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00;00;02;11 - 00;00;24;07
Tom Godar
Hello and welcome to the Labor Law Insider podcast. I'm your host attorney, Tom Godar, and I work with Husch Blackwell and have been involved in labor law for more than four decades. I'll tell you what, there has been a wild ride over the past three and a half years of the Biden administration. He fulfilled his promise to be the most union friendly president ever.
00;00;24;17 - 00;00;50;25
Tom Godar
And as a result, between General Counsel Abruzzo and the National Labor Relations Board, there's been a sea change in the way that labor law has been interpreted and applied. So we will have guests to discuss what's new, what's challenging and what might be the ways in which our friends, our clients and others advising companies might do to accommodate these changes in the labor law world.
00;00;51;00 - 00;01;23;02
Tom Godar
It's a wild ride, so buckle up and come and join us on the Labor Law Insider podcast. And welcome to part two of the Labor Law Insiders discussion of elections have consequences. This is your host Tom Godar and I'm really looking forward to completing our discussion with two of my colleagues and thought leaders in the area of labor law attorneys Mary-Ann Czak and Rufino Gaytán, Husch Blackwell attorneys who practice out of Washington as well as South Carolina.
00;01;23;02 - 00;01;46;25
Tom Godar
That's Mary-Ann’s office and home location. And Rufino Gaytán, who's down at our Houston office, it's great to have them back. But before I go there with the conversation, we're just a few weeks out right now as I'm recording this from the election. And in that election, President elect Trump has begun to decide who his nominees are for various posts.
00;01;46;25 - 00;02;19;03
Tom Godar
And last week, to the surprise, quite honestly, of most of the management side and I suppose the union side of the bar and I've watchers was the identification of a new DOL secretary, Lori Chavez-DeRemer. It's interesting. She's a Republican, which isn't surprising given that a Republican won the election. She's a Republican first term. Maybe she won her second term representative from a Portland area, which is, of course, a liberal part of the world.
00;02;19;03 - 00;02;47;20
Tom Godar
If you look at voting patterns and perhaps she represented that area well, though a Republican as she was one of three representatives on the Republican side of the aisle to co-sponsor the PRO Act, which is sometimes thought of as the wish list for the union activists in the world. It creates all sorts of opportunities for unions to use new laws to engage in collective bargaining, to engage in organizing and so forth and so on.
00;02;47;28 - 00;03;14;15
Tom Godar
And that's why this took so many of us thought leaders, commentators, watchers, if you will, of labor policy by surprise. It's going to be interesting as well as we watch who the other Trump nominees are or appointees for. As we've talked about in the first part of this series, the the position of our general counsel for the National Labor Relations Board is doesn't have to have Senate confirmation.
00;03;14;15 - 00;03;49;27
Tom Godar
And for those of us who are wonkish, we're going to watch the confirmation hearings very carefully for Lori Chavez-DeRemer. And that's partly because in this piece she's been unabashedly pro-union, which I don't think Republicans or frankly, labor lawyers are anti-union, but they do seem to think that the balance has to be struck in a different place. So some of the areas in which Department of Labor appointee is going to have some influence is on, for instance, the overtime rule or the minimum wage rule.
00;03;49;27 - 00;04;14;14
Tom Godar
Those are Department of Labor rulemaking steps. Is it going to change what the salary level is for a highly compensated employee? Is there any possibility of raising the minimum wage? Unlikely, I guess there's almost no possibility, by the way, of the PRO Act passing. It's not going to pass with a Republican controlled, at least right now, the House of Representatives and Senate.
00;04;14;27 - 00;04;57;27
Tom Godar
But there are other areas as well. And we were looking at what the definition of an independent contractor might be that could certainly affect labor relations and slightly differently than the decisions by the National Labor Relations Board. You'll listen to this recording that's already been made of the second part of our insider podcast on post-election questions. And one of the last things I bring up is that President Trump, having enjoyed a fair amount of President elect Trump, a fair amount of success in wooing union households to vote for him might find a way to try to hand an olive branch to those engaged both in the organizing efforts.
00;04;57;27 - 00;05;24;20
Tom Godar
That is, the professionals that are paid lots of money to run big companies called unions, as well as the rank and file who did support it. And I'll tell you what, for most of us, this appointment of Lori Chavez-DeRemer is exactly that, a surprising pro-union appointment. And we'll see how this works out. In the meantime, though, we want to go back to the podcast that I said we put down on last week, but I wanted to offer this update.
00;05;24;26 - 00;05;52;06
Tom Godar
The last week we were talking about the changes that we could see under a Trump appointed general counsel and National Labor Relations Board. We don't know exactly how quickly those will take place, although my bet is that on day one or two, President elect Trump and President Trump will appoint a new general counsel to the National Labor Relations Board who will be quite different than our very pro-union general counsel now.
00;05;53;00 - 00;06;29;05
Tom Godar
But we also may get a real good idea of how this administration is going to balance the activities that might satisfy those in the business community who are looking for a different balance under the National Labor Relations Act and those in the union community who believe that the balance is closer perhaps to what the President Biden's board is showing and as we continue our discussion, I think Mary is going to tell us a little bit about some of the changes that we might expect and some of the decisions that are coming out or will come out over the next four years as the National Labor Relations Board looks at new, unfair labor practices and where
00;06;29;05 - 00;06;37;25
Tom Godar
they're going to go. So thanks again for joining us. And Mary-Ann, let's continue with our discussion of the Trump board and what we might anticipate.
00;06;38;13 - 00;07;16;07
Mary-Ann Czak
Sure. So I think one of the cases you're referring to is the Cemex decision or some case. And actually, you know, this is probably the most significant. And I believe board Chair Mcferran even called it like her most significant ruling from her terms with the board. So this was a major overhaul in it. It basically paved the way and made it easier for unions to organize a workplace, and it made it easier for unions to circumvent the board's election procedures and basically created a framework where now an employer must recognize a union without even an election.
00;07;16;18 - 00;07;41;29
Mary-Ann Czak
So if an employee comes up to the employer and says, oh, we have, you know, majority support, voluntarily recognize us. At that point, the semis case, you know, started a two week clock where basically the employer had to decide if they were going to file their own what's called an r m petition, which is the, you know, the employer filing for an election for employees to vote in an election.
00;07;41;29 - 00;08;15;12
Mary-Ann Czak
And if the employer did not do that within the two week period, the union gets in and we have to recognize them and we have to bargain with them. So it really tied employers hands in terms of the options available to them and made it easier for a union to organize a workplace. And the biggest concern about this case was that if an employer committed a UAP, that would require an election to be set aside during that critical period, the board would dismiss the petition of election without an election anyway and then order the employer to recognize and bargain with the union.
00;08;15;28 - 00;08;43;19
Mary-Ann Czak
So a huge development in labor law, a huge consequence to our clients and to employers everywhere, that now organizing is a lot easier potentially. And, you know, this decision came down. It's the current state of the law right now. So would it from GC necessarily change this? Probably not, because, you know, the GC would be able to change the status of the precedent in the law.
00;08;43;20 - 00;09;04;09
Mary-Ann Czak
However, a Trump GC would likely cease pursuing cases under the standard potentially. And then when and if a Republican majority comes into play, I think we can expect it to be overturned. But I don't know what's going to be a very quick development. So I do still think employers need to be careful and still operate within the confines of the Cemex case.
00;09;04;19 - 00;09;24;09
Tom Godar
So pretend that I am your client and I say I want to have a chance to talk with my employees without any union participation. I'm going to order everybody to come down. I'm going to pay for their time and I want to give them a presentation as to why I think unionization for us would be a very bad idea.
00;09;24;09 - 00;09;44;16
Tom Godar
And I want to tell them that if they unionize, there's all sorts of a parade of horribles that could happen, even though I can't tell them with certainty. Would you tell that employer don't do that? There's a couple of cases. One just last week in the same case that puts this really at risk. Russo Al Windsor changing. If you want to take that risk, go ahead.
00;09;44;16 - 00;09;53;11
Tom Godar
But you have to know that the winds have not blown or change yet under any sort of Trump board. Where would we come out advising their client? Rufino, why don't you go give it a crack?
00;09;54;01 - 00;10;28;05
Rufino Gaytán
Well, I think it would probably say a lot of the things that you just said, Tom, and just say, look, this is the state of play as it stands right now. Here are the risks. If you choose to really push the envelope here and try to push back on where the board currently stands on these issues. Are you prepared to be the test case to try to overturn this precedent, hoping that the timing works out such that by the time you get to the NLRB, it's a 3 to 2 Republican to Democrat majority.
00;10;28;14 - 00;11;16;26
Rufino Gaytán
But, you know, I think that the more important issue and I'll go back to what Mary just said, which is, you know, here, this is what the law currently is. And there are ways to have still effective campaigns, effective management of employees, even around a union election scenario within the confines of the current laws and regulations. And, you know, I would advise the client to really talk to their labor counsel, have meetings with their management team to to discuss where things are within the workforce and to try to plan out a strategy that works within the current setup and to try to be aggressive, you know, within those parameters as opposed to being the test
00;11;16;26 - 00;11;38;17
Rufino Gaytán
case. As you know, Tom, those test cases may sound nice in principle and they are fun for us to speculate and to want to address as practitioners. But ultimately they come with a pretty high price tag and that price tag tends to wear down in employer as things progress. So, you know, it's better to work within the law than to try to change it on the fly.
00;11;39;04 - 00;12;20;21
Tom Godar
And that price tag being on order under the Cemex decision that you now have a union without ever having had the opportunity to even get to an election. Pretty high price. Pretty high price. And Mary-Ann, one of the decisions that we talked about, frankly, in more than one podcast, because it has such far reaching potential impacts, was the stare cycle decision, which really forced many of our clients and friends to go back to their policies, go back to their handbooks and take a look, because things that seemingly were fairly innocent under the Trump era board and other boards before it were now possibly violations of employees rights to engage in collective and protected concerted
00;12;20;21 - 00;12;28;27
Tom Godar
activities. What might we see with regard to the Stericycle decision? And maybe you should start off just reminding our audience of what the implications of that decision were.
00;12;29;25 - 00;12;58;01
Mary-Ann Czak
Sure. So Stericycle came out a bit over a year ago, I think it was the summer of 2023. And that case has had a profound impact on workplace rules, employer handbooks and policies, because the standard is now that a work rule will be presumptively unlawful if it has, as a quote, a reasonable tendency to chill employees from exercising Section seven rights.
00;12;58;01 - 00;13;26;12
Mary-Ann Czak
And ultimately the employer's intent doesn't matter because a rule could be found to be presumptively unlawful, even if there is a non coercive interpretation of that rule, even if there's a reasonable interpretation of that rule where an employee would not deem it to be coercive because now the standard and the default is that it's presumptively unlawful because you look at it through the lens of an economically dependent employee.
00;13;26;23 - 00;14;06;05
Mary-Ann Czak
Employers really have to watch themselves. They're almost on the back foot now on the defensive, because this is a really employee friendly standard and it requires employers to scrutinize all workplace rules and policies and procedures through the lens of this new case. Expect an increase in your peers, expect an increase in litigation. And in light of this, the decision which we discussed a little while ago, it does have far reaching implications because under Cemex, if there is a UAP during that critical period, it could be based on a handbook rule, it could be based on a course of handbook rule that maybe employer you don't know exists or maybe was created years and years ago
00;14;06;05 - 00;14;41;01
Mary-Ann Czak
and you forgot it even is in your handbook. But because it's unlawful now you have a UAP, now you can have a bargaining order. Those two cases together, Stericycle and Cemex are really concerning for employers, and that's a far reaching implication of this case. Now going forward, I think Stericycle and I think we'd all agree, Stericycle is a case that I think a Trump board would take another look at, especially because before Stericycle there was a more employer friendly standard under a Boeing case where the board classified company rules into basically three categories.
00;14;41;09 - 00;15;12;28
Mary-Ann Czak
The first where the rules were presumptively lawful under the NLRA, the second that required a bit more scrutiny, and the third that were presumptively unlawful. So return to Boeing or similar type of standard would really provide employers with more certainty and predictability regarding the legality of their rules versus the current. Stericycle case where I feel like we all live in a world of uncertainty until a specific handbook rule gets litigated and you know, that will take years and years to go through all the types of rules that employers have.
00;15;13;15 - 00;15;49;09
Tom Godar
Well, it sounds like we're going to continue to be on what I have described fairly often as a wild ride. I have a feeling that the labor law insider, even without the Biden board, which was in some important ways its birth, will be relevant for some time to come. And I think it's fascinating that this is going to be against the backdrop of still the highest union approval rating by the general public that we've seen, gosh, since the 1930s where seven out of ten American, when polled, have a positive view the labor unions.
00;15;49;09 - 00;16;12;23
Tom Godar
So I think that whatever is done from a political standpoint has to be done with that sort of polling data in mind for the Trump board, his appointees and so forth. Folks, I really appreciate your insights here. Any last words before we let our audience mull over what might actually happen over the next three months and then the next three and a half years?
00;16;13;00 - 00;16;35;16
Mary-Ann Czak
Agreed, I think. Sit tight for now. As much as we expect a Trump board to bring about a lot of changes, some of those changes may be more slow to come and I think our advice to our clients is going to be, you know, follow the current state of the law for now and wait to those changes occur unless you do truly want to be the test case.
00;16;35;21 - 00;16;42;12
Mary-Ann Czak
And then we're happy to litigate it for you. But if you don't, you know, just sit tight and buckle up.
00;16;42;25 - 00;17;00;02
Rufino Gaytán
Stay tuned. It's all I can think of. Mean there's going to be a lot of a lot of changes, some of them drastic, some of them may be more mundane, but change nonetheless. And I think employers need to just be ready to adapt to them and be nimble and try to do their best to remain in compliance with the law.
00;17;00;13 - 00;17;29;03
Tom Godar
Well, and that's a really important piece. This litigation and used to be that, you know, you come up with a compromise resolution with the board. Nowadays, the board has not been much for compromising on its resolutions that will even see whether that changes over the next year or two. Listen. It has been a great joy again to have you both with your insights, your thoughtful comments about what might be taking place given the outcome of the election, which is now all okay, one week or less, one day old.
00;17;29;15 - 00;17;33;29
Tom Godar
Thank you so much for joining us on the Labor Law Insider, Mary-Ann and Rufino.
00;17;34;10 - 00;17;34;24
Mary-Ann Czak
Thank you.
00;17;35;10 - 00;17;35;24
Rufino Gaytán
Thank you.
00;17;36;17 - 00;17;50;07
Tom Godar
Thank you audience for joining us. We look forward to having you get on this wild ride with us some more as we finish our 2024 and look to changes in 2025. Thanks again. Goodbye.