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CDW Files Amicus Briefs in Tesla, Starbucks Cases Regarding Dress Code Policies and Employer Speech Rights

February 15, 2023

Starbucks Case:

On Feb. 8, the ABC-led Coalition for a Democratic Workplace filed an amicus brief in a case against Starbucks that is currently before the National Labor Relations Board, condemning the NLRB general counsel Jennifer Abruzzo’s efforts to eliminate employer speech rights in union organizing drives as well as employees’ right to secret ballots in union representation elections. Read CDW’s statement.

Essentially, the general counsel’s proposal would eliminate employers’ free speech rights and limit their ability to communicate with their employees. This policy would violate the basic tenets of the National Labor Relations Act, U.S. Supreme Court and Board precedent, and congressional intent.

Additionally, the general counsel wants 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 card check for its vulnerabilities to coercion, abuse and intimidation.

Tesla Case:

On Feb. 9, the CDW and four employer organizations filed an amicus brief before the U.S. Court of Appeals for the 5th Circuit in a case against Tesla over facially neutral dress code policies. CDW is calling on the 5th Circuit to reverse a 2022 decision by the Board in which the Democratic majority 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 Board rarely, if ever, finds employers satisfy. The decision upended established precedent that had stood in place for nearly 80 years.

CDW stated, “The Board’s decision attacks common sense workplace dress code policies even though these policies have nothing to do with unions or union support. Workplaces throughout the economy use these policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments. The Board’s decision will leave workplaces less safe for workers and consumers and put at risk the investments employers have made to further their businesses. The 5th Circuit should reverse this illogical decision and give employers the ability to enforce common sense dress code policies in the workplace.”

As explained in the brief, the decision “marks a dramatic shift in the legal landscape and places all such policies at risk of being found unlawful.” The decision disrupts the “longstanding balance that the Supreme Court sought to uphold,” and “employers across the nation will lose the ability to enforce commonsense and neutral workplace rules.” Read CDW’s statement.

Kristen Swearingen, ABC vice president of legislative & political affairs, chairs the CDW.

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