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Phil Wilson: [00:00:03]
Grant Pecor, welcome to the Left of Boom show. It’s great to see you.

Grant T. Pecor: [00:00:07]
Pleasure to be here. Thank you for the invitation.

Phil Wilson: [00:00:10]
Yeah, I’m excited to have this chance to talk. So we’ve known each other a long time and we’ve worked on stuff together for years, but we haven’t had a chance to have you on the show. And I’m really looking forward to being able to share your perspective with our audience. So why don’t we just start off and introduce yourself a little bit — tell us about Grant Pecor.

Grant T. Pecor: [00:00:28]
Yeah, so Grant Pecor. I am the head of the labor relations group for Miller Canfield, which is a Detroit-based law firm. My practice is primarily in the Midwest, but I do coast to coast depending on what’s needed. I kind of grew up in healthcare. I do a lot of healthcare — whether it’s nursing homes, ambulance companies, hospitals, even some physician groups, to the extent that’s starting to be a trend. But I do every industry out there.

[00:01:05]
I’ve been on the ABA committee for the Developing Labor Law for about 20 years, which is how I think we met. And yeah, I’m a labor nerd at heart. Kind of a little-known fact — my grandfather actually wasn’t an attorney, but he was a labor relations professional for a company that made windows. He used to run around to all their plants. Apparently, I learned later in life — my grandmother told me — it was in my blood.

Phil Wilson: [00:01:26]
I share the same background. My great-grandfather was a 25-year machinist, and then of course my dad got into the business. Yeah, the apple didn’t fall too far from the tree.

[00:01:43]
Well, you mentioned healthcare, and I think that’s a great place to start. Healthcare bargaining, healthcare organizing, you mentioned physicians — some off-the-beaten-path groups in healthcare organizing. Maybe talk a little bit about what you’re seeing in the healthcare space from a labor relations standpoint.

Grant T. Pecor: [00:02:05]
I mean, I think you’ve got to look at where our country’s been for the last five, ten years — with the pandemic and everything people went through. I joked that I had one of the first board cases for a nursing home in the Detroit area — one of the first nursing homes where they had COVID-positive patients — and three-quarters of their staff stopped coming to work.

[00:02:25]
I literally had to tell a Sixth Circuit judge in the middle of oral argument, when he asked why my client didn’t call the union, that my client’s testimony confirms she was too busy getting ice to put on bodies to see her own kids. It’s really — and I joke — that’s the only hearing in my career where I made all of my own witnesses cry. The PTSD and the burnout caused by that intense pressure on the individuals in that profession — you’re not simply going to snap out of it.

[00:03:14]
And I think we’re seeing the lingering effects. That burnout in the industry has made it really, really ripe. You’ve got a lot of people who are already agitated, going to work with a raw nerve. And then you’ve got a huge labor shortage — a lot of people were taken out of the profession, a lot of people didn’t go into the profession, and you had all these training shortages nationwide, particularly with RNs.

[00:03:40]
And so you combine that with organized labor who’s looking for a workforce that can’t be outsourced. You can’t send mom and dad to have surgery overseas — I mean, you can, but you can’t go visit them very easily, and it just makes it a lot more complicated. So to me right now, healthcare is like the number one area where organizing is really gaining traction. There may be higher ed, but as far as union efforts and the acceptance of the messaging among the people who are receiving it — you just see a lot of work in healthcare right now, particularly in hospitals and long-term care.

Phil Wilson: [00:04:09]
Yeah, we do a lot of work in healthcare too. And I think that experience — it wasn’t like things were great before COVID, right?

Grant T. Pecor: [00:04:18]
Oh no, there was a shortage before COVID. We had a national shortage. We went into a pandemic and it only got worse. And then everyone wants to go back to work like, when they reopened things, we could just pretend it didn’t happen. And I love to do that, don’t get me wrong. But it goes back to — there’s a lot of people that have a lot of lingering after-effects from that experience.

[00:04:48]
And I don’t think, as a profession — I don’t say this jokingly — people need therapy. People need counseling. They have severe trauma that they haven’t recovered from. And I don’t think the health systems or the individuals have done a good job of getting that addressed.

Phil Wilson: [00:04:57]
Yeah. And then layer on top of that just the business of healthcare — the way reimbursements happen, pharmaceutical prices, on and on and on. It’s just a massive, massive problem, which of course leads to giant problems at the bargaining table.

[00:05:17]
So let’s start with healthcare bargaining and then we can work our way to healthcare organizing. What are you experiencing at the bargaining table in healthcare?

Grant T. Pecor: [00:05:32]
Yeah. So in Michigan in particular right now, the big influence we’ve had is that within the last two years, the Teamsters organized a 10,000-member group of hospital workers in the Detroit metropolitan area. A series of hospitals all went into a single bargaining unit. And the Teamsters went from a small player in the healthcare field to all of a sudden matching the numbers of the SEIUs or the Michigan Nurses Association, which were the two big players in healthcare before that.

[00:06:00]
Now the Teamsters are all of a sudden the ones people are looking at. And this 10,000-person unit has really got everybody’s attention. And unfortunately what it’s done is — the level of militancy that has come forward, whether it’s civil disobedience or strikes or picketing — everybody’s kind of trying to one-up the other. The nurses union used to be the professional union, and they’re worried they’re losing market share to the Teamsters, because the Teamsters are perceived as the thugs, the strong arms that can force an employer to do things the nurses union, perception-wise, can’t.

[00:06:30]
Now between you and me, I think they both battle pretty hard equally. But when you’re dealing with that perception among groups that might want to pay you dues, and you’re competing against other big players in the market — you’ve seen just each side ramping it up. There’s been a lot of picketing and a lot of strikes in the state of Michigan in the last year, I believe purely because of that competition between the labor groups.

[00:06:58]
You add that on top of the nursing shortage, and staffing ratios become a big argument. It was in New York, it was in California, it’s been that way in Michigan. And a lot of it has to do with the nursing shortages and the fact that it doesn’t matter how much you pay — if a nurse isn’t there, there’s no one to hire. You’re stealing nurses from your competition depending on who’s paying more that week, but it doesn’t fix the problem. And then you add nurses who are burned out and don’t want a heavy patient load. It just makes it even worse.

Phil Wilson: [00:07:37]
Yeah. So you’re involved in what’s kind of one of the major healthcare disputes right now. Maybe talk a little bit about what the issues at the table are that generate disputes like this — and you don’t have to get into all the specifics, of course, though a lot of this is public knowledge. But what are those issues?

Grant T. Pecor: [00:08:15]
Yeah. So I’m involved in a strike. They went on strike September 1st. So they’re over eight months on strike. And in our case, it’s a lot of different factors that came to the table. The hospital involved came under new ownership, and it was the first time that hospital had been able to negotiate their own contract. So they wanted to get some things in place that put them more on a system standard — where they’ve had great success with those levels of benefits and pay systems.

[00:08:45]
And then you also had a Teamster group who probably wasn’t as familiar with negotiating outside of their prior experience, which had really only dealt with one prior health system that may not have regularly challenged them. They don’t truly understand the bargaining process. A lot of people think bargaining is a give and take, and there’s some of that involved, but they lose sight of the fact that if you look at the actual definition of what it means to collectively bargain under the Labor Act, the statute specifically says neither party has to agree to any proposal nor make any concession.

[00:09:37]
And in our instance, some of the staffing ratios the union was demanding were simply things the hospital system couldn’t agree to. Think about this — if you agree to a staffing ratio with a specific number, even if the unit promises never to do this, it’s not enforceable. If they get an arbitrator to say you violated that and they issue a cease and desist order, you now have a court-enforceable order that can stop you from taking patients depending on how many nurses called in that day. And as a hospital system, there are a lot of factors that go into how many people you can take care of —

[00:10:04]
namely the acuity level of the people you’re caring for. If you’ve got patients who don’t require your immediate full-time attention, which most patients don’t, you can have larger patient sets and do it very successfully with the staff available. But some of these staffing ratio proposals aren’t manageable. It puts your system in a situation where you can’t provide care.

[00:10:28]
And that’s the thing about staffing ratios that people don’t understand — it’s not necessarily about better care, because I don’t think people intentionally provide bad care. It’s about providing less care. When you get these ratios, you’re limiting what you can and can’t take on as a healthcare employer.

[00:11:03]
But as far as our case — I think the Teamsters came in treating it more like a UPS negotiation. And they lose sight of the fact that in healthcare, if you strike, your employer doesn’t have a choice. They either have to move the patients or get new workers. And the problem in either instance is — if there are no patients, there’s no job to return to. If you’re replaced, there may be no job to return to. No one’s getting fired, I want to be clear, but in this situation the union really lost sight of that.

[00:11:38]
And the reason you see most healthcare strikes resolved in a couple of weeks is because that’s short enough that new hires or replacements aren’t really entrenched in those positions. But after a strike goes on six months — when you’ve got somebody who’s been working and showing up every day and prioritizing those patients for the last six months — it’s now really hard for the hospital system to say, “We’re going to bump you out of that job and let Sally, who hasn’t been here for six months, come in and take your spot.”

[00:11:58]
If it’s not a legally required situation, and if it’s an economic strike — which so far no finding has been made in my strike to the contrary, and we would dispute that it is otherwise — they can be replaced. And that’s pretty standard.

Phil Wilson: [00:12:14]
And there were two features to that too, right? Wasn’t there a component of this where the prior agreement had some provisions that were basically getting gamed?

Grant T. Pecor: [00:12:29]
Absolutely. Yeah. They went into the negotiations with two things on their mind. One — the union felt that the contractual staffing ratios weren’t firm enough to be enforceable under the law. They were guidelines. And frankly, that’s what they’re supposed to be. You look at healthcare ratios, they’re all guidelines, because it all depends on the needs of the patient. If the patient needs more, those guidelines are out the window — you might have to have a one-on-one ratio because that’s what that patient needs.

[00:12:58]
But in this instance, the unit was filing — I think they had like 450 grievances they had filed just peppering this poor hospital. And what they would do is they’d call in for each other, get premium pay, and then trade shifts. So you could work the same number of hours but get an extra eight hours of pay because you’d get the premium for a call-in, and then somebody else would trade shifts and get the same premium. I forget how many absences exactly, but it was like 50 — each person was averaging like 50 call-offs a year. It was pretty obscene.

[00:13:44]
And again, I don’t want to say all of that is fraudulent. There’s a lot of burnout, and there are people that are calling off legitimately. But in this instance, the new hospital ownership came in — they’d only been there about a year before the contract opened up — and it was pretty clear to them the level of abuse that was going on with some of the contractual premiums and the call-in procedures.

Phil Wilson: [00:13:58]
Yeah. Well, there were guidelines at other hospitals where they had nowhere near this level of call-outs, right? So it was clearly location-specific.

Grant T. Pecor: [00:14:03]
Correct. Absolutely. This was very market-specific, very hospital-specific. I call it an institutional mentality — it was learned for this location. And anytime you have to change that kind of institutional mentality, that’s a tough pill to swallow. Unfortunately, it leads to a lot of labor disputes, because people think, “We’ve been doing it this way for a long time.” When you ask them to change, they don’t like it — particularly if it costs them money or makes them work more.

Phil Wilson: [00:14:32]
Yeah. Well, let’s broaden this beyond this particular dispute. I think there are some features of this that are broadly felt. The first one — and it’s not just in healthcare — is this general view that even if I don’t think I’m going to necessarily win or get what I want, I kind of don’t care. I want to punish the employer. There’s that mentality. And there’s also this mentality that like, I also don’t like my union — I think my union is being too cozy with the employer. And so we’re not going to ratify the deal you just recommended because we don’t think you worked hard enough. Maybe talk a little bit about how those dynamics are playing out.

Grant T. Pecor: [00:15:23]
So the ratification one in particular — I will tell you, every bargaining contract I go into, I warn my client: you need to be prepared for this to be put down and voted down at least once. And what you just said is so accurate. There are a lot of people going out there who want the union to validate their existence. And so they tell them, “Basically, we’re going to vote this down once to make sure you got me the best deal possible. It’s only after I’m absolutely convinced you couldn’t do any better — after we sent you back to do better — that maybe I’ll ratify it.”

[00:15:51]
But we’re seeing a lot of failed ratification votes out there right now, primarily because I think there is this huge distrust between the employees and the unions representing them. And I always tell people — the hardest part of negotiation is figuring out the needs versus wants. But what’s really difficult, and where the most successful negotiators truly earn their money, is when you start to identify what are really the employees’ issues versus somebody else’s issue. And what are the issues employees are going to be willing to fight over?

[00:16:20]
How do you avoid the fight by addressing what their actual concerns are, versus an agenda somebody else might be bringing to the table and disguising as the employees’ issue? Staffing ratios, frankly, I think are one of those issues. Because if you ask any nurse worth their salt, numbers don’t mean anything. It’s all about how much those patients need.

Phil Wilson: [00:16:53]
Yeah. And there are other bellwether issues — sometimes it is pay, but you get these outrageous demands, like a 40% pay increase. And in some cases the unions created that expectation themselves by organizing a group of workers around “you need this massive increase.” Then when you get to the bargaining table and the employer doesn’t have to agree to an outrageous demand, the union is kind of stuck. They’ve promised they’re going to deliver, but they actually can’t.

Grant T. Pecor: [00:17:37]
Well, and the COVID bumps were a good example of that. Post-COVID, a lot of people got a big increase — at least one big one — with the inflation and the worker shortages that existed. What we’re seeing now is a lot of those post-COVID deals are starting to expire. Employees want another COVID bump. And they don’t understand that the current market doesn’t necessarily justify that. We’re seeing a little bit of inflation, but not the kind of wage inflation we saw post-COVID.

[00:18:07]
And I think that’s a big thing people don’t understand — they go into these deals thinking they’re going to get a second bump because inflation is up, and they don’t understand it’s not the same type of inflation.

Phil Wilson: [00:18:17]
Yeah. Let me pivot slightly. Before we get to the organizing side of this — one of the things I think you’re really great at, and that really good negotiators have to understand, is: you can’t just always win with the union. They need to look like they’re winning too. And when they don’t look like that, you’re basically turning their membership against them. So talk a little bit about the politics of that and some of those relationships.

Grant T. Pecor: [00:18:53]
I actually have a line I’ve used a lot in my most recent negotiations and in this strike. I tell people: “You’re going to dig your foxhole. That’s fine. And know that I will help you save face where I can. But don’t dig so deep that I can’t reach you. Because at that point, all I can do is throw dirt on the body.” In this strike, I truly have no ability to help anymore. Everything I had was exhausted months ago and there’s nothing left to give.

[00:19:21]
So now I’m just waiting for either common sense to prevail or a Hail Mary. My last longest strike before this was 13 weeks — and this one broke that record significantly. But in that prior strike, it ended totally out of the blue. They just called me up and said, “We’re taking the deal. We’re coming back to work.” And I was like, how did that happen?

[00:19:48]
And I think part of it is because they fight the hardest right before they give in. So you don’t necessarily always see the resolution coming. That may be the case in this strike too. But it’s a very difficult dynamic to play — trying to figure out how do I help them save face?

[00:20:15]
You know, I go into bargaining not working there — I want them to blame me, because I don’t have to go to work and I’m not going to run into these people in the grocery store. I try to leave a place better than I found it when I go to the table. Blame is one of the many services I provide. However, at the end of the day — you can’t dance alone, you just look awkward. And if the other side came to fight, sometimes all you can do is fight. To me, it’s a last resort. But fortunately, I’m relatively good at that too if we have to go there.

Phil Wilson: [00:20:44]
Yeah. And sometimes there’s the Kabuki theater of it too, right? We need to have this fight so that everybody feels like we got to the point we needed to get to. And there’s a time and place for that. Obviously that requires a lot of trust. A critic would say, well, that’s just management and the union being too cozy and collaborating. But union leaders aren’t stupid. They understand what’s possible and what’s crazy. And sometimes you should listen to the people you hired to represent you.

Grant T. Pecor: [00:21:41]
Well, and part of the problem — and I don’t want to throw your viewers off — but right-to-work has now become a majority of our country. You put yourself in the union’s shoes where more states have right-to-work laws than don’t. And especially in those states, they’re afraid to tell their members “no” or “that’s not reasonable,” because if they do, those members are going to stop paying and you lose a customer simply because you disagreed with their position.

[00:22:08]
And so from a management perspective, I’ve got to figure out how I convince that person I can help them — but they have to be able to talk to me. I’ll say — I’ve got one really good negotiation going on right now outside the Cincinnati area. The rep from day one has reached out, and we’ve been able to have discussions along the way. He’s told me what he needs and I’ve been able to help him at the table. All they’ve got to do is set me up for a softball sometimes. I don’t have to give him the proposal. All they have to do is put him in a place where he can make a demand knowing that I can probably agree to it — and he looks great.

[00:23:05]
We ultimately get agreement in the areas where we thought we could, and you can work together. That’s a really important part of the relationship. I absolutely agree with that. Unfortunately, that takes a high-level negotiator on both sides. And sometimes you just don’t have that trust.

Phil Wilson: [00:23:36]
Yeah. And it takes time to build that trust, and it can be destroyed easily. And in the regular day-to-day administration of labor agreements, it’s the same thing, right? Don’t surprise them with something you knew was coming for months. Collaborate with them. Don’t treat every grievance as World War Three.

[00:24:04]
There’s a lot of just basics that we train our clients on, but a lot of these basics just never get taught to people in union operations. And then you end up with grievances that turn into arbitrations that never ever should have gotten there. And a lot of that’s just trust and relationship.

Grant T. Pecor: [00:24:27]
Well, and people also don’t know how to step back and look at a dispute objectively. Take a termination as an easy example — they want their job back and back pay, and you don’t want them back in the workplace. But sometimes there’s a lot of commonality if you actually take a step back and look at it objectively.

[00:24:52]
You know, sometimes you can find that the union members didn’t like this person as much as the union realized. And by the way, this person’s already got another job. Maybe you can find a settlement. There are a lot of different ways to compromise in a deal, but you have to understand — sometimes it just takes time for those opportunities to identify themselves. The deal isn’t there on day one, but on day 30, you can get to a settlement. And sometimes you just have to let that process play out.

[00:25:20]
But I don’t know that people — as busy as everybody is — have the patience to let that happen. And frankly, that’s one of the most difficult traits of a really good negotiator, particularly in collective bargaining where emotions play such a big role. You’ve got to be patient. If you don’t have patience and thick skin, you’re not going to get a good deal. You’re going to get a deal that’s going to annoy you for the term of that deal. You need to let the process play out and understand that a first proposal may not be a final offer.

Phil Wilson: [00:26:01]
Yeah, great. Let’s talk a little bit about the organizing environment now. I think it’s a really interesting time coming out of COVID. There was this massive increase in organizing — the Starbucks case, a lot of these other retail cases. What are you seeing on the ground in organizing campaigns? Anything new, or what trends are you noticing?

Grant T. Pecor: [00:26:30]
Yeah, for me, I probably see it most in higher ed. The retail thing seems to be flaming out a little bit. I don’t think there was a lot of success getting contracts, and that has had a significant impact on their ability to keep organizing those groups. And also the COVID pandemic has cooled off some — you have such turnover anyway in retail that it’s hard to keep people consistently engaged. Other than cannabis and some of the other more progressive areas, I haven’t seen that level of organizing in retail.

[00:27:08]
Higher ed, where you’ve got a lot of hot-blooded youth — for lack of a better description — I see a lot of action and activity around college campuses in particular. You’ve got the Organize the South campaign, the SEIU, the Union for Southern Workers — that seems to be pretty active, still trying to get into fast food and other industries. And then I’ve seen a lot of activity in industries where there are still worker shortages — law enforcement, healthcare, and the skilled trades. Those three areas still have huge shortages and wages are going up on a pretty consistent basis.

[00:28:23]
Post-COVID, I think people really learned to get by with less. And work-life balance became such a bigger piece of what people valued going into the pandemic that it seems to be a big piece of this now. It’s not just that you’re going to work. It’s that you’re getting paid as much as possible to do as little as possible, and that they’re leaving you alone when they’re not paying you.

[00:28:35]
More time off, working them too hard, not paying them enough for what they’re doing — those are probably the top complaints I see in organizing activity. And the point you made earlier about wanting to punish the employer — I call that the bully model. They feel like their employer has mistreated them, and so they want somebody that’s bigger, badder, and meaner to come in and mistreat their employer. I see a lot of that, particularly in workplaces where you have one or two supervisors who just don’t understand the relationship process. It blows everything up.

Phil Wilson: [00:29:12]
Yeah. And you have a bunch of Gen Xers managing Gen Z and Gen Y, and there’s just a massive disconnect. I mean, you’ve got kids graduating college right now looking at this economy — and in particular, this particular moment in time where AI is reshaping everything, and they’re just like, hey, this is garbage. We don’t care what deal you guys signed up for. We just want to watch the town burn.

Grant T. Pecor: [00:29:57]
Well, and I want the on-demand economy. I was able to go to school virtually — why should I actually have to show up for work instead of working from my mom’s basement? Or why can’t I just maximize my return, work at peak demand times to get more money from the Uber or food delivery company I’m working for this week?

[00:30:27]
My teenage daughter and her friends go on dates and they’ll deliver food — it pays for their dates. That’s a date, and they make money doing it. I would never have done that; it wasn’t even a thing when I was a kid.

[00:30:57]
But I do think you see a big disconnect. And not to bad-mouth Gen X, because I fall into that group — for us, we’re the anti-pampered generation. We rode in the backs of pickup trucks, drank water out of the hose, came in when the streetlights came on. Our kids have grown up in an environment where the internet has basically taught them that everyone’s a pedophile, everyone’s going to kidnap them, and you can’t leave the house because it’s not safe. So there’s this helicopter-parent philosophy those kids bring to the workplace, and they just don’t understand: hey, look, we expect you to actually go out in public and talk to strangers and do your job consistently when we schedule you — not just because you want to.

[00:31:26]
There is a big disconnect on just getting people to talk to each other and understand those dynamics.

Phil Wilson: [00:31:34]
Yeah. We’re coming toward the end of our time. Going back to campaigns like Starbucks — you mentioned a lot of these folks aren’t getting contracts. I think a big component of that is this whole problem of: at some point, people think the world should be different, and their vehicle to fix that — which a union has already promised them will work — is this union thing. So they sign on and organize, wanting a union because a union is going to fix all these broken things. And then when they actually sit down at the bargaining table, it’s like — wait. These aren’t even subjects the company has to bargain about.

Grant T. Pecor: [00:32:21]
And that is, I think, the biggest surprise. You get all these people convinced to go and challenge an employer based on some socialist website that seemed awesome. “What do you mean? Of course we should spread the wealth. They’ve got so much and I should have some of that, so I don’t have to work as hard. And this union is going to make all that happen.” And they realize — hey, by the way, when we go to the bargaining table, whether or not the state funds abortion or addresses other political issues they don’t like, those aren’t talked about. Or, lo and behold — I don’t get to pick my supervisor.

Phil Wilson: [00:33:01]
Yeah. Or whether this employer has a particular customer, or any of that.

Grant T. Pecor: [00:33:06]
Yeah. I just did a pro bono thing for a nonprofit client — a homeless shelter for youth. And the employees organized thinking they were going to govern and dictate what services that organization provided. That’s not even a subject of bargaining. And let me tell you, was that a wake-up call early in the process.

Phil Wilson: [00:33:26]
I think it’s interesting because there was this massive push toward unions as the answer. And I have a feeling that the outcome of that over the next few years is going to be — like, that was totally wrong. We were lied to. That’s not a solution.

[00:34:00]
I think you’re going to end up with a lot of folks that have to decide — that union thing was actually a dinosaur that probably should have been left for dead. We revived it a little bit, but it actually isn’t a good solution. And unions may have done themselves a disservice by jumping on the bandwagon and promising folks exactly what they wanted to hear, even knowing they couldn’t deliver. After experiencing non-delivery, I think you’re going to see a lot of decertifications. A lot of people saying, “Yeah, I don’t want to do that anymore.” Unions may live to regret the sort of heyday they just had.

Grant T. Pecor: [00:34:34]
Well, part of the problem is organized labor has followed the same business model for decades, regardless of the results. If you or I had a business that had lost as much market share as organized labor has in this country, we wouldn’t be in business anymore. At a certain point, you have to evolve and figure out how to do things differently. And I think you are going to see that at some point — unions are going to have to.

[00:35:00]
And right now, what I’ve seen is they’ve become more political animals than service animals. And the less service they provide and the more politics they get involved in, the less people want to pay them. Because I can hire a lobbyist — if I want a lobbyist, I’ll hire a lobbyist. Same thing for employees who want to support certain campaign issues; they can contribute money to those causes directly. But if you’re going to represent me in the workplace, you actually have to focus on representing me in the workplace. You can’t be a lobbyist trying to do both.

[00:35:28]
And that’s where, when the rubber hits the road, people are like — you’re not doing what you promised me here, and you really can’t influence the things out there that you said you would. They’re not doing either one of them very well.

Phil Wilson: [00:35:43]
Yeah. Well, Grant, I really appreciate you taking the time. We should do it again. But thanks so much for joining us.

[00:36:01]
Before we go — just any quick-hit advice. What would you give to someone going into a bargaining situation, either a first contract or a later contract?

[00:36:10]
And that reminds me — before we get to that, there’s this Faster Labor Contracts Act, which is actually very close to getting a vote in the House. Maybe just a quick comment on why that might not be the best solution, because one of the things unions say — because of everything we just talked about — is: we just need to be able to force these contracts to happen faster. So they’re attempting to pass a law to do that.

Grant T. Pecor: [00:36:40]
Well, if you force somebody to have a contract by a specific deadline, what they really want is to force them to agree to their terms. If you put a deadline on somebody, the union can just drag their feet and wait until the deadline. And then if you don’t agree to the deal they’re offering by that deadline — oops, you’re in violation of the law. Too bad, so sad.

[00:37:00]
So putting a deadline on things doesn’t actually help either side. It just gives leverage — more leverage to one side than the other. And it distorts the bargaining process. It adds a factor outside of the normal economics of the relationship.

[00:37:20]
On the flip side, right now I don’t have a lot of clients that want to go to the bargaining table and bargain for eight or nine months. We all have better things to do. The reality is, if you’re not getting a deal done, it’s because one side or the other has dug in on an issue the parties genuinely disagree on. And I go back to: what does the definition of bargaining say? Neither party has to make any concession or agree to any proposal. Well, the Faster Contracts Act is really just an effort to negate that provision of the National Labor Relations Act.

[00:38:10]
Because it says — even though you don’t have to agree to anything, if you haven’t agreed by this date, now you have to. Technically under the National Labor Relations Act, an agreement isn’t required. You just have to try to get a deal. It can be a deal on your terms or their terms — it’s whoever has the economic leverage. But the law and the courts have recognized that the federal government cannot impose a contract or any term of a contract on an employer.

[00:38:10]
But what happens if you put a deadline on it? What are the consequences for not meeting that deadline? And how do you hold only one party responsible when the other may have been the one that caused it? There are a lot of problems with that.

Phil Wilson: [00:38:21]
Yeah. And there’s the constitutional problem — an arbitrator empowered by the federal government is going to decide the terms and conditions under which you employ people. It has all kinds of problems. Plus this idea that it’s going to happen in 120 days — first contracts take a long time to bargain, and that’s not because everyone’s dragging their feet.

Grant T. Pecor: [00:38:49]
No. And I tell people — what are your labor costs? If you bought a house based on most people’s labor costs, you would use a lawyer. There are a lot of intricacies and nuances that have to be worked out in those contracts. Grievance procedures, time-off procedures — there’s no one-size-fits-all package. Every workplace is different.

[00:39:17]
And put yourself in a new worker’s situation. You’ve never done this before. You’re familiar with how much you make an hour and maybe some of your benefits. But you don’t know the legal nuances of FMLA, of USERRA, of paid leave laws — or what are the seven tests of just cause? You don’t know any of that. So now you’ve got to talk through all of it at the bargaining table and understand why what you’re asking for might not even be in your own best interest. I joke that half of what I do at the bargaining table is just explain to the other side why what they’re asking for isn’t actually what they want and might actually be to their detriment.

Phil Wilson: [00:39:51]
Yeah.

Grant T. Pecor: [00:39:55]
You add a deadline to that, and a lot of those discussions get rushed. It just can’t happen. And I can’t say enough bad things about how detrimental that would be. And look — I have better things to do than waste time at the bargaining table. I assure you, if negotiations are dragging out, it’s only because my client has told me we’ve got an issue we can’t give on, and the other side has said they can’t give on it either. Putting a deadline on that just doesn’t recognize the reality that people sometimes genuinely don’t agree.

Phil Wilson: [00:40:25]
And I’m not opposed to — if you do have an employer that is actually stalling on purpose, refusing to bargain in good faith — having an arbitrator set the terms of the first contract as a potential remedy for that. But —

Grant T. Pecor: [00:40:50]
I think you still have takings issues there. The federal government can’t take property without due process, and you can’t dictate what the market is. But I will say — in Michigan, in the public sector, we have something called fact-finding. In fact-finding, it’s kind of like arbitration, only the fact-finder issues a written report making recommendations and findings of fact with regard to the parties’ negotiations.

[00:41:19]
The theory is you’ve got a neutral report that gets made public. And then neither side is going to just ignore it — either you bow down to the fact-finder’s report because of the public pressure, or your normal economic powers are going to prevail over the public pressure. One of the two. But it’s that non-binding aspect — it’s kind of like super-mediation where it gets publicized instead of made confidential. That might be a better way to get around the takings issue.

[00:41:48]
And I’m a fan of mediation because, in my opinion, the mediator can come in and say the things that neither party can say for fear of disrupting their client. So fact-finding really would be a super-mediation. Unfortunately, we just dismantled the agency that might be good for doing that.

Phil Wilson: [00:42:00]
Yeah, right, exactly. Well, hey, I really appreciate your time. Thanks so much for joining us. We definitely need to do it again. Grant, thanks for joining us on the Left of Boom show.

Grant T. Pecor: [00:42:13]
Thank you very much for having me. Appreciate it.

END OF TRANSCRIPT [00:42:13].