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 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 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.”
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.
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.”
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.”
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.”
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.”