NLRB Expands Authority to Force Union on Employees Without Election and Ignores Legal Precedent and Stakeholder Requests for Opportunity for Public Comment

On August 25, 2023, the National Labor Relations Board issued its decision in Cemex, imposing a new framework which greatly expands the Board’s ability to impose unions on employees without a secret ballot election. The Board’s decision reverses a half-century of NLRB precedent and is at odds with long-standing Supreme Court rulings. The Board also made this major policy change without soliciting input from the public via comment or amicus briefs and rejected CDW’s request to allow for amicus briefs.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Board’s decision to force unions on employees without an election is contrary to the law and the fundamentals of workplace democracy. Employees deserve the right to decide whether or not they want union representation through a secret ballot election. The Board should be protecting this right and doing everything in its power to promote employee participation in elections – not forcing unions on employees based on unreliable authorization cards. The Board decision overrules precedent that has stood for over half a century and been upheld by the Supreme Court. As dissenting Member Kaplan explained, the new standard will have ‘the primary effect of negating the rights of current employees rather than furthering them’ and therefore ‘defeats, rather than effectuates, the policies of the [Act].’

“Not only is CDW disappointed in the ruling, but we’re disappointed that the Board chose to move forward with such a fundamental change to labor law without seeking input from stakeholders. This is more concerning given that CDW and others specifically called on the Board to invite amicus briefs in the case. The regulated community should have had an opportunity to express their concerns before such a radical change to policy was made.”

CDW Slams NLRB for Reinstating Ambush Elections Rule

On August 24, 2023, the NLRB issued its direct final rule reinstating the Obama-era ambush elections rule, which promoted speed of union representation elections at the expense of employees’ right to be fully informed before choosing whether or not they wanted union representation in the workplace.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Board once again is tipping the balance of federal labor law in favor of unions and sacrificing the rights of employees and employers to do so. This rulemaking, which the Board  completed without soliciting input from the public, prioritizes the speed of elections over workers and employers rights, violating the most basic responsibilities of the Board.

“Simply promoting speed of elections does nothing to ensure workers are fully informed and violates the due process rights of employers. As dissenting Board member Marvin Kaplan explained, ‘One is left to wonder how much the voters will actually benefit from the requirements that elections be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.’”

NLRB Decision Puts Common Sense Workplace Policies at Risk

Washington, DC – On August 2, the NLRB issued its decision in Stericycle, putting at risk employers’ common sense workplace policies. 

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Board’s decision makes it nearly impossible for employers across the country to provide safe, hostile-free workplaces for workers. The Board has inserted instability and confusion into the workplace and created risks for employers attempting to implement common sense policies that protect workers, customers, and the community.

“The better approach, by far, was the Board’s decision in Boeing, which ensured the Board would consider both the employer’s legitimate justifications and the potential impact on workers’ NLRB rights when assessing a facially neutral policy, rule, or handbook provision. This standard clearly and appropriately balanced the analysis and ensured employers can provide safe workplaces for all.

“The Board’s Stericycle decision will only create confusion for the regulated community, and CDW will pursue avenues to reverse this dangerous precedent.”

CDW’s amicus brief in the case is available here.

CDW Files Amicus Brief with Supreme Court to Urge Reconsideration of Chevron Deference

Washington, DC – On July 24, the Coalition for a Democratic Workplace filed an amicus brief with the Supreme Court in Loper Bright, a case considering the limits of Chevron deference. Our brief urges the Court to consider the impact Chevron deference has had on the predictability and workability of labor law for regulated parties.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The National Labor Relations Board’s record of flip-flopping on its policy interpretations with each change in administration has left employers unclear about their obligations under the law and employees unsure of their rights. Courts have often tolerated this vacillation in the name of Chevron deference. For this reason, we urge the Supreme Court to consider the Board’s reckless behavior as it decides on appropriate court deference to agencies.”

CDW Blasts HELP Committee for Confirming Wilcox without Hearing, Urges Senate to Reject Nomination

Washington, DC – On July 12, the Senate Health, Education, Labor, and Pensions Committee passed Gwynne Wilcox’s nomination out of committee without a hearing, ensuring Senators never had an opportunity to question Wilcox about her troubling tenure on the Board, including overturning long-standing precedent and ignoring the stakeholder community.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Senate HELP Committee has chosen to approve Gwynne Wilcox’s nomination without asking her a single question about the radical policies this Board has pursued over the last two years. Wilcox and the Board are not being held accountable for their pursuit of their own ideological goals at the expense of the Board’s intended mission of remaining a neutral arbiter of federal labor law.

“The Board during Wilcox’s tenure has blatantly ignored multiple federal court decisions as well as concerns from other agencies. They have even abandoned their own long-standing precedent of requesting public input before issuing decisions or rulemakings that make significant policy changes.

“Considering this record, at the very least the Committee should have required Wilcox to come before them and be questioned about the Board’s direction. The Committee should also have required the Biden administration to pair her nomination with a Republican candidate in order to force the Board to abandon its partisan mission and return to common sense policymaking.

“CDW now urges the full Senate to reject Wilcox’s nomination.”

On July 11, CDW sent a letter to the Committee urging them to delay their vote on Wilcox’s nomination, so they can hold a hearing to question her on the actions the Board has taken while she has served and they can force the Biden administration to pair her nomination with a Republican candidate to fill the vacancy left by Republican Board member John Ring in December 2022. Our statement on the letter can be found here.

CDW Urges HELP Committee to Hold Hearing on Wilcox Nomination

Washington, DC – On July 11, the Coalition for a Democratic Workplace sent a letter to Chairman of the Senate Health, Education, Labor, and Pensions Committee Bernie Sanders to urge him to delay the committee’s vote on the nomination of Gwynne Wilcox to serve another terms on the NLRB in order to review her record, which includes ignoring decisions by the DC Circuit and hyper-partisan policy changes, violating NLRB norms. The committee should also delay their vote until President Biden names a Republican nominee to fill the seat vacated by Republican John Ring in December 2022.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The Senate HELP Committee should immediately delay the vote on Ms. Wilcox’s nomination in order to question her about the Board’s radical swing under the Biden administration. Her record involves blatantly ignoring D.C. Circuit decisions on both independent contractor status as well as the inappropriateness of abusive, racially and sexually charged language in the workplace.

“Wilcox is also working to expand joint employer liability to nearly every contractual relationship across the economy and eliminate secret ballots in union representation elections. Her policies will devastate the economy, especially small businesses, and needlessly expose workers to intimidation, harassment, and coercion while trying to make an informed decision about whether or not union representation in the workplace is right for them.

“During Wilcox’s tenure, the Board has also abandoned long-standing precedent of obtaining public input before making significant policy changes. That is a crucial part of the process that ensures all relevant stakeholders can express their concerns with new interpretations of the NLRA, but Wilcox has guaranteed the public has no means of weighing in with the Board.

“The Committee should not reward her with another term, but require her to answer for these radical actions.”

Board Defies Federal Appeals Court in Decision that Threatens Freelancers, Independent Contractors across Nation

Washington, DC – On June 13, the NLRB issued its decision in The Atlanta Opera, which defies the explicit directions of the US Court of Appeals for the D.C. Circuit and narrows opportunities for independent contractors and self-employed individuals.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“In today’s decision, the Board reinstates a test for determining employment status that was explicitly rejected by the US Court of Appeals for the DC Circuit. The Board’s decision will force workers into work arrangements they do not want – all for the sake of giving unions new potential members. With this decision, the Board has chosen to ignore the concerns raised by the employer and freelance communities, and its actions threaten to destabilize a number of industries and deprive many independent contractors of the flexible work methods and entrepreneurial opportunities they value.

“The Board’s actions are all part of the Biden administration’s war against small businesses and entrepreneurs and will invite confusion and litigation. As we explained in our amicus brief, the NLRB should continue to follow the standard set in SuperShuttle DFW and emphasize the significance of entrepreneurial opportunity when considering a worker’s proper classification.”

Supreme Court Protects against Intentional Destruction of Employer Property

Washington, DC – On June 1, the Supreme Court issued its decision in Glacier Northwest, in which the Court firmly held that unions cannot intentionally destroy employer property without consequences.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“Unions cannot and should not have a free pass for intentionally destroying someone else’s property. No federal law protects such behavior, including the NLRA, and the Supreme Court has just affirmed that common sense principle. Unions must be required to settle disputes within the confines of the law.

“Property protections are critical. Without strong property protections in place, unlawful behavior would be encouraged, leaving businesses exposed to intentional harm and vandalism. The balance of power between unions and employers would be upended without these guardrails.

“The Supreme Court’s decision protects our communities from such instability and ensures unions will answer for the intentional destruction of an employer’s property.”

CDW’s amicus brief before the Supreme Court can be found here.

CDW Releases White Paper Showing Dangers of Employers Agreeing to Neutrality and Card Check Agreements

Washington, DC – On May 22, the Coalition for a Democratic Workplace published a white paper, How Neutrality and Card Check Agreements Harm the American Worker, proving that when employers enter into neutrality and card check agreements with unions attempting to organize their workplaces, employees are denied access to critical information they need to make a fully informed decision about unionization as well as their right to a secret ballot election free of coercion and intimidation.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“Neutrality and card check agreements are designed to prevent employees from exercising their right to make a meaningful choice about representation.

“Neutrality agreements silence employers and allow unions to misrepresent the facts and even suppress vital information. This leaves workers without a true understanding of who the union is, how their life will be impacted by unionization, and the actual changes unions can achieve. Employers play a critical role in filling this information gap, but neutrality agreements ensure workers will be left without the full picture before voting on union representation.

“Card check agreements expose workers to coercion, intimidation, and deception. They prevent workers from voting for union representation through an NLRB-supervised, secret ballot election, forcing workers to make their decision in front of union organizers and colleagues. Union intimidation of employees to sign cards is well-documented, and that history should not and cannot be ignored.

“These agreements decimate workers’ rights and should not be applauded or encouraged. Employers who care about their employees’ best interests shouldn’t agree to neutrality or card check agreements but instead should insist on protecting workers’ rights to a full and open debate and secret ballot elections.”

CDW Letter: PRO Act Will Devastate Economy, Hurt Workers

Washington, D.C. – On March 24, CDW sent a letter to members of Congress calling for the rejection of the Protecting the Right to Organize (“PRO”) Act (H.R. 20, S. 567). The bill would “limit workers’ right to secret ballot elections, trample free speech and debate, jeopardize industrial stability, threaten vital supply chains, limit opportunities for small businesses and entrepreneurs, cost millions of American jobs, and greatly hinder the economy,” among other things.

The following statement can be attributed to CDW Chair Kristen Swearingen:

“The PRO Act is a radical bill that will have devastating consequences for the economy and infringe on the rights of workers and employers alike. It attempts to eliminate independent work arrangements that workers love, threatens the franchise business model that has made millions of people small business owners, and allows unions to strike against neutral businesses to cause a maximum amount of economic damage.

“Meanwhile, the bill limits the right of workers to keep their votes on unionization secret, violates workers’ privacy by giving away their personal information without their consent, disenfranchises workers from voting on union representation, forces workers to hand over their pay checks to unions they may not agree with, and violates employers’ free speech rights.

“Voters have clearly shown that they do not support the provisions on this bill. They see the PRO Act for what it is – a wishlist of radical policies designed to tip the scales in favor of unions at the expense of workers, employers, and the economy. Congress should reject this radical legislation and protect the rights of America’s workers, small businesses, and consumers.”