You are listening to the most comprehensive source for news and views about today’s unions. This is laborunionnews.com’s Labor Relations Radio and your host, Peter List.
0:17
You want answers? I think I’m entitled. You want answers? I want the truth! You can’t handle the truth! Hey, thanks for turning on and tuning in to Labor Relations Radio. I am joined today rather excitedly by Phil Wilson from the Labor Relations Institute. Phil, how are you today?
0:45
Great, Peter. It’s good to be with you again.
0:47
Well, I thought this would be a good episode for you and I to do together because we’ve had this conversation in the past, which is the reversal of the Tricast decision by the National Labor Relations Board. And I thought it would be kind of interesting because I know that there’s a lot of
1:04
employers out there and probably consultants, et cetera, that are thinking now with the election over, there’s going to be Kind of a relief or sigh of relief that the NLRB wouldn’t be coming down with these draconian decisions.
1:19
What are you talking about?
1:21
The biggie last week where everybody’s still freaking out. But to that point, you know, I had a conversation with John Hyman last week that we’re probably not going to be seeing much relief from the National Labor Relations Board’s decisions over the last three and a half, four years for maybe a year or perhaps longer.
1:44
And this one just coming out last week is one in which we may not see a reversal for a very long time. unless the Supreme court finds that the NLRB is, or yeah, the NLRB is unconstitutional, right?
1:59
Yeah. I, I don’t know. I mean, I think it depends a little bit on certainly, certainly the last time around, um, it took Trump a while to sort of get, you know, get nominees in place and in particular labor nominees in place. Um, I, I think after the,
2:21
after the Peter Robb and Abruzzo sort of switcheroo that happened, I think there might be, it might be, it might be quicker, I think, than people, I think it’ll be quicker than it was last time. Now, it still might be a year or so, but if you think about it,
2:42
And there’s a little bit of energy around going ahead and testing this dual protection of the board members kind of like right off the bat. So I’ve been thinking about that. I’ve been hearing about it. And so that could sort of speed things up a little bit. You also have a…
3:03
Maybe comfortable is the wrong way to put it, but you’ve got a few seat majority in the Senate, it looks like. So nominations should go through more smoothly. You’ve already got like a pre-vetted Dietlberg nom. Even if he doesn’t get voted on in the lame duck, he’ll probably be able to get voted on quickly.
3:24
So I think you can pretty quickly end up with – with a board majority, let’s just say by the end of the first year and maybe even sooner than that. So if that happens, then now you can start reversing these decisions. I think the other thing that happens is as soon as Abruzzo goes,
3:46
a lot of these cases rely on the general counsel sort of like making the argument. So that will stop. And then you’ll have the new general counsel kind of like reversing course as far as what’s even getting presented to the board as the general counsel’s arguments in some of these cases.
4:06
So I think it’s going to happen quicker than it did last time.
4:12
They’ve still got to wait on the cases, right? Wait on the appropriate case to bring up and then get argued, then get to the board. So that’s quite a ways down the road.
4:23
And I haven’t talked to John about this. I’d be curious his view on it. But the other thing to just keep in mind, this general counsel has… like there are a ton of cases set up on a lot of these issues that are already like in the pipeline, right?
4:41
So if you do reasonably quickly get a Republican majority, you could then start taking up these cases where the issue’s already been set up. So that’s another reason why I feel like it could be a little quicker. It should be quicker than it was last time.
5:00
Well, To that end, with the ones that are in the queue right now or set up to be heard and decided upon, we’re still waiting on a captive audience ban. So if that does happen, that’s going to be the law of the land until it gets reversed through another case sometime down the road.
5:18
Yeah. I mean, in this case, they had the opportunity once again to outlaw captive audience meetings, and they didn’t. So they’re declining to do that. Now, they may just be waiting for the right case, but I don’t know why you wouldn’t do it in this case if you’re really committed to doing it.
5:36
Right. Yeah. So let’s talk about this case a little bit. To me, this one, like you and I, I think both expected this to happen at some point, which was the reversal of TriCast. And It goes to the point of maybe a scalpel versus a baseball bat when employers or their agents are presenting information.
6:01
And there’s a couple of issues in that. One was the Section 9A, and I think there was something about the futility doctrine. And all of this stuff, if somebody is communicating with employees and And you and I probably both know of instances or have read about instances where somebody comes in there to explain, you know,
6:23
the relationship change once you’re unionized and they don’t go all the way. Or if they’re talking about collective bargaining or even status quo, they don’t go into parsing out the statements. And that’s where in this case, I think the employer name was Siren, but they’re doing business as a Starbucks. Right. Right.
6:42
right and you know they got dinged but and the interesting thing about this and just in the footnotes on the very first page the respondent which is the employer had asked for prouty and wilcox to recuse themselves and of course they didn’t
6:59
which goes back to like the craig becker days of old so now what’s that so that’s a
7:06
nice pull that’s from the way back but
7:08
Well, yeah, it’s been the same issue and actually the same union, right? Yeah, for sure. And Becker said…
7:14
This has been coming up a lot in these SEIU cases, and they’re not recusing themselves in any of them.
7:20
Right. And why the Republican side of the board hasn’t made an issue of it, or even the employers, maybe they are once they get appealed up to the courts. But, yeah, this is one of those issues. It’s like, you know, one side’s doing it and the other’s not.
7:36
Yeah, well, I mean, they definitely were – I mean, it’s getting brought up. It’s not as full-throated anymore because I think it’s been happening for a while, and no court so far has said they should be recusing themselves from these cases. But anyway, it’s an issue and they’re continuing to preserve it. So that’s good.
8:01
Obviously, the meat of this is the TriCast. You mentioned… I mean, this is really… This has been a back and forth over 50 years or more around do you judge these statements by employers and by unions, by the way, because it’s the same thing. Do you judge them kind of case by case?
8:27
and we are going to parse through every single statement that’s made in a campaign and we’re going to decide whether or not it’s factually correct or not whether it’s truthful and then and then beyond that you know then there’s this this this
8:41
additional thing of like is it threatening okay so it used to be in the old days like you would look at every single statement and it would be case by case and if you said something that was a lie or was wrong that by itself could be an unfair labor practice. And eventually the board goes like, look,
8:59
we’re going to get out of the business of calling balls and strikes on every single statement that a union makes or every single statement that an employer makes. And just in general, we’re going to let people communicate in these campaigns and they’re going to say some stuff that’s wrong.
9:12
And they’re going to say some stuff that’s that’s like not technically the law. And as long as what they’re saying is not a threat, is not clearly an unfair labor practice. It’s like, we’re not gonna call balls and strikes anymore. We’re just gonna let people communicate. And that makes a ton of sense because before that,
9:36
And now after this case, basically what happens is we’re going to go back to case by case. So every single time an employer says anything that relates to this relationship with the union, now the board is going to have to evaluate, okay, what exactly did they say?
9:53
Did they quote chapter and verse from the National Labor Relations Act properly? And if they didn’t, then we’re going to say that that’s an unfair labor practice or objectionable conduct. Kaplan did a dissent around like they shouldn’t even be able to reach this issue in this case. But that’s sort of like the area that we’re dealing with.
10:16
And so they clearly said, we’re going to go back to the old days where we’re going to look at these statements, every single case, and we’re going to parse them. And then we’ll decide… whether or not it crosses the line. And that is a super inefficient way to do this. These statements are not threatening.
10:40
These statements aren’t always accurate. But this whole idea of, look, when a union gets voted in, it significantly changes the relationship that the employer has with the individual employees. Like that is absolutely a factual, true statement. And the idea that that is somehow threatening or a threat that you’re going to take away, you know,
11:05
this conversation or whatever that’s protected by 9A, like that is not a threatening statement.
11:12
Yeah.
11:12
So let me interrupt for a second, and this is more for the listeners. What we’re talking about with Tricast and the relationship change, I’m going to read to the listeners, but of course you’re stuck here listening to me, the section of the Basic Guide to the National Labor Relations Act that explains
11:30
the relationship change and now with this new decision says you need to go a step further and explain it a bit more. So this is from the Basic Guide to the National Labor Relations Act, where it says, once an employee representative has been designated by a majority of the employees in an appropriate unit,
11:47
the act makes that representative the exclusive bargaining agent for all employees in the unit. Go down a little bit further, it says 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.
12:09
Now, that’s where most people stop, and that’s that baseball bat approach. However, just the next line down says Section 9A provides that any individual employee or 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 bargaining representative, provided that one…
12:34
The adjustment is not inconsistent with the terms of any collective bargaining agreement, then in effect. And number two, the bargaining representative has been given the opportunity to be present at such adjustment. So that’s the Tricast decision that are the new one, actually, that says now you’ve got to include those two caveats. Right.
12:56
So we talked about this previously, you know, and as a former union rep, I was very familiar with that because I actually filed or I had a conversation with a supervisor that bypassed me in having a discussion with a non-member in the bargaining unit. And this applies to both right to work and non right to work.
13:15
Of course, I was in a right to work state. Right. So what the board is now saying is you’ve got to include number one and two in there, which isn’t a big deal. Like, you know, since this first came out in a Bruzos memo, we’ve been communicating this in slides and explaining it, you know, yeah,
13:33
you’ve got to have the, the union has the right to be there. So in fact, that changes the relationship right there. Right. Cause you’ve, you’ve now got that third party sitting in there.
13:44
They have a right to be there whether you want them there or not.
13:48
Right.
13:49
So what is like a more fundamental change in the direct relationship than you have to include somebody that you may not even want to be in there in that meeting?
14:01
It’s the old joke. You know, it’s like having your mother-in-law there.
14:04
I mean, it’s like, this is the part that like this whole thing, you know, like this kind of statement that they want to outlaw is when you say in a meeting with employees, like, look, when you vote in a union, they become your exclusive representative. What does that mean?
14:21
That means that you have basically selected them to be your voice with the employer, to speak on your behalf, to negotiate on your behalf. Like that’s what happens. And that fundamentally changes the direct relationship that we have right now, where those issues, if you want to bring them up to us, like you would,
14:40
you would just bring them to us and we can have an individual conversation and then we can like figure out sort of what’s our path forward from that conversation. um that that that last part is what they’re making illegal here because you don’t
14:54
use the magic words of 9a to say i mean you can still come and talk to us don’t you know we’re not saying you can’t come and you know present a grievance but Whatever we talk about cannot violate the agreement, and the union has a right to be present at that meeting whether you want them there
15:14
or not. So that’s the 9A thing. But the part that they leave out is while you have a right to present your grievance, the employer does not have to – there’s not an obligation for the employer to – listen to that, they can say, well,
15:35
we want this to go through the grievance process that’s in the labor agreement. So while you have a right to bring the issue to your employer, one of the things that Marvin Kaplan brings up in the dissent is they’re saying that by saying that the direct relationship changes,
15:54
that it’s a threat because like the employer’s taking something away. But the thing that they’re taking away is basically, you know, and the language is a little bit weird. And there’s a second circuit case that Kaplan cites that says like, look, it says a right, like the employee has a right to bring the grievance,
16:15
but there is not a… commensurate obligation on the part of the employer to like resolve that grievance in that meeting. And then there’s these restrictions that they put around it as well, which is that you can’t violate the contract. You got to allow the union to be representative to be there. But the union remains your exclusive representative.
16:36
And if the employer were to go like, look, we just want to deal with this through like the grievance procedure or whatever, like that is another possibility. So while the employee can bring an individual grievance, that isn’t even like an obligation. And so it’s like – they’re creating this threat out of nothing.
16:58
Like it’s not a threat to say that the relationship changes. It dramatically changes. That’s a fact. And then all they’re really trying to do is basically – this is really just going back to the whole employer speech thing. They are just trying to make it where –
17:14
Everyone is scared to death to even talk about the subject because you’re going to be found to have committed an unfair labor practice. It’s a prior restraint on speech, essentially, like you have a right to talk to your employees about what changes when a union comes in. And, you know,
17:29
they’re just trying to put up every single possible roadblock to you ever exercising that right.
17:35
Well, let me let me ask you a related question, and this is one in which I’m curious as to why no one has brought this up. And as you know, third parties can file charges against both employers and or unions. Right. So I’m thinking of the Teamsters Constitution, for example,
17:54
and if I’m dealing with a Teamsters oriented campaign. like you and I and everybody else would normally go through the Teamsters Constitution. Well, there’s a section in the Teamsters Constitution, as well as a couple more, that specifically states that the union becomes the sole and exclusive bargaining agent for the members, and they get the right to present,
18:17
process, and adjust any grievances on their end. So that, to me, would seem as though that’s infringing upon Section 9A as well, the Teamsters Constitution itself. I’m surprised nobody’s brought a charge against the Teamsters as employers have had their handbooks being accused of violating the law.
18:38
Why aren’t union constitutions doing that or people doing that with union constitutions?
18:43
Yeah, good question. I mean, yeah, it certainly seems like it is not allowing you to bring your individual grievance because 9A basically says that last part of the clause that you were just talking about, you know, while the union has a right to be present, the union doesn’t have the right to adjust the grievance.
19:04
Like you have the right, you know, the way 9A is written, like you have the right to adjust the grievance and the union has the right to be present at that meeting, they’re there basically. I mean, they’re obviously representing that individual member, but they’re also They’re representing the union, like the rest of the bargaining unit.
19:22
That’s why they have a right to be in that meeting. But yeah, you’re right. If the team’s constitution says, yeah, actually, you don’t have a right to adjust that grievance either. You’ve given that right up to the, uh, to the union. Um, yeah, I mean, it’s, it’s an interesting question because,
19:38
so you have basically waived nine a by becoming a member of the teamsters,
19:44
right?
19:44
Where you get to adjust your grievance individually.
19:47
Right.
19:47
Interesting point.
19:49
And I’m just wondering why some third party hasn’t filed a ULP on the teamsters constitution.
19:54
Maybe one of our intrepid listeners might be the one anyway.
19:59
So the other thing that I saw in reading that was the futility doctrine. And this is another area that if you’re not going in there with a scalpel to explain the national labor relations act or the way the law works and, and collective bargaining, um, you’re going to get tripped up. And that I don’t think has changed.
20:18
The futility doctrine has been around regardless of the board. So they may have…
20:24
Yeah. Quickly explain that. So like you cannot when you’re presenting about these changes in the relationship, you can’t also, you know, it’s a it’s a threat to say, you know, no matter what you do, it’s it’s futile. Like it’s you know, we’re not going to like you can’t say we’re not going to agree to any of these
20:44
things that the union is promising. So like, why would you do this anyway? That’s that’s like futility. So. yeah, that doesn’t change, but like, that’s a threat. So yeah, this is really, there is like a futility component and it’s talked about a lot in the decision, you know, but, but it really goes back to where I started,
21:03
which is this, which world do you want to live in? Do you want to live in the world where we are going to parse these like non-threatening statements that are just like inartfully said that don’t, you know, quote, like the incantation of 9A specifically, are we gonna look at those on a case by case basis?
21:27
Or are we going to kind of live in this world that we’ve lived in for over 40 years where we’re not going to require every single person that’s speaking to have like a PhD in labor law and know the words of every clause of the National Labor Relations Act inside out and quote them?
21:48
And instead, we understand, like, people are going to explain things a little bit wrong. And as long as they’re not, like, straight up threatening, that’s going to be okay. And that applies on both sides. Like, here’s the other thing. You know, this one, of course, applies to employers. But if you carry this theory to its logical conclusion,
22:10
like, misstatements by unions are also unfair labor practices. And that would be, like… That would be the other point here. And so do you really want to live in that world? This is the same kind of debate that we have about handbooks. A handbook provision that has literally never once been enforced and probably not read by anyone,
22:30
do you want that to be an unfair labor practice that, oh, we found something that although it clearly had no impact on this particular situation that we’re looking at. We don’t really like the way that it’s worded, and therefore we’re going to say you’ve committed an unfair labor practice.
22:46
This is another in this sort of line of things. And again, the whole point of it is really to just make this area sort of so scary that nobody wants to even say a word about it. And it’s unfortunate. Hopefully we won’t live with this one for very long because it gets overturned.
23:05
By the way, even talking about, sort of having to wait for a Republican majority to come in, this also, I’m sure, will be appealed. And so it’ll be in front of a court of appeals pretty soon. That’s another place where this could also get overturned. Member Kaplan makes several good points about you know, look,
23:27
they’re overturning a case that’s an unfair labor practice, like 881 case, when that’s not what is in front of the board here. So they’re sort of opining on all this stuff that doesn’t even apply to this particular case. They didn’t even apply the decision to the facts of the case that’s in front of them.
23:43
So that basically all of this is dicta. And he’s done that on some other recent decisions. But, you know, he’s kind of just making the point, look, you know, They’re obviously in a hurry, and they’re kind of putting the pedal to the metal here to get some cases out.
23:57
That’s particularly going to be true now as the administration is changing again. So they’re just like – they’re going to grab for straws and try to get these precedents overturned while they still have a shot at it. And so we’ll see whether the courts of appeals – What they think about like that line of reasoning as well,
24:20
because they should they could just go, yeah, we’re not going with the they should not have reached this issue.
24:27
We’re reversing process that out for a second. If my recollection is right. So this gets appealed to the a circuit court of appeals. They would then remand it back to the NLRP. Is that right?
24:40
They could. I mean, they could just reverse and just that could be the end of the case. OK.
24:46
Well, in both cases, if they were to remand it, it would go back. And by the time it gets back down, it would go to a different board.
24:52
It would get to a Republican majority board, most likely.
24:55
Right. That’s an interesting twist. I think they are very surprised at the election outcome and they didn’t see it coming. And now they’re going to be facing an entirely different world. And I’m seeing a lot of the headlines. Unions are freaking out right now.
25:14
Yeah, I mean, yeah, I mean, maybe a little beyond the scope of today’s episode, but yeah, yeah, a second term, you know, Trump labor world is, is, and it’s going to be a reaction to the, to the most pro union president, you know, in history. Right. So, yeah, that was Biden’s promise. He definitely delivered on that.
25:38
And I can certainly imagine sort of an equal and opposite reaction by Trump. Now, Trump, I don’t think he’s as focused on labor stuff as he is on other things. And he and, you know, like he invited, you know, Sean O’Brien to to speak at the Republican convention. And so so there’s.
25:54
There’s certainly some evidence that he feels a little bit more different and closer to labor. Lots of union members voted for Trump. So it may not be an equal and opposite reaction. But you have to think that he’s going to want to unwind a lot of the stuff that the Biden administration did, including in labor.
26:17
And if that’s the case, I mean, and they’re already talking about taking away It’s not just this sort of dual protection for the board members and the ALJs, but they want to take away a lot of the civil service protections of just like government workers in general.
26:33
There’s a lot of talk about significantly reducing the size and scope of the federal government. In order to do that, you’re going to have to probably get rid of government unions. So there’s… There is certainly evidence that would point you toward this is going to be a much
26:51
more sort of aggressive on the labor front administration maybe than the first Trump administration was.
27:00
Well, I, I was listening to, I listened to podcasts where I’m walking the dog in the evening and I was listening to Vivek Ramaswamy, if I pronounced that right. And he raised a couple interesting points where, and I think this is what’s going to be different in Trump 2.0.
27:17
as opposed to the first time Trump didn’t realize he was going to win the first time he kind of came in green. And now listening to Vivek with regard to the civil service issues, they have the Loper Bright decision and a couple others out of the Supreme court
27:36
that makes it much easier for the president to come in. And I’ll use the term draconian cuts, but basically reshape the federal government and Immediately. I was like, wow, I didn’t even think of the Loper Brighton SCOTUS and all that stuff. And so given what happened the first go around and this time,
27:57
Trump’s got a lot more people around him who are and he’s got the experience who are more laser focused. I think, you know, come January 21st, we’re going to see a lot of stuff coming down the pike.
28:11
Well, I mean, I know that, you know, I know they spent an entire, you know, campaign trying to walk away from Project 2025, but there’s a lot in there that I am sure will be policy, or at least that’s going to be the direction that they’re going to go.
28:26
They may not sort of chapter or verse that whole thing, but like there’s a lot in there that I think are the directions that this administration is going to want to go. And then again, I think… you know, the Biden administration and Nabruzzo in particular sort of showed the way, right?
28:44
Like there’s a lot of things that never would have really been considered as options that now are like clearly on the table, you know, because the administration was so aggressive. And I think because of that, like, yeah, you got to anticipate that there will be a, you know, similar reaction going the other way.
29:07
Well, and yeah, I’ve mentioned this a couple of times on other episodes. If, for example, Trump comes in on January 20th and by the afternoon of January 20th fires a Bruzo and they go to challenge it, all they’ve got to do is dust off her arguments.
29:21
Oh, yeah. I mean, that one’s done. Like, that has all been litigated. He clearly has the right to do that. I am sure he will do that on day one. And he’ll have the general counsel’s office by, like, day two. is going to be where trump wants it you know you’ll have an acting general counsel
29:42
that is going to be aligned and so that will that’ll occur quickly um the board seats themselves is a little bit of an open question and i think the issues that the issues there first of all is does steelberg get cleared during the lane duck
30:01
probably not because they’re going to want to package that with yeah with mcferrin
30:04
right um
30:06
And if, like, if McFerrin gets confirmed through some, you know, Schumer pulling a rabbit out of a hat, then I think the same day that Abrizo gets fired, McFerrin gets fired, and maybe all of the Dems get fired, and they go ahead and just, like, let’s go ahead and litigate
30:29
and we’ll put the question squarely on the table of is this dual protection thing constitutional that would be the way to test that like directly all these other cases like it’s on it’s you know it’s an issue that’s there but it’s not necessarily squarely on the table like it would be if you did terminate a board
30:47
member but that could happen quickly and and you know what would happen what would happen in those cases is there there would be an injunction case filed you would pretty quickly get a decision from you know that district court as to whether or not that move is is
31:06
lawful they’re gonna that’ll get appealed but like you you could see that’s kind of an emergency situation so that case is likely to get get heard. I mean, it’s not going to be like right away, but that case will be heard pretty quickly, like compared to some of these unfair labor practice cases that have to like wind
31:26
their way through the board for years before it ever gets in front of a court of appeals. These cases would be set up like right away. So I think if I’m on the, if I’m on the union side at this point, I probably don’t want Farron to get to get reconfirmed.
31:45
You’re going to have a Republican majority anyway, but just try to drag that out in the Senate as long as you can. And don’t squarely put this issue of dual protection on the table. Now, Trump could fire… Prouty or Wilcox, you know, on day one, too. So that, you know, that that’s still there.
32:07
But I think if Trump can get three seeds, I’m not sure that they necessarily try to start that that big fight right off the bat.
32:15
Well, and and he’s got bigger fish to fry and within two years. So here’s a question. I got a text from a mutual friend last week that after the election and the question was, is this going to have an impact on the labor consulting business? And my answer is yes, I think so. Pretty, pretty sure.
32:41
And to the point where I would think, what’s that?
32:47
I mean, yeah, but in what way?
32:49
Well, I would think that like the first time unions are going to go back on the defensive and they’ve got some momentum over the last three or four years. You know, they’ve got the Starbucks campaigns and the Gen Z workforce and all that sort of stuff.
33:01
But as the economy starts to slow down and you start seeing a Republican board start having an impact and it’s not as friendly these days that I would think the unions are going to go Back to either they’ve either got to double down and start spending more money on organizing or they’re going to fall back even further.
33:24
Yeah. What’s your thoughts?
33:25
I think I’m probably a little more like sort of just practical the way I think about this, but just, I mean, employers have been getting very conservative, you know, with the CEMEX case and all of this sort of, you know, gnashing of teeth around mandatory meetings and stuff like that.
33:46
Like employers have been getting a lot of conservative advice. That’s not to say it’s wrong advice either, but it’s just, you know, given the kind of the current operating environment, employers are really struggling with how full-throated to be in their campaign communications and they don’t want to trigger an immediate bargaining order.
34:09
There’s a lot of the things that I think that would have been a little bit more typical, that would have been more reliant on consulting help that employers have pulled back on. I think that that probably stops. I think that employers are probably going to be more willing to sort of just exercise their free speech rights.
34:35
That’ll certainly be the case. I mean, you know, the first case that will be overturned if it hasn’t already been reversed is going to be the CEMEX case. And, you know, we’ll see whether there’s a ruling on captive audience before the term ends.
34:49
Well, CEMEX, so my understanding with CEMEX is it’s right now stuck in the Ninth Circuit. They’re not going to rule on anything until the challenges to the NLRB occurs through the Supreme Court. Is that your understanding?
35:03
No, no. I mean, they just had oral argument. I mean, they just had oral argument.
35:09
Yeah, but they’re not going to rule on it.
35:11
It’s like in the hiatus. I haven’t heard that they’re waiting. So they’re like waiting on the constitutional challenges. I have not heard that, but that could just be like been head down here. I think, I mean, that wasn’t really an issue in that, you know, that issue hadn’t really come up yet in that particular case.
35:34
So I don’t think that wasn’t, it certainly didn’t come up in the oral argument. I think that they’ll rule on CEMEX. Now, that was a 2-1 Democrat majority panel. The two Democrats definitely seemed like they were a little bit more kind of, you know, leaning toward the NLRB’s interpretation of that.
35:55
That said, the Republican on that panel did like a absolutely terrific job of just like tearing apart both the Teamsters and the NLRB’s lawyer on this case. As I now, I guess I’m biased, but I’m kind of watching it from the standpoint of, I think that was a terrible decision and I’m sort of like, you know,
36:22
observing it from there. But that judge was not just communicating to the lawyers. That judge was communicating to the other two judges. And I felt did a pretty convincing job. So we’ll see. That could be a 2-1 decision against the employer, in which case maybe they’ll ask for a rehearing for the whole Ninth Circuit.
36:48
And so that’ll take some time. And then in the meantime, you’re right. Like there could be the, you know, one of these constitutional, but none of those constitutional challenges are in front of the Supreme court yet. So they’re all, you know, they’re in different circuit courts.
37:03
Well, I’m assuming the reliance on, on delaying it would be to see what happens with the constitutional challenges under Loper Bright. I think, see, I’m not a lawyer and I didn’t want to go to law school.
37:17
I don’t. I don’t think it changes the outcome. Let’s just pretend that there’s a finding that the dual protection of the ALJs, which again are not an issue in this particular case, that there’s a finding that those are unconstitutional. You still have to sort of wait and see, does the Supreme Court agree with that?
37:37
How is that kind of decided? Because I think Like, look, if I’m deciding that case, like let’s just say you’re the Fifth Circuit and you’re deciding that case, the decision would be more a little bit like the general counsel. It’s just like you can’t enforce the dual protection. That’s not constitutional.
37:59
But that doesn’t mean that the board members that were seated and made decisions, because there was a bunch of litigation about that on the general counsel case, they basically said, look, They serve at the pleasure of the president. The president can fire them on day one.
38:18
But decisions that were made by either the prior one or the current one, they all stay in place. So you can have a decision where it says, look, this provision is unconstitutional. But the board members that were in place at the time, all of their decisions remain valid. The decision that they made in this case remains valid.
38:38
But going forward, the president can terminate them if they want to. That, to me, would be probably the most likely decision that they make, in which case none of these other decisions that are in front of courts of appeals, they don’t go away. Now, they don’t have to decide it that way,
38:55
but that seems to me like the most likely way that they would decide it. Now, they could go, nope, that’s not constitutional, and you guys need to go rewrite the National Labor Relations Act. That would be a pretty extreme way to decide that, and I don’t think they would do that.
39:16
So to kind of distill this down, we’re looking at CEMEX being the law of the land at least for another eight, nine months, if not more. This reversal on Tricast, the law of the land for at least a while. So for employers, kind of goes back to my earlier point,
39:36
you need to be a scalpel as opposed to a baseball bat when explaining the law.
39:41
I mean, I’ve, we talked about this, I think the last time we got together, like, okay, so what’s the big deal? Just explain nine a like, it’s not like nine a is some like, oh my gosh, unions are great. Like nine a is terrible. If you’re an individual employee and you’re kind of weighing this decision as to
40:02
whether or not you want to be exclusively represented by this union or not, and I go to you and I go, well, here’s what happens. They become your exclusive representative. They’re the only one that can deal with the employer on your behalf. You can’t deal directly with the employer anymore. There is this exception.
40:19
You can still present a grievance to your employer.
40:22
But the union gets to sit there.
40:23
Yeah, or you as a group can present the grievance to the employer. And that employer can, if they want to, they can sit down with you and adjust that grievance, but they can’t do anything in that adjustment that in any way is talked about in your labor contract, if you have one.
40:45
But if you have one, nothing that you talk to your employer about can change anything in that contract. And oh, by the way, They’re also your union representative, your exclusive representative gets to sit in that meeting, whether you want them there or not. So, yes, you can continue to directly bring grievances to your employer,
41:08
but there’s a shit ton of obstacles that now get added to the mix. That’s what you’re voting on.
41:15
Yeah, so from a communication standpoint, it’s basically you have to explain and pick the gnat shit out of the pepper and explain it. And for those that don’t, that’s where we’re going to see more objectionable conduct, ULPs, et cetera. And right now, potentially bargaining orders. Yeah.
41:37
True. I mean, again, I think if you’re, you know, if you’re an employer that was kind of worried about another four years of rulings like this, you’re less worried about that now. And if you’re involved in a campaign right now, even though, yes, this is the law of the land,
41:54
the general counsel is going to be different in like a few months. And then, and then when the general counsel is different, you’re not, there’s, they’re no longer going to be issued. Like they’re not going to issue CEMEX complaints, even if the law of the land is CEMEX, they’re not going to be issuing these Tricast complaints.
42:12
So like that, that one change changes the environment pretty much on January 21st. So I think that’s a big deal. And then, yeah, the law will change when the law changes, right? But, you know, the prosecution of this stuff is what changes first. And so anyway, I think that the environment shifts.
42:36
And then going back to what I was saying before, now, like everything I just explained about 9A, you obviously have to train communicators to explain all that. And that’s way more complicated than just training them to say… This fundamentally alters the direct relationship that we currently have.
42:53
But I don’t think that saying it like the right way is any kind of like great comfort to unions.
43:01
No. And in fact, it’s almost, at least the times that I do it, it’s kind of more injurious because… Like, oh, by the way, that opens up the Constitution. Let’s talk about that a little bit. You know, you have designated your rights as a member of that union.
43:19
And, oh, by the way, you can also be placed on trial for violating the Constitution.
43:23
Yeah. Well, it just sounds so complicated because it is. Right. It sounds, like, so unwieldy because it is. Like, that’s kind of the point you’re making throughout a campaign, right? Like, this… It definitely changes things and probably in ways you haven’t really anticipated and probably in ways you won’t like.
43:46
Yep. Well, Phil Wilson, I’m glad we had this discussion. You’re the perfect person to have this with because we had talked about this before, and we’re both used to dealing with this.
43:59
As always, Peter, I enjoy talking to you. I enjoy these episodes a lot, and we’ll publish this on our channel as well, so we’re looking forward to getting this out into the world, and we’ll see what people have to think about it.
44:15
All right. Sounds good. Thank you, sir. Yeah. So that was Phil Wilson with the Labor Relations Institute talking about the NLRB’s new decision called SIREN, DBA Starbucks, and some of the intricacies you have to go through when communicating with employees about Section 9A of the National Labor Relations Act.
44:34
It sounds wonky, and unfortunately, you’ve got to be a little bit wonky these days. In any case, if you want to reach out to Phil, you can reach him at LRIonline.com. Or you can also reach me at Workplace Report. That’s at Workplace RPT on X.
44:50
Give us a call 1-888-668-6466 or leave a comment for either of us under the audio portion of this episode. And we’ll hope to answer questions for you. So that wraps up another episode of Labor Relations Radio. I’m your host, Peter List.
45:05
And if you want to reach out, go ahead and reach out on X. Give us a call or leave a comment. Have a great week.
45:14
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45:34
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