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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: The United States versus Google, the first trial pitting the

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Speaker 1: federal government against a US technology company in more than

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Speaker 1: two decades, began in a DC federal court on Tuesday.

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Speaker 1: The Justice Department and state attorneys general alleged that Google

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Speaker 1: illegally monopolized the online search market by paying billions of

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Speaker 1: dollars to tech rival smartphone makers and wireless providers in

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Speaker 1: exchange for being the default search engine on browsers and

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Speaker 1: mobile devices. But Google's top lawyer, Kent Walker, told CBS

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Speaker 1: News that consumers use the search engine because it's helpful

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Speaker 1: and it's easy to switch to another search engine. It

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Speaker 1: really couldn't be easier. You can sit at home on

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Speaker 1: your couch and change what search engine you're using. It's

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Speaker 1: as easy as changing your shoes. My guest is antitrust

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Speaker 1: expert Harry First, a professor at YU Law School. Harry,

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Speaker 1: just how important is this case?

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Speaker 2: This is an important case, at least symbolically and maybe

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Speaker 2: practically so symbolically, it's important. It is the first case

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Speaker 2: in more than two decades to challenge a durable, high

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Speaker 2: tech monopoly. So the last case was brought in May

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Speaker 2: of nineteen ninety eight, so that's a quarter of a

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Speaker 2: century since the last one, and that was against Microsoft,

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Speaker 2: and since that time nothing. So it is symbolically important

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Speaker 2: because it shows the federal government and the state any

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Speaker 2: trust enforces turning their attention to big power in our economy.

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Speaker 1: Does it focus on the company paying more than ten

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Speaker 1: billion dollars a year for exclusive agreements with smartphonemakers, web

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Speaker 1: browsers and wireless providers in exchange for it being you know,

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Speaker 1: the pre selected option, the default on mobile phones and browsers.

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Speaker 1: Is that the focus of the government's case.

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Speaker 2: Yeah, So it was a mixture of things with the

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Speaker 2: mobile distribution channel the Android OEMs like Samsung. It started

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Speaker 2: out as a licensing agreement, the mobile Application distribution agreement MADA.

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Speaker 2: I guess you get mad or MATA. I don't know.

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Speaker 2: If the handset manufacturer wanted to download any of the

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Speaker 2: Android apps, Google Maps, Chrome Browser, they had to download

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Speaker 2: all of them, and they had to put the Google

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Speaker 2: Search widget on the home screen. So that originally was

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Speaker 2: not for money. It was if you want to use

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Speaker 2: the Android system, you have to take this basically. It

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Speaker 2: later changed into some sort of revenue share agreement where

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Speaker 2: you know, if you had Google Search on exclusively, then

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Speaker 2: you would share advertising revenues that Google got from that.

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Speaker 2: So those were those payments. The other side was the

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Speaker 2: browser with Apple and Safari, and those agreements were pretty confidential.

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Speaker 2: I'm not sure the exact number has come out or

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Speaker 2: how much will come out, but they basically paid for

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Speaker 2: the default position on Safari browser and then you know,

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Speaker 2: on a few other browsers to be the default search engine.

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Speaker 2: So I keep wanting to say Netscape, but of course

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Speaker 2: nextscape right, so it would just be the default but

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Speaker 2: for which Google is willing to pay apparently quite large

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Speaker 2: sums of money.

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Speaker 1: Is there anything wrong with that? With the company saying

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Speaker 1: I'll pay you if you do this and we both benefit.

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Speaker 2: Well, the definition of an agreement is we both benefit.

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Speaker 2: So the question is whether these agreements helped to maintain

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Speaker 2: Google's monopoly position. So firms entered into lots of agreements

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Speaker 2: across the economy, of course, and most of them are lawful,

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Speaker 2: But when it comes to monopoly firms, firms that have

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Speaker 2: a monopoly position, they can't use agreements to unreasonably exclude

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Speaker 2: competitors and that's what the government plaintiffs are arguing that

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Speaker 2: these agreements unreasonably excluded good competitors who were foreclosed from

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Speaker 2: getting their search engines in front of consumers so they

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Speaker 2: could use them, and so that they could get more

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Speaker 2: and more searches done on them and continuously do what

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Speaker 2: Google had been able to do, and they were monopolists

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Speaker 2: more and more data, more and more data, and so

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Speaker 2: get better results, have a better search engine. So the

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Speaker 2: argument is that they excluded competitors through these agreements.

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Speaker 1: Does the Justice Department have to prove that there was

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Speaker 1: harm to consumers or to the.

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Speaker 2: Market, So the answer is no, yes. How's that? So

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Speaker 2: technically the government plaintiffs don't have to prove injury. Private plaintiffs,

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Speaker 2: if they want to collect money, have to prove they've

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Speaker 2: been harmed and by how much. Government plaintiffs just have

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Speaker 2: to prove harm to competition, which is a rather more

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Speaker 2: abstract thing than you know, proving an exact dollar figure something.

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Speaker 2: So this is why I say no, they don't have

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Speaker 2: to have some clear proof that this caused you know,

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Speaker 2: prices to go off things like that, but they do

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Speaker 2: have to have an argument for why competition was restricted,

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Speaker 2: why sort of the normal rivalry in the marketplace was impeded,

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Speaker 2: and they will make an argument that that harm consumers

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Speaker 2: and deprive them of certain things. So they may make

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Speaker 2: an argument that prices were higher, maybe not saved by

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Speaker 2: exactly how much, but advertising prices were higher. Apparently they're

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Speaker 2: going to make some sort of argument like that. They'll

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Speaker 2: argue that competitors were unable to innovate and provide maybe

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Speaker 2: different kinds of or better searches, or push Google to

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Speaker 2: be more innovative, and that consumers were harmed because by

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Speaker 2: preventing competition you have less innovation. So that will be

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Speaker 2: the rough argument for why consumers were injured, simply beyond

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Speaker 2: you know, having only one choice the monopolist.

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Speaker 1: In the opening statements, Google's lawyer argued that consumers don't

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Speaker 1: use Google because they have to. They use it because

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Speaker 1: they want to, and if they want to switch, it's

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Speaker 1: easy enough, right.

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Speaker 2: So that is a factual argument in essence, but it's

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Speaker 2: also an appeal to framing the case in a way

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Speaker 2: favorable to Google and in a way that they hope

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Speaker 2: will appeal to the judge. So Google's basic argument is,

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Speaker 2: are you kidding me? This is the greatest product ever.

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Speaker 2: Why do people use it? You know, nobody's holding a

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Speaker 2: gun to their head. They use it because it's darn good.

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Speaker 2: And you know, nothing is stopping consumers from changing those

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Speaker 2: the falls. They could do it. You know, it's easy

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Speaker 2: enough to do. So tell me why they don't do it.

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Speaker 2: I'll tell you why they don't do it. They don't

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Speaker 2: do it because they get a great product and they're

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Speaker 2: happy with it. And in the end, Google says, and

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Speaker 2: this is true. The purpose of the any trust laws

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Speaker 2: is to serve consumers. That's what markets are for, and

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Speaker 2: consumers are being very well served. So why are you

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Speaker 2: bringing this case government?

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Speaker 1: Is that the only argument you think they're going to make.

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Speaker 2: Well, there are lots of legal arguments along the way.

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Speaker 2: They may argue that search actually isn't a product because

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Speaker 2: it's on price free. You know, you can't raise its price.

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Speaker 2: You can't lower its price the product if there's a

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Speaker 2: product involved as advertising, you know, and then what's the

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Speaker 2: advertising market? They'll argue that, okay, if search is a product,

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Speaker 2: you know, there are lots of ways to search for information,

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Speaker 2: even on the Internet. There are lots of ways to

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Speaker 2: search for in so, for example, you know, people search

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Speaker 2: for information on TikTok. Maybe not you or me, but

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Speaker 2: younger people do. People search for information on Amazon, you know,

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Speaker 2: if they are looking for a product, lots of people

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Speaker 2: just go right to Amazon and.

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Speaker 3: Look for it.

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Speaker 2: They don't look for it on Google. So there are

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Speaker 2: lots of different ways to search for things. And so

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Speaker 2: Google is if search is a product. Google doesn't control it.

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Speaker 2: Consumers control it. They sit those keyboards and make their choices.

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Speaker 1: The judge asked Google's lawyer to respond to the Justice

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Speaker 1: Department's allegation that quote, what you say are competition for

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Speaker 1: defaults are not really competition at all. That really only

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Speaker 1: Google can be selected for the default. Do you know

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Speaker 1: what he meant by that?

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Speaker 2: So Google was selected for the default because they paid

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Speaker 2: for it in one way or another, either through the

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Speaker 2: revenue share or for saying, you know, if you want

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Speaker 2: all these apps, you've got to make it the fault,

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Speaker 2: or they paid Apple large sums of money. The question

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Speaker 2: is more, what does a fault mean? The fault is

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Speaker 2: an exclusivity. It's just a start. It's where things start.

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Speaker 2: It's the fault. So you know, Google wants to say

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Speaker 2: there's still plenty of consumer choice. So Google isn't controlling it,

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Speaker 2: consumers are controlling it. I think the judge has already

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Speaker 2: shown a little skepticism about an argument that the faults

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Speaker 2: don't matter, which is I think what Google wants to say,

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Speaker 2: you know, it don't matter because they're changeable, and I think,

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Speaker 2: you know, the judge is my recollection was pressing Google's

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Speaker 2: counsel already for saying, well, give me some examples to

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Speaker 2: consumers changing.

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Speaker 1: Harry, as a lawyer, which side would you rather be on,

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Speaker 1: the governments or Googles.

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Speaker 2: I think the government's case is strong. Actually, now I

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Speaker 2: say that in part because there's been a test run

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Speaker 2: in a way, the European Commission already found a lot

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Speaker 2: of this stuff to be in European competitional abusive dominance,

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Speaker 2: the agreements relating to mobile distribution, not the browser part.

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Speaker 2: And you know, one good reasoning and that doesn't compel

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Speaker 2: the same results in the United States, but it's pretty similar.

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Speaker 2: It's similar to arguments that were made in the Microsoft

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Speaker 2: case about contracts that were exclusive and effectively excluded Netscape

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Speaker 2: the browser, even though you know you could still get

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Speaker 2: a browser in different ways. Now you may remember, I remember,

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Speaker 2: you know it used to be, well, if you couldn't

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Speaker 2: get the browser pre installed on the LPC, they came

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Speaker 2: in the mail, right, you could mail them. You know,

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Speaker 2: I still have some of those discs in my office.

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Speaker 1: Get rid of them, right.

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Speaker 2: So, Hey, there's plenty of distribution in the courts that

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Speaker 2: they're you know, it doesn't have to completely foreclose you,

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Speaker 2: but it's it just shuts off basically the easiest part

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Speaker 2: of the most efficient way of distribution. And in that

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Speaker 2: old day, the OEMs, the Dells of the world compacts

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Speaker 2: didn't want to put a second browser on because of cost,

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Speaker 2: and here they get that same default, even though they

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Speaker 2: technically don't call it exclusive, it's the same sort of thing.

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Speaker 2: So I think the government has a strong case. Obviously,

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Speaker 2: it's not a lay down case. I haven't heard any

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Speaker 2: talk of settlement. So Google presumably feels that it might

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Speaker 2: be able to win a trial. And there's a long

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Speaker 2: time between here and there, as they say, before there's

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Speaker 2: some resolution of this case, because this is really we're

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Speaker 2: just at the beginning of it.

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Speaker 1: In its lawsuit against Google, the Justice Department pointed to

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Speaker 1: that Microsoft case and said that Google deploys the same

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Speaker 1: playbook as Microsoft. Did How much does this case borrow

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Speaker 1: from the Microsoft case or echo the Microsoft case?

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Speaker 2: I think there are there are a lot of similarities.

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Speaker 2: You know, Microsoft, a lot of the exclusionary work was

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Speaker 2: done by exclusive contracts that they had with Internet service providers,

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Speaker 2: with AOL so forth. They paid the money, So there

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Speaker 2: are a lot of factual similarities. I don't think there's

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Speaker 2: the same sort of technological effort of tying Google Search

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Speaker 2: to something, which is what Microsoft did with the Internet

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Speaker 2: Explorer browser, but it's quite similar. And the District Court

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Speaker 2: has already followed the legal playbook as well. I mean,

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Speaker 2: the government, I think has tried to say, hey, this

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Speaker 2: is Microsoft, and you know how that came out, and legally,

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Speaker 2: the District Court judges already followed the way the Court

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Speaker 2: of Appeals set out the structure for analyzing the problem.

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Speaker 2: The District Court has already chosen that in an earlier

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Speaker 2: decision that made the case. So Microsoft is going to

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Speaker 2: be very important in this case. But you know, in

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Speaker 2: the end, facts are very important. So we'll see yet

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Speaker 2: how the judge about the arguments on default and how

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Speaker 2: much of the market was really foreclosed by this or

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Speaker 2: you know, how you figure that out. So that's yet

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Speaker 2: to be seen.

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Speaker 1: If Google loses, there'll be a second stage of the

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Speaker 1: trial to determine the remedy. Is a breakup likely or unlikely?

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Speaker 2: I mean, so I'll take the other side of the

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Speaker 2: coin of Google lair enough, not not of the company,

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Speaker 2: but of the case. So the Microsoft case on whether

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Speaker 2: Microsoft violated the Sherman Act, the Court of Appeals that

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Speaker 2: ultimately decided the case unanimously basically decided in favor of

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Speaker 2: the government on the monopolization arguments and a very important

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Speaker 2: and strong decision. On the other hand, when it came

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Speaker 2: to remedy, the Court of Appeals was not so gong

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Speaker 2: ho and the key line I think is their view

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Speaker 2: that the remedy had to be tailored to fit the wrong.

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Speaker 2: So although the Court of Appeals never directly opined on

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Speaker 2: whether a breakup would be allowed, because eventually there was

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Speaker 2: a settlement, it was pretty clear that they were not

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Speaker 2: clined to a breakup would have not been inclined in Microsoft.

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Speaker 2: So for this case, the government is going to have

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Speaker 2: to show some sort of systemic approach to how Google operates.

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Speaker 2: That requires that is, you know, they are so deeply

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Speaker 2: into maintaining their monopoly. That the only way to deal

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Speaker 2: with this is somehow to restructure the company. That's a

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Speaker 2: heavy lift. And it will depend on how the government

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Speaker 2: presents its case. If its focuses, as it seems to be,

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Speaker 2: on the specifics of these contracts, well then it seems

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Speaker 2: to me the remedy is likely to be let's do

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Speaker 2: something about the contracts. So breaking up Google? Are we

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Speaker 2: going to see goog as Google? I think it's pretty unlikely.

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Speaker 2: But you know, again that's going to depend on the

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Speaker 2: kind of case the government presents, I think, even before

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Speaker 2: the remedies trial, but at the trial and liability, what

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Speaker 2: do they do wrong? Because remedy remedies the wrong.

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Speaker 1: Thanks so much, Harry has always it's a pleasure to

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Speaker 1: have you on the show. That's NYU law professor Harry.

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Speaker 3: First, the money is there, the cause is righteous, the

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Speaker 3: world is watching in the UAW is ready to stand up.

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Speaker 3: This is our defining moment.

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Speaker 1: It certainly was an unprecedented moment, as the United Auto

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Speaker 1: Workers went on strike Friday against all three Detroit automakers,

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Speaker 1: a strategy announced by its president Sean Fain. Of course,

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Speaker 1: TESLA doesn't have to worry about strikes it's the only

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Speaker 1: major US auto manufacturer not represented by a union. The

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Speaker 1: electric car makers' legal disputes over union organizing are no secret,

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Speaker 1: and the legal fight over Tesla's ban on workers wearing

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Speaker 1: union shirts on its electric car production line has reached

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Speaker 1: the Fifth Circuit Court of Appeals. Joining me is labor

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Speaker 1: law expert Kate Andreas, a professor at Columbia Law School.

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Speaker 1: Kate tell us about this Tesla ban.

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Speaker 4: So Tesla banned union shirts, it required workers in the

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Speaker 4: plant to only wear Tesla's shirt black shirts in particular

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Speaker 4: or with supervisors permission. I think they were also able

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Speaker 4: to wear plain black shirts. What the workers did is

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Speaker 4: they wanted to wear UAW shirts that were also black,

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Speaker 4: that looks basically the same as the Tesla shirts, but

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Speaker 4: instead of having the Tesla logo on them, they had

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Speaker 4: the UAW logo.

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Speaker 1: Is that an unusual kind of ban? I mean, don't

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Speaker 1: a lot of places have uniforms.

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Speaker 4: So since the nineteen forties, the NLRB has held, with

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Speaker 4: Supreme Court approval, that workers are allowed to wear union insignia,

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Speaker 4: including union T shirts, unless there's a special business reason

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Speaker 4: for an employer to prohibit it. So it is the

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Speaker 4: case that a lot of employers have uniform requirements, but

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Speaker 4: they have to permit workers to wear union buttons, union stickers,

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Speaker 4: union shirts unless there's some business reason why doing so

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Speaker 4: is detrimental to the business. The reason for that is

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Speaker 4: the board has recognized that showing your support for the

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Speaker 4: union is an important part of how workers organized unions,

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Speaker 4: and it's an important part of workers' right to accession

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Speaker 4: at work right. It's their right to communicate their support

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Speaker 4: for the union, and that is protected by the MLRA.

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Speaker 1: The NLRB made a decision against the Tesla Band last year.

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Speaker 1: Tell us about that.

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Speaker 4: So the board's decision was consistent with the doctrine going

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Speaker 4: all the way back to nineteen forty five really old

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Speaker 4: case called Republic aviation. In that case held that workers

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Speaker 4: can wear union insignia on their shirts, on buttons, things

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Speaker 4: like that, as long as it's not causing a problem

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Speaker 4: for the business. So the presumption is that it's okay

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Speaker 4: to wear union insignia, the business has to show. The

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Speaker 4: employer has to show that there's a specific business reason

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Speaker 4: why wearing union messages is impermissible is damaging to the business,

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Speaker 4: And in this case, the boardsound that Tesla wasn't able

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Speaker 4: to do that. It wasn't able to show why wearing

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Speaker 4: a UAW logo and a black shirt versus a Tesla

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Speaker 4: logo on a black shirt caused any problem for the business.

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Speaker 1: Did it factor in at all that Tesla adopted this

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Speaker 1: policy in twenty seventeen during a campaign by the UAW

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Speaker 1: to organize production workers.

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Speaker 4: The Tesla's position was that ad adopted the ban because

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Speaker 4: there were problems with production, that Tesla vehicles were getting

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Speaker 4: harmed in some way in production, so it tightened up

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Speaker 4: this uniform rules. But what the board said was, well,

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Speaker 4: if you had, for example, made a proguson on wearing

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Speaker 4: sharp implements, that would be understandable, right because you might

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Speaker 4: rip a our seed if you're wearing a sharp implement.

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Speaker 4: But what you can't do is adopt a rule that

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Speaker 4: really doesn't in any way. There's no special business reason

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Speaker 4: for it, and you certainly can't do it if there's

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Speaker 4: the possibility that you're doing it in order to coerce

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Speaker 4: workers and exercise of their union organizing rights, that you're

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Speaker 4: trying to discriminate against union activity. So it is especially

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Speaker 4: illegal if it's adopted in order to retaliate against union activity.

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Speaker 4: But even if it's not right, even if it's adopted

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Speaker 4: for other reasons, it's not permissible unless the employer can

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Speaker 4: show that there's a need for it. And there are

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Speaker 4: lots of cases where the board has held that a

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Speaker 4: band is permissible because there's a special business need. For example,

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Speaker 4: hospitals can tell our nurses they have to wear a

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Speaker 4: scrups right. Grocery stores can tell workers who are cashier workers,

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Speaker 4: you know, who are pub facing workers, that they have

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Speaker 4: to wear a particular uniform. Nursing homes can tell workers

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Speaker 4: that they have to wear uniforms and patient care areas.

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Speaker 4: But this is really different. These are workers who are working,

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Speaker 4: not facing the public in a plant, and there was

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Speaker 4: no business reason why they couldn't wear a UAW logo

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Speaker 4: instead of a Tesla logo on their shirt, and so

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Speaker 4: the board said that violates their right to organize.

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Speaker 1: But it seemed like the Fifth Circuit judges were concentrating

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Speaker 1: on the difference between dress codes that don't allow any

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Speaker 1: expression of union support and those like Tesla's that permit

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Speaker 1: workers to wear union stickers and the like on their

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Speaker 1: company's shirt. One of the judges said, a sticker says,

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Speaker 1: go union union is good or whatever. In what way

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Speaker 1: is that an insufficient means of communication? So were these

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Speaker 1: judges ignoring that precedent you just told us about.

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Speaker 4: Right, So one of the judges seemed to be saying,

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Speaker 4: if the employer give workers some way to communicate their support,

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Speaker 4: that's enough that the employer gets to decide how workers

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Speaker 4: can communicate their support for the union. That is not

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Speaker 4: what the president has held since nineteen forty five, with

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Speaker 4: the exception of a very brief period during the Trump

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Speaker 4: administration when the board kind of clamped down on workers'

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Speaker 4: ability to express themselves. But other than that brief perio

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Speaker 4: during the Trump administration, since nineteen forty five, the Board

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Speaker 4: has said the employer doesn't get to decide that it

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Speaker 4: doesn't like union shirts or it doesn't like union buttons

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Speaker 4: unless there's a business reason for that. So if this

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Speaker 4: circuit ends up adopting the reasoning that was suggested in

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Speaker 4: oral argument, that would be a real retrenchment of where workers'

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Speaker 4: rights have been for a long time.

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Speaker 1: And the opinion you were referring to was a Supreme

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Speaker 1: Court opinion.

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Speaker 4: Yeah, so it's a Supreme Court opinion called Republic aviation,

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Speaker 4: and it was the court in that case upholding what

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Speaker 4: the board had decided. That's important too. So there's sort

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Speaker 4: of two things that are worry some about what the

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Speaker 4: Fifth Circuit judges are suggesting. One is that it suggests

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Speaker 4: that there's at least some interest or possibility of narrowing workers'

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Speaker 4: rights to express themselves in their effort to organize. But

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Speaker 4: the other is a question of how much will court

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Speaker 4: defer to the expertise of the board. And so in

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Speaker 4: this nineteen forty five case from the Supreme Court, Supreme

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Speaker 4: Court deferred to the board, and that the board is

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Speaker 4: really the one that's expert in how workers organize unions.

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Speaker 4: If the board thinks that it's appropriate to have this rule,

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Speaker 4: we're going to defer to it. We think it's a

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Speaker 4: reasonable interpretation of the statute. So this seems to suggest

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Speaker 4: less different to the board than the Supreme Court was

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Speaker 4: willing to give in this old precedent.

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Speaker 1: Tell me your general impressions of the oral arguments or

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Speaker 1: the concerns of the judges.

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Speaker 4: Well, you never want to read too much into oral arguments.

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Speaker 4: The judges, I know, read briefs carefully and take a

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Speaker 4: close look at the law. However, based on the oral argument,

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Speaker 4: I have some concern that the judges were misreading existing

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Speaker 4: precedent and seemed to be suggesting that they were going

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Speaker 4: to retail important expressive rights of workers in a way

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Speaker 4: that's really troubling.

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Speaker 1: What was Tesla's argument about why they should be allowed.

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Speaker 4: So just basically had two arguments. One was that there

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Speaker 4: has been a problem with damage to vehicles, for example,

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Speaker 4: car seats ripping against in items, and as a result

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Speaker 4: of that, they needed to adopt a stricter uniform policy

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Speaker 4: that limited for example, metal on clothing. That's a legitimate

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Speaker 4: business reason, right, they're worried about the quality of the cars.

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Speaker 4: What was the board said was that reason doesn't connect

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Speaker 4: to not wearing a black UAW shirt, so it's not

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Speaker 4: enough of a reason. The second reason Tesla gave was

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Speaker 4: that employers needed to have visual control, so they needed

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Speaker 4: to be able to spot who's a worker, who's a manager,

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Speaker 4: and all the workers had to wear black Tesla shirts

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Speaker 4: in order to enable that kind of control over the

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Speaker 4: production line. But there again the board said, that's fine, right,

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Speaker 4: that's a legitimate business reason. But as long as they're

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Speaker 4: wearing a BLACKAW shirt in the brief, there's pictures of

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Speaker 4: shirts you know that essentially looks the same, it just

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Speaker 4: has a different logo on it. Then again, the rule

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Speaker 4: isn't advancing the business interest, and you can't just have

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Speaker 4: a rule that is, we don't want you to wear

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Speaker 4: the union shirt.

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Speaker 1: Did the judges buy into Tesla's argument or were they

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Speaker 1: off on another plane entirely with the ability of the

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Speaker 1: Tesla employees to express themselves.

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Speaker 4: I think the judges were in large part accepting Tesla's

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Speaker 4: argument in the sense that Tesla was saying, you know,

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Speaker 4: we get to decide what our employees wear as long

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Speaker 4: as they have some opportunity to express their support of

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Speaker 4: the union. And at least one of the judges seem

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Speaker 4: to think that that was what's really important. So as

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Speaker 4: long as there's some way to expressing in support, for example,

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Speaker 4: through a sticker, that that's sufficient. That was one of

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Speaker 4: the arguments that Tesla advanced as well.

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Speaker 1: Kate, if the Fifth Circuit finds in favor of Tesla,

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Speaker 1: does that mean that it's ignoring Supreme Court precedent?

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Speaker 4: So it will depend on how they rule. If it's

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Speaker 4: a very sax bound decision that accepts the argument that

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Speaker 4: there is a particular business reason in this case. It's

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Speaker 4: a little hard for me to see what it is,

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Speaker 4: but maybe they'll find one then that wouldn't be in

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Speaker 4: conflict with either the Supreme Court long standing president or

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Speaker 4: the board's long standing precedent. However, if they establish a

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Speaker 4: new rule something like as long as there's some way

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Speaker 4: to express your support for the union, that's sufficient, that

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Speaker 4: will really push against long standing or precedents.

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Speaker 1: There was a question about what the remedy would be

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Speaker 1: if they find for Tesla, and the NLRB lawyer wanted

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Speaker 1: them to remand to the NLRB, and the Tesla lawyer said,

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Speaker 1: just dismiss the complaint.

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Speaker 4: I think again, the judges have a choice in terms

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Speaker 4: of how broad a ruling they wish to pursue. The

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Speaker 4: board's position is that should remand the case for the

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Speaker 4: board to consider in the first instance, how you apply

436
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Speaker 4: whatever rule the court sets out to these particular facts.

437
00:26:08,200 --> 00:26:11,920
Speaker 4: And the company's position is well, once to establish that

438
00:26:12,080 --> 00:26:14,639
Speaker 4: as long as there's another way to show union sport,

439
00:26:14,760 --> 00:26:16,720
Speaker 4: then the case is done. And so again, I think

440
00:26:17,080 --> 00:26:19,960
Speaker 4: what the remedy is will depend in part on how

441
00:26:20,000 --> 00:26:23,320
Speaker 4: broader ruling the court adopts, and again, how much deference

442
00:26:23,359 --> 00:26:25,679
Speaker 4: it is willing to exercise to the agency, how much

443
00:26:25,680 --> 00:26:28,800
Speaker 4: it's willing to kind of recognize that it supports role

444
00:26:28,880 --> 00:26:32,120
Speaker 4: in the first instance, to figure out whether workers' rights

445
00:26:32,160 --> 00:26:34,160
Speaker 4: engage in considered activity are protected.

446
00:26:34,840 --> 00:26:39,000
Speaker 1: I find it surprising that Tesla would bother to go

447
00:26:39,080 --> 00:26:43,359
Speaker 1: through these appeals and everything over this issue missing something.

448
00:26:44,040 --> 00:26:46,920
Speaker 4: Yeah, I mean, I think there are two things going on.

449
00:26:46,920 --> 00:26:51,000
Speaker 4: One is that employers like Tesla do everything they can

450
00:26:51,520 --> 00:26:54,919
Speaker 4: to try to stop workers from organizing unions. And so

451
00:26:55,160 --> 00:26:58,800
Speaker 4: in every case, if they're able to exert more authority

452
00:26:58,800 --> 00:27:01,560
Speaker 4: over the workplace and row the ability of workers to

453
00:27:01,720 --> 00:27:05,560
Speaker 4: engage in organizing activity that is very important to them,

454
00:27:05,880 --> 00:27:09,080
Speaker 4: that set precedent for future cases. It sends a message

455
00:27:09,119 --> 00:27:11,920
Speaker 4: to workers, even if it doesn't set precedent, that it's

456
00:27:11,960 --> 00:27:14,600
Speaker 4: going to be very difficult to win a union. And

457
00:27:14,680 --> 00:27:18,359
Speaker 4: so I think that explains why Telos pursuing what seems

458
00:27:18,359 --> 00:27:19,960
Speaker 4: like a relatively minor issue.

459
00:27:20,160 --> 00:27:22,720
Speaker 1: And how important is this case in the grand scheme

460
00:27:22,760 --> 00:27:24,320
Speaker 1: of things, Well, again, it.

461
00:27:24,280 --> 00:27:26,920
Speaker 4: Really will depend on what the court says. It could

462
00:27:26,920 --> 00:27:30,040
Speaker 4: be a very problematic case for workers rights to organize,

463
00:27:30,200 --> 00:27:32,879
Speaker 4: or it could be a relatively stacked found opinion. But

464
00:27:32,960 --> 00:27:35,160
Speaker 4: I think if you step back, what you can see

465
00:27:35,240 --> 00:27:38,959
Speaker 4: is that there's a real battle going on. There's a

466
00:27:39,080 --> 00:27:42,960
Speaker 4: very significant effort within the NLRV to protect workers' rights

467
00:27:43,000 --> 00:27:46,320
Speaker 4: to organize, to really make reels the promise of the statute,

468
00:27:46,960 --> 00:27:49,320
Speaker 4: and the Board has issued a series of opinions. This

469
00:27:49,440 --> 00:27:52,080
Speaker 4: is only one of them, but a series of opinions,

470
00:27:52,080 --> 00:27:55,360
Speaker 4: a series of rulings where it is working very hard

471
00:27:55,400 --> 00:27:58,360
Speaker 4: to protect workers right to organize. And there's a big

472
00:27:58,440 --> 00:28:00,520
Speaker 4: question about what happens when those opinion and get up

473
00:28:00,560 --> 00:28:03,359
Speaker 4: into the courts of appeals, particularly the very conservative courts

474
00:28:03,359 --> 00:28:05,679
Speaker 4: of appeals. So it could be part of a broader

475
00:28:05,760 --> 00:28:09,360
Speaker 4: trend of courts flapping down the board's efforts to protect

476
00:28:09,359 --> 00:28:12,920
Speaker 4: workers right. Or it could be an example of where

477
00:28:13,080 --> 00:28:15,879
Speaker 4: the court recognized that this is what the law has

478
00:28:15,920 --> 00:28:19,120
Speaker 4: long held, and they allow the Board to do its

479
00:28:19,200 --> 00:28:20,760
Speaker 4: job in protecting workers right.

480
00:28:20,960 --> 00:28:24,080
Speaker 1: And I noticed that although the case originated in California,

481
00:28:24,359 --> 00:28:28,720
Speaker 1: which is in the Ninth Circuit, Tesla appealed the NLRB's

482
00:28:28,800 --> 00:28:30,119
Speaker 1: ruling to the Fifth Circuit.

483
00:28:30,560 --> 00:28:33,280
Speaker 4: So one of the advantages that you have when you're

484
00:28:33,400 --> 00:28:36,399
Speaker 4: a party that's appealing is you can pick a circuit

485
00:28:36,440 --> 00:28:40,360
Speaker 4: in which you are located, and so Tesla determined or

486
00:28:40,440 --> 00:28:42,840
Speaker 4: judged that it would likely have a more favorable panel

487
00:28:42,880 --> 00:28:45,400
Speaker 4: in the Fifth Circuit, which has historically been one of

488
00:28:45,400 --> 00:28:48,200
Speaker 4: the most conservative, if not the most conservative court in

489
00:28:48,240 --> 00:28:48,800
Speaker 4: the country.

490
00:28:49,440 --> 00:28:53,240
Speaker 1: But if this is appealed to the Supreme Court, I mean,

491
00:28:53,520 --> 00:28:56,600
Speaker 1: have they issued any decisions in the last few years

492
00:28:56,680 --> 00:28:58,440
Speaker 1: that favor unions, Not.

493
00:28:58,440 --> 00:28:59,880
Speaker 4: That I can think of. So there's been a series

494
00:28:59,880 --> 00:29:02,560
Speaker 4: of cases where the Spoonbird has ruled against both the

495
00:29:02,680 --> 00:29:07,360
Speaker 4: unions and workers, ranging from the case involving access to

496
00:29:07,520 --> 00:29:10,600
Speaker 4: farm workers and they're right to organize, to the case

497
00:29:10,600 --> 00:29:13,840
Speaker 4: about whether or not the NRD gets to decide whether

498
00:29:13,920 --> 00:29:16,560
Speaker 4: or not a strike is protected or a stake where

499
00:29:16,640 --> 00:29:19,080
Speaker 4: action could go forward. That's the Glacier case from this year,

500
00:29:19,200 --> 00:29:20,960
Speaker 4: and those have all come out against workers.

501
00:29:21,040 --> 00:29:24,000
Speaker 1: Thanks so much, Kate. That's Professor Kate Andreas of Columbia

502
00:29:24,080 --> 00:29:26,240
Speaker 1: Law School. And that's it for this edition of the

503
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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

504
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505
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507
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