This transcript has been auto generated
00;00;02;23 - 00;00;38;02
Tom Godar
Hello and welcome to the Husch Blackwell Labor Law Insider podcast. I’m Tom Godar your host and I’m glad that you've come along in this podcast. We welcome guests with practical expertise and experience regarding labor law issues, and they share their insights related to this ever changing area. The breadth of developments in laws related to unions and individual workers rights that we are experiencing under the Biden appointed National Labor Relations Board and led by General Counsel Jennifer Abruzzo is unprecedented.
00;00;38;20 - 00;01;05;02
Tom Godar
These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies. When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.
00;01;06;08 - 00;01;29;09
Tom Godar
It is great to be welcoming you back to the Labor Law Insider, this is Tom Godar your host. And today I’m joined by a veteran, although a younger veteran, Adam Doerr and my good friend and colleague and a veteran of labor law for many, many years, Jon Anderson. Jon practices in Wisconsin and is the leader of our Madison office recognized all over the places.
00;01;29;23 - 00;01;50;16
Tom Godar
You know one of the best lawyers in all that jazz. But Jon is been terrifically helpful to me, even in my practices. It's great to bounce ideas off of him because of his broad experience. He’s a product of the Marquette University Law School. And while I went to the UW Law School, we find a way to get along.
00;01;51;02 - 00;01;53;26
Tom Godar
Jon welcome to the Labor Law Insider podcast.
00;01;54;07 - 00;02;07;29
Jon Anderson
Thanks, Tom. It’s great to be here. I’ve put this off for so long and getting involved with this that I thought it’s time to give it a try and deal with a topic that is near and dear to my heart. Collective bargaining.
00;02;08;08 - 00;02;36;19
Tom Godar
Well, and we’re going to have Adam Doerr join us as well. Adam went to St. Louis University and practices out of our St. Louis office, but again, practices around the country. It’s not unusual for Adam to be in Chicago or Wisconsin or certainly down in Missouri and Kansas and that area as well. I’m going to ask each of you to weigh in on this, but give me a little bit of insight, Adam, either a favorite story or favorite insight from your collective bargaining over the years that you’ve been practicing?
00;02;37;01 - 00;03;04;10
Adam Doerr
Well, that’s a good question. It’s hard to pick one. They’re all so different. And I guess what I find so interesting about it is how every relationship, every situation is so different. You know, whether you’re out state negotiating an entire contract in two days without a single hitch, more being dragged into a death star of union headquarters where you have every reason to be suspicious of sabotage and whatever else.
00;03;04;12 - 00;03;11;23
Adam Doerr
So it’s just always to me interesting of each each individual contract negotiations in relationship is always interesting.
00;03;12;00 - 00;03;26;16
Tom Godar
That’s terrific. And if you haven’t already guessed, our topic today is going to be collective bargaining. I appreciate your your thoughtful response that every situation is different to an insider story that encompasses part of your career in collective bargaining.
00;03;26;29 - 00;03;56;20
Jon Anderson
Well, I think Adam’s right. Every bargain is different. Every bargain is unique in lots of respects. I think that it starts early in the process by working with whoever you’re working with your client and talking to them about the need to understand why the unions here, what they want, what their interests are, and then helping the employers understand that a collective bargaining agreement is a document of limitation.
00;03;56;20 - 00;04;16;15
Jon Anderson
And you should look to that agreement for the rights you have. You look to it for the rights you’ve given away. And that’s something that if you spend some time on that at the beginning, it will help because many people don’t understand that they want to spell out everything in the collective bargaining agreement, and that is just not the way this process should work.
00;04;16;15 - 00;04;28;09
Jon Anderson
And it creates major problems when you're the people that you're working with don’t understand the basics of the process. I’d give you a story, but it seems to me that I’ve forgotten more than I can remember at this point.
00;04;29;14 - 00;04;56;17
Tom Godar
Well, Jon, welcome, Adam. Welcome. So it’s very interesting to be talking just about a nuts and bolts subject. We’ve talked so often about updates in labor law because of board decisions, and there hasn’t been a lot of earthshaking decisions regarding the nuts and bolts of collective bargaining. We’re going to have more first year contracts we’ve ever had because unions have been organizing so effectively over the last couple of years.
00;04;56;17 - 00;05;21;23
Tom Godar
The number of organizing campaigns goes up seemingly every month. I think last I read, it was up 35% year to year in terms of new contracts. So we’re going to see that. But in a sense, collective bargaining is, as Jon said, a limitation, and it has that different than any other kind of bargaining. It’s more like a marriage that is the relationship with union than it is like buying a car.
00;05;22;09 - 00;05;48;18
Tom Godar
You can go to one car dealer or look online and choose the car that you want. But when you have a relationship with the union, it is a relationship. It’s long term. These people come to work every day. The managers come to work every day, and much of that everyday activity is reflected in bargaining. One of the questions, though, I wanted to start out with is how does an employer become obligated to bargain collectively?
00;05;48;19 - 00;05;55;27
Tom Godar
Is there anything new under the Biden board that introduces employers to unions? And Adam, why don’t you go ahead start out with that one.
00;05;56;09 - 00;06;22;22
Adam Doerr
Sure, Tom. That the traditional way the bargaining obligation arises is if the union wins an election conducted by the National Labor Relations Board, and another way is through a voluntary recognition of a union. And more recently, the Labor Board has made that easier to do under its C-Max decision, where an employer does not have to explicitly say, Yes, we recognize you voluntarily.
00;06;23;11 - 00;06;40;24
Adam Doerr
Instead, a company's mere inaction over the course of two weeks following the demand for recognition based on majority support. That inaction alone will deem the employer to voluntarily recognize that union and have every same obligation to bargain with it thereafter.
00;06;41;01 - 00;07;07;18
Tom Godar
A little bit different. And also we have the opportunity potentially again under C-Max, that if an employer engages in unfair labor practices or practices during the lead up to an election, even if the employees don't choose to vote by a majority or a union, the board is more likely today to impose that obligation than they were a year ago, and we'll see how likely they are over time.
00;07;07;18 - 00;07;20;25
Tom Godar
But right now, it's a it's a pretty substantial threat. Hey, Jon, one of the things that I was taught you were taught we were all taught is that you have to bargain in good faith with the union. What the heck does that mean to bargain in good faith?
00;07;21;07 - 00;07;49;05
Jon Anderson
I think it means sitting down with the union, the bargaining committees and talking about wages, hours and conditions of employment with the intention of reaching an agreement. The law is very clear that we don't have to reach an agreement. We don't have to make a concession if we don't want to. But it means sitting down in good faith, discussing issues that are brought to the table, issues that you have an obligation to bargain over mandatory, or issues that you can bargain over.
00;07;49;05 - 00;08;09;20
Jon Anderson
But you don't have to permissive and discussing what the terms will be of the document that we're working on, this collective bargaining agreement. How are we going to define our relationship in that agreement and again, without any obligation to concede anything looking for common ground with the intention of reaching an agreement?
00;08;10;08 - 00;08;34;04
Tom Godar
You know, it was pretty typical if I or any of us were asked to step into a mature bargaining relationship, to take a look at the collective bargaining agreement before we go into the renewal period, maybe that's three months before the contract expired and we look for mandatory, permissive and potentially illegal or improper subjects of bargaining. And give me a real quick primer.
00;08;34;04 - 00;08;38;10
Tom Godar
What would be a permissive subject or an illegal subject in a contract?
00;08;38;23 - 00;09;01;06
Adam Doerr
An illegal subject would be an improper waiver of future rights, perhaps that an employee is just not allowed to waive or a union can't waive on their behalf. For example, if I hope this would never happen. But if a union asked the employer, if the employer asked the union to let the employer discriminate against a certain class of employees that would be unlawful.
00;09;01;27 - 00;09;22;18
Adam Doerr
There are certain other provisions that would be unlawful in certain contexts. Cargo provisions and other provisions we could talk about permissive subjects are those that the employees and employers are allowed to address but don't have to because they don't pertain to a material. Material term of their employment.
00;09;23;05 - 00;09;32;14
Tom Godar
Maybe how you're going to go and interview an employee for an employment and determining the terms of initiating that relationship of employment.
00;09;32;24 - 00;10;00;26
Jon Anderson
Yeah, I think you've given a good one time before somebody is employed, the process that you use to select people to come into the plant. That's all permissive. You don't have to bargain over that. Once they're employed, then obviously the terms and conditions have to be bargained. I was going to give a highway crew size. You're working a job construction project and the union says you're going to have five people doing this job and you believe it's only three and there's no safety issues involved.
00;10;01;03 - 00;10;05;29
Jon Anderson
The quantity of labor that you use is typically going to be a management decision. So it's a permissive decision.
00;10;06;11 - 00;10;41;25
Tom Godar
As we walk towards these, it's always been described that you have to bargain over wages, hours and working conditions. The wages theme straightforward, but it means anything that has an economic impact upon the employee and the hours seem straightforward. But it has to do with overtime. It has to do with the assignment, it has to do with a number of things and seniority being engaged in whether or not that person gets those hours and finally working conditions, the sort of broad catchall that any sort of the relationship between the employer and the employees that can affect the employee's working conditions.
00;10;42;20 - 00;11;07;23
Tom Godar
I just set that out as sort of set it aside. That's what we're there to bargain about. But before you ever get to the bargaining table, you meet with the employer, whether it's the first time you've engaged with that employer or the 15th time that you're bargaining a two or three year contract over a career, what kind of preparation do you normally ask the employer to help you engage and before you ever find yourself at the bargaining table?
00;11;08;02 - 00;11;12;18
Tom Godar
Joe What kind of things do you want to talk about with the employer to set the stage for bargaining?
00;11;12;25 - 00;11;36;19
Jon Anderson
I want to review what's happened in previous negotiations, especially if I've not been there. I want to know how things gone, what are the issues? I want to review the experience that occurred under the current collective bargaining agreement. If it's a success or situation, I want the employer to to work with me in collecting data internally. Chronology of wages over the last ten years.
00;11;36;19 - 00;12;01;10
Jon Anderson
Let's see how they people have progressed. I want to know what the key economic factors are going forward. I want the age and service of the bargaining unit. You know, the bargaining unit tends to be older than issues relating to retirement and exit strategies become more important. I want to see any new policies or rules that have been adopted over the course of the existing collective bargaining agreement.
00;12;01;10 - 00;12;28;10
Jon Anderson
Just so I'm familiar with them. I also think that we should be getting information on external data, CPI, comparable wages paid at competitors, for example, without violating any antitrust rules. But I think we need to know what the market is for this particular bargaining unit and the jobs that are in it and going forward. And then, you know, you want to talk about what's your objective, what are you trying to do?
00;12;28;10 - 00;12;55;03
Jon Anderson
What's the goal here? What do you want and what's the endgame so that we can determine how we get there. The steps of strategy are certainly related to the endgame. And when do you want this contract done and what are you willing to do to get it resolved? And obviously, at this stage we have no idea what the union's going to propose, although we do probably have some idea based on grievances that were filed and shop talk and things like that.
00;12;55;03 - 00;13;17;19
Jon Anderson
But ultimately, it's it's a matter of collecting data and preparation information and collective bargaining is power. And so get as much information as you can. I've never had too much. I've always had enough. And it's really important. And then, you know, as you talk about bargaining, you want to make sure that you're keeping people informed about the process and how it's going.
00;13;17;19 - 00;13;49;29
Jon Anderson
And I typically write a memo after each bargaining session. This is just me that goes out to all employees, including employees in the bargaining unit, telling them what's happened at the table. Because I find that the union fails to do that and I want to be known as the good source of reliable information. And when it gets to the point where if we have to go directly to the employees after the bargaining committee tells us, no, I want them to know that we're providing them with good, solid information.
00;13;50;16 - 00;14;16;15
Tom Godar
And one of the things that you you alluded to, and I guess I'll let Adam sort of work with this, is you got to know how far the employer's willing to go, what's really important, let's call it what it is. Are you willing to take a strike on this issue? Do you need to have a contract that actually cost less than the last contract, which might be so provocative that union might have the employees say yes to a strike vote?
00;14;16;15 - 00;14;32;22
Tom Godar
Sometimes they have a strike vote before they've ever seen your first proposal. But leaving that aside, when you get engaged in these discussions, Adam, you talk about strikes. Do you recommend or do you insist that there's a strike plan or only if it seems to be a provocative potential bargaining time?
00;14;33;07 - 00;15;03;06
Adam Doerr
I think it's always important to be aware of the risk of a strike. I don't think that there's always the need to have robust strike preparations in place before going into contract negotiation. Sometimes we can reasonably anticipate that it's going to go relatively smoothly. There's not a real risk of a strike, whereas sometimes you know that there is going to be inevitably that threat come up and it's a realistic threat whenever it's made.
00;15;03;06 - 00;15;33;09
Adam Doerr
So I think it's very important to have those conversations, as Jon was talking about with the client, to understand what his priorities are. We've seen a very wild four or five years of collective bargaining negotiations, including times where employers recognize they've fallen behind competitive wage scales. And we confidentially going in know that we need to maybe be putting five or 6% on the first year to keep up and to hire and retain.
00;15;33;18 - 00;15;55;11
Adam Doerr
And so sometimes we every time we have to be cognizant of what the underlying goal is. Is it saving money, is helping hiring retention? Is it avoiding a strike at all costs or, you know, whatever the case may be, we need to be approaching negotiations with that in mind. And then armed with all the preparation that Jon was talking about.
00;15;55;11 - 00;16;07;20
Tom Godar
Jon, we had strike power, didn't we, two years ago. Are we more cognizant of the potential of strikes in 2024 as that year reaches its midpoint than we were in the middle of 2022?
00;16;07;26 - 00;16;30;12
Jon Anderson
I think we are. I think that there's nothing like a good pandemic to empower a union. And I think that I've kind of moved the dial a little bit up in terms of talking to my client about this. Are you prepared to take a strike? Are you do you know if they're producing things? Have you got some stuff stockpiled so that we can continue to supply our customers during this time?
00;16;30;24 - 00;16;51;19
Jon Anderson
But I think unions are gaining strength and popularity. And certainly in health care we're seeing some more strike activity than we have in recent years in other industries. It's not an issue at all, but I still think you have to have the discussion and check the box that you've had that discussion because you know, and it doesn't have to be are you ready for a strike?
00;16;51;28 - 00;17;05;15
Jon Anderson
It's like, you know, how are you going to keep this place running if they decide to slow down for a bit? And I think that's important. And having that discussion is is critical as a part of a planning process.
00;17;05;24 - 00;17;36;11
Tom Godar
I've discovered two things. One, the first time I'm in bargaining with the union, even if it's a mature relationship, I have to be particular, really thoughtful about how I and my committee are going to be communicating. And secondly, when I've had first contract, fortunately it doesn't happen very often. We're pretty fortunate to work with clients that even when there's a union organizing campaign on staff and quite honestly, almost always it's not successful, but occasionally it is.
00;17;36;11 - 00;17;55;18
Tom Godar
And or sometimes we're called in when someone else's help, but not successfully to keep the union at bay. Talk to me a little bit about that first meeting, a mature relationship, your first time in a meeting or maybe with a group that has never had union representation before. Don't you kick it off, Jon? You can comment as well.
00;17;55;26 - 00;18;27;21
Adam Doerr
It's always important to me to establish a professional rapport. You know, we will always have disagreements along the way. But for me, it's important to establish relationships if it's an established relationship in terms of the employer and the union, I want to make sure I'm fostering a productive, trusting relationship with the union representatives to. More often than not, employers appreciate that approach in mitigating risks of future disruptions and disputes.
00;18;28;04 - 00;18;51;14
Adam Doerr
Sometimes an existing relationship is already existing, hostile and so you know that you're already having to walk a little bit of a tightrope and manage some or iron out some wrinkles. But my personal approach, more often than not is one I'm trying to foster a productive, relatively trusting relationship, even though I know that we'll have disagreements and they won't always appreciate or agree with my perspective.
00;18;51;25 - 00;19;08;18
Tom Godar
Well, it's certainly we've all done this with there's going to be somebody at the table that we haven't worked with before. We're going to go reach out to our colleagues. We're going to get a little bit of a book on what this person from the past me is like or what this person from the UAW or whatever it might be.
00;19;08;25 - 00;19;22;23
Tom Godar
And we might get reports that are not going to tell us everything, but it's going to be a little bit helpful. How about you, Jon? Any thoughts about going into particularly with a new relationship, maybe an employer that's never had a union, but how do you approach that first meeting?
00;19;22;23 - 00;19;43;25
Jon Anderson
Well, I think a new relationship is first, you have to educate your client as to what to expect and how you believe the bargain is most efficient. I want to be the spokesperson. I don’t want anyone else to talk but me. I want you know, unless we've prearranged it in advance and talked about it in a caucus, I think that's pretty important.
00;19;44;11 - 00;20;25;29
Jon Anderson
But I approach collective bargaining. I try to build a relationship that Adams discussed here, a trusting relationship, knowing that we're not going to agree on everything. But I don't want to be viewed in any light other than straightforward and businesslike and professional. And sometimes it's hard, but you want to be professional. So I especially new negotiations with proposed ground rules to set the expectations so everybody knows where we're coming from and that we understand what it means to sit down at the table and how long the sessions are going to be and where they're going to be and who's going to take notes or how we're going to know, take notes, talk about press releases,
00;20;25;29 - 00;20;52;09
Jon Anderson
talk about tentative agreement, authority. As you develop that relationship, those ground rules become less important because you know what you’re dealing with. And when you're in that second contract. But the first contract, there’s a bit of unknown on and to the extent that you can try to address the unknown with proven rules that help to form that relationship, you’re better off.
00;20;52;26 - 00;21;15;00
Tom Godar
It has been terrific, Jon and Adam, to have you with us to offer practical tips and insights into collective bargaining from the pre bargaining preparations with employers all the way through to well, how and when do you make strike preparations and how important is an issue to you? There’s much more to cover. We could talk about it in bargaining in a joint session.
00;21;15;00 - 00;21;37;09
Tom Godar
We can talk about bargaining after impasse has been reached. And then you have to reopen the bargaining. But the employers, gosh darn, not willing to give an inch. Maybe they’re just going to restrict where the chips sit on the table because otherwise every time you bargain, at least that’s been my experience. They come back after having voted down the offer to say I want more, but those will have to wait for another day.
00;21;37;09 - 00;21;56;01
Tom Godar
This has been really, really fun and I hope that our clients, those who are seasoned bargainers, picked up a tip or three and those who are new to the bargaining table are going from. That's what goes on inside that smoke filled room, or at least it used to be smoke filled. Thanks again for joining us at the Labor Law Insider.
00;21;56;01 - 00;22;02;07
Tom Godar
And thanks again, Jon and Adam for your fantastic participation. You all take care.