This transcript is 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;06;22
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;27 - 00;01;29;25
Tom Godar
And welcome once again to the Labor Law Insider. We're going to discuss remedies once again, just part two of our discussion. I hope you had a chance to listen to part one. And we're joined by Terry Potter, Megann McManus and Trecia Moore as our labor law insiders. It's a delight to have them. Terry works with Husch Blackwell's St. Louis office.
00;01;29;25 - 00;01;55;15
Tom Godar
And before that was a board attorney. Megann McManus was the H.R. Director for a union organization. So she brings both inside counsel experience as well as a special insight into how unions work. And Trecia Moore was a longtime investigator with the National Labor Relations Board. Each of them bring something unique to the table. And welcome once again all.
00;01;55;24 - 00;02;29;04
Tom Godar
We're going to begin this part two of our discussion with Terry Potter, who's commenting on how the National Labor Relations Board new will look at remedies is going to affect so much of our employers review of their own activities at the workplace. Terry, take it away.
Terry Potter
Yes, well, the bottom line is this. The region is acting as counsel for the general counsel in the prosecution of these cases and therefore is under the direction of the general counsel, almost all her memos and guidelines.
00;02;29;25 - 00;03;01;13
Terry Potter
The administrative law judge is not under the GC and therefore there's not a duty of the ALJ to follow those memos. And in fact, on a number of these remedies I've got, the ALJ is involved early on and settled cases where some of these I find more outrageous remedial provisions are are found by the judge to be improper.
00;03;02;00 - 00;03;26;05
Terry Potter
And they've even I've gotten unilateral settlements I've gotten bilaterals and and and exclude some not all but some of these more maddening remedies, such as sending apology letter. I've gotten that eliminated in particular. I mean, that's not what the NLRB or government should be doing. And indeed, you know, that the Court of Appeals have agreed with that, too.
00;03;26;15 - 00;03;46;25
Terry Potter
So I think you can still do that. You know, get the ALJ involved early. And if you want to settle the case and it will make your life a lot easier.
Tom Godar
That’s helpful. And it's good advice that goes along with Trecia's statement that you really do need folks who've been around the block on this a few times still chance in this area.
00;03;47;06 - 00;04;11;06
Tom Godar
They oftentimes are surprisingly excellent, but there's just some nuances that it's really hard to to own a, by the way. Trecia, you mentioned the Cemex case and the case that basically says if you're engaged and abbreviate it, you're engaged in an unfair labor practice during the course of a of an election campaign. That may be enough to impose a bargaining order on you.
00;04;11;21 - 00;04;35;27
Tom Godar
And that used to be a very, very, very unusual order saying that, no, we want the employees to have a right to vote on this. We don't want to impose a union relationship. But that imposition is much more likely given that Cemex case. So tell us what's really going on posts and anyway, if you can jump in first if you want in terms of this imposition of remedy, if you will, for a ULP.
00;04;35;27 - 00;04;53;17
Tom Godar
And it's not just, you know, whether it's draconian or otherwise, the sort of may call remedies, but it really is related to a union participating on behalf of all of the employees, even those who would not have chosen to vote for a union in the first place. Who’d like to kick off with that sort of discussion on that newish remedy.
00;04;53;29 - 00;05;27;29
Megan McManus
Yeah. Trecia, I'm so glad you segued really nicely into Cemex, which is a remedies case. So in Cemex there was an election where the union lost and LP's were filed and essentially the board found that those LP's were so bad that it was an influenced the election process to such an extent that a fair election wasn't possible.
00;05;27;29 - 00;06;15;22
Megan McManus
So the board ordered bargaining, meaning union lost, but that no matter union wins and the union is the bargaining representative for that particular unit of employees and the employer is obligated to bargain with that union. So that was the remedy issued in that case. The board, you know, went further to say that we're going to overrule the 30 year precedent that said that, you know, an employer could basically could had the right to insist on an election.
00;06;16;08 - 00;06;42;24
Megan McManus
It could refuse an employee's demonstration of majority status. They could say, hey, we want an election no matter you. You're showing us these signatures. You're showing us these cards. We we were refusing to accept that evidence. We want an election, and that's not a ULP, the board said. We're overruling that case and we have a new framework to announce.
00;06;43;24 - 00;07;12;28
Megan McManus
And essentially it is the new remedy for when an employer is presented with the union cards, the representatives of the union, the employees say their employer. Here is our evidence of union support, whether it's, you know, a petition signed by 30% of the employees at union cards. The employer can either say, okay, great, we want to recognize you.
00;07;13;16 - 00;07;45;23
Megan McManus
The employer can file its own petition for an LRB election, but they got a very short window of time to do that. The clock is ticking. You got a two week window and this could be a situation where you have a hapless first line supervisor who gets those union cards for that petition and has no idea what it is, doesn't know the first thing about never saw a union card.
00;07;45;23 - 00;07;46;05
Megan McManus
Right.
00;07;46;25 - 00;08;10;29
Tom Godar
So there can be a remedy or failure to react quickly enough. And in my world, that could be a double whammy because joint employer status has also been amped up under this board and this general counsel. So there could be two different what we would think of as employers for employees who are temporarily engaged supplement all staff and so forth.
00;08;11;08 - 00;08;32;28
Tom Godar
And suddenly a company that really just assigns people to another workplace, they might have a union as well, and they might never have seen the petition, or at least they're going to argue that they should have seen it beforehand. But right now, both of those employers might have a single union representing all of the employees working at F Me Steel or whatever it might be, right?
00;08;33;06 - 00;09;20;17
Megan McManus
Yeah. Oh, I'm so glad you brought up that scenario, because that's that's not unheard of, right? I mean, it's not employer provides employees. Their employees work on off site at another facility, some other place. And those employees they have presented to the supervisor that, again, is the employer's supervisor, that they want to be represented by this union. And also maybe that union that's organizing these employees thinks that the onsite vendor is also an employer and you have two bargaining orders.
00;09;21;02 - 00;09;41;10
Megan McManus
You have employer is being called to the table to be forced to bargain because they didn't know what was happening off site. And also suddenly you're in this relationship, this joint employer relationship, and both of you are required to be at the table bargaining with this bargaining unit that you didn't even know existed.
00;09;42;02 - 00;10;04;00
Tom Godar
And unfortunately, even with sophisticated organizations that have 50 or 20 offices around the country, if they haven't trained people to be ready to accept or not accept this, when it was just the other day that one of our clients came and said and we didn't even know this happened to be an EEOC petition or charge that came in and they had reacted to it.
00;10;04;00 - 00;10;12;20
Tom Godar
We were able to go and convince the EEOC to help, to allow us to put in a position statement anyhow. But in the board case they would have just had a union.
00;10;13;05 - 00;10;52;18
Trecia Moore
Yeah. I cannot stress the importance to listeners, clients and non clients if employees are complaining, even if you are not hearing the word union, if employees have complaints, listen to them. If you even have an itch that employees may be interested in third party representation, please call your Labor attorney because I always tell clients labor law is not intuitive and actually throw your intuition out the window because it's probably going to be about 99% wrong.
00;10;52;28 - 00;11;12;29
Trecia Moore
And what you think is the right thing to do or say really isn't. And the only reason we know is because we've been doing this for decades. But it's not employment law. This is labor law. And it's it's different. And it is worth the investment to have us come in and coach and train and teach about the law.
00;11;12;29 - 00;11;25;09
Trecia Moore
So you are not faced with Labor board charges and if you are, then we are able to zealously defend those and, you know, get you the best quote unquote remedy possible.
00;11;25;09 - 00;11;49;27
Tom Godar
Well, in a sense, we've talked about procedural remedies. That issue. You you didn't go and file your own petition when somebody came in with cards or whatever kind of piece. There's the other part, too, which is that a pretty common variety of a will be the kind that would never have resulted in a bargaining order. As Megann suggested, it now results in a bargaining order, even if you did engage in the whole election process.
00;11;49;27 - 00;12;21;01
Tom Godar
And that's that's quite a change, isn't it? Yeah, it really is. I mean, this whole area that's developed in the last year, they really since last August, I mean, it's it's really been a quick turnaround with this new approach regarding bargaining and it's way beyond anything we've ever experienced in the past. I mean, the worst case scenario in the past was having a a non majority bargaining order, which most of the courts turned away from, didn't enforce.
00;12;21;17 - 00;12;48;20
Tom Godar
Now we have something that's much worse. It's if there is a singular, singular approach or practice, at least in theory, that can result in the employer having a bargaining obligation with a group of employees with minimal effort and probably little interest among the employees. I know I was involved in a recent organizing campaign where ultimately that was the outcome.
00;12;48;24 - 00;13;13;26
Tom Godar
I mean, the employees had the bulk of it. We had an election, we had an election. We never got the results because we had objections filed in challenges that were you all piece far in its power to remedy it was a bargaining order. And finally the client said, you know, I'm not going to spend any more money on a bargaining unit or 12 employee.
00;13;13;26 - 00;13;25;04
Tom Godar
You know, I'm just going to recognize the union and move forward, you know, and what the employees deal with this, that's tough stuff. That's expensive stuff potentially to trash.
00;13;25;28 - 00;13;48;28
Trecia Moore
I think Terry brings up a really good point that it's difficult for small mom and pop shops to see going into this. You know, you talk to employees asking them questions about improving working conditions and little do you know they're talking about a union and you had no idea. And then all of a sudden you have multiple you will.
00;13;48;28 - 00;14;09;04
Trecia Moore
PS One of them is terminated because he's a no call, no show for a week. The union files a charge alleging he was terminated for his union activities. And the only way you may be able to prevail is as we've seen recently in Thrive, is you're going to the Fifth Circuit to try to get relief or whatever circuit it is that you're in.
00;14;09;15 - 00;14;26;23
Trecia Moore
And most clients, not all, but a lot of clients do not have the resources for something like this. And so then they end up with these consequential damages and and remedies that are still very far fetched because they're not in a financial position to fight well.
00;14;26;23 - 00;14;49;15
Tom Godar
And the board reported in April, for instance, that during the first six months of fiscal year 24, which was October to March, that's why it's reported an April union filings for elections are up 35%. This is not going unnoticed by those who would seek to represent employees. Obviously, ups are up, I think 10% during that same time period.
00;14;49;27 - 00;15;16;09
Tom Godar
So the folks who are out there recognize that there's an easier place to come. By the way, what happens when you have this imposition of a bargaining order and you say no instead of the 12 person shop, Terry, that says, I don't want to spend another 50 K finding out whether I'm right or wrong, is there a way and what is that way for the employer to say, wait a minute, I'm going to go get relief from maybe the court system?
00;15;16;09 - 00;15;35;02
Tom Godar
Is that really your last, best hope for the expense and the time, the energy going to put in? And as we know, the potential for remedies for people who are laid off or otherwise affected during that time to be mounting up. What what can employers do? What are their remedies these days? I'll let you, Terry, take a swing at that.
00;15;35;16 - 00;16;02;25
Terry Potter
They they are in a big pickle. These are legal term that is a legal term. It's you know, you just don't have much in the current environment to fall back on as a small employer and exert. There are no quick route to get to the court system to hopefully overturn this because if it's a bargaining order, you have to you can't modify anything while you're taking the matter up on appeal.
00;16;02;25 - 00;16;33;04
Terry Potter
You may very well have unlawful discharge obligations that you have to deal with. And if you've got backpay accruing and maybe other so-called non-consequential damages, then, you know, the numbers add up quickly. Plus you've got to pay an attorney to assign you.
Tom Godar
Isn't that a good thing? Wait a minute. I appreciate that. And we really do try to minimize that and work with clients to say what's the risk benefit analysis here?
00;16;33;04 - 00;16;56;15
Tom Godar
But unfortunately, sometimes if you're going to resist that, you do have to go all the way up to the courts. And that is not a cheap process.
Terry Potter
No, it is not very you know, ultimately it becomes, like everything else, a business decision as to where you want to spend your money.
Tom Godar
Well, it's so redundant as we come to the end of these doom and gloom podcasts.
00;16;56;17 - 00;17;20;27
Tom Godar
Some of them are unfortunately, that we end up in the same place, and we've already sort of anticipated that. It's not that you're just going to fight till the last bullet is out of the gun. You're going to go all the way to the court, the court of Appeals, the Supreme Court. If you have $1,000,000, you can if you have a bargaining unit of 10,000 like you have at BMW or Volkswagen in the South or something, you might be able and willing to do that.
00;17;21;09 - 00;17;45;26
Tom Godar
That's not most of us that most of our clients. So the trick is right. I think Tricia Ari suggested it. Make sure that your relationship with your employees makes the idea of the union redundant. And certainly if you get an inkling that there's a little bit of a rumbling at one of the locations of your employees or the headquarters would have you start taking a look and say, why is that?
00;17;45;26 - 00;18;08;16
Tom Godar
Do we have some supervisor, those who frankly just aren't meeting our standards and they're being arbitrary and capricious? Or do we have some policies and some handbook items that really don't meet the competition anymore? We're not as flexible with our time off and so forth looking at the marketplace, but a lot of that calls for an awareness and some of it calls for training.
00;18;08;16 - 00;18;26;28
Tom Godar
So what kind of training have you seen? Some of our clients or friends ask for that that harsh Blackwell or others like us might be able to offer to either make unions redundant or to respond if unions are starting to march towards employers. And why don't we let electricians stir up a bill?
00;18;26;28 - 00;19;04;21
Trecia Moore
Sure, we are able to provide any type of training you are interested in. I mean, we are benches that deep in that broad, but many times we all come in and we'll assess. Is there a vulnerability in your facility? Where is that vulnerability? What is causing the vulnerability? And then based on that, without giving legal advice, we will develop a program to engage employees, improve manager performance, not just employee performance, but increasing and improving manager performance.
00;19;04;21 - 00;19;08;16
Trecia Moore
Because many times a union problem is a manager problem.
00;19;08;18 - 00;19;09;06
Tom Godar
Yeah, yeah.
00;19;09;09 - 00;19;28;00
Trecia Moore
Not always, but many times it is. And so we will hold our clients hands to ensure that throughout that process they are not breaking the law, that they are providing legal, truthful, factual information, and that the managers are not crossing the line to engage in unlawful behavior.
00;19;28;20 - 00;19;48;22
Tom Godar
Yeah, oftentimes that investment is far less than either fighting your peers or getting involved in union elections, which can be an expensive process and take an awful lot of focus and time away from managers and executives who spend their time better trying to help their customers. Their clients provide the services that they do.
00;19;49;07 - 00;20;11;23
Trecia Moore
Yeah, when I work with clients on campaigns, they usually say, Oh, we like you so much and we've learned so much, but we hope we never see you again because it is it is a time suck. But also, you know, as all of us attorneys know, going to trial is a time suck as well. I mean, for for clients, that is what they're focusing on 100% of the time.
00;20;12;04 - 00;20;29;21
Tom Godar
So, Megan, as you think about, you know, the remedies being amped up, the opportunities for obviously elections growing as well as you LP is growing, what kind of advice have you seen fruitful for clients or when you were in house? What kind of things did you look at because you practiced in-house for quite a while too.
00;20;30;07 - 00;21;04;02
Megan McManus
Did you know? Certainly when the Thryv decision came down, executives and managers that were not necessarily, you know, interested in in LRA issues, you know, ears started to perk up. And then with the Cemex decision, the sort of just explained in kind of basic terms what that meant, it was immediately, oh, every single person and supervisor on our needs training yesterday we did it immediately.
00;21;04;11 - 00;21;45;11
Megan McManus
It was, it was I saw the I saw immediately the switch flip in leadership. They understood the enormous impact that that case could have on any of their worksites. And they jumped into action immediately. And I don't think that was an overreaction. I think it was a complete appropriate, correct response at minimum, to make sure every supervisor knows what a union card is, knows what a petition is, knows what to do.
00;21;45;11 - 00;22;11;22
Megan McManus
If an employee comes to you and mentions anything about here's some sort of evidence that we want to be represented by a union at minimum. I mean, that's at minimum. And then that starts the conversation with your managers. Oh, well, what is a union and what does that mean for me? And what you know, what, how does that impact my job?
00;22;11;22 - 00;22;29;15
Megan McManus
And we had a very, very fruitful and good productive conversations and trainings that started with that. You know, that case, which I think, you know, was is just that impactful and that that important.
00;22;29;26 - 00;22;54;23
Tom Godar
Terry, thinking that the suggestions from Trecia and Megann are right on, but then he sort of thought, I should like to leave with our friends and our audience about how to prepare for this brave new world under the leadership of GC Abuzzo.
Terry Potter
Well, I think Trecia hit the nail on the head. It's preparation, advanced planning, training. That's basic.
00;22;54;23 - 00;23;22;18
Terry Potter
H.R. H.R. 101 is training, training, training, whether it be harassment or anything of that nature, wage and hour or union avoidance. I mean, you can't stick your head in the ground regarding any major issue. And right now, one of the major issues can get you in big trouble for a long, long time because having a union come into your facility.
00;23;22;18 - 00;23;51;07
Terry Potter
So don't ignore it, prepare for it, you know, preventive medicine works. You just need to make sure you take those first steps.
Tom Godar
Well, some of my training over the years has started and ended with the word respect. R-E-S-P-E-C-T is a great song, too, but if you respect your employees and you train your supervisors to say these are human beings or oppressors who are trying to to do the right thing most of the time, and sometimes they're not, and they're then a cancer.
00;23;51;07 - 00;24;08;00
Tom Godar
It's time to relieve them of their opportunity to be a cancer in your place. But respecting your workforce is a huge, huge part of this. And you can't just pretend it's either there it's not. So I'm hoping that most of our clients already know that fact. We know that because we've worked for some of the best clients in the country.
00;24;09;01 - 00;24;29;01
Tom Godar
But as you move through this, I hope that these bits of advice, this little bit of a change or maybe it's a sea change in the way in which the board is recognizing employer and employee actions has helped you. So thank you so much for joining these fantastic labor law insiders. Thank you, Megann, Trecia, thank you so much, Terry.
00;24;29;13 - 00;24;30;04
Megan McManus
Thank you.
00;24;30;27 - 00;24;39;04
Trecia Moore
Thank you, Tom.
Terry Potter
Thank you, sir.
Tom Godar
All right. Take care and join us next time for the Labor Law Insider.