The Labor Law Insider

In this episode of the Labor Law Insider, our host, Tom Godar, is joined by Husch Blackwell attorneys Adam Doerr and Trecia Moore to discuss union decertification.In 2022 there were approximately 1,700 petitions for election filed before the NLRB, and about 300 of these were filed by employees to decertify their bargaining unit representative.Over 300 Starbucks elections have resulted in union representation and at least 16 petitions for decertification have been filed.Employees continue to seek the end of union representation for a variety of reasons through the decertification process, including those experiencing changes in their bargaining unit or a change in those managing bargaining unit employees. Our Labor Law Insiders also discuss why some employers are quite content to remain in a bargaining relationship with the union. Join us now for part one of this podcast through the land of decertification and look forward to part two of this podcast where we discuss practical steps and cautions to consider in the decertification process.

Labor Law Insider host Tom Godar continues to explore the nexus of labor issues and higher education with veteran labor lawyer Tyler Paetkau of Husch Blackwell’s Labor & Employment group and Jason Montgomery a member of Husch Blackwell’s Higher Education group and a former NCAA investigator. Together they review NLRB General Counsel Abruzzo’s guidance regarding higher education and the Northwestern University decision, which paves the way for student-athletes to argue that they are employees under the National Labor Relations Act and its state counterparts with rights of representation by unions.Our Insiders review the implications of student-athletes receiving compensation for use of their name, image and likeness (NIL) and the new decision by the NLRB’s Los Angeles region to charge not only the University of Southern California but the Pac-12 Conference and the NCAA as joint employers of the student-athletes-putative employees. The podcast touches upon unions targeting college campuses, the special protection offered student-athletes under Title IX, and the potential impact of mandated equity among male and female athletes as among the new challenges facing universities and colleges. Although the large private institutions are attracting most interest, there is also recognition in the discussion that states provide organizing opportunities for students at public institutions, and even smaller institutions may ultimately be swept up in areas of traditional labor law protection if the trends already initiated by the National Labor Relations Board continue. Join us for this very thought-provoking discussion of emerging issues on college campuses and how student-athletes figure into what might become the most interesting challenge for universities, athletic conferences and even the NCAA in the coming decades.

Host Tom Godar is joined by two special guests, Tyler Paetkau and Jason Montgomery, for a special Higher Education edition of the Labor Law Insider. In this first part of a two-part podcast, the panel takes on two recent and hugely important U.S. Supreme Court decisions, Biden v. Nebraska Loan and Students for Fair Admissions v. Harvard College. The first case deals with student loan forgiveness and the second takes on race-based considerations for college admissions.Jason offers an analysis of the Court’s majority decisions in Students for Fair Admissions and shares how universities had anticipated this decision. In response, many institutions are changing—or at least, assessing—their current application standards. Tyler suggests that these issues may impact closely allied areas of concern, such as affirmative action and DEI policies, that have race-based components.There is also a discussion of the Biden administration’s executive overreach in declaring student loans forgiven, which the Court found to be an encroachment upon congressional power. The discussion also considers alternative approaches the administration may attempt to pursue its goal of student loan forgiveness. Also in Part One of this episode, the panel explores the notion of student-athletes as employees. Tyler discusses the recent decision by the National Labor Relations Board to issue a formal complaint against the NCAA, the Pac-12 Conference, and the University of Southern California in connection with alleged unfair labor practices.These themes are further developed in Part Two of the podcast, which looks at the increased activism of unions on campus with regards to both strikes as well as organizing. Universities are advised to identify and assess opportunities to understand where union activities may arise on their campuses.

In this episode, the second of two, host Tom Godar and guest Rufino Gaytán continue to discuss the impact of the National Labor Relations Board’s Lion Elastomers decision, allowing problematic behavior to be wrapped in the cloak of protected behavior. Rufino offers insight on the application of this decision to non-unionized employers and steps to be taken to decrease the chances that a claim for protected behavior would be successful before the NLRB. We also explore the difficult balance between the risk of a claim and the need for an employer to protect its culture and values by disciplining employees who may be acting outside of the employer’s standards.The discussion highlights that having a consistent application of employer policies, providing discipline in the context of uncivil behavior even when not remotely connected to protected concerted activity may help establish a guideline for analysis of an alleged unfair labor practice. While the NLRB will not make its decision based on the subjective intent of the employer, the lack of consistency in application of a policy will surely facto into any conclusion that discipline in a potentially protected area is unlawful. When witnessing such behavior, Rufino makes it clear that it is very fact specific and that one activity of a profane objection on behalf of many in the workforce may be protected, but when it turns into threatening behavior, it may lose its protection altogether. Nevertheless, the employer may work to defuse such heated exchanges through suspension and later review, seeking the core basis for the outburst rather than discharging an employee in the heat of the moment.Most importantly, Rufino suggests that the employer must carefully adhere to its core values that would not allow certain behavior to go unchecked when balancing this against the risk that an NLRB review might find that same behavior to be protected and concerted activity. At that point, it may be wise to consult counsel on the latest reading of this changing area of law and how it affects employers’ desire to keep the workplace civil and safe.

Host Tom Godar and his guest Rufino Gaytán tackle the newly expanded protections offered employees under the National Labor Relations Board’s Lion Elastomers decision, published May 1, 2023. As part of the ping-pong effect of a Biden-appointed Board following a Trump-appointed Board following an Obama-appointed Board, employee protections for violations of employer’s policies that were previously available have been restored. This allows employee behavior in the context of concerted activities, such as shouting racial epithets, or engaging in coarse and even potentially threatening conduct, to be excused as part of the real world of labor relations as it is seen on picket lines or in other situations of conflict. This overruled the 2020 General Motors decision which held that the Board must look to employer intent and good faith in applying employer policies or standards regarding conduct, even if it was also related to National Labor Relations Act. That decision had attacked the standards set forth in Cooper Tire and other decisions; however, the Lion Elastomers decision makes it much more difficult for employers to balance the responsibility to address behavior in the workplace with the rights of employees to engage in concerted activities challenging the employer, its employees, or policies. Mr. Gaytán acknowledges that while General Counsel Abruzzo suggests that there is no inherent conflict with this position, and enforcement of employee rights to be free from threatening behavior or a hostile workplace, the analytical framework to make decisions which balance these rights is hardly easy to apply.In episode two of this podcast, Tom and Rufino continue their discussion and look at the potential impact upon those employers who do not have union-represented employees. They also discuss some of the practical implications of balancing the newly articulated rights of employees and the overall responsibility of employers to protect all of the employees in the workplace from improper conduct. Join us soon for part two of the Labor Law Insider.

In the second installment of this two-part Labor Law Insider podcast, attorneys Terry Potter and Tom O’Day join host Tom Godar to discuss the impact of the National Labor Relations Board decision of McLaren Macomb, as well as the new General Counsel Memorandum (GC 23-05) interpreting that decision. As a result, employers need to review their employment-related non-disclosure and non-disparagement provisions in severance agreements. Moreover, O’Day and Potter suggest that the impact could be much broader. For instance, General Counsel Abruzzo takes on non-compete agreements as well as non-solicitation agreements. Further, as presented by the Labor Law Insiders, this likely affects how employers craft policies in handbooks. The inadvertent inclusion of such provisions which could be found in violation of the National Labor Relations Act may also be used by unions to bring claims of unfair labor practices and leverage those claims into bargaining or organizing activities.Potter suggests that while there will be challenges to the breadth of this interpretation of the Act, very often these challenges are upheld because of deference to the expertise of the Board. An alternative strategy, suggested by O’Day, might be for employers to let their representatives in Washington know of the practical impact that such a broad interpretation of the Act might have upon business and its ability to plan for the future. Join us for this provocative discussion regarding the impact of the latest Board decision and General Counsel proclamations.

The Labor Law Insider invites two experienced counsel, attorneys Terry Potter and Tom O’Day, to explore the implications of the National Labor Relations Board’s decision in McLaren Macomb, issued in late February, as well as the even broader general counsel memorandum sharply curtailing employer rights to insist upon non-disclosure and non-disparagement in severance agreements. In part one of this podcast, host Tom Godar begins to explore the contours of these employee rights or employer restrictions. This change would affect all employees who would otherwise be eligible to participate in a bargaining unit under the National Labor Relations Act and bleed over as well to supervisors whose behaviors might be seen as having supported others in their protected and concerted activities. The new twist makes even presenting a non-disclosure or non-disparagement agreement to an employee—which is overbroad according to the new interpretation of the board and its GC—itself an unfair labor practice. According to General Counsel Abruzzo, the unfair labor practice would extend not only to those agreements which parties would now craft but would go back in time to agreements that include what are now considered overbroad non-disparagement or non-disclosure agreements, and that such agreements would be a continuing violation, with essentially no time limitation on when one could bring a charge based on overbroad language. Terry Potter suggests that while the instructions from the general counsel will find their way into enforcement actions brought by the board, the Administrative Law Judges before whom such cases are heard may curb the reach of the GC memorandum.It remains to be seen as to whether savings clauses that would carve out NLRB protected rights, or severability provisions, would be effective in defending against a ULP challenging the reach of the agreement. What is also missing from the GC memo is whether an agreement negotiated with counsel on both sides would have less scrutiny than one which was merely crammed down to employees who were in the process, for instance, of a reduction in force. Part two of the podcast continues to explore whether protected activity would include freedom from non-compete agreements, non-poaching agreements as suggested by the GC Memorandum.

Host Tom Godar welcomes Husch Blackwell partner Anne Mayette to part two of this Labor Law Insider podcast. Anne is deeply engaged in counseling employers regarding employment and labor activity and defends employers in litigation as well. From these experiences she has deep and important insights into the workplace. Anne shares a number of these insights regarding employment engagement, particularly as they relate to the manufacturing industry in this episode. This discussion is an outgrowth of the extensive manufacturing white paper published by Husch Blackwell in January 2023 which explores challenges and opportunities for manufacturers well beyond just the area of labor and employment.In part two of the podcast—part one was posted on March 2, 2023—Anne shares some anecdotes from employees which go a long way toward helping understand employee engagement. For instance, it becomes clear that employees value ongoing training and a career path that is clearly explained and available to them, as well as flexibility in terms of their work and work life. Employees seek an employer that is truly concerned with the safety of its employees and that engages well trained and experienced managers to assist employees in their day-to-day activities, as well as managing their long term goals. Indeed, employees are also very interested in an open dialogue with managers and the commitment of organizations to diversity, equity, and inclusion. Not surprisingly, surveys and scholarship affirm that while wages are important, two-thirds of the employees who are paid at market rate still feel underpaid and undervalued. Instead, these employees often conclude that they neither are trusted to have meaningful workplace insights nor feel connected to the larger mission of the organization. This disconnect at the workplace and lack of trust is an area of vulnerability for employers who seek to maintain a direct relationship with their employees rather than working through a third-party union. Anne discusses the use of engagement surveys, an analysis of human resources and safety policies, the introduction of DE&I training and recruitment process, and use of union vulnerability tools to assess where employers are as it relates to employee engagement.Join Anne and Tom in this fascinating conversation which goes well beyond union avoidance to creating a workplace where employee engagement leads to successful and profitable practices by employers.

The Labor Law Insider (LLI) podcast welcomes Husch Blackwell partner Anne Mayette on her inaugural trip to the LLI microphone. Anne, who practices out of the firm’s Chicago office, is a seasoned labor and employment lawyer, and joins host Tom Godar to discuss union activity in the manufacturing and related sectors. This is an expansion on the discussion of employment and labor issues in the extensive Manufacturing White Paper published by Husch Blackwell in January 2023. There has been a tremendous increase in organizing activity as well as strikes and other job actions in the manufacturing and related industries, including 32 strikes in 41 locations and 16 labor protests in 17 locations in calendar year 2022, according to Cornell’s tracker. Anne discusses these developments and puts them into a broader context of employee engagement, or lack of engagement, which spurs union organizing activity. Using information compiled in the Manufacturing Industry Analysis, Anne describes a number of areas in which employers could provide more opportunities which would likely increase employee engagement and decrease the chances of successful union activities. The survey suggest that employees look for greater diversity in the workplace, more voice in the workplace, and more meaningful individual and employee group communications from their employer. While none of these observations are shocking, Anne describes practical steps employers can take that would not only decrease the need for employees to seek union intervention, but also increase the success for the organizations as they compete for talent in manufacturing and related industries. Part 2 of the of podcast will continue with more specific examples of employee input on issues, as well as steps to be taken by employers to introduce greater engagement opportunities. Join us for the Labor Law Insider podcast.

In part two of our Labor Law Insider podcast regarding New Year’s resolutions for maintaining a union-free workplace, Tom Godar once again welcomes Rufino Gaytán. In part one, Rufino supported the resolutions that employers offer training to first- and second-line supervisors and provide financial, management, and market information to hourly employees. Adopting these resolutions are important steps for employees to be treated well and given an opportunity to experience the workplace as a respected member of a team, rather than merely a necessary functionary to complete a service or product. Unions do not compete well with employers who work to engage employees in a meaningful workplace experience.In part two of this podcast, Rufino and Tom explore the importance of actively listening to employees and giving them an opportunity to constructively share their insights regarding the workplace. The other side of that coin is the employer responding to the ideas, criticisms, and suggestions that hourly workers and others might offer. This allows employers to engage and to respond to employees without the need for a third-party union to speak on behalf of the employees. Finally, Tom and Rufino offered the time-tested resolution of reviewing employee policies and standards, both to ensure that they accurately tell the story of what the employer and the employees can expect in the workplace, but also for compliance with ever-changing enforcement interpretations and regulations offered by the National Labor Relations Board. Handbooks that are clearly written and up to date can reinforce shared expectations and opportunities that reward employee effort and leave little incentive for employees to seek unions. Policies that are compliant with changing standards leave little room for unions to exploit small deviations that can be a springboard of claiming unfair labor practices and building a unionizing campaign from those noncompliant polices. Getting the basics right means listening to and respecting employees, having well trained supervisors, offering information that shows respect for the participation of employees in their workplace, and crafting policies that are not only compliant but display the employer’s eagerness to engage with employees. These resolutions will pay dividends in maintaining a direct relationship with the employees.

Tom Godar, host of the Labor Law Insider, welcomes Labor Law Insider alumnus Rufino Gaytán to kick off 2023. In a time when union activism is on the rise and employers are increasingly being targeted for union organization campaigns, the Labor Law Insider proposes resolutions which every employer can adopt to continue a positive pro-employee relationship and thereby making union organization irrelevant. Rufino is an experienced labor lawyer, often engaged in counseling unionized employers, and importantly, assisting those in maintaining union-free status in order to have a direct relationship with the employees. In part one of this podcast Tom and Rufino posit the resolution of offering excellent training to first- and second-line supervisory staff. This training is not only to acquaint them with legal pitfalls related to the National Labor Relations Act, but more importantly, to encourage the positive engagement, respectful treatment, and the opportunity to build relational capital with the employees for whom they have supervisory authority. Rufino suggests that unions often organize against the backdrop of a supervisor who has not had the training and seasoning to interact positively with his or her employees, creating dissatisfaction and opportunities to establish a reason for the union to be relevant and invited into the workplace.The second resolution up for discussion was the pledge to provide or openly offer financial, management, and market information affecting the employer to the hourly employees. When employees are invited into the discussion, they better understand their role in the organization and, importantly, the organization’s success and marketplace challenges. Armed with that knowledge in a respectful atmosphere through direct communications with the employer, employees are much more likely to react to negative news with a certain level of understanding, rather than inviting a third party to represent their interests. Tom suggested this might be a simple resolution: “Treat your employees like adults.” They can handle the bad news and the good news and just want to be given their due as important participants in the employment experience.In part two of this Labor Law Insider podcast, employers are challenged to offer the resolution of listening carefully to their employees and responding with respect, and reviewing policies and handbooks not only for compliance, but for hidden pitfalls.Enjoy this podcast and please be sure to listen to Labor Law Insider part two which will come out before the end of January.

Host Tom Godar continues his discussion with partners Tyler Hibler and Tracy Wolf of Husch Blackwell as they discuss anticipated changes to joint employer standards by the National Labor Relations Board: Department of Labor Proposes New Rule to Distinguish Independent Contractors from Employees | Labor and Employment Law Insights. The discussion also takes us into the alphabet soup of the NLRB and DOL’s implementation and enforcement of these employee and union friendly rules. Further, the podcast addresses the possibility of joint investigations between government entities and divisions, which may significantly raise the stakes for employers attempting to interpret and comply with various joint employment standards. Fortunately, the podcast settles on some practical advice. It was recommended that organizations make it a priority to understand these new rules and guidelines when making business decisions involving potential joint employment scenarios. A company must be capable of responding to these shifting standards when assessing the risks associated with using workers other than those that they consider W-2 employees. Additionally, policies should be adopted that clearly identify the roles of various workers and take into account that the mere opportunity to provide discipline or control workplace conditions may impact the employee/non-employee analysis. Third, employers must invest in top-down training and orientation—including front line and second line supervisors and managers—to ensure such policies are followed. Given the complexity of the interaction between laws related to the National Labor Relations Act, wage and hour laws, tax laws, and various state laws, consultation with counsel as these new rules and guidelines emerge is essential. In this time of intense competition for workers, careful analysis and counsel has never been more important when it comes to joint employer considerations.

Husch Blackwell's Tom Godar of the Labor Law Insider welcomes two new experts as they discuss the shifting standards for joint employer status and the significant impact they can have upon employers, both union and union-free. Tyler Hibler, a labor and employment expert with significant litigation experience, shares his insights from the Husch Blackwell Kansas City office, while Tracy Wolf, a partner with the Husch Blackwell Dallas office, shares her extensive experience in labor and employment counsel and litigation. These two briefly describe joint employer analysis not only under the National Labor Relations Act, but in contrast to the different standards employed under the Fair Labor Standards Act, Title VII, and federal tax and other laws. The Insiders also remind employers that the joint employer review differs as well under various state laws, such as unemployment compensation and worker’s compensation. This sets a whole series of traps for the unwary employer which might think that it has no responsibility for those individuals performing services at the workplace, only to discover that the law deems those individual employees and agents of the business. Tyler emphasizes that all these laws start with the basic premise that some level of control by the reputed joint employer is the center piece of any analysis. However, it is at that point that special attention must be paid to the tests and standards under the National Labor Relations Act. Tracy offers a brief history of joint employment standards and brings us to the rulemaking of the Trump administration in 2020 that was seen largely as employee friendly and created a framework that called for actual control of activities by the joint employer. In contrast, the Biden Board has initiated rulemaking only two years later that would significantly change the landscape. The largest significant change would not rest on actual control maintained by the employer, but would assess the potential ability to control aspects of the individual’s work life, such as performance, evaluation or compensation. This new standard could significantly affect the identification of those who can be represented in collective bargaining, who can participate in union elections or whose concerted activity could be protected under the National Labor Relations Act. Individuals and unions could claim unfair labor practice by an employer who thought that these persons were only subcontractors or the employees of a temp-to-hire or temporary employment arrangement. In this podcast, our Insiders begin to share some of those consequences. In our follow-up Labor Law Insider podcast on this subject, Tracy and Tyler not only flesh out some of the significant consequences that will occur as a result of this change (and it is clear that this change will likely take place as the rule becomes adopted, probably with only very modest variations), but also what steps an employer might take to guard itself against the unintended consequences of being engaged in joint employer status. Enjoy this podcast, and please be sure to listen to the concluding podcast coming soon.

In Part II, Husch Blackwell's Labor Law Insiders Tyler Paetkau and Olga Savage continue their discussion with host Tom Godar regarding the shifting standards applied by the National Labor Relations Board to traditional employment policies. In this episode, the Insiders discussed the blueprint for these pro-labor changes. In this concluding podcast, our Insiders discuss specific policies that might be targeted and proactive actions that employers should explore. Attorney Paetkau describes the new Board standards, which essentially bless disparaging comments by unions and employees regarding employers and their agents, and which means that policies written during the Trump administration and its Board’s interpretation are likely overbroad. It also means that policies that would prohibit the use of company logos or photos without prior approval or in a disparaging way must now be abandoned for more expansive interpretations of “protected concerted activity.” Importantly, the Board in its Staricycle case asked for comment on a new tougher standard, one that would prohibit any policy that may have a potential chilling effect on employee activity comments and communications regarding workplace issues. Such a broad interpretation of Section 7 rights is an abrupt change from decisions only announced a year ago by the same (Trump) National Labor Relations Board. Attorney Savage refers to the Activision Blizzard NLRB decision, where the Regional Director targeted a facially neutral social media policy. Our Insiders also predict that the Board will be more interested in audits of policies, and that unions interested in organizing employers will file charges of a violation of Section 7 of the Act based on employer’s over-broad policies, creating leverage for those organizing activities. The remedies for such a Section 7 violation could be injunctive relief, rewriting of policies, the time, expense and energy engaged to defend against the charge; of course, if the employer terminated an employee for supposedly violating such a policy, the employer would be faced with the reinstatement order and back-pay remedies. Attorney Savage reminds the audience that part of this remedy is the “scarlet letter” order that is posted or placed on a video recording of the employer essentially apologizing or remarking about the violations in which it had been engaged.Bottom line: Our Insiders suggest taking a careful look at social media policies, code of conduct policies, and workplace investigation policies that include confidentiality requirements, as well as severance agreements that may include certain restrictions. However, prohibitions on sharing trade secrets, and vulgar, obscene, or intimidating language may also be prohibited, but the specific words used for such policies must be examined very carefully.

Labor Law Insider host Tom Godar welcomes two new Labor Law Insiders as they discuss the shifting standards applied by the National Labor Relations Board (NLRB) to traditional employment policies found in almost every employee handbook, including social media policies. Tom is joined by two new California-based Husch Blackwell attorneys, Tyler Paetkau and Olga Savage. These experienced labor counsel review employer policies that are under greater NLRB scrutiny, which is currently dominated by Biden Administration appointees. Tyler and Olga present a compelling argument that the world of labor law will change at a far greater pace than what might be expected by a mere change of administration from Republican to Democrat. This sea change has been almost exclusively through administrative action rather than through federal legislation, although some state legislation is changing the picture in various jurisdictions, such as California. In August of 2021 General Counsel Abruzzo set forth a blueprint for these pro-labor changes, which called for changes related to confidentiality policies, union access, and many more employer handbook rules. That blueprint is now being followed in still more GC memorandums, as well as ALJ decisions, which show a sharp turn from the policies that the Trump NLRB had initiated. See the contrast in the two NLRB cases in less than one year, one decided by the Trump-majority NLRB, and the other by the NLRB with the new Biden appointments. One of the more frustrating results for employers is the lack of predictability as to how facially neutral policies might be reviewed and found in violation of the National Labor Relations Act.This makes it difficult for employers to know what to do when they see highly derogatory comments on Facebook or in social media regarding their company when it seemed unlikely these were within the context of what traditionally had been identified as protected concerted activity but is now being seen in exactly that light. Essentially, the Board is—one policy at a time—undoing the more employer-friendly standards that had been in play under the Trump and Obama administrations. As the podcast closes, Olga Savage gives a brief but compelling description of how the standard of reviewing policies has changed. If an employer adopts a neutral policy, not targeting traditional organizing activity or activity related to concerted discussions among employees about wages, hours, working conditions, the review of that policy and its application revolves around the potential to chilling impact on employee expression. Such a policy that could be interpreted as having that impact, regardless of employer intent or the express disclaimer regarding protected concerted activity, i.e., Section 7 rights of employees, will itself be seen as a violation and give rise to the possibility of NLRB violations and remedies. Our companion Labor Law Insider podcast, which will follow in a very short time, goes into greater detail and specific application of these changes. Tyler and Olga discuss how these NLRB changes will affect employers reviewing handbook policies that relate to such standard areas as confidentiality, discussion of individual wages, rules for employer investigations, or use of the internet to criticize the employer or its agents. Enjoy this podcast and stay tuned for its follow up podcast in about two weeks.

Employers are at the receiving end of the enhanced remedies championed by General Counsel Jennifer A. Abruzzo of the National Relations Labor Board. General Counsel Abruzzo has taken the interesting avenue of highlighting the success of the board in implementing these changes. On June 23, the General Counsel released her Memorandum GC 22-06, which essentially touted the enhanced remedies, or what she described as “full remedies in settlements.” Included in the memorandum were examples of regions securing compensation for derivative economic harm. That is, employers were forced to provide not just full back pay and benefits for employees, but also additional economic relief, including fees for late car loan payments or late rent, or reimbursement of interest payments on loans that were taken out by employees to cover living expenses and even the “cost of baby formula due to the loss of workplace breast pump station.” Further, General Counsel Abruzzo highlighted that the terms of settlement have included letters of apology to reinstated employees, mailing of the notice to all employees who had been employed at the time of or during the previous year, permitting union use of company bulletin boards, and even creating a video recording of a board agent reading the notice of violation while a company representative is in the frame, to be distributed to employees at the workplace. One can only imagine where else that video is distributed.  Labor Law Insider attorney Terry Potter of Husch Blackwell not only touches on this memorandum, but also reviews developments related to the Starbucks organizing campaign. There, the board is demanding remedies of bargaining orders and other broad relief in the context of alleged unfair labor practices. Finally, listeners will hear of bargaining orders even without any majority showing of union support by the employees. Terry also describes at least one potential strategy of taking a settlement which might not be approved by a regional office of the NLRB to the Administrative Law Judge (ALJ) assigned to hear the case, as the ALJ may not feel as beholden to the General Counsel’s mandate of harsh remedies.

The National Labor Relations Board, primarily through its General Counsel, Jennifer Abruzzo, has initiated a course of seeking increasingly stiffer remedies from employers who are either found to have committed an unfair labor practice, or even for those who are subject to an unfair labor practice complaint and are merely seeking to resolve the complaint through negotiation with the National Labor Relations Boards (NLRB) agent. As discussed in Part I of this Labor Law Podcast series on remedies, the General Counsel issued two memos (General Counsel memo 22-02 and General Counsel memo 21-07) admonishing the regions to seek even more inclusive remedies, as well as instructing the Regional Directors to initiate the federal court process for injunctive relief earlier in the process and perhaps more frequently than had been the case earlier. Husch Blackwell's Labor Law Insiders Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytán continue the discussion, and review the NLRB’s more aggressive posture for 10(j) injunctive relief, which must be granted by federal courts. In addition, the discussion reviews the potential impact of tougher remedies, including the incentive for employers to litigate more often since they gain very little relief from a settlement when the Board is seeking full remedies. This reluctance to settle a charge might be even greater given the Board’s insistence that employers publicly record and distribute a notice admitting to the alleged violations of the Act, or even apologize to workers if the Board concludes that they were subject to discrimination based on their protective and concerted activities. The Labor Law Insiders emphasize that employers should take appropriate steps to avoid, or at least minimize, the likelihood that an unfair labor practice (ULP) claim will be filed. Our panel suggests that there must be a renewed emphasis on training supervisors and communicating effectively and with transparency with employees.  In addition, employers should review handbooks and other policies that might invite the Board’s scrutiny as it seeks to reverse Trump-era decisions and expand its interpretation of employee and union rights, especially as it relates to work rules pertaining to social media use and other employee communications. In addition, review by counsel of actions that might result in employee discipline or discharges is essential, given the greater risks and costs of facing a ULP charge. Even while this podcast was being recorded, the General Counsel issued still another remedies memo (General Counsel memo 22-06), which celebrates and advocates for very harsh remedies for alleged ULPs. In addition, the Board is seeking broad remedies related to some of the hundreds of Starbucks organizing efforts, including bargaining orders as opposed to new elections, when it believes that employees’ rights to participate in an election have been violated. Those developments are the focus of a special third part to this Insider podcast series, featuring attorney Terry Potter. Terry draws on his experience and expertise to describe these changes and the further impact they have upon employee, union and employer behavior. Stay tuned for Part III of this series, which will be released very soon.

Husch Blackwell's Labor Law Insiders, Thomas Godar,  Terry Potter, Rufino Gaytan and Adam Doerr, offer context to recent NLRB memoranda, including background to NLRB remedies, and contrast the historical reach of NLRB remedies to the broader approach urged by the Board’s General Counsel under her more expansive definition of “full remedies”. Further, the panelists take on the implications of the General Counsel’s pursuit of injunctive relief under Section 10(j) of the National Labor Relations Act, as a preventative tool rather than a remedial one.The panel also addresses the non-economic remedies that more employers will find unpalatable, including those discussed in the most recent General Counsel memorandum. These include such remedies as letters of apologies to reinstated employees, and the creation of video recordings of a NLRB agent reading notices in the presence of senior charged party officials, among others.The second part of this episode will further explore the options for reviewing and potentially resolving complaints, the incentive to defend against such ULP complaints through trial, and the steps to be undertaken to avoid, as far as can be possible, the threat of employees charging employers with unfair labor practices.

On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.

In part I of this series, Husch Blackwell's Labor Law Insider host Thomas Godar is joined by two experienced counsel regarding labor and employment law and federal contractor issues. Husch Blackwell Attorney Michael Schrier is co-Chair of the ABA Public Contract Law Section’s Employment Safety and Labor Committee, which is engaged in monitoring and potentially influencing regulations regarding federal government use of PLAs. Husch Blackwell Attorney Rufino Gaytán is often asked by clients to assist in assessing whether engagement in what are often high-ticket federal construction contracts and PLAs may have hidden trap doors, especially for those who are not frequent federal contractors. This episode of the Labor Law Insider Podcast explores the federal government’s expanded mandate for use of PLAs, and its potential for further encouraging unions to organize union-free companies which choose to participate in such projects.Be sure to join us for for this and Part II for and interesting look into Project Labor Agreements and how they fit in to the overall pro-union strategy of the Biden administration.