This transcript has been auto generated
00;00;02;23 - 00;00;38;02
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;20 - 00;01;05;02
Tom Godar
These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies. When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.
00;01;06;13 - 00;01;31;17
Tom Godar
Welcome back to the Labor Law Insider. This is part two of our really fun series on collective bargaining. If you joined us for part one, you had the pleasure of listening to my colleagues, attorneys Adam Doerr and Jon Anderson, both having engaged in lots of collective bargaining. And Jon is sort of my contemporary. So by age status, he has had more of those contracts.
00;01;31;29 - 00;02;00;29
Tom Godar
And at the end of part one, we were listening to Jon talk about how important it is to really have some ground rules established to enter into bargaining, looking to meet and create a relationship, even though there's going to be obviously a distinct difference between the goals that the union has or might have and the goals that our clients or you as organized employers might have.
00;02;01;24 - 00;02;27;11
Tom Godar
I continued our discussion with a little story of my own, where things didn't go quite as well as I would have liked when new parties entered into the bargaining scene. We'll pick up part two there and then we'll continue with our discussion with insiders Adam Doerr and Jon Anderson. I remember having had the opportunity to be engaged with the union in bargaining after a company bought the business.
00;02;27;11 - 00;02;47;27
Tom Godar
And so I was the first guy representing that company. In fact, we bargained before we had the sale because the client had to know whether or not they could afford this business. And so we had to have a pre bargaining, which was an interesting session. The law is a little bit vague about how much authority I had to bargain, but when all the parties agree that you can be in the room, then you can be in the room.
00;02;48;08 - 00;03;17;13
Tom Godar
But we had about three successful interactions, and then the company itself was sold to a large international player and they sent in their a labor relations guy. And while they allowed me at the table, I was now not the spokesperson but a consultant. And that guy decided he had to win the first session. And it became a colossal cluster after he'd decided to win.
00;03;17;13 - 00;03;36;26
Tom Godar
And of course, the union guy, he had to win, too. And so we had two bulls charging at each other. And I'm going to tell you what, nine weeks later, there was a strike because there was that desire to win personally, not for the client. How do you deal with it when you don't necessarily want to be that ball?
00;03;36;26 - 00;03;53;24
Tom Godar
But there is this union guy or union gal both who really want to impress their committee with a win and be a hard nosed person and insist, for instance, even in the rules that you're talking about, they have to get a win. How do you diffuse that or can't you? Adam, what do you think?
00;03;54;09 - 00;04;20;24
Adam Doerr
I liked Jon's point about wanting to be the lead spokesperson, and I think that's important for a couple of reasons. But to your question Tom, I always tell the employer, the client, that we have to expect a certain amount of theatrics from the union bargaining team because they have to show their bargaining team that they're fighting hard and they're making these big, strong demands.
00;04;21;03 - 00;04;40;12
Adam Doerr
And I've seen situations, just like you described, where it really goes off the rails on day one because everybody wants to impress out of the gate. And in that situation, we had to caucus. I kind of had to come in and kind of smooth out and say, you know, I'm bummed about how that started. I'd really like to move forward with at least reaching agreement.
00;04;40;13 - 00;05;04;01
Adam Doerr
Jon on ground rules and how we're going to proceed here because that just we just got off on the wrong foot and you just sometimes just pressing the reset button does help that. But if you've at the very least, I think it's worth warning the employer team to expect some, you know, maybe ridiculous, maybe strong demands and just sit there with a straight face and we'll talk about how ridiculous it is in a caucus.
00;05;04;05 - 00;05;07;15
Tom Godar
Okay, Jon any thoughts about how to diffuse that.
00;05;07;27 - 00;05;32;04
Jon Anderson
Yeah, no, I think the key is the advanced preparation that Adam's talking about is really important. But when it happens, try to maintain your cool. Get to the point where you can take a caucus and then you sit down and decide which way to go. And I think Adam's idea of a reset makes some sense. The other approach might be to call the union rep out in the hallway and say, What the hell is going on here?
00;05;32;06 - 00;05;40;12
Jon Anderson
You know, this is not working and, you know, we need to focus on the issues. Let's not pull the theatrics out. I hope you got that out of your system. Now let's move on.
00;05;41;00 - 00;06;19;23
Tom Godar
I recall early in my career bargaining with a very small organization that was getting killed financially. And they really had to have a very what the union would call regressive agreement or awry. And as I was putting this out and telling the union, we were very serious, it might have been the third session, the union representative, the ham handed guy, very experienced, took his hand, slammed it on the table so hard that his watch discombobulated from the band, the face of the watch shattered gears and stuff flew all over the room, as did his blue language towards me and the committee.
00;06;20;11 - 00;06;40;02
Tom Godar
At which point I stood up. I said as calmly as I thought I could, when you want to bargain will be available, but we're not subjecting ourselves to your abuse and walked out only to realize I had never told my committee that when I walk out, they walk out to that. Well, fortunately they did. It took several weeks, frankly, to get back to the table there.
00;06;40;02 - 00;07;11;17
Tom Godar
But sometimes you just have to say this is abusive. It's time to walk out. Frequently? No, occasionally, perhaps for sure. You know, and as you're going through this, there comes a time when you have to decide how to proceed because things seem like they've slowed down or maybe got caught in a morass. Maybe you've tried to negotiate the non-economic items first and you're caught up even there before you get the economic items.
00;07;11;17 - 00;07;37;12
Tom Godar
And the union says, we're just moving on to economics now. We'll work on this later and you say, no, I want to insist that we finish up the non economics. I'm not going to trade off non-economic items for economic. I'd just frankly been a pretty tried and true method of bargaining. What do you do when you start get stuck either on economic items or even towards the end of discussion where you the client has said there's only so much I'm willing to give economically.
00;07;37;24 - 00;07;50;02
Tom Godar
And you were there. And the union says there's only so much I'm going to take back with the recommendation. We're there. How do you unstick stuff in bargaining when starting to get stuck? Jon, what do you think?
00;07;50;16 - 00;08;14;12
Jon Anderson
I think time is your friend and some of this positions that appear to be hard loosened over time, especially if you get to the point where you know the contract has expired, you haven't extended it. There's an incentive for the parties to come to a resolution because people are looking for their raises. So every chance I get, I try to create incentive or leverage points that can be used in bargaining.
00;08;14;23 - 00;08;35;24
Jon Anderson
I typically, you know, unless the labor contract itself deals with the issue, I don't like to pay people to bargain with the company. Sometimes the company does that and agrees to do it, but I always insist that we agree to do it only for three sessions. And then if you ever reach a stalemate and you go into the fourth or fifth year on your own, I always put retroactivity at issue.
00;08;35;26 - 00;09;01;23
Jon Anderson
These contracts are not automatically retroactive. I think that's important to create incentive for people to come to terms. The other thing that I use frequently is if we're not getting anywhere, maybe we need to bring in a third party to help in a mediation context. I don't do that unless the client actually needs to get this settled and is not willing to take a strike.
00;09;01;23 - 00;09;25;20
Jon Anderson
But if they are, if they don't want to take a strike, the mediator will try to use that as an option. It's important to try different tools in the toolbox to see if we can move off the apparent logjam that's there. I've also found that there's nothing better than honesty, that we have no more money. We repackage this if you want, but this is all we have committed to this process.
00;09;26;06 - 00;09;36;17
Jon Anderson
I don't want to tell them we can't afford what they're offering, but I can tell them that this is all we can commit to this process right now, and that usually resonates with folks.
00;09;37;19 - 00;09;51;20
Tom Godar
And it can you draw a distinction. You said, I'm not going to tell them we can't afford this. I'm going to tell them this is all we can commit in order for us to feel confident that we're going to have a good contract with you and so forth. What's the difference? What happens if you say can't afford it?
00;09;52;00 - 00;10;18;00
Jon Anderson
If you can't afford it and you state that you're opening the door for a union request for information about your finances and want to look at your books and see if there's any validity to what you're saying. And that's something that most companies want to resist. They don't want that type of scrutiny. Some cases, they may welcome it because it certainly establishes the basis for the position.
00;10;18;00 - 00;10;25;12
Jon Anderson
But in most cases, the companies, doctor want to do that. So you talk in terms of this is not prudent for us to do as opposed to we can't afford it.
00;10;25;23 - 00;10;51;14
Tom Godar
Well, that's one of those things that I have used effectively, but very occasionally to talk to the client before bargaining, saying, do we want to open up some financial information to them that would not normally be part of it. We want to say we can only go here. Bring your accountant. You work with our count, take a look at it and we're going to work within this parameter and establish a different bargaining sort of idea.
00;10;51;14 - 00;11;01;09
Tom Godar
And I'm sure that you've thought about it, probably done that occasionally. It's not something I do regularly, but sometimes the client finds that that's going to be a very effective tool.
00;11;01;19 - 00;11;02;15
Jon Anderson
Yes, I agree.
00;11;02;26 - 00;11;09;03
Tom Godar
Adam, have you had any sort of insights into how to break some of these logjams or move forward on?
00;11;09;03 - 00;11;34;12
Adam Doerr
One thing that I always try to hone back in on when it kind of gets to the rubber hitting the road, is making sure that we're keeping our eye on the mandatory subjects of bargaining and not allowing ourselves to be tied up with permissive subjects that the union is demanding. Those could be the basis of ULPs or asserting a strike is unlawful if the union's demands are over a permissive subject.
00;11;34;24 - 00;11;58;16
Adam Doerr
They want to expand the scope of the bargaining unit, for example, but those are all just more reminders for me as to why it's important to have Labor Council involved. But so you know how to handle those situations, how to not say things that will open up additional information, requests that might be uncomfortable, and then also how to handle information, requests that are then made.
00;11;58;28 - 00;12;15;29
Adam Doerr
It might sound unreasonable coming out of the union's mouths or or in an email, but more often than not, if it does relate to a rationale in support or against a proposal made at the table, that's going to be fair game to probe. And we're going to have to turn that information over relatively quickly to.
00;12;16;23 - 00;12;44;10
Tom Godar
Well, the opposite I found is true, too, that six months or a year before a contract is up, I want to be talking to the employer about what kind of press releases they're putting out about their on believable success and all of that sort of thing. And if they're publicly traded, some of that's out there already. But if they're a privately held corporation to one day, come in to the bargaining and say, by the way, we're barely making it, we're thinking about having two closed doors.
00;12;44;21 - 00;13;13;24
Tom Godar
And the six months before that, they were telling shareholders how fantastic things were going. So there has to be a consistency in that messaging and that's part of that trust relationship. You've talked about a part of that preparation is having consistency in the messaging. And oftentimes I use the first session and invite the CEO to that session, but no others to talk about who we are, where we've been, what we're looking at, what is the marketplace look like, how do we fit into the marketplace?
00;13;14;12 - 00;13;36;16
Tom Godar
But I also encourage employers oftentimes to give that information regularly to their employees so they're not shy when bargaining starts. It sounds like, Oh, I never even knew this company had this competition. I share that information or at least encourage clients to do so. Does that mean an effective tool for either of your clients as you're working with them through this relationship with the unions?
00;13;36;16 - 00;13;37;04
Tom Godar
How about you, Jon?
00;13;37;18 - 00;14;02;10
Jon Anderson
Yeah, it really has. I think transparency to the extent that your client is comfortable with it is is critical. One of the common mistakes in collective bargaining that companies make is that they fail to understand when bargaining actually begins. It begins long before you sit down at the table and discuss ground rules. It started earlier and it is all part of a process and continuum.
00;14;02;10 - 00;14;27;24
Jon Anderson
I guess you mentioned it earlier, Tom. It's a relationship. It's not buying a car. It's a relationship. And you have to understand that the sharing of information concerning the health of the company, the wealth of the company, if you will, too, is important. And you don't want to say anything in January that's inconsistent with the position you're going to take in July, because that's going to come back and bite you.
00;14;28;06 - 00;14;56;17
Jon Anderson
And creating problems and problems are things that could be avoided if that message was consistent throughout. And, you know, honest and true, you never have to explain yourself. Maybe you do, but you never have to explain this discrepancy. Or if you've been saying the truth all along, and the truth is that we're in trouble, or the truth is that we can't do some things that we might otherwise want to do.
00;14;56;24 - 00;15;09;15
Jon Anderson
And here's why. And if you're starting to send that message in January and February, when you get to July and August, when you're bargaining in a collective bargaining agreement, you're reinforcing the message that's already been delivered.
00;15;09;18 - 00;15;21;15
Tom Godar
But the truth is that the CEO better not drive their new Corvette in. And after bragging about their safari to Africa, when you're going to say things are really pretty tough around here, guys, you have to cut your hours.
00;15;21;15 - 00;15;28;25
Jon Anderson
So exactly those Italian Armani suits need to be replaced by JC Penney suits.
00;15;28;25 - 00;15;51;14
Tom Godar
As we're kind of grinding this to the end, two things come to mind. One is that sometimes you can't get it unstuck. You're really at an impasse and an impasse that allows unilateral implementation. But Adam, that's not an easy place to be or at least feel confident that you've arrived at that place. Give us a little bit of a 32nd or one minute primer on impasse and implementation of things really are not working for.
00;15;51;28 - 00;16;28;19
Adam Doerr
Impasse is not when an employer is frustrated that they're not making progress. It often feels like impasse strikes in the room way before it does in the law. Under the law, an impasse requires really several sessions of no movement, some real demonstration that that neither party is able or willing to budge on a mandatory subject such that but further sessions are quite literally going to be fruitless and futile.
00;16;28;19 - 00;16;50;05
Adam Doerr
Then we might have discussions of a genuine, lawful impasse, but it takes quite the documented meetings, sessions, communications demonstrating a lack of any more movement. So that's my general descriptions and oversimplification. Of course, every context is going to be scrutinized based on the specifics of that case.
00;16;50;10 - 00;17;09;07
Tom Godar
And let's look at a happier time. We don't have the past. We haven't had to determine whether what to do with the strike. There's not going to be unilateral implementation or we're not bringing in strike replacement workers all things that might indeed come out of collective bargaining. Instead, we have an agreement, at least at the table. We've shaken hands.
00;17;09;08 - 00;17;31;17
Tom Godar
I remember walking out at 2 a.m. one morning, having resolved, we thought, a contract, literally still making terms up with the union counterpart had flown in from New York. As we walked down the hall thinking, what the hell have we just agreed to? And it took six months to get a contract written down. And at that point we weren't even sure if it enclosed everything we had finally got to.
00;17;31;23 - 00;17;40;03
Tom Godar
And this was under the threat of a strike that was going to start in the morning and all that sort of jazz. Give me a better way to have a contract resolved and written up. Yeah.
00;17;40;26 - 00;18;10;01
Jon Anderson
Well, I think it again is dependent on the parties, but I think that when you reach an agreement, nobody leaves the room until it's written down. And that's critical. You know, you've been bargaining for 18 hours or 20 hours straight. It's very important to take the time to get that written down. And I think it starts with ground rules, with understanding that a tentative agreement is a tentative agreement until it's been approved by both parties.
00;18;10;19 - 00;18;35;05
Jon Anderson
But you have an agreement that the tentative agreement needs to be reflected in language that's going to be in the contract. That saves some delay there because you've got that negotiated language in place. By the time the parties consider whether to ratify the union, ratify the employer, stop. So you want to make sure that you've covered that possibility, that you understand that it's not done until it's done.
00;18;35;05 - 00;18;57;11
Jon Anderson
And it has to be in writing to be done. You don't reach an agreement. So the federal government adopting a budget that is 900 pages long that nobody's read, this is something that we want to have done in writing in the form of the contract, so that when we leave we are in a position to have something that we can reflect and refer to as the agreement that's reached.
00;18;57;24 - 00;19;25;00
Jon Anderson
Then you want to make sure that you have the process in place that, you know, the union has agreed to hold a ratification meeting. They've agreed, where possible, to recommend that the membership adopt or ratify the collective bargaining agreement, that things that aren't changed in bargaining are changed in subsequent meetings, that there's no further changes going forward, that the agreement carries over except for the things that we've changed.
00;19;25;00 - 00;19;57;17
Jon Anderson
And you set a timeline for that. You talk about public pronouncements of the agreement, what's appropriate, what's not appropriate, a gag rule. I tend to allow the union to get the information out to the members before I would have the company do that just because I don't want to step on the union's toes. But I also agree and insist that we are going to pay that back pay or we aren't going to pay the new rates until we have a signed agreement in place, which tends to speed up the process rather than waiting six months for language to be finalized.
00;19;57;28 - 00;20;21;29
Jon Anderson
You might be waiting three days because they want their money. And, you know, so again, creating those incentives or for quick dealing and quick resolution of the issues that may present when you're finally presented with them, the drafting aspects of this. But I think the key is to set the stage in the earliest part in the ground rules and then to reinforce those at the end.
00;20;21;29 - 00;20;32;15
Jon Anderson
When you've reached an agreement that will give you two weeks to get this ratified, here's the language. Let's stay and finalize it so that there's no question about what it is three days from now.
00;20;33;00 - 00;21;10;25
Tom Godar
Yeah, that's good advice. And I very much like to have the Union Committee. I'd ask each person if I can individually, will you support this? Will you support this? Will you support this? I don't just let the the spokesperson sometimes frankly I've been submarine and it becomes a real problem. But that was the very practical advice. Adam The last thing I sort of identified for some of my clients, whether they do it or whether I assist, is to go back to the people who are on the floor, the supervisors and the non union people and say, here's what just happened.
00;21;11;04 - 00;21;28;19
Tom Godar
It might be a different message for those who are supervising the the union representative employees than the office employees weren't represented by or supervising the employees. But have you found it helpful to go back to the people in the organization, say, here's what just happened.
00;21;29;18 - 00;21;48;03
Adam Doerr
100% on time. You absolutely want your team and leaders and supervisors across the organization to know what's going on before their employees do. That's just a bad look and certainly a good point of housekeeping to make sure that your whole team is informed of what's of what's going on.
00;21;48;18 - 00;22;19;04
Tom Godar
Well, thanks a lot, guys. That is really some good advice. I think that we're sort of at the end walking through the dynamics of collective bargaining, you know, from well before ever meeting together in a smoke filled room, or at least they used to be smoke filled, to that time when you're trying to actually document the agreements that you've reached, you've really helped us get a practical as well as creative understanding of ways to approach collective bargaining.
00;22;19;04 - 00;22;41;00
Tom Godar
I hope that for those of you who are not terribly familiar with collective bargaining, much of this might have been new and interesting. And even for those of you who are old pros in the field, that some of the insights Jon and Adam offered will be helpful as you move forward in your opportunities to bargain in good faith in terms of wages, hours and working conditions.
00;22;41;11 - 00;22;49;04
Tom Godar
So once again, thank you so much for joining the Labor Law Insider Podcast and thank you, Adam and Jon, for sharing your expertise.
00;22;49;04 - 00;22;49;21
Jon Anderson
Thank you.
00;22;50;01 - 00;22;50;21
Adam Doerr
Always a pleasure.
00;22;51;01 - 00;22;52;02
Tom Godar
Have a great day, everyone.