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 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 January of 2025, President Trump was inaugurated to his second but noncontinuous 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;50;16
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 to the Labor Law Insider. This is your host, Tom Godar, and I’m really glad that you could join us. I’ve been practicing in the labor law sector for more than 40 years, and I can tell you that my observation is that in the last 5 to 6 years, we’ve had some of the greatest changes, the swinging of the pendulum that we’ve ever experienced in this area.
00;01;50;18 - 00;02;15;17
Tom Godar
We began this podcast back in May of 2021, after President Biden was elected, and he had pledged to be the most union friendly president ever. And indeed, he arguably was. And there were significant changes during his tenure under the National Labor Relations Board that he had a chance to influence and appoint, and his general counsel, Wilcox. Well, I think it’s been said that elections have consequences.
00;02;15;17 - 00;02;43;22
Tom Godar
And in January of 2025, President Trump was inaugurated for his second term. Noncontiguous term. And in the past year, we’ve again seen that pendulum swinging. First, there was the appointment of an acting general counsel. But as of January of this year, we have a new general counsel, Crystal Carey, and two new members have been confirmed and sworn in to the National Labor Relations Board, James Murphy and Scott Mayer.
00;02;43;24 - 00;03;06;11
Tom Godar
And so the changes we saw, beginning with the new administration will continue and perhaps even accelerate under the new board. We think that the Labor Law Insider is going to be just as helpful to you our friends and clients as it has been for the past 4 or 5 years, and we’re looking forward to continuing with you on this podcast.
00;03;06;14 - 00;03;40;17
Tom Godar
As I have said, I think each time I recreate an introduction, it’s a wild ride of labor law. And once again, I promise you it will be. And I could not welcome a better guest for this Labor Law Insider and a true insider, Terry Potter. One of my partners from our Saint Louis Harsh 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 an employee employer relationship, which is one of the best union avoidance techniques ever invented.
00;03;40;19 - 00;04;02;07
Tom Godar
But also what’s going on in DC, what’s going on at the regions? 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 list that are published out there. Best Lawyers and Best Lawyers in Missouri and this and that.
00;04;02;07 - 00;04;20;29
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. And with Terry, they have it right is truly one of the finest labor lawyers that any client would be able to bring in to their side of the camp. Terry, it’s great to have you, and thanks so much for joining us again in the Labor Law Insider.
00;04;21;00 - 00;05;01;27
Tom Godar
Terry, one of the driving forces of section seven of the National Labor Relations Act is labor peace. Obviously, and under the Biden board, however, we saw a real difficulty in achieving settlements because of the fear that the National Labor Relations Board directors and staff would demand pretty outrageous, in our estimation, components of a settlement agreement. They would ask, for instance, for 100 cents plus on the dollar and some pretty difficult issues in order to negotiate a settled decision for on board charge.
00;05;02;00 - 00;05;26;16
Terry Potter
Well, not only that, but I had a situation where we settle the case and my client had employer rep read the terms of notice and the board agent what the union rep and the employees record that situation. It should have never happened. Totally improper. It has gotten out of control.
00;05;26;18 - 00;05;34;29
Tom Godar
Terry, another change that we saw under the Biden administration, which I anticipate will be rolled back significantly, was the breadth
00;05;34;29 - 00;05;35;24
Tom Godar
of
00;05;35;27 - 00;06;12;05
Tom Godar
communications by unions that were seen as appropriate, whether it had to do with disparaging employers or certain of the management employees, or saying pretty shocking things at various times and all of found to be appropriate, or at least not improper because they're protected, concerted speech or activities. Among those areas were the really chippy kinds of statements that were made, and they were made in all sorts of contexts, including in the public context.
00;06;12;08 - 00;06;41;11
Terry Potter
Well, another one of my big problems is social media, especially in the context of organizing campaigns. I think the board needs to step back and think about how they want to deal with that in terms of union campaigns and what unions can or can't say with respect to employers in terms of the truthfulness. I mean, there's got to be a standard where they're just making boldface lies, but there's a penalty to pay for that.
00;06;41;13 - 00;06;57;12
Terry Potter
And there isn’t right now. And so misinformation gets spread constantly as a big influence on the outcome of these elections. And the board isn’t recognizing that impact and isn’t regulating that activity as they should.
00;06;57;14 - 00;07;19;17
Tom Godar
So we’ve talked about compare and contrast in an important way about what we saw under the Wilcox GC board and the Biden board, if you will, and what the merging under a board appointed by President Trump. And you’ve already identified some of the ways in it affected your practice and our client’s ability to maneuver at the same time.
00;07;19;19 - 00;07;45;00
Tom Godar
In spite of what I would have called the most union friendly administration under Biden, and I hope what I’d call a correction now, the unions did not make huge gains in my estimation, during the four years when they had such a friendly board. They haven’t organized any large industries. They haven’t recaptured transportation or logistics. Retail still seems largely outside their area.
00;07;45;00 - 00;08;02;11
Tom Godar
Hospitality? Yes, some. But Starbucks seem to be like their poster child. What do you make of the unions ability or inability to capitalize on a sort of friendly opinion about organized labor and a friendly board during the last four years, and where we're moving into in 2026?
00;08;02;18 - 00;08;29;01
Terry Potter
Well, I think the fact that the economy was strong all those years, they weren’t having layoffs either limited or mass layoffs. That makes a big difference. You know, people were afraid of losing their jobs. And that’s where the union story come in. You know, they feed off the insecurity of the employees. And I totally get that. But, you know, when you have a strong economy, what are you going to tell the employees you can do for?
00;08;29;03 - 00;08;53;24
Terry Potter
We’re going to change your handbook into a contract and that’s it. And we’re going to charge you for it. That doesn’t go very far. So I think they have a real uphill battle when the unions do, when the economy is going strong and very getting appropriate raises or getting appropriate benefits. Nobody is losing their jobs and well, they’re happy.
00;08;53;26 - 00;09;00;02
Terry Potter
They’re happy employees. And so they don’t see a need for a union. I think that is what was happening in the past.
00;09;00;04 - 00;09;19;27
Tom Godar
Yes. That is a really great point. How many elections ago was Terry? And I can recall when it was Bill Clinton who said, that’s the economy, stupid. Yeah. The economy does make a lot of difference in lots of lives. And yes, it’s been more stable in spite of the sense that election turned on uncertainty about the economy a couple of years ago.
00;09;19;27 - 00;09;40;27
Tom Godar
It hasn’t really shifted enough for people to say, I need a different kind of protection. I think when we’re now moving into this era and what do we need to learn from this in terms of some of the practical ways in which our clients are conducting their business, are rewriting handbooks, are looking at how to hire, orient, discipline and ultimately discharge employees.
00;09;41;02 - 00;09;57;12
Tom Godar
What are some of the lessons that are now in better focus now that we’ve seen a board appointment to change in the National Labor Relations Board, you're probably through GC memos and ultimately through some decisions, a reeling back of some of the broad strike of the National Labor Relations Board.
00;09;57;14 - 00;10;21;27
Terry Potter
You know, it hasn’t changed since the first day I became an attorney. It’s training. You’ve got to train supervisors on the basics, on human resources. You know, that’s the key. We’ve got to make sure that they’re doing the right thing, not only for the company, but for the employees, because in the long run, a company will pay for it
00;10;21;27 - 00;10;46;21
Terry Potter
if they have a supervisor who doesn’t understand that and thinks that if they beat up on the employees without cause, then that’s not going to have repercussions. It will it will definitely have repercussions. If you’re going to have employees who were upset. They're going to slow down in their work. They’re going to engage in internal protest and discord in the workplace.
00;10;46;23 - 00;11;14;28
Terry Potter
They will, in all likelihood, reach out to a union. Time and time again. Usually it’s not about money. When organizing takes place, is seldom about money. It’s about how have they been treated by supervision time and time again? That’s the cause. So if you train your supervisors to be good supervisors, then you eliminate high probability of being organized.
00;11;15;03 - 00;11;37;27
Tom Godar
Well, in my estimation, you know, transparent communication, selecting the right people in the first place, training them, giving them resources pays huge dividends. And those of you who haven’t had a chance to look at the last podcast that we did on the Labor Law Insider, it’s worth a click. We had list filter, one of my favorite CEOs of a growing organization, talk about her sense of servant leadership.
00;11;38;00 - 00;12;00;22
Tom Godar
But it’s not just for the CEO. She said she wants to try to inculcate that in all of her employees, that they’re all there to serve rather than to, you know, learn it over. And that’s, of course, really important for those who are in the management, HR sort of side of the place. Recently a client well, and this is happening, you know, 100 times a month for us to say, hey, take a look at our handbook.
00;12;00;22 - 00;12;22;27
Tom Godar
It’s time to look at it. There’s been changes. What do we do. And so this client happens to be in this particular side of their business has five different locations in five different states. So we’re looking at it. And of course we’re going to pay attention to state law in various states. It’s some of the things that are just rolling out now through the GC and acting GC memos and so forth, tell us that there’s a new sheriff.
00;12;23;00 - 00;12;43;00
Tom Godar
How do we help the clients say, is it time to take a look at the Handbook for review? Because quite honestly, a year ago I said, hold on. Let’s just, you know, limp along and see where this is going in this sort of how you’re selecting your policies and importantly, your policy enforcement. What kind of advice should be we helping our clients with?
00;12;43;03 - 00;13;10;06
Terry Potter
Well, here’s my dilemma. If you speak to any VP of HR, one of the things that they complain about is their attorneys constantly telling them they need to change their handbook. If they change their handbook, as often as we all keep sending our memos to them saying aim to make this change, they wouldn’t be doing anything else. And they really get upset over us suggesting that action.
00;13;10;09 - 00;13;31;20
Terry Potter
So I think as counselors to these clients, we have to be careful. We don’t overdo it and overstated. On the other hand, that doesn’t mean that we can't provide them guidance regarding changes in law and say, we’ll leave it up to you as to when you make these changes. But this one is less critical. But this one is more critical.
00;13;31;27 - 00;13;52;17
Terry Potter
You know, care about hierarchy of what’s important, what should be changed first and why. But yeah, I've heard so many VPs of HR go, look, I’m not going to change my handbook again. I mean this is crazy. I mean, that’s all I'm doing, you know, and we have all these facilities throughout the U.S. we turn around, change it, and we got to train.
00;13;52;20 - 00;13;57;13
Terry Potter
We’re not getting anything else done. Doesn’t make any sense. So you’ve got to have your priorities.
00;13;57;15 - 00;14;22;16
Tom Godar
So as we move now to 2026, the more stabilized National Labor Relations Board, you’ve already, I think, given us some great thoughts about training, about being wise and in terms of how you approach the policies. But don’t let it shake your world every time a new decision comes up. They sort of helpful thoughts as our clients are looking at the world on a more, I guess, moderated labor policy and explained by the National Labor Relations Board.
00;14;22;18 - 00;15;02;15
Terry Potter
Well, again, debrief the day on the law. I mean, there’s so many resources out there for everyone to utilize, not only our blogs and these podcasts, but a lot of other sources out there. Keep your ears and eyes open. And two, follow it up and share that information throughout your organization as needed. Again, the best way to prevent either sexual harassment claims such discrimination claims, anything in terms of DOL investigations is pay attention to why you’re doing and check up on it.
00;15;02;17 - 00;15;22;13
Terry Potter
In terms of is this still the standard? Yes. Inertia takes over. I know how it is. You get basic inertia takes over, and you do’'t have time to see whether or not, well, are we paying appropriately under the new wage and hour guidelines? Again, there’s a lot of resources out there and we have someone who’s checking on those.
00;15;22;13 - 00;15;39;23
Terry Potter
Or if you just reach out to us, say, hey, can you give me a quick overview of the changes in the last year? We can easily do that in both state and federal law and making this go through that checklist. Yeah. We’re good. Wait till next year. We’ll talk to you then. Didn’t take that much effort.
00;15;39;25 - 00;15;58;03
Tom Godar
I love that and I couldn’t agree more. And I’ll just add one thing that has little to do exactly with the law. One of the first things you or I ask when we come in and there's been a petition filed or we’re hearing rumblings of a union campaign, is tell us what kind of communication methods you already have set up.
00;15;58;06 - 00;16;24;22
Tom Godar
And when they say not many or yeah, we recognize employees birthdays or something like that. So now our communications are going to look like they’re reactionary as opposed to the regular piece. And so I’ve often suggested to employers that they have transparent communications that builds trust. If you have a trusted place and the economy goes left or right, then you say here the economy is going left or right, so we might have to make some adjustments.
00;16;24;24 - 00;16;46;01
Tom Godar
You have some trust rather than, you know, just shooting from the hip. I remember going into a client's office. They were concerned about union organizing. They went through in that case, went through the presentation the CEO was going to have for the outside board and the ownership. And I went through slide by slide with the board meeting was going to be presented and the the chief executive’s report.
00;16;46;01 - 00;17;05;23
Tom Godar
And I said, when are you going to share that with the employees? He looked at me like a third eye. I said, which of these slides are so damned important that you couldn’t share it with your employee? But so confidential, telling them about the next secret design of expanding of contracting the business that you don’t want anybody to know about.
00;17;05;25 - 00;17;26;04
Tom Godar
And it could only point to a couple. I said, why don’t you share that information? Build that lane of trust with your employees. Nothing illegal about it. Let them have it. Tell them the truth. You can put some varnish on it because that we always communicate with some varnish. But that’s so much that people don’t believe that they're just getting shined up.
00;17;26;07 - 00;17;34;28
Tom Godar
Though. Between staying up to date with what is appropriate and creating a trust environment, the employees, it’s pretty hard for the unions to gain a toehold, isn’t it?
00;17;35;00 - 00;18;00;20
Terry Potter
Yes. And you make a good point regarding communication. In fact, it brings up something I experienced when my daughter was working for Walmart in their corporate office at Walmart every Saturday morning, meeting in their corporate office that all employees are welcome to attend. In fact, it’s really thought that you should at least attend 2 of the 4 a month.
00;18;00;23 - 00;18;25;06
Terry Potter
And they go over in detail the financials for the company and changes in policy and what they’re marketing a share all kinds of information. I was so impressed by that. So impressed. I’m not talking about the white collar folks coming into these meetings. Hey, it’s from the janitor to the CFO. And trust me, the people speaking aren’t low level either.
00;18;25;06 - 00;18;31;00
Terry Potter
The CFO gives these presentations very impressive. Those smart.
00;18;31;03 - 00;18;48;13
Tom Godar
Well, on the other side, I just talked to a younger woman who works at a name brand that I won’t mention. I said, so what do you know about where your pathway is or what have you learned about what the opportunities might be, how you’re doing, how you get those? She looked at me again like, I’ve never heard that kind of communication.
00;18;48;16 - 00;19;07;16
Tom Godar
This is so you don't talk about that with your supervisor where it is that you might fit in, what kind of activities you should be engaged in now to prepare yourself for that next level of of activity. Said no. No one’s ever talked to me about that boy. What a missed opportunity to grow your company in a way that even more robust discovery company seen plenty of growth.
00;19;07;16 - 00;19;26;11
Tom Godar
I’m not trying to badmouth it, but in that particular region, they’re just not doing the thing. That would make sense to most of us who watch really great companies do some really great stuff. Well, Terry, this has been fun to talk with you and just get a start in 2026 of what it might look like and what it might look like by 2027 and beyond.
00;19;26;12 - 00;19;31;20
Tom Godar
So I thank you so much for taking some time out of your busy practice to join us as a Labor Law Insider.
00;19;31;20 - 00;19;32;23
Terry Potter
Good talking with you Tom.
00;19;32;29 - 00;19;42;26
Tom Godar
Banks, and thank you for joining us. If you liked the episode, certainly let others know and we’ll see you again soon on the Labor Law Insider.