This transcript has been auto generated
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Tom Godar
Welcome once again to the Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing law in the labor area north of 40 years. I find it hard for me to admit that, but all of this began back in May of 2021, when it was the premise of my colleagues and I at Husch Blackwell, that elections have consequences.
00;00;24;23 - 00;00;49;15
Tom Godar
In the meantime, in those past three and a half, four years, the Husch Blackwell family of labor lawyers has doubled. We've got incredible insider experience throughout our offices, from coast to coast, and we've invited others from outside of Husch Blackwell to join us on occasion as well. And so we are really excited to continue our Labor Law Insider podcast.
00;00;49;18 - 00;01;10;07
Tom Godar
And we promised you that it was a wild ride back in 2021. Well, folks, I just got off another call, read some more information on the internet, looked at a few more articles, and I promise you that we're in for another wild ride in the world of labor law. So buckle up and join us for the Labor Law Insider podcast.
00;01;10;09 - 00;01;37;11
Tom Godar
We're excited to have you join part two of this Labor Law Insider podcast with my colleague Adam Doerr. He's been terrific at helping us examine what's really taking place at the ground level. In the first hundred days of the Trump administration. We spent much of our first portion of this podcast talking about unfair labor practice filings. And if you listened, you know, that they had a great blurred up, right
00;01;37;11 - 00;02;02;03
Tom Godar
as General Counsel Abruzzo was being released from her role and right as chairman Wilcox was being released from her role by President Trump. And then we saw an interesting, apparently return to a more historic norm, even though it's quite a bit less than the number of ULPs that have been filed in 2024 over the same period.
00;02;02;06 - 00;02;45;08
Tom Godar
Adam offers a terrific analysis of some of these numbers, and also offers insights into some of the whys. And in fact, that's where we're going to pick it up right now. I want to learn a little bit more about what the reasons for these trends are. And so let's pick up our discussion right there. Let me ask you, and this, I know a speculation, but under the Abruzzo board, if you will, under the Wilcox board, the breadth of those activities which would constitute a ULP was expanded and the remedies, if you were able to demonstrate, and I'm sure labor practice was expanded, do you think that there are actions which are taking place which might
00;02;45;08 - 00;03;20;00
Tom Godar
have violated the act as interpreted by the Wilcox board, that because it's now more limited, or at least and people anticipate that the board is not going to find those same activities improper, such as o derogatory comments which might not have been the kind of thing that an employer would discipline for if the discipline occurred. So it's all about sounds like protected concerted activity being diminished, but maybe under a new board they're going to say no, that just sounds like disrespectful behavior in which you can discipline that sort of thing.
00;03;20;00 - 00;03;23;06
Tom Godar
Do you think you're seeing any of that or is it just I think.
00;03;23;06 - 00;03;52;20
Adam Doerr
The issue you're talking about there comes in the form of how charge allegations are phrased, probably more so than whether a charge is filed at all or not. As you know, a charge often encompasses more than one allegation and can include dozens or hundreds if they're so inclined. And so I think where a party, an individual or a union or otherwise is inclined to file a charge over perceived unlawful conduct, I think that charge still gets filed.
00;03;52;23 - 00;04;17;06
Adam Doerr
But the way it's phrased, any time the rule or the standard is changed, so too will the allegation so that it alleges a viable claim. I think we'll see more allegations. It's phrased in a different way, and maybe some of those specific allegations that had more of a chance under the prior administration. Those allegations may not be broad, but I think that there's still going to be a similar number of charges brought.
00;04;17;08 - 00;04;36;04
Tom Godar
So to summarize on the charges that you've looked at, we saw an interesting spike almost immediately, and you've read a number of other numbers. We never saw that kind of number repeated in the 30 or 40 or 75 workday since, you know, doubling up from the average to 70 or so. Correct.
00;04;36;06 - 00;04;56;15
Adam Doerr
I haven't looked at the daily filings for every single day for the year, for the last ten years. I can't confirm that. It was curious, though, that it was a signif outlier just in the days leading up to in the days following, and I did look at the same time frame when President Biden was removing then general counsel Raab.
00;04;56;17 - 00;05;16;23
Adam Doerr
The days around that, and that happened on January 21st, literally the day after he was sworn in and President Biden was sworn in. So on those charges were 48 and then dropped to 25 and then picked up to 36 around general counsel. Rob's ouster, but no doubling of charges around that.
00;05;16;25 - 00;05;40;16
Tom Godar
So you also looked at election filings, not elections, but just the filings for elections, which the process changed fairly significantly under, you know, President Biden's board, and it was made a shorter time to an election. It was changed the way in which employers had to be aware of filing elections. How is that, you know, filing for elections changed, if at all?
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Tom Godar
Maybe it's remained largely the same or the same 75 or 100 days since the Brazeau firing and so forth.
00;05;48;05 - 00;05;59;10
Adam Doerr
Similar to the other PS election filings. And and I only looked at the RC and the r m elections. The RC elections help us.
00;05;59;10 - 00;06;02;21
Tom Godar
For what? What does that mean? Our CRM, it's a Cola isn't it?
00;06;02;21 - 00;06;44;20
Adam Doerr
RC the RC elections are, elections filed by employees or unions seeking to represent employees. In the first instance are M election petitions are filed by management for the same purpose to see whether their employees wish to be represented. I did not count r d election petitions, which are filed by employees seeking to decertify union. So I was again curious to see whether a bruise on Wilcox's removal had a chilling effect on unions and employees finding the system to be hopeful and, you know, supportive of what they're trying to do in this case, trying to seek representation.
00;06;44;22 - 00;07;05;09
Adam Doerr
And in the days around that, again, just looking at January 28th, 2025, it did not have that chilling effect. I would have guessed that you would see a sharp drop in election filings and that their removal, but it went from seven up to 11 the day after. They were both removed, and then to eight and then 16 on January 29th.
00;07;05;12 - 00;07;27;04
Adam Doerr
So there were definitely or on January 30th there were 16. So there was even an increase in in election filings. Now, again, looking over the 72 days over similar time last year, it's down 27%, but that's after a 47% increase, which came on the heels of the C-Max decision and everything else you were talking about.
00;07;27;06 - 00;07;41;29
Tom Godar
Okay, well, we talked a little bit about this, but I guess I hadn't heard that number before. That's a really big sort of. We talked about the pinpointing of the Wilcox removal in the courts. This is a little bit of a pain point thing, isn't it?
00;07;42;01 - 00;08;18;03
Adam Doerr
Yeah. And it's surprising looking at the same time period in 2023. So January to April 2023. There have been more RC in our in petitions filed this year than two years ago. Despite the board lacking a quorum, and had GC and member Wilcox being removed 496 compared to 463. And that's, I think, driven up by the CMC's decision, which, you know, two years ago there were only six Rmbs filed, whereas this year there's still been 42.
00;08;18;05 - 00;08;23;28
Adam Doerr
So that alone just about makes up the difference. And we have almost identical RC filings in these two years.
00;08;24;00 - 00;08;49;05
Tom Godar
Got it. I think that's interesting. And one of the things I'm taking away and tell me if that makes any sense, I'm sort of taking away that, the ground unions and employees are still willing to and expected to and I think, frankly, ought to protect their rights under federal law. And they're not hiding or going away because of changes from one administration to another.
00;08;49;05 - 00;09;06;27
Tom Godar
And likewise, unions that have assisted employees at a particular place of employment to seek an election there. Again, not going to be intimidated about filing for that election. I know that's a really simple apostolate, but what do you think is that partly what we're seeing? Is there more going on?
00;09;06;29 - 00;09;29;19
Adam Doerr
That's exactly what you seen. I mean, the changing of the general counsel happens every administration and the removal of the board member and the lack of a quorum really only means we're not getting decisions. So that's causing a little bit of a decisional backlog and handcuffing any change from decisions. But the statutory rights still exist to the filing procedure still exist.
00;09;29;19 - 00;09;50;22
Adam Doerr
And as you know, 99% of cases of all kinds of litigation settle. So there's still reason to pursue claims, no matter who you are, and there's no indication that employees or unions have given up on the NLRB or the mechanics of enforcing it.
00;09;50;24 - 00;10;17;17
Tom Godar
Well, it seems like so many of the times when we come towards the end of an interesting discussion, you say, so what's the practical implication for our friends and our listeners, our clients, the tune into the Labor Law Insider. And oftentimes it doesn't terribly much challenge what we've heard before. That is employees are still an important and essential and valued part of any enterprise.
00;10;17;19 - 00;10;47;17
Tom Godar
And by paying attention to their needs, by listening carefully to their concerns, by providing competitive wages and benefits and working conditions that make you an employer of choice rather than last choice is going to be essential in avoiding claims of unfair labor practices or incentivizing employees to seek out unions to help them organize. And again, that sounds sort of every day we say that.
00;10;47;17 - 00;10;56;12
Tom Godar
But in some ways, just because there might be a more management friendly board not going to change that calculus, is it? Adam?
00;10;56;14 - 00;11;17;24
Adam Doerr
Absolutely not. This is interesting stuff from an academic standpoint. And, you know, it's important to practitioners to to know how the procedures are working and what defenses they have. And how to advise clients. But at the end of the day, labor law is all about how you're treating your employees, and employment law is the same way. If you treat your employees the right way.
00;11;17;24 - 00;11;40;29
Adam Doerr
You don't have to worry about this stuff ever, no matter who's in charge. So, you know, it's all about just making sure that you are not giving employees reasons to leave, reasons to sue for reasons to complain. And if you manage the workforce, none of this will actually matter. But I find it interesting. I hope you do too, and I think it does help practitioners shape and inform their practice.
00;11;40;29 - 00;11;44;25
Adam Doerr
Though our advice to the clients may not change dramatically.
00;11;45;00 - 00;12;11;21
Tom Godar
There's an old R&B song covered by many. I think the original was Aretha Franklin, it goes R-e-s-p-e-c-t. I cannot tell you how many of my webinars and seminars for our clients have really heightened that as the really important element that, and fairness, in all of our employment relations, whether it comes through the EEOC issues or whether it's related to NLRB issues, and that has not changed
00;12;11;21 - 00;12;27;07
Tom Godar
no matter who becomes in charge, the board, who's the chairman, all that sort of thing, R-e-s-p-e-c-t. Hey I really respect your thoughtfulness and contributing to the Labor Law Insider, Adam. As always, you bring a unique perspective and a thoughtful one, and I thank you so much for that.
00;12;27;09 - 00;12;29;07
Adam Doerr
It was a pleasure and I appreciate it very much.
00;12;29;12 - 00;12;38;14
Tom Godar
All righty. Well, thank you for listening to The Labor Law Insider. Thank you so much for joining us, and we'll be talking to you soon. Take care.