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.”
Washington, D.C. – The Coalition for a Democratic Workplace (CDW), composed of hundreds of organizations representing millions of businesses that employ tens of millions of workers nationwide in nearly every industry, released the following statement today in response to President Biden’s State of the Union address.
The following statement is attributable to CDW Chair Kristen Swearingen:
“The President’s continued push for Congress to pass the stalled, misguided and divisive Protecting the Right to Organize (PRO) Act undermines his calls for unity and threatens our economy. The so-called “PRO” Act would re-write our nation’s labor laws with the sole purpose of boosting the number of dues paying union members at the expense of workers’ rights, Main Street consumers, entrepreneurs, and small and local businesses. This legislation will also exacerbate the economic challenges our country faces with the supply chain crisis and inflation – problems that the ongoing impacts of the COVID-19 pandemic and the conflict in Ukraine will continue to complicate in the coming months.
“Now is the time for our government to pursue policies that promote economic stability in the face of these disruptions to the global economy and supply chain. It is not a time to impose radical changes that promise to upend our economy. We currently have a highly competitive job market where employers are offering good wages, signing bonuses, better benefits and more flexible schedules. Rather than dismantling the most pro-worker job market in decades, the government should focus on combatting inflation and alleviating the supply chain crisis, which threaten opportunities for all Americans.
“The push to pass the PRO Act will most certainly backfire on Democrats come November as American workers and their families have time and again rejected the repeated attempts to force them into unions and take away their rights and freedoms. The president should recognize this and redirect his efforts toward truly uniting and empowering Americans through policies that stabilize our economy and support a competitive job market,”
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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 February 10, 2022, CDW filed an amicus brief in the NLRB’s Atlanta Opera case, in which the Board is considering changing its standard to determine whether a worker is an employee or an independent contractor. Our brief is one of 39 briefs filed in the case, highlighting the importance of (and controversy surrounding) this issue.
In our brief, we highlighted the Board’s two failed attempts to rewrite the standard for determining independent contractor status under the National Labor Relations Act and criticize the Board for “proposing again to disregard judicial authority by reinstating the Board’s discredited FedEx standard, or some version of it.”
We call on the Board to keep in place its 2019 SuperShuttle independent contractor standard, which “correctly explained how the Board’s prior rulings in FedEx I and II ‘fundamentally shifted the independent contractor analysis, for implicit policy-based reasons, to one of economic realities…’, thereby violating the Act and multiple court rulings.” We caution the Board against overruling SuperShuttle, which we explain “would violate the Act and binding judicial precedent, inevitably subjecting the Board to overruling by the courts, and perhaps even judicial sanctions… destabilizing a number of industries represented by the amici, and depriving many independent contractors of their preferred flexible work methods and entrepreneurial opportunities.”
Joining CDW on its brief were the American Association of Advertising Agencies, American Bakers Association, American Trucking Associations, Associated Builders and Contractors, HR Policy Association, Independent Bakers Association, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, and Nation Retail Federation.
Washington, D.C. – The Coalition for a Democratic Workplace (CDW), composed of nearly 500 major business organizations, released the following statement today in response to a last-minute amendment snuck into the House version of the America COMPETES Act. The amendment includes two labor provisions that threaten workers and businesses.
The first is a provision that would require employers receiving certain funds authorized by the bill to bargain with a union based on signed authorization cards. The process—known as “card check”—involves workers “voting” by signing or refusing to sign union authorization cards in front of union organizers and co-workers. This card check process would replace secret ballot elections overseen by the National Labor Relations Board. This change unnecessarily invites intimidation and fraud to employees’ decisions to join or refrain from joining a union.
The bill also includes a provision that requires employers receiving certain funds to agree to be bound by collective bargaining terms set by an arbitrator if the union and the employer cannot come to agreement on their own. Under the provision, arbitrators, who likely lack business experience, would determine what a business can or cannot afford.
The following statement is attributable to CDW Chair Kristen Swearingen:
“’Card check’ is anti-worker and anti-American. Congress has no legitimate justification for forcing workers to sign union authorization cards in the presence of their coworkers and union organizers, opening them up to harassment and intimidation from union organizers and eliminating the right to privacy normally provided by secret ballot elections.
“Having an arbitrator set terms of collective bargaining agreements between a union and private sector employer will lead to job loss, bankruptcy, and government bailouts. It also incentivizes unions to propose outrageous terms in hopes the arbitrator will have their back.
“The U.S. Senate should reject these radical anti-worker, privacy-evading and anti-business provisions to protect both workers and employers, especially small business owners, from harassment and intimidation from unions and their cohorts on the NLRB.”
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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 February 3, CDW sent a letter to the full House of Representatives calling on them to oppose the America COMPETES Act (H.R. 4521) “due to the last-minute addition of provisions within the Manager’s Amendment that strips employees of their right to a secret ballot in union representation elections and their right to vote on their collective bargaining agreement.”
The Manager’s Amendment included two provisions that infringe on the rights of workers in union organizing drives. One provision strips workers of their right to a secret ballot election in representation elections, needlessly exposing those workers to intimidation, coercion, and harassment. The other provision would force mandatory arbitration on the workforce, depriving workers of the opportunity to vote on their collective bargaining agreements. This is an invitation for bankruptcies, job loss, and government bailouts and could destabilize labor relations by encouraging parties to bargain in bad faith.
As our letter explains, “These provisions do not increase our competitiveness with China, as the America COMPETES Act is intended to do, but will instead undermine it. These provisions will destabilize our economy and disenfranchise workers of their right to vote their conscience.”
Washington, D.C. – The Coalition for a Democratic Workplace (CDW), composed of more than 400 major business and trade organizations, released the following statement today after submitting an amicus brief to the National Labor Relations Board (NLRB) in American Steel Construction, Inc. (Case 07–RC–269162). The group called on the NLRB to reaffirm the traditional standard used to determine the appropriateness of a petitioned-for bargaining unit in a union representation election. The traditional standard, applied in PCC Structurals (2017) and Boeing (2019), protects against disenfranchisement of workers’ right to vote on union representation in the workplace.
The following statement is attributable to CDW Chair Kristen Swearingen:
“The NLRB is considering whether or not to reinstate an Obama-era standard that allowed unions to create ‘micro-unions’ to effectively gerrymander representation elections in favor of unions.
“As clearly demonstrated in our amicus brief, the NLRB should reaffirm its standards for determining appropriate petitioned-for collective bargaining units as established in the NLRB cases of PCC Structurals and Boeing, which would prevent union organizers from disenfranchising workers who do not want union representation.
“Micro-unions would hurt job creation and economic growth. They greatly limit an employer’s ability to cross train employees and meet ever-changing customer and client demands via flexible staffing as employees would not be able perform work assigned to another unit. Employees in micro-unions also suffer from reduced job opportunities, such as workforce development, promotions and transfers.
“The NLRB should support the rights of all workers, not just pro-union ones, and maintain a level playing field in union elections by reaffirming the traditional standard for determining appropriate petitioned-for collective bargaining units instead of stacking the deck in favor of unions during union elections and limiting job creation and advancement.”
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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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Washington, D.C. – The Coalition for a Democratic Workplace (CDW), composed of hundreds of organizations representing millions of businesses that employ tens of millions of workers nationwide in nearly every industry, released the following statement today in response the National Labor Relations Board issuing a Decision and Direction of a Second Election and officially overturning the union election results at BHM1.
The following statement is attributable to CDW Chair Kristen Swearingen:
“It’s disappointing that the NLRB is continuing to side with Big Labor by setting aside the will of American workers. All workers during the election had months to listen to and weigh both sides and make a decision on their own of what was best for them and their families. Amazon even made it easier and more convenient to vote, but a massive disinformation campaign spread by unions about voting-by-mail, which the union requested, appears to have deceived members of the NLRB.
“Even though workers overwhelmingly rejected forming a union by a two-to-one margin, union bosses will get another chance to deceive, harass, pressure and intimidate workers in Birmingham to boost union ranks. These same union bosses are pushing the PRO Act, which would fundamentally change labor laws on a national scale and enable unions to fix elections to boost union membership at the expense of workers, small and local businesses, entrepreneurs and Main Street consumers.
“The decision to overturn the election is not surprising will be the first step towards taking away workers’ rights and choice.
“It appears the NLRB is already trying to enact the PRO Act by stacking the deck in favor of unions in what could become the norm as Big Labor attempts to organize workers across the country. With former union employees and pro-union advocates in charge of the NLRB, we can expect decisions like these to become commonplace if the PRO Act is passed into law. This decision should be a clear sign to American workers about what is at stake when their rights are stripped away and their democratic vote is tossed out.”
Click here for more information on the negative impacts of the PRO Act.
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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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