This transcript has been auto-generated using Adobe Premier Pro.
00;00;02;22 - 00;00;38;01
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;19 - 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;20 - 00;01;31;00
Tom Godar
Welcome back to the Labor Law Insider. I am excited to be joined by two of my colleagues from Husch Blackwell, Trecia Moore and Adam Doerr. And we're going to talk about something that you haven't heard about much, at least on our podcast. That's decertification. It's a pretty exciting area, and it's been highlighted recently by our work watching and seeing what's going on at Starbucks.
00;01;31;00 - 00;01;54;27
Tom Godar
There have been so many elections, you can be assured that there's also some decertification attempts taking place there. And that's what gave us the inspiration for this. So the labor law insider is going to take a look at how sometimes employees take the risk of finding their way past a union organizing campaign that might have been completed 13 months before or might have been 35 years before.
00;01;55;18 - 00;02;27;12
Tom Godar
So that's what we're going to talk about. But first, I want to introduce a little more fully my colleagues who are joining me. Trecia Moore is working in our Kansas City office, and she has a unique background to bring to this because she spent 14 years of her early career working with the National Labor Relations Board as an investigator, taking a look at all of the crazy things that employers and more often employers bring as potential unfair labor practices, but also being engaged, certainly in elections.
00;02;27;12 - 00;02;51;21
Tom Godar
And in her practice over the past several years, Trecia has advised clients and biased employers on labor and employment law. She's also one of the ones to watch in best lawyers. And more than that, she's a foodie who travels all over the world. Come on, give us a little bit insight. What's the most interesting meal or thing you've had to had the chance to eat while you were traveling, Trecia?
00;02;51;22 - 00;03;01;20
Trecia Moore
Now, that's a really good question. I would say maybe one of the most interesting things that I've actually tried that I enjoyed lime flavored crickets.
00;03;02;18 - 00;03;06;14
Tom Godar
And in what country did you experience that culinary delight.
00;03;06;25 - 00;03;07;24
Trecia Moore
That was in Mexico.
00;03;08;03 - 00;03;30;14
Tom Godar
All right. And you didn’t have to go very far for that one. Fantastic. Adam Doerr has joined us several times before and we are delighted to have you. Adam, thanks so much for joining us again on the Labor Law Insider You are practicing around the country but your office when you show up and it's not 140 degrees is in St. Louis, right?
00;03;30;26 - 00;03;33;12
Adam Doerr
That's right. Tom, thanks for having me again. It's a pleasure to be here.
00;03;34;01 - 00;03;40;26
Tom Godar
Well, I'm told that you have a special skill that would shame me in under a minute. What is that special skill, Adam?
00;03;41;05 - 00;03;55;17
Adam Doerr
Well, in undergrad I picked up the Rubik's Cube and learned how to solve that in under a minute. So it's not the it didn't earn me the coolest kid in school award, but it helps me pass the time in between bargaining sessions from time to time.
00;03;55;17 - 00;04;25;13
Tom Godar
I love it in both cases that are relevant to your practice. One is problem solving and the other is experiencing something new and making it taste good. Great to have you join us at the Labor Law Insider. Hey, as I started out, we're going to talk about these certifications and briefly, that is when unions have organized a bargaining unit at an employer and the employees under the law must initiate, if they choose to, a process which could result in an election.
00;04;25;13 - 00;04;51;02
Tom Godar
And that election, unlike getting a union, would save the union role of representing that bargaining unit is over or decertified. How much of this kind of activity are we seeing take place, Trecia, in this new world where we have a pretty union friendly board and union friendly decisions coming, are we still seeing these certification opportunities for employees?
00;04;51;14 - 00;05;24;01
Trecia Moore
Yeah, absolutely. You know, it's interesting, this information is available to the public on the board's website. So I'm maybe not telling our audience anything that they haven't looked up or that they can't looked at. But it's interesting because in 2022, there were over 1700 petitions filed just for an election, you know, including petitions for union representation. And around 300 of those filed a little bit over 300 were decertification petitions.
00;05;24;01 - 00;05;39;27
Trecia Moore
But when we look at, you know, a span of over the past ten years, I mean, the numbers fall around the three hundreds mid twos maybe hitting upper fours. But really, I mean, the numbers haven't changed dramatically as two decertifications over the past ten years.
00;05;40;10 - 00;06;13;01
Tom Godar
So with regard to, you know, if we might call it a union friendly board under President Obama or President Biden or more employer friendly board under former President Trump employees are still seeking ways, at least a small percentage of them apparently, of trying to rid themselves of a union. How does this seem to be playing out in terms of the flood of Starbucks selections that we've seen over the past couple of years where there's literally been hundreds of petitions filed for elections for Starbucks?
00;06;13;01 - 00;06;16;25
Tom Godar
Are we seeing any decertification activity in that area, Trecia?
00;06;16;25 - 00;06;28;20
Trecia Moore
We absolutely are. So when I look at the numbers for Starbucks petitions in the past three years or so, since 2021, there have been 500 Starbucks petitions filed.
00;06;28;21 - 00;06;29;12
Tom Godar
Oh, my gosh.
00;06;29;12 - 00;06;56;18
Trecia Moore
Yeah, it's pretty crazy. Obviously, not all of those went to an election, right? About 16 of those 500 have been already petitions. And all 16 of those have been filed within the last year. We know that out of those 500 petitions, about 300, I think close to 340 of those stores have actually elected union representation. Not one of them has a contract right now.
00;06;56;29 - 00;07;05;10
Trecia Moore
And, you know, some would argue that because of that, that that's why these 16 already petitions have have been filed.
00;07;05;22 - 00;07;17;29
Tom Godar
So I take it since you didn't talk about results, that none of these RDA that's insider talk for the certification petition, none of these have gone to election, is that right?
00;07;18;06 - 00;07;49;20
Trecia Moore
They haven't. So what's actually happening is so you're right, RDA decertification petition an RC would be a petition seeking union representation. So as to those 16 decertification petitions, what's happening is the board regional directors are saying, hey, look, we have countless utopias, quite frankly, I believe that the board has ruled that at least 144 stores have failed and refuse to bargain following union certification.
00;07;49;20 - 00;08;12;29
Trecia Moore
And regions have said, hey, look, you know, we have the issue. PS Starbucks has delayed in providing the Starbucks workers union with dates for initial bargaining session. They failed and refused to meet to bargain for a first contract. And the regions are assuming that the UAP allegations are actually true and they're just dismissing the petitions. They're saying we're not we're not even going to hear anything about it.
00;08;12;29 - 00;08;34;16
Trecia Moore
So I think it's interesting from my perspective as someone who actually worked for the board for a number of years, I've always seen the board as, you know, people listening to this podcast may dissent. But no, the board is the board is they have a process for, you know, allowing employee free choice. Right. And it's interesting to see that that doesn't appear what is happening actually here.
00;08;34;16 - 00;08;56;13
Trecia Moore
They're just saying, no, we're we're not going to processes. And then some might say, well, you know, why is it that that already was even filed in the first place? So again, we look to the UAP allegations and others might say, well, from an employee perspective, motive, maybe employees determined that the union wasn't right for them. Right? Maybe we don't have a contract, but some time has passed.
00;08;56;13 - 00;09;21;19
Trecia Moore
The union isn't really what I thought. It was. Our reasons have have changed. I think one thing that's really important is to remember that these Starbucks stores, I mean, they're small bargaining units, right? I mean, there could be 12, 15, maybe 20 employees. And so let's say you had one bad manager in there. And we all have worked on campaigns before where employees were interested in a union because of one bad manager.
00;09;21;28 - 00;09;30;26
Trecia Moore
And so you get that bad manager out there out of the store and hey, guess what? We don't need a union in here anymore. I'm not saying that is the reason, but it's one to consider.
00;09;31;04 - 00;10;02;00
Tom Godar
You know, Adam, one of my first words, one of my first two certifications was not at a bargaining unit that had been recently certified. It was because the employees who were trying to move up the ranks at least. So I understood it, felt it was too hard to do so because unions seniority provisions prevented them from moving into new positions with higher responsibility and higher pay because they had to stand in line behind those who had more seniority.
00;10;02;11 - 00;10;24;20
Tom Godar
So that would be one reason that even a more mature relationship might be taken on by employees who wish to decertify. But one of the reasons, whether it's within the first year or so, after a bargaining unit has been certified by the board or later, what are some of the reasons that we know of that employees might choose to decertify or try to?
00;10;25;12 - 00;10;48;22
Adam Doerr
So I think there are a lot of good reasons why employees might choose to decertify a union that's representing them. And one of them could be, as Tricia alluded to, is the frustration at the bargaining table. I think that's symptomatic of a broader reason, which is that there could just be a lack of fulfillment of the promises that they were given by the union.
00;10;48;22 - 00;11;36;20
Adam Doerr
You know, the union comes in trying to sell everybody on on fixing their individual issues. But truth truth be known, as you suggested, time unions operate on seniority and majority rule and and those kinds of principles that don't necessarily benefit everybody, especially those who might see themselves as stronger performers or were seeking opportunities to move up if they don't feel like the seniority system is benefiting them, or that in the majority rule system of collective bargaining, if their desires and wishes aren't being met, then then they can have a pretty powerful campaign against the union after they've already seen what's behind door number two, so to speak.
00;11;37;00 - 00;11;59;19
Tom Godar
Well, it's not unusual for employers to say, give us a chance when a union organizing campaign starts. Well, at this point now the union has shown up and the employees have a chance to see what really is taking place. I understand, of course, as do our listeners, are sophisticated group that a lot of first contracts don't get negotiated or take a really long time.
00;11;59;19 - 00;12;18;08
Tom Godar
And that can be frustrating after employees have been told that great things are about to happen, you're going to get a buck an hour, $2 an hour increase in your benefits are going to be better and you'll have more flexibility. One of the questions, though, that I've been challenged with, and I know that you have as well, either one of you might jump in on this.
00;12;18;08 - 00;12;40;05
Tom Godar
I guess I'll give Trecia first run. Why might an employer who's looking at employees circulating a petition or maybe even having presented a petition to the National Labor Relations Board signed by 30% of the bargaining unit, say, you know, I'm not really thrilled with the idea of losing this union, but what would be behind that kind of attitude that occasionally occurs?
00;12;40;17 - 00;13;02;09
Trecia Moore
Well, some industries I mean, think about the construction industry, right? I mean, you may not function if you don't have a relationship with a union within that same industry. Third parties might not want to do business with you unless your employees are organized, so you may not function. You know some industries as well. There's just a preference to be unionized.
00;13;02;10 - 00;13;07;24
Trecia Moore
Think about car companies, right? Can you imagine Ford not being organized and mentioned?
00;13;07;24 - 00;13;12;02
Tom Godar
There's an executive or two. It could imagine that every three or four years. But yeah.
00;13;12;02 - 00;13;32;08
Trecia Moore
That is very true. You know, some clients also will tell you, look, our relationship, it's protracted, it's positive. There's no reason to to get rid of the union. It's almost like they're part of the family at this point. And sometimes they can see the union as a buffer to maybe implementing some changes that they want to that maybe the union agrees with.
00;13;32;08 - 00;13;47;01
Trecia Moore
Or if there are difficult employees or a difficult, difficult workforce, the union can definitely be a buffer. Sometimes the relationship, it's workable, it's positive. And so why would we want to disrupt that?
00;13;47;15 - 00;14;12;21
Adam Doerr
Picking up on that point, there could be a company that has, for example, multiple locations whose employees are represented by the same union or a different local, the same union. And so they don't want to be spoiling the relationships there, especially with upcoming negotiations, for example. It is kind of tough these days anyway. It's better to in some context maintain those existing relationships.
00;14;12;21 - 00;14;38;11
Adam Doerr
And if you're also in a union saturated geographic area, thinking about California and New York City, it may not be an option of getting rid of a union. It might be getting rid of this union. And so you might just be creating a power vacuum where you now you've got an opportunity for a different union that maybe don't have those established relationships with coming in and kind of starting from scratch.
00;14;38;11 - 00;14;41;09
Adam Doerr
And that can be a whole other set of headaches.
00;14;41;22 - 00;14;43;02
Tom Godar
Kind of the devil that, you know.
00;14;43;13 - 00;14;44;00
Adam Doerr
Kind of.
00;14;44;13 - 00;15;08;01
Tom Godar
Adam, thank you so much for that explanation along with Trecia as to why sometimes employers are, well, shall we say, satisfied with an ongoing relationship that might have matured to a place that's appropriate. But I do want to spend some time talking about the more difficult process that an employee must initiate or employees in which an employer might engage in decertification.
00;15;08;13 - 00;15;29;07
Tom Godar
So this is a good time, I think, to take a break and look forward then to having you join us, Trecia and Adam for part two of the Labor Law Insider. And thank you so much for our listeners, our friends to the Labor Law Insider for joining us to share it with your friends if you enjoyed it. Take care and we'll see you soon.