Tune into Husch Blackwell’s newest podcast, the Labor Law Insider, with members of our labor and employment law team for conversations about recent and anticipated developments in laws and regulations that affect the workplace. Each episode will provide guidance on best practices and strategies that employers should implement as the environment for businesses in all sectors of the economy continues to evolve.
NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices
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.
Project Labor Agreements Part II
In 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.
Project Labor Agreements Part I
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.
Offensive Speech in the Workplace - Part II: Drawing the Line
New York Amazon Employees Vote for Union: What Do We Learn?
Tom Godar, of counsel at Husch Blackwell, and host of the Labor Law Insider, explores the impact of the successful union election campaign at Amazon’s Staten Island distribution center. This is in contrast to the ongoing failure of the union-organizing campaign at the Bessemer, Alabama facility, where Amazon workers have thus far voted, a second time, to reject a union-organizing campaign there.
Labor Law Insider alum, Rufino Gaytán, a member of Husch Blackwell’s Houston office, observes that the election by the homegrown Amazon Labor Union in New York was different than most large organizing campaigns. The Staten Island campaign was led by Amazon employees, Christian Smalls, and his friend, Derek Palmer, who had no Union organizing experience and were not affiliated with any AFL-CIO established Unions. This campaign exploited the treatment of its leaders, and especially Mr. Smalls, who was characterized by senior management as “not smart or articulate”, and was terminated by the company. Their tactics included a very personal and direct approach which resulted in 2,654 “yes” votes for Union representation out of a reported 8,325 eligible voters. This success was aided by several decisions by the National Labor Relations Board, when Mr. Smalls and other union supporters sought reinstatement following their termination from employment and brought Board charges seeking greater access to the employees by those engaged in organizing for the union. In addition, the organizers relied heavily on social media presentations broadcasting and attempting to refute captive audience presentations by management or witnessing the arrest of Mr. Smalls in near real time when he was allegedly trespassing at the Amazon facility.
This low budget union organizing campaign led by amateurs was in stark contrast with the recent vote in Bessemer, where the Union received only 875 yes votes following a second election, while the employees rejecting the Union garnered nearly 1,000 votes. The union-friendly Board, led by its General Counsel Jennifer Abruzzo, forced a second election, rejecting the results of a vote taken about a year ago, which the union lost by a two to one margin. That campaign has been led by a national union pouring in money and professional organizers and receiving support from politicians and celebrities.
Mr. Gaytán suggests that both management and Union organizers have much to learn from this successful effort for the Amazon Labor Union in New York City, and offers analysis and observations garnered from his own experience advising employers. This highly personalized union campaign, which put a spotlight on employer policies and disciplinary actions, should spark managers everywhere to think differently about treatment of employees well before any Union activity begins, and certainly suggests that employers should change their approach in responding to Union threats and Union campaign activity.
Offensive Speech in the Workplace - Part I: Crossing the Line
In this Labor Law Insider podcast episode, Tom Godar and fellow Husch Blackwell attorneys Sonni Nolan and Kat Pearlstone explore the breadth of National Labor Relations Act (NLRA) protection of employee speech that can be disrespectful, crude or offensive. These protections extend to both the non-union workplace and the unionized workplace. Employers are charged with drawing a line at the workplace, curbing offensive, disrespectful, harassing and discriminatory remarks. These disrespectful remarks can be oral or written, placed on employer-maintained bulletin boards or disseminated through social medial. However, under Section 7 of the NLRA, employees have great latitude to engage in protected speech, even when considered offensive or crude or when it targets individuals or businesses. As both National Labor Relations Board (NLRB) and court decisions reveal, there are many instances when employers, whether dealing with a union-represented or a non-unionized workforce, cannot discipline or terminate an employee for what might otherwise be considered prohibited conduct either in the workplace or impacting the workplace.
Oftentimes a protected comment or statement can occur in a non-union workplace when employees are criticizing management or management policies, disrespecting specific managers or owners, or even harassing co-employees. These aggressive and offensive expressions can also occur when a union is attempting to organize in a non-union workplace. An employer’s initial reaction is often to discipline or discharge, consistent with a policy that prohibits such disrespectful or harassing speech.
These expressions can also take place when a unionized workforce is engaging in a strike or picketing activity. Indeed, some of these statements can be seen as discriminatory or harassing, based on protected characteristics such as race, but may still receive protection under Section 7 of the NLRA. Employers are called upon to exercise extraordinary discretion in the balancing of Section 7 rights of protected and concerted expression with the rights of employees to work in a place free from discrimination or harassment under federal and state law. This podcast explores many of these issues and reviews both cases as well as practical circumstances in which these questions arise.
A companion podcast, to be released in about two weeks, will delve more deeply into the issues of expressions which might be construed as a threat of violence, as well as those made in the social media context. Our expert panelists will then describe when these free speech protections become so disloyal, reckless or maliciously untrue as to lose protection. Kat and Sonni will also assess other cases in which the NLRB may find such obnoxious expression merely to be “protected hyperbole.” This podcast will begin to offer guidelines on recognizing where those lines are drawn, and how to avoid the enormous cost and distraction of serious NLRB litigation focused on employee speech.
Importantly, that companion podcast will also explore with greater depth the steps employers can take to curb such expression in the first place, and how to respond to disrespectful and offensive speech, threading the needle of enforcing well-drafted policies and keeping away from violation of employee rights under the NLRA. Stay tuned, and look for that podcast in mid-April.
The False Narrative of Vote-by-Mail Fraud
This show continues to push the big Trump Lie! Mail balloting is not a new idea; it was already deeply embedded in the American electoral system before the coronavirus hit. In the last two federal elections, roughly one out of every four Americans cast a mail ballot. In five states — Colorado, Hawaii, Oregon, Utah, and Washington — mail balloting has been the primary method of voting. In 28 additional states, all voters have had the right to vote by mail. Since 2000 more than 250 million votes have been cast via mailed-out ballots, in all 50 states, In 2018, more than 31 million Americans cast their ballots by mail, about 25.8 percent of election participants. Despite this dramatic increase in mail voting over time, fraud rates remain infinitesimally small. None of the five states that hold their elections primarily by mail has had any voter fraud scandals since making that change. As the New York Times editorial board notes, “states that use vote-by-mail have encountered essentially zero fraud: Oregon, the pioneer in this area, has sent out more than 100 million mail-in ballots since 2000, and has documented only about a dozen cases of proven fraud.” That’s 0.00001 percent of all votes cast.*** An exhaustive investigative journalism analysis of all known voter fraud cases identified only 491 cases of absentee ballot fraud from 2000 to 2012.