On March 8, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on workers’ right to unionize and employers’ “illegal corporate union busting.”
The following statement can be attributed to CDW Chair Kristen Swearingen:
“This hearing was a clear display of how Senator Sanders views the world. Employers are evil, and unions are the world’s saviors. What Sanders does not mention is that unions are promoting legislation that would infringe on workers’ rights to refrain from joining unions, eliminate secret ballot elections, and allow unions to harass and intimidate workers who do not support unionization.
“Sanders used the hearing to lambast employers for having unfair labor practice charges filed against them but forgets to mention that these are only allegations that have not been fully adjudicated. He forgets to mention that unions use ULP charges to force employers to cave to their demands. He forgets to condemn the unions that commit ULPs as well, including the Teamsters, and he forgets to mention that he himself faced seven ULP charges during his 2020 Presidential Election campaign, including for retaliating against and interrogating workers who wanted to unionize. Those charges were only dismissed by the NLRB General Counsel because they raised ‘serious First Amendment considerations.’
“The First Amendment is vital in this debate, but it’s another element Senator Sanders fails to acknowledge. Employers have free speech rights that are protected by the Constitution, National Labor Relations Act, and Supreme Court precedent. Simply disliking the fact that employers get an opportunity to discuss unionization with their workers does not make it illegal for employers to do so. Employers have the right to hold meetings with their workers and discuss how unionization will impact them and the business. This right is not up for debate, no matter how many times Senator Sanders and his union cronies question it.
“The PRO Act is radical legislation that does not protect workers. It merely tips the scales of federal labor law dramatically in the direction of unions – largely at the expense of workers, employers, and the economy. Congress should reject the PRO Act and the narrative Senator Sanders is promoting.”
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 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 – 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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On July 11, CDW sent a letter to all members of the House of Representatives urging them to oppose an amendment in the National Defense Authorization Act of 2022 that “would eliminate workers’ right to secret ballots in union representation elections, infringing on their right to privacy and their right to vote their conscience on whether or not they want to be represented by a union.”
As we explain in our letter, Amendment 237 would require employers who contract or subcontract with the Department of Defense to recognize a labor organization as the representative of their contracting workforce if the union presents signed authorization cards from a majority of the workers eligible to participate in the petitioned-for bargaining unit. Passing this amendment would replace secret ballot elections with card check, a fundamentally flawed system that needlessly exposes workers to coercion, harassment, and intimidation and has been criticized by the Supreme Court, federal courts of appeals, the NLRB, and even several unions.
The letter states, “Card check is an unreliable method for determining workers’ wishes on union representation, and it exposes them to potential coercion, intimidation, and harassment by individuals attempting to influence their vote. The secret ballot, NLRB-supervised election process provides necessary safeguards to protect workers and their right to freely vote their conscience.”
CDW urges the House to oppose this amendment as well as two other amendments that would implement labor restrictions and do not belong in this bill – Amendment 403 and 809.
Washington, DC – On July 12, the Coalition for a Democratic Workplace, composed of more than 400 major business and trade organizations, released a new report, Online Voting in Union Representation Elections: The Latest Attempt to Eliminate Workers’ Right to Secret Ballots, which highlights the dangers of implementing online voting in union representation elections and calls on Congress to reject a provision in the House appropriations bill for the Departments of Labor, Health and Human Services, Education, and Related Agencies for the fiscal year ending September 30, 2023, that requires that the NLRB to implement a system to conduct union representation elections electronically.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The provision included in the Labor HHS appropriations bill is the latest attempt in a two-decade-long effort by unions and their allies in government to eliminate secret ballots in union representation elections. Secret ballots are a fundamental right in any democracy and provide voters with the ability to vote their conscience without influence from others, but if unions get their way and this provision is passed into law, workers will be forced to vote for or against union representation with union organizers and coworkers standing over their shoulders, pressuring them to support the union. Eliminating secret ballots would be a gross violation of workers’ privacy.
“Electronic voting is a system ripe for coercion, intimidation, and harassment. It violates workers’ privacy and makes it impossible for the NLRB to safeguard the election. Moreover, as the report notes, the National Mediation Board, several states, and various foreign countries have all shelved online voting programs because of costs and cybersecurity concerns. For these reasons, the Supreme Court, other federal courts, and the NLRB itself have all recognized that secret ballots are the best method for determining the will of the workers.
“CDW’s new report highlights the dangers of implementing electronic voting and how unsuitable electronic voting would be for union representation elections. Our report proves secret ballot elections are the best method for protecting workers’ freedom to join or refrain from joining a union.”
Washington, DC – The Coalition for a Democratic Workplace (CDW), composed of more than 500 major business and trade organizations, released the following statement today in response to the NLRB’s Council of the General Counsel’s brief in Cemex Construction Materials Pacific LLC, in which the CGC calls on the Board to overturn five significant cases and standards in order to tip the scales in favor of unions. Most troubling of the changes proposed by the CGC is replacing secret ballots as the preferred method for determining whether employees want union representation with “authorization cards,” which are not private and are signed in front of coworkers and union organizers.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“General Counsel Abruzzo is pushing unionization at the expense of employees, who would be forced to cast “votes” in union representation elections by signing cards in front of union organizers rather than in an NLRB-supervised, secret ballot election. Card check is notoriously vulnerable to fraud and coercion by union organizers who try to force workers to sign the cards with threats and misleading statements about what the cards actually mean. Allowing this back door organizing will only disenfranchise workers of their right to vote on union representation and expose workers to intimidation and harassment.
“Abruzzo is advocating for changes that will ensure unions have a monopoly over the information provided to employees before deciding whether or not they want union representation. This is despite Supreme Court and NLRB precedent protecting free speech rights and the importance of debate. Her efforts should concern anyone interested in protecting privacy, free speech, and due process rights.
“The General Counsel and the NLRB are supposed to be neutral arbiters of the law, but Abruzzo again is demonstrating her complete inability to fulfill that responsibility. The Board should reject her blatantly partisan efforts to tip the scales in favor of unions.”