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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;06;22
Tom Godar
These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies. When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.
00;01;07;07 - 00;01;42;16
Tom Godar
Welcome once again to the Labor Law Insider. It is great to have you here and we really appreciate you joining us. We have a fabulous panel and we're going to talk about something that really gets to the heart of the matter. What happens if and what happens if there's a remedy, if an employer is found to have committed the unfair labor practice or even accused of it, and now they're looking at how they're going to resolve it, maybe through negotiation or if the unions have started down a process towards an election, maybe even had an election, maybe even a lost of an election, and see what kind of remedies the board is offering.
00;01;42;16 - 00;02;06;16
Tom Godar
If they believe that during the course of the election process, maybe an unfair labor practice occurred. And I said, we have a really terrific panel. I'm going to let them introduce themselves. But these are three colleagues from across the country. We have Megann McManus, whose first time appearance on the Labor Insiders today. And welcome, Megan. I'm going to have Trecia Moore talk a little bit.
00;02;06;16 - 00;02;25;08
Tom Godar
She's been a frequent guest and a terrific guest over time. She's joining us once again. And Terry Potter, a stalwart and a veteran of the Labor Law Insider podcast and also one of the editors of our Labor Law Insider blog. They're all joining us today. But before I extol your virtues, why don’t you tell us a little bit about yourselves.
00;02;25;08 - 00;02;27;02
Tom Godar
Megann, why don't we start with you as a newbie?
00;02;27;18 - 00;03;11;14
Megann McManus
Oh, thank you, Tom. I'm so happy to be here on your podcast. Thank you for having me. I am a traditional labor attorney, have been my entire career. And before I became a lawyer, I was an H.R. manager and sort of interestingly, I was management for a labor union, which is quite an interesting sort of spot to be in, particularly when some of our staff employees of that labor union sought to organize an energy meant for the labor unions employees who were seeking to organize.
00;03;11;14 - 00;03;15;28
Megann McManus
That was actually my first organizing campaign and and during.
00;03;15;28 - 00;03;21;17
Tom Godar
That, did the union oppose that campaign at all and just say, come on, we'd love to have a union representing our employees?
00;03;21;29 - 00;03;24;24
Megann McManus
Suffice it to say that they did not say, come on, welcome.
00;03;26;03 - 00;03;26;25
Tom Godar
Not surprise.
00;03;26;26 - 00;03;50;20
Megann McManus
But it was a tricky needle to thread, a tricky balancing act. Let's just say, you know what? We talked about in the closed door, you know, office, H.R. office, and what we sort of communicated to, you know, the employees. It was a delicate balance, to say the very least. So I guess I'll sort of leave it at that.
00;03;50;20 - 00;04;18;00
Megann McManus
But it's so so, yes, I knew straight away I wanted to be a labor attorney and majority of my career in New York City and then have had the wonderful opportunity to move back to my hometown in Arkansas. And because of the Link at Husch Blackwell and I'm so happy to be in this part of the country where there are almost no labor attorneys yet.
00;04;18;00 - 00;04;33;16
Megann McManus
There's a lot of organizing activity here in the South where there hasn't been for a generation. And so I think it's a good spot to be in right now. So happy to be at home and so happy to be here in Arkansas.
00;04;33;29 - 00;04;45;17
Tom Godar
Megann, you might have been the first attorney that graduated from Rutgers coming from the University of the Ozarks. I love that background. Welcome aboard. Thanks for joining us. Trecia, tell us a little bit about yourself.
00;04;46;02 - 00;05;07;15
Trecia Moore
Hi. Good afternoon, Trecia Moore. I have been with Husch for coming up on a year and a half now. Prior to that time, similar to Megann, I had a non attorney but legal career. I worked for the National Labor Relations Board as an investigator here for a number of years and then decided, I think I'm going to try this law school thing.
00;05;07;18 - 00;05;29;18
Trecia Moore
Can I stay here or are they going to kick me out? And here I am been working as an attorney since 2015. But in this space of labor law and labor relations since 2000, I am based out of Kansas City, but I represent clients throughout the nation and I love what I do. I don't consider this work. It's lots of fun.
00;05;29;28 - 00;05;45;05
Tom Godar
You've never worked a day in your life and you love what you do. It's great to have you, Trecia. And it's true that Meg and Trecia and Terry, our next guest to introduce himself, practice all over the country. Although they are associated with certain geographies. Terry is talking to us today from Saint Louis. Tell us about yourself, Terry.
00;05;45;15 - 00;06;07;02
Terry Potter
Yes, home of the St. Louis Cardinals who are still struggling this year. But I hope to return back to their old form. Yeah, I've been in St. Louis now for over 40 years. I started my career out with the National Labor Relations Board here in St. Louis, the field attorney, and then went on into private practice and have been in private practice ever since then.
00;06;07;18 - 00;06;28;18
Terry Potter
And I've enjoyed every day, you know, no question about it. I distinctly remember in law school having a liberal law class and going, oh, finally something I can dig my teeth into, you know? And that was kind of the turning point for me. But yeah, I really enjoy this stuff and we have a good group here at Husch.
00;06;29;00 - 00;06;55;11
Terry Potter
It keeps getting bigger and bigger and so it's a good time to be part of this forum, that's for sure.
Tom Godar
Well, and it's a good time to be the host of the Labor Law Insider with three such terrific experts with me. And as I said when we started out, we're going to talk about remedies. What really happens when things go bump in the night or maybe during the day and we've seen some changes manifest themselves in recent decisions.
00;06;55;11 - 00;07;22;21
Tom Godar
And of course, the general counsel memos that Ms. Abruzzo has offered, and in those memos she anticipated that the breath remedies would be much greater than they had been before and that she was just not satisfied that the unions or their members or those who were seeking to unionize were receiving a fair shake. Now we can disagree with that, but we think that maybe from my perspective, they've gone overboard.
00;07;22;21 - 00;07;50;20
Tom Godar
But one of the most recent additions of this change in how to look at remedies was described in the Thryv case, which also recently had a court of appeals. Take a look at the breadth of the remedies making. Maybe you could kick us off. Give us a little bit of background to the the Thryv case, the kinds of remedies that the board sought and were awarded and which were now subject to a review by the Fifth Circuit Court of Appeals.
00;07;51;00 - 00;08;31;27
Megann McManus
Sure, Tom. So in in Thryv, just really quickly about what happened. You had an employer that they had a group of sales reps who were, you know, represented in this particular unit bargaining for a successor agreement. Negotiations were not going well, reached impasse, employer imposed last best final offer. And a union actually filed a ULP over that and the GC did not prosecute that charge actually said that the impasse was lawfully declared and that last, best final offer was appropriate.
00;08;32;12 - 00;09;00;02
Megann McManus
So then about, you know, some time later the employer communicated to the union that they needed to lay off some employees. Business wasn't great. They need to lay off some of those sales reps and they were going to do so pursuant to that last, best final offer. And part of that last, best final offer had terms in it that provided for the opportunity for the union to discuss the effects of that layoff.
00;09;00;17 - 00;09;30;09
Megann McManus
The union waited some time before they talked to the employer. There were some meetings. There wasn't any progress made. The employer kept saying, you know, we're going to continue with these layoffs. At the time that this 30 days notice period ends, the employer did, in fact layoff these sales reps. ULP comes about from the union and ALJ says that it was not unlawful.
00;09;30;15 - 00;10;10;00
Megann McManus
The ALJ agrees, right. But then the board finds that that the layoff was unlawful and not only was it unlawful, the board made clear that those remedies, in quotes, all direct and foresee above pecuniary harm that resulted from those employees getting laid off should be awarded as part of the make all remedy to these laid off people. The board in Thryv did not go into what exactly the remedies should be.
00;10;10;00 - 00;10;44;15
Megann McManus
That's for compliance and to actually sort that out. And there needs to be evidence shown of exactly what pecuniary harm was, direct or foreseeable. But the board said yes, we agree what the GC is asking for should be a standard part of the May call remedy. So the employer appealed the board's decision to the Fifth Circuit. The Fifth Circuit said the board was wrong when they said the employer violated the act.
00;10;44;21 - 00;11;18;05
Megann McManus
When it laid off those employers pursuant to its last, best final offer, the Fifth Circuit said that it was perfectly lawful. That declaration of impasse was lawful. The impasse was not broken just because they were talking about the layoffs and the employer followed all the terms in the last, best final offer when it implemented the layoffs. Therefore, the layoffs were lawful and the impasse was existed and so no violation there.
00;11;18;17 - 00;12;03;22
Megann McManus
But then what about the remedies they did? They they said that they had a little they they jabbed they called them draconian for what? And they called them consequential damages, which the board in Thryv was very careful to say these are not consequential damages. These direct or foreseeable pecuniary harms are not consequential damages. They were careful to say that the Fifth Circuit said it sounds like consequential damages to us, but the practical reality is, even if the Fifth Circuit had said, no, you don't have the authority, the act doesn't give you the authority to issue these remedies.
00;12;04;06 - 00;12;05;21
Tom Godar
Draconian, I believe they said.
00;12;05;24 - 00;12;06;02
Megann McManus
These.
00;12;06;02 - 00;12;08;03
Tom Godar
Draconian, draconian.
00;12;09;01 - 00;12;15;18
Megann McManus
These draconian remedies. I don't know, like that. Right. With the board. The board is going to go forward anyway, right?
00;12;16;22 - 00;12;43;16
Tom Godar
Yeah. And that's I have loved in my career remedies portions of cases. But when they get into this level of questions, this becomes itself a trial that could take longer. And the trial on the merits, what is a credit card debt? How much did you have to pay extra for a home loan that you wouldn't because your credit was damaged and suddenly you're paying 9% rather than 8% or 7% interest?
00;12;43;16 - 00;13;04;14
Tom Godar
On and on it goes. It's a lot of fun for lawyers, but it's no fun for clients, and it's certainly not fun for the tribunal. Terry in your long career, both as a labor lawyer as well as going back to the time you were with the board, did you see this kind of movement towards this kind of consequential, I think damages?
00;13;04;14 - 00;13;32;12
Terry Potter
No. This whole process, as we're viewing right now, it's nonsense. To sum it up, you know, there is a procedure that's been in place for years of the NLRB. You have a question of liability initially established, then we have compliance proceedings. Then there is an abbreviated process for both of those because these are administrative proceedings and therefore in the hope that the employees would get their remedy sooner versus later.
00;13;32;12 - 00;13;58;26
Terry Potter
That was the cradle, you know. And then part of that also is the fact that there are certain due process elements like discovery that don't take place as part of the viability portion of those proceedings. If we're going to open up the door to these expanded remedies, then you got to open up the door to discovery. Otherwise you're just lacking due process on behalf of whoever is the defendant in these proceedings.
00;13;58;26 - 00;14;23;04
Terry Potter
So you got to redo everything. And that's not what Congress said we were supposed to be doing fundamentally. You know, you go back and read the legislative history. All of this is nonsense. That's why we were trying to avoid. And now this see what's to ignore all that to say, I'm going to wordsmith this. These are consequential damages, blah, blah, blah.
00;14;23;04 - 00;14;44;24
Terry Potter
And it's just it's embarrassing. And the Court of Appeals slap them down almost every time because they don't know what the hell they're talking about.
Tom Godar
But how do you really feel about it there? No, you know, and it's more than that. Our clients, even when they settle cases with the board, normally they're asked to do a posting saying that they settle the case.
00;14;44;24 - 00;15;08;19
Tom Godar
There may or may not be exculpatory language. Oftentimes, the board tries very hard to have none that says, I'm doing this, even though I don't think we are, we don't think we violated anything. But now it's gone beyond that, where the board is seeking, even in terms of settling these cases, letters of apologies and letters that don't just get posted in the middle of, you know, a bunch of timecards and other things, but they're sent to each person's house.
00;15;08;19 - 00;15;24;08
Tom Godar
And guess what? Then you just push forward and they're sent to the press and everybody else in the world. You know, Trecia, you've had some experience with some of these other remedies beyond even what Megan mentioned. But what have you been seeing out there in the real world of National Labor Relations Board practice?
00;15;24;18 - 00;16;00;17
Trecia Moore
Well, first and foremost, I'm not surprised by anything that we've seen, and that's unfortunate to say. But one thing I do appreciate about Jennifer is she's honest and she tells us what she's going to do. And when she became GC, I think it was I mean, really just two weeks after she became GC, I don't know her second or third CMO speaking full her remedies, she laid it out, I think it's 2106 and then a couple of days later she issued another one.
00;16;01;00 - 00;16;27;17
Trecia Moore
So she has been true to her word about what she is going to do. And this is dramatically different from what I experienced when I was at the region. So for our listeners, I left in 2014, so my experience would be prior to that time and during my time there, starting in 2000, it was normal for us to settle a case and get 80% back pay.
00;16;28;05 - 00;16;56;15
Trecia Moore
You would never see that today. I would never even mention that to a client because you aren't going to obtain backpay of anything less than 100%. That's just how it's going to be. I never heard of credit card payments or paying rent or utilities or mortgages. You know, unreimbursed fees for gas costs to get to finding a new job, resumé writing fees.
00;16;56;29 - 00;17;20;09
Trecia Moore
It's the board focuses on what they call make whole remedies is and I was taught that it is to put the person back and the position that they were in if not for the alleged discriminatory behavior. And so when we think about that, I mean, really, it could be, hey, I normally worked at home, but now I don't.
00;17;20;12 - 00;17;47;04
Trecia Moore
And my house flooded. But if I would have been at home, I would have been able to catch that. I mean, that's very extensive, right? I'm making that up. But I don't think that it's unreal. ISTOOK When we look at the list of not only supposes, but actually, I mean, there are cases out there. We have years and years of cases now where we can pinpoint and say, yes, in this case, this is what they found.
00;17;47;04 - 00;18;08;03
Trecia Moore
And in Jennifer's most recent maybe it's not most recent, but a recent AJC memo, do you see? 2404 The second paragraph is a list like half a page list of all the remedies she is going after. And without reading those to you, I just mentioned some of them. I mean, daycare costs. Your kid didn't have to go in daycare before.
00;18;08;03 - 00;18;27;21
Trecia Moore
Now they're in daycare. I mean, if you can prove that this is a fee that you had related to the alleged unlawful behavior and you no longer being employed, you're going to be able to ask for it. So my guess, as they might be hiring actuaries or someone who was working in data science who can really crunch these numbers.
00;18;28;15 - 00;18;52;04
Tom Godar
Trecia, thank you so much for those insights. They're really helpful. And at the same time, I think we're going to push a pause button. I want to continue this conversation with you and Terry and Megan, but let's push the pause button. We're going to get back to Terry when we come back in a week or two with more talk about how these remedies are going to affect employers and the entire board process.
00;18;52;19 - 00;19;17;29
Tom Godar
But we also have some suggestions, maybe not solutions, but at least opportunities to ameliorate. Some of the have asked that this extensive review of remedies under General Counsel Abruzzo is causing. So thank you very much for joining us for the Labor Law Insider today. And thank you, Terry and Megann and Trecia for sharing your expertise. And we'll be back in a couple of weeks to share a bit more.
00;19;18;17 - 00;19;21;14
Tom Godar
Have a great day, everyone.