Employer Free Speech Restrictions

Peter List, Phil Wilson

Intro: [00:00:00]

Hello and welcome to The Left of Boom Podcast. This is an audio edition only featuring our own Phil Wilson and Peter List of labor relations radio talking about employer free speech. Hope you enjoy the episode.

Peter List: [00:00:15]

This is a special episode of Labor Relations Radio and Phil Wilson from LRI’s Left of Boom. Phil, how are you today?

Phil Wilson: [00:00:25]

I’m good, Peter. We’re going to jointly drop this episode on The Left of Boom and Labor Relations Radio. So, that’ll be fun.

Peter List: [00:00:37]

Yeah. Well, it’s one of those topics that I think is pretty important to everybody out there who is threatened by a union campaign in that we’re talking about Amazon’s Andy Jassy and the comments that he made over the course of about a year, where the National Labor Relations Board just found what seems to be pretty innocuous statements to be violations of the act.

Phil Wilson: [00:01:05]

Yeah. Surprise, surprise. But this opinion is the natural progression of where the General Council is hoping to push the law. She was not able to get the ALJ to all the way as far as she wanted. But this administrative law judge went pretty far down the road of restricting just about anything an employer can say about unions without it being considered an unlawful threat.

Peter List: [00:01:45]

Right. And so, for the listeners, there are three interviews that the CEO of Amazon gave back in, I want to say 2021-22 time frame to NBC Squawk Box. There’s an event on behalf of I believe The New York Times and another one wherein he pretty much said the same thing. And what I figured we could do is let the listeners listen to the audio, and then we can go off on that.

Phil Wilson: [00:02:16]

Sounds good.

Peter List: [00:02:17]

Okay, so hold on two seconds.

Reporter: [00:02:19]

How do you see the union movement that’s taking place, frankly, around the country, but clearly aimed in certain places (and I’m thinking about New York), where I’m from at Amazon?

Andy Jassy: [00:02:30]

Well, I’d say a few things. First of all, of course, it’s employee’s choice whether or not they want to join a union. We happen to think they’re better off not doing so for a couple of reasons at least. First, a place like Amazon empowers employees. If they see something they can do better for customers or for themselves, then go meet in a room, decide how to change it, and change it. That type of empowerment doesn’t happen when you have unions. It’s much more bureaucratic. It’s much slower. I also think people are better off having direct connections with their managers.

[00:03:03]

You think about work differently. You have relationships that are different. We get to hear from a lot of people as opposed to it all being filtered through one voice. If you want to keep the construct that we’ve had for this long, you have to have competitive and compelling benefits for employees. And it’s why we championed the $15 minimum wage a few years ago. We’re up over $18 now. It’s why we have full insurance, 401K, 20 weeks of paid leave, and our career choice program where in our fulfillment center for our employees who want to get a college education, we’ll pay for their full tuition.

[00:03:36]

So, those things really matter. The one thing, regardless of how it all evolves, is we just won’t compromise on the customer experience. That for us is paramount.

Reporter: [00:03:45]

And what did you think when you heard President Biden effectively say, and this is in regard to the unions around Amazon, here we come.

Andy Jassy: [00:03:57]

Well, everyone’s entitled to their own opinion. We have a lot of things that we, I think have supported the administration on and agree with it.

Reporter: [00:04:09]

Let’s talk about the people and this labor issue- because it’s a challenge you’ve been confronting that a lot of other companies in America have been dealing with the labor movement. It’s happening at your firm as well. Last month workers at a warehouse in Albany voted no on a union. Here in Staten Island, they voted yes. And there’s a bit of a battle going on there. But where do you see as the state of this dynamic right now?

Andy Jassy: [00:04:37]

Well, in the US, only one of our facilities has voted for a union. It’s the Staten Island one you mentioned. There are a lot of irregularities in that vote, which is why there are objections. And it’s working its way through the legal process. The last two, Sortation Center in Staten Island and the Albany facility you mentioned have voted against the union. And this is also interesting. It’s one of many topics in this country that are very hard to discuss and debate. In fact, you probably saw that the NLRB is suing Amazon over comments I made in our last interview in April.

[00:05:12]

I have to be careful about what I say, I guess. But where I stated that we didn’t favor unions because they were more bureaucratic and limited agility, which I thought was fairly non-controversial and straightforward. But I guess you’re not allowed to say that. Or some people think you’re not allowed to say that. But the truth is that employees get to choose. They always had the choice. And it’s not up to us. It’s up to them. And what we tell our employees in our film centers is that we think they’re better off without a union for a few reasons.

[00:05:43]

One is we try to hire people who we empower. If they find ways that they can make the experience better for customers or their fellow teammates, they just go fix it. They don’t have to go through a union. It’s not bureaucratic. It’s not slow. It’s not a whole problem. They can just go fix that. And we think that that’s pretty empowering and a great way to work. And I think it’s nice to be able to have a direct relationship with your manager. We like to hear from all our employees as opposed to having it filtered through 1 or 2 voices.

[00:06:09]

And I also think when you have unions, you often end up with this us versus them mentality that’s not as productive when you’re trying to invent and trying to accomplish what we are on the scale we are. And so, I think if you want to operate in the same structure we have without unions, you have to have compelling benefits.

Female Reporter: [00:06:28]

The first vote to unionize at an Amazon warehouse. I know you’ve been spending a lot of time at warehouses. When you look at someone like Chris Smalls, who I think some people look at as this modern-day hero who got fired, pulled off this union vote. What’s your message to someone like him? Your message to the folks who think maybe we should join a union.

Andy Jassy: [00:06:47]

Well, I think that the first thing to be clear about is that employees get to make that choice, whether they want to have a union or not. They always have had that choice, and it continues to be their choice. We happen to think they’re better off without a union for a number of reasons, including the fact that it’s much harder when you have a union to have a direct relationship with your manager and to get things done quickly. So, if you see something on the line that you think could be better for your team, you, or customers, you can’t just go to your manager and say, let’s change this.

[00:07:22]

There’s a whole process in bureaucracy that you have to go through to be able to do that. And when there’s a union, we’re going to get the feedback filtered by what the union decides is worth bringing up. And we’d much rather hear from every employee whatever is on their mind. And so, I think if you want to continue to have the structure that we’ve had for all this time, you have to have really competitive benefits. And then I think if you look at Amazon’s, they’re very unusual in this space. We have championed the $15 minimum wage several years ago.

Peter List: [00:07:54]

So Phil, knowing what the comments were, I think it was pretty innocuous, at least in what he said seemed to be fairly factual. He’s talking about empowerment of workers without a union and the bureaucracy as and if they become unionized. What’s wrong with that?

Phil Wilson: [00:08:14]

And efficiency. Nothing’s wrong with that. So, let’s just be crystal clear. And by the way, everyone just listened to it. But Andy Jassy didn’t just hop on television and go, “Hey, here’s some stuff. I think about unions.” Those statements had been carefully crafted. He said the same basic thing every time. Employees have a right to this decision but we don’t think unions are in their best interest. They’re less efficient. You’re less empowered. It’s bureaucratic. It takes a long time. Those are all classic statements that employers have been able to make for a long time.

[00:08:58]

They’re not considered threats. They’re not considered anywhere outside the bounds. And those statements were crafted to be well within the boundary lines of what an employer can say. And then I would add on top of that, this isn’t like the CEO talking to somebody working at a fulfillment center, right? This is a CEO being interviewed on a financial news show that probably no Amazon employee is watching. This is a very different kind of a setting than if, for example, he was up in front of a room of employees who were getting ready to vote in a union election.

[00:09:42]

Context, I think also matters here. And when you think about the First Amendment rights of an employer and the Section 8C rights of an employer, I think you have to put all of that together as well. This is a TV interview. He’s asked about a whole series of different topics about his company. One of them is this union topic. And he makes a very basic milquetoast statement about some of the negatives about unions.

Peter List: [00:10:10]

And it’s viewed as a threat. I was curious as I was watching them. I wonder how many Amazon employees tune in to CNBC Squawk Box every morning. Probably not that many.

Phil Wilson: [00:10:21]

Yeah. How many people period, tune into Squawk Box? It’s a pretty narrow audience. They’re mostly trading. This is not [unintelligible 00:10:36]. I think that should be part of the context as well. The judges in these cases like to talk about context, and they really try to pick apart every little word. But I think part of the context here is this is not a speech in the middle of a campaign. Even if it was, by the way, I think it’s completely inbounds. But it’s very different than a campaign setting.

Peter List: [00:11:03]

Well, the interesting thing is he wasn’t necessarily saying something that was not factual. I think the ALJ said, “Well, he didn’t provide any other context to it.” But the fact is, when you’re unionized, you don’t go directly to your manager without permission from the union. And it goes back to what Jennifer Brousseau was trying to do is overturn TriCast. The decision from, I think, is 1995 or 85.

Phil Wilson: [00:11:34]

Yeah. She wants TriCast overturned. But TriCast says under section 9A, the relationship changes. It’s right built right into the law. The relationship changes. So, just to be clear, in this case, the ALJ reviews all these statements that Jessie made and says in the first part of the opinion, in general, these statements are in general protected by TriCast. So, I’m not overturning TriCast. I don’t have the right to overturn TriCast. I can’t ignore the board. Although interestingly enough, they later ignored the Sixth Circuit Court of Appeals. But I can’t ignore the board.

[00:12:26]

The board has ruled in TriCast that these statements are protected speech. And that’s the way that the judge rules. Now under 9A, an employee does have a right. So, Abruzzo’s point is that, look, if you say that the relationship changes and that the employee loses their right to deal directly with the employer, that’s illegal because 9A says they can still present individual grievances to their supervisor. But even 9A says the union has a right to be there at that meeting.

[00:12:59]

So, you don’t get to go (to Jazz’s point about efficiency), the meeting that you used to be able to have, where you would just go to your boss and go, “Hey, I’d like to present my grievance.” Now, it’s like, okay, well, wait, we have to go call the steward. Because the steward has a right. Even if you don’t want them there, it doesn’t matter. The steward under 9A has a right to be in that meeting. And so, they don’t have to go to it. They could say, well, you can do it by yourself. But from an efficiency standpoint, it’s an absolute fact you have to go to the steward and give them a right to be in that meeting. Otherwise, it’s an unfair labor practice.

Peter List: [00:13:34]

So let me pause you there. I’m going to read something that’s directly from the National Labor Relations Board’s basic guide to the National Labor Relations Act. It’s right on page 13 and what you’re talking about with section 9A. So, when I’m dealing with employees, I’ve been explaining this literally ad infinitum because I’ve got experience as a union rep having dealt with this. But what it says is once a collective bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with individual employees, with a group of employees, or with another employee. Representative.

[00:14:12]

Section 9A, which is what you’re talking about, provides that an employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the collective bargaining representative, provided the adjustment is not inconsistent with the terms of any collective bargaining agreement then in effect and (this is your point), the bargaining representative has been given the opportunity to be present at such adjustment. That sounds like bureaucracy to me.

Phil Wilson: [00:14:46]

It’s bureaucracy. It’s not efficient. It’s exactly what Jassy said. It is built into the law. It is an absolute ironclad fact of life that that happens. If a union is selected as a representative, that all occurs. That’s bureaucratic. That’s not efficient.

Peter List: [00:15:05]

Yeah. And so, the only way that an employee group, or an employee individual for that matter, can go directly to their manager is either with the permission of the bargaining representative or if something’s been negotiated into the contract. Back in the 80s when I was with CWA, we were doing all the quality groups and CWHL teams and all that kind of crap, but that had to be negotiated. And I, as a union rep, got to sit in each meeting, which got me off the job.

Phil Wilson: [00:15:36]

And to the point about empowerment, right? So, Jassy says, right now that we hire people that are empowered and that they want to be empowered, and that if they see a new way to do something or a better way to do it, they can go right into a room, suggest it, and we can do it. And that’s empowerment. Now, reasonable people might disagree about whether that’s better power than whether a union has. But that’s empowerment. That’s how he’s defining empowerment. And then what you just described takes that power away, right?

[00:16:13]

Either the labor agreement has the power. The union rep- it is illegal, like you just said. It is illegal for the company to negotiate wages, hours, conditions of employment directly with an individual or a group of employees, or a different bargaining representative than the one selected. That takes power away That power that you have right now to go directly to your boss and to make an adjustment or to change something, that goes away because it goes into this bureaucratic process, this less efficient process. Again, an ironclad fact of life under the National Labor Relations Act, which is why this speech from Jassy must be protected.

Peter List: [00:16:52]

It should be, at least.

Phil Wilson: [00:16:54]

It will be eventually. My point is it will eventually be protected. There is no way that this decision can stand. And can I make a couple of comments about the opinion itself?

Peter List: [00:17:08]

Absolutely.

Phil Wilson: [00:17:09]

So, part one, the ALJ is like, my hands are tied. TriCast, the employer is allowed to say that the relationship changes. Part two, which is where the administrative law judge finds that the unfair labor practices have occurred. has got to be just the worst reasoned ALJ decision I think I’ve ever read. I’ll pull it up here. So, the administrative law judge says these statements. These are the ones you’re just talking about. They go way beyond the holding in TriCast. There are two decisions that the ALJ points to.

[00:17:54]

So, it says, for example, 9A contemplates a change in the employer-employee relationship, it does not contemplate whether that change would make employees more empowered or less empowered. It doesn’t contemplate that being represented by a union would make it easier or harder to get things done in the workplace. Yet that’s what Jassy predicted. By exceeding the types of comments allowed in TriCast, they amounted to unprotected threats. Cites this case, Hendrickson USA, LLC, enforcement denied by the Sixth Circuit in 2019.

[00:18:25]

The case that this lawyer, this administrative law judge cites in defense of the point that he’s trying to make was reversed by the Sixth Circuit, which found a statement bargaining from scratch is lawful, so they reversed the board around- bargaining from scratch is a term that you’re not really supposed to use. In that particular case, the Sixth Circuit said, look, given the context, we don’t even find that threatening. So, much, much less egregious language is used by Jassy.

[00:19:01]

The same opinion that the administrative law judge uses to support the claim that these statements are unlawful, the Sixth Circuit clearly would find inbounds. I can’t believe that they’re citing this case as the authority for finding an unfair labor practice in this case. Not only that, it really illustrates one of the big problems that the National Labor Relations Board and just this entire agency all the way down through the AlJs have is they just don’t pay attention to what a Court of appeals says.

[00:19:34]

The NLRB has this whole non-acquiescence doctrine which drives the courts of appeals crazy because they’re kind of like, “Yeah, well that’s your opinion. But until the Supreme Court says something we’re not going to follow it.” That’s what this ALJ did. They’re like I’m going to cite the board case even though it was reversed by the Sixth Circuit, I’m still going to cite that case. It’s unbelievable. And then the second case that they use, there are only two cases they use as a defense of this initial finding of the unfair labor practice is a Starbucks case in which the finding in that case was we will cut your pay, we’ll cut your benefits, we’ll cut your hours, we will withdraw assistance from your supervisor.

[00:20:18]

So, the factual settings are so distinct that it’s crazy that they use these two cases as the defense for this very inbound statement is a threat. I can’t believe that that’s the reasoning.

Peter List: [00:20:36]

And the whole the whole empowerment. And talking about empowerment, that’s subjective itself. What is empowerment? You and I probably think of empowerment one way. In the union context, it may be something entirely different.

Phil Wilson: [00:20:54]

Unions clearly feel like they’re empowering employees, which is their opinion and they’re totally entitled to it. And they can certainly make that argument. The employer’s counterargument is that’s not what we think is empowering. And the employee ultimately gets to decide. The first thing Jassy says in every single one of these interviews is ultimately, this is the employee’s choice. They get to decide. We have a point of view about this. The union has a point of view about it. But that’s the way that this is supposed to work.

Peter List: [00:21:28]

And I think in at least two, if not all three of the cases he begins his comments with, I think or we think, which goes to the whole you’re allowed to express opinions. And he’s not threatening taking away wages, benefits, other terms and conditions of employment. It’s the communications. And that, in fact, does change.

Phil Wilson: [00:21:52]

Right. And the act has this section 9C that is super clear. And then the Supreme Court says 8C is just basically enforcing the First Amendment. But he has a First Amendment right to speech around his opinion about the subject as an American citizen. And the fact that he’s CEO of a big company does not change that. The act says there will be no end for labor practice found just because you’re stating your opinion about unions. And that can include predictions that bad things will happen.

[00:22:27]

As long as those predictions aren’t, I, as the CEO, am going to do bad things if you guys unionize, which is clearly not what he said, you’re allowed to make predictions about negative consequences happen sometimes when unions come in. Some of those negative consequences he lays out here. It’s not efficient. You may not even get a contract. If you do get a contract, that contract may not be what you want. It could be worse than what you have now. Might be better, might be the same, might be worse.

[00:23:02]

There are a lot of potential negative consequences of a union. And as long as you’re not saying I’m going to make bad things happen or this company will make bad things happen if you unionize, that’s protected speech.

Peter List: [00:23:13]

Well, I haven’t seen any recent filings. I’m assuming they’re appealing this filing a request for review to the NLRB in Washington.

Phil Wilson: [00:23:23]

I haven’t seen it, but, yes, of course that’s happening.

Peter List: [00:23:28]

And I’m unclear based on what I’ve seen out of the NLRB, if they’re going to be in agreement with Abruzzo on this. Well, to your point, they’re using that Sixth Circuit case. Surely somebody’s going to read that was overturned in the Sixth Circuit.

Phil Wilson: [00:23:45]

You would think that whoever was either researching or writing this opinion might have. Well, they obviously knew it because it says it was enforcement denied. Hopefully, you read the opinion, but at least you knew that the court denied enforcement on that. I don’t know. It’s super poorly defended. The board above is going to uphold this, I would guess. The board is going to uphold this because that’s sort of- All these other close free speech cases that they’re finding against the employer. This is their vehicle to overturn TriCast if the general counsel convinces them to do that.

[00:24:39]

They’ve turned it down so far, the chances that they’ve had, so this would be another opportunity to overrule TriCast if they wanted to. But either way, unless they just reverse the ALJ, this is getting appealed. And I can’t imagine a court of appeals looking at this and going along with this reasoning. It’s terrible.

Peter List: [00:25:02]

Yeah. But in the meantime, for the listeners who may be going through a campaign. And I’ve over the last couple of years since I saw [unintelligible 00:25:13] memo, I want to say it was a couple of years ago where she talked about TriCast, I’ve been going through it with employees when I’m meeting with them, all the way down to the exceptions there.

Phil Wilson: [00:25:25]

Yeah, we do too. Anticipate the case that’s going to happen. Don’t just hang your hat on. This is protected speech. But like okay, I know they’re going to make this argument, so explain 9A. 9A is not a big billboard for efficiency or speedy resolution of problems. Explaining 9A- don’t throw me into that briar patch. It’s like, okay, we’ll explain 9A. That does not really prove unions are some like great thing for employees.

Peter List: [00:26:09]

Well, the other thing that it’s got a conflict with when it talks about the bargaining representative being able to be present. You look at a union like the Teamsters and several others out there that have within their constitution that whole section where the employee or the member subjugates his or her rights over to the Union for all aspects of their employment which may allow them to not file grievances as well.

Phil Wilson: [00:26:39]

Yeah, absolutely.

Peter List: [00:26:41]

So, you compile that onto “Oh yeah, you’ve got to go through the union.” If you’re a union member and you bypass the union, you can actually be put on trial for that. Where do we stand with that with the NLRB?

Phil Wilson: [00:26:57]

And how is that empowering?

Peter List: [00:26:59]

Right. One would think that the NLRB might find some of those union constitutions unlawful because it’s restricting employee rights. But I haven’t seen a case come up on that.

Phil Wilson: [00:27:08]

Yeah. I’m pretty sure they would find a way to not rule that way.

Peter List: [00:27:13]

Right.

Phil Wilson: [00:27:14]

So, you bring up a really good point. This is why prior restraints on speech are unlawful. This whole behavior of the agency of the general counsel in particular- and I always I always make a point that, look, Jennifer Abruzzo is really smart and is really very activist and has a path. And I’ve heard other former general counsels of the NLRB say this, but I think it’s you got to bow down to the fact that I don’t think anyone’s been more effective in that role, probably ever.

[00:28:02]

But that said, this tortured attempt to turn this law into if you don’t roll over and just invite the union in, like you’re not doing it correctly- it’s wrong. It’s not what the statute says. It’s not the way that these campaigns are supposed to be done. It’s not even furthering good labor relations because it’s basically forcing a union on people who don’t really understand how it works.

[00:28:33]

And then once they get into it and understand how it works, they have buyer’s remorse because it’s like, “Well, I thought I was going to get all this stuff and it was going to happen fast. What’s happening? Why can’t I settle this thing directly? Why do I have to have a steward in here if I don’t want them in here?” All of these things, if you don’t educate people about that, they all of a sudden have a union in place and are like, I don’t want this.

[00:29:05]

And then all these threats of all the litigation that’s going to happen is basically putting employers in the place where I don’t really feel comfortable meeting with my employees. I don’t feel comfortable educating them about how this all works, because I’m worried that I’m going to be branded a union buster, and I’m going to have all of these unfair labor practices filed. And now under Cemex, I’m going to be forced to bargain with the union, even if my employees don’t vote for it.

[00:29:32]

There’s all of this stuff. The entire weight of the federal government is basically trying to keep the employer totally on the sidelines and gagged during these campaigns. And that’s not the way the law is written. It’s not the way it’s supposed to work. It’s not good for labor relations. It’s unfortunate.

Peter List: [00:29:56]

Well, you and I have been around long enough to remember the prior iteration of the Proact, which was FICA, and that was card check. So, I can trick employees into signing cards, unionize them without them voting on it, and then the government’s going to lock the company and the union into a contract for two years. If you go back a century ago and what unions fought for was not to have the government dictating labor relations. Because obviously, unions have become wards of the state in that regard.

[00:30:31]

And from a worker standpoint, as you’re mentioning it- if I’m a worker, what is the union doing for me if the government’s doing it anyway? They’re dictating my wages and benefits. Basically, the union’s just taking my money. Why do I need a union? California- the fast-food workers. Why are they going to unionize if the government’s giving them $20 an hour?

Phil Wilson: [00:31:02]

Yeah, it’s a good point. And going back to the whole empowerment, it’s not empowering. It’s taking your individual power away. Now, it’s creating this group. But the group is controlled by a small number of people who are not your coworkers, and it’s not you. That’s who has the power. Power does change. It just goes to them. And the employer continues to have power. There’s just this bureaucratic process that you have to go through in order to exercise that power that they currently don’t have to do.

[00:31:49]

And look, to be fair, that’s one of the things the unions have to sell is that right now, the employer can make changes and can do things and they can do them fast. And so, the flip side to the efficiency argument is, well, you can change things whenever you want and I don’t like that. Well, that’s a legitimate point to debate about which of those two things is better. And from an employee’s standpoint, an employer changing things rapidly and everything’s always in flux, that’s really frustrating.

[00:32:25]

And a union can to the extent that those are bargainable subjects and are not covered by a management rights clause, can slow that stuff down. So, Jassy’s side of that is that’s inefficient. But the union can go we can slow down the pace of change. But neither one of those two statements should be illegal.

Peter List: [00:32:51]

That’s correct. And unfortunately, the board’s so biased that they don’t see, I guess, the two sides of the coin.

Phil Wilson: [00:33:02]

Yeah. I want to give them credit. This is a pretty poorly reasoned opinion. If they rule the way that this ALJ ruled, Kaplan will be a dissent. But depending on what the panel is- those are smart lawyers on the Democratic side, and they can read this opinion and see what I see, and read the tea leaves as to what circuit courts of appeal might do with a case like this. This does not seem like the right vehicle either for overturning TriCast. The facts are terrible on this for overturning TriCast.

[00:33:55]

And I just feel like this was a result that had been decided, and then they were grasping for whatever straws they could to support that result. But this is not a well-done opinion. And we’ll see what happens with it.

Peter List: [00:34:14]

To your point earlier, it would make more sense to take a case like this up where a CEO was literally standing in front of a group of employees and said something maybe not as benign, maybe in the vein that Chassis said it, but a little bit further to be able to overturn TriCast. This was stated to television cameras, and reporters, I think, in one of the cases at a book review summit. So it’s like, how many employees actually even saw it until the union brought it up?

Phil Wilson: [00:34:51]

I could see the argument. It’s a national television program. And it’s The New York Times. It’s the paper of record. So, anybody could see it. And I’m sure Amazon employees somewhere saw it. I’m not really hanging my hat on that. But it’s just the context is very different than I’m talking to the CEO of the company right before I vote. It’s a very different type of interaction. Now, as I said before, even if those were the facts, which they’re not, but even if they were, I still think this is all totally inbounds.

[00:35:36]

I’m reading the ALJ opinion. But based on the foregoing, Jassy’s comments threatened employees because he said if they selected a union, they would become less empowered and would find it harder to get things done quickly. Those are the 2 threats. That is just so ridiculous. We’ll see what the board does with it. It would not surprise me if the board rubber stamps this over a very vociferous descent from Kaplan. And then we’ll see what the courts of appeal do with it. But no circuit court’s going to go along with this.

[00:36:18]

And then, gosh, if it gets in front of the Supreme Court. We’ve talked about this before but I think this is the biggest problem that this board and general counsel have is the sort of be careful what you wish for. They may overturn TriCast on this. If this opinion goes up in front of a court of appeals or the Supreme Court, where they’ve overturned TriCast on this set of facts, that’s going to create law that is going to be very, very different than where Abruzzo wants it to be. And that’s the real challenge that they have right now is they’re pushing the envelope just beyond recognition, and the courts of appeals are not going to go along with it.

Peter List: [00:37:12]

Well, what I hear you saying is be careful what you wish for. By the time it goes to the courts of appeal or Supreme Court, they could totally eviscerate the logic that she’s trying to push.

Phil Wilson: [00:37:25]

Yeah. They’re just going to “You know what? We think TriCast is a great idea and that’s the law of the land for the rest of time. And statements like these that Jassy made are well within the protected speech rights of an employer.” If the Supreme Court gets a chance to do that, there’s not a whole lot more you’re going to be able to do down below. They’ll set the new boundary lines. So, I think that’s the risk. CEMEX is the same thing. The Supreme Court could come down as secret ballot elections are the gold standard and we met what we said [unintelligible 00:38:10].

[00:38:11]

And that opinion, if it gets that far, is very likely not only unwind what they did in CEMEX, but they’re putting the court into a position to go, like, “Okay, we really meant it. The employer has to have committed really egregious unfair labor practices before we’re going to let an election not decide these things.” And, really, it will unwind a bunch of the theory that’s behind, you know, what the general counsel is trying to do here.

Peter List: [00:38:43]

So, talking about CEMEX for a minute, if that goes to the Supreme Court, you’re probably looking at another year or 2. And this one would be potentially another 3 to 4 years down the road?

Phil Wilson: [00:38:59]

Probably. The board has to deal with it. The board probably doesn’t deal with this before the election. So, what happens then? There’s just a lot of water under the bridge. So, yeah, you’re probably talking 3 to 4 years on this. Like you said, CEMEX, that’s in front of the 9th circuit. They haven’t had oral argument on that. That one is months away. So, yeah, it’ll be a while. And in the meantime, of course, employers are stuck with, well, what’s the law.

Peter List: [00:39:37]

Right. I was going to come to that in a second. So, if I recall the justices, there are probably 2 of them that are up there in age. So, 3 to 4 years down the road, we may have a different Supreme Court. Of course, everything’s political, so it depends on who wants the White House, etcetera. To your point a second ago, we are now operating under a new standard based on Jassy’s comments. And I mentioned this and you guys are doing it as well.

[00:40:10]

So since Abruzzo came out with their memo a couple of years ago with TriCast, most smart people out there have adjusted the way in which they explain section 9A, etcetera. obviously, there are some that might not but I assume your advice is the same as mine- parse your statements.

Phil Wilson: [00:40:31]

Yeah.

Peter List: [00:40:33]

Explain it all.

Phil Wilson: [00:40:34]

Yeah. We tell all of our team be very careful about how you describe stuff and keep it based on the law. Just explain the law. The law by itself. You just were reading out of the basic guide to the act. What does the law say? What do the cases say? Stick to that. You don’t really need to get into predictions and you don’t need to get into that sort of stuff. Just explain how it actually works. And that’s based on the law. And it speaks for itself.

[00:41:18]

But like I said earlier, this whole explain 9A, that’s not a great sales pitch for unions. I understand the point that the general counsel is making is that it’s basically just trying to trip up employers. “Well, employers like to say the direct relationship is going to change. And so, I want to make it harder for them to say that. And so, I’m going to make them explain this other thing.” But explaining the other thing does not make it sound good to unionize.

Peter List: [00:41:55]

Yeah. I tell the story once in a while that when I was a union rep, I was chief steward at the time. So, I was a union rep in a right-to-work state. So that meant we had members and nonmembers. The nonmembers are still covered by the union. And that means that even under 9A that nonmembers can’t go meet with management over their own grievance without the union being present. And I had a supervisor that met with a nonmember. Now, he correctly answered her, did not give her something she wasn’t entitled to under the contract. She wanted extra time off.

[00:42:33]

And after the meeting, she walked out of his office. I said, what did so and so want? And he explained it. And I said, okay, cool, you didn’t give her something she wasn’t entitled to. However, if you meet with her again like that, without me being present, I’m going to file ULP. And that’s section 9A. I had the right to be there.

Phil Wilson: [00:42:55]

Right. And a lot of a lot of employees in that setting- it’s a right-to-work state. I’m not a member. They may not want you there.

Peter List: [00:43:06]

Exactly.

Phil Wilson: [00:43:06]

They’re not paying you money for a reason. They want to represent themselves probably. But they don’t have that right. That went away. That’s 9A. And so, that’s the part that when you’re explaining 9A, you explain that part too, whether you want your rep there or not. And you may want to have a private conversation with your supervisor about something that’s personal. You’re trying to adjust some sort of agreements, the union still has a right to be there, even if you don’t want them there.

[00:43:42]

And if you don’t, your example is exactly right. If the supervisor meets with that employee, and the employee says, “I want it to be private. I just want to talk to you about this problem that I have.” And you don’t tell the union and give them the opportunity to be there, they can file in for labor practice. You for sure committed one. That’s the way that this works, which goes back to Jassy’s point- not efficient, not empowering.

Peter List: [00:44:06]

Right. So, what else should we talk about?

Phil Wilson: [00:44:12]

Big election coming up here. When do they open the ballots on that? I’m talking about the [crosstalk 00:44:19].

Peter List: [00:44:21]

I thought it was Friday evening. Although somebody told me earlier it might be sometime during the day around lunchtime.

Phil Wilson: [00:44:29]

Yeah. I’m not 100% sure. So, that that’ll be interesting. That’s the UAW’s next foray. I thought it’s interesting. They filed 6 unfair labor practice charges yesterday. To me, that indicates they may be seeing the writing on the wall. But we’ll see. I thought that thing was going to be close, and who knows? But they’re already setting up their CEMEX case.

Peter List: [00:44:59]

That would be interesting to see CEMEX impose a union on thousands of workers if they voted against it.

Phil Wilson: [00:45:08]

Yep. We’ll see. That’ll be a big case really either way it goes. Obviously, if they vote the union in, that victory tour will be fun to watch. And then if they lose, it’s just going to be Mercedes is this terrible employer and did all these bad things, and it’s not our fault. Anyway, that’s a big one.

Peter List: [00:45:42]

Yeah. Interestingly, I was mentioning this earlier on the phone with somebody. For all this talk about southern states being nonunion and all that, Alabama’s union density, I believe, is around 10 or 11%.

Phil Wilson: [00:45:58]

Yeah. Surprisingly, there’s a lot. So, shipyards and a lot of heavy manufacturing that’s unionized in Alabama. So, it’s definitely a lot more unionized than you would think. I do think in general, though, they’re still part of that Southerners don’t- I don’t think anybody really likes being told what to do. But there is an independent streak in the South that I don’t think is as compatible with organized labor as it is in other parts of the country.

Peter List: [00:46:39]

Well, the interesting thing with the UAW, and I did a post on this a couple of weeks ago, they have almost as many people on college campuses as they do in the auto industry. And the amount of UAW activists who are also out there protesting for Gaza and pro-Palestinian- it’s a very interesting juxtaposition on what the southern attitude is like.

Phil Wilson: [00:47:08]

Oh, for sure. Just the general politics of unions and who they contribute to and all that. And that’s not just in the South. Union members just in general have parted ways with the general view. Union leadership goes one way, and a lot of their members, a significant percentage, 60 ish percent of their members are Trump voters, while the leadership is definitely not. Whatever political viewpoint you are, like, you just need to understand. If you’re giving money to a labor union, that money is by and large going to be used to promote Democratic candidates across the country. Many of whom are in places where you don’t live.

[00:48:05]

So, that’s where your money goes. That’s where your influence goes. And a lot of people don’t really understand that. And that’s another thing that probably should come up in most campaigns that employers are sometimes afraid to get into that, but it’s a fact.

Peter List: [00:48:29]

I remember a campaign some years ago at an ammunition maker. Actually, it’s a gun maker. And I remember this young pro-union employee saying, “Deuce don’t go towards politics.” And I pulled it up real quick, and it was $10,000 to Nancy Pelosi. NRA rating was F. Just went down the list. I was like really?

Phil Wilson: [00:49:01]

The one other big one, and then we can run. What are you hearing about the Starbucks negotiations?

Peter List: [00:49:10]

Nothing other than what’s been reported.

Phil Wilson: [00:49:12]

Yeah. Me too, which I think is interesting. There’s not a lot being reported, which I think is very notable. This was such a high profile. Lots and lots and lots of videotaping the bargaining sessions and blah blah blah. There was a there was a lot of that. And it’s been interesting to see these negotiations- now, it’s early, but appear to be under control and looking a lot more like an adult bargaining situation.

Peter List: [00:49:58]

Well, you did a post on just the chaos of having- I don’t remember the number, if it’s 150 baristas watching [unintelligible 00:50:07]. It’s like, huh, this will be interesting.

Phil Wilson: [00:50:11]

Where are all those tweets or whatever you call them now? Do you know what I mean? It’s pretty interesting.

Peter List: [00:50:21]

The adults in the room had to take over.

Phil Wilson: [00:50:26]

On the union side of that. I would not have wanted to be in charge of trying to keep all that under control. Credit where it’s due, and it’s a little early, but that’s pretty surprising and pretty impressive.

Peter List: [00:50:43]

Yeah. Harnessing the cats. Now, in fairness, I haven’t gone looking on social media for any of the Starbucks workers who’ve been [unintelligible 00:50:50].

Phil Wilson: [00:50:50]

That stuff finds us. I think if it got really crazy we would see it. Now, again, it’s early. Starbucks probably hasn’t really started saying no to stuff yet. Things could definitely go differently. But even at this early stage, I still would have thought there’d be more kind of gnashing of teeth than there is. So, I think it’s interesting. I don’t know who gets the credit for that. You’ve been in contract negotiations. I have. And you’ve been on both sides. Keeping a bargaining committee quiet and keeping them together- and that could be 5 or 6 people on a bargaining committee. A 150 plus 400 on Zoom or whatever it is- that’s impressive.

Peter List: [00:51:54]

Yeah. Well, I haven’t been on TikTok. I loathe to go on there. If there’s anything out there, it’s got to be on TikTok.

Phil Wilson: [00:52:04]

Yeah. Well, hey, this is fun. Thanks for inviting me. It’s cool to do this as a joint episode. We’ll drop this to our viewers.

Peter List: [00:52:21]

As always, I enjoy having you on the podcast. I like hearing your perspective. It’s the Mozart and Metallica reference. So

Phil Wilson: [00:52:32]

Who am I, Mozart?

Peter List: [00:52:35]

I think I use Mozart with you because you used to wear a bow tie.

Phil Wilson: [00:52:40]

Yeah. I like Mozart, but I also like Metallica. So, I could go either way. I feel the same way about you. It’s, it’s always great to hear your point of view on this stuff. So, thanks for doing it.

Peter List: [00:52:53]

Thank you, sir. Talk to you soon.

Phil Wilson: [00:52:55]

Alright. See you.