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CDW Files Brief Calling Out NLRB for Trying to Eliminate Secret Ballot Union Representation Elections

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.

CDW Calls on Congress to Investigate NLRB’s Actions Forcing Employers to Violate Federal Antidiscrimination Law

Washington, DC – On February 6, 2024, CDW sent a letter to the Senate Health, Education, Labor and Pensions Committee and House Education and the Workforce Committee calling on them to use their oversight authority to question the National Labor Relations Board and the Board’s General Counsel about the current tension and inconsistencies their actions and interpretations have created between federal antidiscrimination laws and federal labor law.
The following statement can be attributed to CDW Chair, Kristen Swearingen:
“The NLRB and its General Counsel are putting employers into an impossible situation. Due to their efforts to protect union organizers and unionization campaigns at all costs, they’re demanding employers tolerate ‘profane, vulgar, racist, and otherwise insulting language’ in the workplace despite the clear conflict this would create with employers’ legal obligation to create a safe workplace for their workers.
“Employers must be able to act when discrimination or harassment occur in the workplace in order to protect their workers, but the Board and its General Counsel are recklessly ignoring that reality. Congress should demand answers from the Board and General Counsel on why they’re pursuing this illogical interpretation of the law and exposing employees to dangerous work environments.”

CDW Supports Bills to Protect Workers from a Rogue NLRB

Washington D.C. – On December 12, CDW sent a letter to the House Education and the Workforce Committee in support of the Employee Rights Act (ERA) (H.R. 2700), Modern Worker Empowerment Act (H.R. 5513), and Save Local Business Act (H.R. 2826). The bills would protect workers, entrepreneurs, and small businesses from the biases and misinformed actions of the National Labor Relations Board (NLRB or Board). 

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

“CDW thanks the Subcommittee on Health, Employment, Labor, and Pensions for holding a hearing to examine bills that prioritize workers’ freedom of choice at the same time as the NLRB threatens to strip it away. The Board’s approach is damaging to workers and small businesses and CDW urges the House of Representatives to pass these bills to reign in the NLRB.”

CDW Files Amicus Brief Urging 3rd Circuit to Hold that the NLRA Precludes Monetary Damages Beyond Backpay

Washington, DC – On December 8, 2023, the Coalition for a Democratic Workplace, in conjunction with the U.S. Chamber of Commerce, National Federation of Independent Business Small Business Legal Center, Inc., and National Retail Federation filed an amicus brief urging the 3rd Circuit to hold that the National Labor Relations Act precludes the award of monetary damages beyond backpay. 

When employees are discharged or suspended, the remedies available are reinstatement “with or without back pay.” The National Labor Relations Board does not have the authority to create additional monetary relief. Despite their lack of authority, the Board determined in Thryv that it may mandate a range of damages whenever an employee is unlawfully dismissed. CDW filed an amicus brief in Thryv in January 2022. The Board has now applied that faulty decision in NLRB v. Starbucks Corporation. CDW’s brief urges the Court to set aside the Board’s award of monetary relief. 

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

“This is another example of the National Labor Relations Board shirking precedent and attempting to exceed their statutory authority. Setting this standard would open the door to future awards of speculative damages that go beyond the NLRB’s authority. It would also invite prolonged litigation over labor standard compliance, including intrusive inquiries into personal employee finances. The NLRB needs to be held responsible for the repercussions of their overreach.”

CDW Applauds 5th Circuit’s Decision to Protect Common Sense Dress Code Policies

The Coalition for a Democratic Workplace (CDW) released the following statement in response to the US Court of Appeals 5th Circuit’s decision to grant Tesla’s petition for review and deny the National Labor Relations Board’s (NLRB) application for enforcement in Tesla v NLRB. CDW filed an amicus brief in the case.

Tesla requires its employees to wear uniforms throughout the production process and threatened to send home employees who violated the policy by wearing t-shirts. In response, the NLRB ruled that any employer interference with an employees’ right to display a union insignia is infringement under the National Labor Relations Act (NLRA). The 5th Circuit, on November 14, sided with Tesla and decided that the NLRA does not give the NLRB the authority to make all company uniforms preemptively unlawful. The court said “the Board must show that the policy “truly diminished the ability of the labor organizations involved to carry their message to the employees,” and it had failed to do so. The court also found that “[I]t is only when the interference with [Section] 7 rights outweighs the business justification for the employer’s action that [Section] 8(a)(1) is violated.”

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

Workplaces throughout the economy use uniform policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments. The court rightly chastises the Board for failing to consider these legitimate business interests.  The Board’s decision is yet another deviation from precedent and had no reasonable basis in law. CDW applauds the 5th Circuit for reigning in a rogue NLRB and prioritizing workplace safety and enforcing common sense employee dress code policies.”

BUSINESS GROUP CHALLENGES NLRB’S JOINT EMPLOYER RULE IN COURT

On November 9, the Coalition for a Democratic Workplace (CDW), along with the U.S. Chamber of Commerce, American Hotel and Lodging Association, Associated Builders and Contractors, Associated General Contractors of America, International Franchise Association, Longview Chamber of Commerce, National Retail Federation, National Association of Convenience Stores, Restaurant Law Center, Texas Association of Business, and Texas Restaurant Association, filed a lawsuit against NLRB in the U.S. District Court for the Eastern District of Texas over the final joint employer rule.

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

“The NLRB’s joint employer rule is an unlawful attempt to place unions in the middle of routine business to business, franchise and licensing agreements. The rule makes it far more complicated for larger companies to contract, franchise or license with small businesses. The Board’s rule will undermine entrepreneurial and economic opportunities that generate thousands of jobs.”

CDW Files Amicus Brief Urging Supreme Court to Set Standards for Labor Board Injunctions

Washington, DC – On November 7, 2023, the Coalition for a Democratic Workplace filed an amicus brief urging the U.S. Supreme Court to review an appellate court decision in Starbucks Corporation v. NLRB. Courts normally require parties seeking preliminary injunctive relief to demonstrate they are likely to succeed on the merits in the case. In the Starbucks decision, however, U.S. Court of Appeals for the Sixth Circuit ruled that National Labor Relations Board (NLRB) did not need to do so when it sought initial injunctive relief under Section 10(j) of the National Labor Relations Act. The Sixth Circuit’s decision aligns with that of the Second, Third, Fifth,, Tenth, and Eleventh Circuits but conflicts with the Fourth, Seventh, Eighth, and Ninth Circuits. CDW’s brief urges the Court to accept certiorari and reverse the Sixth Circuit ruling. 

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

“The National Labor Relations Board should be held to the same standards as other litigants seeking injunctions–particularly given the current Board’s disregard for precedent. Allowing the Board and its general counsel to push through injunctions with little judicial oversight will have substantial consequences as businesses are forced abide by temporary orders based on flawed legal theories or unsubstantiated allegations. As our brief outlines, NLRB injunctions have required businesses to hold financially draining assets, remain in outdated or unprofitable facilities or reinstate employees that may have harassed coworkers.” 

CDW Blasts NLRB for Issuing Final Joint Employer Rule that Will Create Massive Confusion and Threaten Workers’ Economic Opportunity

On October 26, the NLRB released its final rule on determining joint employer status under the NLRA, which would radically expand the joint employer standard under the NLRA. By explicitly stating that either possessing the authority to control one or more essential terms and conditions of employment (regardless of whether it is exercised) OR exercising the power to control indirectly one or more essential terms and conditions of employment (regardless of whether the power is exercised directly) is sufficient to establish an entity’s status as a joint employer, the final rule expands upon the damaging policy adopted in the Obama-era Browning-Ferris Industries (BFI) decision.

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

“Today, the NLRB finalized its latest policy designed to dramatically destabilize labor-management relations at the behest of labor unions and at the expense of workers, entrepreneurs, and businesses. The final joint employer rule represents a sweeping expansion to the standard used for determining when two or more employers are jointly responsible for a group of employees and flies in the face of federal law, congressional intent, and court precedent.

Today’s final rule effectively holds that either indirect or reserved control may stand alone as basis for finding a joint employer relationship, and that the mere existence of either is a definitive indicator – and not merely probative – of joint employer status, making the policy more drastic in scope than the damaging Obama era-standard adopted in BFI. In his dissent, Member Kaplan rightly states that the final rule “is potentially even more catastrophic to the statutory goal of facilitating effective collective bargaining, as well as more potentially harmful to our economy, than the Board’s previous standard in BFI.

The Board has adopted a policy that will create widespread confusion for business operations and threaten nearly every contractual relationship nationwide by disincentivizing larger companies from contracting, franchising, or licensing with small and local businesses. In doing so, the final rule undermines the millions of workers that rely on the entrepreneurial and economic opportunities generated through these business models.

Simply put, the Board must stop catering to the demands of organized labor and focus its efforts on supporting American workers, business owners, and economic growth by fulfilling the true intent of the NLRA.”

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.’”