Phillip Wilson (00:00.642)
Today on the Left of Boom show, I interviewed Cary Burke, who’s a partner with Lee Meyer. Cary recently switched from a large, one of the largest management side labor and employment firms in the world to a very small, what he called a miniscule law firm on the employee side. So we have a interesting discussion about kind of what’s the difference between that big move and kind of what that experience has been like. Cary, if you don’t follow him on LinkedIn, has a lot of…

hot takes on everything that’s going on in labor and employment law. So we talk a little bit, not just about some of the specific topics, but just how he writes in such an engaging way. And we talk a little bit about parenting young boys. That’s on this week’s episode of the Left-A-Boom Show with Cary Burke.

Cary Burke, welcome to the Left To Boom show. It’s great to see you.

What an absolute pleasure. Thank you so much for having me, Philip. We were talking pre-show. I feel like I’ve known you for years, so it’s such a delight to be on here.

Yeah, same. was like, yeah, I don’t think we’ve ever laid eyes on each other somehow. But yeah, I’ve been following you for probably the same time. yeah, it’s great to get you here. So first of all, if you don’t follow Cary on LinkedIn, like your first order of business is to go follow him. It’s okay with me if you pause right now, go do that, because that’s going to be the most important thing you do today. Second most important is to watch the rest of the show.

Phillip Wilson (01:33.626)
So that’s number one. But Cary, if they don’t follow you on LinkedIn and don’t know about you, tell everybody a little bit about yourself and kind of how you ended up here.

Sure, would be glad to and thank you for that kind introduction. So I am a big law refugee. left Seifarth last September, Seifarth Shaw, as primarily a management side labor lawyer and joined one of my former Seifarth partners and a couple other friends at a very small shop called Lee Meyer. And so now I’m doing primarily employment discrimination work on behalf of plaintiffs. And I’m also bringing class and collective actions, which is something that I am surprised by, but is also very, very fun.

So it’s been a great change and I have nothing but great things to say about my Cypher colleagues as well.

Yeah, yeah. I mean, obviously great firm, but two very different experiences. we’ll talk a little bit about, I’m sure there’s relative advantages and disadvantages to both. So I’m anxious to kind of hear your thoughts on that. Before we switch to that, well, so first of all, you made this big switch from, you know, the management side to the employee side. Talk a little bit about sort of what led to that and like, you your

you know, almost a year into it. you know, tell me about kind of how you’re enjoying that.

Cary Burke (02:54.518)
Yeah, no, it’s been a great change, Philip. Thank you for asking. So honestly, the biggest driver was my children. I’ve got a five year old and an almost four year old, two little boys, Beckett and Porter. Beckett, my five year old is at the age where he’s starting to notice when I miss stuff at school as an example. So, you know, he would have a choir concert or what have you and say, dad, I didn’t see you in the audience today. And after a while, that just really started to break me down.

It was tough because I had just made partner at Seifarth and had really built out a great network and had some incredible mentors like Glenn Smith and Brian Stoltenbach and Josh Dettelberg, just to name a few. And then I realized that my family really needed me more than those folks did. There’s a lot of really, really smart lawyers at Seifarth and they will continue to do great things without me, but my boys needed to see me a lot more than they

Yeah, yeah. Well, that’s great. And I’m sure they very much appreciate that as well. So you talked a little bit about your mentors. One question that we always ask guests is, I call it the hero assumption question, but sometimes the most important leaders in our lives are those folks that they saw leadership potential in us or just saw potential in us maybe at times when we didn’t

see it ourselves. And I’m just curious, anybody in your life or your career that fits that mold?

You know, too many to count. the one who comes to mind immediately is Nancy Rayfuse, who’s a retired partner from Seifarth and my prior firm, Poulson Ellie, and she’s now a professor at UGA Law, University of Georgia School of Law. I came over to Poulson Ellie, she hired me in 2015. I was probably about two and a half years in and so should have been more than a baby lawyer. But skill wise, for one reason or another, I just really wasn’t. And very quickly on, she realized that

Cary Burke (04:53.144)
but said nonetheless, Carrie, I’m gonna do everything I can to train you up. And I think with a lot of partners that really would have been empty words, but she meant it. I mean, truly, and I’m so grateful to her. And I remember one day, probably about a year into us working together, she stopped me and said, you you’re starting to get pretty good at this writing thing. And I was frankly floored and I think I almost started crying because it was so impactful. And she knew how hard I was working because we were doing all this work together.

And she still remains a very dear friend of mine. In fact, the highest compliment I think she’s ever given me was this past February, she asked me to guest teach her labor law class down at UGA Law. And I had a phenomenal time doing it. And I just thought if she was asking me to do this, man, I’ve come a long way.

Now, if I’m not mistaken, that’s your alma mater, right?

It is, yep, that’s where I went to law school, so go dogs.

All right. Well, I’m a Michigan fan and that’s where I went to school. But so we, you know, we could talk football later. anyway, so let’s let’s kind of go back to this, you know, you know, big law to, you know, I don’t know if you say small law, but like, you know, smaller law firm for sure. Yeah. What’s that transition been like? And, know, how would you say you’re home more so that obviously there’s that difference. But like what? Yeah. What are some of the other differences?

Cary Burke (06:16.438)
Yeah, it is really fun and really different. I mean, I think we would almost call ourselves Minuscule Law because it’s four of us currently and we’re having a fifth person join us on July 1st. Very excited to make that announcement. Can’t do it just yet. I think there are a couple big differences, that I’ve noticed right off the bat. First is the administrative difference. mean, at Seifarth, you’ve got…

people that can do everything other than practice law. So we’ve got the legal administrative assistants, the librarians, the paralegals, the department that can get your deposition transcripts organized. At Lee Meyer, it’s just us. And so I’ve come quickly to learn that all of that stuff that I really took for granted does take a lot more time than I realized. But the other side of the coin, I think, is that there were so many

really great teammates that I had at CyFar that were helping me on all of my matters, whether it was other partners, other associates. And we were doing some phenomenal work on behalf of some major corporations who all had a whole bunch of other lawyers that they could call on. What I’ve noticed at Lee Meyer and what really gets me up in the morning and sets my fire is the phone call we get from somebody who’s about to be indigent because they lost their job and they really need help.

where I really get excited about work is where I can help those people who I might be their fifth, sixth, seventh call and I’m the only one that’s given them the time of day. And so I think that that’s the thing that I’ve really enjoyed the most along with just having regular time with my partners. We all work in this co-working space currently and we really have this team. Yeah, I mean, we’re trying to buy a building right now but it’s just slow moving. So we’re,

are in behind this, we are in this good work law space behind a Trader Joe’s and we all kind of just talk to each other all day long and we can bounce ideas off of each other, know, hey, I had this thing come in, what do you think about that? And what was so great about Sypharth was everyone was an expert in their own thing, but they just didn’t have a whole lot of time to play those games. So it’s really nice to get back to this sort of really small team dynamic.

Phillip Wilson (08:22.816)
Is this a co-working space just for law firms or is it a co-working space just for anybody and you’re running into whoever’s chat GPTing their new iPhone app or whatever?

That’s exactly what it is, the latter. it’s so funny because I mean, we have our offices, so each lawyer has their own individual offices for purposes of privacy, et cetera. But then we’ve got like the tech bros down the hall who obviously are like coming in from a big night out of the club and getting ready for their presentation. We’ve got the sales guys and there’s a couple of personal injury lawyers in there too that we have kind of a mutual referral network now. So it really is this fun little hodgepodge of folks.

That would be fun. I’m in this entrepreneurs group and I literally like just walked in from we do a meeting that’s called Forum, but today’s was at this big co-working kind of incubator space that we have here in Tulsa. And yeah, it’s that same vibe, right? And there’s a hundred different businesses that are all working on something that’s fun or cool. that’d be a cool place to work.

There’s a really great energy and we all are sort of trying to solve the same very basic administrative problems. You know, like how do you get work in when you have too much work in? How do you manage it? Just like silly things like that that really don’t come up the same way when you have a big established firm that can handle all of those problems.

Right, that would be, so I came up in a boutique firm as well. We were a little bit bigger, not, and we had three offices at the time that I started and I opened up a fourth, but it was still a small number of lawyers and it was kind of the same thing. you were wearing a lot of hats. And I think, I’m just curious, like from a learning standpoint, one of the things that I found

Phillip Wilson (10:18.094)
in my own development was the fact that you did have to do all of the, you didn’t just hand stuff off to somebody else that was like an associate or a paralegal or whatever to kind of like wrap that stuff up for you. Like you were kind of doing a lot of those steps yourself. I felt like you, I thought that was important for my development. I’m wondering, have you noticed that yourself? You were further along in career. So maybe it’s not quite the same, but.

I’m just curious, did you notice any of that when you switched?

I think that’s a really good question. thinking about it, I think the answer would be yes. I think that I have become a problem solver in a different way, because I’m not just thinking about sort of the big 10,000 foot problems all the time. It’s also, how am I going to find time to get UPS to send this file out? So I think it’s things as small as time management to client service to really the high levels of lawyering that I’ve really had to sharpen up all at the same time, not only to save time, but to make sure that the work gets done.

Yeah, right. Right. Well, let’s get into you. you, you’re there’s never a shortage of like hot takes from, so I want to throw out a few of these and our mutual friend, Michael, who, who works here, he, he’s, you he picked some highlight real moments. So let’s, let’s kind of go through these. So the first one is this restoring biological truth bill. just talk to me a little bit about, you know, sort of your, you know, your take on that and

What are you thinking about that one?

Cary Burke (11:54.582)
Yeah, so i’m glad that you brought this up particularly in light of andrea lucas the eeoc acting commissioner’s confirmation hearing yesterday A couple weeks ago if i’m not misremembering the timeline jim banks who’s a senator out of indiana Proposed out of the blue in the midst of all of this stuff that’s going on around the world this bill that would

Like, what are you talking about?

Yeah, this idea that employers should not be able to quote unquote discipline employees for refusing to use their colleagues preferred pronouns on one side of the ledger. And then the other one was refusing to, if I’m remembering correctly, use a same sex bathroom or a unisex bathroom. And so I thought that this was frustrating on

two levels. One, we sort of already talked about it’s like, why is Congress wasting time legislating social issues when we have really important stuff to worry about? But two, this also isn’t within Senator Banks purview. In other words, he’s not an expert on any of this stuff. In fact, Andrea Lucas yesterday during her confirmation hearing said, the EEOC is in charge of this stuff. And while we appreciate

Senators trying to legislate this this is our job to take first crack at and I while I might disagree with miss Lucas on a lot of things I think that that is actually fundamentally correct That is the whole point of a lot of these administrative agencies They get the rulings from folks like the Supreme Court Bo stock is the one that I’m thinking of for this case which said that an immutable characteristic based on sex is a protected characteristic and

Cary Burke (13:36.994)
Their job is to come up with ways in which employers should abide by that. And I think Ms. Lucas’s point, which I disagree with, but at the same time is well taken, is during the Biden administration, we went very far down to what I would call the progressive side of the ledger on things like transgender rights in particular. And her view of the world, whether you accept it or not, is that there might need to be a moderation of that.

And I think that the EEOC is the right agency to be doing that rather than a senator who has taken this up as sort of a wedge issue when it really ultimately is a solution in search of a problem. And I’ll just say that because the impetus for this legislation, if you look at the website that his staff created, was in 2017, there was a teacher in Indiana who refused to use students’ preferred pronouns and was threatened with discipline for that.

He wasn’t in fact disciplined. He ultimately resigned based on his disagreement with the school district, but nothing really happened in the short term. And I think the problem here is school is a whole heck of a lot different than work. The Supreme Court has said that from the seventies onward from the Mary Tinker decision, and there are different considerations at play. The last thing I’ll say about it, Michael, is I went to a CLE about six weeks ago here in Atlanta for

Atlanta litigators and I was fortunate enough to present on it, but I heard a non-binary individual present on these issues and their point was this. There is nothing more disrespectful that one can do than something called dead naming another person. And I had not heard that term, but for those who don’t know it, it is referring to a transgendered person by their

name of birth, not the name that they’ve chosen in part of their new identity. And this person that was presenting was so serious about that and so emotional about it that I just said, you know what, if this is an easy thing to make somebody feel at home in your presence or make somebody feel respected in your presence, that’s something that at least I am going to respect.

Phillip Wilson (15:49.25)
Yeah, I think it’s, I mean, it’s, and it’s part of this sort of just greater, you know, like the pendulum swings and, you know, elections have consequences and there’s all that stuff. But I really do feel like, yeah, if you boil this down to like leadership and culture in an organization and just like culture that you would have at your firm or your church or your community center or like whatever.

Like, I don’t think people, like, I don’t see a lot of people just sort of intentionally going out of their way to make somebody feel uncomfortable and unwelcome. And I feel like that’s the, that’s sort of like the spirit that moves a lot of this stuff. And I feel like you can sort of disagree with the basic idea, but at the end of the day, so I was just on a podcast about,

employee resource groups. you know, at the core, these are groups to basically help people feel, you know, more belonging and more included. And the vast majority of these are not like, it’s not like, well, you have to fit into the only this specific box to be involved in it. It’s like anyone can be involved in it. But it’s place to make people feel sort of more included and more, you know, where they belong and they feel safe.

and they feel comfortable, right? And that, if you have a work environment or a school environment that’s like that, people are more likely to learn, are more likely to perform work well. And I sort of wish that we were more focused on that part. And then like at either extreme, Like at either extreme, the more you’re focusing sort of over there, you’re really,

moving away from sort of why, you let’s try to make this a comfortable place for, you know, for everyone to work. And that, that I feel like, and I don’t disagree with you, like that seems like more of an EEOC problem than something that should be legislated. And, you know, we’ll see where that goes, but, but that, that’s just the world that we’re, you know, that we’re in right now. Sort of related in a little bit more and kind of our, our normal

Phillip Wilson (18:16.492)
you know, spaces to traditional labor law. You know, have, we have this, there is this thing like the agency is the one that probably should be deciding a lot of these issues, not the, you know, not Congress or, you know, federal courts or now states are, you know, jumping into the fray. So the, the Wilcox decision, I want you to talk just a little bit about kind of, you know, what your thoughts are on that. But like right now what’s happened is the,

the National Labor Relations Board is basically out of business and it’s generated, as far as I know right now, so California, New York and Massachusetts are all now jumping in saying, look, if the board’s out of business, then we’re going to jump back in and take jurisdiction over private sector employers that have labor issues in our state until they turn the lights back on at the board.

Talk to me a little bit about your thoughts about that whole situation.

I think it’s fascinating, candidly, because initially when I started thinking about this, I figured that this would run into a major Garmin problem. And for those of you who aren’t particularly familiar with that, the notion is that if something could potentially be decided by the NLRB, it is within only the National Labor Relations Board’s jurisdiction first. And I think that that should spread as far as even when the board lacks a quorum.

Now, what’s been interesting recently is, and this is about as far as I can talk about it, there was a decision about a week and a half ago relating to what judges can and cannot say in public. A judge said something about immigration policy and was chided by it, about it, about what he said, and then basically appealed that discipline to the MSPB or another internal government agency, which is also not functioning like the NLRB is and like the EEOC currently is not too.

Cary Burke (20:14.712)
Given that the MSPB is not functioning, this judge then had the smart idea to go into federal court and say, hey, I’m trying to appeal this discipline. I tried to do it the right way, but no one’s home. And I want to appeal it now. And this court basically said, well taken, you the government cannot say on the one hand, this is the avenue that you have to go down in order to get redress and then close that door. And so I think that these states are taking these really interesting positions that at least have

a single judge agreeing with them currently. Now functionally, I’m not sure how this is ultimately gonna work, because the other thing that I was thinking about today in preparation for the show was, Balkanization. And that’s the whole point of Garmin and why it exists in the first place. We don’t want state courts in particular coming up with their own individual labor laws. And that makes very good sense. I mean, as an Amazon, as an example, could you imagine if they had to deal with 50 states labor laws along with 50 states employment laws? just…

It really wouldn’t work as a matter of fact. And so while I think that what New York and California and Massachusetts are doing makes some semblance of sense, I’m not sure that it’s going to get off the ground. And I also think that given Crystal Carey is now actually nominated as general counsel, we should be getting, and the rumblings I’m hearing are that we will be getting actual nominees to the NLRB soon. Now, whether they actually make their way through the help committee and

advice and confirmation is a whole other ball of wax, but I’m not even sure that these state agencies, to the extent they assert jurisdiction, are going to get very far before the NLRB comes back into the frame.

Well, you are more optimistic than I am about quickly the board goes back in business. I’m not sure there’s like a lot of energy or excitement about getting them back in business. So we’ll see. I’ve also heard the same thing that nominees are eminent being nominated though. mean, Crystal’s been nominated for months now and I haven’t heard anything about a hearing and that’ll be the same situation with

Phillip Wilson (22:22.03)
you know, with the board nominees and it’s, you know, we’re the clock is ticking, but Marvin Kaplan’s term is up in the end of July. And I’m, you know, I’m not sure there’s even, you know, we may just have one board member here before very long. So it’s, yeah, we’ll, you know, we’ll see. I would, I would push back a little bit on what I like. Look, I am definitely in the camp of

We should have a fully functioning five member National Labor Relations Board in place like right now deciding cases. Like the system should be moving. But that said, this current system is just broken. it is and unions complain about it. Employers complain about it. It is just, is not working. you know, we have, you know, we have not every state.

has an agricultural labor relations act, but lots and lots of them do and they do it differently. And it provides the opportunity to experiment and to try different things. And I’m not so sure that some experimenting, now, my preference would be that we’re experimenting kind of like with the, you know, maybe the states in the middle of the country, then on the edges of the country, because I probably won’t agree with their experiments as much. I…

I mean, I’m not sure that just sticking to this current system and process is necessarily where it’s at either. I will, you know, the last administration, you know, they did exactly what they said they were going to do, which is they pushed the envelope as far as they could, you know, in favor of unions. And normally what would happen right now would be the envelope would be getting pushed just as far as it possibly could, you know, to undo the

what happened the last four years, that I’m not sure is a very productive way to do this. And that’s sort of what we’re stuck with right now. But it’s…

Cary Burke (24:29.544)
That is very well taken, frankly. And I think that we would probably agree that the pendulum swings have only gone higher. And that is incredibly challenging for both unions and employers to plan for. You know, what you might have been getting at is you probably saw a Roger King’s proposal for a six person semi nonpartisan labor court.

I’m all in favor of experimentation because I agree with you that what we have now just isn’t working. And especially the current iteration of the NLRB, even setting aside the quorum problem, they don’t have enough money or enough bodies to actually manage all of the charges that are coming in. And I think Bill Cowan, the acting general counsel’s point was very well taken by a lot of the management and union community when he came in and said,

We’re very good at a small subset of things, not all of the things that the board has asserted jurisdiction over over the past four years. We need to get back to doing that small subset of things. And so while we are experiencing this correction, it’s just not happening fast enough. I guess the only thing that I would suggest is if you have these state agencies, you still have to fund those and put warm bodies in them too. And that is potentially a problem given just the budget deficits everywhere. But conceptually, I do really like that idea.

I mean, the overwhelming workload of these regional offices is partially kind of self-inflicted by doing things like this expansive grab of what the agency sort of sees as its purview, which is way, way, way beyond anything that was ever imagined when the statute was originally drafted or has even really been imagined.

any time other than maybe the last 15 years. And then also making the cases unsettled, which is another kind of thing that happened last time. You would have a whole lot less work if you did both of those things, right? And if you actually tried to settle cases versus try to make it impossible to settle cases, which is what I feel like has happened here recently.

Phillip Wilson (26:51.214)
I, yeah, I, that idea of kind of like a standing labor court or, or even, you know, the EEO and discrimination laws, which, which, to me, it covers, you know, an even much broader birth than, like, in terms of, you know, you know, there’s a small number of people that are actually in unions or trying to organize a union versus, you know, versus the people that are impacted day to day by, you know, discrimination, for example.

And those just go to federal court. can go to the agency, like that, like there’s, we do other stuff without having this, you know, this court system. And I’m just not sure that’s not, you know, not better because I’ll say this, there’s a lot of garbage that happens, you know, that if you had to go in front of a federal district court judge,

and argue about this stuff, would not like, most of this stuff would not be even filed in the first place. You know, it’s a system that kind of creates its own chaos.

That’s actually a really good point. I really like what you just said about that because so many charges that I saw on the management side were extremely ticky tack. And it was honestly always worse when there wasn’t a union on the other side and it was either like, you know, a group of folks who called themselves organizers and didn’t really know what they were doing or somebody who just went on the internet and realized that they could file a labor board charge. And those are the ones that you couldn’t even call the other side on and say, hey, what are we really doing here? You know, I was talking to you

This had to have been about nine months ago, no, over a year ago now, at last year’s ABA midwinter labor law meetings. And Mark Stoltenberg, who’s a super smart lawyer at Morgan Lewis, basically said, well, if we get rid of the board, we’d still have the act. And he suggested exactly what you did is you could just bring those claims in federal court and a lot of them would just be bounced out at a motion to dismiss. And this would all move a whole heck of a lot faster. And I thought his point was very well taken.

Phillip Wilson (28:56.812)
Yeah, I mean, it’s I feel the same way. Like it’s I’m not you know, I think I think the board if it was it was if it was being sort of run, you know, Cowan, think is making the right point, right? It needs that needs to shrink down kind of what it’s you know, what it sees as its purview and then just like efficiently move those cases along. And to be honest, like if those cases got moved along efficiently, there’d be less.

less people filing sort of crazy claims because it’s like, it’s just going to get thrown out. Why get into the trouble? I think there’s just because it takes so long, then now there’s kind of an incentive to file it even if it’s just to delay things. And it’s just not a good system. All right. I got us down this deep rabbit trail. How about let’s do a little on Stereocycle.

I know you’ve also talked a little bit about your thoughts around that whole area. Give us a couple quick thoughts on what you think about that.

Sure, I would be glad to. So one of the fun things I got to do at Seifarth with the Summer Associates when I was there was basically make a stericycle chart. So every decision that came out for an ALJ and the NLRB on work rules, we were tracking it for a while. And there was no rhyme or reason to any of them. Right. I mean, you would get decisions on the one hand throwing out civility rules. And on the other hand, you would get a decision holding up, upholding, excuse me, a rule that you need to respect your colleagues in the work.

Now, I couldn’t figure out any rhyme reason or pattern behind the dismissal on the one hand and the affirmance on the other apart from the judge that you got and the draw that you got at a hearing.

Phillip Wilson (30:48.878)
And just the vibe that that judge got, right?

It was extremely vibes based. love the way that you put that. Yes, that’s exactly right. And really the funny thing was if you think about Stericycle as a decision, it is quite literally logically impossible to comply with. Because one of the things that you have to show is you’ve put forward this rule that has a substantial business justification and that it cannot be tailored more narrowly. Now as a matter of logic, you can always tailor something more narrowly.

You can add an example or another way that the rule can be violated. And that was the point that I always made to judges when we got up to the hearing and they were just like, yeah, fair, but this is the rule right now. And so, you know, the problem was, I think, and I’m hoping that we get away from this because it is nigh on impossible for employers to make and enforce basic rules is you as an employer can’t have any certainty under stereotype. You know, there used to be this generalized idea that people would show up to work

Yeah.

Cary Burke (31:50.956)
work nine to five, do their best to be nice in the workplace and then they would go home. Well, if you can’t even have a basic civility rule anymore, like what are we doing? I mean, my old boss, Glenn Smith used to say, should we just get rid of work rules? And maybe under the stereotype decision that might not be too far off.

Yeah, and it’s the reason, you know, it’s the reason the board drives courts of appeals crazy because they like they do the same thing. They look at it they’re like, what the hell does this even mean? And and then you you in addition to be it can’t be more narrowly tailored than it’s also, you know, it’s interpreted from the viewpoint of like like a reasonable employee couldn’t possibly perceive this as as an anyway, like infringing on their

Section seven rights and it’s like, well, I mean that every rule and they’ve proven it through, you know, lots of ALJ decisions at this point. It’s like any rule given sort of those two things, you can figure out a way to go like, well, you know, if somebody thought something like that, even though that thing had never been enforced, no one had ever asked the question about like, hey, does this rule mean that I can’t.

you know, go to this union meeting or whatever. Those are the questions. If none of that has happened, why are we talking about this rule? And I think that’s frustrating. It’s frustrating to the employer community. It’s a cute move to do if you’re on the union side and looking for an argument. But by the time it gets up to, you

grown adults that are looking at this, they’re just like, what are we doing? And I feel like as an agency, there’s a whole pile of these cases now that are going up there where you’re going to have courts of appeals. I feel like if they really do their job, they’re going to create law that is really counter to kind of what everyone was hoping for, right? This is going to be the law of unintended consequences, feel.

Cary Burke (34:03.306)
I completely agree with that. you know, just to play a little bit of inside baseball too, when I came over and started doing plaintiffs work, we were getting a little cutesy for a little while before the labor board changed over. We would add in these sort of rule charges just to gum up the works while also filing claims in federal court. And very quickly after President Trump was elected, the labor board regions mostly just stopped processing these cases. I mean, because they’ve realized that look,

Yeah.

the new AGC and the GC thereafter are not gonna be taking these positions. And so I think they’ve at least done a little bit of self-correcting, but I’m hoping that we actually get an actual reconstituted board who can set a little bit of this to rights, because it just doesn’t make sense to put these sort of parameters on employers who are honestly having defended them for 12 years, all trying to do the right thing with very limited exceptions.

Right. think that that’s right. And look, if you’re bad actor and, you know, enforcing a rule to discriminate against someone who’s engaging in activity, like that’s totally illegal. And if there’s any facts to support that, like that, that, you know, that will be enforced. That is the cases that should be getting chased around. So, I mean, what do you think is going to happen in the Wilcox case?

That’s really interesting. I I think the Supreme Court has already told us what they’re going to do, which is uphold President Trump’s ability to terminate her and then Kathy Harris, as well as some other folks. And quite frankly, I mean, I think that that’s right in the way that the case law has developed. mean, the NLRB is not like the FTC from the 1910s. They are making all sorts of really consequential rules. I mean, and the decisions that they make have significant impacts on employers throughout the

Cary Burke (35:55.126)
And so I don’t think that you can argue with a straight face that it’s this little administrative agency that just sits in its lane and processes cases because the previous four years before this administration, it certainly wasn’t doing that. And I don’t think there’s a reasonable argument that it was. Now, I think that the really interesting question that came out of that stay decision is what do we do with the Fed? And the judges basically said, leave the Fed alone, that’s different. But as a matter of logic, it’s really not.

Yeah.

Cary Burke (36:23.116)
And so I’m very curious what is going to happen with Jerome Powell. I I think the heads of the banks, and this is where I’ve started to get over my skis, would absolutely throw a conniption if the president tried to terminate him. we sort of get those tweets every other day that throw shade at Jerome Powell, to say the very least. So we’ll see. It’s interesting, and it’s been fun to watch.

Yeah, yeah, of course, that’s not like squarely in front of them. But, you know, obviously it’s come up and so and I think it’s interesting that they even sort of like waded into that, you know, in their decision. like that’s yeah, you’re right. I mean, is the Fed really all that different? Like their decisions for sure have, you know, executive

like policy implications. so that’s right. I mean, that’s what’s at the core of that case.

I think what we really got in the stay decision on the Wilcox case was sort of an advisory opinion from the court saying, hey, listen, you guys may want to make this argument too. Please don’t make us do this.

Yeah. All right. So last, let’s just kind of hit a little bit on just, I mean, we already sort of touched on this, but just, just at a sort of broader level. mean, and now, you know, you’re representing employees. But like, what, like, where, do you see labor law headed? And, you know, if you were, if you could like, just throw the crayons on the floor and start over, like, what, like, what, what, kinds of recommendations would you make?

Cary Burke (38:04.876)
With respect to labor law, I I think that we really need to get back to first principles. The whole idea was to maintain labor peace. The NLRA is originally enacted was really a carefully crafted balance between an employer’s right to run its business on the one hand and employees rights to organize for better wages, hours and terms and conditions of employment on the other. And really when we started to wade into things like our communications on social media protected.

That’s when I think we started to get a little bit too far afield. And so I got this question, this must have been six, seven years ago now, I was on a panel at Georgia State and somebody asked me this exact same thing. And it was right around the time where we were going through the ACA litigation the second time. And I said, I think we just need to repeal and replace the NLRA and start over and really just make a point that it should relate to union management disputes, I think, and not.

kind of the broader panoply of workplace laws. Because I mean, look, I’ve seen it and I’ve done it now being on the plaintiff’s side. Section seven and the predictions of the NLRA, I read them broadly enough that they can impact basically any workplace irrespective of whether there’s organizing. And the whole animating point of the statute was to really protect organizers in a lot of ways. And that’s now what it’s used for.

Yeah, right. Well, and, you know, if you read the statute in the way that unions want it read, and certainly, know, Jennifer Abruzzo wanted it read, you know, that the idea was like, everybody should be organized. I mean, I’ve heard Prouty say it, like everybody should be in the union, which is definitely not what the statute says. And, you know, it wants to facilitate organizing for people who choose to be organized. Like that’s for sure motivating. But

If everyone was supposed to be in a union, then just make that the law. That’s not what the law is. so pretending like it is and then trying to interpret everything to somehow bootstrap it into the statute, it’s created this monster that we’re living with now. so anyway, I’ve already…

Phillip Wilson (40:20.046)
talked about, I think it’s broken. I’m not 100 % sure how to fix it, but I’m not even 50 % sure how to fix it, but I don’t think that the current way we’re doing it is working.

Yeah, and your point is very well taken because I think with General Counsel Brito in particular, you know, there’s a difference between paving the way for organizing and putting your thumb on the scale. And I think we were much closer to the latter in the last administration and that just cannot be right. I mean, you cannot force people to be part of a union and that if you do, that’s not going to work. They’re not going to buy in and they’re not going to want to do the things that make unions successful.

Right. Yeah, totally agree. All right. So a couple of just like fun questions. First of all, you you write with a lot of edge. So just tell me a little bit about kind of, you know, where does that come from and how do you I feel like your your LinkedIn posts and articles that you write, you know, they really sort of break down labor law in a way that’s practical, that’s easy to understand. So just tell me a little bit about

Yeah, where does that come from and how did you sort of like get to that point of writing?

Yeah, really good question. So I’ll go back to the mentor that I named at the beginning, Nancy Rayfuse. mean, one of the things that she always told me is, if you can’t explain what you’re doing to your third grader, you don’t understand it well enough. And so I have always taken that to mean, if I’m going to write advice to somebody, I want them to be able to understand it without having to give me three phone calls first. And that’s kind of what I have taken and run with on LinkedIn. Now, it’s also become sort of a creative outlet because

Cary Burke (42:01.506)
you may see some snark for me every once in a while. And it’s just one of the ways that I can get it across. And part of me enjoys that. And it’s kind of fun running into people in the legal community saying things like, really enjoyed your post the other day. Obviously I can’t like or comment on it, but wanted to let you know directly. And so it’s, on top of everything else, it’s been just a great way to meet other lawyers in the bar and sort of get my name out there. But I really do enjoy the teaching aspect of it too.

Yeah, yeah. think, I mean, it’s a really important topic and it impacts, you know, everybody, anybody that works. And so it’s, it’s really, you know, it’s, it’s valuable and it, and it’s a, it’s a, it’s a unique skill that you have, in a, in a talent to be able to communicate that in a way that’s fun, that’s engaging. and I, Hey, I’m a, you know, I’m a giant fan of snark. that, you know, that’s always fun as well. All right. So last,

our mutual friend Michael threw this into the end of the mix. He saw a post where you talked about your kids like racing in dino undies. Let me hear about this.

man, so I’ve got two little boys, they’re five and almost four and they wake up at seven every day all full of piss and vinegar and then crash out at seven every night. But in the interim, they are all gas, no breaks. And so their genius idea the first week of summer, as soon as they got out of school was to put a bunch of pillows at the bottom of our skit staircase. And I’m looking at it now, I think it’s about 12 steps. And they were just jumping from the top in their dinosaur underwear. And you know,

I do my best not to do the whole millennial helicopter parent thing where I’m so worried they’re gonna break themselves, but I was very worried they were gonna break themselves. you’re like, they’re actually gonna themselves. Yeah, so fortunately all was well. And this just came right after my almost four-year-old Porter fell off of our deck and broke his arm. So he had just gotten his cast off and is now jumping off something else.

Phillip Wilson (43:47.662)
You guys

Cary Burke (44:03.48)
So, know, he’s just got a degree of fearlessness too that we sort of have to monitor.

Yeah, yeah, four year olds, that age bracket is very much, they’re, any sort of, what do they call that in law school? Like the attractive hazard or whatever? Yeah. Right, yeah, they’re just, they’re like heat seeking missiles for that stuff.

That’s the attractive new sense exactly.

Cary Burke (44:29.61)
Exactly right. All right. Hey, Kate. That’s what I’m about to go do now. My wife and kids are at the pool, so I’m about to go jump off and see them in just a couple minutes, which I’m very excited about.

All right, nice. Well, I don’t want to get in your way. So, Cary, it was great to see you, great to finally meet you face to face. It’s virtual, but at some point, hopefully we’ll run across each other at an ABA event. And thanks again for joining us for the show. Great conversation.

No, really appreciate it. Thanks to you and Michael. I’m very grateful for the time and this has been a lot of fun for me. So hope to see you all again soon.

Yeah. All right. Thanks, Cary.

Cheers.

Phillip Wilson (45:09.582)
All right, and we are done. Thanks so much, that was great.

Thank you so much.