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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 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.”

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 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.”

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.”

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.”

CDW Calls Out Hypocrisy of Senator Sanders and His Attacks on Businesses

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.”

Congress Must Reject Radical, Economically Destructive PRO Act

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.”

 

CDW Files Brief Condemning NLRB General Counsel’s Efforts to Eliminate Secret Ballot Elections, Employer Speech Rights

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.