This transcript has been auto-generated
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[Music]
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hello and welcome to the Husch Blackwell Labor Law
Insider podcast I'm Tom Godar your host and I'm
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glad that you've come along in this podcast
we welcome guests with practical expertise
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and experience regarding labor law issues and
they share their insights related to this ever
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changing area the breadth of developments in
laws related to unions and individual workers
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rights that we are experiencing under the Biden
appointed National Labor Relations Board and led
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by General Counsel Jennifer Abruzzo is unprecedented
these developments demand that employers and those
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giving counsel to organizations stay tuned into
these changes and make necessary adjustments to
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their practices and policies when President
Biden was elected he promised to have the
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most union-friendly Administration ever and
he is fulfilling that pledge so buckle up and
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hang on for this wild and wonderful ride in the
world of labor law welcome back to the labor law
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Insider we're really excited to have you join us
for part two of our discussion of the labor law
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developments in 2023 and what we can anticipate
in 2024 Rufino Gaytan and Adam Doerr have been helping
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me with this labor law Insider podcast and we're
going to continue our discussion of some of the
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major developments that occurred last year with
the National Labor Relations Board and then some
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of the ways in which you our friends and clients
and guests might anticipate in taking steps to
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well ameliorate some of the potential problems
that would come if you are not ready for the
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changes affected by labor law in 2024 let's start
again with you Adam thanks Tom it's great to be
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back recapping the labor law Whirlwind we saw in
2023 we talked quite a bit on our last episode
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about Cemex which turned Union organizing and
voluntary recognition on its head and the board
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stair recycle decision which made at least five
work rules in every employer's handbook unlawful
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under the ACT we also talked about strike activity
and a number of other issues but we didn't get to
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talk much about the nlrb's direct attack on
confidentiality and non-disparagement rules
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in Severance agreements specifically but really
in any other context the upshot for me as I read
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those decisions the McLaren decision and and the
GC memo is that we can't restrict employees rights
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to talk about the circumstances leading up to the
severance because that is relating to the terms
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and conditions of their employment at the time or
the existence of the severance because that too is
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part of the conditions of their employment
albeit the separation of their employment
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um what we have to now limit that to then is
confidentiality of the financial terms which
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the general Council suggested is still fair game
to maintain the confidentiality of and then limit
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the kinds of comments that are maliciously false
or knowingly false instead of just the facts and
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circumstances leading up to the severance yeah
and you think about that it's all big deal so
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you don't have a non-disparagement clause in
there or confidentiality clause and so forth
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um but the reality is that some of these toxic
employ who have to be let go want to have a big
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mouth and they want to brag about how they got
the employer and how awful the employer was so
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some of my clients are just not going to be at all
uh excited about having an agreement that doesn't
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have confidentiality or non-disparagement rafino
are there other ways to skin that cat or are we
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sort of stuck you know I I think it's a similar
calculation here in terms of the risk right you
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can try to include those non-disparagement
type restrictions in the agreement and you
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know the confidentiality as well and hope that the
employee actually just lives up to the agreement
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knowing that you have a risk with the board
at the end of the day though when whenever I
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bring the this issue up to clients at the time
of offering somebody a severance agreement a
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lot of clients have opted and I've seen this is
of course just anecdotal from my practice but
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I've seen more clients decide not to offer any
Severance at all and take their chances if the
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employee files any sort of a charge because they
don't want to have to deal with this uncertainty
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of if I pay this person a pretty tidy sum of money
to keep quiet but I can't actually enforce them or
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enforce that requirement like what am I really
buying I'm buying just the security of not being
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sued but even then that's a somewhat of a limited
restriction as well so I think that the if the
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board was trying to create a more favorable field
for departing employees I I don't know that that's
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working because I think the the flip side is some
employers will just say okay we're not going to
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give you anything because we can't actually
buy your silence and if you're going to go be
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loud about it anyway we will we will preserve
our opportunity to defend our claim anyway you
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can uh go pretty far on including things like non
defamatory conduct but beyond that it's going to
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be very difficult to have something that might
not be non forceable and even itself be a ulp
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oddly enough under the stair cycle decision it's
a it's a world of difference and I would call 2023
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maybe the change in Risk calculus how are you
looking at the risks that have been created by
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a number of things uh including board action
both GC general counsel memoranda as well as
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the cases that have been decided which are going
to be subject to appeal we'll see if the courts
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love all of this stuff but the other part of the
calc that I want to sort of switch to right now
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is what I'll call the warm and fuzzies about
unions and how that has affected their ability
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to use strikes as a mechanism to uh great make
greater demands in the marketplace and to engage
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in Union organizing um and they can do both of
those things with more tools now than they had
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had previously so we've heard back in various
times of the year I think beginning in June J
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July August um the 2023 was the year of the strike
and now we've got the whole thing in the bag Adam
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was 2023 a time when unions felt striking was
going to once again be advantageous to them
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it almost all been but abandoned for a decade or
15 years strikes have certainly been strikes and
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other labor activi is hard to always pinpoint and
label of protest and picketing and Strikes um put
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them in their respective buckets but overall labor
protest and strike activity did continue to rise
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in 2023 and that was after a surge in 2022 which
came on the heels of stober in late 2021 so the
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unions have continued to push forward with strikes
and and similar activity and that that increase
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sure did carry through to 2023 including with
some very high-profile strikes um in in a time
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when uh interest rates and inflation were through
the roof and just it was it was it was quite an
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impressive run of of strike activity and and at
least claims of success too it's hard to always
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know exactly what the Delta is that comes out of
a strike but certainly a lot of headlines and a
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lot of seemingly favorable press for the unions
yeah GM and Ford and the Chrysler organization
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all had the the big three response to the strike
activity and it didn't take money out of all of
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the employes Pockets which is one of the you know
big deals for employers right to say if you want
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to go on strike you're going to have to have one
hell of a big increase which I'm not prepared to
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offer to ever make that up in lifetime but when
you only have 10% of the employees engaged in
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the bargaining out at any given time it doesn't
necessarily Nick everybody's pocketbook it becomes
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an even more potent uh weapon interestingly
in Wisconsin one of the units found out that
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their plant was being closed as a result of the
negotiations even though they too were on strike
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weird stuff like that so do we predict that we're
going to continue to see this U move towards job
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actions towards work stoppages towards protest
and picketing in 2024 rafina what do you think I
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believe so I think that the unions have um come to
the conclusion that this is an effective tool for
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them to use I don't know how effective it actually
is I mean you mentioned the the cost issue a bit
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Tom but I do think that in many situations it
does become a drain on the employee and and
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certainly employers you know suffer financially
as well from loss revenue or production as well
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but they're in a much better position typically to
hang on and and kind of Outlast the employees the
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thing that I think sort of gets lost in the weeds
with strike sometimes is this idea of you know
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extracting more money from employers and if you
do that you can do that by hitting the employer
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by creating a disruption to their production um
I think it's not as cut and dry as employees tend
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to believe I do believe that you know at the
end of the day if you are an hourly employee
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and you are not coming into work you're not going
to get paid and you have to do the analysis of if
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I miss a week of work for this strike how much
of a raise do I need to get in this contract to
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actually make up for that lost money and then at
that point you're just breaking even so whatever
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you know you're going to need even more than
that so the longer the the strike lasts I think
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it becomes even less obtainable for an employee
to reach the goal that they really want in terms
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of bargaining I think the better option in terms
of strike activities and things of that nature
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are to um engage in those sorts of methods like
you mentioned Tom where only a percentage of the
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workforce is coming in and out and they obviously
need to do that in a way that you know still
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impact and hurts the employer's bottom line but
not necessarily the entire unit but from my own
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again um you know just experience in the last
year or so I I've definitely seen an uptick in
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even just the threats of strikes right I mean that
alone is something that makes an employer kind
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of pause a little bit and think hard about where
their bargaining position should be and the fact
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that more and more unions are actually following
through and engaging in strikes activities I think
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should be on every employer's radar especially
those who are currently unionized I agree with
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you know I I I just have two two things to add
to that why I think that strike activity will
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continue in 2024 and that's because I think one a
lot of contracts maybe haven't had the chance to
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go through collective bargaining since coming out
of the pandemic in 2021 or 2022 so they might feel
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that this is their first chance to threaten or
go out on strike if there are cba's coming up for
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negotiation this year and with the presidential
election looming the fall unions might see this
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as at least their last sure chance to have a
friendly Administration we we don't know what
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will happen in November but at least until then
I think unions are going to continue their push
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very hard um so we've had um more than 500,000
people affected by work stoppages last year um the
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other thing that we're seeing an increase in is
Union organizing activity over the past few years
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uh we've seen a number of uh different scenarios
and Union win rates have increased Adam tell us a
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little bit first of all about what the unions are
doing in the organizing World in 2023 unions are
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just cool now again I think it's um when you when
you look at the polls it's shocking how dramatic
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the difference is in Union sentiment based on age
of all the different factors that seems to be the
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single largest difference today's youngest workers
are the ones who most at least publicly say that
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they support unions and they have a positive
impact so for one reason or another unions have
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done a good job being cool again and I don't know
if that's um just part of the administration's
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work as well but that to me is one thing that
tells me that this isn't going away anytime soon
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because it's not just about somebody's political
ideology or their or anything else it's it's an
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it's a generational difference and so we have
somewhere between 13 and 14400 maybe even 1500
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elections last year depending on uh whether they
were just RC elections or others and the unions
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were winning More than 70% of those elections
how does that compare rafino to Union election
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activities over the last um decade in the last few
years it's certainly a um an increase in the win
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rate um you know typically you have a little bit
more of a level playing in terms of the outcomes
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but you also have to keep in mind that when
a union either demands recognition or files a
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petition for an election they already believe
they can get majority status and they've been
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planning this for months um ahead of time before
the employer catches wind of the fact that there's
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an organizing drive going on so you expect to have
um you know more better than 50% outcome for Union
0:13:59.080,0:14:07.040
here that said to Adam's point there is you know
I think some of that success in recent years for
0:14:07.040,0:14:13.520
unions can be chalked up to this idea that yeah
they are cool again um they are making very good
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use of social media in a lot of instances if we
go back to the Amazon situation where Amazon had
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a former employee arrested on their grounds and
you know that is sort of uh of course recorded on
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video and then spread on social media uh there's
a sort of sense of like a social justice component
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which also coincided very heavily with all of
the the political issues that were going on a
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couple years ago and especially with regard to
police uh you know issues and and all of those
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things so the media coverage around it I think has
certainly helped if we go to 20123 with the Screen
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Actors and The Writers um you know again that
is a demographic that just by its very nature
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is sort of cool right I mean they these are the
people who make and produce and write shows that
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um we uh use for entertainment and can all sort
of relate to and they're using a lot of those
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different media issues uh very effectively and
I do think that to the extent that an employer
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has any sort of um indication that an organizing
Drive is going on in their workplace their most
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important issue is is going to be to try to
communicate with those employees and to try
0:15:32.320,0:15:37.680
to address as many issues as they can before an
election petition is filed you talk about the uh
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social media and all that I think I think part of
it is also how they've done a good the unions have
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done a good job of getting out the message that
union busting is disgusting and so any resistance
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or opposition or refusal to just let a union in
by voluntary recognition that a automatically
0:15:59.160,0:16:04.120
gets companies labeled a union Buster and the
bad press that comes along with that I think
0:16:04.120,0:16:10.800
that's also helped fuel the generational change
and the social media use uh in in organizing I
0:16:10.800,0:16:16.800
agree 100% Adam there there have been uh many
clients over the last uh you know couple years
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who are very hesitant to even Mount any sort of
a campaign against the union effort right so they
0:16:22.000,0:16:29.520
take a very hands-off approach and as expected
it results in their Workforce becoming Union I
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do think that employers need to keep in mind that
the short-term benefits of not being labeled a bad
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guy or Union Buster or a a non-union friendly uh
you know um establishment those gains impact your
0:16:46.120,0:16:52.280
workplace potentially you know forever uh because
now you've got this bargaining representative that
0:16:52.280,0:16:58.120
is charged with negotiating on behalf of your
employee so you have to take that into account
0:16:58.120,0:17:03.800
when making those decisions about how to campaign
if at all but you know you shouldn't just do it
0:17:03.800,0:17:09.880
to avoid the negative press that you might get
on in the short term you know we've talked um
0:17:09.880,0:17:15.800
a lot in the last year or two on the labor law
Insider about these changes and when I ask as
0:17:15.800,0:17:23.560
I normally do towards the end of a podcast so now
what lots of times the answer is greater training
0:17:23.560,0:17:31.240
awareness and so forth I would think that we have
to Triple down on that that is that you have to
0:17:31.240,0:17:36.440
go and take a look at your handbooks and determine
whether or not they may have some Provisions that
0:17:36.440,0:17:42.280
under the stair cycle decision are not going to
pass muster anymore that you're going to have to
0:17:42.280,0:17:49.360
look at training your supervisors and your line
staff about positive employee relations without
0:17:49.360,0:17:55.240
giving up you know your ability and your need
to appropriately and proactively manage and
0:17:55.240,0:18:01.800
your last comment um about you know unions are
cool and busting is disgusting suggest that you
0:18:01.800,0:18:07.840
better have your campaign before the union shows
up in other words you better be investing now or
0:18:07.840,0:18:14.720
at least my advice to clients is investing now
in positive proactive uh relationships with your
0:18:14.720,0:18:20.600
employees so that you don't have to look like
uh the bad guy becoming educated when the union
0:18:20.600,0:18:27.160
shows up but say no look all along we've been
protecting our joint interest we are together in
0:18:27.160,0:18:32.920
this um are we seeing a move towards those kinds
of activities by our clients or um are we still
0:18:32.920,0:18:38.120
seeing a little hesitancy because they might not
have been touched directly by a union campaign or
0:18:38.120,0:18:44.280
a threat of a strike there's still a fair amount
of hesitance to I think recognize or admit that
0:18:44.280,0:18:49.960
a company is vulnerable to Union organizing or
maybe there's a lack of time or it's not in the
0:18:49.960,0:18:54.400
budget there's aund reasons why we might wait till
tomorrow quote unquote to address it because it's
0:18:54.400,0:19:00.920
not it doesn't feel urgent today but I am seeing
more clients ask for a review of their existing
0:19:00.920,0:19:06.720
materials or a pulse check on what they should be
keeping their eyes out for or doing that Frontline
0:19:06.720,0:19:11.600
supervisor training just so that they know what
to look out for and what it means um and that's
0:19:11.600,0:19:17.680
that's critically important at a minimum making
sure you know who your supervisors are and make
0:19:17.680,0:19:22.960
sure they know what to do even if it's just to run
out the chain so we can get get going but the more
0:19:22.960,0:19:29.680
that you can have this um prepared and ready to go
beforehand the less you'll be Chas in that 20-day
0:19:29.680,0:19:35.320
window that we now have before an election good
advice Adam and Rufino last word thoughts as we
0:19:35.320,0:19:43.680
close out 2023 and look to 2024 absolutely uh I
like to tell clients who do not yet have unions
0:19:43.680,0:19:52.080
ask yourself what do I need to do as a manager
or supervisor or executive to really make my
0:19:52.080,0:19:58.360
employees think hard about whether to support
a union so in other words if the employee asks
0:19:58.360,0:20:06.520
you know themselves what can a union do for me
here if the list is you know two pages long good
0:20:06.520,0:20:13.760
luck if the list is only a couple of items you're
in a really good spot so that requires it really
0:20:13.760,0:20:20.960
demands communication between management and
the employees to understand what issues make
0:20:20.960,0:20:26.640
the employees tick how do you address those
problems when they become recurring problems
0:20:26.640,0:20:31.000
especially you want to make sure that you have a
plan of action to address them resolve them and
0:20:31.000,0:20:36.560
prevent them coming up again so being proactive
really and it doesn't mean you have to spend
0:20:36.560,0:20:42.680
hundreds of thousands or even tens of thousands
or thousands of dollars you just need to focus
0:20:42.680,0:20:50.280
on how do you make life at work better for your
employees and how do you explain to them when
0:20:50.280,0:20:56.080
you can't do some of the things that they really
want you to do for them whether it's a cost issue
0:20:56.080,0:21:01.720
or those sorts of things transparency is a word
that I have heard more in the last year when it
0:21:01.720,0:21:07.880
comes to collective bargaining than I'd ever heard
in my you know prior 13 years of practice as as
0:21:07.880,0:21:14.720
a labor attorney so employees want to understand
the decisions you're making and why you're making
0:21:14.720,0:21:20.600
them and the more you communicate with them
about those issues um I think you have a much
0:21:20.600,0:21:26.560
better relationship with them and it makes that
question of whether I need a union a little bit
0:21:26.560,0:21:32.640
more favorable for you as the employer I love that
I summarize that sort of attitude as treating your
0:21:32.640,0:21:38.400
employees like adults um giving them information
that's the same kind of information you use to
0:21:38.400,0:21:44.640
make decisions especially hard decisions trusting
them to understand that hard decisions sometimes
0:21:44.640,0:21:49.760
have to be made but this has been really helpful
I know that um you know where I on the other side
0:21:49.760,0:21:55.080
that is not the lawyer but the client calling
you up and having you with a sort of outside view
0:21:55.080,0:22:00.200
that's broader than just that one uh organization
or even in one industry or one geography is is
0:22:00.200,0:22:06.240
going to be helpful and I hope that our listeners
have felt that as well that this broad stroke
0:22:06.240,0:22:12.040
treatment of what happened in 2023 and what it
augures for 2024 allows you to be a little bit
0:22:12.040,0:22:18.880
better prepared for what is likely to be a pretty
challenging uh next couple of years so gentlemen
0:22:18.880,0:22:24.000
thank you very very much uh for joining the labor
law inside our podcast sharing your experience
0:22:24.000,0:22:31.680
and your insights thanks so much thank you
thanks for having to me take care now [Music]