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00;00;00;00 - 00;00;23;20
Tom Godar
Welcome to Blackwell's Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing in the labor law sector for more than 40 years, and I can tell you that in no time of my practice has labor law had greater changes than in the last five, six years. We began the podcast in May of 2021, following the election of President Biden.
00;00;23;25 - 00;00;49;12
Tom Godar
And the elections have consequences. And under the Biden administration, a new National Labor Relations Board with the new general counsel reshaped labor policies. And they were very consequential during that time because it was so important to stay on top of liberal issues. The family of Husch Blackwell, labor law counsel, more than doubled in its coast-to-coast reach to assist our client.
00;00;49;15 - 00;01;18;11
Tom Godar
Well, we've since had another election. In the January of 2025, President Trump was inaugurated to his second but now continuous term. And once again, we're seeing significant changes in how the National Labor Relations Board and its appointed members. But Jake, right now an acting general counsel, and the board members are going to interpret the National Labor Relations Act and its associated laws.
00;01;18;14 - 00;01;28;22
Tom Godar
So once again, we're continuing a wild ride of labor law. That's not likely to change soon. So buckle up and enjoy the Labor Law Insider podcast.
00;01;28;25 - 00;01;50;23
Tom Godar
It is so great to be back with all of you today for the Labor Law Insider. And each time we do this, each topic actually makes me pretty excited. I guess I'm a little nerdy about this stuff, and if you're listening, I suspect you are too. Labor law is a fascinating subject because it's a microcosm of this notion that there are consequences of leadership change.
00;01;50;25 - 00;02;22;27
Tom Godar
And in leadership change, we're seeing some of those consequences play out in real time before our very eyes. And one of the folks that I've had the pleasure of spending lots of time with over my practice, that Husch Blackwell is still my colleague, senior counsel in St. Louis, Adam Doerr. He's one of those guys that really looks carefully at how things are breaking, not just at the issue of the day, but as how these issues are moving, which is really a helpful, helpful way to engage with clients.
00;02;23;00 - 00;02;55;18
Tom Godar
Adam Doerr is one of those wires and the best to watch list from Best Lawyers and the other vanity lists. Pay attention to Adam as well as well they should, because he's just a power to be reckoned with when it comes to some of this stuff. But I find it fascinating as well, and exactly complementary to what I know of his practice is that he is in the top 5% of the worldwide speed chess players that talks about strategy, it talks about preparedness, and it talks about making decisions that have to be made when they have to be made.
00;02;55;18 - 00;03;01;01
Tom Godar
And an awful lot of that, I betcha Adam comes to play when you're advising client banks time.
00;03;01;01 - 00;03;12;27
Adam Doerr
Well, labor. Why is a little bit of a chess match and having to read not only how the situation's playing out in front of you, but the options that might unfold in just a few moves.
00;03;13;01 - 00;03;38;27
Tom Godar
Well, and while you may be playing chess, I entered, in the CBS brackets for the NCAA men's basketball piece. There is a shining moment when I was under 100,000 in the, rankings of the players on that, it has kind of fallen apart. I think I'm somewhere now near 400,000. I tried to look and find out how many million people are playing.
00;03;39;00 - 00;04;02;18
Tom Godar
I'm still hoping it's more than a million, which means I'm at least in the upper 50 percentile, but not feeling it so much. My momentum is going and momentum's one of those concepts that's important in sports. They keep talking about changing a momentum. I laughed because somebody else scored a touchdown. Now the momentum's changed or somebody else has scored a three point shot or maybe two in a row.
00;04;02;20 - 00;04;23;08
Tom Godar
But in fact, momentum's kind of an interesting stuff in our practice as well. If not just reading the tea leaves. It's having an educated understanding of where it might be going. I think Bobby Hall used to say that, you know, it's get to the puck, you skate to where the puck is going to be. And we've talked a little bit about where the puck is going at him.
00;04;23;11 - 00;04;37;14
Tom Godar
In labor law, we've been talking about a guy since the Biden administration was elected. And then since the second Trump administration came by, because that augured a change in momentum. But are we seeing that change momentum as are picking a pace? What are you observing at?
00;04;37;16 - 00;05;08;11
Adam Doerr
I think we are seeing that momentum change back towards management, and we kind of knew that that was coming. But what we were used to seeing when past administrations change from red to blue and vice versa, we're used to seeing these quick announcements by the new administration's general counsel about the different swaths of precedent that they wish to overturn, and they're going to put a pause on all these cases and required to go through their process of advice and review and eventually overturn it.
00;05;08;13 - 00;05;37;25
Adam Doerr
But we haven't seen that with the Trump second administration. We saw a dismantling of the board in sorts, rendering it frankly incapable of overruling precedent and where we are now. The board still lacks the the kind of supermajority that it would traditionally like to have in order to overrule precedent, but to the point of momentum. We have seen a few different ways that this administration has gone ahead.
00;05;37;28 - 00;05;57;16
Adam Doerr
And not only are those and stop the momentum that the Union side had, but actually shift it back towards the management side, even still, without the big headline reversals that we may have seen by this time under other administration changes.
00;05;57;23 - 00;06;24;28
Tom Godar
Now, a couple of things I wanted to delve into. And just that opening thought. One is that early in the administration, when the acting general counsel was appointed, we did see some memoranda come out. I think new general counsel has put out some memoranda that talks about what they intend their regional offices to enforce. And I think just this month there was a withdrawal of the joint employer role, which of course never was implemented.
00;06;24;28 - 00;06;48;29
Tom Godar
It was staffed by the courts and then paused by the Biden administration. It's been officially taken out. But you were talking particularly about the NLRB majority making decisions that would overturn precedent or rewrite the ruling. You mentioned something about a supermajority. Tell us a little bit more about what the historic practice has been of the board before. It overturns precedent.
00;06;49;05 - 00;07;22;10
Adam Doerr
Traditionally, the board has resisted overturning precedent by a 2 to 1 margin and instead wants three votes to signify a solidified board, reversing the law that exists for employers in this realm. So without that third vote on the Republican side, they have been very resistant to directly overturn Cemex or any other precedent that we on the management side are still waiting to be reversed.
00;07;22;15 - 00;07;23;10
Adam Doerr
Got it.
00;07;23;12 - 00;07;41;18
Tom Godar
Well, that's not written into the National Labor Relations Act or somehow available as a law or regulation. That has been a pretty hard precedent, and so far we haven't had any clear signal that two member majority and a three member board are prepared to go in a different way than the historic boards have.
00;07;41;25 - 00;08;03;14
Adam Doerr
I haven't heard anything suggesting that they're close to changing that traditional practice. By all accounts, they've mostly publicly been adhering to that principle and the decisions that we've seen recently, although I think that they're signifying a desire to reverse, they haven't been so explicit in actually reversing precedent.
00;08;03;21 - 00;08;15;22
Tom Godar
Well, and if the president doesn't get around to nominating another board member in the Senate, eventually getting to have committee hearings and approving that it may be a long time before they have a fourth and a fifth member board.
00;08;15;29 - 00;08;32;22
Adam Doerr
That's exactly right. And I still wonder and suspect whether that's part of what the president has done to thank the Teamsters and others in labor that did support him in his last presidential run.
00;08;32;29 - 00;09;01;00
Tom Godar
Yeah, I won't see any headlines. Those are quite conversations that take place outside of the offices of Blackwell, generally speaking. But that does it mean that the board and the court are having some impact upon labor law interpretations, which is affecting how our clients are going to react, how we might give them advice on issues related to organizing campaigns related to discipline rules and so forth.
00;09;01;00 - 00;09;42;20
Tom Godar
And you've already used that dreaded word, at least on the management side of the aisle Cemex in our discussion. There was some changes, or at least some interpreted versions, of how broad a reach the board wants to have with regard to improper activities by employers prior to an election, which under Cemex we are fearful that almost any kind of violation, or any kind of unfair labor practice might result in a Cemex imposition of a union upon employer, which maybe never even had a vote or had won the vote.
00;09;42;20 - 00;09;58;00
Tom Godar
But in proceedings following, the board would just say, well, you tainted the ability to have a fair election. Therefore, we're going to impose the union on you. What are we seeing from, first of all, the board with regard to those Cemex analysis?
00;09;58;03 - 00;10;43;16
Adam Doerr
So there were a couple of decisions that were issued on March 25th that caught my attention. One style, Jireh Plumbing LLC, struck my attention because the board found unfair labor practices justifying a Gissel bargaining order without any mention of the Cemex decision. Gissel is the old case that traditionally would require setting aside of an election and an affirmative bargaining order with a union, and Cemex went broader than that, and has been the case that has governed the kinds of cases involving ULPs leading up to or in connection with union organizing campaigns and elections.
00;10;43;19 - 00;11;00;07
Adam Doerr
So the fact that this case didn't even mention Cemex and instead ruled under a Gissel bargaining framework, suggested to me that the board is not terribly interested in relying on Cemex anymore.
00;11;00;10 - 00;11;37;14
Tom Godar
And the difference is important. First, the idea that the board would go to a standard that essentially had been overturned or changed very significantly, that is, go to the Gissel without Cemex is a pretty clever way of maybe signaling that they're going to overturn it, but not quite yet. We'll just go to the old standard. But why don't you tell us a little bit about the difference and why that the difference for those employers and unions who are engaged in an organizing campaign, who cares that the board might say Gissel is precedent rather than Cemex.
00;11;37;21 - 00;12;14;29
Adam Doerr
Or Cemex was written very broadly and at least threatened to require an employer to bargain with the union regardless of an election results were kinds of less severe, unfair labor practice contracts than the Gissel framework would require to impose a bargain order under that standard. Under Cemex, even just the traditionally alleged threats of horribles, if a union won an election or allegations of interrogation about employees union sentiment, those kinds of allegations could have supported a bargaining order under Cemex.
00;12;15;01 - 00;12;25;14
Adam Doerr
Whereas it really required more egregious conduct that really undermines a bargaining unit's ability to have a fair election that warrants a bargaining order under Gissel.
00;12;25;16 - 00;12;42;16
Tom Godar
I remember the Gissel standard as being impossible, or at least very unlikely to allow for a fair election, and that was really downgraded to something like the election might be tainted by the conduct. And gosh, that left all of us wondering what exactly does tainted mean?
00;12;42;18 - 00;12;59;29
Adam Doerr
There is even a point where once it was established that there was unfair labor practices that may have impacted employee sentiment under Cemex, then it shifted to the employer to demonstrate that it could not have possibly interfered with employee sentiment, which to me sounds like a next to impossible standard to establish.
00;13;00;04 - 00;13;09;29
Tom Godar
Yeah, proving the negative. Not anything that you want to engage in. So you mentioned that that was one case that came out just a few days ago with the second case that you're referring to.
00;13;10;01 - 00;13;54;20
Adam Doerr
The other involves Saint John's College, again, issued March 25th. And in that decision, the board was very careful to explain that if the mere filing of an RM petition outside the two week window of a unions claim of majority support and demand for recognition does not require a region to dismiss the RM petition as being untimely. Instead, the board in Saint John's College explained that the reference to two weeks in the Cemex decision for the filing of the petition refers to the employer's ability to defend against an 8(a)(5) obligation.
00;13;54;23 - 00;14;14;18
Adam Doerr
It is not a policy rule requirement under the board's rules to have a timely filed RN. So it was an interesting decision to me showing that the board is not interested in expanding or broadly interpreting the Cemex decision.
00;14;14;19 - 00;14;33;01
Tom Godar
We talked about momentum in the context of the NCAA and my unfortunate picks, but we're seeing a momentum shift, it sounds like, in the board's interpretation of Cemex that there maybe have not outright rejected it, but they're certainly trimming it, and they're looking at other standards, perhaps to guide them in their decisions.
00;14;33;05 - 00;14;47;16
Adam Doerr
Yeah. In your NCAA context, it might suggest it's like a bigger physical team recognizing that the officials are calling a more lenient game now and letting them play. And so I think that the rules haven't changed. But maybe the interpretations are.
00;14;47;23 - 00;15;12;12
Tom Godar
Adam, thank you so much for that summary and insights regarding how the board is already reframing issues related to elections through Cemex that they're not necessarily saying we're going to overturn it, but they're in some ways ignoring it or clipping its wings a good deal in terms of what it might mean to unions, employees and employers. I appreciate so much your participation.
00;15;12;12 - 00;15;37;14
Tom Godar
We're going to continue this discussion in part two, and I hope you join us. Then Adam and I are going to continue exploring the momentum shifts that we've seen over the last 18 to 24 months and the last couple of weeks. We're going to talk about how the courts of appeals have been looking at some of the decisions of the NLRB, and whether they were seen as overly broad or without authority to make those decisions in some cases.
00;15;37;16 - 00;15;54;08
Tom Godar
And then, of course, a little bit of the what does it really matter discussion that's important for all of us to take into account. So Adam, once again, thank you. Thank you, Labor Law Insider audience. And we'll be back at you with part two in just a week or two.