On June 21, former President Trump announced that Teamsters President Sean O’Brien would speak at the Republican National Convention in Milwaukee.

The following statement can be attributed to Coalition for a Democratic Workplace Chair Kristen Swearingen:

“The Teamsters, and specifically their president, have routinely pursued policies that would harm American workers, Main Street businesses, and the economy at large. O’Brien’s policy priorities include forcing union membership on workers and destroying businesses if they do not cave to his demands.

“Moreover, under O’Brien’s leadership, the Teamsters spent millions of dollars supporting Democratic candidates and an anti-business, anti-worker agenda. A new Center for Union Facts report highlights just how one-sided their spending has been over the years, and this spending comes despite the fact that Teamsters’ members are now just as likely to identify as Republican as Democratic, as the American Survey Center recently demonstrated.

“Allowing O’Brien to take the stage at the Republican National Convention gives credibility to a dangerous policy agenda and a platform to an individual who ignores workers’ rights and opinions. The RNC and former President Trump should reconsider their invitation.”

WASHINGTON, D.C. – A scathing new opinion piece written by the Wall Street Journal Editorial Board examines Chairwoman Lauren McFerran’s tenure as the head of President Biden’s National Labor Relations Board (NLRB) and urges the U.S. Senate to not move on her candidacy to serve another term. 

Both Republicans and Democrats believe that the NLRB has become too extreme, and many believe that McFerran should not be reappointed, despite her ongoing support from Biden.

Kristen Swearingen, Chair of the Coalition for a Democratic Workplace representing more than 500 leading business groups, released the following statement on the WSJ Editorial Board’s opinion piece: “President Biden has chosen to politicize the NLRB, to an unprecedented level, at the expense of American workers and their families, solely to curry favor with union bosses ahead of a contentious presidential election. American workers deserve better and so do the millions of job creators who McFerran has vilified. McFerran’s reign of anti-business and anti-worker policies must come to an end, and her nomination for another term should be soundly rejected by the Senate.” 

Key passages in the WSJ op-ed include: 

“…the agency has shed any veneer of fairness during her tenure, trampling the rights of small and large businesses. A series of rulings since 2021 have stretched the protections in labor law wide enough to make workers virtually unfireable, as long as they belong to a union or wish to join one.

“Dozens of rulings fit the same pattern, with the NLRB tearing up the rights of businesses or non-union workers.

“These decisions send a clear message to employers: Roll over for union activists, or the NLRB will turn any management decision into a labor violation. 

“Congress has noted the shift, and even some Democrats believe the agency has swung too far. Sens. Joe Manchin, Kyrsten Sinema and Angus King joined Republicans in voting to rescind the NLRB’s recent joint-employer rule, which breaks precedent to help unions organize franchise businesses. President Biden vetoed the bipartisan Congressional Review Act resolution and let the harmful rule take effect.

“Mr. Biden has timed his appointments to the labor board to minimize resistance. He broke with tradition by not choosing a Republican to fill an open seat when the previous chairman, picked by President Trump, retired in 2022. 

“It’s an offer the Senate should refuse. Reapproving the sitting chairman would be business as usual in a Senate that has whooped through too many of Mr. Biden’s progressive nominees. The economy and the rights of workers will suffer if Ms. McFerran is confirmed again after her demonstrably lawless record.”

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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.

On February 28, CDW and several other employer organizations filed a motion before the Supreme Court in Starbucks v McKinney, a case considering the criteria the NLRB must meet to seek Section 10(j) injunctive relief under the National Labor Relations Act. The motion requests the Supreme Court reverse a 6th Circuit decision and clarify the test the Board must use to be granted preliminary injunctive relief against an employer. A Supreme Court decision would provide clarity on the issue, which has resulted in conflicting standards from the Circuit Courts.

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

“The current NLRB and its General Counsel are pursuing injunctive relief against employers based on flawed legal theories or unsubstantiated allegations. The agency has required businesses hold financially draining assets, remain in outdated or unprofitable facilities, and reinstate employees who have harassed coworkers.

“Courts have an obligation to ensure the Board is seeking injunctive relief based on sound reasoning, but unfortunately, some Circuit Courts are using lenient standards to assess the NLRB’s requests. The agency should be held to the same standards as other litigants seeking injunctions, and the Supreme Court should take this opportunity to rein in the NLRB and ensure the agency is subject to appropriate judicial oversight.”

The other employer organizations on the motion are Associated Builders and Contractors, HR Policy Association, and National Retail Federation.

In November 2023, CDW filed a petition to the Supreme Court asking them to take up this case, and our statement on that brief is available here.

Washington, DC – On February 6, 2024, CDW sent a letter to the Senate Health, Education, Labor and Pensions Committee and House Education and the Workforce Committee calling on them to use their oversight authority to question the National Labor Relations Board and the Board’s General Counsel about the current tension and inconsistencies their actions and interpretations have created between federal antidiscrimination laws and federal labor law.

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

“The NLRB and its General Counsel are putting employers into an impossible situation. Due to their efforts to protect union organizers and unionization campaigns at all costs, they’re demanding employers tolerate ‘profane, vulgar, racist, and otherwise insulting language’ in the workplace despite the clear conflict this would create with employers’ legal obligation to create a safe workplace for their workers.

“Employers must be able to act when discrimination or harassment occur in the workplace in order to protect their workers, but the Board and its General Counsel are recklessly ignoring that reality. Congress should demand answers from the Board and General Counsel on why they’re pursuing this illogical interpretation of the law and exposing employees to dangerous work environments.”

On August 25, 2023, the National Labor Relations Board issued its decision in Cemex, imposing a new framework which greatly expands the Board’s ability to impose unions on employees without a secret ballot election. The Board’s decision reverses a half-century of NLRB precedent and is at odds with long-standing Supreme Court rulings. The Board also made this major policy change without soliciting input from the public via comment or amicus briefs and rejected CDW’s request to allow for amicus briefs.

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

“The Board’s decision to force unions on employees without an election is contrary to the law and the fundamentals of workplace democracy. Employees deserve the right to decide whether or not they want union representation through a secret ballot election. The Board should be protecting this right and doing everything in its power to promote employee participation in elections – not forcing unions on employees based on unreliable authorization cards. The Board decision overrules precedent that has stood for over half a century and been upheld by the Supreme Court. As dissenting Member Kaplan explained, the new standard will have ‘the primary effect of negating the rights of current employees rather than furthering them’ and therefore ‘defeats, rather than effectuates, the policies of the [Act].’

“Not only is CDW disappointed in the ruling, but we’re disappointed that the Board chose to move forward with such a fundamental change to labor law without seeking input from stakeholders. This is more concerning given that CDW and others specifically called on the Board to invite amicus briefs in the case. The regulated community should have had an opportunity to express their concerns before such a radical change to policy was made.”

On August 24, 2023, the NLRB issued its direct final rule reinstating the Obama-era ambush elections rule, which promoted speed of union representation elections at the expense of employees’ right to be fully informed before choosing whether or not they wanted union representation in the workplace.

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

“The Board once again is tipping the balance of federal labor law in favor of unions and sacrificing the rights of employees and employers to do so. This rulemaking, which the Board  completed without soliciting input from the public, prioritizes the speed of elections over workers and employers rights, violating the most basic responsibilities of the Board.

“Simply promoting speed of elections does nothing to ensure workers are fully informed and violates the due process rights of employers. As dissenting Board member Marvin Kaplan explained, ‘One is left to wonder how much the voters will actually benefit from the requirements that elections be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.’”

Washington, DC – On August 2, the NLRB issued its decision in Stericycle, putting at risk employers’ common sense workplace policies. 

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

“The Board’s decision makes it nearly impossible for employers across the country to provide safe, hostile-free workplaces for workers. The Board has inserted instability and confusion into the workplace and created risks for employers attempting to implement common sense policies that protect workers, customers, and the community.

“The better approach, by far, was the Board’s decision in Boeing, which ensured the Board would consider both the employer’s legitimate justifications and the potential impact on workers’ NLRB rights when assessing a facially neutral policy, rule, or handbook provision. This standard clearly and appropriately balanced the analysis and ensured employers can provide safe workplaces for all.

“The Board’s Stericycle decision will only create confusion for the regulated community, and CDW will pursue avenues to reverse this dangerous precedent.”

CDW’s amicus brief in the case is available 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.”