Today, President Biden announced a new executive order that result in many workers losing their right to a secret ballot in union representation elections and to be fully informed before deciding if union representation is right for them.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“With his so-called ‘Good Jobs’ Executive Order, President Biden is forcing employers to agree to ‘voluntary union recognition’ (or card check) and neutrality in organizing campaigns. Not only does this violate employers’ rights under the First Amendment and the National Labor Relations Act, but it will also deprive workers of their rights to be fully informed before voting on union representation and to vote for or against union representation via secret ballot. Without secret ballots, workers vote by signing or refusing to sign cards in front of union organizers and coworkers – a process that invites intimidation and coercion and violates workers’ right to privacy.
“This Executive Order follows a pattern with this administration. They continue to increase the power of unions without demanding any accountability from union heads in DC, turning a blind eye to historic and ongoing union corruption, such as what has and is occurring at the UAW.”
Littler’s Workplace Policy Institute files brief for the Coalition for a Democratic Workplace urging court to grant review of Goldstein v. Professional Staff Congress and reaffirm Constitutional protections against compulsory union representation
WASHINGTON (August 22, 2024) – Littler’s Workplace Policy Institute® (WPI®), the government relations and public policy arm of Littler, the world’s largest employment and labor law practice representing management, has filed an amicus curiae brief on behalf of the Coalition for a Democratic Workplace (CDW), which represents millions of businesses collectively employing tens of millions of workers across the country in nearly every industry. The brief urges the United States Supreme Court to accept the petition and clarify the true – and limited – scope of its 1984 ruling in Minnesota State Board for Community Colleges v. Knight and, in doing so, make clear that new union-backed regulatory schemes that create a form of compulsory union representation in the private sector are unlawful.
In Knight, the Court approved a state law establishing a nonbinding consultation process between unions and public employers, determining that governments can choose whom to listen to. That simple holding has been distorted over time by the lower courts and has allowed essentially any form of government-imposed exclusive representation. This includes state and local governments adopting novel coregulation schemes, including “labor standards boards” and “sectoral bargaining,” which allow a government to impose representation on workers – even those who would prefer no bargaining representative at all.
“Unions and their allies in state and local governments are pushing new laws and regulations that force workers into union representation schemes,” said Kristen Swearingen, chair of CDW. “These programs are a thinly veiled attempt to direct taxpayer funds to labor organizations that support these politicians, while simultaneously funneling workers into new state-backed models of forced union representation. We urge the Court to take this case to clarify unions and state and local politicians cannot collude to force private sector workers into union representation in violation of their Constitutional rights. We are pleased to be working with Littler on addressing this significant threat to workplace democracy.”
“The law simply does not allow local and state legislators to force workers and workplaces into a union agreement without a single vote being cast in favor of the union, and the Court needs to clarify that any lower court decisions suggesting otherwise are invalid misinterpretations of Knight,” said Alexander T. MacDonald, Littler shareholder and core member of WPI. “In effect, under the programs created by state and union collusion, neither workers nor businesses have any say in this process and appointed representatives owe no duty to the people they represent. The Court needs to clarify these programs don’t pass Constitutional muster.”
“Knight stood for the straightforward principle that people could not force the government to listen to their views, but has morphed into individuals being forced by the government to accept a representative,” said Michael Lotito, Littler shareholder and co-chair of WPI. “The result has been massive, continuing government overreach, while effectively cutting workers out of the process and viewing collective bargaining as arrangement between the government and its chosen representatives.”
The brief outlines the original decision in Knight, the ways in which lower courts have misinterpreted the ruling, how that has given way to new forms of compulsory union representation, and the impact this has had on workers and businesses alike.
###
About Littler
With more than 1,800 labor and employment attorneys in offices around the world, Littler provides workplace solutions that are local, everywhere. Our diverse global team and proprietary technology foster a culture that celebrates original thinking, delivering groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow.
About Littler WPI
WPI advocates for employers on a global scale. Working closely with businesses and trade associations, WPI serves as a strong voice for employers and their workplaces to navigate real-time changes in employment and labor law, while influencing the legislation of tomorrow. By harnessing Littler’s global depth of knowledge and expansive resources for tracking emerging issues that affect the workplace, WPI brings employers’ interests to the forefront of today’s rapidly evolving regulatory landscape.
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.
###
On August 2, Representative Tim Walberg introduced the Worker Enfranchisement Act, which would require a two-thirds participation rate in union representation elections.
The following can be attributed to CDW Chair Kristen Swearingen:
“The Worker Enfranchisement Act would ensure that workers actually support a union before thrusting union representation on a workforce. Requiring high participation rates in representation elections guarantees that the wishes of the workers are actually heard and enacted. CDW thanks Representative Walberg for leading on this issue and urges Congress to pass this much-needed legislation.”
On August 1, the Senate Health, Education, Labor, and Pensions Committee voted to advance Lauren McFerran’s nomination to serve another term on the National Labor Relations Board. CDW sent a letter to the Committee earlier this month urging the Committee to reject her nomination.
The following can be attributed to CDW Chair Kristen Swearingen:
“Chair Sanders chose to hold this vote without providing his colleagues any opportunity to publicly question Lauren McFerran about her troubling record. Her tenure on the Board has included condemnations from federal courts, OIG reports criticizing the NLRB for ‘gross mismanagement’ under her watch, and bipartisan rejection of her policies by Congress. Moreover, this nomination is an attempt by the Biden administration to control the Board’s agenda for years into the next administration, regardless of who wins the election.
“The Board’s mismanagement and malfeasance under McFerran’s leadership should disqualify her from confirmation. CDW strongly urges the full Senate to reject her nomination.”
On July 26, the NLRB issued its misnamed “Fair Choice – Employee Voice” final rule eliminating worker protections in union representation elections.
The following can be attributed to CDW Chair Kristen Swearingen:
“The Board’s final rule eliminates common sense measures that protect workers’ right to decide for themselves if they want union representation in the workplace. The rule forces employees into unions they may not want and makes it more difficult for employees to decertify unions that no longer have support from the workforce. These policies undermine employee free choice, and Congress and/or the courts should move to nullify them.”
On July 25, the Coalition for a Democratic Workplace and 40 employer organizations sent a letter to the Senate HELP Committee urging they reject Lauren McFerran’s nomination to serve another term as Chair of the National Labor Relations Board due to the Board’s mismanagement and malfeasance under her leadership, her extreme policy agenda, and Senator Sanders’ decision to break with long-standing precedent and not hold a confirmation hearing on her nomination.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Under Lauren McFerran’s leadership, the NLRB has been the subject of an Office of the Inspector General report finding ‘gross mismanagement’ and a ‘lack of candor,’ condemnation from federal courts, bipartisan and bicameral rejection of Board rules, and numerous press reports and editorials highlighting the agency’s failures. This is not a typical nominee, and she should not sail through the confirmation process without answering a single question about her abilities to lead this highly impactful agency.
“The Biden administration is attempting to hijack the NLRB for years into the next administration, and Senator Sanders is rushing through the nomination to aid in that effort. The Senate has held confirmation hearings on every nominee to Chair the NLRB since 2012, but Sanders is intentionally blocking Senators from having an opportunity to question McFerran on her troubling tenure. The Senate should reject Lauren McFerran.”
On July 22, CDW filed an amicus brief with several other employer organizations in Alphabet Workers Union v NLRB, a case before the US Court of Appeals for the DC Circuit in which the NLRB is attempting to expand the joint employer standard beyond its statutory authority.
The following can be attributed to CDW Chair Kristen Swearingen:
“The NLRB is once again attempting to expand the joint employer standard beyond what is tolerated by the law. The agency is trying to blur the lines between routine contracting relationships and employment relationships in an attempt to give unions access to new members, despite the fact that this interpretation violates the National Labor Relations Act. CDW hopes the DC Circuit recognizes that the Board’s decision in this case was contrary to the law and cannot be allowed to stand.”
On July 22, the Coalition for a Democratic Workplace filed an amicus brief in support of SpaceX’s lawsuit challenging the Constitutionality of the structure of the National Labor Relations Board.
The following can be attributed to CDW Chair Kristen Swearingen:
“The NLRB, as it currently operates, denies parties access to a jury trial. This is an unconstitutional violation of workers, employers, and unions’ Seventh Amendment rights. CDW urges the 5th Circuit to right this wrong and ensure that no one is denied their due process rights.”
On July 19, the NLRB withdrew its appeal of the U.S. District Court of the Eastern District of Texas’s decision nullifying the Board’s joint employer final rule.
The following can be attributed to CDW spokesperson Ed Egee:
“CDW applauds the decision by the NLRB to withdraw its defense of this unlawful rule. They saw the writing on the wall. The rule could not withstand legal scrutiny.
“If the rule had gone into effect, it would have had devastating consequences for our economy and decimated business models that have fueled the American dream. Congress and the courts already recognized the rule’s inherent flaws, and CDW is glad the Board has finally acknowledged them as well.”
On July 15, the International Brotherhood of Teamsters President Sean O’Brien made a speech at the Republican National Convention.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Sean O’Brien chose to use his opportunity to speak at the Republican National Convention to give a partisan and divisive speech that targeted specific companies and denigrated workers who do not wish to associate with a union. Despite his smoke and mirrors, Teamsters members, who now are equally as likely to identify as Republican as they are Democratic, may want to look into how much of their dues are spent on left-leaning causes, politicians, and entities.
“O’Brien’s partisan speech included a remarkable comparison. He criticized business coalitions, in which employers work together on various initiatives. Only moments later, he applauded efforts to eliminate Right to Work laws, which ensure workers who do not wish to be union members are not required to join and financially support a union in their workplace.
“What these arguments have in common is their disdain for freedom of association. In O’Brien’s ideal world, all workers would be forced into unions, whether they want to be represented or not, while businesses would be prohibited from joining together to limit the reach of their voice. The hypocrisy is remarkable.
“Unfortunately for O’Brien, and fortunately for the American people, freedom of association is a bedrock of this nation. It is a critical element of our democracy, and it will be defended.”