Coalition For A Democratic Workplace Urges US Attorney General To Unilaterally Override Biden-Era NLRB Decisions

The Coalition for a Democratic Workplace (CDW) – an association of several hundred employers and employer associations – sent letters to US Attorney General Pam Bondi to direct the National Labor Relations Board (NLRB) to ignore a swatch of Biden-era decisions pursuant to President Trump's Executive Order asserting that the President and the AG have the power to interpret the law for all agencies.

Ordinarily, employers try to get the NLRB to change a decision with which they disagree by challenging the decision on appeal. Employers also have the ability to argue to the Board in future cases, particularly after a change in administrations, that it should revisit its own precedent. The NLRB would then consider the issue and arguments and decide whether to change its earlier decision. However, the CDW has asked Bondi to unilaterally invalidate 15 Biden-era Board rulings, including 14 that set new precedents. They are as follows:

1. Amazon.com Services, LLC, 373 NLRB No. 136 (2024). The Board held that an employer may not inform employees of its views on unionization during a mandatory workplace meeting. CDW argues that the content-based restriction on speech is unconstitutional, beyond the Board's statutory charge, and risks chilling debate on a question of paramount importance for employers and employees alike: whether to unionize in the workplace.
2. Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024). This case overturned over 40 years of precedent and declared that employers violate the NLRA when they tell employees that they will lose their direct access to management in the event of unionization. CDW argues that this holding raises the prospect of ULP liability for making straightforward statements of fact regarding the likely impact of unionization on that relationship. Further, the decision fails the Skidmore deference test, relies on faulty reasoning, and did not involve a call for amicus participation.
3. Home Depot USA, Inc., 373 NLRB No. 25 (2024). The Board ruled that an employee was protected by the NLRA when displaying a Black Lives Matter message on their uniform apron, which, while of political importance to the employee, had no relation to their employment. CDW argues the Board's ruling violated the First Amendment by forcing employers to endorse political speech.
4. Thryv, Inc., 372 NLRB No. 22 (2022). The Board ruled that employers are liable for any employee losses indirectly caused by an unfair labor practice, regardless how long the chain of causation may stretch, whenever the loss is found to be foreseeable. CDW argues that this ruling exceeds the Board's authority — and regardless of the Third Circuit ruling the same in NLRB v. Starbucks Corporation, 125 F.4th 78, 95 (3d. Cir. 2025) ("The NLRA . . . limits the Board's remedial authority to equitable, not legal, relief") — this remains the Board's precedent.
5. Lion Elastomers LLC II, 372 NLRB 83 (2023). The Board overruled General Motors LLC, 369 NLRB No. 127 (2020), which provided that the Board would evaluate whether an employee's abusive workplace conduct merited discipline based on the longstanding Wright Line test, turning on whether an employer would have taken the same action if the employee had not engaged in protected activity. In Lion Elastomers, the Board instead adopted a context-specific framework calling for different tests depending on the context in which the abusive conduct arose.
6. Miller Plastic Products, Inc., 372 NLRB No. 134 (2023). This case broadened the determination of what is considered "concerted" action under the NLRA by the "totality of the evidence."
7. McLaren Macomb, 372 NLRB No. 58 (2023). The Board ruled that certain confidentiality and non-disparagement clause in settlement and severance agreements with employees is a violation of the NLRA if overly broad.
8. Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024). The Board revived the "clear and unmistakable" standard for contract interpretation, requiring employers claiming the right to make business changes in a unionized workplace to point to definitive language in a collective bargaining agreement in which the union "waived" the right to negotiate over the change. CDW argues that because it is impossible for the parties to a labor agreement to negotiate everything in their negotiations, the "clear and unmistakable" standard makes it much more burdensome for an employer to make critical business decisions without the involvement of union negotiators.
9. Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024). The Board ended the practice of accepting consent orders and, for the first time, found that administrative law judges lack the authority to approve consent orders.
10. American Federation for Children, Inc., 372 NLRB. No. 137 (2023). The Board expanded the scope of activities that fall under the protection of Section 7 of the Act to include employees' efforts to advocate on behalf of non-employees.
11. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023). In this case, the Board ruled that it is a violation of the NLRA for an employer to decline a union's request for voluntary recognition unless the employer files a petition with the NLRB for an election. CDW argues that this decision is one of the Biden Board's "most pernicious" for several reasons. For example, a union seeking recognition may or may not have the support of a majority of the unit it wants to represent. In the past, the employer could refuse the union's request and put to the union the decision of filing for an election and testing whether it actually has the support it claims or go back to the drawing board. However, under this ruling, if the employer does not file the petition itself, it can be forced to bargain with the union without any election at all.
12. Stericycle, Inc., 372 NLRB No. 113 (2023). The Board ruled that workplace rules are presumptively unlawful if they "could" be interpreted to limit employee rights, based on the perception of the reasonable employee who is "economically dependent" on the employer. CDW argues this is vague because virtually any rule that could even remotely be read to tread on employee protected activity may be unlawful.
13. The Atlanta Opera, Inc., 372 NLRB No. 95 (2023). The Board made it more difficult for workers to qualify as independent contractors. CDW argues that under the new standard, even if workers can pursue many entrepreneurial opportunities and contract their services with many companies, they may still be deemed employees of those companies under the Act.
14. Tesla, Inc., 371 NLRB No. 131 (2022). This case allowed employees to wear union insignia in any way they please unless the employer can prove "special circumstances" justifying restrictions. CDW argues that under this ruling, even if the employer has a neutral policy regarding work wear, the employer cannot apply that policy to union insignia unless they can pass a rigorous, fact-specific inquiry into whether there are special circumstances justifying the restriction. CDW further cites to the Fifth Circuit's ruling in Tesla, Inc. v. NLRB, 86 F.4th 640 (5th Cir. 2023), holding that the NLRB does not have the authority to make all company uniforms presumptively unlawful.
15. American Steel Construction, Inc., 372 NLRB No. 23 (2022). The Board overturned PCC Structurals, Inc., 365 NLRB No. 160 (2017), and presumed the unit selected by the union is appropriate unless the employer can demonstrate that other employees share an "overwhelming" community of interest with the petitioned-for unit.

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