This transcript has been auto generated
00;00;02;00 - 00;00;24;05
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, 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 Blackwel that elections have consequences.
00;00;24;24 - 00;00;49;18
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;08;08
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;08;08 - 00;01;31;05
Tom Godar
It is great to have you join us once again with the Labor Law Insider. I'm your host, Tom Godar, and I am joined by my colleagues and friends who have been labor law insider participants before and they're both a veteran. So I'm really happy to have Rufino Gaytán and Tracy Wolf join us from two of our Texas offices.
00;01;31;16 - 00;01;50;29
Tom Godar
Tracy is in Dallas and like so many of my colleagues and I'm proud to say that she is recognized by best lawyers and all sorts of those vanity lists. But, you know, some of us are in it, and Tracy is one of those who do. And I just learned recently that she's also the adjunct professor at Southern Methodist University in the Dedman School of Law.
00;01;50;29 - 00;01;59;25
Tom Godar
And so it's great to have people like Tracy on our team who frankly are really much more thoughtful than I am and analytical. Welcome, Tracy. I'm glad to have you back in the Labor Law insider.
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Tracy Wolf
Thank you, Tom. It's good to be here.
00;02;02;05 - 00;02;24;12
Tom Godar
And Rufino Gaytán from our Houston office is joining us. He, too, is recognized as Texas super lawyers and best lawyers, ones to watch and so forth and so on. And I've been able to watch him for several years. And he wisely left the coldness of Wisconsin a few years ago to practice down in Texas. But we get him back here once in a while and we get him on air pretty frequently.
00;02;24;12 - 00;02;29;16
Tom Godar
And that's a delight for me and for our Labor Law Insider listeners. Thanks for joining us again, Rufino.
00;02;29;16 - 00;02;32;24
Rufino Gaytán
Yeah, thanks for having me back to. Appreciate it.
00;02;33;03 - 00;02;54;20
Tom Godar
You know, I've often thought that our audience would actually have more fun listening to the talk we have before, the talk that we record as we try to figure out what in the world is going on in labor law, does anybody really know what time it is? Does anybody really care? Well, that's an old Chicago song, but for us, I think the answer is people do care, but does anybody really know what's going on?
00;02;54;20 - 00;03;14;08
Tom Godar
We're going to try to walk into a thicket of saying what we think we know and what we think we can predict with some level of fairness that might happen under the Trump administration. I don't know how many times we've said it. I won't even sure where the original quote goes to. I was going to look it up, but didn't.
00;03;14;08 - 00;03;38;19
Tom Godar
But elections have consequences. I've heard that in Wisconsin, which is a purple state, and they go back and forth a lot at the state and federal level that elections do have consequences. And what we're going to look at is labor law changes under the Trump administration. Some of you might have heard or seen it when I just recently, as we were able to put together a webinar on this topic and much of it is going to look at some of the same issues.
00;03;39;02 - 00;04;04;12
Tom Godar
But labor law changes under the Trump administration. Honestly, we don't know. Could they be as great as they were under the Biden administration? Could be. But that was incredible to most of us who are from the management side. So today we're going to try to look a little bit into what happened in the Biden administration that era. So where did it go and where could it return to and maybe even grow differently?
00;04;04;21 - 00;04;09;18
Tom Godar
But why don't you tell us a little bit, Rufino, about the Biden era labor law and changes?
00;04;10;03 - 00;04;52;14
Rufino Gaytán
Yes. So there were some major changes that happened during the Biden administration, you know, the first of which took place on day one of his administration, which was he fired then general counsel Peter Robb day one and eventually nominated, and she was confirmed, Jennifer Abruzzo, to that role during that interim period where there was an acting GC, the acting GC, Peter Sonora began to very aggressively issue guidance memoranda that really made things easier for unions to unionize, easier for employees to get unfair labor practice findings, and just the more difficult or challenging landscape for employers.
00;04;52;23 - 00;05;31;23
Rufino Gaytán
Of course, as time went on, the then President Biden also nominated and got confirmation for a majority Democratic board, which then began the process of slowly overturning prior precedent, some of it from the first Trump administration and some of it even much older than that. That also made the landscape more challenging for employers. Some of those things included a decision in which the board ruled that in scenarios where there might be some conflicting mandates from Title VII or the NLRA, the
00;05;31;23 - 00;05;45;14
Rufino Gaytán
NLRA's protections for concerted activity would essentially trump some of those other concerns for, you know, harassment based on race or things of that nature, which of course, are just things that most employers found
00;05;45;24 - 00;05;56;07
Rufino Gaytán
a little bit appalling. And a lot of it was challenging for sure, because you do feel like you're stuck between a rock and a hard place. Which which law do I choose to violate here was sort of the sentiment.
00;05;56;25 - 00;06;21;26
Tom Godar
You know, versus, you know, as you talk about this, I remember that we this is our 51st podcast, I believe. And so for 49 of them, we talked about those kinds of changes and how confusing it might be for those of us who give counsel and those of us who seek counsel to determine whether or not picket line conduct where someone shouted out a racial epithet or in the lunchroom.
00;06;22;04 - 00;06;54;07
Tom Godar
But when it's sort of in the intertwining of protected, concerted activity, which law wins? That was confusing. And as you said, some of these went beyond and what had just been sort of Trump era changes in the labor law scene from President Obama before him. They actually took away 40 or 50 years of precedent, some cases like well protected speech for employers under the idea that employers could talk to their employees, that changed a bit.
00;06;54;23 - 00;07;08;18
Tom Godar
So those are pretty interesting changes as well. Anything else that you'd like to mention, Tracy, about some of the ways in which the world was changing under the Biden administration and how it might suggest some changes that we'll look for under the Trump administration?
00;07;08;23 - 00;07;25;21
Tracy Wolf
Well, the difference is, back during the Biden administration, as Rufino pointed out, we saw action from day one. And right now we're seeing a lot of the same things. I think it's a little bit confusing trying to figure out and predict what direction it's going to go in and that's one of the things that we're doing here at Blackwell.
00;07;25;26 - 00;07;47;02
Tracy Wolf
I think a lot of us probably the first thing we do every day is get up and try to figure out, get a summary of what happened the day prior. And I if you water it down, it really kind of seems as though under the Biden administration, there were a lot of pro-union changes and a lot of points at which I think employers were thinking, well, where do we go from here?
00;07;47;11 - 00;07;53;22
Tracy Wolf
It's confusing to see some well, not confusing. I mean, we've seen some immediate action from the Trump administration.
00;07;54;11 - 00;08;16;09
Tom Godar
You know, not too long ago in our labor law insider we had an assistant regional director say that the changes were not pro employee they were pro-union, as you just suggested, Tracy, and that's not what the classic National Labor Relations Board was about. It wasn't about protecting unions. It was about protecting employees. It was fascinating to hear somebody who was truly an insider.
00;08;16;09 - 00;08;39;07
Tom Godar
Sure that. But those pro-union changes favored faster elections. They favored the prohibition, as I alluded to, of captive audience speeches. They offered bargaining orders, bargaining orders without elections. Crazy stuff. You know, for most of us who if I practice more than 40 years, that was a incredibly rare day. Whenever that happened, we'd all read that case because was so unusual.
00;08;39;22 - 00;09;00;26
Tom Godar
They expanded remedies for employees. And yes, there are expansive remedies already, but more so than we'd ever seen. And in those changes, Rufino, there were changes in the way that unions were able to successfully organize rights. You talk to us a little bit about some of the ways in which that consequence revealed itself and the number of new organized workers.
00;09;00;26 - 00;09;01;10
Tom Godar
And so.
00;09;01;26 - 00;09;35;11
Rufino Gaytán
Yeah, so generally, you know, it's always been the case that unions have an advantage when it comes to organizing workers. They, you know, do a lot of planning on the front end. There's a lot of closed door meetings that happen with employees where the employer is is generally unaware that there is an organizing campaign going on, you know, but with the increase in the filing of petitions, certainly during the Biden years, that also translated in with the additional protections, of course, that were being put in place by the general counsel and the board.
00;09;35;26 - 00;10;05;29
Rufino Gaytán
There was a pretty significant increase in the win rate for unions. Right. So we did go in 2017 from a union win rate that was, I believe, in the high 60%, 67% or so in terms of election petitions in 2024, you know, the win rate was approximately 80%. So there was a very measurable impact of these policy priorities and decisions that were being implemented at the NLRB.
00;10;06;24 - 00;10;28;19
Rufino Gaytán
That said, you know, I think we are probably already at the front end of what is going to be a shift that's maybe more pro employer to some of the new priorities of the new administration is starting to take shape with William Cowen issuing his first general counsel memoranda on Valentine's Day of all days.
00;10;28;19 - 00;10;31;01
Tom Godar
Yeah, what a Valentine's gift. Yeah, showing love.
00;10;32;01 - 00;11;15;22
Rufino Gaytán
Is showing love to the employer community for sure. So the memo has a very long list of prior general counsel memoranda that have been rescinded, and some of those highlights include rescission of a prior memo that address concerns on electronic monitoring by employers. So things like GPS and other productivity measurement tools that employers tend to use. He rescinded a memo that saw expanded remedies for employees by regional directors, which, as you and I have discussed before, time that requirement to seek expanded remedies or full remedies really made it difficult for employers and employees or unions to seek settlement opportunities.
00;11;15;22 - 00;11;23;01
Rufino Gaytán
Because if an employer's faced with, you know, you have to pay us 100 cents on the dollar that we're alleging here.
00;11;23;13 - 00;11;26;11
Tom Godar
Of expanded remedies. Of expanded remedies. Yeah.
00;11;26;13 - 00;11;59;18
Rufino Gaytán
Right. And even expanded remedies, which included things like credit monitoring services or credit repair. You know, the allegation being that when you unlawfully fired this employee, the employee ended up missing payments on their mortgage or their car payment. And so those were really drastic changes in the way the Regents operated. So I think it took a little longer than I think some of us expected, but we're starting to see some of the Labor policy priorities take shape with the issuance of this new GSE memo on Valentine's Day.
00;12;00;02 - 00;12;34;27
Tom Godar
And it's going to be interesting. Everything I read about political spending and political capital of unions is directed at the Democratic Party. And I think the last time I looked in 2021, cycle 21, 22 and non-presidential cycle unions directly were identified as having spent $1.6 billion towards election processes. We'll see that even in the state of Wisconsin, when we get a supreme Court case coming up, which could affect the way in which municipal and state employees are able to organize too much insider stuff.
00;12;34;27 - 00;12;59;28
Tom Godar
But promise me you're going to get a lot of union spending here. But the National Right to Work Committee called it $25 billion worth of activity using their office in their personnel to lobby and to get engaged in politics. Yet the result wasn't what most of the unions would like. But it does bring us to that place of you know, the president being a little bit different than some of our presidents.
00;12;59;28 - 00;13;32;26
Tom Godar
And while we might think of Cowan's appointment and the change in some of these memoranda as telling us that President Trump version 2.0 is going to be highly management oriented, he's also taken some steps that seemed a little bit at least more ambiguous than full on. I'll start with one, which was that he had the president of one of the country's largest unions give a plenary speak at 7 p.m. at the Republican convention here in Milwaukee in August.
00;13;33;08 - 00;13;58;01
Tom Godar
And that didn't seem so Republican traditional stuff to me. But then Trump isn't a traditional Republican president. Have we seen, Tracy, any other signs that President Trump may not be quite as the most union friendly president ever? Biden The most management friendly president ever. Trump made any other statements or any other steps that would temper our expectations.
00;13;58;17 - 00;14;23;07
Tracy Wolf
Yeah, absolutely. One of the things is, I mean, look at the nomination of Lori Chavez to remain or he's bringing people in who have labor experience, who have worked from the perspective of supporting American workers and growing wages, improving working conditions. And we're hearing a lot of topics and a lot of comments on these sort of issues being a priority for the Trump administration.
00;14;23;14 - 00;14;46;15
Tracy Wolf
I mean, some of the wording that we're hearing directly from the president is, I would say, very, very pro-union and very aimed towards workers. So we hear that. But then on the other hand, we're seeing the changes at the NLRB. And I think that is we're kind of, at least from my perspective, that's kind of giving a not entirely a clear message.
00;14;46;22 - 00;15;09;15
Tracy Wolf
And that leads to ambiguity and uncertainty. As, Tom, as you say, those who provide legal advice and for those who receive it, I'm trying to anticipate how that's going to play into business operations and future negotiations. It's going to have an impact, but it's hard to know exactly how to go about addressing it. And I don't think any of us have a crystal ball.
00;15;09;24 - 00;15;38;17
Tom Godar
Well, one of the things we do know is that very little has changed legislatively regarding labor laws since, what, 1947 and before that 35. So we're not likely to see a whole lot of legislative changes if history is any indicator of future events. Therefore, it's the people that are appointed and their willingness to put their fingers on the scales, whether it's at the NLRB general counsel level or otherwise.
00;15;38;28 - 00;16;01;24
Tom Godar
So we know that some of the right people are moving in and out, being the right side of each president's agenda. Tell us a little bit about some of these right people. People moves. Rufino, you already talked about Cowen being appointed right now as the general counsel acting. And we haven't yet, I don't believe heard insider rumors as to who might become the GC.
00;16;01;24 - 00;16;07;03
Tom Godar
But tell us a little bit about Bill Cowen and tell us a little bit about some of the other changes that we're seeing, Rufino.
00;16;07;16 - 00;16;31;27
Rufino Gaytán
Yes, so Bill Cowen has spent a large part of his professional career at the NLRB. He does have some experience in private practice as well. But the latest role that he held prior to being the acting general counsel was as the regional director for Region 21, which is one of the regions that covers part of L.A. and the broader L.A. area out in California.
00;16;31;27 - 00;17;00;18
Rufino Gaytán
He also spent a little bit less than a year as an actual board member. That was through a recess appointment during the George W Bush administration, and he's had other roles within the board as well. But in addition to that, you know, some of the personnel changes that President Trump has already gone through is in addition to firing Jennifer Abruzzo in January, he also fired Gwynne Wilcox, which is an unprecedented move.
00;17;00;18 - 00;17;36;05
Rufino Gaytán
So we expected sort of a tit for tat. You know, Biden fired his general counsel. And so we expected President Trump to fire Biden's general counsel. We did not expect I don't think anybody's bingo card had, you know, firing in the NLRB member. And what's interesting about that termination is that generally board members are subject to removal only for cause essentially in terminating Gwynne Wilcox, the president did not rely on that part of the statute.
00;17;36;19 - 00;18;02;16
Rufino Gaytán
He's essentially, I believe, setting up a challenge for, you know, to challenge the constitutionality or the structure of the NLRB. And in the termination letter that was sent to Gwynne Wilcox, he makes a reference to the executive's authority to have policymakers in these federal agencies that are driving the executive's agenda. Right. So we'll see. It's an interesting time.
00;18;02;16 - 00;18;33;17
Rufino Gaytán
There is. The other factor that plays into my speculation on that point is there are currently now three open NLRB seats. All the president needs to do is nominate to Republican members who can then start to set his agenda as well. As far as we know, there have been no publicly announced nomination, so we don't know if he's considering actually nominating people to fill those seats.
00;18;33;29 - 00;19;06;18
Rufino Gaytán
The longer the board goes without a quorum with just two members currently means that the board can't start to reverse some of those Biden era decisions, too. So there's there's concerns there for employers. Right. Having a board without a quorum is not necessarily good because we can start changing law for those of us who advocate for employers. And so, again, to Tracy's point, it just, I think breeds uncertainty and it makes it difficult to try to advise clients as to, you know, what the best strategies might be going forward.
00;19;06;24 - 00;19;11;19
Tracy Wolf
Miss Wilcox filed a lawsuit. Right. She is challenging it.
00;19;12;10 - 00;19;35;25
Rufino Gaytán
She has she is filing a lawsuit claiming that the president lacks the authority to remove her from her term. So, again, you know, I don't know if this was an intentional doing on the part of the administration where they're trying to get, you know, the issue of the constitutionality of the board before the judicial system. But it seems like they're going to get their opportunity.
00;19;35;25 - 00;19;45;07
Rufino Gaytán
So, again, I think we're in for a very interesting ride on that particular litigation, and it'll be fun to kind of see it play out, play through the court system.
00;19;45;16 - 00;20;11;03
Tom Godar
Ruffino that is a great place for us to stop today. That's sort of what we've seen. And now what we're going to see, I think, is where we're coming up next. And I'm going to save that part of our conversation for part two of this discussion on labor law changes that we might anticipate under the Trump administration. So Rufino, Tracy, thank you so much for joining us on this Labor Law Insider podcast.
00;20;11;15 - 00;20;25;27
Tom Godar
Then in a week or so, our friends and our clients can join us for the second part of our predictions about the Trump administration and where labor law is going. Thank you so much. And we'll talk to you soon.