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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, 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 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 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;45;15
Tom Godar
So once again, we're continuing a wild ride of labor law. It's not likely to change soon. So buckle up and enjoy the Labor Law Insider podcast. Mary-Ann, it's great to have you back for part two of the Labor Law Insider podcast. In part one, we introduced and had a great discussion on how the recent Acting General Counsel's memorandum regarding settlements and the features of them is going to change.
00;01;45;17 - 00;02;11;06
Tom Godar
Well, opportunities actually to arrive at settlements and what must be included. We talked a little bit as we entered part one about default language, which used to be a necessary part of any settlement agreement, or nearly so. And we are also talking a little bit about non admissions clauses that basically disappeared under the Abruzzo regime as general counsel in any settlement agreements.
00;02;11;08 - 00;02;40;27
Tom Godar
But I think they're going to make a reappearance for the management side as we discover how to navigate through resolving ups long before they go all the way through trial. So, Mary-Ann tell us what that is within the context of a settlement in the National Labor Relations Board claim and how it's changed under Cohen's direction and compared to that which had been under a Bruce's admonition to her team at the various regions.
00;02;41;00 - 00;03;14;29
Mary-Ann Czak
Sure. So non admissions clause. You know, the name basically speaks for itself, right? As defense attorneys and we settle any type of litigation, whether it be at the board or, you know, discrimination case or whatever. We always insist on behalf of our clients that language be put into the agreement that the employer is not admitting that they have violated the law, that by entering into the settlement agreement, they are not admitting that what they have done is, you know, has discriminated against employees or violated employees rights under the NLRB.
00;03;15;01 - 00;03;36;09
Mary-Ann Czak
Because, again, at the point in time, we settling, there hasn't been a finding, an adverse finding against the employer. So, of course, you want to make clear that by settling this, I am not, you know, the employer. I am not saying that we did anything wrong at this point in time. Taking a Abruzzo took the position against including those types of clauses in settlement agreements.
00;03;36;12 - 00;04;01;28
Mary-Ann Czak
And it was very difficult to get regions to agree to, to that type of language, if at all. And then, you know, this new memo issued by Cohen basically ruled that back, did not take as stringent of an approach. And basically now it says, you know, regions, regions do have the ability to consider those clauses in settlement agreements.
00;04;02;01 - 00;04;17;16
Mary-Ann Czak
Obviously, again, you know, case by case basis, if there's a repeat violator, the region would probably reconsider that for those types of employers. But, you know, for the most part, the employers that we're representing aren't repeat violators. So it's really not an issue to include that language in there.
00;04;17;23 - 00;04;39;00
Tom Godar
Well, someone could certainly argue that a common thread is that this is more friendly to a management position. But if you're working day to day in the border, some of our colleagues have, in the past. This also restores in some way discretion to some very hard working, very smart people who found themselves in the position of regional director or assistant Regional director in the regions.
00;04;39;00 - 00;04;58;22
Tom Godar
That is, they're going to look at this as a case by case. Like I say, what's the strength of our case? How far can I really push on this in terms of what we've discovered so far? Might have to do, I suppose, with how much investigation the board has done, how carefully and clearly they can articulate to management counsel.
00;04;58;24 - 00;05;17;19
Tom Godar
Hey, we're going to win. We're going to win big if you want to go forward. So we can demand a lot. But if they can't say that, it's harder to, you know, insist upon remedies. That may be a stretch. Even before the administrative law judge who might not include any of these kinds of sort of directions in his or her order.
00;05;17;22 - 00;05;27;17
Tom Godar
It's fascinating that in some ways I see this as really a return to some discretion and some real valuing of the strength and weaknesses of cases.
00;05;27;19 - 00;06;05;06
Mary-Ann Czak
Yeah. This new memo is really about Brad being pragmatic, and not seeking perfection, you know, perfection in 100% back pay, reinstatement, all those compensable damages. It's like you said, the quote that I think we've seen, you know, everyone who discusses this memo discusses this quote. If we attempt to accomplish everything, we risk accomplishing nothing. And I think that was the risk of a previous position where that employers just shy away from entering into these settlement agreements at all, which could potentially be to the detriment of the alleged employee, discriminatory if they end up, you know, losing at a board trial.
00;06;05;08 - 00;06;31;27
Mary-Ann Czak
One purpose of the act is labor peace. So emphasizing efficiency, flexible and analyzing these issues in these cases individually versus getting the 100% remedy. And, you know, everything else under the sun that you could think of that touches on that alleged UAP settling cases, I think, is more beneficial to the purpose of the act than taking such a hard line approach.
00;06;31;29 - 00;06;56;16
Tom Godar
You know, it's interesting, I before we got together, I looked online and tried to get a barometer of what percentage of those cases there are that make it to a place of finding, you know, that the board is going to move forward and which of those are settled. And it's still about 90%. I mean, gosh, I learned that back in law school and whatever that year was that most of the cases filed don't go to trial.
00;06;56;16 - 00;07;17;26
Tom Godar
Most are resolved through in litigation motion. That is civil litigation. But even before the board, once they get past the bringing a charge, get to the complaint stage that, most of those are settled. So this is a big deal to be able to have what might be thought of, at least on our side of the bar as our common sense settlement.
00;07;17;29 - 00;07;45;10
Tom Godar
And it might actually deliver certain amounts of justice, if you will, to those who have brought a or the unfair labor practice on the union or individual side to get to a resolution. When you say, yeah, we can maybe win in three years, that's not really much of a win for some people. The memo continues and talks about the thrive case, which was a big deal in 2022 where the board expanded the remedies.
00;07;45;10 - 00;08;07;22
Tom Godar
And I've already touched on that a bit. How is this going to challenge from a, you know, practitioners standpoint, the idea of some of the ways in which we describe burdens approved or ability, how is this going to take away some of the sting of the thrive case, or at least as the management council and, participants in this saw that sting?
00;08;07;24 - 00;08;33;05
Mary-Ann Czak
Yeah. So, you know, thrive still remains good law. Right. Good board law. And as you mentioned earlier, board or I guess now again, former board member Wilcox the on again off again board member. So now currently the board lacks a quorum. So for the time being, although we anticipate down the road however long this may take board precedent will likely shift under a Trump board.
00;08;33;05 - 00;09;01;07
Mary-Ann Czak
And you know, many of those sweeping decisions that were issued over the past few years will probably, you know, swing back to maybe a more employer friendly standard. That's not happening necessarily any time soon. So so thrive is still good law. And, you know, the key point of thrive. The board said that employers must compensate employees for, quote, all direct or foreseeable pecuniary harms.
00;09;01;09 - 00;09;51;24
Mary-Ann Czak
But if my memory serves me correctly, I don't think they were very clear as to what the term, you know, foreseeable meant. Obviously, that is a term grounded in, in tort law. And again, when you take that case, coupled with a position in her earlier GC memos about, you know, compensatory damages and the example she was giving, you know, one example of an actual settlement agreement that I think regions during her tenure got was the employee lost their job, so they lost access to areas or the facilities to express breast milk during the workday, which resulted in the employer in the settlement agreement agreeing to compensate that employee for formula costs.
00;09;51;27 - 00;10;11;14
Mary-Ann Czak
To me, that just seems like a tenuous connection, that how could that possibly be foreseeable? I don't know, to me, it's a stretch. An employer agreed to it. It is a victory that she cited in one of her memos, but it's that kind of slippery slope that I think Cowan's current memo is trying to pull back the reins a bit again.
00;10;11;14 - 00;10;41;12
Mary-Ann Czak
Thrive is currently board law, but Cowan, in his memo that was issued in mid-May, basically highlighted the distance point of view where only harms with a sufficiently clear causal link to the UAP should be remedied. So this, you know, is a narrower viewpoint of that standard in order to avoid those ambiguities. So for our listeners, a GC memo is not law, right?
00;10;41;12 - 00;11;07;15
Mary-Ann Czak
It is guidance. And it really is shedding light on what the general counsel's policy agenda is going to be and what their prosecutorial focus is going to be. So although thrive remains good law, you know, I think we could see that the regions are going to take a more narrower approach as to what cases they prosecutor, what remedies they seek in terms of unfair labor practices.
00;11;07;17 - 00;11;30;19
Mary-Ann Czak
So it's an interesting, you know, position that we're currently in where we have this one case that is legal precedent versus where we anticipate or where we see the general counsel is going to go based on this new memo. Because when I was like, you know, looking over my resources to prep for our conversation today, I was like, okay, what would be a clear causal link?
00;11;30;19 - 00;11;53;01
Mary-Ann Czak
Because under a Brousseau, what if I lost my car because I couldn't pay my car note for two months because I lost my job? Theoretically, when you get so behind on that car note or your mortgage, it's months and months and months. So how could that me losing my car be attributable to my employer that point in time when theoretically I was probably behind for months and months prior when I still had a job.
00;11;53;03 - 00;12;25;02
Tom Godar
But and you know, if you talk about buying formula for six months, you have to write a check. It's real. I have a new grandson, I have conversations, and their son and daughter in law costs money. But it's not like if you can't pay for or choose not to pay for insurance, and then you have $100,000 a year and, a hospital visit, would that be foreseeable or is it, you know, you say, well, a certain number of people have, traumatic episodes in their life that call for medical intervention.
00;12;25;02 - 00;12;32;12
Tom Godar
That should have been foreseeable and cause, so, yeah, it's not not really easy to have known what that meant, is it?
00;12;32;15 - 00;12;51;13
Mary-Ann Czak
No. So I think now with this whole causal link that is sufficiently clear language we could narrow down will be anticipate the remedies the region would agree, in these settlement agreements versus, you know, everything under the sun potentially was game with the prior general counsel.
00;12;51;16 - 00;13;12;19
Tom Godar
And we have some terrific clients who oftentimes have really excellent defenses to a claim that they're engaged in the ULP, even if it's brought in good faith by someone, not just in a power distribution issue, but if it's going to cost 50 or 100 or $150,000 to move it towards litigation, we certainly talk with the client as to whether or not they might be interested in settling in that.
00;13;12;21 - 00;13;39;02
Tom Godar
And, in this day when there isn't a board quorum and we only have a, a general counsel nomination, not even a hearing set or even others identified to take the role of board members, folks are going to say, maybe I'll settle, and then we'll add to that that we're going to lose. I think, the report was just to 3 or 4 days ago that the National Labor Relations Board, as an organization, is going to lose about 100 employees.
00;13;39;02 - 00;14;03;24
Tom Godar
It's May that would presumably make the process slow down a little bit more. There's good reason that employers, individuals and unions will look to resolving differences without having to go through all of the litigation. And I'm hoping that this memo allows everybody to be creative and thoughtful as they move forward in saying, what's the best we can do for our respective clients?
00;14;04;01 - 00;14;11;05
Tom Godar
These days and to move forward. I'm hopeful that this kind of memo will spur that creative, careful thought.
00;14;11;07 - 00;14;29;19
Mary-Ann Czak
Agreed. I think discretion in this case on the part of the regions is a good thing. It balances fairness as well as efficiency. And like you said, with the layoffs, you know, the board and the regions are busy enough. As we know, as practitioners, the timeline for cases and ups from start to finish, it's getting longer and longer.
00;14;29;21 - 00;14;53;29
Mary-Ann Czak
So it's you know, this memo seems to potentially open up that backlog and give regions more discretion, which may be more palatable for employers as well as, you know, provide faster resolution for employees. Because, again, to the everyday person waiting 3 or 4 years or five years for something to wrap up like this is, you know, not ideal for them as well.
00;14;54;01 - 00;15;13;04
Tom Godar
No pleasant land. That's been really terrific to sort of get our heads wrapped around some of these changes, some of the impact practically, and that we're talking about as well as some of the nuances in terms of what foreseeable might mean, for instance. So I thank you so much for joining us. I'm sure you'll join us again in the future.
00;15;13;04 - 00;15;30;28
Tom Godar
But that time, and I suspect I'll be talking to you in New York. And so I wish you and your family a good move. And I the whole idea of moving just freaks me out. So better than you, than I. But I hope it goes well. And thanks so much for joining us on the Labor Law Insider podcast.
00;15;31;00 - 00;15;32;18
Mary-Ann Czak
Yes. Thank you Tom. Have a good day.
00;15;32;21 - 00;15;37;04
Tom Godar
All righty. Bye bye.