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CDW Files Motion before Supreme Court Urging Stricter Scrutiny of NLRB’s Requests for Injunctive Relief

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 The agency has required businesses hold financially draining assets, remain in outdated or unprofitable facilities, and reinstate employees who have harassed coworkers.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.

 

CDW Calls on Congress to Investigate NLRB’s Actions Forcing Employers to Violate Federal Antidiscrimination Law

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.”

NLRB Expands Authority to Force Union on Employees Without Election and Ignores Legal Precedent and Stakeholder Requests for Opportunity for Public Comment

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.”

CDW Slams NLRB for Reinstating Ambush Elections Rule

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.’”

NLRB Decision Puts Common Sense Workplace Policies at Risk

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.

CDW Files Amicus Brief with Supreme Court to Urge Reconsideration of Chevron Deference

Washington, DC – On July 24, the Coalition for a Democratic Workplace filed an amicus brief with the Supreme Court in Loper Bright, a case considering the limits of Chevron deference. Our brief urges the Court to consider the impact Chevron deference has had on the predictability and workability of labor law for regulated parties.
The following statement can be attributed to CDW Chair Kristen Swearingen:
 
“The National Labor Relations Board’s record of flip-flopping on its policy interpretations with each change in administration has left employers unclear about their obligations under the law and employees unsure of their rights. Courts have often tolerated this vacillation in the name of Chevron deference. For this reason, we urge the Supreme Court to consider the Board’s reckless behavior as it decides on appropriate court deference to agencies.”

CDW Urges HELP Committee to Hold Hearing on Wilcox Nomination

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.”

Supreme Court Protects against Intentional Destruction of Employer Property

Washington, DC – On June 1, the Supreme Court issued its decision in Glacier Northwest, in which the Court firmly held that unions cannot intentionally destroy employer property without consequences.

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

“Unions cannot and should not have a free pass for intentionally destroying someone else’s property. No federal law protects such behavior, including the NLRA, and the Supreme Court has just affirmed that common sense principle. Unions must be required to settle disputes within the confines of the law.

“Property protections are critical. Without strong property protections in place, unlawful behavior would be encouraged, leaving businesses exposed to intentional harm and vandalism. The balance of power between unions and employers would be upended without these guardrails.

“The Supreme Court’s decision protects our communities from such instability and ensures unions will answer for the intentional destruction of an employer’s property.”

CDW’s amicus brief before the Supreme Court can be found here.

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.”