Washington, DC – On March 21, Congressional appropriators released the minibus for FY25 that includes funding for the National Labor Relations Board. The minibus provides the NLRB with the same funding levels as it received in FY24 and includes the long-standing policy rider that prohibits the Board from implementing electronic voting in union representation elections. CDW applauds appropriators for these decisions.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“CDW appreciates Congress keeping NLRB funding flat in FY25 and maintaining the policy rider on electronic voting. As we explained in our recent letter, electronic voting would break with NLRB precedent, increase the risk of coercion and fraud in representation elections, and waste the NLRB’s resources. Secret ballot elections are the gold standard and should be guaranteed to workers in order to ensure they can voice their opinion on representation without the threat of harassment or intimidation.
“The NLRB over the last few years has pursued damaging policies that risk significant negative repercussions for the economy, workers, and employers. Congress is right to maintain the agency’s funding to help limit the Board’s harmful policies, but frankly that may not be enough. Future policy riders may be necessary to further rein in the Board if they continue to move forward with their biased and unreasonable policies. Congress should considered using the appropriations process to ensure the Board cannot exceed its authority.”
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.”
Washington, DC – On December 8, 2023, the Coalition for a Democratic Workplace, in conjunction with the U.S. Chamber of Commerce, National Federation of Independent Business Small Business Legal Center, Inc., and National Retail Federation filed an amicus brief urging the 3rd Circuit to hold that the National Labor Relations Act precludes the award of monetary damages beyond backpay.
When employees are discharged or suspended, the remedies available are reinstatement “with or without back pay.” The National Labor Relations Board does not have the authority to create additional monetary relief. Despite their lack of authority, the Board determined in Thryv that it may mandate a range of damages whenever an employee is unlawfully dismissed. CDW filed an amicus brief in Thryv in January 2022. The Board has now applied that faulty decision in NLRB v. Starbucks Corporation. CDW’s brief urges the Court to set aside the Board’s award of monetary relief.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“This is another example of the National Labor Relations Board shirking precedent and attempting to exceed their statutory authority. Setting this standard would open the door to future awards of speculative damages that go beyond the NLRB’s authority. It would also invite prolonged litigation over labor standard compliance, including intrusive inquiries into personal employee finances. The NLRB needs to be held responsible for the repercussions of their overreach.”
The Coalition for a Democratic Workplace (CDW) released the following statement in response to the US Court of Appeals 5th Circuit’s decision to grant Tesla’s petition for review and deny the National Labor Relations Board’s (NLRB) application for enforcement in Tesla v NLRB. CDW filed an amicus brief in the case.
Tesla requires its employees to wear uniforms throughout the production process and threatened to send home employees who violated the policy by wearing t-shirts. In response, the NLRB ruled that any employer interference with an employees’ right to display a union insignia is infringement under the National Labor Relations Act (NLRA). The 5th Circuit, on November 14, sided with Tesla and decided that the NLRA does not give the NLRB the authority to make all company uniforms preemptively unlawful. The court said “the Board must show that the policy “truly diminished the ability of the labor organizations involved to carry their message to the employees,” and it had failed to do so. The court also found that “[I]t is only when the interference with [Section] 7 rights outweighs the business justification for the employer’s action that [Section] 8(a)(1) is violated.”
The following statement can be attributed to CDW Chair Kristen Swearingen:
“Workplaces throughout the economy use uniform policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments. The court rightly chastises the Board for failing to consider these legitimate business interests. The Board’s decision is yet another deviation from precedent and had no reasonable basis in law. CDW applauds the 5th Circuit for reigning in a rogue NLRB and prioritizing workplace safety and enforcing common sense employee dress code policies.”
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.”
Washington, DC – On November 7, 2023, the Coalition for a Democratic Workplace filed an amicus brief urging the U.S. Supreme Court to review an appellate court decision in Starbucks Corporation v. NLRB. Courts normally require parties seeking preliminary injunctive relief to demonstrate they are likely to succeed on the merits in the case. In the Starbucks decision, however, U.S. Court of Appeals for the Sixth Circuit ruled that National Labor Relations Board (NLRB) did not need to do so when it sought initial injunctive relief under Section 10(j) of the National Labor Relations Act. The Sixth Circuit’s decision aligns with that of the Second, Third, Fifth,, Tenth, and Eleventh Circuits but conflicts with the Fourth, Seventh, Eighth, and Ninth Circuits. CDW’s brief urges the Court to accept certiorari and reverse the Sixth Circuit ruling.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The National Labor Relations Board should be held to the same standards as other litigants seeking injunctions–particularly given the current Board’s disregard for precedent. Allowing the Board and its general counsel to push through injunctions with little judicial oversight will have substantial consequences as businesses are forced abide by temporary orders based on flawed legal theories or unsubstantiated allegations. As our brief outlines, NLRB injunctions have required businesses to hold financially draining assets, remain in outdated or unprofitable facilities or reinstate employees that may have harassed coworkers.”
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.”
Washington, DC – On July 12, the Senate Health, Education, Labor, and Pensions Committee passed Gwynne Wilcox’s nomination out of committee without a hearing, ensuring Senators never had an opportunity to question Wilcox about her troubling tenure on the Board, including overturning long-standing precedent and ignoring the stakeholder community.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The Senate HELP Committee has chosen to approve Gwynne Wilcox’s nomination without asking her a single question about the radical policies this Board has pursued over the last two years. Wilcox and the Board are not being held accountable for their pursuit of their own ideological goals at the expense of the Board’s intended mission of remaining a neutral arbiter of federal labor law.
“The Board during Wilcox’s tenure has blatantly ignored multiple federal court decisions as well as concerns from other agencies. They have even abandoned their own long-standing precedent of requesting public input before issuing decisions or rulemakings that make significant policy changes.
“Considering this record, at the very least the Committee should have required Wilcox to come before them and be questioned about the Board’s direction. The Committee should also have required the Biden administration to pair her nomination with a Republican candidate in order to force the Board to abandon its partisan mission and return to common sense policymaking.
“CDW now urges the full Senate to reject Wilcox’s nomination.”
On July 11, CDW sent a letter to the Committee urging them to delay their vote on Wilcox’s nomination, so they can hold a hearing to question her on the actions the Board has taken while she has served and they can force the Biden administration to pair her nomination with a Republican candidate to fill the vacancy left by Republican Board member John Ring in December 2022. Our statement on the letter can be found here.
Washington, DC – On July 11, the Coalition for a Democratic Workplace sent a letter to Chairman of the Senate Health, Education, Labor, and Pensions Committee Bernie Sanders to urge him to delay the committee’s vote on the nomination of Gwynne Wilcox to serve another terms on the NLRB in order to review her record, which includes ignoring decisions by the DC Circuit and hyper-partisan policy changes, violating NLRB norms. The committee should also delay their vote until President Biden names a Republican nominee to fill the seat vacated by Republican John Ring in December 2022.
The following statement can be attributed to CDW Chair Kristen Swearingen:
“The Senate HELP Committee should immediately delay the vote on Ms. Wilcox’s nomination in order to question her about the Board’s radical swing under the Biden administration. Her record involves blatantly ignoring D.C. Circuit decisions on both independent contractor status as well as the inappropriateness of abusive, racially and sexually charged language in the workplace.
“Wilcox is also working to expand joint employer liability to nearly every contractual relationship across the economy and eliminate secret ballots in union representation elections. Her policies will devastate the economy, especially small businesses, and needlessly expose workers to intimidation, harassment, and coercion while trying to make an informed decision about whether or not union representation in the workplace is right for them.
“During Wilcox’s tenure, the Board has also abandoned long-standing precedent of obtaining public input before making significant policy changes. That is a crucial part of the process that ensures all relevant stakeholders can express their concerns with new interpretations of the NLRA, but Wilcox has guaranteed the public has no means of weighing in with the Board.
“The Committee should not reward her with another term, but require her to answer for these radical actions.”
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.”