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NLRB Continues to Stand By Flawed, Damaging Joint Employer Rule Despite Bipartisan Opposition in Congress and Court Nullification

On May 7, 2024, the NLRB appealed the decision by the US District Court for the Eastern District of Texas nullifying the Board’s joint employer final rule to the 5th Circuit.

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

“CDW is unsurprised but disappointed that the Board is not recognizing the writing on the wall. This rulemaking is unlawful, arbitrary, and capricious. It constituted a massive expansion of the joint employer standard that would violate the NLRA and the common law, and it would create immense confusion throughout the economy.

“That is why Congress on a bipartisan basis opposed the rule and sent a resolution to President Biden’s desk to invalidate the rule and prevent the Board from ever issuing a substantially similar rule in the future. That’s also why the District Court nullified the rule in March.

“The Board should stop trying to defend this unlawful rule.”

CDW Slams President Biden’s Veto of Bipartisan Resolution to Nullify Joint Employer Rule

On May 3, President Biden vetoed HJRes 98, a Congressional Review Act resolution to nullify the NLRB’s joint employer final rule, despite the House and Senate passing the resolution on a bipartisan basis earlier this year.

The following can be attributed to CDW Chair Kristen Swearingen:

“The CRA would have nullified a rulemaking that massively expands the joint employer standard and violates both the NLRA and common law. The rule will create widespread confusion throughout the economy and jeopardize small and franchise work arrangements, which will have a disproportionate impact on many minority-owned businesses. Congress was wise to pass the CRA before the rule could take effect.

“Unfortunately, the Administration does not have the same foresight. Under the rule, unions will be placed in the middle of routine business agreements, labor relations will be destabilized, and every contractual relationship in the economy will be put at risk.

“In vetoing the CRA, the Administration has turned its back on hard-working Americans and business owners instead, playing into the NLRB’s egregious and unprecedented actions.”

CDW released statements on passage of the CRA, the court ruling nullifying the final rule, and the Board’s issuance of the final rule.

As Volkswagen Workers Vote for Union Representation, Secret Ballot Elections and Robust Debate Must Be Protected

On April 19, the NLRB announced Volkswagen workers in Chattanooga, Tennessee, voted in favor of union representation. The vote was held via secret ballot in an NLRB-supervised election at the workplace.

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

“Secret ballot elections are the gold standard for a reason. They guarantee workers can fully vote their conscience without undue pressure from others. Workers at the Volkswagen plant in Chattanooga, Tennessee, had an opportunity to vote via secret ballots in an election supervised by the NLRB and in the most accessible location for all of the workers — the workplace. All workers considering unionization must be given this same opportunity to ensure they can make their choice without intimidation, harassment, or coercion from anyone.

Time and time again, data proves that in-person elections held via secret ballots under NLRB supervision at the workplace result in the highest voter participation. The NLRB should hold such elections wherever and whenever possible to guarantee that workers’ true wishes about representation are implemented.

“CDW remains concerned about efforts to silence employers during organizing drives. In January, 33 Senators urged auto companies currently targeted by UAW to pledge to remain neutral during the unionization campaign. Demanding neutrality harms the election process and infringes on workers’ right to be fully informed before voting. Workers must be able to hear robust debate about the merits of unionization before making such an impactful decision.”

CDW Supports SALT Act’s Increased Transparency for Workers

On April 11, CDW sent a letter to members of the House of Representatives urging them to support the Start Applying Labor Transparency (SALT) Act, which would amend the Labor-Management Reporting and Disclosure Act to require labor organizations register “salts” with the Department of Labor.

The following can be attributed to CDW Chair Kristen Swearingen:

“The use of salts is an inherently coercive tactic that unions use to trick workers into supporting unionization. Salts obtain jobs in a nonunionized workplace, destabilize labor-management relations, and then urge unionization on the workers. Salts are under no obligation to tell their colleagues what their true intentions are, misleading workers and violating their right to know who is trying to persuade them. Just look to the recent Starbucks organizing campaign for proof that workers do not appreciate being misled.

“Under the LMRDA, employers are required to report when they hire consultants to speak with employees about organizing, but the law is completely silent on unions’ use of salts, a practice that relies on misleading and deceiving workers.

“The SALT Act is much-needed legislation that would ensure workers have full transparency on who is trying to coerce or persuade them during union organizing drives. CDW urges Congress to support the SALT Act to protect workers, guarantee transparency, and ensure labor stability.”

CDW Applauds Congress for Passing Resolution to Nullify NLRB’s Disastrous Joint Employer Rule

On April 10, the Senate passed HJRes 98, a Congressional Review Act resolution to nullify the NLRB’s joint employer final rule. The resolution already passed the House, meaning the bill is headed to President Biden’s desk for signature.

The following can be attributed to CDW Chair Kristen Swearingen:

“The NLRB’s final rule was a massive expansion of the joint employer standard that would have violated the NLRA and common law. It would have created widespread confusion throughout the economy and jeopardized millions of small businesses. That’s why both federal courts and Congress have moved to nullify it before it could take effect.

“CDW applauds the Senate for taking this step to protect the economy and specifically the small businesses that would have been devastated by this rulemaking. We now urge President Biden to sign this bill into law. Doing so will provide certainty to American businesses, stabilize labor relations, and rein in the Board’s egregious actions.”

CDW Condemns OSHA Rule Allowing Unions to Infiltrate Workplaces

Washington, DC – On March 29, the Occupational Safety and Health Administration issued a final rule allowing unions and other third parties, potentially with an agenda against the employer, to participate in OSHA inspections.

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

“OSHA’s final rule allows individuals with an agenda against the employer — including unions that have not convinced the workers to obtain their representation — to infiltrate the workplace and obtain proprietary information or information about the employer and/or workers.

“The rule provides no clarity for how OSHA safety and health officers are supposed to determine if a chosen representative should be allowed to participate in the inspection. Moreover, there’s no limit to the number of representatives that can participate, meaning multiple unions trying to organize a workplace could be permitted access. OSHA inspectors will be forced into a position to police these representatives’ behavior, which could include intentionally disrupting the workplace and instigating dysfunction.

“The rule puts OSHA safety and health officers in the middle of labor disputes and organizing drives, which they simply are not prepared for. OSHA was misguided in pursuing this rulemaking, and the courts will most assuredly have an opportunity to strike it down.”

 

CDW Applauds House Appropriators for Maintaining NLRB Funding, Electronic Voting Rider

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.”

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.”

CDW Files Amicus Brief Urging 3rd Circuit to Hold that the NLRA Precludes Monetary Damages Beyond Backpay

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.”

CDW Applauds 5th Circuit’s Decision to Protect Common Sense Dress Code Policies

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.”