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00;00;00;00 - 00;00;23;20
Tom Godar
Welcome to Husch Blackwell's Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing in the labor law sector for, gosh, 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 5 or 6 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 labor law issues, the family of Husch Blackwell labor law counsel more than doubled and 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 January of 2025, President Trump was inaugurated to his second but non-continuous term. And once again, we're seeing significant changes in how the National Labor Relations Board and its appointed members, the GC right now and 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;29;21
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;29;21 - 00;02;00;23
Tom Godar
So great to have you here for part two of my discussion with my colleague Adam Doerr. Adam has been practicing in the labor area exclusively and looks at the details of decisions, but also how they fit in the big picture. And indeed in part one, if you listened, you had an opportunity to see Adam parse through some of the important decisions that the NLRB is making regarding particularly Cemex and what it is and isn't referring to as they move through
00;02;00;25 - 00;02;22;19
Tom Godar
what's going to be reframing of the Cemex issues related to elections and much more. But we started out with the grand theme of momentum. And in part two, we're going to continue with that theme as we look at how some of the issues that are going to confront employers and employees are now being seen by courts of appeals as they interpret
00;02;22;21 - 00;02;34;29
Tom Godar
The Board action related to labor issues, the decisions that the board has made previously and how they're reviewed on appeal. So let's continue, our discussion in part two.
00;02;35;02 - 00;02;57;04
Tom Godar
March was a pretty interesting month for the Cemex world in the Brown-Forman versus NLRB. The Sixth Circuit rejected Cemex for a different reason, and that was close to my heart because Brown-Forman owns some distilleries, and I kind of like some of the bourbons that they put out. The Sixth Circuit is that circuit that deals with Kentucky and Michigan, Ohio and Tennessee.
00;02;57;04 - 00;03;29;28
Tom Godar
So it's not a national precedent. It doesn't mean, like to the United States Supreme Court rejecting a position of the NLRB, but it's certainly interesting. And if I understand it, they said that such a significant change, as I read the case, wouldn't call for just adjudication, but for rulemaking. Help me and help the listeners understand better about what that circuit decision means about the way the board tried to implement the decision of Cemex.
00;03;30;00 - 00;04;11;04
Adam Doerr
Well, in general, there's, let's say, two buckets of authority relating to labor law. There's the statutory authority and the rules and regulations issued pursuant to the statutes. And then there the labor board decisions interpreting the scope of the employee's rights and employer defenses, employer rights and union rights. And if the labor board wants to change the rules and regulations governing the proceedings about how charges are brought and prosecuted then it has to go through the traditional rulemaking process.
00;04;11;07 - 00;04;23;10
Adam Doerr
It's not supposed to be changing the rules and regulations by decision making. And that's the crux of what the Sixth Circuit found that the board was doing with the Cemex decision.
00;04;23;17 - 00;04;44;21
Tom Godar
Yeah. And we've had a handful of decisions over the past 3 or 4 years and important ones from the Supreme Court, as well as others from circuit courts, trimming the authority of administrative agencies and basically what some of us might call making law, as opposed to interpreting and applying a law. And that's what this Brown-Forman case feels like to me.
00;04;44;21 - 00;05;08;15
Tom Godar
And it's going to be instructive, if not determinative, for other circuits as well. You know, we talked about momentum shift, but it's not all been in March of 2026. Back in late 2025, there was this small karaoke restaurant, I guess it was called Hiran Management, or at least that was the owner, because the style of the case for the Fifth Circuit was Hiran Management and the NLRB.
00;05;08;18 - 00;05;29;03
Tom Godar
And there they were rejecting something else that, you know, we were crying a lot about as management attorneys, that is the scope of remedies that the National Labor Relations Board might have the authority to offer, like, well, because you got laid off, you couldn't make your mortgage payment because you couldn't make your mortgage payment, you had penalties and all that sort of thing.
00;05;29;03 - 00;05;58;02
Tom Godar
So the remedies would include anything that was a consequence or even a secondary consequence of perhaps being terminated in the context of a ULP and we're going to make it all right. It's going to make it as though it never happened. But the court rejected that sort of broad standard. What is this being this whole looking carefully at the Thryv standard or creating consequential or damages rather than just competitor damages.
00;05;58;02 - 00;06;03;27
Tom Godar
Right. And I know I just used inside language, so you might want to unpack it, but help us out understanding what's going on here.
00;06;03;29 - 00;06;34;29
Adam Doerr
This question reminds me a lot of the classic law school torts causation question. At what point does a consequence, if you will, stop being the actual proximate result of something happening? And under the Biden administration, the board was very broadly construing what damages were caused by a discharge such that they were properly included in a traditional May claw remedy.
00;06;35;02 - 00;07;20;16
Adam Doerr
The labor board's not allowed to issue punitive damages or damages that go beyond a may call remedy. It's supposed to get people back to where they would have been absent the unlawful conduct. And so the Biden administration's board was broadly construing that, as you suggested, to include mis credit card payment fees, mortgage that were missed, cars cost, you know, medical bills, anything that they could allege was because of or linked to essentially the discharge in the Fifth Circuit, as you noted, as push back on that, recognizing that the traditional medical remedy, when we're talking about somebody who's been discharged, is their lost pay, subject to reasonable mitigation that benefits that they missed out on and
00;07;20;16 - 00;07;33;04
Adam Doerr
those kinds of things rather than, more attenuated, caused results, for example, of not being able to make a car payment or credit card payment.
00;07;33;06 - 00;07;50;29
Tom Godar
You know, this was an interesting case because apparently the employees got ticked off at the employer and they all walked out and they all got fired. I mean, this is just straight up this is the kind of stuff that the National Labor Relations Act, the don't do that you don't fire people for engaging in collective activity. When those cases come our way,
00;07;51;00 - 00;08;10;28
Tom Godar
probably like the lawyers who got this, they said, you got a hard road to go. But, the board won't settle cases under the Biden administration without full damages. The full damages at this point, we're going to be those consequential rather than merely compensatory damages. It sounds like they might have litigated this whole thing in order to get to the damages question.
00;08;10;28 - 00;08;26;22
Tom Godar
And at least in this case, the Fifth Circuit rejected the broad damage calculation that the board was going to impose because of the Thryv case. So I suspect as you look at your crystal ball and we talked about momentum, we expect this shift to continue.
00;08;26;22 - 00;08;54;03
Adam Doerr
And I do expect this shift to continue. And I expected to continue in a similar way. And I mean that by we’ll receive decisions with more favorable interpretations. The general counsel will take more favorable positions. But we may not see at least any time soon, the direct overruling at the board level, a lot of the precedent that the Biden administration moved towards the unions.
00;08;54;06 - 00;09;18;03
Tom Godar
At a practical level, I think this is not unimportant. Of course, we would counsel that our clients or those engaged in employee relations engage in those relations consistent with our laws and our laws include the National Labor Relations Act, the Labor Manager Relations Act. That means you cannot discipline people because of their union activity or their collective activities.
00;09;18;07 - 00;09;48;06
Tom Godar
It means that you may, however, engage in activity prior to an election that allows the employer to state its case as to why a direct relationship, rather than a collective relationship, might be good not only for the company, but also, of course, for the employees. So within that context, I think some of the behaviors of employers can change as they see that they, as you suggested, they rest, are living, a little bit more free play take place.
00;09;48;11 - 00;09;55;06
Tom Godar
Give us some examples of what that might really be mean to our clients and to others. Engage in these things even now, right now.
00;09;55;08 - 00;10;25;08
Adam Doerr
One direct example where we can breathe a little easier is with the handbooks we've seen recently. The general counsel take the position that we don't. We the region is the labor board does not need to be focusing its resources on whether a handbook provision regarding professional attire or conduct is itself unlawful, as written. Instead, if it is actually used to suppress or discriminate against section seven.
00;10;25;08 - 00;10;57;22
Adam Doerr
right, those are the violations that we need to be looking at and remedying. So in some of those ways, employers are more free to trust that they are complying with the law in practice without necessarily the paranoia and over concern with some of the prior administrations boards language around whether something could reasonably be interpreted to chill or restrain or interfere with section seven rights.
00;10;57;25 - 00;11;06;21
Adam Doerr
So having a more practical understanding and interpretation of the act is, I think, allowing employers to operate to breathe a little easier.
00;11;06;23 - 00;11;48;08
Tom Godar
And that's certainly going to be true in pre-election conduct. Not only do we talk about whether you have to file for an election within two weeks, but also the conduct in which you engage as you inform your employees of your own position on unions and whether or not there's opportunities for an excellent employer employee relationship without unions. And whether those kinds of things, which honestly had been some of the heartbeat of the campaigns that you and I have run in the past or now suspect as being potentially a ULP and a board could engage in a bargaining order rather than saying, gosh, you know, you might have had a ULP at the election, proceed
00;11;48;11 - 00;11;49;09
Tom Godar
and abide by it.
00;11;49;12 - 00;12;12;12
Adam Doerr
Exactly right. I think all of that is playing together. The fact that not every handbook rule needs to be scrutinized with the same level of degree paired with the more practical interpretation of rights in the context of preelection proceedings. All of that is going to provide, I think, a more level playing field for employers in labor law.
00;12;12;14 - 00;12;33;16
Tom Godar
Well Adam, as I knew it would be, this has been terrific and fun, and I always learned when I spent time with the speech champion of labor law, analyzing, thinking through, paying attention to the changes and what they might suggest for the future. Thank you so much for joining us today on the Labor Law Insider, and I appreciate that we'll be seeing each other again in the future.
00;12;33;21 - 00;12;38;14
Adam Doerr
Always a pleasure. And let me know if you ever want a game.