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;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;08;05 - 00;01;51;07
Tom Godar
And welcome back to the Labor Law Insider. This is Tom Godar your host. And for this part two of our discussion regarding decertification and decertification elections, I'm once again joined by my colleagues from Husch Blackwell offices, Trecia Moore in our Kansas City office, and Adam Doerr, who practices primarily out of our St Louis office. If you listened to before, we talked about some of the changes that we're experiencing and the certifications and sometimes the same old, same old, even though there's a more union friendly board in the the Biden NLRB, let's find out a little bit more, however, about some of the nuts and bolts of a decertification effort.
00;01;51;27 - 00;02;20;22
Tom Godar
Let me just set the table a little bit more. We've talked about decertification. Elections are, oh, maybe 10%, maybe some years, up to 15 or 18% of all elections. But they're difficult in some important ways for employers to get their hands around. First, like any kind of election, 30% of the bargaining unit has to affirmatively indicate that they would like to decertify and sign a petition, usually to that extent.
00;02;21;17 - 00;02;45;19
Tom Godar
Next, that can't be with the aid of the employer. And I'm going to ask you later to tell me a little bit about what kind of information an employer can share, but they can't be engaged in drafting the petition, circulating the petition, providing, oh, if you will, written or oral communication. Why decertification or a union free employer would be a good idea.
00;02;45;22 - 00;03;18;22
Tom Godar
Just the same stuff that we've talked about generally, the tips idea, not threats and interrogation promises or surveillance, all of those things are out as well. So it's not an easy process. And for those who have had a recent election, it can't even really begin until a year has passed. And for those with the collective bargaining agreement, usually there's a very small window in time in which the employees can circulate a petition and have it completed and present it before the contract gets renewed.
00;03;19;10 - 00;03;52;16
Tom Godar
But certainly 30, 60, usually 60 or 90 days before there's a new contract coming up. And there's other weird rules about four year long contracts and all that jazz. I guess I say that because getting to a place where an employee would choose to decertify or attempt to decertify union is not an easy process. And I'll ask either of you, given your experience, is there any risk that sometimes employees associate with that effort that also make it more difficult?
00;03;53;13 - 00;04;16;00
Trecia Moore
I think the biggest struggle that I have seen employees encounter, and this was both while working at the Labor Board and practicing as a management side practitioner, is they don't know what they don't know. Right. And so it's difficult for them to wrap their mind around having to do the petition. They don't know how to do it. It's difficult for them to understand what that window is.
00;04;16;09 - 00;04;33;08
Trecia Moore
And if they have not been paying attention to that time frame, I mean, they can they can miss it. I mean, I remember getting phone calls of the labor board where employees had missed it by a day and it's just too late. And then you are left with another three year contract and a union that you might not be happy with.
00;04;33;08 - 00;04;38;19
Trecia Moore
So I think the risk there is not knowing what you don't know and not being on top of your game.
00;04;39;03 - 00;05;08;05
Adam Doerr
Yeah. And in addition to you being stuck, you the employee maybe being stuck with a union you don't like for a few years now you've got a union that may not like you because guess what? Not only do they depend on their members, but they most unions have constitutions and internal rules that require literally mandate employee members, loyalty and support and conduct that goes against that is not looked at lightly by most unions.
00;05;08;05 - 00;05;12;26
Adam Doerr
So they might face some uncomfortable attention from the union from that as well.
00;05;12;26 - 00;05;35;26
Tom Godar
Uncomfortable attention. I've never heard it so eloquently put for what others might call harassment or intimidation. Uncomfortable. That's true. On the other hand, there sometimes are ways that by employees expressing their desires to certify that you can short circuit the entire election process and still end up without a union. Adam, tell us how that might work.
00;05;36;19 - 00;06;03;28
Adam Doerr
The board recently, just a few years ago, overruled the long standing Levitz Doctrine. That's that I'm sure some of our listeners are familiar with and replace it with Johnson Controls, which allows employers more freedom to rely on direct evidence from the employees that they simply don't wish to be represented anymore. So now under that, Johnson controls precedent. They can submit a petition directly to management.
00;06;03;28 - 00;06;31;18
Adam Doerr
And if it's signed by more than half the bargaining unit, the employer is privileged to rely on that evidence of loss of majority support and withdraw recognition upon the expiration of that contract. Now, I say that knowing full well that the current board's general counsel wishes to overrule that doctrine at her next opportunity. So like anything, employers are playing by two rules the rules that exist and the ones that the general counsel wishes to have us play by.
00;06;31;18 - 00;06;39;18
Adam Doerr
So I was fortunate enough to invoke that once in the past year, but employers do so even still add their caution.
00;06;40;01 - 00;07;02;29
Tom Godar
So if you have an election petition that's presented in a nonunion setting, normally our conversations with the employer say, don't look at it. You may inadvertently have bypassed the election process because a majority of your employees may have signed that position, and now you might have to recognize them without the opportunity to educate, inform your employees through a campaign.
00;07;03;09 - 00;07;14;19
Tom Godar
On the other hand, what do you tell an employer who said, I was just told that there is a petition for decertification and it's been offered to me. I don't have it yet. What should I do.
00;07;15;01 - 00;07;41;05
Adam Doerr
When there's a lot of navigating some choppy waters there? I instruct employers to to just like the decertification context, you have to be hands off in terms of assisting or encouraging that kind of petition, just like a decertification election. But at the end of the day, the employer, any good manager, simply wants to know how its employees feel and if they're advised of what the process entails, period.
00;07;41;05 - 00;08;07;02
Adam Doerr
Nothing more, nothing less. And if the employees present them with that evidence, the employer can review that petition and and consider what weight to give it, whether to give it affect and withdraw recognition, or to maybe take a less dramatic step like requesting its own election to determine whether the employees wish to remain certified. But the context that that arises in will play heavily on how I advise that particular situation.
00;08;07;02 - 00;08;14;21
Adam Doerr
But it's a great first step knowing that there's some number of employees wanting to give management a chance, having tried the union.
00;08;15;02 - 00;08;30;24
Tom Godar
And then if you have all of the names before you and it's not a majority now the union can say any treatment that you have at one point versus another was favored because of their position. So, yes, it's the devil you don't know before you accept that petition, isn't it?
00;08;31;04 - 00;08;32;15
Adam Doerr
Yeah, those happen all the time.
00;08;33;07 - 00;09;05;24
Tom Godar
You know, one of the questions that employers would ask if they really had it with the union is how do I get rid of the union? It's a question we've all had at various times. And as you said, in construction, I say, well, is there withdrawal, liability? You really want the union gone and so forth. But when that question comes up, what kind of advice do we give practical advice about an employer either posturing themselves so that the employees might choose to file a certification, or can we help them at all knowing at least about what the process might consistent?
00;09;06;04 - 00;09;23;28
Trecia Moore
You know, when I'm guiding clients so much of the time, it's about the client's interest. What's their drive, what's their interest? How much time do they want to invest in this? You know, we look back at the relationship that they have with the union. Like you said, do you want to get your hands dirty or do you want to be completely free?
00;09;23;28 - 00;09;46;15
Trecia Moore
And I've heard some practitioners disagree with this, but many times I feel very safe telling the employee because usually it is an employee coming to management and saying, Hey, we're not interested, how do we get rid of the union? But obviously we don't want to give them step by step instructions on how to do that. And I actually feel very safe telling employees now what the NLRB brought the union in and they did the election.
00;09;46;15 - 00;10;12;04
Trecia Moore
And there's nothing wrong with calling the NLRB again and speaking to an agent there and asking them about the process and how you go about doing it. And when I was an agent at the office, I can't tell you how many phone calls I received and I guided and counseled callers on how to do it. You know, what needs to be in the petition, how you do it, the percentages that you need, what the signatures need to look like, the dates that need to be on there.
00;10;12;12 - 00;10;30;00
Trecia Moore
And really what that does is it takes our client's hands out of the pot and we're just not involved at all. You know, other clients are like, Hey, I want to get involved and we want to run a full blown campaign as if the union were coming in here. And we're going to fight this tooth and nail. So it just depends on the client's drive.
00;10;30;09 - 00;10;41;04
Tom Godar
Adam It's employers have the right to engage in an active campaign to decertify a union once a petition is filed. Isn't that right?
00;10;41;14 - 00;10;57;12
Adam Doerr
That's true. They still have their free speech rights. You know, the the way that comments and conduct is going to be scrutinized is very similar, but through a slightly different lens because of the added requirements around assisting in encouraging decertification. At the outset.
00;10;57;12 - 00;11;25;24
Tom Godar
And let me take it another step and we talked a little bit about this, but there are some times when a union petition or a decent petition file will call for the employer to get aggressively engaged. As Tricia was saying. And a little bit ago, I've had other clients who take a sort of soft approach. What would be the reason that an employer, given the opportunity to engage in a full out campaign, might take a soft approach?
00;11;25;24 - 00;11;27;10
Tom Godar
I know you've had some experience there Adam.
00;11;27;10 - 00;12;16;09
Adam Doerr
Yeah, there's a there's a variety of reasons. For example, if, if the nature of the work the employer does or if they're in a particular market or industry where maybe they're expected to appear more union friendly or liberal, they might want to take a step back and not take the gloves off just for the PR reasons. And, you know, if the employees themselves are represented by counsel, for example, of the National Right to Work Organization's gotten involved, that can give the employer an easy opportunity to lay off the gas a little bit, not ruffle the union feathers if the union wins to retain representation, but still respect the employee's decision no matter how that
00;12;16;09 - 00;12;25;02
Adam Doerr
falls. So there's a lot of reasons why an employer might not be salivating at that opportunity where many others very well may.
00;12;25;14 - 00;12;48;07
Tom Godar
If I'm boiling some of this down, what I am understanding is that there might be a quite a different approach or thought for a newly formed union that has been attempting to negotiate in good faith, presumably with an employer, to have a first contract. And that hasn't been achieved. And that employer group might be very interested in saying, you know, I've had it with the union and it's not my cup of tea.
00;12;48;07 - 00;13;11;02
Tom Godar
And there's a there's another group where none of the employees ever voted for the union. They've been around a union organized facility for 20, 30, 40 years. And when that employer says, you know, gee, I don't think I want the union anymore, strategically, I think you're going to look at these differently, aren't you? The Brenly, the brand new formed union and the one that's been 30 or 40 years.
00;13;11;16 - 00;13;12;21
Tom Godar
Go ahead, Trecia. Any thoughts?
00;13;12;29 - 00;13;34;19
Trecia Moore
Absolutely. You know, I mean, I think one thing we have to remember, and we've talked about this on this podcast today, I mean, you can't decertify the union until they've actually had their certification year. So the union has to enjoy that one year of freedom to try to get that contract. I mean, the reality is, though, it takes about 465 days to get your first contract.
00;13;34;19 - 00;13;58;22
Trecia Moore
That's the average number we're looking at. And following certification, only about 36% of those certified units actually get contracts. That number goes up to about 58% when we're looking at a second year. And those are Department of Labor numbers that I ran from January 2023. But yeah, I mean, sometimes when you have a union that's been there for a long time, I mean, maybe they're asleep at the wheel.
00;13;59;01 - 00;14;21;17
Trecia Moore
They might not even necessarily have a presence or a relationship with the employees who are there and like you said, if there's been so much turnover over the years and the employees don't know who the union is, I mean, it may be a lot easier for the company to win that campaign because the employees don't have that and they don't have that personal, protracted relationship with the union.
00;14;21;19 - 00;14;25;02
Trecia Moore
That actually makes the campaign a lot easier from a company perspective.
00;14;25;20 - 00;14;45;22
Tom Godar
That's interesting stuff and very, very thoughtful as we kind of wind out on this discussion of decertification, you know, crystal balls. What might we be looking at over the next year or two in terms of both election efforts and included in that, the decertification election efforts? Adam, you get to go first.
00;14;46;08 - 00;15;21;29
Adam Doerr
My crystal ball, Tom, is telling me that we're going to continue to see this surge of organizing activity through this next election cycle. And I think that presidential election is really going to shape Labor's next move in this in this chess game that they play. In the meantime, as a lot of those spurred, activity starts to find themselves without a contract more than a year out, you'll continue to see that 10 to 20% being frustrated and seeking to decertify their their representatives.
00;15;22;10 - 00;15;27;25
Tom Godar
Now, Trecia, what would you like to leave with our listeners and our friends from the podcast about the world of decertification?
00;15;28;09 - 00;15;49;07
Trecia Moore
I think Adam and I are probably looking through the same crystal ball. I do not think that this upturn that we're seeing in unionization is going to go down at least throughout the next election cycle and maybe continuing throughout. I mean, it is hot, it is sexy. It is in to be in a union and organizing right now.
00;15;49;09 - 00;15;50;21
Trecia Moore
So I don't see that changing.
00;15;50;26 - 00;16;08;23
Tom Godar
And someday, perhaps we'll actually see the National Labor Relations Board conduct a decertification election at a Starbucks. But wait until that day and then we're going to invite back Adam and Trecia for the next Labor Law Insider podcast. Thanks so much, folks, for joining me. It's been a blast.
00;16;09;20 - 00;16;10;06
Trecia Moore
Thank you.
00;16;10;21 - 00;16;11;11
Adam Doerr
Thank you, Tom.
00;16;11;24 - 00;16;14;17
Tom Godar
All right. Take care now.