This transcript has been auto-generated using Adobe Premier Pro.
00;00;02;22 - 00;00;38;01
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;19 - 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;09 - 00;01;25;21
Tom Godar
Hello. And this is Tom Godar your host of the Labor Law Insider. And we're really excited to have you join us in this first podcast of 2024. I can hardly believe it. We're going to talk about what happened in 2023 and how it's going to give us a really good insight into what might be happening in 2024.
00;01;25;21 - 00;01;48;25
Tom Godar
But before we go there, I wanted to introduce my colleagues and friends who are joining us for this podcast. We have Rufino Gaytán, one of our alums who practices in our Houston office, but practices around the country. We're just talking about one of his engagements for a national client that's going to take him out. His next week, not as a carpenter, but as a lawyer.
00;01;49;02 - 00;02;09;16
Tom Godar
That's a different story. And maybe you can tell us a little bit about that in a moment. But I also wanted to introduce Adam Doerr, who has been a wonderful and frequent guest on the Labor Law Insider. Both he and Rufino are recognized by Best Lawyers as being really terrific in their practice. And it's great to have both of you this morning.
00;02;09;17 - 00;02;10;02
Tom Godar
Good morning.
00;02;10;09 - 00;02;10;26
Rufino Gaytán
Good morning.
00;02;11;07 - 00;02;13;06
Adam Doerr
Good morning. Thanks, Tom. Pleasure to be here.
00;02;13;14 - 00;02;23;23
Tom Godar
Hey, Adam, you were telling me about a funny story. A little bit odd. I thought that interfaces Adam Doerr with unions in a way that I wouldn't have expected once you share that with us.
00;02;23;29 - 00;02;42;12
Adam Doerr
Yeah, it's a it's a funny story now, but at the moment it was less than funny. But I was about five, seven years ago at a grievance meeting at a small Teamsters hall when, you know, one thing leads to another. And all of a sudden I'm breaking up a fight in this back room of a union hall, kind of in the middle of nowhere.
00;02;42;12 - 00;02;50;01
Adam Doerr
So it's a little bit of an uncomfortable situation that I was not planning to be in, but I'm glad it panned out okay. Well, if.
00;02;50;01 - 00;03;08;08
Tom Godar
This thing doesn't work out, apparently, and go to a bar and act as a bouncer man, that wonderful story there. Rufino, I know that you've had lots of life experience hanging around as one of our veterans. Thank you so much for your service, living and learning in Madison. Tell us a little bit of a story from yourself.
00;03;08;15 - 00;03;40;25
Rufino Gaytán
Sure. So this was many years ago. My brother and I were driving here in Houston on U.S. Highway 59, and we happened to come upon a car. It happened to be I think it was a 1972 Mustang that somehow ended up flipping over. And both my brother and I are veterans and we ended up pulling away in the car, which it must have just happened not long before we got there, because there wasn't a whole lot of traffic jamming up yet.
00;03;41;08 - 00;04;02;01
Rufino Gaytán
But we ended up helping this guy come out of the car because he was stuck in his car. And so we helped to pull him out. And it also reminded me of the time that my own brother flipped one of my dad's cars, much to my dad's grin, and ended up upside down as well. So I think he had a little bit more experience with that scenario than I did.
00;04;02;01 - 00;04;11;20
Rufino Gaytán
But I think it's just an indication of what the military training does to you, just kind of helps you to kick into action whenever necessary.
00;04;12;18 - 00;04;16;27
Tom Godar
Well, and seeing things that are upside down helps you in this labor law practice, my friend.
00;04;16;27 - 00;04;17;23
Rufino Gaytán
Absolutely.
00;04;18;14 - 00;04;46;03
Tom Godar
Sometimes it seems that they've gone topsy turvy. As I said, we're going to talk about labor law. Developments in 2023 are the arc of our story over the last few years has been that under the Biden administration and the new National Labor Relations Board and it's new, not any longer, so new. General Counsel Jennifer Abruzzo. The things are changing and honestly we predicted much of the change, but some of it's been even more radical than at least I would have anticipated.
00;04;46;13 - 00;05;04;08
Tom Godar
So let's launch into some of what took place in 2023. Adam, there was a seminal decision that maybe we'll use as a pivot point that came out in the fall, the Cemex decision. Tell us a little bit about that decision. I think we're going to be able to reflect on it when we talk about some of the other developments.
00;05;04;25 - 00;05;40;25
Adam Doerr
Where the Cemex decision is problematic for a number of reasons, it really it really changed how unions are able to get into a workforce. And I know we've talked about that and written about that previously, but the one thing that bothers me, one of the things that bothers me about that decision is, is how supervisors, capital supervisors under the act, because of how they bind the company, they can either unwittingly or as double agents for the union, get a union into a workplace without the employees ever getting a chance to vote.
00;05;41;10 - 00;05;59;03
Adam Doerr
So that paired with some other the board's decisions have really made just how unions are able to get into a workplace much easier. And that's fine if the employees want it. But what's happening is in oftentimes cases, employees are not even being afforded the chance to vote on whether they want to be represented.
00;05;59;12 - 00;06;35;27
Tom Godar
So part of the heart of the Cemex decision, and there's lots of permutations, but it's possible that a single unfair labor practice or a few very minor or somewhat minor violations of the Act, may allow the Union or the National Labor Relations Board to conclude that no election is necessary, that just because the ability to have an untainted election is now gone because of you, LP will just impose a union upon an employer and upon all of the other employees who may not have really desired to have a third party represent them.
00;06;35;27 - 00;06;37;09
Tom Godar
Is that okay? Summary.
00;06;37;17 - 00;07;12;04
Adam Doerr
That's right. And that's and so there's there's two prongs there. One is just the commission of a ULP can make it so that the board issues an automatic bargaining order. And two is the fact that employers have to file an r m petition with the NLRB to avoid having deemed automatically recognize and voluntarily. So there's there's really many issues, as you noted, the many permutations of Cemex that have just really made it much easier for unions to either get in by voluntary recognition or obtain a bargaining order based on the commission of a single use LP.
00;07;12;17 - 00;07;35;10
Tom Godar
So for the first time that has happened that we're aware of, the board has insisted that it's the employer's obligation if they're not going to recognize a union to file a petition seeking a secret ballot election once the union has stepped forward and say we represent a majority of your employees. That's right. It used to be a good try and go file.
00;07;35;11 - 00;07;58;26
Tom Godar
We'll get on with it then. Right. But now it's the employer's obligation without going into all of the details. Ruffino, we know that the board also crafted what we'll call a new election rules that took effect just a couple of weeks ago and late December. But these are in some ways returning to the rules that had been established under President Obama's regime.
00;07;59;04 - 00;08;09;05
Tom Godar
Tell us, how does that sort of feel into the Cemex decision? That is, that employers have to file the r m and then what happens with the election process itself following that?
00;08;09;28 - 00;08;34;21
Rufino Gaytán
Yeah. So like you said, without getting into the the nitty gritty of the actual rules and regulations, the message that the board is sending here is they're going to compress the timeline from the filing of the petition for an election to the time where you're actually voting. And so where typically might be in the range of somewhere in the 45 day range from the petition filing to voting.
00;08;34;29 - 00;08;53;02
Rufino Gaytán
Now that timeline is being compressed significantly to somewhere in the like maybe 20 day range. And it just depends. There are going to be some variables in between that might affect that timeline. Obviously, if the parties can reach an agreement as to when is the best time to conduct the election. That is one of the factors as well.
00;08;53;10 - 00;09;26;01
Rufino Gaytán
But for the most part, once the union files the petition, it typically believes that it has a majority status already. So they want to get to that process as soon as possible. With the Cemex decision, I think the impact is going to be even more threatening for employers because, you know, again, if if you choose not to recognize, voluntarily recognize the union's demand for representation, then management team has an obligation to file, according to the board.
00;09;26;15 - 00;09;57;27
Rufino Gaytán
And of course, if the union fails at some point in there as well, there's going to be an election at some point, at least ideally, but it really is going to speed things up. And the reason that that is a very drastic issue for employers to keep in mind is that once you get that request or demand for recognition, the petition is going to be filed either by you as a management team or the union, and you're going to have an election very quickly.
00;09;57;27 - 00;10;20;15
Rufino Gaytán
It really shortens your ability to talk to employees because you don't have as much time as you would have before. And if the union already feels very confident in its ability to get 50% plus one in favor of the union, then you've got a really tall task ahead of you. If your goal is to prevent that union from coming into your workplace.
00;10;21;04 - 00;10;43;08
Tom Godar
You know, all of this is a big bundle, I think, about talking to the employees. And the board has said by the way, you know, a captive audience speech, maybe a ULP, and if there's a ULP, maybe you have a union imposed upon you without an election and it becomes difficult. Speaking of which, there was a Stericycle decision in August of 2023.
00;10;43;22 - 00;11;12;22
Tom Godar
Again, we talked about this extensively on the Labor Law Insider. My colleagues have written about it at Husch Blackwell. But as we talked about the impact of Stericycle, it was, you know, a problematic issue. Suddenly, whether work rules are presumed invalid or presumed invalid, if they have an impact that might show employees from exercising organizing rights is a big deal because of Cemex or a bigger deal.
00;11;13;05 - 00;11;31;23
Tom Godar
That's kind of like having a fire. That's burning and then pouring some gasoline on it, I think. But tell us a little bit more about the potential excitement that we might have with the Stericycle decision also reflected in the Cemex decision that unions can have representation rights without elections.
00;11;32;06 - 00;12;11;07
Adam Doerr
We thought Stericycle was a big deal when that decision was issued because of how dramatically it changed, how the board reviews work rules. We had the Boeing three categories that were kind of nice that we could look at and rely on as employers. But now Stericycle, you know, got rid of those categories and that whole test and now, as you alluded to, puts the burden on the employer to justify any infringement on Section seven rights and demonstrate that the rule is the most narrowly tailored rule it could possibly come up with to avoid any excess impact on Section seven rights.
00;12;11;19 - 00;12;43;24
Adam Doerr
So it was a big deal at the time, but then when Cemex came out shortly thereafter and said, By the way, any ULP could now require you to sit down and bargain with the union without an election. Well, that really raised the stakes. So it's it's imperative that employers, you know, stay on top of this. And stay in front of it so that they don't get confronted with a demand for recognition or a petition and then have a ULP filed.
00;12;43;24 - 00;12;51;23
Adam Doerr
The next day claiming, by the way, you've got five unlawful work rules, go ahead and bargain with us anyway. So the stakes really had increased dramatically.
00;12;52;04 - 00;13;07;27
Tom Godar
Adam or, you know, give me an example of one or two work rules that in 2020 we might have thought were just fine and frankly quite appropriate, and that now might be subject to different kind of scrutiny under the Stericycle decision giving rise to a potential ULP.
00;13;08;12 - 00;13;40;10
Adam Doerr
Well, I'll give it to you then. I'll pass the baton to Rufino. The first one that I see all the time is confidentiality rules, and that can be relating to general, confidential, quote unquote information or even to internal investigations. Both of which now largely cannot be required to be held confidential in totality. There's specific carve outs we have to include and craft those much more narrowly to avoid the board finding that to be an infringement on employees rights, to talk about wages and benefits and other terms.
00;13;40;10 - 00;13;44;09
Adam Doerr
The conditions of employment, including workplace problems being investigated.
00;13;44;28 - 00;14;01;08
Tom Godar
And that's just beyond talking to each other. It is it might be, you know, putting it out on, you know, a Facebook page or Twitter, an absolute. And so once you put it into the public eye, one, the boards are going to argue that is by definition, concerted, right?
00;14;01;15 - 00;14;32;15
Adam Doerr
Absolutely. Because it pertains to the workplace and arguably is being done to try to pressure or better the workplace. The second one that they generally surprises most employers is work rules that require respect or civility in the workplace. Again, because of how the board requires companies to tolerate a certain amount of displeasure or discomfort or offensive commentary about union organizing issues or other workplace issues that could be protected under the act.
00;14;33;03 - 00;14;44;17
Adam Doerr
So, you know, we can no longer following Stericycle and certainly at your Cemex require as a general rule all employees be nice or respectful to each other or to management.
00;14;44;26 - 00;15;03;29
Tom Godar
Well, that's, you know, that's one, two, three Cemex Stericycle, the shortened election cycle that puts a more pressure on the employer to get it right and to have the handbooks right and anything else in that Stericycle sort of cyclone that you would like to comment on. Yeah.
00;15;04;16 - 00;15;58;01
Rufino Gaytán
Yeah. So I'm going to add yet another discussion point here from 2023, which is that Adam talked about the general sort of rules on civility in the workplace, but even things like anti-discrimination anti-harassment policies are not immune from NLRB interference, according to this latest administration. And that shoehorned into this other case issued by the board decision issued by the board last year in Line Elastomers, which essentially says if an employee is having any sort of an outburst, whether it's a racist rant or a curse filled tirade against a supervisor, if the employee is addressing a workplace issue or is engaging in concerted activity at the time, whether it's a picket or a meeting where he
00;15;58;01 - 00;16;30;17
Rufino Gaytán
or she and a couple other coworkers are attending to discuss their working conditions, those types of rules that prevent things like harassing behavior can also create an unfair labor practice, according to this board. So it really is an environment that it's become very challenging for employers to try to do the right thing for their workplaces, especially establishing a culture that they find appropriate for their employees.
00;16;30;17 - 00;17;05;15
Rufino Gaytán
But, you know, again, a lot of times these issues end up crossing with other types of responsibilities that an employer might have. For example, if it's a confidentiality issue, do they have confidentiality obligations with a customer client? And if they do, what obligation or what sort of disciplinary action can the employer take against an employee who violates those conditions without necessarily triggering an unfair labor practice charge and that is a very difficult line to walk, if not impossible in some situations.
00;17;05;22 - 00;17;33;18
Tom Godar
Okay. So, you know, when law school, we're always given hypotheticals. And so here's the hypothetical. The union comes to the HR manager says a majority of your employees have signed up to be represented by that. Fill in the blank. One of the folks who's working for you is in the lunchroom. 10 minutes past the break time and he's talking about how great it's going to be to finally have a union.
00;17;34;08 - 00;17;54;21
Tom Godar
And his supervisor comes or her supervisor comes and says, what the heck are you doing in here? Get back to work at your break. Time was over at noon. It's almost 1215. And he says, I'll ask and talk to you about my break time in the parking lot after work. If you want to make this a big deal now, what is the employer to do?
00;17;54;27 - 00;18;02;20
Rufino Gaytán
Well, I think according to this board, unfortunately, the answer would be, you know, just kindly redirect the employee back to her.
00;18;02;20 - 00;18;09;19
Tom Godar
Where I going to redirect? I'm sorry. I know supervisors do routinely. Redirect is really not their bag of tricks attraction.
00;18;10;23 - 00;18;33;13
Rufino Gaytán
But that is the challenge that we face. Right, that those scenarios happen. They're they're not unrealistic. They're not far fetched. And they do happen every day across the country. The issue, I think, is going to become one of consistency as well. Right. So if you're a manager and you consistently enforce those types of work rules, you probably have a little bit better standing.
00;18;33;13 - 00;18;55;17
Rufino Gaytán
If you were to discipline that employee for engaging in that conduct, the focus of the discipline, though, has to be the violation of that work rule as opposed to the response to the supervisor. And so you have to be very careful about how you address the issues and how you justify any actual discipline that's being imposed against an employee.
00;18;55;29 - 00;19;21;20
Rufino Gaytán
If the focus of the discipline is I don't like the way that you responded to me, that is where you bring in the actual content or the substance of the comment into question. And then the board would say, well, the only comment that was made, even though there was there were curse words in there was about, you know, break time or about some other union type issue, whatever the conversation was that may have been protected.
00;19;21;27 - 00;19;46;02
Tom Godar
What about the fact that he says, I'll see in the parking lot afterwards? Isn't that a threat? And within this new world, whether it's, you know, the Cemex fear that they're set up or the you know, a Lion Elastomers case that says that, you know, disrespectful conduct has to be tolerated. Where is the line on that? Can't you go and say that this person threatened me?
00;19;46;02 - 00;19;48;03
Tom Godar
Or is even that potentially problematic?
00;19;48;03 - 00;20;15;26
Adam Doerr
AB So I'd be willing to take the position without knowing more about the context or what's been tolerated in the past. I'd suggest that there is an element of insubordination there or workplace violence that would justify taking disciplinary action or even discharge. But the problem with that is, is even if you have the legal support and the jurisprudence to move forward with the discharge, in that context, you're going to get a ULP over it.
00;20;15;26 - 00;20;22;24
Adam Doerr
So now you have to make sure that the proof is there, the documents, the consistent enforcement that Rufino is talking about.
00;20;22;27 - 00;20;38;13
Tom Godar
And so if you have a handbook which says you have that everyone is expected to respect each other in the workplace and that then we're disciplining you based on handbook section X, Y, Z. That creates its own problem, doesn't it?
00;20;38;17 - 00;20;58;11
Adam Doerr
It does. So you wouldn't want to discipline for that policy. You'd want a discipline for the insubordination or for the workplace violence, but not for the disrespect. There's some nuance there in how you have to justify that, in my opinion. And then there's the matter of what kind of kind of do you want to tolerate? What kind of risks do you want to face?
00;20;58;17 - 00;21;08;02
Adam Doerr
You might just make the decision that this guy needs to go, this gal needs to go, and I'll take the ULP rather than let that kind of conduct take place.
00;21;08;10 - 00;21;44;18
Rufino Gaytán
I was going to say that that is exactly the sort of maybe this is too dramatic, but the Sophie's choice that employers sometimes have to make is, you know, which of these bad things do I want less? Right. And sometimes and we do have clients who make very conscious and carefully thought out decisions that say, we know that there's a risk and we understand it, but we cannot have an employee who is this disrespectful and is creating an environment that is not just bad for the supervisors or managers, but even coworkers maybe complain about this person, right?
00;21;44;18 - 00;22;07;15
Rufino Gaytán
So if that is a decision that you want to make because of some other goal that you want to achieve, then yeah, I think that there's definitely an avenue for you to do that. There's definitely going to be risk. But at the same time, you also have the other risk of of keeping an employee who is really going to make life miserable for some of your employees.
00;22;07;20 - 00;22;28;21
Tom Godar
Hey, Rufino, thanks so much for that thoughtful answer. I appreciate your insights. But fellas, I think we're going to pause right here, push a button and then rejoin our guests and friends around the corner in a couple of weeks when we publish the next iteration of our Labor Law Insider. Thanks a lot, Adam and Rufino for joining us and our guests, our listeners.
00;22;28;21 - 00;22;35;06
Tom Godar
Thank you for joining us as well. Share this with friends if you think it's helpful. Take care now.