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NLRB’s Radical Joint Employer Rule Will Destroy Economic Prosperity and Limit Entrepreneurial Opportunity

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.”

 

CDW Calls on Supreme Court to Protect Communities from Union Destruction of Property

Washington, DC – On November 8, 2022, the Coalition for a Democratic Workplace filed an amicus brief before the Supreme Court in Glacier Northwest, calling on the Court to affirm its own precedent that “unions are not immune from state tort suits when they intentionally destroy an employer’s property.” Without such a ruling, employers will be left without a remedy for the intentional destruction of their property, harming businesses, workers, communities, and the economy.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“There is no federal law that gives unions or their members a free pass for intentionally destroying someone else’s property. Unions, like everyone else, need to settle disputes within the confines of the law. Without property protections, local communities, workers, and businesses will suffer the collateral damage that will inevitably arise as businesses are harmed and potentially crushed by vandalism.”

Business Group Challenges Connecticut Gag Rule in Court

On November 1, the Coalition for a Democratic Workplace (CDW), along with the US Chamber of Commerce, Associated Builders and Contractors, Associated Builders and Contractors of CT, CT Business & Industry Association, CT Retail Merchants Association, National Association of Home Builders, National Federation of Independent Business, and National Retail Federation, filed a lawsuit challenging Connecticut’s recently enacted law that bans employers from discussing workplace issues, including union representation and pending legislation or regulations, with their employees.

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

“Connecticut’s law unquestionably violates the First Amendment as well as the National Labor Relations Act and is simply bad policy that hurts employers and employees alike. The law infringes on employers’ right to discuss with employees critical issues that undeniably impact the workforce and the business. At the same time, the law limits employees’ access to vital information they need to make an informed decision on whether or not to vote for union representation, including their employer’s response to any potentially misleading union allegations or promises.

“The state of Connecticut cannot be allowed to pick and choose which of its citizens have free speech rights. CDW will continue to fight back against these unlawful attacks on employers.”

 

CDW Condemns NLRB’s Continued Attacks on First Amendment

Washington, DC – On October 27, the National Labor Relations Board’s (NLRB) General Counsel, Jennifer Abruzzo, continued her assault on free speech rights with her complaint against Amazon CEO Andy Jassy. Abruzzo alleges Jassy violated the National Labor Relations Act (NLRA) by discussing in media interviews his opinion of the ongoing union effort to organize Amazon facilities. Jassy’s comments clearly fall within the NLRA protected employer speech provisions in Section 8 (c), which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

The NLRA speech rights are an extension of the rights guaranteed by the First Amendment.

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

“The NLRB general counsel Abruzzo is on a crusade to cancel any debate on the pros and cons of unionization and is willing to trample the First Amendment in the process.  Workers have a right to hear from both sides – the union and the employer – on what unionization could mean for them and their work lives, including about the possible disadvantages of a specific union attempting to organizing their workplace or union representation generally. The government should ensure workers are fully informed of their options when deciding the critical question of whether or not they want union representation in the workplace, not try to keep workers in the dark through an unconstitutional attempt to muzzle employers.

“Abruzzo’s attempts to silence CEOs and companies benefits no one but unions hoping to collect more dues.”

CDW Slams Renewed Efforts to Force through Dangerous PRO Act

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:

  • 70% of voters are concerned about the PRO Act abolishing state right-to-work protections;
  • 75% are concerned about the bill’s efforts to require employers to turn over employee personal information to union organizers without the consent of the employee;
  • 67% are concerned about eliminating secret ballot elections in favor of a system where votes are revealed to everyone;
  • 70% are concerned that the PRO Act limits workers’ ability to work as independent contractors; and
  • 65% are concerned the bill would upend the franchise business model, turning existing owners of franchises into employees of the brand and reducing new franchise ownership opportunities.

“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.”

CDW Sends Letter to House Committee Cautioning against PRO Act, NLRB Overreach

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.”

NLRB Releases Radical Proposal to Dramatically Expand Joint Employer Liability

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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CDW Files Amicus Brief Request with NLRB on Remedies Case

On August 26, CDW, along with several other employer organizations, filed a motion with the NLRB requesting the agency accept our amicus brief in Armaz Products, a case in which NLRB General Counsel Jennifer Abruzzo is once again pursuing radical changes to established laws and practices by calling on the Board to penalize employers for utilizing their NLRA-guaranteed right to challenge union election results. Abruzzo’s changes would have a chilling effect on employers, leaving them afraid to exercise their rights under the Act.

CDW’s amicus brief opposes the General Counsel’s motion for summary judgement in the case as well as Abruzzo’s proposed remedy and the concerning precedent it would set. As we explain in our brief, “[Abruzzo’s] radical proposal would require the Board to overturn one of its most longstanding and established precedents, Ex-Cell-O Corp.,” “chill the rights of every employer seeking to petition the courts to review the Board’s certification of a union as the exclusive representative of the employer’s employees,” “violate the Act, the Constitution, and numerous Supreme Court holdings,” and “severely undermine the integrity of the Board on which the regulated community relies to preserve labor relations stability.”

CDW calls on the Board to reject the General Counsel’s proposed new remedy in this case as well as in any other case where she has filed the same or a similar motion.

CDW Calls for Investigation into Potential NLRB Misconduct, Possible Collusion between NLRB and Labor Unions

On August 16, the Coalition for a Democratic Workplace issued the following statement in response to concerning reports from Starbucks Corporation that the NLRB may be interfering in ongoing union representation elections at various Starbucks stores and collaborating with union organizers, jeopardizing the agency’s role as a neutral arbiter of federal labor law.

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

“Reports that NLRB personnel are interfering with union representation elections and even colluding with union organizers in those elections are deeply concerning and warrant an immediate investigation. The NLRB is supposed to be a neutral arbiter of federal labor law, but the Board will lose all credibility if agency personnel are taking sides and working to tip the scales in favor of their preferred side.

“Starbucks Corporation has made serious allegations against the NLRB, and these reports must be fully investigated to ensure such an egregious dereliction of duty is not occurring.

“Starbucks has called on the agency and its Inspector General to investigate these allegations, and Representative Virginia Foxx, Ranking Member of the House Education and Labor Committee, has called for a Congressional hearing into these troubling reports. CDW agrees that the Board, its Inspector General, and Congress must get to the bottom of these disturbing allegations. The public has a right to know if Board agents are interfering with union representation elections and workers’ right to choose whether or not they want to join a union.

“CDW urges the Board, the Inspector General, and Congress to get to the bottom of these disturbing claims.”

CDW Sends Letter to House Opposing Radical Labor Provisions in NDAA

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.