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The Labor Law Insider - Forget the Election: Union Representation Without the Messy Election is the Next Labor Law Reality, Part I



In Part I of this discussion, Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider host Tom Godar to analyze the NLRB’s Cemex decision, which announced a radical new framework for determining when employers are required to bargain with unions without a representation election.

Nearly any unfair labor practice—and certainly a series of even minor ULPs committed during an election period—will likely force an employer to recognize and bargain with a union, even if a majority of the employees vote against union representation. 

Employers will be forced to engage in a much more circumspect campaign opposing union organization, given the high risk of a bargaining order being imposed upon the employer.

Part II of the discussion will focus on this significant change, which, along with other pro-union NLRB decisions over the last 36 months, fundamentally alters employers’ approach and likelihood of success in winning union elections. In Part II, Tom and Tyler offer some suggestions on how to win an election before one is ever filed. 

Listen to Part II

Read the Transcript

This transcript has been auto-generated using Adobe Premier Pro.

00;00;02;22 - 00;00;15;20
Tom Godar
Hello and welcome to the Hush Blackwell Labor Law Insider podcast. I'm Tom. Good are your host and I'm glad that you've come along in this podcast. We welcome guests with practical expertise.

00;00;15;22 - 00;00;17;27
Tom Godar
And experience regarding labor.

00;00;17;27 - 00;00;50;08
Tom Godar
Law issues, and they share their insights related to this ever changing area, the breadth of developments in laws related to unions and individual workers rights that we are experiencing under the Biden appointed National Labor Relations Board and led by general counsel Jennifer Abruzzo, is unprecedented. These developments demand that employers and those giving counsel to organizations stay tuned into these changes and make necessary adjustments to their practices and policies.

00;00;50;10 - 00;01;06;08
Tom Godar
When President Biden was elected, he promised to have the most union friendly administration ever, and he is fulfilling that pledge. So buckle up and hang on for this wild and wonderful ride in the world of labor law.

00;01;06;10 - 00;01;33;18
Tom Godar
It is great to be here for one more episode of the Labor Law Insider, and I am joined by a couple of my partners who are labor law insider veterans. But more than that, there are veterans in this world of union activity advising employers in this particular junction of time and space. We have really a need for experienced, thoughtful folks who can lead employers and our clients towards the right decisions.

00;01;33;18 - 00;01;55;23
Tom Godar
And it becomes more and more difficult, in my estimation. Let me tell you who's going to join us today. Tyler Paetkau who practices all over the country but is located in a virtual office of Husch Blackwell but finds himself in the Oakland area most of the time and Tom O’Day. And a partner of mine and Madison practices again as a as a national practice.

00;01;55;23 - 00;02;22;11
Tom Godar
But much of his time can be spent in Madison as he's reaching out across the country on labor and employment issues. And congratulations, guys. By the way, you are members of a team that received two best lawyers Tier one recognition pieces employment law management and litigation, labor and employment, as well as mention of labor law management. I think that's fantastic and I know you guys are important.

00;02;22;11 - 00;02;29;10
Tom Godar
Part of the recognition that our colleagues and Hirsch Blackwell has recently received Well done.

00;02;29;14 - 00;02;32;27
Speaker 3
Well, you as well, Tom. Don't forget, you're part of this wonderful team as well.

00;02;32;27 - 00;02;57;12
Tom Godar
Thank you. I appreciate that. Time Now, by the way, before we get into a discussion of some recent board changes based on well, the general counsel's continued push, but also a decision called Cemex I wanted to learn a little bit more about you guys and share that with some of the folks who are listening. I understand time that you've really latched on to your social media influencer personality.

00;02;57;12 - 00;02;58;16
Tom Godar
Tell us about it.

00;02;58;19 - 00;03;25;18
Speaker 3
Exactly. It's a viral video of sorts of a student at the University of Wisconsin, Madison football game, deciding that he was willing to just jump a fence and not streak, but run across the football field. And as the video opens there, I am in the middle of the crowd and I've now had a couple clients raise it, a couple friends and notes about my social media fame, and I'm pretty proud of it.

00;03;25;21 - 00;03;44;16
Tom Godar
Well, I'm glad it wasn't. You jumped the fence, but I thought you might jump over the fence and try to tackle them along with the security for us. Well done. Hey, Tyler, I know that you're a not only a football fan, but you're actually a student of college athletics. You ever find yourself on the field but not being tackled by security?

00;03;44;19 - 00;04;05;13
Speaker 4
No, I haven't found myself there, Tom, although I've been close a couple of times. So the best story is I went to Michigan and we're a little bit embattled right now, but we're going to we're going to ultimately prevail. So I've been on the sidelines and I've been in the tunnel and I've been in the end zone and the kickoff.

00;04;05;13 - 00;04;19;19
Speaker 4
And it made me realize why I stopped playing football in high school and didn't didn't go beyond that because maybe it's the equipment. But when I see these guys in person, they are gigantic monsters.

00;04;19;21 - 00;04;41;04
Tom Godar
And and Tyler, for those who don't know you, you're a pretty big guy yourself. So that talks about how big these fellows are who buck up for the game at the University of Wisconsin at homecoming, the would be lawyers. The third year law students get to march down the field with a cane in hand and toss it over the goalpost at the far end.

00;04;41;04 - 00;05;01;01
Tom Godar
And if they catch it, the rumor, the hope, the thought is that they will win their first case. I marched down. I did throw my cane. I did catch it. And guess what? 100% of the people who tell the story say they confiscated. But I saw a bunch on the field. I don't know, guys, we're we're going to talk about the continued changes.

00;05;01;01 - 00;05;25;23
Tom Godar
And this is a pretty significant change. I believe, in how employers are going to respond to unions and employees who present petitions saying they have a majority support to initiate a union. This changed, I think it was on August 25th, but at the end of August with a decision called C-Max. And let's let's learn a little bit how, but how these changes took place.

00;05;25;23 - 00;05;33;03
Tom Godar
On what the old new rules are. Tyler Once you kick off the discussion, what's going on with C-Max and what happened in that decision?

00;05;33;09 - 00;06;01;03
Speaker 4
So C-Max involves what used to be a free and fair election as to whether the employees in a bargaining unit wanted a union or not. And, you know, without sounding the alarm too much, you know, it really transforms labor law to the point where a majority support in the form of of cards signed by employees may be enough to force the employer to recognize that union even without an election.

00;06;01;06 - 00;06;24;02
Speaker 4
You know, and I think Tom is going to get into the facts a little bit more of the C-Max Construction Materials case. But it is a watershed moment. And I would just add that it's kind of a continuation of the prior labor law insiders and their predictions. The prognosticator Tom got himself come true, which is a very progressive pro labor agenda.

00;06;24;04 - 00;06;37;00
Speaker 4
Everything from Section seven rights, you know, handbook provisions, confidentiality, joint employment. We think the playing field uneven and tilting it heavily in favor of labor unions.

00;06;37;02 - 00;07;17;23
Tom Godar
You know, I've been practicing law for a long time, more than 40 years. And throughout that period of time, there was a sort of sanctity about guarding a secret ballot election. All of the time that I practice and I think is probably since what, the early seventies, the board with the court's support, have said that what we're going to try to do, unless the employer chooses to voluntarily recognize a union based on the presentation of cards, we're going to conduct an election and there's going to be some period of time during which the employer and the union are going to be able to educate propagandize, election year, call it what you will the employee, so

00;07;17;23 - 00;07;43;15
Tom Godar
that when they get into that voting booth provided by the NLRB, they're going to vote. But you say that that may be no longer the primary or almost exclusively in which employees are going to find their way to a union if an employer isn't voluntarily recognizing that. Tom, tell us a little bit more about C-Max and how it's changing the the way in which this might work.

00;07;43;17 - 00;08;17;17
Speaker 3
Sure. One one note to that point, Tom, is although for the last 50 years, the free fair elections have been the law, there have been policy proposals and famously the Employee Free Choice Act in the early days of the president, Obama administration sought to have a card check where the offer authorization cards that the union obtains from employee is become the definitive factor in designating a union and requiring an employer to bargain.

00;08;17;20 - 00;08;47;02
Speaker 3
Those policy efforts have been rebuffed. Traditionally, but now we have the National Labor Relations Board, like Tyler said, making a complete 180 and overturning roughly 50 years of that precedent. So the same decision involved an election and 179 truck drivers at this ready mix cement company voted against a union and 166 of those truck drivers voted for the union.

00;08;47;07 - 00;09;32;06
Speaker 3
So the union lost the election. The union and ultimately the general counsel alleged that there were unfair labor practices that the employer engaged in. There was a it seems like a protracted campaign that went on at the time. And in 2019, the employer brought in labor consultants and followed the traditional campaign approach of meeting with individual employees and with small groups of employees, issuing pamphlets and videos to educate the employees and ultimately making sure that employees were ready to go into that secret ballot box and pull the lever for or against having a union as a representative for them in the workplace.

00;09;32;09 - 00;10;02;18
Speaker 3
So the union challenged the the decision and alleged that there were these unfair labor practice charges that had occurred. Amazingly, the hearing itself lasted 24 days. I nearly fell off my chair when I when I read that in this and this decision. But the judge did find ultimately that there were more than two dozen unfair labor practice incidents, and they involve things like talking to employees about who they were going to vote for.

00;10;02;19 - 00;10;25;25
Speaker 3
So some unlawful surveillance. There were stickers involved and the employer was telling the employees that they needed to remove the stickers from their helmets and from from other clothes that they were wearing. And it sounds like that was part of the allegation. Was the employer engaged in a campaign with consultants and was doing things that are part of a traditional campaign.

00;10;25;25 - 00;10;35;03
Speaker 3
And the judge ultimately felt the judge ultimately found that they violated the law and engaged in those unfair labor practices.

00;10;35;05 - 00;10;56;08
Tom Godar
That's not unusual. Quite honestly, whenever we have a campaign, we tell employers that they should be prepared for the union to bring up peace and that we're going to work with them to make sure that they stay on the right side of the law. But it doesn't mean that they're insulated from ULP or even from a loose lips supervisor who might say the wrong thing at the wrong time to the wrong person.

00;10;56;11 - 00;11;23;24
Speaker 3
Right. That's exactly right. It was interesting because the National Labor Relations Board on the decision noted that this was a carefully crafted corporate strategy designed to skirt as closely as possible to the fine line between lawful persuasion and unlawful coercion. And because the National Labor Relations Board thought they were so close to that line and the judge thought that they were so close to that line, they recognized the risk with that.

00;11;23;24 - 00;11;52;10
Speaker 3
And so they did trip that line. And ultimately did engage in those unfair labor practice charges. I'd say, though, the facts of the case of what was found, those unfair labor practice charges were were pretty severe. And the numerical amount of unfair labor practice charges that were found, more than 24 of them was something that I think employers in the future can use to distinguish this case from anything that we might face moving ahead.

00;11;52;13 - 00;12;11;13
Tom Godar
Okay. So I go to the so what question that each of us ask at the appropriate time when we're consulting and counseling. So you have a campaign, the union loses. Your piece charges are filed. Judge finds that the piece occurred. So that's what happens sometimes. Now, now, give us the punch line.

00;12;11;21 - 00;12;56;12
Speaker 4
So I can jump in here. I mean, the punch line is in that situation, you, the employer has to recognize and bargain with the union. The employer can also, at the time is limited to file a are in petition to to challenge the bargaining unit the majority status. But with that you help finding the board has said in in some acts that one violation of the act the National Labor Relations Act during the critical period between the time the election petition is filed and the actual election may result in the dismissal of the petition by the employer and a bargaining order.

00;12;56;15 - 00;13;16;05
Tom Godar
So that's what you're talking about. There may be no election if there's a single violation of the employee's rights while they're organizing or the union's rights while it's organizing, that can result in bargaining without an election that has the employees choosing by a majority to be represented.

00;13;16;11 - 00;13;52;00
Speaker 4
Yeah, I mean, it's kind of like accomplishing what Tom described earlier a proposal to authorize recognition based on card check alone under the Obama administration, doing it indirectly with this decision, you know, accomplishing the same result. The dissent is also very strong in arguing that the board made this decision in violation of existing Supreme Court precedent and prior decisions, and that, you know, it's likely there's going to be a challenge, as we haven't heard the end of Summer C-Max.

00;13;52;03 - 00;14;13;06
Tom Godar
So we've got that piece of it, which is that a bargaining order may proceed from an under labor practice. And there was always that possibility, I think we call them guess all bargaining orders, right? If there was a very egregious conduct by the employer, which would make it virtually impossible to hold a free and fair election, that a bargaining order could issue.

00;14;13;06 - 00;14;36;09
Tom Godar
But gosh, I think you'd count the time in a year on your hand that that I guess a bargaining order would issue. What I'm hearing now is that that standard has been lowered so much that we're fearful that employers may be tied with a single ULP or a couple or three. And lo and behold, the election's not going to be held or the election results in their favor or the employer will no longer hold.

00;14;36;11 - 00;15;15;21
Tom Godar
Wow. I think we're going to pause right now, gentlemen, with that thought that the bargaining orders might issue with very little activity on behalf of the employer to achieve an unfair labor practice. That's our food for thought. Until we get back together for part two of this discussion, if you'll join me for another segment. In part two, we'll continue this discussion about the opportunity for the board to issue bargaining orders and how other recent board activity making up is more likely to be found can flow into what I believe will become a new union organizing strategy.

00;15;15;23 - 00;15;26;29
Tom Godar
Thanks again, Tom and Tyler, for your fantastic work here. We'll continue our discussion soon. And thank you for listening to the labor law Insider. We'll be back at you in a couple of weeks. Goodbye from Tom Godar.


Thomas P. Godar

Of Counsel

Tom O'Day