Coalition Files Legal Briefs In Opposition To NLRB Rulings

The Coalition for a Democratic Workplace (CDW), which MSCI is a member of, has filed an amicus brief in a case against Starbucks that is before the National Labor Relations Board (NLRB). In the case, the NLRB’s general counsel filed a brief calling on the NLRB to make mandatory employer meetings with employees in which employers discuss the unionization drive unfair labor practices.

The general counsel also would like to force employers to accept signed authorization cards as proof of a union’s majority support and make it nearly impossible for an employer to reject the cards and request a secret ballot election supervised by the NLRB.

The Supreme Court and courts of appeals have routinely rejected imposition of such card check policies since they make employees vulnerable to coercion, abuse, and intimidation. In its amicus brief, the CDW argued the general counsel’s card check proposal would eliminate employers’ free speech rights and limit their ability to communicate with their employees.

This policy, if implemented, also would violate the basic tenets of the National Labor Relations Act, Supreme Court and NLRB precedent, and congressional intent. In a statement, the CDW said, “The Supreme Court, NLRB, 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.”

In related news: on February 9, the CDW and four employer organizations filed an amicus brief  before the Fifth U.S. Circuit Court of Appeals in a case against Tesla over facially neutral dress code policies.

The coalition asked the court to reverse a 2022 NLRB decision that made nearly all facially neutral workplace dress code policies presumptively unlawful unless the employer could prove the policy was justified due to “special circumstances” — a narrow exception that the NLRB rarely, if ever, finds employers satisfy. That decision upended established precedent that had been in place for nearly 80 years.

In a statement, the CDW explained the NLRB’s decision “attacks common sense workplace dress code policies even though these policies have nothing to do with unions or union support” and that “workplaces throughout the economy use these policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments.”