What Just Happened, and What’s Next? 2023 Labor Law Retrospective

This episode of the Labor Law Insider concludes our discussion on the changes wrought by the National Labor Relations Board (NLRB) in 2023 and their implications for employers in 2024 and beyond. Adam Doerr and Rufino Gaytán join host Tom Godar to offer their thoughts on NLRB decisions that prohibit the inclusion of confidentiality provisions in release agreements.  They also provide insight into how employers must contend with a new risk calculus to implement their policies and actions regarding employee relations. 

The discussion also explores the significant increase in strikes and whether regular use of that provocative tactic is likely to continue. The Insiders also analyze how successful union organizing has expanded in 2023 and whether these trends reflect the greater popularity of unions in the broader public context. 

The episode concludes with a focus on proactive leadership by employers to limit their employees’ desire to unionize at all and to communicate effectively with unions that already represent their employees. Join the Labor Law Insiders for this stimulating podcast. 

Labor Law Insider veterans Adam Doerr and Rufino Gaytán join host Tom Godar to discuss the impact of the National Labor Relations Board’s 2023 decisions. How does the Cemex decision, encouraging union representation without elections, fit in with the many other changes wrought by the NLRB in the past year? The discussion focuses on the much-narrowed pathway for employers to negotiate in 2024 regarding policies, discipline, and responding to union organizing. 

Join these experienced labor counsel as they offer thoughtful perspective of organized labor’s new power, and how they are flexing their muscle with both strikes and union organizing with new and union-friendly rules. This is Part One of a two-part series. Part Two will include further insights and opportunities to mitigate the impact of some of these decisions. Join us on this episode of the Labor Law Insider.

Husch Blackwell partners Tom O’Day and Tyler Paetkau join Labor Law Insider host Tom Godar in Part II of this discussion of the impact of new Cemex decision by the NLRB. Suddenly, minor violations of the National Labor Relations Act—or even a single violation—could result in an order forcing recognition of a union without the union ever achieving majority status in a secret ballot election.

The Insiders also discuss the serious impact of a union election cycle reduced to only a couple of weeks, as well as the unprecedented employer obligation to file an election request with the NLRB upon presentation of a petition or cards claiming majority support of a union. 

Responding to this new threat must include a review and audit of your handbook, policies, and offer letters. The Insiders recommend offering valuable training to supervisors and emphasizing and practicing the pro-employee values of your company. 

It is even suggested that you have documents ready for when a union files in order to be up and running for the shortened election cycle even if you are successful in getting to a secret ballot vote. 

The Labor Law Insider podcast shares the secret that forewarned is forearmed. 

In Part One 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 Two 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 Two, Tom and Tyler offer some suggestions on how to win an election before one is ever filed. 

In this episode of the Labor Law Insider, attorneys Adam Doerr, Trecia Moore, and host Tom Godar continue their discussion of decertification petitions, focusing on some of the practical implications related to decertification efforts, including:

• Employees who are frustrated with their union representative may be stymied by the complex decertification process, and the specific and detailed requirements of the process.
• Employers may consider withdrawal of union recognition based on loss of majority support, bolstered by a decertification petition, but face risks in doing so. 
• Employers continue to have free speech rights in a decertification campaign but may opt for a softer approach for a variety of reasons.

We conclude the episode by hazarding a few predictions, including the continued strength of recent union-organizing efforts with the likely result that more employees will opt for union representation; however, we also see an opportunity for employees who are disenchanted with their union experience to vote on decertifying their union, as could be the case for Starbucks employees. 

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.