OFDA Sends Letter to Congress on Workplace Fairness

June 27, 2018

The Coalition for a Democratic Workplace (CDW), which OFDA belongs too, sent a letter to Congress this week strongly opposing S. 2810, the deceptively named Workplace Democracy Act (WDA). This radical legislation would:

  • Strip workers’ right to private voting and secret ballots in union elections; 
  • Codify the NLRB’s controversial Browning-Ferris Industries (BFI) joint employment standard that has threatened our country’s small and local businesses; 
  • Curb opportunities for people to work independently through gig economy platforms or more traditional independent contractor roles; 
  • Eliminate Right-to-Work protections for workers across the country, including in the 28 states that have passed Right to Work laws; 
  • Interfere with attorney-client confidentiality and make it harder for businesses, particularly small businesses, to secure legal advice on complex labor law matters; and, 
  • Strip away “secondary boycott” protections that prevent unions from using their anti-trust exemptions and immunity from some state laws to target business for anti-competitive purposes other than organizing.

Our concerns about WDA provisions are set forth in more detail below. 

Eliminates Workers’ Free Choice and Privacy: Secret ballot elections have been a cornerstone of workers’ rights and an integral part of labor relations since the earliest days of the National Labor Relations Act (NLRA). Every employee should have the right to vote privately on whether they want a union; and, for over seventy years, employees have largely decided whether to join a union through a secret ballot election overseen by the National Labor Relations Board (NLRB).

Codifies the Damaging Joint Employer Standard: The WDA would codify the controversial 2015 NLRB BFI decision that expanded and muddled the standard for determining when two separate companies are “joint employers” under the NLRA. Joint employers are jointly responsible for labor violations committed by the other and bargaining with respect to any jointly employed workers. The BFI decision overturned decades of established labor law and undermined the relationships between brand companies and local franchise business owners; contractors and subcontractors; and businesses and their suppliers and vendors. In short, BFI has cast a cloud of uncertainty over business models that have created millions of jobs and allowed hundreds of thousands of individuals to achieve the American Dream of owning their own small business. The BFI standard also has hampered businesses’ efforts to provide guidance to and impose quality and conduct standards on franchisees, contractors, and vendors to the detriment of workers and consumers. 

Imposes Government Control Over Private Contracts: Another hold over from the days of EFCA, WDA contains a provision that would eliminate freedom of contract by mandating compulsory, binding arbitration on the employer and the employees if the two parties do not reach a collective bargaining agreement within the first 120 days of negotiations. Under the WDA, an arbitrator, who is unfamiliar with the business operations, would impose terms that are 
binding upon both parties, even if one or both find those terms unacceptable. In fact, employees would not be provided with the opportunity to vote on whether they approve their new contract. Employers have very limited avenues for redress if they cannot afford the terms imposed. Thus, if an arbitrator miscalculates what wages or benefits the company can afford, or forces the company into failing multiemployer pension plans, the employer may simply go out of business. In fact, binding arbitration in the public sector has been blamed for bankruptcies and for fueling the public sector pension crisis. Many states and municipalities have taken steps to decisions.

Breaches Attorney Client Confidentiality: WDA would amend federal law to include many of the provisions of the failed 2016 Department of Labor (DOL) “persuader” regulation under the Labor-Management Reporting and Disclosure Act (LMRDA). The regulation was enjoined by a federal court and is currently being rescinded by DOL. Like the persuader rule, the WDA provision would force a breach of attorney client confidentiality and make it more difficult for employers to access legal counsel or other expert advice on complex labor and employee relations issues during union organizing drives. The court that struck down the rule found it “defective to its core” because it entirely eliminates the LMRDA’s “advice” exemption and requires the disclosure of a “great deal of advice that is actually protected from disclosure”; “undermine[s] the attorney-client relationship and the confidentiality of that relationship”; and, is “vague and impossible to apply.”

Strips Away Employees’ Right-to-Work Protections: WDA would repeal Section 14(b) of the NLRA and thus deprive workers across the country of the right to choose whether to join a union 
by abolishing right-to-work laws in favor of compulsory unionization. Right now, 28 states have right-to-work laws that prevent contracts from requiring employees join a union as a condition of 
employment, empowering individuals with free choice.

Brings Coercion, Picketing, and Boycotts into the Home and onto Main Street: WDA would rescind all restrictions in the NLRA that currently make it unlawful for unions to impose 
economic injury on “neutral” third parties that are not involved in an underlying labor dispute, such as consumers, companies or other unions that do business with the company involved in the 
labor dispute. The existing restrictions against “secondary” coercion were adopted by Congress in 1947, and they were strengthened by Congress in 1959, because unions engaged in tactics that 
were deemed excessive and abusive, especially based on the injury imposed on “neutral” parties. The WDA would eliminate “neutral” status by rescinding all “secondary” prohibitions, which 
would expose all consumers, employers, suppliers, vendors, franchisors, franchisees, and all other businesses to coercion, picketing, boycotts and similar tactics, regardless of whether they 
have any dispute with any union. 

Eliminates Limits on Recognitional Picketing and Anticompetitive Behavior — Allowing Unions to Harm Rather than Organize Companies: The WDA would eliminate provisions 
in existing law that limit unions to 30 days of recognitional picketing, unless the union files a representation petition seeking an NLRB election. Under the WDA, unions could engage in 
recognitional picketing without any limitation — causing injury to employers, consumers, suppliers and customers — without filing any petition, at any time, that would permit employees 
to vote on whether they want union recognition. Also, the NLRA’s existing protections against secondary boycotts prevent unions from using their anti-trust exemptions and immunity from 
some state laws to target business for anti-competitive reasons and purposes other than organizing. If “secondary” boycotts become lawful, unions may engage in anti-competitive 
tactics directed at particular companies, with immunity from prosecution under federal anti-trust statutes and state laws against unfair competition.