WEBVTT - Unions Wait on Elections & $30 Million Pardon Scheme 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.920 --> 0:00:12.879 During the elections, President Trump made his position on unions 0:00:13.000 --> 0:00:17.800 cleared during a conversation with Elon Musk last August. I mean, 0:00:17.840 --> 0:00:21.759 I look at what you do. You walk quit, they 0:00:21.840 --> 0:00:24.040 go on strike. I won't mention the name of the company, 0:00:24.079 --> 0:00:25.439 but they go on strike and use it. 0:00:25.480 --> 0:00:26.840 That's okay. You're all gone. 0:00:27.040 --> 0:00:27.760 You're all gone. 0:00:27.800 --> 0:00:29.520 So every one of you is gone, and you are 0:00:29.560 --> 0:00:30.960 the greatest. You would be very good. 0:00:31.160 --> 0:00:34.960 And in the past six months, Trump has ended collective 0:00:35.040 --> 0:00:39.840 bargaining for two thirds of the federal workforce, effectively paralyzed 0:00:39.840 --> 0:00:44.680 the federal agency tasked with adjudicating unfair labor practices and 0:00:44.720 --> 0:00:49.040 disputes over union elections, and rescinded the minimum wage that 0:00:49.159 --> 0:00:52.600 federal contractors have to pay the workers, just to name 0:00:52.640 --> 0:00:56.680 a few of Trump's anti union actions. So it may 0:00:56.720 --> 0:01:00.480 not be so surprising that there has also been a 0:01:00.600 --> 0:01:05.000 significant drop in union elections and petitions to the National 0:01:05.080 --> 0:01:09.240 Labor Relations Board in the last six months. That stands 0:01:09.280 --> 0:01:12.520 in contrast to the previous three years, where there were 0:01:12.560 --> 0:01:17.880 a historic number of union elections, representation petitions, and unfair 0:01:17.959 --> 0:01:23.240 labor practice charges filed each year. My guest is Anne Lafusso, 0:01:23.319 --> 0:01:26.880 a professor at the University of Cincinnati Law School and 0:01:26.959 --> 0:01:31.480 an expert in labor law. And the average number of 0:01:31.800 --> 0:01:35.959 newly certified unions per month dropped twenty two point three 0:01:36.040 --> 0:01:39.160 percent in the first six months of this second Trump 0:01:39.200 --> 0:01:43.960 administration compared to the last six months of the Biden administration, 0:01:44.560 --> 0:01:47.480 and there has been a fifteen point eight percent drop 0:01:47.600 --> 0:01:51.120 in the number of representation petitions filed in that same 0:01:51.200 --> 0:01:54.680 time period. How do you account for this significant drop? 0:01:55.600 --> 0:01:57.760 I think you have to look at both sides of 0:01:57.800 --> 0:02:03.000 the equation. First, you had historic increased under Biden, a 0:02:03.160 --> 0:02:09.320 progressive general Counsels. The board was relatively progressive, but not 0:02:09.400 --> 0:02:12.640 quite as progressive as Jennifer Brusso was. So Brusso was 0:02:12.680 --> 0:02:18.080 aggressively progressive. She looked at the law and she interpreted 0:02:18.120 --> 0:02:20.560 the law in a way that, in my view at least, 0:02:20.639 --> 0:02:23.640 was reasonable. But on the progressive side, the law can 0:02:23.680 --> 0:02:26.880 always be interpreted more progressively or more conservatively, more pro 0:02:27.000 --> 0:02:29.799 union or more pro business. And it's not like the 0:02:29.880 --> 0:02:32.560 law has a single meaning. And she was on the 0:02:32.639 --> 0:02:37.080 very progressive side, and that emboldened and encouraged unions to 0:02:37.280 --> 0:02:41.960 file election petitions and also defile unfair labored practice charges, 0:02:42.280 --> 0:02:45.359 even where it might have been a more if the 0:02:45.360 --> 0:02:49.359 theory of why they were being unfairly treated iffy because 0:02:49.440 --> 0:02:52.320 in the past they may not have gotten that theory 0:02:52.560 --> 0:02:55.880 validated for the board. So that's going to increase the numbers. 0:02:56.480 --> 0:03:00.400 Then when Trump came in, they're remembering the first Trump Board, 0:03:00.440 --> 0:03:04.440 and the first Trump board as progressive as Jennifer Brutto was, 0:03:04.600 --> 0:03:09.640 it was reactionary. It was extremely to the right, much 0:03:09.639 --> 0:03:13.600 more pro business and even in some instances I would 0:03:13.639 --> 0:03:16.640 say not just pro business, but anti union more so 0:03:16.760 --> 0:03:19.480 than any other board ever in the history of the 0:03:19.600 --> 0:03:23.480 National Labor Relations Board. And they're remembering this and it 0:03:23.520 --> 0:03:26.680 was very painful for them. So they're in this sort 0:03:26.680 --> 0:03:30.920 of wait and see pattern, anticipating the worst. So I'm 0:03:31.080 --> 0:03:33.640 at a conference right now and I'm listening to people 0:03:33.680 --> 0:03:36.480 and they don't want to file petitions right now because 0:03:36.480 --> 0:03:39.920 they are really afraid. Now the board doesn't have a quorum, 0:03:40.320 --> 0:03:44.480 so they really don't know exactly what's going to happen. 0:03:45.120 --> 0:03:48.160 I personally don't think that the Trump two board will 0:03:48.200 --> 0:03:51.000 be as reactionary as the Trump one board. I could 0:03:51.000 --> 0:03:51.400 be wrong. 0:03:51.880 --> 0:03:54.920 What makes you say that when Trump has a pointed 0:03:55.440 --> 0:03:58.120 a conservative as general counsel. 0:03:58.520 --> 0:04:01.840 The reason I'm saying this, though, is because the general counsel, Cowan, 0:04:01.880 --> 0:04:04.800 who is a conservative man, so he's going to interpret 0:04:04.800 --> 0:04:06.880 the law in a more conservative fashion, is going to 0:04:06.960 --> 0:04:11.800 be more pro business fashion. However, he's an institutionalist. He's 0:04:11.800 --> 0:04:14.160 been the regional director for one of the regions out 0:04:14.160 --> 0:04:16.800 in the West, I think in California for a long time. 0:04:17.160 --> 0:04:20.520 He was a board member. He's loved by everyone. He 0:04:20.600 --> 0:04:23.479 was at the board when I was there, Everyone loved him. 0:04:23.760 --> 0:04:26.360 He was just kind, he was easy to work with. 0:04:26.760 --> 0:04:30.400 He doesn't want to destroy the agency. Also, people Trump 0:04:30.400 --> 0:04:34.120 put forward for the board, they're also institutionalists. He could 0:04:34.120 --> 0:04:36.960 have picked people that had union busting careers and he 0:04:37.080 --> 0:04:41.960 doesn't seem to be doing that. So it's possible that 0:04:42.520 --> 0:04:46.880 the fear that's going on is an overreaction. But I 0:04:46.920 --> 0:04:49.640 think at least they're waiting and seeing what this board 0:04:49.680 --> 0:04:52.719 will do. So when you put those two things together, though, 0:04:53.080 --> 0:04:57.039 the sort of record highs and then the remembering of 0:04:57.080 --> 0:05:00.120 what the Trump board did in his first administration, and 0:05:00.720 --> 0:05:03.360 you get this huge swing. I don't know if it's 0:05:03.360 --> 0:05:05.359 gonna last. It's gonna be very interesting to see, and 0:05:05.360 --> 0:05:07.440 I think it's gonna depend on what this board starts 0:05:07.480 --> 0:05:10.560 doing and whether it was willing to dismantle precedents. 0:05:10.800 --> 0:05:13.520 I mean, the board right now doesn't have a quorum 0:05:13.600 --> 0:05:15.880 right correct, So what can they do. 0:05:16.560 --> 0:05:20.400 The board itself, meaning the five board members, can't do anything. 0:05:20.520 --> 0:05:23.480 The agency can do quite a bit, so the General 0:05:23.480 --> 0:05:28.839 Council can issue complaints, the regions can investigate charges, the 0:05:28.880 --> 0:05:33.080 region can hold elections. They just can't be board certified. 0:05:33.560 --> 0:05:36.120 So there's plenty of things that can happen. So I 0:05:36.120 --> 0:05:39.359 don't think these numbers are necessarily because the board doesn't acorum. 0:05:39.600 --> 0:05:41.800 Maybe some of them are design Well, if they can't 0:05:41.839 --> 0:05:44.440 be certified right now, then maybe we should wait. That 0:05:44.480 --> 0:05:46.960 could explain some of them. But there's a lot that 0:05:47.040 --> 0:05:49.640 can do, certainly on the unfair labor practice side right 0:05:49.720 --> 0:05:51.400 because it takes a while for you to have an 0:05:51.400 --> 0:05:54.080 ALGA hearing, there's gonna be a board within the year, 0:05:54.680 --> 0:05:57.599 and you might want to get at least the hearing done. 0:05:57.720 --> 0:06:00.919 I mean, I heard yesterday one of the U organizers 0:06:01.000 --> 0:06:03.839 was telling me that he is something that's been six 0:06:03.920 --> 0:06:07.400 years before the board, So there are some big backlogs. 0:06:08.000 --> 0:06:11.600 That's an unusual case, but I've heard about longer than 0:06:11.600 --> 0:06:13.880 that also. And by the way, this is not just 0:06:13.920 --> 0:06:16.960 from the Biden and Trump era. When I was there 0:06:17.160 --> 0:06:19.920 under Bush and Clinton, they were like long delays also, 0:06:20.240 --> 0:06:22.880 And we don't know whether I think every board does 0:06:22.920 --> 0:06:25.159 this to some extent. If it's a really difficult issues, 0:06:25.200 --> 0:06:27.200 sometimes they just think about it and then they run 0:06:27.240 --> 0:06:30.440 out of time because they no longer have a quorum 0:06:30.520 --> 0:06:35.400 or something. And that's become more and more usual since 0:06:35.839 --> 0:06:40.320 the early two thousands, when Congress has decided not always 0:06:40.320 --> 0:06:45.599 to fill those spots. So with a more dysfunctional Congress, 0:06:45.640 --> 0:06:49.280 you have these times where the government's not functioning. The 0:06:49.320 --> 0:06:53.520 administrative agencies are not functioning because they don't have officials 0:06:53.520 --> 0:06:57.400 who have been appointed by the president and confirmed by Congress, 0:06:57.520 --> 0:06:58.880 so you get these backlogs. 0:06:58.880 --> 0:07:03.600 Also, is this is this reluctance coming from the union 0:07:03.680 --> 0:07:08.400 leaders or the workers who might fear the political climate, 0:07:08.760 --> 0:07:12.000 especially in light of the economy and the labor market. 0:07:12.200 --> 0:07:13.800 I mean, where's it coming from? 0:07:14.120 --> 0:07:17.520 Oh? Both, definitely. So from the worker's point of view, 0:07:17.840 --> 0:07:20.800 they're scared. There are people that are afraid to even 0:07:20.880 --> 0:07:24.760 speak out against the president for fear of retaliation because 0:07:25.040 --> 0:07:28.520 we saw that the president decided to fire a large 0:07:28.520 --> 0:07:31.360 percentage of the federal workforce, which he has direct control over. 0:07:31.880 --> 0:07:35.040 So people are afraid to speak out. Now. Whether that's 0:07:35.160 --> 0:07:37.840 justified or not, the historians will tell us that, but 0:07:37.920 --> 0:07:40.440 people certainly are afraid, and so they don't want to 0:07:40.440 --> 0:07:43.920 stick their necks out right now. But union leaders who 0:07:43.960 --> 0:07:47.440 are thinking about these things and hearing from their constituents 0:07:48.040 --> 0:07:51.400 are also concerned, and they're more in the wait and 0:07:51.480 --> 0:07:54.720 see pattern, like, well, let's see what's going on. But 0:07:54.960 --> 0:07:58.160 the workers themselves, i think, are afraid. And they're also 0:07:58.200 --> 0:08:01.760 afraid because the economy is than is good. So when 0:08:01.800 --> 0:08:04.920 you had a much better economy, which despite what everyone 0:08:05.040 --> 0:08:07.600 was saying, we had a pretty good economy under Biden, 0:08:07.880 --> 0:08:11.080 but the economy has been going down and down, and 0:08:11.160 --> 0:08:15.280 the market, the labor market is much tougher right now. 0:08:15.600 --> 0:08:18.640 There's no flacks in the labor market, so it's hard 0:08:18.720 --> 0:08:21.120 if you get fired from a job right now. Let's 0:08:21.160 --> 0:08:25.160 say you're unjustly fired because you're a union activist, you 0:08:25.240 --> 0:08:30.200 may not get another job. It's very tough. So this 0:08:30.440 --> 0:08:34.120 makes people afraid to organize, and it makes the labor 0:08:34.200 --> 0:08:37.640 organizer's job and the labor union leader's job that much 0:08:37.640 --> 0:08:38.240 more difficult. 0:08:38.800 --> 0:08:42.319 You say, wait and see, but don't the unions already 0:08:42.679 --> 0:08:46.760 know where Trump stands, especially with the executive order that 0:08:46.840 --> 0:08:51.160 he issued ending collective bargaining for two thirds of the 0:08:51.200 --> 0:08:56.400 federal workforce. Even before Trump took office, student athletes dropped 0:08:56.520 --> 0:09:00.319 organizing efforts at Dartmouth College and the Universe Stay of 0:09:00.360 --> 0:09:01.359 Southern California. 0:09:02.120 --> 0:09:04.920 Well, that was smart of them, because the General Council 0:09:05.000 --> 0:09:10.120 has withdrawn of Brusso's memo, her General Council Memo stating 0:09:10.440 --> 0:09:14.079 that student athletes are actually employees and should have the 0:09:14.120 --> 0:09:17.960 protections of the board. So we do know almost certainly 0:09:18.240 --> 0:09:21.240 what this board would do with that. So in that issue, 0:09:21.320 --> 0:09:24.800 it's pretty clear. But there are sometimes some very easy issues. 0:09:25.040 --> 0:09:28.800 For example, remember the early two thousands when Bush was 0:09:28.880 --> 0:09:33.600 the president. Chamber and Wilma Leibman, two people that couldn't 0:09:33.600 --> 0:09:37.120 be further apart. A progressive Leaveman and a conservative Chamber 0:09:37.280 --> 0:09:41.240 and very conservative Chamber. They've agreed on six hundred cases together. 0:09:41.400 --> 0:09:43.880 Now they were all found voids by the Supreme Court 0:09:44.000 --> 0:09:46.199 because there was only two and they weren't a quorum, 0:09:46.760 --> 0:09:49.160 but not because of what they decided. Those were all 0:09:49.200 --> 0:09:52.800 easy cases. There's plenty of easy cases to go forward. 0:09:53.600 --> 0:09:57.120 What they're waiting and seeing on and I think what 0:09:57.200 --> 0:10:00.120 they are going to not do is we're not I'm 0:10:00.120 --> 0:10:03.200 not going to see them pushing the envelope on anything 0:10:03.520 --> 0:10:06.000 like I would be surprised if beingan say Okay, we're 0:10:06.000 --> 0:10:08.800 going to ask for expanded remedies right now. I wouldn't 0:10:08.840 --> 0:10:11.520 ask for them because I wouldn't want that precedent to 0:10:11.600 --> 0:10:14.120 go before a court. First of all, I wouldn't want 0:10:14.120 --> 0:10:16.120 to go before the board, and then I wouldn't want 0:10:16.160 --> 0:10:18.920 to go before the court because of what could happen. 0:10:19.160 --> 0:10:21.840 So they're not going to push the student athlete issue 0:10:21.880 --> 0:10:24.400 right now. So if I were student athletes right now, 0:10:24.720 --> 0:10:27.439 I might go for a voluntary recognition, but I wouldn't 0:10:27.480 --> 0:10:31.480 go for anything else. So I understand those issues, but 0:10:31.679 --> 0:10:33.880 we don't really know. Yes, I agree with you that 0:10:34.080 --> 0:10:36.960 the executive order and many of these executive roles, but 0:10:37.040 --> 0:10:39.720 I'm thinking one in particular, the president is trying to 0:10:39.760 --> 0:10:43.239 control the administrative agencies a lot more, and the presidents 0:10:43.280 --> 0:10:46.560 taking the position that he can fire board members, and 0:10:46.640 --> 0:10:48.640 only the Supreme Court can tell us if that's true. 0:10:48.800 --> 0:10:52.200 My guess is, even though right now the precedent at 0:10:52.200 --> 0:10:57.200 the Supreme Court is that he can't fire commissioners or 0:10:57.240 --> 0:11:00.400 board members, that they are likely to reverse that oly 0:11:00.480 --> 0:11:03.720 a split a divided vote, and I'm talking about Humphrey's executor. 0:11:04.400 --> 0:11:08.160 So if he can fire anyone at will, if he 0:11:08.200 --> 0:11:10.040 doesn't like a decision that comes out of the board, 0:11:11.080 --> 0:11:14.000 then he'll just fire the person. So I'm sure that 0:11:14.080 --> 0:11:16.840 these board members are going to be somewhat more beholden 0:11:16.920 --> 0:11:19.240 to the president than they normally were in an independent 0:11:19.320 --> 0:11:23.240 agency where they really were independent of the president. I 0:11:23.240 --> 0:11:25.760 think that will happen. And let's face it, he already 0:11:25.800 --> 0:11:28.679 fired Wilcox, Member Wilcox, and I do want to remind 0:11:28.679 --> 0:11:32.440 the audience that she was the first black female board member, 0:11:32.960 --> 0:11:35.920 and so the look is very, very bad that he 0:11:36.040 --> 0:11:39.880 decides to fire the first board member but not the Democrat, 0:11:39.960 --> 0:11:43.440 white male, And again that could be a coincidence, I 0:11:43.480 --> 0:11:46.120 don't know, but it is a very bad look and 0:11:46.160 --> 0:11:50.439 so it does send a message definitely. But again, the 0:11:50.480 --> 0:11:54.520 president is not going to fire a board member because 0:11:54.720 --> 0:11:58.719 of an obvious, simple case of enforcing the law. I 0:11:58.720 --> 0:12:01.360 think what he would do if it's something that gets 0:12:01.360 --> 0:12:05.680 the chamber upset, that gets Starbucks or Amazon upset, And 0:12:05.720 --> 0:12:09.160 that doesn't mean Starbucks losing a case or an election. 0:12:09.280 --> 0:12:12.760 I mean where Starbucks And this is ridiculous because these 0:12:12.760 --> 0:12:16.400 are expanded remedies or something like that. So yes, I 0:12:16.440 --> 0:12:20.280 think it's just a more nuanced than People always have 0:12:20.440 --> 0:12:22.800 sound bites and they always sort of feel when they're 0:12:22.840 --> 0:12:26.800 in the moment one way or the other. And I 0:12:26.960 --> 0:12:30.320 at least am taking also a wait and see and 0:12:30.400 --> 0:12:35.120 I'm optimistic that it will not be as bad for 0:12:35.320 --> 0:12:38.920 unions as it was other than trump one administration. Let 0:12:39.000 --> 0:12:40.839 me put this way, I wouldn't bet on what I'm saying. 0:12:40.880 --> 0:12:42.959 I just think it's more likely than not, like forty 0:12:43.040 --> 0:12:45.080 nine to fifty one percent. That's where I'm at. 0:12:45.360 --> 0:12:47.880 Coming up next on the Bloomberg Law Show, I'll continue 0:12:47.920 --> 0:12:52.880 this conversation with Professor and lafosso how unions are already 0:12:52.920 --> 0:12:57.000 playing defense. I'm June Grosso and you're listening to Bloomberg. 0:12:58.840 --> 0:13:02.680 A significant draw in union elections and petitions to the 0:13:02.760 --> 0:13:06.280 National Labor Relations Board in the first six months of 0:13:06.440 --> 0:13:10.880 President Donald Trump's second term show that organized labor is 0:13:11.000 --> 0:13:15.439 wary of risking disputes that could lead to unfavorable rulings 0:13:15.480 --> 0:13:20.920 with broader implications. This year's organizing slump is a stark 0:13:20.960 --> 0:13:24.960 contrast to the previous three years, where the NLRB saw 0:13:25.120 --> 0:13:30.400 historic numbers of representation petitions, union elections, and unfair labor 0:13:30.480 --> 0:13:34.440 practice charges filed each year. I've been talking to Professor 0:13:34.440 --> 0:13:39.000 An Lafasso of the University of Cincinnati Law School. Would 0:13:39.080 --> 0:13:44.160 you say that labor unions are playing a defensive role already? 0:13:44.600 --> 0:13:47.280 They're sort of on the front lines of some of 0:13:47.320 --> 0:13:52.640 the legal fights against Trump's reduction inforced plans and moves 0:13:52.679 --> 0:13:57.160 to exclude two thirds of the workforce from collective bargaining rights, 0:13:57.200 --> 0:14:02.240 and initiatives that shutter agents and affect universities. 0:14:03.480 --> 0:14:08.839 Absolutely, unions are definitely on the defensive and they're concerned. 0:14:09.440 --> 0:14:12.920 There's a lot of things means can do, but remember, 0:14:13.400 --> 0:14:16.840 whatever they do for their members, they also can't live 0:14:16.920 --> 0:14:21.480 without members. They need fees because organizing takes money and 0:14:21.840 --> 0:14:26.040 getting benefits for their members takes money. So they are 0:14:26.320 --> 0:14:29.840 on the defensive and they want to survive, and this 0:14:30.000 --> 0:14:30.960 is in their mind. 0:14:31.360 --> 0:14:31.640 Again. 0:14:31.680 --> 0:14:33.440 I can't get into the mind of every union, but 0:14:33.520 --> 0:14:35.520 I wouldn't be surprised if for them this is an 0:14:35.520 --> 0:14:39.400 existential threat. That's how higher education feels right now. I mean, 0:14:39.480 --> 0:14:42.800 I'm a member of a union at my university, and 0:14:42.960 --> 0:14:46.080 we certainly feel that this is an existential threat. People 0:14:46.160 --> 0:14:50.960 are palpably afraid. And by the way, we're a public institution. 0:14:51.520 --> 0:14:53.840 So what's going on in public institutions is at the 0:14:53.880 --> 0:14:56.240 state level, more at the state level, but it's the 0:14:56.280 --> 0:14:58.960 same kind of thing that's going on at least in 0:14:59.000 --> 0:15:02.840 the red state. And I'm in Ohio, which is even 0:15:02.840 --> 0:15:06.720 though Cincinnati is a blue area, the University of Cincinnati 0:15:06.760 --> 0:15:09.600 is a state institution, so we have a state legislature. 0:15:10.160 --> 0:15:12.880 So we are part of the same thing that's going 0:15:12.880 --> 0:15:16.160 on in West Virginia and other red states that are 0:15:16.520 --> 0:15:20.640 part of this idea that unions are not good for 0:15:20.680 --> 0:15:26.160 the economy and that higher education is left wing propaganda. 0:15:26.280 --> 0:15:29.120 And I think a lot of us are afraid to 0:15:29.320 --> 0:15:31.280 speak out. We're afraid. What are we going to do? 0:15:31.320 --> 0:15:33.640 We want to keep our jobs even ten years on 0:15:33.680 --> 0:15:37.160 the line. So it's going on all over the country. 0:15:38.520 --> 0:15:41.560 Is there a sort of culture shock because you went 0:15:41.600 --> 0:15:45.119 from a president who was walking picket lines with striking 0:15:45.240 --> 0:15:52.440 workers to Trumpoo's signing executive orders to limit union rights. 0:15:53.440 --> 0:15:56.320 Probably for a lot of people, it didn't surprise me 0:15:56.520 --> 0:15:59.640 because the whiplash has been going on for so long 0:16:00.120 --> 0:16:03.480 studied it, so it was exactly what I expected. But 0:16:03.720 --> 0:16:09.160 I do think that for many people, especially younger people, right, 0:16:09.200 --> 0:16:12.440 because they don't have that historical I think when you're young, 0:16:13.080 --> 0:16:16.080 you forget there was an existence before you were born, Right, 0:16:16.200 --> 0:16:18.000 You just are born and then this is what you 0:16:18.040 --> 0:16:19.880 grew up. Right. I mean, I have a twenty one 0:16:19.960 --> 0:16:22.760 year old daughter, and so what has she gone through? 0:16:22.840 --> 0:16:23.680 What is she seeing? 0:16:23.840 --> 0:16:24.080 Right? 0:16:24.120 --> 0:16:27.520 And her memories are of Biden mostly a little bit 0:16:27.520 --> 0:16:30.800 of Trump right, And so there is a whiplash for 0:16:30.920 --> 0:16:32.800 a lot of people, and also people who don't pay 0:16:32.800 --> 0:16:35.840 attention as much, but now they're in a union. I'm 0:16:35.840 --> 0:16:38.960 sure there's also a cultural whiplash. For those of us 0:16:39.040 --> 0:16:42.800 who study labor law, we knew this was going to happen. 0:16:43.000 --> 0:16:45.200 None of us were surprised at all of any of this. 0:16:46.040 --> 0:16:49.440 By laying back, now, is there a risk to the 0:16:49.480 --> 0:16:52.640 momentum that the unions seem to have picked up in 0:16:52.680 --> 0:16:53.720 the last few years. 0:16:54.920 --> 0:16:58.520 There's a concern about that. So the concern is, Okay, 0:16:58.840 --> 0:17:01.320 if we stop organized, I think we lose our momentum. 0:17:01.320 --> 0:17:04.160 But if we organize, we might get bad results. This 0:17:04.200 --> 0:17:06.960 is why you're in this paralysis this way, and see, 0:17:07.359 --> 0:17:10.679 because there's this one push to kind of keep the 0:17:10.720 --> 0:17:13.439 momentum up. People want unions more than ever in like 0:17:13.600 --> 0:17:15.880 at least the last seventy five years. Well it could 0:17:15.880 --> 0:17:19.359 be longer even, you know. So they're more popular today 0:17:19.400 --> 0:17:22.760 than they've been certainly in my lifetime. But at the 0:17:22.760 --> 0:17:27.000 same time, you have an administration that's more hostile to 0:17:27.200 --> 0:17:32.800 unions definitely since before FDR, so before the New Deal, 0:17:33.200 --> 0:17:35.320 you know, when you have the horrors of what was 0:17:35.359 --> 0:17:38.960 going on in the Industrial Revolution and the hostility to 0:17:39.119 --> 0:17:43.280 unions back then. So there is a paralysis right now, 0:17:43.440 --> 0:17:46.400 and you know which way do we go. You're at 0:17:46.640 --> 0:17:50.399 a path that's splitting right now. Now. Do you go 0:17:50.520 --> 0:17:54.600 in this relatively aggressive way and continue the momentum or 0:17:54.640 --> 0:17:58.639 do you stop or do you do something less aggressive 0:17:58.640 --> 0:18:00.520 but you can keep up the momentum. What is the 0:18:00.600 --> 0:18:03.040 right choice? And I think people don't know what the 0:18:03.080 --> 0:18:06.080 right choice is right now, and that's that's the problem. 0:18:06.640 --> 0:18:11.280 What role will the Supreme Court play. You talked about Wilcox. 0:18:11.560 --> 0:18:14.119 In that case, we'll probably go up to the Supreme Court. 0:18:14.240 --> 0:18:17.359 But what about other decisions. Is there anything likely to 0:18:17.359 --> 0:18:21.160 come before the Supreme Court, which has ruled against unions 0:18:21.200 --> 0:18:22.960 time and time again recently. 0:18:23.560 --> 0:18:27.399 Yeah, I think the strategy will be for unions to 0:18:27.480 --> 0:18:30.399 keep those cases out of the Supreme Court. If they lose, 0:18:30.440 --> 0:18:34.400 they won't petition for sorcerai. If they win, fits out 0:18:34.400 --> 0:18:38.800 of their hands the employer will petition. But the problem 0:18:38.960 --> 0:18:42.560 is that the board going to be more pro employer 0:18:43.000 --> 0:18:46.320 is going to flip positions, and so they might be 0:18:46.440 --> 0:18:48.320 able to keep a lot of things out of the 0:18:48.359 --> 0:18:50.840 Supreme Court. They won't be able to keep the administrative stuff, 0:18:50.840 --> 0:18:53.040 the constitutional stuff out because the Supreme Courts can be 0:18:53.119 --> 0:18:56.000 really interested in things like the Wilcox decision, but the 0:18:56.040 --> 0:18:59.720 actual labor law decisions. What I think is more likely 0:18:59.840 --> 0:19:03.159 is that they can get a decision up there about 0:19:03.200 --> 0:19:07.480 whether or not the board was entitled defference. And so 0:19:08.359 --> 0:19:10.320 a lot of people think that's a dead end because 0:19:10.440 --> 0:19:14.040 of Low or Bright overrules Chevron, But there's still difference, 0:19:14.640 --> 0:19:16.600 and there's certain types of difference, and right now the 0:19:16.640 --> 0:19:20.639 courts are split on how to what that difference looks like. 0:19:21.200 --> 0:19:24.439 Is it completely denovo so there's absolutely no difference. We 0:19:24.520 --> 0:19:27.560 know there's not complete difference like there was Undershovar, which 0:19:27.600 --> 0:19:32.080 was not complete, but it was very, very deferential. But 0:19:32.800 --> 0:19:36.400 there's also something called skidmore difference, where you take into 0:19:36.400 --> 0:19:39.399 consideration the history and the purpose of the act and 0:19:39.440 --> 0:19:42.600 what the board has done in the past. So it's 0:19:42.600 --> 0:19:47.480 interesting that some courts aren't doing that at all, like 0:19:47.560 --> 0:19:49.879 the Fifth Circuit and to some extent of sixth Circuit, 0:19:50.200 --> 0:19:52.600 and other courts are really struggling with that, like the 0:19:52.600 --> 0:19:55.359 Third Circuit that's really thinking about that in a very 0:19:55.440 --> 0:19:59.280 nuanced way. I applauded the Third Circuit for is doing so. 0:19:59.640 --> 0:20:02.320 I think that is more likely to come up and 0:20:02.480 --> 0:20:05.439 what the labor issue is would be more accidental and 0:20:05.480 --> 0:20:06.520 maybe even surprising. 0:20:06.840 --> 0:20:08.240 You talked about whiplash. 0:20:08.600 --> 0:20:09.800 This is a big, big picture. 0:20:10.280 --> 0:20:14.760 Are unions forever dependent on you know, which administration is 0:20:14.800 --> 0:20:15.359 in power. 0:20:16.240 --> 0:20:20.280 Maybe? On the other hand, maybe not. Because one of 0:20:20.280 --> 0:20:24.080 the things that Supremecourt wants to accomplished by overturning Chevron 0:20:24.320 --> 0:20:27.200 through its life or Bright decision was to stop this 0:20:27.320 --> 0:20:31.280 whiplash and saying we are the final arbiters of what 0:20:31.600 --> 0:20:35.960 the law is. And therefore I think in the long 0:20:36.040 --> 0:20:38.000 run there's going to be more labor issues going up 0:20:38.040 --> 0:20:41.800 to the Supreme Court again, because the court is going 0:20:41.880 --> 0:20:45.560 to decide when there's a big whiplash like this, they're 0:20:45.560 --> 0:20:47.240 going to say, we can't have this, we can't just 0:20:47.320 --> 0:20:49.480 keep in going back and forth. So you can see 0:20:49.760 --> 0:20:53.040 a lot of the old decisions that were done before Chevron. 0:20:53.680 --> 0:20:56.160 No one's going to touch those. I would be really surprised, 0:20:56.160 --> 0:21:00.520 like Republic Aviation and will leach Mir Republica Vias very 0:21:00.520 --> 0:21:03.320 pro union. Leachmere is not pro unions for pro business, 0:21:03.600 --> 0:21:07.480 but there are similar issues those cases. They were done 0:21:07.520 --> 0:21:11.040 before Chevron, and there was there was a lot more stability, 0:21:11.400 --> 0:21:14.440 but as you gave the board difference and as long 0:21:14.480 --> 0:21:17.960 as they just explained their change, the courts were sort 0:21:17.960 --> 0:21:21.240 of hamstrung unless there were individual judges that just were 0:21:21.240 --> 0:21:23.479 not going to give them difference, which there were. There 0:21:23.480 --> 0:21:26.720 were individual judges not paying much attention to Chevrons for 0:21:26.800 --> 0:21:31.240 various reasons. So I think that the Supreme Court may 0:21:31.480 --> 0:21:34.119 just decide these things now with a very conservative court, 0:21:34.400 --> 0:21:36.679 they may decide them in a way that unions don't like, 0:21:37.359 --> 0:21:40.440 So that would be the downside until the court becomes 0:21:40.640 --> 0:21:43.640 once again more progressive, which will happen. I mean, there's 0:21:43.640 --> 0:21:45.280 always going to be changed, but of course the supprove 0:21:45.320 --> 0:21:48.840 Court changes much more slowly, so there won't be a whiplash. 0:21:49.160 --> 0:21:53.639 With agencies, they're much more accountable to whatever the democratic 0:21:53.680 --> 0:21:57.160 process was, So whoever's in power, it can change every 0:21:57.160 --> 0:21:59.720 four years. It rarely goes more than eight years without 0:21:59.720 --> 0:22:01.480 a case occasionally. I mean, the one I can think 0:22:01.520 --> 0:22:04.760 of was Reagan. Reagan to Bush. There was twelve years 0:22:04.800 --> 0:22:09.560 of Republican rule, and then you had eight years of Clinton, 0:22:10.280 --> 0:22:13.440 eight years of Bush, and then eight years and then 0:22:13.680 --> 0:22:16.439 four to four and it will be four again, and 0:22:16.480 --> 0:22:18.399 then we'll see if it goes to a Republican or 0:22:18.440 --> 0:22:21.560 a Democrat. And then it's the president who decides the 0:22:21.600 --> 0:22:25.720 Supreme Court. But you have to have the openings the president, 0:22:26.000 --> 0:22:29.480 especially if they can fire board members, they can literally 0:22:29.600 --> 0:22:34.600 change extremely quickly, extremely quickly, and that's your whiplash. So 0:22:35.480 --> 0:22:40.240 I think the hope is among business people, especially because 0:22:40.280 --> 0:22:43.800 businesses can survive, but they don't like environments where the 0:22:43.880 --> 0:22:47.119 laws are not predictable. I think that we might see 0:22:47.160 --> 0:22:50.159 some a little bit more stability. Maybe not in the 0:22:50.200 --> 0:22:52.720 short run, but in the long run we might see 0:22:52.760 --> 0:22:55.720 more stability. Again, I'm taking a look and see. I'm 0:22:55.720 --> 0:23:00.840 waiting because while that would be my logical, rational take 0:23:00.960 --> 0:23:03.760 on this, humans are not always rational, so who knows 0:23:03.800 --> 0:23:06.160