This transcript was auto generated
00;00;00;00 - 00;00;24;21
Tom Godar
Welcome once again to the Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing law in the labor area north of 40 years. I find it hard for me to admit that, but all of this began back in May of 2021, when it was the premise of my colleagues and I at Husch Blackwell, that elections have consequences.
00;00;24;23 - 00;00;49;15
Tom Godar
In the meantime, in those past three and a half, four years, the Husch Blackwell family of labor lawyers has doubled. We've got incredible insider experience throughout our offices, from coast to coast, and we've invited others from outside of Husch Blackwell to join us on occasion as well. And so we are really excited to continue our Labor Law Insider podcast.
00;00;49;18 - 00;01;10;00
Tom Godar
And we promised you that it was a wild ride back in 2021. Well, folks, I just got off another call, read some more information on the internet, looked at a few more articles, and I promise you that we're in for another wild ride in the world of labor law. So buckle up and join us for the Labor Law Insider podcast.
00;01;10;03 - 00;01;31;26
Tom Godar
It is so good to have you joining us today on the Labor Law Insider. We are really watching what's taking place throughout the world of labor law under the Trump administration. And that's what brings us to our topic today and to our special guest, Adam Doerr. We're gonna talk about what's taking place and what's really hitting on the ground.
00;01;31;26 - 00;02;03;20
Tom Godar
That is, our people in the union movement reacting more than in press releases about the hirings and firings of various individuals who are leaders at the National Labor Relations Board. But are there more or less petitions for elections being filed? How are unions reacting in terms of filing, you know, unfair labor practices? And I have the delight of having Adam Doerr join us with some analysis and thought on both of those sides, the sort of public piece and some sort of insider stuff. And Adam is
00;02;03;20 - 00;02;24;04
Tom Godar
one of my colleagues who works in Husch Blackwell’s St. Louis office, has been there for quite a while, is making quite a reputation in the labor circle, as he has been identified by best lawyers as one to watch and so forth. So welcome, Adam, and tell us a little bit about what's turning your crank these days. What's giving you some delight in your practice?
00;02;24;09 - 00;02;56;20
Adam Doerr
Thanks, Tom. Pleasure to be here again. Thanks for having me. I'm always curious about how how decisions how policy decisions, how actions impact and will impact labor law. And we all, I think, expected the second Trump administration to to return to a more employer friendly approach from a labor law perspective. But I don't know that many of us anticipated this precise approach of asserting the right to remove an NLRB member before their term expires.
00;02;56;22 - 00;03;22;28
Adam Doerr
And so when that happened in January, I was extremely curious about how that might impact unions and employees filings, whether for elections or unfair labor practice charges against employers. I was curious whether they would find the lack of a board quorum as an obstacle, or some other suggestion that now is not the time for this case for them.
00;03;23;01 - 00;03;31;27
Adam Doerr
So that's what really got me interested in digging into the specifics about what's been happening and the nuts and bolts level since January 28th.
00;03;31;29 - 00;04;07;18
Tom Godar
That's great. And let's set the table a little bit before we get to those numbers, because probably not surprising to most of us who are watching what's taking place, there's been some reactions by labor union leadership to the decisions of the Trump administration very recently. For instance, I saw that Sean fame, the president of the United Auto Workers, give a grudging nod to the good sense that at least some of the tariffs have not surprising he's representing American auto workers.
00;04;07;18 - 00;04;31;05
Tom Godar
And the thought would be that American auto workers, whether they're working for American owned companies or others, are going to be given a bigger slice of the pie. If cars manufactured in other nations might become more expensive. So there was a sort of a plaudits about a Trump action, though not directly related to unions and ups and elections.
00;04;31;13 - 00;04;58;20
Tom Godar
And there was some begrudging acceptance of the nomination of the Department of Labor Secretary. And when that was announced and now has been confirmed, the unions that this is, you know, for a Republican, this is probably one of the more union friendly, individuals that could take on that role at the Department of Labor. But, some of the other areas, predictably, unions have been pretty unhappy.
00;04;58;24 - 00;05;19;15
Tom Godar
Okay, just a guess. Happy or unhappy that President Trump fired and we get to use that word because it is. President Trump, of course, fired Gwen Wilcox and Jennifer Abruzzo, a board member and board chair. And the GC, the general counsel of the NLRB. Where do you think, Adam? Unions plus or minus on that?
00;05;19;18 - 00;05;35;07
Adam Doerr
Clearly, they're not happy about that. Jennifer Abruzzo was a great supporter of unions. She, of course, was a former union attorney herself and a great friend to the labor movement on the board. So her discharge from her role there is certainly not appreciated by the labor side.
00;05;35;10 - 00;06;07;21
Tom Godar
Yeah. And the same thing was true. And that wasn't, by the way, unexpected. I mean, President Biden fired general counsel Rob immediately upon his inauguration as president. There's a little bit tit for tat. Even some of us were surprised that there wasn't, you know, the day after inauguration kind of firing of general counsel of Brazeau. But President Trump went one step further and fired a sitting member of the board who had a a term, certain appointment when he fired the board chairman.
00;06;07;24 - 00;06;39;07
Tom Godar
And when Chairman Wilcox was fired, of course, there was a lawsuit that was brought not unexpected for those of us who watch these things. The federal district court in DC, I think back on March 6th, after a late January firing, found that the firing was illegal. Of course, it went to the next step, which was the D.C. Circuit Court, which originally said, and I think this was pretty quickly said, no, we're not going to have Gwen Wilcox return to her role on the board.
00;06;39;09 - 00;07;09;03
Tom Godar
The same circuit on April 7th said, no, no, we're going to reinstate her while this appeal is working its way through the system. And only two days later, the Supreme Court, in a one page the US Supreme Court, in a one page decision, said we're going to stay the decision to reinstate board member Wilcox. That doesn't mean that we know what the Supreme Court will do if indeed this comes before them, but that is at least a tell.
00;07;09;03 - 00;07;26;05
Tom Godar
I suppose that there's some basis to believe that that firing might be upheld. All of this is taking place in the context where there's now only two sitting board members. What does that mean for? Well, I guess for labor law under the National Labor Relations Act.
00;07;26;08 - 00;07;51;16
Adam Doerr
But at its core, it means the board doesn't have a quorum, and so it doesn't have the authority to exercise its authority. It can't issue decisions. It can't make rulings. There's a question as to whether it can continue to certify election results and other administrative duties that the board carries out, but at a minimum, it's unable to issue any rulings or decisions.
00;07;51;19 - 00;08;17;21
Tom Godar
Doesn't mean that the National Labor Relations Board action at the regional level is stayed. There are still elections being sought. There are still charges of unfair labor practices being brought. But it is against this background and that's why I mentioned it. I mean, the background includes those who are claiming that the president basically stripping away some of the authority of federal unions is illegal.
00;08;17;21 - 00;08;44;04
Tom Godar
After me and a few in SEIU and others have all joined in lawsuits saying, wait a minute, you're taking away authority that should be granted to unions at the federal level. There's UAW and the Teamsters and others have all criticized some of the nominees and appointments of President Trump for the board or for the nominee. Now, for the general counsel, Crystal Carey, who kind of like that.
00;08;44;04 - 00;09;10;24
Tom Godar
Gwen Wilcox and others have worked in this case, on the management side, generally speaking, in her labor law career, as many times the Biden appointees had worked on the Union side in their practice. So, quite honestly, I think all of that was fairly predictable that there's going to be, you know, those on the Union side opposing some of the Trump nominations and doing so vigorously.
00;09;10;27 - 00;09;14;13
Tom Godar
Any surprises on the sort of things we've talked about thus far?
00;09;14;13 - 00;09;40;24
Adam Doerr
You know, the surprise, I think, was that the president chose to remove the sitting member that hadn't been done before. And I think the expectation was also that if that's the move, then we're just going to stack it with Republican members. But that hasn't been done either. So leaving the board without the quorum is really the unchartered territory that we're in right now.
00;09;40;24 - 00;10;06;29
Adam Doerr
And that's the particular situation which led my curiosity to wonder if the lack of a quorum hasn't turned caused unionists to just disengage with the system, and that doesn't quite seem to be exactly true, at least not as a precipitous moment in time. Whereas one day unions were filing charges in the next day because member Wilcox was removed, they're not so sure.
00;10;06;29 - 00;10;08;07
Adam Doerr
Doesn't show that.
00;10;08;09 - 00;10;34;21
Tom Godar
Well. And let's talk a little bit about that. We could talk about sort of the general reaction of the pro management or pro labor movements to these decisions, and we could get more and more. I mean, I've got, frankly, a number of quotes and so forth from newspaper articles, but the general lay of the land isn't surprising. What you've talked about is more interesting to me, which is what's really taking place now by the union organizers at a local level.
00;10;34;21 - 00;10;57;03
Tom Godar
Are they continuing to organize? Are they continue to file petitions or they become frustrated? Or are they saying, this is the time we really ought to double down when there's uncertainty and when at least many of the pro-union decisions by the board that was dominated by Biden appointees are still somewhat in effect. Maybe we really ought to work hard at this.
00;10;57;03 - 00;11;22;21
Tom Godar
So what are you seeing? Let's start off with the unfair labor practices from the initiation of Trump's administration or the late January firing. I think it was January 28th, widely when Abruzzo lost her role as general counsel. What are we seeing in the short term and in the longer term, for filings of unfairly practices, claimed violations of the National Labor Relations Act by unions?
00;11;22;23 - 00;11;53;05
Adam Doerr
So if we look just at a moment of time, January 27th, January 28th, when Brazeau and Wilcox were removed from their roles as GC and member, respectively, I was surprised to see that the number of ULP unfair labor practice charges noticeably spiked on their last day in office, from numbers in the 30s and 40s filed per day to 70 ULP charges filed on January 27th, 2025.
00;11;53;07 - 00;11;56;18
Tom Godar
So that's like a doubling and a day essentially.
00;11;56;21 - 00;12;24;26
Adam Doerr
And to me, I wonder if that suggested that there was some inside knowledge that this was coming. And so there is a race to the board. So to speak, to get your charges filed before the board lost its quorum or lost its AGC range. After that, charges didn't drop to zero, but it did revert back to 4238, 43 a day, which is still strong if you're looking at daily averages over the last several years.
00;12;24;28 - 00;12;52;13
Adam Doerr
And if we look at just since January 28th, the 72 days or so since then, there are still almost 33 ups being filed every single day. Now that's down more than 20% over last year, where there was more than 42 filed every day. But that was a high watermark for the last several years as the Biden administration continued to see activity increase.
00;12;52;15 - 00;13;12;21
Adam Doerr
So it doesn't take long to go back to 2022 when we have very similar ULP filing numbers as we have today. So yes, there's a drop since over similar time from last year, but not historically. We're still seeing numbers very consistent with numbers across administrations.
00;13;12;29 - 00;13;19;02
Tom Godar
That's first of all, you are a curious wonkish guy. That the fact that you went I.
00;13;19;02 - 00;13;21;28
Adam Doerr
Like numbers and spreadsheets and stats.
00;13;22;00 - 00;13;42;03
Tom Godar
That you went back and I know that you talked even going back and looking at what was happening under the Obama administration for filings and so forth, and trying to find out what a sense of norms are. Adam, let's pick this up on part two of this podcast. I'm fascinated by further analysis of filings of unfair labor practices.
00;13;42;03 - 00;14;08;00
Tom Godar
And I know that you're also going to share with us some of your findings and analysis of election activity. It was taking place there. So thanks again, Adam, for joining us. Look forward to the next Labor Law Insider podcast with you. And thank you, our listeners, for joining us on part one of this analysis of trends from real union activity in the first 200 or so days of the Trump administration.
00;14;08;02 - 00;14;12;17
Tom Godar
Looking forward to talking with you again in part two.