’s final rule was a massive expansion of the joint employer standard that would have violated the NLRA and common law. It would have created widespread confusion throughout the economy and jeopardized millions of small businesses. That’s why both federal courts and Congress have moved to nullify it before it could take effect.
“CDW applauds the Senate for taking this step to protect the economy and specifically the small businesses that would have been devastated by this rulemaking. We now urge President Biden to sign this bill into law. Doing so will provide certainty to American businesses, stabilize labor relations, and rein in the Board’s egregious actions.”
Washington, DC – On March 29, the Occupational Safety and Health Administration issued a final rule allowing unions and other third parties, potentially with an agenda against the employer, to participate in OSHA inspections.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“OSHA’s final rule allows individuals with an agenda against the employer — including unions that have not convinced the workers to obtain their representation — to infiltrate the workplace and obtain proprietary information or information about the employer and/or workers.
“The rule provides no clarity for how OSHA safety and health officers are supposed to determine if a chosen representative should be allowed to participate in the inspection. Moreover, there’s no limit to the number of representatives that can participate, meaning multiple unions trying to organize a workplace could be permitted access. OSHA inspectors will be forced into a position to police these representatives’ behavior, which could include intentionally disrupting the workplace and instigating dysfunction.
“The rule puts OSHA safety and health officers in the middle of labor disputes and organizing drives, which they simply are not prepared for. OSHA was misguided in pursuing this rulemaking, and the courts will most assuredly have an opportunity to strike it down.”
Washington, DC – On March 21, Congressional appropriators released the minibus for FY25 that includes funding for the National Labor Relations Board. The minibus provides the NLRB with the same funding levels as it received in FY24 and includes the long-standing policy rider that prohibits the Board from implementing electronic voting in union representation elections. CDW applauds appropriators for these decisions.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“CDW appreciates Congress keeping NLRB funding flat in FY25 and maintaining the policy rider on electronic voting. As we explained in our recent letter, electronic voting would break with NLRB precedent, increase the risk of coercion and fraud in representation elections, and waste the NLRB’s resources. Secret ballot elections are the gold standard and should be guaranteed to workers in order to ensure they can voice their opinion on representation without the threat of harassment or intimidation.
“The NLRB over the last few years has pursued damaging policies that risk significant negative repercussions for the economy, workers, and employers. Congress is right to maintain the agency’s funding to help limit the Board’s harmful policies, but frankly that may not be enough. Future policy riders may be necessary to further rein in the Board if they continue to move forward with their biased and unreasonable policies. Congress should considered using the appropriations process to ensure the Board cannot exceed its authority.”
Washington, DC – On March 14, CDW sent a letter to House and Senate appropriators urging them to protect secret ballot elections in union representation elections by maintaining a bipartisan policy rider that prohibits the NLRB from implementing electronic voting in representation elections. The letter also urges Congress to condition any increase in NLRB funding on additional riders that will rein in the Board’s actions.
The following quote can be attributed to CDW Chair Kristen Swearingen:
“Congress, the NLRB, federal courts, and stakeholders have all recognized that secret ballots in union representation elections are the best means for ensuring workers can freely vote their conscience and for guaranteeing secure and credible elections.
“Electronic voting, on the other hand, would break with NLRB precedent, increase the risk of coercion and fraud in representation elections, and waste the NLRB’s limited resources. That’s why the policy rider was established decades ago and why Congress has repeatedly included it in appropriations packages year after year. Congress should maintain the rider again and protect workers, election credibility, and Board resources.
“Moreover, during this administration, the NLRB has routinely pushed for vast expansion of its authority and wasted taxpayer resources on long-shot, radical policy changes. Congress should use the appropriations process to rein in the NLRB’s behavior and force the agency to focus its resources on more appropriate efforts.”
On March 8, the District Court for the Eastern District of Texas invalidated the NLRB’s joint employer final rule, finding it too broad and in violation of the NLRA. As Judge Barker stated, the rule “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly … essential terms and conditions of employment.”
The following statement can be attributed to CDW Chair Kristen Swearingen:
“CDW applauds the District Court for recognizing what this rulemaking was – a massive expansion of the joint employer standard that would have violated both the NLRA and the common law and would have created widespread confusion throughout the economy.
“With this rule, the Board was attempting to place unions in the middle of routine business to business agreements, and the result would have been devastating for small businesses nationwide. If implemented, the rule would have destabilized labor relations and put at risk nearly every contractual relationship across the economy.
“Thankfully, Judge Barker saw through the Board’s efforts. His decision has protected American workers, businesses, and the economy from the chaos this rule would have created.”
On February 28, CDW and several other employer organizations filed a motion before the Supreme Court in Starbucks v McKinney, a case considering the criteria the NLRB must meet to seek Section 10(j) injunctive relief under the National Labor Relations Act. The motion requests the Supreme Court reverse a 6th Circuit decision and clarify the test the Board must use to be granted preliminary injunctive relief against an employer. A Supreme Court decision would provide clarity on the issue, which has resulted in conflicting standards from the Circuit Courts.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The current NLRB and its General Counsel are pursuing injunctive relief against employers based on flawed legal theories or unsubstantiated allegations. The agency has required businesses hold financially draining assets, remain in outdated or unprofitable facilities, and reinstate employees who have harassed coworkers.
“Courts have an obligation to ensure the Board is seeking injunctive relief based on sound reasoning, but unfortunately, some Circuit Courts are using lenient standards to assess the NLRB’s requests. The agency should be held to the same standards as other litigants seeking injunctions, and the Supreme Court should take this opportunity to rein in the NLRB and ensure the agency is subject to appropriate judicial oversight.”
The other employer organizations on the motion are Associated Builders and Contractors, HR Policy Association, and National Retail Federation.
In November 2023, CDW filed a petition to the Supreme Court asking them to take up this case, and our statement on that brief is available here.
Washington, DC – On February 9, CDW along with several other employer organizations filed an amicus brief before the US Court of Appeals for the Ninth Circuit in Cemex v NLRB, a case in which the NLRB rewrote the rules for union representation elections in a manner that will make card check the default way for determining union representation. CDW’s brief explains that the new procedures violate Supreme Court precedent, ignores Congressional intent, exposes workers to intimidation and harassment, and violates their right to a private ballot.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The Cemex decision has upended the union representation process. Instead of workers voting via a private ballot on whether they want to unionize, unions can now coerce, intimidate, and lie to workers to get them to sign authorization cards with no guarantee that a secret ballot election will ever be held. The Board pursued this policy despite the Supreme Court, federal appeals courts, and Congress all clearly stating that the secret ballot process is the only method that gives workers the privacy they need to truly vote their conscience on such an important issue.
“With this ruling, the Board has made it clear they do not want to protect workers’ privacy. They do not want a fair and level playing field during unionization campaigns. They want to tip the scales in favor of unions at any expense, including the rights and wellbeing of workers.
“The Board’s Cemex decision should be set aside, and secret ballot elections should be protected at all costs.”
The other organizations that joined the brief were Associated Builders and Contractors, Associated General Contractors of America, American Hotel & Lodging Association, American Trucking Associations, US Chamber of Commerce, FMI – The Food Industry Association, HR Policy Association, Independent Electrical Contractors, International Foodservice Distributors Association, International Franchise Association, National Association of Manufacturers, National Association of Wholesaler-Distributors, National Federation of Independent Business, and National Retail Federation.