This transcript has been auto generated
00;00;02;19 - 00;00;24;15
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;25 - 00;00;51;03
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 guest 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;08 - 00;01;26;23
Tom Godar
It's a wild ride, so buckle up and come and join us on the Labor Law Insider podcast. It's wonderful to have you back on the Labor Law Insider podcast. We're about to share part two of our incredible discussion with Rebecca Dormon. She is a assistant regional director at Region 15 for the last part of her career. And in that role, she was given a task along with others from around the country, to help supervise the hundreds of elections among all of the other work that she did in Region 15.
00;01;27;13 - 00;01;54;20
Tom Godar
Out of that emerged a discovery that in her estimation, the manual wasn't being followed. That is, the gold standard of elections, which historically had been in personal elections, had given way to a lot of mail ballot elections. And within that context, things that shouldn't be taking place were taking place in these various elections. We're going to continue our discussion with Rebecca and Megan as she shares as well.
00;01;55;00 - 00;02;28;26
Tom Godar
We're going to continue to learn more about what this whistleblower phase of her activity meant and what we might see changing because of her step forward in this very uncomfortable situation. Thanks again, Rebecca. You've expressed a few times and eloquently that you and frankly our expectations as Labor practitioners is that people with the NLRB are pro employee. Yet there's this sinking feeling as you talk and sometimes a feeling when we've worked through regional activities that there might be a union bias.
00;02;29;00 - 00;02;52;04
Tom Godar
I know that the folks on our side would say that. I suspect some union lawyers would say the other. Right. So I'm not saying we're right about it, but we've had that sinking suspicion. When you emerged as a whistleblower, what was the tenor of that? What was the blowback and what was your assessment of how the rest of your colleagues were looking at that kind of announcement to ultimately a congressional committee?
00;02;52;12 - 00;03;28;04
Rebecca Dormon
There were a few of them who called me up to express support. Some of the older assistant regional directors who had been around who are also taught what does the manual say and who were also not implicated by that report. But I'd have to say, by and large, it was either treated as the elephant in the room. And just there was very, very uncomfortable conversation with colleagues around the country as if they were afraid to talk in front of me, as if they thought I might turn them in, or either outright disdain or there was a lot of displeasure above me.
00;03;28;11 - 00;03;58;27
Rebecca Dormon
That includes DC. While nothing specifically happened to me, it's definitely a cold shoulder, but in the end I'm glad I did it because it's worth it. It's not what the NLRB stands for. It's actually tthe NLRB and I have a philosophical difference at this point. It seems to me that while it's not written down, but through the initiatives and through advice, memos and through unofficial direction, it is definitely pro-union.
00;03;59;20 - 00;04;25;03
Rebecca Dormon
I happen to know that unions who didn't like some things and stipulated election agreements or who would meet with AGC. And actually I had it happen to me in one of my hearings that I held not too long before I left the union and requested participate by Zoom. I allowed it. I forced the employer to come in person because it was in town and they actually preferred to come in person.
00;04;25;03 - 00;04;52;15
Rebecca Dormon
So it wasn't too much of forcing. So I had employer counsel sitting in the courtroom with me. I had union counsel on Zoom, but I had to turn the computer funny so that they could see the witness and they really couldn't see me because you can't get the entire courtroom in on a Zoom call. And I was chatting with the employer's counsel while our court reporter, who had a broken foot once on a walker, had gone for a break, and it took her a little longer to walk on the walker.
00;04;52;24 - 00;05;11;08
Rebecca Dormon
And I was chatting with employer counsel about upcoming Mardi Gras, which was in a couple of weeks. Everybody was talking about King Cake. And finally, the employer's attorney exploded on there instead. We get back to the hearing and I said, I've allowed you to be participate by Zoom. But if you were here, you can see she has a broken foot.
00;05;11;08 - 00;05;28;02
Rebecca Dormon
She's on a walker. And we cannot start until the court gets back. I know that he cannot participate in the chatter with us. And then he turned to me. And from being biased to the general counsel, it was with the American Federation of Teachers, not even a union I had been involved with, but he turned me in for being biased.
00;05;28;02 - 00;05;59;22
Rebecca Dormon
And then he called the general counsel because he said it was at a school and granted we could have scanning in at the school year and we'd not issue the decision and direct civil action yet. And so he asked the general counsel and we got phone calls from DC who gave us a very strict deadline that within the next five days we had to issue it because the union wanted it held before the end of this coming school year, which was in May, where the NLRB still could have held it at the beginning of the following school year because most teachers do come back.
00;06;00;07 - 00;06;10;01
Rebecca Dormon
I mean, not all of them, but most do. We could have set a hearing date in this school year so that if, you know, we could have done several things. But I do know the general counsel entertained that.
00;06;10;14 - 00;06;45;26
Megann McManus
You know, it must have been very awkward going back to the, you know, sort of uncomfortable situation post, shedding light on all that was happening. And it certainly was probably uncomfortable for some of your colleagues in other regions to have their name, you know, appear on that report. But I want to you know, for the sake of our listeners, it's very interesting to me how all of this was set off by a you know, you mentioned it was sort of national elections going on at the company, but this particular election happened in Kansas City.
00;06;45;26 - 00;07;11;09
Megann McManus
It was a very tiny election that was only 20 employees and there were only seven employees that voted in that unit, which is also, I think, kind of interesting to always make that point that like these elections are decided by who votes. And only seven people showed up to vote out of 20 and six voted in favor of the union, one voted against.
00;07;11;09 - 00;07;34;09
Megann McManus
And just I kind of think that's an interesting point to make, but why in March of 2022 is where we are in time when all this is happening. Why was it a mail ballot election for, you know, obviously baristas are working not remotely. It was only 20 people. Why have a mail ballot then?
00;07;34;28 - 00;08;08;01
Rebecca Dormon
The regional director felt it was the appropriate way to have it. Regional directors have a lot of discretion to decide extraordinary circumstances beyond just, say, the scattering of employees geographically over work schedules, or if there's a strike, lockout or picket or, you know, anything like that that would prevent the NLRB from coming in to be able to hold an election even over multiple times, to be able to get everybody its start at the beginning of end of it, more than one shift or the beginning of end of more than one day, which we've done before.
00;08;08;01 - 00;08;21;16
Rebecca Dormon
We do split sessions all the time, as you know. And Tom, you've done your fair share of those. And there was the region's preference to do a mail ballot. You know, I have to follow the regional directors wishes I was just only help.
00;08;22;00 - 00;08;44;27
Tom Godar
Well, you know, it's tough to position to be. And when the regional directors made that decision, even if you feel comfortable that a different decision could have been made, and it's much more uncomfortable when you find out that even that isn't being followed. How long did you stay with the board after you had discovered that first election that you just talked about or compelled to provide additional information?
00;08;45;25 - 00;08;52;14
Tom Godar
How many more months did you stay with the board before you made a pivot to your new opportunity?
00;08;52;24 - 00;09;14;00
Rebecca Dormon
I stayed a while, hoping to see some reform, hoping to see some changes, hoping to see less mail ballots, hoping that there would be I don't want to say repercussions because I don't want anybody to get into trouble. But I wanted to see reforms and ways to ensure the manual is followed and that everything is consistent across regions.
00;09;14;10 - 00;09;35;05
Rebecca Dormon
I didn't leave until July of 2024 after not seeing anything. I was like I said, I got I was supported by some colleagues, but there was a definite cold shoulder from up above and DC and I saw no reform, no change and knew that this philosophical difference was not sustainable. I couldn't stay.
00;09;36;02 - 00;10;00;19
Megann McManus
You talk about, you know, hoping for change and hoping for reform and post all of the misconduct coming to light. And that very detailed report that was published and is now online for any of our listeners that want to read it. This is all very obviously very public information. The inspector general ultimately did an audit, which is kind of interesting.
00;10;00;19 - 00;10;24;21
Megann McManus
And I know you mentioned you called them originally and they said, well, this is not really my area. But ultimately they did perform an audit and issued a report of that audit that I believe was signed in May of 2024, just before you left, a couple of months before you left. And in that audit, just some highlights from that audit.
00;10;24;21 - 00;10;52;29
Megann McManus
It mentions one particular region, 19, where they determined that 56% of the mail ballot elections had issues with ballots not being received by voters. There were just a few regions that sort of highlighted, like most of the the mail ballot elections, there were problems with them. And the conclusion was that there are not enough internal controls to ensure that this doesn't happen.
00;10;53;14 - 00;11;23;09
Megann McManus
And back to your point about the manual, what does the manual say? What does the manual say? The inspector general also mentioned that the manual probably should be updated and be much more expressly addressed. Certain situations give really specific guidance, and that's the recommendation from the inspector general. So my question to you as to what's happening with that report, if anything.
00;11;23;14 - 00;11;50;17
Rebecca Dormon
I'll start off first by saying that when I first reported it to the inspector general, he told me it was outside his purview. Strangely, after I got subpoenaed by Congress and I will tell you, I got a call from his office after there was an initial letter that the company wrote to the inspector general. It was about a 16 page letter in August of the prior year to outline this conduct and outline everything I told them, and they did not name me.
00;11;50;17 - 00;12;16;04
Rebecca Dormon
I was anonymous in their letter, and so I stayed anonymous from August until the following March. But the Inspector General called me about a week after that initial letter went out in August, the year before, and he said, I now understand what you were trying to tell me. So I do have to say that I, you know, make sure that their records clear that he did call and say, oh, wait a minute, oh, I get it now.
00;12;16;24 - 00;12;46;15
Rebecca Dormon
So he did that. And then there wasn't much that went on for the longest time. And then I got subpoenaed. And then he started investigating whether or not my compliance with a subpoena violated the National Labor Relations Act in and of itself. The House Oversight Committee did have to kind of grab him up and have a meeting with him and tell him, I'm sorry, we created your office and we can investigate you.
00;12;46;15 - 00;13;04;11
Rebecca Dormon
It is not the other way around or for you to investigate Congress and whether we were overreaching or asking her to provide documents. And so it took him a while to even start the report. And then once he started it, it took, as you imagine, quite a while to finish it. And when I left, there was nothing that had been done.
00;13;05;01 - 00;13;27;17
Rebecca Dormon
Or if there was, I couldn't see if anything had been started. The manual had been rewritten. I had served a 90 day detail when they changed the rules on December 26, 2023, and we rewrote part of the manual for those rule changes. So I do know that they solicit field personnel. When you're rewriting the manual to serve details.
00;13;27;17 - 00;13;39;13
Rebecca Dormon
And when I left, nobody had started it, nobody had suggested it. There was no memo that came out with the traffic controls or guidelines. There was still nothing that happened and that still bothered me.
00;13;40;12 - 00;14;05;08
Tom Godar
Rebecca, you were the first opportunity. You've spoken out publicly about this. Otherwise, it's been through congressional subpoena and so forth, and we can't tell you how grateful we are to have that opportunity to talk about this with you. And I'm sure our listeners are really ecstatic that you're able to to speak so plainly, tell us where your pivot is to what you're doing now and what you expect to see from the board over the next period of time.
00;14;05;27 - 00;14;36;25
Rebecca Dormon
I pivoted to go to I.R.S. Consultants. It's a management side consulting firm. I chose them because they're very cutting edge that you help employers implement comprehensive labor relations strategies. They've got four different areas that I've been involved in so far labor relations, people, organization and change and communications and Digital Solutions, which includes like website groups with employees to look about using AI in the workplace.
00;14;37;11 - 00;15;01;20
Rebecca Dormon
We help do training with managers and supervisors only. We do not speak to our hourly bargaining employees. We are not persuaders. We actually do the training for even a lot of non-unionized clients to address issues upstream before they become problems downstream. We work hand and hand with a lot of labor law firms. You all can provide attorney client privilege.
00;15;02;12 - 00;15;28;27
Rebecca Dormon
We can provide some solutions and training guidance. And obviously, if you get the petition, we can provide a lot of assistance in helping develop whatever strategy you need to train your trainers, to train the management team and supervisors, how not to break the law and how to work with you all. To have you read any and all communication pieces we might have written to ensure that they everybody stays on message.
00;15;29;12 - 00;15;59;11
Rebecca Dormon
And I really like this slide because again, it's about education. The classes I've taught so far are pro growing, employers are pro employee, and most of them don't want to break the law. And so we help give resources and tools in. It's a great way to use my NLRB background and it was a fairly easy segway into that and I had already made a fair number of contacts and I've enjoyed working with and now we're working with the attorneys side by side to help both unionized and non-unionized clients.
00;15;59;11 - 00;16;03;13
Rebecca Dormon
And clients who are currently going through the unionization process.
00;16;04;05 - 00;16;26;03
Tom Godar
You know, was a bromide when I started my labor practice many decades ago that an employer who found an intellectual loss probably deserved a union. In other words, a good employer should be able to have their relationship in such a way that employers would find it unnecessary to have a union speak for them. But things are changing there.
00;16;26;03 - 00;16;47;04
Tom Godar
We've never been in a more union friendly climate, according to the various polls we're seeing. We're seeing more elections and so forth. We've talked about that extensively in our podcast. We've seen changes in the laws. Megan's helped us when we've when she's been a guest before, talk about some of these changes in case law about remedies, which is crazy and I'm sorry, I think it's crazy.
00;16;47;04 - 00;17;10;07
Tom Godar
Others might disagree that it's way overdue, but that's my position. But now that you're with Ira and I suppose you're a little bit in the prognostication business, what will we likely see over the next period of time? And we're now in an election season with a presidential candidate who really had not been much vetted on labor issues. On the Democratic side, what are you seeing and what are you thinking and what are your colleagues telling you?
00;17;10;17 - 00;17;37;08
Rebecca Dormon
We're seeing, strangely, even though it's an election year and there's a myth that decisions go down during election years because the unions are out there campaigning, we're seeing the exact opposite just so far through June 30th. I'm sure you all talked about it extensively. There have been over 1520 petitions filed and unions are not withdrawing. They've only withdrawn 300 petitions and the unions have got a 78% win rate.
00;17;37;08 - 00;18;04;20
Rebecca Dormon
This is across all industries. Health care is one of the biggest ones. Transportation is one of the biggest ones. And service employees, probably thanks to the company. But it's a younger generation of employees. Like you said, you started this podcast. They respond to social media, they respond to I. And it's just not the same as it was. Like, you get to go back to your point that it used to be a bad employer or deserved a union, but now any employer might end up with a union.
00;18;05;05 - 00;18;36;09
Rebecca Dormon
HARRIS Without much labor backing or much of a track record is gaining on Trump. And we're concerned that she may actually win and it would make Jennifer Russo look like a Trump era. GC I'll just put it out there that anybody she would put in as GC would be more progressive. It's not a secret. Jennifer Rizzo's term ends either if Trump is elected on Election Day, because I'm sure that payback is coming for Peter Robb's firing on Biden's Inauguration Day, not Election Day.
00;18;36;23 - 00;18;55;25
Rebecca Dormon
I'm sure the payback is coming, so it'll either end in January with a Trump win or it will end in July. And a Brousseau is not has not been a Harris person. Harris has her own people. I'm not sure who they are yet, but Harris has her own people and she likely will not be put in for another term.
00;18;56;05 - 00;19;19;15
Rebecca Dormon
But in order to preserve the board staying democratic, even if Trump wins, she has done it packaged Deal nomination of our current chair and Lauren Mcferran, whose term ends December of 2024 and along with a labor law attorney, Josh Dyersburg, they're doing it to fill the one Republican seat that's vacant on the board. And she's trying to get that through.
00;19;19;15 - 00;19;32;03
Rebecca Dormon
And if that goes through, then it will stay a Democratic board even if Trump is elected until Dave Prouty member party's term ends in August of 2026. So this craziness is not going away anytime soon.
00;19;32;18 - 00;20;06;07
Megann McManus
And given that fact, right, that we know and given your insider experience at the board and what you know about what happens with elections and given the spike in petitions, how are you now as a consultant and viser to employers advising them on what they can do to ensure that elections are fair, that the region is meeting the gold standard that we all hope was the goal.
00;20;06;22 - 00;20;28;04
Rebecca Dormon
We were having employers, non-unionized employers who could have a petition in the future or who have gone through a reorganization, due bargaining unit analysis so that they will be prepared. We will make recommendations as to who is a statutory supervisor and who isn't. So we can work with lovely attorneys such as yourself and Tom, in case it needs to go to a hearing.
00;20;28;14 - 00;20;50;24
Rebecca Dormon
They will know what legitimate reasons. There are a raise. You'll be a step ahead. Also, there's training to be done with managers and supervisors, and you need to know for frontline supervisors and then we would advise at this point and I'm sure that as attorneys, you all might also agree, you can litigate mail versus manual if you think the regional director is taking their authority too far.
00;20;51;06 - 00;21;12;01
Rebecca Dormon
And there is nothing wrong with employer counsel litigating mail versus manual to show it does not meet any of the factors that are commonly used to determine whether or not a mail ballot is appropriate. And if you can't if you can't come to an agreement on a mixed manual, if there is a problem with shifts or locations, try for a mixed manual.
00;21;12;01 - 00;21;17;27
Rebecca Dormon
And if you cannot get even get anywhere with that, I would highly suggest take it to a hearing. There's nothing wrong with it.
00;21;18;11 - 00;21;30;22
Megann McManus
Would you say that given what you know about, you know, your understanding that reforms haven't really happened, that employers should just always advocate for manual election ballots? Is that the recommendation?
00;21;31;01 - 00;22;01;05
Rebecca Dormon
Absolutely. Absent any specific circumstances, such as you have over the road, truck drivers, which obviously is just almost impossible, I would advocate for a manual. In fact, one of the last elections that we did prior to my leaving was at a pipeline company. They had two job sites and the jobs were indeed wrapping up in the employer requested a 12 day election 12 days from the filing of petition just to get a manual election.
00;22;01;19 - 00;22;19;20
Rebecca Dormon
One of the job sites was in Texas, so we had to get Region 16 on board. We had to get ballots and notices translated. I had to have the employer's full cooperation about as fast as we could get the stick, and they had to agree to post those notices. And then, you know, it was just it was an insane couple of days just to get it together.
00;22;19;20 - 00;22;38;17
Rebecca Dormon
But we were able to to ensure because the employer really, really was against a mail ballot election, wanted a manual. And so the region did scramble and do everything we could to make sure that we did hold it in time. Like I said, it's very unusual for an employer to request a 12 day election.
00;22;39;03 - 00;22;40;19
Tom Godar
Draw is curious.
00;22;41;00 - 00;23;03;07
Rebecca Dormon
That an attorney told me it gave him heartburn. He's like, I've never run one that fast. This gives me an unfair fight of what's going to happen. The employer actually won 58 to 13. The union filed 27 objections to the election. I'm like, how can that happen in 12 days? Which I don't know what. Ultimately, what happened when I left, they were pending.
00;23;03;17 - 00;23;09;18
Rebecca Dormon
I'm not really sure how 27 elections can occur in 12 days, but it can be done.
00;23;09;18 - 00;23;14;17
Tom Godar
And I guess so if you have a superstar like you. Rebecca running point.
00;23;15;01 - 00;23;28;06
Rebecca Dormon
I don't know. Well, that actually should be the attitude of all board employees. We can and we will. If there's any way to adhere to a gold standard, you should, no matter what it means.
00;23;29;04 - 00;23;53;11
Tom Godar
You know, we talked even before we started the recording that we could have this conversation all day. It's clear we could and we would love to hear your insights on where you think the board is going to go ultimately with some of the issues related to the various ways in which remedies are now being described. They're scary, including, of course, the union without an election or a positive vote in an election, but that might have to wait for another time.
00;23;53;11 - 00;23;55;18
Tom Godar
Could we call upon you again sometime in the future?
00;23;55;18 - 00;23;58;02
Rebecca Dormon
Rebecca Absolutely. I'd love to come back.
00;23;58;17 - 00;24;10;23
Megann McManus
But like we said, you're the ultimate insider and we know that you can give us. Yeah, lots of really good insight into things like the new blocking charge rule.
00;24;10;23 - 00;24;13;04
Rebecca Dormon
You have some background on blocking charge.
00;24;13;04 - 00;24;23;21
Megann McManus
Around on so on that that's on the Viking charge rules and the next case that's I mean how wild that world is.
00;24;24;16 - 00;24;45;26
Rebecca Dormon
Yeah the boards issued their first order and that and that's not going to be the last they're about to come fast and furious it's yeah I would love to be I would be honored to be back to continue and I appreciate your letting me tell my story. As I said this year, I've had a little one on one conversations, but I've never told it in this detail, nor have I told it publicly.
00;24;46;09 - 00;24;46;27
Megann McManus
We're honored.
00;24;47;13 - 00;25;14;09
Tom Godar
Well, we are really pleased that you were able to share your story. We're really pleased that the labor law insider was your vehicle. And I think it was just great, Megan, for you and Rebecca to be able to share both of you as being insiders, having worked on both sides of the fence now just for a month for you, Rebecca, but for some years, where you begin to say, how does this work when you're looking at it over the fence rather than inside the yard?
00;25;14;09 - 00;25;26;26
Tom Godar
So thank you so much, each of you, for your participation in the Labor Law Insider and thank you listeners for joining us on this really fascinating a little bit scary tour. What goes inside the machine?
00;25;27;04 - 00;25;32;07
Rebecca Dormon
Thank you. Thank you. Look forward to talking to you all in the future.