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CDW Files Brief Condemning NLRB General Counsel’s Efforts to Eliminate Secret Ballot Elections, Employer Speech Rights

Washington, DC – On February 8, the Coalition for a Democratic Workplace, along with six other employer organizations, filed an amicus brief before the NLRB on a case against Starbucks in which the Board’s General Counsel Jennifer Abruzzo is attempting to eliminate employer speech rights in union organizing drives as well as employees’ right to secret ballots in union representation elections. CDW’s brief condemns the General Counsel’s proposed changes for violating the National Labor Relations Act, the First Amendment, and numerous judicial decisions affirming these fundamental rights.

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

“The NLRB’s General Counsel wants to force unions on employees who have voted against union representation and silence any debate on the merits of a particular union or union representation generally. In her brief in this case, the General Counsel is demanding that the Board abandon decades of settled law and bring back policies that were soundly rejected by prior Boards, the Supreme Court, and Congress. Not only are the arguments she makes without legal foundation, but the substantive policies she’s pursuing are fundamentally at odds with employees’ right to make an informed choice by secret ballot election, the NLRA’s legislative history, and the First Amendment.

“The Supreme Court, Board, and Congress have routinely protected employees’ right to secret ballot elections, acknowledging that a private ballot election following ‘robust debate’ is by far the best means of ensuring workers can freely choose whether or not they want union representation. The Supreme Court has said our labor laws favor ‘uninhibited robust, and wide-open debate in labor disputes’ and that ‘secret elections are generally the most satisfactory – indeed the preferred – method of ascertaining whether a union has majority support.’ Congress has rejected attempts to eliminate secret ballots in union elections and supported free debate, and President John F. Kennedy said it is essential the law provide for union election campaigns ‘in which both parties can present their viewpoints.’

“The General Counsel is seeking to use her political position to do an end run around the Supreme Court and Congress to force unions on employees that don’t want them and end debate on issues that should be debated. The Board should unequivocally reject this outrageous ideological crusade.”

The fellow amici on the brief were Associated Builders and Contractors, the Chamber of Commerce, Independent Electrical Contractors, International Foodservice Distributors Association, National Association of Wholesaler-Distributors, and National Retail Federation.

CDW Files Comment on NLRB’s So-Called “Fair Choice” NPRM

Washington, DC – On February 2, CDW filed comments on the NLRB’s proposed rulemaking eliminating important worker protections related to union representation and elections. The Board is planning to rescind Trump-era policies that ensured workers the right to freely choose whether or not they want union representation and guaranteed workers a secret ballot election.

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

“Despite the title of this proposal, this rulemaking does not offer workers a ‘fair choice’ or the ability to exercise their voices on union representation. In reality, it eliminates common sense measures that ensure workers are fully able to express their wishes on whether or not they want union representation in the workplace. The proposal will undeniably undermine employee free choice by forcing them into unions without secret ballot elections and preventing elections from even being held, denying the will of employee.

“Protecting workers’ rights to free choice is a vital responsibility of the NLRB. Instead of implementing this misguided proposed rule, the Board should reaffirm the current procedures that protect workers’ right to vote and self-determination.”

CDW Files Extension Request on NLRB’s Representation-Case Procedures NPRM

Washington, DC – On November 22, CDW requested the NLRB issue a 30-day extension to the comment period for the Board’s notice of proposed rulemaking making several changes to representation-case procedures. The current comment period runs until January 3, 2023, spanning three major US holidays.

CDW asked the Board to provide the extension to ensure the regulated community has an opportunity to weigh in on the potential impact the proposed changes could have on business operations, the workforce, and the economy generally. As we explain in the request, businesses – and especially smaller entities – likely will not be able to redirect resources and valuable time during the holiday season to provide meaningful comments to the Board. Moreover, resources are already limited due to the current economy environment.

CDW Requests Extension to Comment Period on NLRB’s Joint Employer Rule

CDW filed a letter with the NLRB requesting they extend the comment period for the joint employer rulemaking by an additional 60 days.

As we explain in the letter, “Given the expansive nature of the proposed standard and the complexity of issues relating the standard’s impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.”

 

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 Submits Letter to Senate HELP before EEOC Nomination Hearing

Washington, DC – On May 9, CDW sent a letter to the Senate Health, Education, Labor, and Pensions (HELP) Committee to  “express our concerns with the current tension between federal anti-discrimination laws and federal labor relations laws as implemented by the NLRB and its General Counsel.”

On Tuesday, May 10, the HELP Committee will be hearing from President Biden’s nominee to the Equal Employment Opportunity Commission (EEOC), Kalpana Kotagal, and CDW believes Ms. Kotagal and the HELP Committee members should address the concerning enforcement trend from the NLRB that creates a conflict between federal labor relations law and federal anti-discrimination laws, forcing employers to choose which laws to comply with.

As our letter explains, “Enforcement efforts by [NLRB] General Counsel Jennifer Abruzzo are creating an impossible situation for the employer community where they will be forced to choose between compliance with federal anti-discrimination laws or federal labor relations laws, exposing employers to significant liability and employees to unsafe, hostile workplaces.”

The letter explains, “Federal agencies should not deliberately create conflicts between federal laws and should not put employers in the impossible position of choosing which laws to comply with in a given situation. Additionally, union organizers and their supporters should not have the right to create unsafe and hostile workplaces. Employees are entitled to safe work environments free from harassment and abuse. The EEOC and NLRB should work together to ensure employers understand their obligations under their respective laws and employees have the ability to collectively bargain without violating the rights and well-being of others.”

CDW Submits Motion Requesting NLRB Solicit Amicus Briefs in Cemex

Washington, DC – On May 3, CDW submitted a motion requesting the NLRB solicit amicus briefs in Cemex Construction Materials Pacific, LLC in response to the General Counsel’s request that the Board overrule multiple longstanding and significant Board precedents in the case.

As we explain in our motion, “CDW urges the Board not to seriously entertain the General Counsel’s inappropriate request to overrule these important precedents in the present proceeding, which would threaten the institutional integrity of the Board and violate the statutory mandate to promote stability in labor relations. If the Board intends to consider the General Counsel’s radical proposals in deciding the present case, however, then it should gather input from interested stakeholders by inviting amicus briefs, as it did in the recent cases cited [in the motion]. The NLRB should not move forward with the proposed changes before hearing from the stakeholders who will be directly and significantly impacted by them.”

We also requested the Board provide additional time and allow amici to submit longer briefs than normal due to “the sheer number of cases the General Counsel is calling on the Board to overturn and the breadth of the issues discussed in the General Counsel’s brief.”

CDW Files Amicus Brief Calling for Preservation of Arbitration Agreements

On March 21, CDW filed an amicus brief in Ralph’s Grocery, a case before the NLRB in which the Board is considering adopting a new standard to determine if confidentiality requirements in mandatory arbitration agreements violate workers’ right to collectively bargain under the National Labor Relations Act (NLRA). CDW is calling on the Board to adhere to its 2020 Anderson Enterprises decision that “[held] that an arbitration agreement explicitly and prominently assuring employees of their right to file charges with the Board does not interfere with such employee rights under the NLRA.”

In our brief CDW pointed to past Supreme Court precedent (Epic Systems) clearly stating that the NLRB does not have authority to challenge enforcement of arbitration agreements between employers and employees under the Federal Arbitration Act (FAA). “Any action by the Board to overrule Anderson and impose liability on the employer here would violate the FAA and lead to another confrontation with the Supreme Court.”

Furthermore, “the Board lacks jurisdiction to penalize confidentiality provisions in arbitration agreements covered by the FAA, which do not in any event interfere with employees’ exercise of Section 7 rights.” Such confidentiality provisions govern the procedures used to adjudicate legal claims but do not force employees into confidentiality over the facts underlying a claim. By attempting to regulate adjudicatory procedures and proceedings, the Board “moves outside of its expertise and is entitled to no deference.”

CDW Again Urges Wilcox/Prouty Recusals, Requests Info on Conflicts of Interest

On February 15, CDW sent a follow-up letter to the NLRB urging Members Wilcox and Prouty be recused from any cases involving their previous employer, the SEIU, or rulemakings related to the joint employer standard due to their past advocacy efforts on the issue.

In our letter, we reiterated our concerns about Wilcox and Prouty’s inability to remain impartial when dealing with such cases and policies. We also repeat our request for information related to any determination by the designated ethics official that their past employment and work on the joint employer standard does not present a conflict of interest.

Our original letter, which was submitted on January 14, can be read here, while our statement on the original request can be found here.

CDW Files Amicus Brief in NLRB Case on Remedies

Washington, DC – On January 11, CDW submitted an amicus brief in Thryv Inc., a case the Board is using to reconsider its make-whole remedy for employees.

In our brief we explain that the Board simply “does not have the statutory authority to award consequential damages, and therefore it should not do so.” This lack of authority has been routinely confirmed by the courts. Furthermore, “the introduction of consequential damages, and the resultant need to prove the causation and reasonable foreseeability of such damages, will increase and prolong litigation,” and “efforts to recover such damages in the course of trying to settle claims will result in a failure of settlement when respondents have no opportunity to test the propriety of such damages through contested proceedings.”