Update from the Coalition for a Democratic Workplace
June 8, 2023
ABI is a member of the Coalition for a Democratic Workplace (CDW), which represents hundreds of organizations across the country. It was initially founded in 2005 as a means of opposing the “Employee Free Choice Act” (EFCA), which would have replaced secret ballots in unionization elections with “card check”, a very damaging process that tries to intimate and forcibly pressure employees when it comes to potentially authorizing a union in the workplace.
With that EFCA defeated legislatively, the focus of the Coalition has turned to opposing regulatory overreach by the National Labor Relations Board.
ABI is grateful for the work the coalition does at the federal level on behalf of business and industry.
Below are two key updates on labor issues brought to you by the CDW:
Supreme Court Holds Unions Cannot Destroy Employer Property without Consequences
The Supreme Court has issued its decision in Glacier Northwest, holding that unions cannot intentionally destroy employer property without consequences. In the nearly unanimous decision, the Court held that the National Labor Relations Act does not preempt state tort law, meaning companies can seek damages for the intentional destruction of their property even during labor disputes. The decision explained, “the Union executed the strike in a manner designed to compromise the safety of Glacier’s trucks and destroy its concrete… Because the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.” The 8-1 decision remands the case back to the Washington Supreme Court for reconsideration.
General Counsel Memo Banning Non-Competes in Almost All Cases
On May 30, NLRB General Counsel Jennifer Abruzzo sent a memo to all regional offices claiming the proffer, maintenance, and enforcement of non-compete provisions in employment contracts and severance agreements almost always violates the NLRA. Abruzzo claims non-competes “chill employees in the exercise of Section 7 rights unless it is narrowly tailored to address special circumstances justifying the infringement on employee rights.”
This memo comes on the heels of the Board’s recent decision in McLaren Macomb, in which the Board held that severance agreements violate the NLRA if they include confidentiality or nondisparagement restrictions. Abruzzo circulated a memo to field offices on the case in March.