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

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Speaker 2: It's a war man.

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Speaker 3: That's Todd Blanche, the second in command at the Justice Department,

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Speaker 3: saying the department is at war with federal judges. Blanche,

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Speaker 3: echoing words often used by President Trump and Attorney General

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Speaker 3: Pam Bondi, criticized rogue activist judges for their decisions against

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Speaker 3: the Trump administration.

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Speaker 2: These activist judges that they have a RoboN, but they

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Speaker 2: are more political, or certainly as political as the most

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Speaker 2: liberal governor of da.

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Speaker 3: Speaking at a Federalist Society event, the Deputy Attorney General

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Speaker 3: defended the Justice Department against claims of weaponization and then

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Speaker 3: urged young conservative lawyers to join the war against judges.

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Speaker 2: And I looked around, and I said to myself, man,

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Speaker 2: there has got to be a couple dozen young lawyers

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Speaker 2: who are thirsty and hungry and ready to work because

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Speaker 2: we need you, because because it is a war.

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Speaker 3: Well, a group of federal judges is pushing back against Blanche,

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Speaker 3: saying the language he used poses a grave threat to

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Speaker 3: the rule of law, and the judiciary joining me from

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Speaker 3: the keep our Republic's Article three coalition is retired Judge

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Speaker 3: Johnny Jones, the third formerly of the US District Court

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Speaker 3: for the Middle District of Pennsylvania. Judge Jones, First, your

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Speaker 3: reaction to the Deputy Attorney General saying that the Justice

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Speaker 3: Department is at war with the judiciary.

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Speaker 4: I think that the comment is at minimum ment opportunity,

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Speaker 4: and I think writ large, it's grossly respond for the

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Speaker 4: number two individual at the Department of Justice to characterize

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Speaker 4: anything involving the federal judiciary as a war at war

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Speaker 4: against so called rogue judges. It is highly problematic and

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Speaker 4: I think it's causing a great deal of consternation among

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Speaker 4: the judiciary, not just active judges, but retired judges as well.

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Speaker 3: He said, we have judges literally telling the president the

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Speaker 3: executive what he can and cannot do. We have seen

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Speaker 3: judges not following the law on the Constitution, and he

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Speaker 3: said they have a row bomb. But they are more political,

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Speaker 3: or certainly as political as the most liberal governor or

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Speaker 3: da Well.

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Speaker 4: June, here's a newsflash. That's exactly what judges are supposed

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Speaker 4: to do, is say what the law is. They've been

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Speaker 4: interpreting the law, of course since Marbury versus Madison. And again,

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Speaker 4: I think he's protesting too much. What he's really striking

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Speaker 4: out against our decisions that are, in the judges view,

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Speaker 4: in accordance with the law and legal precedent. Simply because

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Speaker 4: you disagree with the decision doesn't mean that you're at

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Speaker 4: war with the judge who made the call. The government

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Speaker 4: is fully able to exercise its appellate rights, and in

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Speaker 4: fact they have in any number of these cases. So

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Speaker 4: you know, to say that judges are political simply because

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Speaker 4: they rendered a decision that you don't agree with is

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Speaker 4: really a baseless allegation. I guess red meat, if you will,

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Speaker 4: for the conservative lawyers in the Federalist society, But I

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Speaker 4: would suspect that a lot of those lawyers entertained, though

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Speaker 4: they may have been no better.

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Speaker 3: So his target was sort of on the district court judges,

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Speaker 3: the trial court level, and he said that when it

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Speaker 3: gets to the Supreme Court, the Supreme Court has reversed

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Speaker 3: them all except for one or two times, which is true,

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Speaker 3: but that assumes that the conservative majority on the Supreme

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Speaker 3: Court is right and the federal district judges are wrong.

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Speaker 3: And these decisions were all made on the emergency docket

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Speaker 3: without full briefing or oral arguments.

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Speaker 4: Well, a couple of things I'd say about that, there

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Speaker 4: are far more decisions that are standing than ones that

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Speaker 4: are appealed to the Supreme Court. As you know, that

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Speaker 4: court has a discretionary docket. So some of these lower

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Speaker 4: court decisions have stood up simply because the Supreme Court

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Speaker 4: hasn't taken them. Now, it is noteworthy that the Supreme

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Speaker 4: Court has placed on its emergency dock at a number

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Speaker 4: of different cases. And yes, the government has been successful.

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Speaker 4: I don't know that it's necessary under the circumstances for

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Speaker 4: mister blanche, you know, to be a sore winner and

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Speaker 4: do a sort of victory dance about that and castigate

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Speaker 4: lower court judges. You know, the Supreme Court gets the

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Speaker 4: final word on these cases. But I can go over

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Speaker 4: any number of cases that district courts have heard and

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Speaker 4: have indicated that those decisions are in accordance with precedent

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Speaker 4: and the law under the circumstances. You know, these are

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Speaker 4: close questions in some cases as well. But again, this

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Speaker 4: sort of or winterer thing is pretty wearying and unbecoming. Again,

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Speaker 4: i'd say the Department of Justice that I knew and

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Speaker 4: worked with and was very professional during my nearly two

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Speaker 4: decades on the federal bench.

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Speaker 3: The number of threats against federal judges have skyrocketed. As

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Speaker 3: you know, what does it do when you have the

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Speaker 3: second in command saying things like this, saying, you know,

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Speaker 3: we're at war, saying that judges are not following the law,

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Speaker 3: they're not following what the Supreme Court says. What does

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Speaker 3: that do when the general public hears something.

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Speaker 4: Like that, Well, you have to take it in concert

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Speaker 4: June with what's been happening for this entire year since

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Speaker 4: January twentieth, which is that judges are being singled out

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Speaker 4: by name, their families are being singled out, they're being docked.

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Speaker 4: Anybody can find the location of a judge, even though

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Speaker 4: there's been legislation to redact and hide some of their

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Speaker 4: personal information, and I think fairly judges are frightened. It

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Speaker 4: puts a bullseye on judges, and you correctly site the

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Speaker 4: US Marshall Service as indicated that threats against judges there

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Speaker 4: were five hundred plus bona fide threats in the last

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Speaker 4: fiscal year, and they're growing exponentially. I've always said that,

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Speaker 4: you know, there are a lot of people that disagree

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Speaker 4: with judges' decisions, that's the nature of the business. But

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Speaker 4: it's that small percentage of unbalanced people who kind of

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Speaker 4: hear this as a dog whistle. And I have said

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Speaker 4: for years, because of this employmentatory rhetoric, that we're going

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Speaker 4: to get a judge hurt or killed. You need only

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Speaker 4: look back at my former colleague, Ester Sallus's tragedy. You

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Speaker 4: know where son Danny was was shot and killed back

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Speaker 4: in twenty twenty. I fear that's going to happen again

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Speaker 4: if we don't dial down the rhetoric again. This goes

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Speaker 4: to the irresponsibility of mister Blanche's comments. We need to

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Speaker 4: level set here instead of making it worse.

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Speaker 3: And to put this in context, these weren't casual remarks

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Speaker 3: because we've heard similar remarks from the Attorney General, Pam Bondy.

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Speaker 3: She's actually called out individual judges for their decisions and

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Speaker 3: the President himself. Is there some kind of strategy at

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Speaker 3: play here by the Justice Department? Are they trying to

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Speaker 3: scare judges? What's at play?

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Speaker 4: Well, if they're trying to scare judges, that won't work

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Speaker 4: because I think fairly my friends and former colleagues and

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Speaker 4: the judiciary are not easily frightened sure. I mean, there

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Speaker 4: may be a motivation to have them look over their shoulders.

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Speaker 4: I think what it is is it tears down the

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Speaker 4: integrity of the judicial system. All three branches, I think,

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Speaker 4: at bottom, have a responsibility to uphold the integrity of

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Speaker 4: their existence as coequal branches of government. We are seeing

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Speaker 4: this unitary president going wild. Now there's another problem here, June,

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Speaker 4: and I think it's that we are losing any line

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Speaker 4: of distinction between the President and the Department of Justice.

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Speaker 4: Of course, not naive. There's always some interaction between the

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Speaker 4: President and the Department of Justice, but they've almost become

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Speaker 4: one and the same, which I think is truly troubling.

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Speaker 4: So this is the number two man, and in fact

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Speaker 4: the Attorney General doing the bidding for the President of

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Speaker 4: the United States and simply parroting his view of federal

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Speaker 4: judges and carrying out We know this now because we've seen,

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Speaker 4: you know, some of the things that the president has

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Speaker 4: written and thought that he was playing to an audience,

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Speaker 4: for example General Bondi and instructing them to prosecute people.

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Speaker 4: I think my conservative lawyer friends, you know, for example,

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Speaker 4: who listened to Todd Blanche ought to be careful what

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Speaker 4: they wish for, because in a world like that, I

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Speaker 4: don't think anybody is particularly safe.

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Speaker 3: And Blanche denied that the Justice Department was being weaponized,

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Speaker 3: and he said the Justice Department had been weaponized before

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Speaker 3: in the Biden administration. And then he talked about the

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Speaker 3: prosecutions against Trump. Of course, he didn't address the prosecutions

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Speaker 3: against former FBI Director James Comy and New York Attorney

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Speaker 3: General Letitia James.

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Speaker 4: My response to that, June is, you know, I saw

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Speaker 4: in the news a little earlier today that there was

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Speaker 4: a statement bayded by the New York Bar Association criticizing Blanche,

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Speaker 4: and his response was LOL. To that, well, my response

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Speaker 4: to what mister Blanche said about weaponization is LOL. You know,

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Speaker 4: it's the same thing. If this isn't weaponizing the Justice Department.

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Speaker 4: You know, people may disagree or agree about weaponization during

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Speaker 4: the Biden administration. I'm talking about the here and now.

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Speaker 4: I don't think we've seen a stark a weaponization of

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Speaker 4: the Department of Justice ever. Think about the DOJ as

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Speaker 4: it participated in the efforts the executive orders against law firms.

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Speaker 4: You know, they litigated those cases. You know, it was

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Speaker 4: lawyer on lawyer through that. You know, think about mister

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Speaker 4: Blanche traveling to federal prison to see Glaine Maxwell and

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Speaker 4: getting a statement from her. We know now that he

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Speaker 4: probably had access to emails that directly contradict did what

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Speaker 4: she apparently told him, looking like every bit the president's

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Speaker 4: personal lawyer instead of the number two man at Justice.

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Speaker 4: I mean, we're in a world that is vastly different

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Speaker 4: than anything I've ever seen in terms of the interaction

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Speaker 4: between the Justice Department and the courts. When I was

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Speaker 4: a judge, by the way, you know, I thought federal

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Speaker 4: judges had pretty enormous power to be used very sparingly

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Speaker 4: and carefully. We're now living in a time when essentially

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Speaker 4: the President of the United States and the Department of Justice,

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Speaker 4: they're saying, in as many words, just disregard district court judgments.

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Speaker 4: They're not worth the electronic ink that's being used to

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Speaker 4: render them. I don't think that that's helpful or appropriate

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Speaker 4: in any way in terms of integrity of the third

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Speaker 4: branch of government.

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Speaker 3: Judge Jones, he didn't just attack judges. He also attacked

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Speaker 3: the bar associations. And explain this to me if you can.

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Speaker 3: He vowed to take away the bar association's oversight power,

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Speaker 3: saying that the DOJ would now be reviewing complaints in

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Speaker 3: house first with its ethics department, which I'm not sure

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Speaker 3: exists anymore because the head of it was fired a

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Speaker 3: while back. Aren't the complaints against Justice Department lawyers filed

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Speaker 3: with the bar associations? I mean, does the Justice Department

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Speaker 3: have any power here?

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Speaker 4: I confess June to confusion about as well, about how

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Speaker 4: that could be accomplished, because you're a member of a

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Speaker 4: bar association, and you know, in Pennsylvania, for example, the

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Speaker 4: Pennsylvania Bar Association police is its own and they can

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Speaker 4: deprive you, suspend you. The Supreme Court of Pennsylvania can

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Speaker 4: get involved and suspend your right to practice for a period,

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Speaker 4: or they can disbar you. So good luck with that.

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Speaker 4: I don't know how you do that at all. You know,

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Speaker 4: not only is it I think an overreach from a

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Speaker 4: rhetorical standpoint, but I think it's it's mission impossible. So

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Speaker 4: I confess I don't know what he has in mind.

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Speaker 3: There and your group. The Article three Coalition has responded

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Speaker 3: to Blanche's remarks.

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Speaker 4: The Article three Coalition, of course, put out a statement today.

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Speaker 4: You know this is fifty judges banding together retired judges.

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Speaker 4: I should say that this is something that we feel

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Speaker 4: in unanimity that is really injurious to the rule of law.

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Speaker 4: And you know, if you can get fifty retired, you know,

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Speaker 4: thoughtful appointed by different presidents, you know, folks at different

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Speaker 4: viewpoints going the same direction. Like this you're doing. You've

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Speaker 4: got something that that is really really problematic, and you know,

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Speaker 4: I was proud to join that group. I fear it's

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Speaker 4: going to get worse before it gets better, and that's

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Speaker 4: really troubling.

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Speaker 3: Well, thank you for sharing your concerns and insights with us.

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Speaker 3: That's Judge Johnny Jones. The third unionized Starbucks workers went

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Speaker 3: on strike at stores in forty five cities today to

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Speaker 3: protest what they call the company's union busting and failure

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Speaker 3: to finalize a union deal. Starbucks workers first voted to

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Speaker 3: unionize at a store in Buffalo back in twenty twenty one.

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Speaker 3: Four years later, around five hundred and fifty Starbucks stores

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Speaker 3: are unionized, but the company still hasn't reached a contract

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Speaker 3: agreement with the union. Starbucks Workers United accuses the heads

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Speaker 3: of the coffee giant of stone walling baristas on their

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Speaker 3: demands for better hours and better pay, and the resolution

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Speaker 3: of hundreds of outstanding unfair labor practice charges. And on

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Speaker 3: the legal front, Starbucks and the National Labor Relations Board

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Speaker 3: squared off in a federal appeals court for the eighth

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Speaker 3: time in the last two and a half years, with

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Speaker 3: even more cases on deck stemming from the coffee chain's

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Speaker 3: aggressive pushback against union organizing. My guest is labor and

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Speaker 3: employment law expert Kate Andreas, a professor at Columbia Law School.

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Speaker 3: So this is the eighth federal appeals court argument in

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Speaker 3: the last two and a half years. They're arguing two

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Speaker 3: more cases at the Fifth Circuit next month, and there

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Speaker 3: are five other pending appellate court cases. I mean, is

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Speaker 3: this number of federal appellate court cases unusual for a company?

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Speaker 3: It sounds like a lot.

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Speaker 1: It is unusual, And I think there's three things going on.

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Speaker 1: One is that there's been a massive effort at organizing

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Speaker 1: among the workers. We went from having zero Starbucks stores

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Speaker 1: organized back in early twenty twenty one to the numbers

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Speaker 1: are disputed, but it looks like about six hundred and fifty.

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Speaker 1: So just that volume of organizing produces a lot of

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Speaker 1: legal issues. The second thing I think is going on

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Speaker 1: is that Starbucks has violated the law, or at least

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Speaker 1: allegedly violated the law in many ways across the country,

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Speaker 1: and so that produces a lot of legal cases. But

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Speaker 1: the third thing, and this came through at the oral

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Speaker 1: argument yesterday, is that the legal landscape is shifting, and

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Speaker 1: so there's a lot more opportunity to challenge long standing

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Speaker 1: board precedent, both because of changes with the Executi branch

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Speaker 1: and the administration, but also because of changes at the

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Speaker 1: Supreme Court with administrative law.

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Speaker 3: And Starbucks workers first voted to unionize at a store

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Speaker 3: in Buffalo in twenty twenty one. They're striking today in

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Speaker 3: more than twenty five cities. They've been negotiating, I take it,

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Speaker 3: but they haven't been able to reach an agreement yet.

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Speaker 1: Exactly. Yeah, I mean, I think the workers are striking

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Speaker 1: for really two reasons. One is to protest the unfair

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Speaker 1: labor practices committed by the company, and the others to

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Speaker 1: try to achieve a fair contract. And their demands include

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Speaker 1: higher wages and more fair scheduling and things like that.

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Speaker 1: The law requires the company to bargain in good faith,

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Speaker 1: but it doesn't create a mechanism to impose a contract,

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Speaker 1: and so it's not uncommon for it to take a

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Speaker 1: long time to reach a first contract because frequently employers

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Speaker 1: really resist negotiating a first contract, and the law doesn't

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Speaker 1: give the workers a lot of mechanisms to force that.

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Speaker 1: The mechanism is to exercise economic pressure through a strike

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Speaker 1: and through trying to put public pressure on a company,

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Speaker 1: and that's what they're trying to do.

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Speaker 2: Now.

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Speaker 1: It's really fairly remarkable to see this much organizing, especially

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Speaker 1: by young people across the country, and this is an

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Speaker 1: expression of their effort to improve their jobs.

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Speaker 3: They've struck on Red Cup Day for the last four years.

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Speaker 3: I don't know is it getting across to the public.

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Speaker 3: Is Starbucks suffering at all?

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Speaker 1: I think one difference, and we'll see if it ultimately

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Speaker 1: makes a difference, is that they continue to organize more stores.

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Speaker 1: So now we're talking about over six hundred stores organized,

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Speaker 1: and in order to really make an economic difference for

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Speaker 1: the company, it has to be big and it has

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Speaker 1: to affect a lot of the stores.

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Speaker 3: Let's talk about the case at the second circuit, where

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Speaker 3: the issue is the wearing of Union T shirts and buttons.

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Speaker 3: The average person might say, Okay, they can't wear you

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Speaker 3: onon T shirts or buttons. I can't wear certain things

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Speaker 3: at work either. Why is this so important that there

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Speaker 3: have been so many cases about it?

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Speaker 1: Yeah, so absolutely right. I mean, in most work sites,

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Speaker 1: when there's no union and no union organizing, employers pretty

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Speaker 1: much have the right to do whatever they want. They

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Speaker 1: can't discriminate on basis of race or sex or something

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Speaker 1: like that, but they can tell workers what to wear,

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Speaker 1: what time to show up, when to go to the bathroom,

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Speaker 1: track people's movements with AI and other technology. But the

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Speaker 1: law creates protections for the right to organize. The National

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Speaker 1: Labor Relations Act, which was passed in nineteen thirty five,

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Speaker 1: gives workers a right to engage in concerted action for

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Speaker 1: mutual aid or protection. And that means that workers have

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Speaker 1: the right to get together to organize a union, or

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Speaker 1: to get together to just try to improve their jobs.

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Speaker 1: And all the way back to the early days of

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Speaker 1: the National Labor Relations Act, the Board and the Supreme

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Speaker 1: Court have held that part of that right is to

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Speaker 1: engage an expression of support for union activity, including by

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Speaker 1: wearing union buttons, union T shirts, and other union insignia.

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Speaker 1: At the same time, the Board and the court have said, well,

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Speaker 1: we have to balance that interest with employer's interests in

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Speaker 1: managing the work site. So basically the approach has been

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Speaker 1: to balance worker's right to engage in concerted activity, to

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Speaker 1: join a union and should show their support for the union,

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Speaker 1: even if otherwise the employer might prohibit wearing buttons with

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Speaker 1: employer's right to manage their work sites. And to do that,

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Speaker 1: it's been for many, many decades, the board's rule has been,

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Speaker 1: there's a presumption in favor of allowing workers to wear

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Speaker 1: buttons or union t shirts or other union insignia in

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Speaker 1: order to mindicate their right to organize. However, if the

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Speaker 1: employer can show that there's a special exception that means

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Speaker 1: that particular workers should not be allowed to wear union

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Speaker 1: buttons or union insignia, then the employer can prohibit them

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Speaker 1: or can limit them. Certain special exceptions include things like

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Speaker 1: patient care and hospitals, and also sometimes include public facing

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Speaker 1: jobs like at Starbucks. So what Starbucks is saying here

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Speaker 1: is is this a public facing job. Our image is important,

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Speaker 1: and so we can limit the extent to which workers

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Speaker 1: can show their support for the union.

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Speaker 3: And is it about wearing a union t shirt and

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Speaker 3: more than one union button.

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Speaker 1: Yeah, the Starbucks rule is that workers can wear only

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Speaker 1: one union button and they cannot wear any T shirts

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Speaker 1: with messages other than messages the company has approved. So

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Speaker 1: that's what makes the case a bit complicated. If the

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Speaker 1: Starbucks rule was no messages at all, or no different

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Speaker 1: T shirts at all, or no union buttons at all,

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Speaker 1: the whole analysis might be easier. But basically, they're saying

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Speaker 1: you can wear one union button and no union T shirts,

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Speaker 1: and the board says that there's a right to wear

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Speaker 1: union T shirts, there's a right to wear union buttons,

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Speaker 1: and you haven't shown that there's a special exception for you,

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Speaker 1: because in fact, you allow workers to wear T shirts

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Speaker 1: with messages. Workers at Starbucks are allowed to wear various

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Speaker 1: messages that are approved by the company. So that's the cruxit.

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Speaker 1: The issue, I think, stepping back, what's really at stake

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Speaker 1: and what kind of came through in the argument is

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Speaker 1: to what extent workers are going to continue to have

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Speaker 1: the right to engage in pro union expression at work

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Speaker 1: versus how much is an employer able to control that

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Speaker 1: or to limit it, even if it doesn't have a

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Speaker 1: really good reason for doing so. And the Court of

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Speaker 1: Appeals appear to be quite sympathetic to the employer's desire

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Speaker 1: to control what workers are wearing, even if it limits

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Speaker 1: their ability to engage in union expression, especially because here

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Speaker 1: there was some limited right to wear a union button.

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Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 3: this conversation with Columbia Law School professor Kate Andreas. We'll

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Speaker 3: talk about how a recent Supreme Court decision may play

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Speaker 3: in the case at the Second circuitue and you're listening

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Speaker 3: to Bloomberg, a federal appeals court expressed skepticism toward the

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Speaker 3: National Labor Relation Board's precedent for employee dress codes that

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Speaker 3: it applied to rule against Starbucks. The case before the

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Speaker 3: Second Circuit centers on the nrb's ruling last year that

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Speaker 3: Starbucks illegally prohibited shirts with graphics on them, including union insignia,

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Speaker 3: and the board also found fault with the company banning

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Speaker 3: workers from wearing more than one pin related to labor

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Speaker 3: organizing or any advocating for personal, political, or religious issues.

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Speaker 3: I've been talking to professor Kate Andreas of Columbia Law School. So, Kate,

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Speaker 3: this was before the Second Circuit in Manhattan, but in

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Speaker 3: twenty twelve, didn't they already uphold the Starbucks policy to

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Speaker 3: wear only one union pin.

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Speaker 1: They did, but they did so in a different circuit

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Speaker 1: from stance, a different store with a different background uniform rule.

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Speaker 1: So in that other store, there wasn't the right to

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Speaker 1: wear all these other buttons and all these other messages.

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Speaker 1: And so here what the Board is saying is you

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Speaker 1: have a different uniform policy here where you allow a

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Speaker 1: lot of messages and you allow all these buttons. This

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Speaker 1: doesn't kind of meet the same requirement.

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Speaker 3: So is this the same issue that the Fifth Circuit

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Speaker 3: and the Eighth Circuit ruled on? Is it the exact

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Speaker 3: same issue?

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Speaker 1: It's similar. It's not the exact same issue because the

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Speaker 1: facts are very different in the different cases, but it's

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Speaker 1: a similar issue, Which is is the board's long standing

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Speaker 1: rule now granted during the Trump admitisation, there was a

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Speaker 1: brief period where this rule wasn't in place, but it's

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Speaker 1: been a long standing rule that makes it very hard

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Speaker 1: for employers to limit the extent to which workers can

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Speaker 1: wear union insignia. Is that going to stand or are

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Speaker 1: the courts that feels going to limit that rule and

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Speaker 1: give employers more ability to restrict what workers can do,

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Speaker 1: and different versions of that issue have come up with

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Speaker 1: different sets of facts, but that's coming up in numerous differencer.

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Speaker 3: So I haven't been to this Starbucks, but it sounds unique.

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Speaker 3: Former CEO Howard Schultz compared it to Willie Wonka having

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Speaker 3: built the ultimate coffee shop instead of a chocolate factory,

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Speaker 3: and it has an overall quote steampunk, hipster chic design esthetic.

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Speaker 3: So Second Circuit Judge Susan Carney, an Obama appointee, said

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Speaker 3: that Starbucks imposing this dress code in accordance with a

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Speaker 3: general desire to create a vibe for this retail establishment,

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Speaker 3: seems to be a reasonable position. However, she also said

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Speaker 3: it's kind of inconsistent with the notion that no personal

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Speaker 3: or cause oriented messages can be displayed because of the

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Speaker 3: steampunk hip vibe, when in fact there's a lot of

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Speaker 3: other kinds of social issue messaging that Starbucks is allowing.

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Speaker 3: But another judge, William Nardini, a Trump appointee, said, do

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Speaker 3: do workers have a right to wear union hats and

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Speaker 3: giant blinking signs sandwich boards that say hooray for the union?

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Speaker 3: Did it seem like the judges were not sympathetic to

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Speaker 3: the union and the NLRB.

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Speaker 1: Here, yeah, I mean I think well, first at Carney's

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Speaker 1: point seemed to be, look, you're allowing all these other messages,

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Speaker 1: so why not allow union t shirts? But even she

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Speaker 1: seems skeptical of the Board's position, and the other judges also,

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Speaker 1: I think, seemed skeptical of the Board's position.

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Speaker 3: Now, this has been the Board's.

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Speaker 1: Position basically since the nineteen forties. The Quarter of Appeals

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Speaker 1: judges seemed to be suggesting that the Board was interpreting

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Speaker 1: the Lontanan rule too broadly as applied to these facts.

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Speaker 1: It's not clear what's going to happen with the decision,

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Speaker 1: but I do think the judges were expressing skepticism of

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Speaker 1: the Board's desire to protect so robustly the ability of

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Speaker 1: workers to wear insignia in public facing jobs.

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Speaker 3: And will you just explain again what the board's rule

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Speaker 3: is is that the Tesla rules.

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Speaker 1: Well, it dates all the way back to this early

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Speaker 1: early case called public Aviation, which on the Board decided

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Speaker 1: and then the Supreme Court affirmed, which established a series

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Speaker 1: of presumptions about what workers can do and what they

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Speaker 1: can't do. And it was developed in further cases, including

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Speaker 1: one involved in a hospital. But more recently, the Board

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Speaker 1: has elaborated the rule in the Tesla case and others

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Speaker 1: where it has made very clear that there's a lot

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Speaker 1: of protection for workers' ability to wear union insignia. If

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Speaker 1: an employer is going to restrict it because of a

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Speaker 1: special exception because of the particular context of the work,

437
00:25:30,240 --> 00:25:32,560
Speaker 1: it has to show that it really needs to do that.

438
00:25:33,160 --> 00:25:37,280
Speaker 3: So the judges were asking about what level of deference

439
00:25:37,600 --> 00:25:41,320
Speaker 3: court should apply to the Board's decisions. This relates to

440
00:25:42,160 --> 00:25:45,080
Speaker 3: the Supreme Court case Lope or Brides. So explain how

441
00:25:45,160 --> 00:25:47,280
Speaker 3: the landscape is different right now?

442
00:25:47,440 --> 00:25:52,240
Speaker 1: Yeah, So historically, really, since the statute, the Nationalianbrre Relations

443
00:25:52,320 --> 00:25:55,720
Speaker 1: Act was first enacted, the courts of appeals have given

444
00:25:55,800 --> 00:26:00,000
Speaker 1: a lot of deference to the board's legal interpretations status

445
00:26:00,359 --> 00:26:04,040
Speaker 1: and also its application of the law to facts. Even

446
00:26:04,080 --> 00:26:07,880
Speaker 1: before the Supreme Court decided its famous Chevron case, which

447
00:26:07,920 --> 00:26:13,680
Speaker 1: required courts to defer to agencies reasonable interpretations of statutes,

448
00:26:14,560 --> 00:26:17,359
Speaker 1: the Board, even prior to Chevron, received a lot of

449
00:26:17,400 --> 00:26:21,080
Speaker 1: difference from the courts. Recently, the Supreme Court ruled in

450
00:26:21,119 --> 00:26:23,879
Speaker 1: a case called Low or Bright that that level of

451
00:26:23,960 --> 00:26:28,920
Speaker 1: deference to the agency's legal interpretations is not appropriate, and

452
00:26:29,080 --> 00:26:33,679
Speaker 1: rather courts should, in the first instance, determine what the

453
00:26:33,720 --> 00:26:37,480
Speaker 1: statute means when a statute is ambiguous, And that really

454
00:26:37,520 --> 00:26:41,280
Speaker 1: shifts the landscape because for so many decades courts have

455
00:26:41,320 --> 00:26:44,120
Speaker 1: been deferring to the board's understanding of how an organizing

456
00:26:44,400 --> 00:26:48,920
Speaker 1: campaign occurs and how to defend workers' rights to organize,

457
00:26:48,920 --> 00:26:51,480
Speaker 1: and to what extent employer rights have to give way

458
00:26:51,520 --> 00:26:54,479
Speaker 1: to the right to organize. And now the courts are saying, well,

459
00:26:54,480 --> 00:26:56,200
Speaker 1: we have to look at this in the first instance,

460
00:26:56,560 --> 00:26:59,920
Speaker 1: and that suggests that a lot of Board law might

461
00:27:00,160 --> 00:27:02,680
Speaker 1: be up for grabs or challenge, which is in part

462
00:27:02,720 --> 00:27:05,400
Speaker 1: I think why there are so many cases percolating through

463
00:27:05,400 --> 00:27:05,919
Speaker 1: the courts.

464
00:27:05,960 --> 00:27:09,560
Speaker 3: Now, have any of the other circuit courts described the

465
00:27:09,680 --> 00:27:12,919
Speaker 3: level of deference that the NLRB should be getting.

466
00:27:12,960 --> 00:27:16,120
Speaker 1: Now, some of those circuits have concluded that lowber Bright

467
00:27:16,240 --> 00:27:21,280
Speaker 1: does extend to the NLRB. Not all courts have ruled that,

468
00:27:21,600 --> 00:27:24,800
Speaker 1: but it seems likely that that's the direction where the

469
00:27:24,920 --> 00:27:28,479
Speaker 1: courts are moving. So essentially, after Low or Bright, when

470
00:27:28,520 --> 00:27:31,560
Speaker 1: we're dealing with a legal question, the court would not

471
00:27:31,640 --> 00:27:33,920
Speaker 1: be giving deference to the Board other than to accept

472
00:27:33,920 --> 00:27:36,480
Speaker 1: the Board's interpretation as persuasive, but it wouldn't be giving

473
00:27:36,520 --> 00:27:39,840
Speaker 1: any special difference to the board. Still though, when the

474
00:27:39,840 --> 00:27:43,159
Speaker 1: Board makes factual determinations, those are entitled to deference. And

475
00:27:43,200 --> 00:27:45,240
Speaker 1: part of the debate in the case yesterday was is

476
00:27:45,280 --> 00:27:47,760
Speaker 1: this well established law and the really debating how it

477
00:27:47,800 --> 00:27:50,360
Speaker 1: applies to these facts, in which case the Board would

478
00:27:50,359 --> 00:27:53,280
Speaker 1: be entitled to difference even after Lobe or Bright. Or

479
00:27:53,359 --> 00:27:55,640
Speaker 1: is this a question of interpreting the law, in which

480
00:27:55,680 --> 00:27:57,840
Speaker 1: case the Board isn't entitled the difference, and the court

481
00:27:57,880 --> 00:28:00,280
Speaker 1: seemed not clear about which way it was going with that.

482
00:28:00,520 --> 00:28:03,840
Speaker 3: Is it possible that the court doesn't address that deference

483
00:28:03,880 --> 00:28:07,399
Speaker 3: issue and just does a narrow ruling on the wearing

484
00:28:07,440 --> 00:28:09,040
Speaker 3: of the pins and the T shirts.

485
00:28:09,359 --> 00:28:11,360
Speaker 1: It's possible, you know. I think the court could say

486
00:28:11,400 --> 00:28:13,199
Speaker 1: that the Board just got the law wrong and it

487
00:28:13,200 --> 00:28:17,000
Speaker 1: has to reconsider, or that, even using the board's own tests,

488
00:28:17,160 --> 00:28:19,399
Speaker 1: it was applied incorrectly. There are many different ways the

489
00:28:19,400 --> 00:28:21,679
Speaker 1: court could rule here. Or the court could say, you know,

490
00:28:22,160 --> 00:28:25,640
Speaker 1: given the other messages that the Starbucks is allowing workers

491
00:28:25,680 --> 00:28:28,840
Speaker 1: to wear, and given that workers have a right to

492
00:28:28,920 --> 00:28:32,159
Speaker 1: express their support for unions, the Board is correct that

493
00:28:32,160 --> 00:28:34,480
Speaker 1: Starbucks doesn't have a right to prohibit these.

494
00:28:34,680 --> 00:28:37,239
Speaker 3: So telling me about the Starbucks strike and you know

495
00:28:37,320 --> 00:28:42,000
Speaker 3: the effort to unionize. Are there instances where companies have

496
00:28:42,120 --> 00:28:46,680
Speaker 3: been able in this kind of a situation to avoid unionization.

497
00:28:47,960 --> 00:28:50,840
Speaker 1: Well, lots of companies have been able to avoid unionization

498
00:28:51,080 --> 00:28:56,480
Speaker 1: by aggressively campaigning against unionization, including by violating the law,

499
00:28:56,560 --> 00:28:59,960
Speaker 1: by terminating workers who organized, by threatening workers who organized.

500
00:29:00,080 --> 00:29:02,440
Speaker 1: And although all of that is against the law, the

501
00:29:02,520 --> 00:29:06,280
Speaker 1: penalties are very minimal, and so frequently employers do violate

502
00:29:06,320 --> 00:29:09,520
Speaker 1: the law in order to squelch union organizing campaigns. And

503
00:29:09,520 --> 00:29:11,800
Speaker 1: I think we see this when people are asked whether

504
00:29:11,840 --> 00:29:13,840
Speaker 1: they support unions or whether they wish that they could

505
00:29:13,840 --> 00:29:16,360
Speaker 1: have a union. A majority of workers, over fifty percent

506
00:29:16,400 --> 00:29:18,480
Speaker 1: of workers say they wish they could have a union,

507
00:29:18,520 --> 00:29:21,600
Speaker 1: and yet unionization rates among private sector workers are as

508
00:29:21,600 --> 00:29:24,880
Speaker 1: low as six percent, And that gap is explained in

509
00:29:24,920 --> 00:29:28,080
Speaker 1: part because the law does not effectively protect the right

510
00:29:28,120 --> 00:29:30,600
Speaker 1: to organize, even though it promises to do so.

511
00:29:30,920 --> 00:29:35,880
Speaker 3: The NLRB under this new administration is it changing its

512
00:29:35,920 --> 00:29:37,360
Speaker 3: positions right now?

513
00:29:37,400 --> 00:29:41,680
Speaker 1: There is no functioning NRB. President Trump has fired contrary

514
00:29:41,720 --> 00:29:45,440
Speaker 1: to statute board member, which means that there's no longer

515
00:29:45,440 --> 00:29:48,680
Speaker 1: a quorum. His argument is he has the right to

516
00:29:48,760 --> 00:29:52,760
Speaker 1: fire board members, even though the statute says he can't

517
00:29:53,200 --> 00:29:56,080
Speaker 1: under a unitary executive area. It's the same argument they're

518
00:29:56,120 --> 00:29:58,840
Speaker 1: making in the context of the Federal Trade Commission and

519
00:29:58,920 --> 00:30:01,800
Speaker 1: other agencies. And so right now, the spoom Court has

520
00:30:01,800 --> 00:30:05,560
Speaker 1: not yet decided whether, in fact, Congress has the ability

521
00:30:05,640 --> 00:30:08,600
Speaker 1: to protect board members from removal or rather the president

522
00:30:08,600 --> 00:30:11,120
Speaker 1: has the ability to fire them for any reason. But

523
00:30:11,200 --> 00:30:12,920
Speaker 1: right now there's no quorum at the board, so there

524
00:30:13,000 --> 00:30:16,520
Speaker 1: is no board making decisions. Presumably at some point there

525
00:30:16,560 --> 00:30:19,160
Speaker 1: will be one again, and i'm the board will become

526
00:30:19,200 --> 00:30:21,960
Speaker 1: more pro employer in its orientation.

527
00:30:22,920 --> 00:30:26,680
Speaker 3: That does seem like the likely outcome. Thanks so much, Kate.

528
00:30:27,160 --> 00:30:31,800
Speaker 3: That's Professor Kate Andreas of Columbia Law School. And that's

529
00:30:31,840 --> 00:30:34,440
Speaker 3: it for this edition of The Bloomberg Law Show. Remember

530
00:30:34,480 --> 00:30:36,600
Speaker 3: you can always get the latest legal news on our

531
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Speaker 3: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

532
00:30:40,960 --> 00:30:46,000
Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,

533
00:30:46,400 --> 00:30:48,960
Speaker 3: And remember to tune into The Bloomberg Law Show every

534
00:30:49,000 --> 00:30:52,920
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso

535
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Speaker 3: and you're listening to Bloomberg