This transcript has been auto generated
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 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 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 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 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;56;25
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. Welcome back. And it’s great to have you joining us today. You know, it’s early still in in the year of the middle of January, where we’re putting down this recording and it was only a week or so ago that we had, not a big change or was all anticipated, but the swearing in of new NLRB members took place on January 7th, and we’re seeing changes or seeing changes from the acting GC, and we’re seeing changes from the general counsel.
00;01;57;02 - 00;02;32;21
Tom Godar
We’re going to have a traditional labor law discussion today move moving from our wonderful broad discussion that we had in our last Labor Law Insider podcast. And I could not welcome a better guest for this Labor Law Insider in a true insider. Terry Potter, one of my partners from our St. Louis Husch Blackwell office, but also fellow who worked himself in the NLRB as one of their counsel and has been helping employers understand, frankly, how to have excellent employee employer relationship, which is one of the best union avoidance techniques ever invented.
00;02;32;24 - 00;02;54;09
Tom Godar
But also what’s going on in DC, what’s going on at the regions and what we have seen and what we might anticipate over the next several years under this National Labor Relations Board. Terry is found on virtually every one of what I call the vanity lists that are published out there, Best Lawyers and Best Lawyers in Missouri and this and that.
00;02;54;09 - 00;03;12;19
Tom Godar
And he’s been there, frankly, for a really long time, because he deserves to be. While these are vanity lists, sometimes they get it right with Terry. They have it right, is truly one of the finest labor lawyers that any client would be able to bring into their side of the camp. Terry, it’s great to have you, and thanks so much for joining us again on the Labor Law Insider.
00;03;12;21 - 00;03;29;13
Terry Potter
Well, thank you, Tom, for that great introduction. I’m beginning to the boss here. Hopefully we’ll kind of have a good time today and talk about what we see going forward will be occurring and the space of law. You and I have talked about this, but it’s nice to share with others.
00;03;29;16 - 00;03;47;10
Tom Godar
You know, six years ago or so we were talking and we said, you know, we ought to put together a podcast. We ought to show a little bit more into the media what it is that elections have consequences because we were anticipating or had just had a Biden election win, and now we’ve had a different regime come in a different administration.
00;03;47;12 - 00;04;18;10
Tom Godar
And so there’s a lot of changes taking place. Once again, labor law continues to be a ying and a yang based on elections. And the president has just completed the first round of appointments through the process of having a swearing in, if you will, after Senate approval of two new members of the board and moving from an acting general counsel to a general counsel first, Terry, we have James Murphy, who’s been sworn in as a new member of the National Labor Relations Board.
00;04;18;12 - 00;04;33;10
Tom Godar
He was we looked at this 47 years as an NLRB attorney and a consummate insider in the board. What does that mean in terms of the board process and the way that they’re going to look at how employee and union rights are balanced with management are in place. Right.
00;04;33;13 - 00;04;53;21
Terry Potter
Well, and he’s probably going to have a balance and pack, frankly, once you’ve been with the board that long, it’s kind of certain procedures and a certain mindset is kind of ingrained in you. I don't think he’s going to go off and oh, I feel that’s for sure. That’s probably going to be the main result of his presence on the board.
00;04;53;21 - 00;05;19;22
Terry Potter
And he’s going to have a, I’m assuming, a very strong recall of relevant cases and footnotes within those cases to draw upon when they get into more difficult holdings. I didn’t want to deal with it. It’s always good to have that person. You can go back and look at what happened 20 years ago and put things in perspective.
00;05;19;24 - 00;05;29;29
Tom Godar
Oh well. And you’ll know the regional directors. He’ll know personnel, he’ll know who’s on staff, who’s great at researching and writing decisions that he had to bring some real interesting strength. Sure.
00;05;30;01 - 00;05;33;10
Terry Potter
Yeah, absolutely. Institutional knowledge. Yeah.
00;05;33;12 - 00;05;55;08
Tom Godar
And then Scott Mayer has been confirmed, sworn in as a member. He was the chief labor counsel at his last gig at Boeing. Had been in the hospitality business on the management side at Intercontinental and MGM and so forth, worked for a stint at Morgan Lewis, an excellent labor law firm. What might he bring to the board that's going to be new or maybe it’s consistent with what we’ve seen over the years.
00;05;55;10 - 00;06;19;10
Terry Potter
Well, I think working as an advocate, it’s a different perspective than he’s the one questioning why certain policies are in place or should be continued to be in place going forward. He’s the why guy. Why are we doing why? What’s the bottom line here in terms of public policy? I think as an advocate, you think about that a lot more than if you’re an insider at the board.
00;06;19;12 - 00;06;20;28
Terry Potter
I think that’s what he’s going to bring.
00;06;21;00 - 00;06;26;02
Tom Godar
Well, and there’s a Biden appointee that’s still there. David Prouty, am I pronouncing the last name correctly?
00;06;26;06 - 00;06;27;02
Terry Potter
I think so.
00;06;27;04 - 00;06;41;06
Tom Godar
He’s got now institutional knowledge and he’s got his own background as a laborer, a union advocate. So it’s not as though these folks have a complete open field to run in. There’s laws and regulations and precedents. So we’re going to see some of that play out, aren't we?
00;06;41;12 - 00;06;48;24
Terry Potter
Well, that also we know we’ve got a general counsel who is going to control what he believes are the cases that should be prosecuted.
00;06;48;26 - 00;07;12;14
Tom Godar
So Crystal Carey, general counsel, Morgan Lewis, former NLRB staff attorney like you obviously thought of is management friendly. What kind of impact is this going to have? I mean, we’ve seen a lot of interim memos from the acting GC. Do we expect this to be sort of a continued path? Layers are going to be some other changes. Anything that we can read into this at this point?
00;07;12;17 - 00;07;36;24
Terry Potter
Well, I think the new GC is made it clear. He definitely wants to make some changes. And the best way to also view this is going back to when William Cowen was the acting GC and looking at all the GC memos that he rescinded from the Biden administration, and the current GC hasn't had an opportunity to really jump in and comment about any of these.
00;07;36;26 - 00;07;57;13
Terry Potter
But I don’t think there's going to be any significant changes from what had previously been thrown out the window. But Cowen’s laundry list of GC memos that he felt were not necessary. I think it’s going to be the beginning point, just a matter of whether or not the new GC wants to add on to both.
00;07;57;15 - 00;08;15;03
Tom Godar
Yeah, we don't really expect much of a bend in the way in which GC Carey sees the practical implications of the regulations, as well as the National Labor Relations Act, the LMC, but it might be a continuation on that glide path is what we’re kind of looking at.
00;08;15;05 - 00;08;44;00
Terry Potter
Yeah. I mean, again, usually when it comes to Republican administrations, they’re not out to expand the authority of the board. They like to stay in the lane, so to speak, much like what acting GC Cowen said when they issued this initial memo back in February of 25. Let’s focus on what we’re here for. Yeah. And what’s not. We spoke with him while our goals are here, which I totally agree.
00;08;44;03 - 00;09;14;23
Terry Potter
And particularly, you know, that was raised when there were concerns over the board’s holding in the thrive case and the expansion of remedies and settlements, which he is not a fan of, and neither am I, and try to create these court type remedies and administrative proceedings in my mind, doesn't work very well. I you know, I said before, the purpose of these administrative proceedings is to quickly get the matter resolved and move on.
00;09;14;25 - 00;09;30;20
Terry Potter
And if you raise the ante on the potential remedies, employers in particular are going to dig their feet in and fight it, and therefore it's going to pro on the whole process. And that’s not the intent.
00;09;30;22 - 00;10;13;00
Tom Godar
Well, we look at the charges that were filed over the five year run from 2021 on and up to 2024. I mean, they went up by 6000. It encouraged more charges because there is a bigger bucket at the end of the run potentially. And it was an interesting world. I mean, all of us four years ago were talking about how wide open Gwen Willcox under her regime, as GC, had opened this up not only to those who were in the organized environment, but really attempting to make the NLRB proceedings relevant to every employee by saying, we're going to find ways in which to protect concerted activity, even though we hadn't seen that as concerted activity.
00;10;13;00 - 00;10;22;04
Tom Godar
And we’re going to have a broad bucket of remedies that we’d never seen before. I mean, there are plenty of good remedies on the board's hand, but gosh, the expansion was crazy.
00;10;22;07 - 00;10;47;11
Terry Potter
Well, and in particular, again, they weren’t staying in her lane, for example, they were trying to regulate non-compete provisions in the private sector. And the state law has covered that area for years. There are no need for the board, but there are nos in the middle of that at this creates havoc. Now give it to the States. They’ve done a fine job of regulating that.
00;10;47;14 - 00;10;57;12
Terry Potter
Do what you’re good at, regulate all actions, regulate configure activity. That’s what Congress intended you to do. So do that job. I’m not somebody else’s.
00;10;57;14 - 00;11;21;02
Tom Godar
And I was talking with you before we went on air, of course. And we’re talking a little bit about a case I wasn't familiar with, which is the local joint election or executive board of Las Vegas versus NLRB, the Ninth Circuit case 2011, which established and what I believe both Mayer and Murphy have said they’ll respect that requiring a three member majority to overrule existing precedent.
00;11;21;02 - 00;11;51;25
Tom Godar
And we have had cases, not just Wilcox memos that came out and you talked about Thryve there’s Cemex and Stericycle and all of our insiders who are listening know exactly what I’m talking about when I start throwing those out, you know, micro units with American Steel and so on. So, right now, even as we move towards board, starting to clear up some of the stuff that's on their case, we're not going to immediately see any overturning of those cases until another member who might be more management friendly, if you will, is appointed.
00;11;51;28 - 00;12;13;19
Tom Godar
But does that make any huge difference to the way in which those who are either engaged in union operations or management operations are looking at the world? The fact that there’s not going to be, at least for some period of time, overruling. In other words, I guess how important are the GC memos? How important is the bend of where the board’s going compared to their actual overruling?
00;12;13;19 - 00;12;18;03
Tom Godar
If they’re going to and they may, cases like Stericycle and Cemex.
00;12;18;06 - 00;12;50;04
Terry Potter
Well, I got to where the GC comes in in terms of all these memos where he directs the prosecution for the agenda for the prosecution of cases, and if this agenda doesn't include focusing on Cemex and some of these other matters, then those cases are going to be presented to the board when they have lost a quorum on the Republican side, they're going to sit and either advice or the said period, and they're not going to be issuing complaint on those cases.
00;12;50;07 - 00;12;55;03
Terry Potter
So it’s a de facto being overruled this by not being prosecuted.
00;12;55;05 - 00;13;18;00
Tom Godar
What we talked about Thryve, which was the case that represent it to us on both sides, again, union management, the employee employer, the expanded remedies case. We’ve mentioned Cemex. But just to make sure that we’re not talking too much inside stuff, Cemex to me that represents elections. Talk a little bit about that and why it's important to management or to unions that that be throttled down.
00;13;18;04 - 00;13;25;27
Tom Godar
I personally thought it was a huge throttle up, talked a little bit about Cemex and why throttling that down is going to be important.
00;13;26;00 - 00;14;02;15
Terry Potter
In my mind, Cemex was maybe one of the worst decisions issued by the NLRB in its entire lifetime, at least in terms of how it was being implemented by the Regents, in which the board and the GC set up these guidelines so that if even if there were more than a minimum amount of per labor practices being engaged and during a organizing campaign, that would be sufficient to issue a bargaining order and force the union upon the employees and the employer.
00;14;02;18 - 00;14;29;02
Terry Potter
That’s not how this is supposed to work. I mean, bargaining orders historically were extraordinary remedies. It’s only when an employer engaged in wholesale was referred to as god awful misconduct threats of closing down, actually closing down to all these mass discharges, things of that nature that a bargaining order was necessary. And frankly, every few and far between historically and refigure.
00;14;29;09 - 00;15;00;04
Terry Potter
And then all of a sudden the threat changed. And now we were having all these charges being filed and bargaining or cases issued. I myself were subject to that process and the shoving the union down the throat of the employees. But what do I, I had a case where we had an election and the union lost, but the union filed a Cemex charge and we ended up getting a bargaining order.
00;15;00;04 - 00;15;06;28
Terry Potter
I mean, insane, saying employees had already spoken. So that’s what you run into and that’s what’s so frustrating.
00;15;07;00 - 00;15;36;22
Tom Godar
Well, it was even more frustrating when, again, another name that might be familiar to most of the crowd that listens to this podcast. But Stericycle expanded the reach of what constituted a ULP are you have an expanded reach, and you have the Cemex hammer that’s at the end of that. And that really put employers at a at a really unstable place to say, how do I inform engage my employees in a discussion about what it might mean to get engaged with the union?
00;15;36;25 - 00;15;59;18
Terry Potter
Well, and frankly, it all goes back to that gotcha mentality, which is what we shouldn’t be doing here. We should be doing something more along the lines of what the DOL does. DOL provides guidance memos of all kinds. Where B has never done, it’s always been you step in the muck. We’ll tell you it’s bad muck, but you know you’re on your own.
00;15;59;21 - 00;16;12;09
Terry Potter
Why? We’re going to regulate something. Why don’t we regulate it in advance? So all things are foreseeable and we don’t have all this litigation and the expense associated with it. I’ve never understood that.
00;16;12;11 - 00;16;35;13
Tom Godar
Well, part of this, it seems to me, has tended to make lawyers richer and employers and maybe unions poorer. That is, if you are going to get hammered with bargaining orders or if you settle the case, you had to settle it for 110 cents on the dollar. With posting all of these apologies for conduct that you don't believe constituted the ULP
00;16;35;13 - 00;16;45;12
Tom Godar
in any case, you say, the heck with it, let’s go fight. Let’s take our chances. This is maybe a judge will see this differently. Does it? Was that part of your practice over the last three or 4 or 5 years?
00;16;45;15 - 00;17;05;08
Terry Potter
Oh yeah. And the other thing was, oh, now it is postings. But making an employer representative stand up in front of his employees and read the posting a public shaming, I think the Sixth Circuit said, which was inappropriate. That’s not how they should be handled.
00;17;05;10 - 00;17;23;10
Tom Godar
Terry, that this is a wonderful summary of just one of the ways in which the previous board rulings took the National Labor Relations Act and remedies, or even settlements well beyond anything we had ever seen before. But it’s worth continuing our discussion.
00;17;23;10 - 00;17;24;17
Tom Godar
But Terry, I think we’re going
00;17;24;17 - 00;17;55;21
Tom Godar
to carry this discussion over into our next Labor Law Insider episode, where we learn a little bit more about how the unions had and will continue to the best extent that they can use social media to move forward with their agenda. But it’s probably going to be a bit tougher with the new board. But Terry join me for episode two of this are part two of this discussion on the changes that we’re seeing for 2026, in our next Labor Law
00;17;55;21 - 00;18;16;11
Tom Godar
Insider. And thank you so much for joining us. And listeners, please join us in a week or two when we get to the second part of this discussion, which you’re going to find just as interesting, and maybe even more so as we continue our journey into 2026 in the Labor Law Insider.