The Labor Law Insider

Husch Blackwell's Labor Law Insiders, Thomas Godar, Terry Potter, Rufino Gaytan and Adam Doerr, offer context to recent NLRB memoranda, including background to NLRB remedies, and contrast the historical reach of NLRB remedies to the broader approach urged by the Board’s General Counsel under her more expansive definition of “full remedies”. Further, the panelists take on the implications of the General Counsel’s pursuit of injunctive relief under Section 10(j) of the National Labor Relations Act, as a preventative tool rather than a remedial one.

The panel also addresses the non-economic remedies that more employers will find unpalatable, including those discussed in the most recent General Counsel memorandum. These include such remedies as letters of apologies to reinstated employees, and the creation of video recordings of a NLRB agent reading notices in the presence of senior charged party officials, among others.

The second part of this episode will further explore the options for reviewing and potentially resolving complaints, the incentive to defend against such ULP complaints through trial, and the steps to be undertaken to avoid, as far as can be possible, the threat of employees charging employers with unfair labor practices.

On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”

In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.

The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.

Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.

We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.

In part I of this series, Husch Blackwell's Labor Law Insider host Thomas Godar is joined by two experienced counsel regarding labor and employment law and federal contractor issues. Husch Blackwell Attorney Michael Schrier is co-Chair of the ABA Public Contract Law Section’s Employment Safety and Labor Committee, which is engaged in monitoring and potentially influencing regulations regarding federal government use of PLAs. Husch Blackwell Attorney Rufino Gaytán is often asked by clients to assist in assessing whether engagement in what are often high-ticket federal construction contracts and PLAs may have hidden trap doors, especially for those who are not frequent federal contractors. This episode of the Labor Law Insider Podcast explores the federal government’s expanded mandate for use of PLAs, and its potential for further encouraging unions to organize union-free companies which choose to participate in such projects.

Be sure to join us for for this and Part II for and interesting look into Project Labor Agreements and how they fit in to the overall pro-union strategy of the Biden administration.

In this Labor Law Insider podcast episode, Tom Godar is joined by Husch Blackwell attorney Sonni Nolan and firm alum Kat Pearlstone, as they conclude their exploration on protection of employee’s speech under the National Labor Relations Act (NLRA). In episode #10, the first in this series, the Labor Law Insider explored how disrespectful, crude and offensive speech may still be protected as concerted expressions under the NLRA. In this episode the panelists look at the standard for review of potentially protected speech, how threats of violence are treated under section 7 of the NLRA, the tricky world of social media comments that target people or business, and some best practices to eliminate or at least reduce the risk of an unfair labor practice charge.

The good news is the return to the more helpful standard for assessing whether protection should be accorded an expression made by the employee. First, the employee will have to demonstrate that he or she engaged in protected conduct, that the employer knew of such conduct and the employer acted with animus against the protected activity by counseling, discipline or discharge. Upon this proof, the employer would have the burden to respond and offer a legitimate business reason, not based on protected Union activity, for its action. General Motors LLC, 369 N.L.R.B. No. 127, 2020 BL 270474.

One area which can cross the eyes of an employer is related to possible threats of violence, and whether they would be entitled protection under the NLRA. In those cases, the Board may assess whether a provocative statement, is mere hyperbole, or a legitimate threat of violence. Kiewit Power Constructors Co., v. NLRB, 652 F.3d 22 (D.C.Cir. 2011). Employers would be asked to excuse certain threatening words as essentially not credible but are left with the near impossible task of ferreting out real threats from just excited expressions.

Another focus of the discussion is on statements receiving protection made via social media comments. Indeed, as employees work from home at an increasing rate during and following the COVID pandemic, more of these offensive and possibly harassing or threatening comments may come through the internet and social media as opposed to directed activities in the workplace. As a result, employers will have a very difficult job of not only interpreting whether these statements may be protected, but even investigating these comments. For instance, it is not unusual that employees who are identified as making these social medial comments would deny making those statements and merely claim that their account was hacked. This presents a very difficult burden for the employer to prove or disprove that an account was hacked, yet at least some decisions experienced by our Labor Law Insiders suggest that that is precisely the burden the employer would carry. This may be true in the context of a disciplined or fired employee claiming an Unfair Labor Practice, or if actions were challenged, not under the NLRA but, for instance, in the context of an arbitration under a collective bargaining agreement appeals process. Further, other “innocent” employees complaining about comments, may not offer sufficient proof of harassing or threatening conduct if the victim making the complaint has since deleted the text or other comment from his or her social media feed.

At least one option for the employer is to ignore gross or disrespectful comments on the internet or through social media, with the hope that they will soon fade away, and with the recognition that rising to the bait of such comments with a response may only render greater public dialogue and further exposure of often untrue statements.

As with so many of these issues, the panelists urge hiring and retaining excellent supervisors who are trained not to react, but to act with deliberation upon receiving or reviewing such obnoxious comments. Most employers have crafted policies which prohibit disrespectful speech, but supervisors must be trained in filtering through such policies to understand the implications of protected speech under the NLRA. In those cases, of course, counsel should be consulted for the latest iteration and interpretation of the breath of protected concerted action as interpreted by the NLRB and the Courts.

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

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

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