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

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Speaker 1: All Rise. The Court of Impeachment of the Texas Senate

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Speaker 1: is now in session.

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Speaker 2: Texas Attorney General Ken Paxton's eight year tenure as the

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Speaker 2: state's top law enforcement officer has been marked by public

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Speaker 2: scandals and criminal charges. The toughest test of his political

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Speaker 2: resilience came when he was impeached by fellow Republicans in

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Speaker 2: the House over allegations including bribery and corruption. Paxton denied

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Speaker 2: any wrongdoing and said the impeachment was a political sham

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Speaker 2: orchestrated by his opponents. And after a ten day trial.

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Speaker 1: For being fourteen ya's sixteen nays, a finding of acquittal

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Speaker 1: is entered as to Article one, and that was the.

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Speaker 2: Vote on all sixteen charges, a resounding acquittal that puts

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Speaker 2: back into office and attorney general, who's facing trial on

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Speaker 2: felony securities fraud charges, remains under an FBI investigation and

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Speaker 2: could be disbarred in ethics proceedings brought by the Texas

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Speaker 2: State Bar Of course, Democrats and Republicans had strikingly different

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Speaker 2: responses to Paxton's acquittal. Here's Democratic State Representative Anne Johnson

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Speaker 2: and Republican state Senator Bob Hall. The Republicans in the

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Speaker 2: Texas Senate just returned him to the office of top cop.

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Speaker 2: I will rely on what I said on the floor

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Speaker 2: of the Texas Help House.

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Speaker 3: God help us.

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Speaker 4: When you talk about impeaching someone, destroying their life, taking

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Speaker 4: them out of office. If they've done something and there's

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Speaker 4: evidence for it, that needs to happen. What we don't

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Speaker 4: need to have or sham investigations.

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Speaker 2: Joining me is Madlin Meckelberg Bloomberg Texas Legal reporter. Madeline

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Speaker 2: start by telling us about the articles of impeachment broadly,

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Speaker 2: what was he accused of so.

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Speaker 5: Ken Paxton was impeached by the Republican dominated House in

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Speaker 5: May of this year on twenty charges that spanned the

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Speaker 5: various allegations raised since he took office as Attorney General

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Speaker 5: in twenty fifteen. They talked specifically about allegations raised by

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Speaker 5: top staffers in the Attorney General's office who reported Paxton

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Speaker 5: to the FBI for alleged bribery. They all really center

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Speaker 5: on Paxton's relationship with a friend and political donor named

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Speaker 5: Nate Paul, who's a real estate developer in Austin and

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Speaker 5: he's been accused of using his office to aid Paul,

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Speaker 5: both in terms of turning over potentially confidential law enforcement

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Speaker 5: investigation information to Paul, who was under an FBI probe

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Speaker 5: at the time, and issuing opinions that would favor Paul

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Speaker 5: in some of his proceedings. And so there's twenty different

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Speaker 5: articles that go into different facets, but this relationship is

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Speaker 5: really what's at the heart of them.

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Speaker 2: And we should note that Nate Paul has been indicted

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Speaker 2: on charges of making false statements to influence financial institutions

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Speaker 2: over loan applications, and he's pleaded not guilty. Now, going

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Speaker 2: back to the impeachment trial, can you give us some

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Speaker 2: of the highlights of the evidence against Paxton? What stood

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Speaker 2: out to you?

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Speaker 5: I think something that really stood out from these two

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Speaker 5: weeks proceedings was consistent testimony from top employees in his

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Speaker 5: office who said they told him time and time again

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Speaker 5: that they were concerned about his actions. We heard from

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Speaker 5: people who said that they had private conversations with him,

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Speaker 5: who called meetings with him to tell him that they

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Speaker 5: were concerned that what he was doing was stepping over

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Speaker 5: the line. Something that's really key in the case here

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Speaker 5: that gets into this bribery allegation is his alleged extramarital affair.

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Speaker 5: One of the accusations is that Nate Paul hired the

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Speaker 5: woman with whom he was allegedly having an affair and

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Speaker 5: kept her on his payroll, and in turn, Paxton was

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Speaker 5: performing these acts in his office to benefit Paul. We

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Speaker 5: heard from his former chief of staff in the office

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Speaker 5: who talked about how this relationship affected the staff and

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Speaker 5: how these actions that Pat Paxton was taking had impact.

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Speaker 5: And she talked about feeling that people were uncomfortable fielding

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Speaker 5: phone calls from Paxton's wife and having to make certain

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Speaker 5: accommodations for him and this relationship. I think that was

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Speaker 5: a really compelling piece of testimony that we heard.

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Speaker 3: What was the defense to those allegations.

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Speaker 5: The defense called witnesses and they cross examined the prosecution's

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Speaker 5: witnesses and went line by line trying to depute these claims.

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Speaker 5: But I think the big picture from them is that

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Speaker 5: this is a politically targeted attack at Ken Paxton. They

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Speaker 5: say none of the actions he took violated the law.

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Speaker 5: All of the things were things that he was allowed

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Speaker 5: to do within his power or as attorney general. One

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Speaker 5: thing that was interesting during the proceedings in addition to

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Speaker 5: allegedly hiring this woman who was part of the affair

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Speaker 5: with Paxton, but the prosecutors claim that Paxton had renovations

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Speaker 5: done at his home that were funded by Paul and

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Speaker 5: that was another element of the bribery allegations, and his

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Speaker 5: defense were was really focused on that point. During the proceedings,

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Speaker 5: they pulled up pictures of his kitchen that was allegedly renovated,

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Speaker 5: and they confirmed that the countertops had actually not been

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Speaker 5: changed out at this time, that supposedly the renovations were

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Speaker 5: paid for, and they showed invoices of him making this payment.

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Speaker 5: That was a big victory, I think for the defense

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Speaker 5: during the proceeding, but I think broadly speaking, they cast

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Speaker 5: this as a political witch hunt against Paxton who did

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Speaker 5: nothing well.

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Speaker 2: Paxton didn't testify, and he wasn't even there for most

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Speaker 2: of the trial.

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Speaker 5: That's correct. He appeared on the first day to plead

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Speaker 5: not guilty to all of the charges, and then he

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Speaker 5: appeared briefly at the end of the proceedings, but he

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Speaker 5: was not present in the chamber and the court decided

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Speaker 5: that he did not have to testify. What's significant about

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Speaker 5: his absence is that the person who was present and

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Speaker 5: had to listen to all of these allegations was his wife,

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Speaker 5: who was a state senator herself, Angela Paston. She was

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Speaker 5: not allowed to vote on any decisions during the trial,

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Speaker 5: but she did have to be there during the court

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Speaker 5: proceedings to listen to all of the testimony and evidence.

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Speaker 2: Did you find out what his strategy was of not

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Speaker 2: even Deigny to appear.

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Speaker 5: Oh, we didn't learn much about how that fit into

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Speaker 5: his broader strategy. But I think the goal for his

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Speaker 5: defense was clear here, and that was to cast this

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Speaker 5: as a mutiny by some staffers in his office who

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Speaker 5: wanted to take over as attorney general. Potentially, that was

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Speaker 5: something they brought forward. They said, this is all a

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Speaker 5: political ploy. They tried to create this idea that there

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Speaker 5: was some kind of happening about who should be leading

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Speaker 5: the state's law office in this way. But we didn't

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Speaker 5: hear from Pakistan. We heard from people close to him

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Speaker 5: in the office, and most of the witnesses for the

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Speaker 5: prosecution were former employees who spoke to his conduct during

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Speaker 5: the period alleged. When the defense did call witnesses, they

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Speaker 5: asked four current members of the Attorney General's office to testify,

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Speaker 5: including one of the people that oversees the Open Records Division,

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Speaker 5: and folks who could speak to what they said was

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Speaker 5: Paxton's correct behavior while he was in office, But we

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Speaker 5: didn't get to hear from him himself.

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Speaker 2: Tell us about the vote for a conviction. Twenty one senators,

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Speaker 2: which represent two thirds of the chamber, would have had

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Speaker 2: to vote for Paxton's conviction.

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Speaker 5: That's exactly right. And this chamber, just like the Texas House,

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Speaker 5: is dominated by Republicans, so there were nineteen Republicans, which

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Speaker 5: would mean that some Republicans would have to vote in

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Speaker 5: favor of conviction in order to achieve a conviction at

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Speaker 5: the end of this. But what happened. What we saw

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Speaker 5: was consistently a party line vote, with all Democrats voting

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Speaker 5: in favor of conviction on most of the articles and

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Speaker 5: most of the Republicans voting in favor of acquittal on

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Speaker 5: all the articles. Only two Republicans in the Chamber ever

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Speaker 5: voted to convict on a single article, and the process

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Speaker 5: itself was a little bit confusing. Some of the witnesses

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Speaker 5: talked about this experience of seeing rules both for criminal

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Speaker 5: and civil proceedings being used in this trial, and so

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Speaker 5: the vote at the end of the day there wasn't

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Speaker 5: one single vote. All of the members voted individually on

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Speaker 5: each of the articles pending against him, and so we

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Speaker 5: saw some variation, but at the end of the day

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Speaker 5: it was a largely party line vote, with just two

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Speaker 5: Republicans ever, voting to convict on two of the articles.

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Speaker 2: I understand that Trump surrogates and allies tried to pressure

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Speaker 2: Republican senators not to impeach Paxson and posted names and

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Speaker 2: phone numbers of potential impeachment swing voters.

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Speaker 3: Do you know what they were doing behind the scenes.

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Speaker 5: That's right, There was a really big pressure campaign around

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Speaker 5: this entire proceeding. Obviously, Ken Paxton is a loyal ally

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Speaker 5: of our former president who spoke on his behalf as himself.

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Speaker 5: But then we did hear reports of these pressure campaigns

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Speaker 5: that you're talking about. There were reports we saw of

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Speaker 5: an effort to have online influencers pay people to post

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Speaker 5: on behalf of the Attorney General advocating for him, and

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Speaker 5: we certainly saw phone numbers being circulated, senators receiving phone calls.

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Speaker 5: But I think in addition to that campaign, I mean,

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Speaker 5: this is the defining political site I think of this

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Speaker 5: period in Texas politics. There's so much a play here.

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Speaker 5: Ken Paxson's been under indictment since twenty fifteen, and so

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Speaker 5: most of the allegations that we were talking about in

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Speaker 5: this impeachment proceeding have been known publicly, have been known

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Speaker 5: by the members for the duration of his tenure as

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Speaker 5: Attorney General, and it all culminated in this fight. So

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Speaker 5: I think the political pressure has been mounting from the

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Speaker 5: very beginning and really intensify it as a trial date

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Speaker 5: group closer.

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Speaker 2: Coming up next, we'll talk about the other legal cases

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Speaker 2: that Paxton is facing. You're listening to Bloomberg. I've been

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Speaker 2: talking to Bloomberg Texas legal reporter Madlen Mecklberg about the

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Speaker 2: acquittal of Texas Attorney General Ken Paxton after a nine

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Speaker 2: day impeachment trial.

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Speaker 3: So Paxton is.

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Speaker 2: Back in office as the state's top law enforcement officer,

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Speaker 2: but he's facing other legal problems.

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Speaker 5: That's right, he's been reinstated as attorney General. I think

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Speaker 5: there's a lot of eyes now on what happens next.

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Speaker 5: How do you go back to that office after going

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Speaker 5: through this like really public ordeal where a lot of

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Speaker 5: details were shared about your alleged conduct. And then he's

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Speaker 5: got other legal battles regarding his conduct that he still

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Speaker 5: has to fight. Like I mentioned, he's been under indictment

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Speaker 5: that's twenty fifteen or security fraud in a case that

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Speaker 5: is yet to go to trial. It's been delayed significantly

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Speaker 5: by these different pre trial squabbles over venue and such.

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Speaker 5: But I think we're going to get a date on

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Speaker 5: a trial very soon in that case. And he's also

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Speaker 5: tied up in some disciplinary proceedings involved in the state

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Speaker 5: bar of Texas who accused him of professional misconduct for

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Speaker 5: his efforts to try to overturn the twenty twenty presidential

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Speaker 5: election results. And there's an ongoing federal probe into his

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Speaker 5: conduct that was prompted by the whistleblowers who are behind

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Speaker 5: some of these impeachment claims, So we could still see

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Speaker 5: charges them from that. So while this was a significant step,

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Speaker 5: it's not the final word on Paxton's legal saga.

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Speaker 2: Those two state securities fraud charges, he was indicted on

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Speaker 2: those just months after he took office in twenty fifteen,

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Speaker 2: and it's always surprised me that that hasn't gone to

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Speaker 2: trial yet. How has he managed to avoid trial for

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Speaker 2: a year.

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Speaker 5: That's a great question. There's been quite a few skirmishes

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Speaker 5: ahead of this trial date. I think a key one

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Speaker 5: was venue where the case should be tried, either in

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Speaker 5: Houston or in his home county of Colin County. There

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Speaker 5: have been objections raised to the prosecutor bringing the case,

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Speaker 5: and all of these disputes have gone through a full

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Speaker 5: appeals process on their own, going up to the top

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Speaker 5: state appeals court in Texas, and they caused significant delays.

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Speaker 5: I think finally the state appeals court said that the

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Speaker 5: case can proceed in Harris County. There was a date

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Speaker 5: here in state for Paxton in the case just before

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Speaker 5: the impeachment proceedings began, and the judge said, once those

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Speaker 5: proceedings wrap, she's ready to get this case moving again

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Speaker 5: in Harris County.

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Speaker 2: And as you said, there is an investigation by the

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Speaker 2: FBI and the Justice Department's Public Integrity Section. Is that

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Speaker 2: on the same allegations that were to testified to in

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Speaker 2: the impeachment trial.

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Speaker 5: That's right. So these top employees in Paxton's office, who

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Speaker 5: we call the whistleblowers, they reported Paxton's conduct to the FBI.

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Speaker 5: As it relates to advancing causes on behalf of his

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Speaker 5: friend and political donor Nate Paul, and the FBI and

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Speaker 5: the DOJ they've been investigating. We haven't seen the result

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Speaker 5: of that investigation up to this point, but those cases

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Speaker 5: are ongoing as far as we're aware.

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Speaker 2: And there's a civil suit by those whistleblowers against Paxton.

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Speaker 5: That's right. The whistleblowers stewed Paxton under the state's whistleblower statute,

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Speaker 5: saying that they were retaliated against and in some cases

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Speaker 5: terminated because they reported his behavior. And that case is

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Speaker 5: actually what prompted this impeachment inquiry to start with, because

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Speaker 5: Paxton and the whistleblowers had struck a three million dollar

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Speaker 5: settlement agreement in the case, but in order to fund

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Speaker 5: that settlement agreement, Packs then needed state lawmakers to allocate

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Speaker 5: money towards that effort. State lawmakers said they weren't prepared

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Speaker 5: to allocate that money until they investigated the claims behind

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Speaker 5: the lawsuit, which is what prompted the investigation that led

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Speaker 5: to the drafting of the impeachment article.

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Speaker 2: Then he's also accused of professional misconduct by the state

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Speaker 2: bar of Texas, and he could be disbarred in that proceeding.

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Speaker 5: That's correct, that's a civil proceeding that's happening right now.

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Speaker 2: Despite the impeachment, all the public scandals, the criminal charges

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Speaker 2: he's still facing, some political experts think that he could

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Speaker 2: reach prominence on the national political stage.

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Speaker 5: I think that's totally fair. I mean, from the beginning,

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Speaker 5: Puxton's reputation has been built on being a conservative agitator

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Speaker 5: who does the Biden administration over everything that they do,

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Speaker 5: and he's worked to align himself with former President Donald Trump,

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Speaker 5: who we saw goats through a similar thing during his presidency,

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Speaker 5: being acquitted in impeachment cases and only serving to boost

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Speaker 5: his reputation. And I think that that's exactly what we're

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Speaker 5: going to see happen here with Paxton, who's going to

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Speaker 5: certainly be emboldened by this outcome. I think we're still waiting,

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Speaker 5: kind of with bated breast to see what his first

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Speaker 5: moves they're going to be now that he's been reinstated

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Speaker 5: to the office. But I think it's certainly fair to

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Speaker 5: say that this has only helped to bolster his reputation

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Speaker 5: within his own party.

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Speaker 2: That's an appropriate comparison to Trump, and just to be

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Speaker 2: clear he was re elected last year to a third

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Speaker 2: term despite all these criminal and ethical allegations. Was it

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Speaker 2: by a wide margin or a narrow margin?

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Speaker 5: That's exactly right, And that was a point that we

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Speaker 5: heard from Paxton's defense council throughout the proceedings. They said,

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Speaker 5: Texas voters knew about these allegations, and they didn't care.

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Speaker 5: They elected him anyway, and so why should the state

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Speaker 5: Senate overturn that? Why should they overturn the will of

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Speaker 5: the voters. I was elected by a large margin in

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Speaker 5: the general election campaign, but actually last cycles primary was

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Speaker 5: the first time we saw some very strong contenders who

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Speaker 5: challenged him in the Republican primary, including George P. Bush,

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Speaker 5: a descendant of the Bush political dynasty in Texas, and

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Speaker 5: Congressman Louis Gohmer and former Texas Supreme Court Justice Eva

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Speaker 5: Guzman challenged him. That primary went to a runoff, but

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Speaker 5: Paxton secured the nomination for his party there. But it

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Speaker 5: was kind of the biggest political test of the impact

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Speaker 5: of these allegations against him until we got to this

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Speaker 5: impeachment proceeding.

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Speaker 2: Well, a lot more to come with Ken Paxton's legal troubles,

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Speaker 2: and I know you'll be following them for us.

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Speaker 3: Madline, thanks so much.

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Speaker 2: That's Bloomberg Texas legal reporter Madlin Mecklberg coming up next

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Speaker 2: on the Bloomberg Law Show. The ua W strike as

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Speaker 2: automakers layoff more union workers, the question is whether the

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Speaker 2: union's aggressive stance will work. You're listening to Bloomberg.

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Speaker 3: It's exciting, but very scary because the unknown. You don't

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Speaker 3: know when you're going to get that full paycheck again.

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Speaker 3: You don't know when you're going to get back in

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Speaker 3: there to work again.

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Speaker 2: Tonia Sullivan is a third generation auto worker at Ford.

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Speaker 2: She's one of the nearly thirteen thousand workers on strike

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Speaker 2: against the Big three automakers, and as the strike enters

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Speaker 2: its fifth day, GM and Stilantis laid off more than

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Speaker 2: two thousand additional union workers. Marcel Edwards has worked for

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Speaker 2: Ford for thirty five years and says, though there's some nervousness,

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Speaker 2: the striking workers support each other. The nervousness about the

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Speaker 2: strike right now, it's just the uncertainty.

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Speaker 6: But we believe in fame, We believe in this membership.

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Speaker 4: We believe in.

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Speaker 2: Our elected officials downtown to make sure that we come

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Speaker 2: make with a contract that's respectable, and UAW president Sean

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Speaker 2: Faine told workers in a video that he'll call on

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Speaker 2: more members to walk away from the job if there's

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Speaker 2: no major progress and talks by the end of the week.

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Speaker 1: We've been available twenty four to seven to bargain a

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Speaker 1: deal that recognizes our members' sacrifices and contributions to these

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Speaker 1: record profits. Still the Big three failed to get down

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Speaker 1: the business.

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Speaker 2: My guest is labor law expert Michael Duff, a professor

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Speaker 2: at the Saint Louis University School of Law. Last year,

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Speaker 2: public approval for unions reached its highest level since Lyndon

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Speaker 2: Johnson was president. Sixty seven percent of Americans approve of them.

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Speaker 2: Have unions been making a lot of inroads?

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Speaker 6: Well, what I tend to focus on when having this

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Speaker 6: conversation with my students is the number of private sexist

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Speaker 6: employees unionized throughout the country. Right. So, a lot of

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Speaker 6: time we get union activity, we get popular approval, which

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Speaker 6: is better than popular disapproval from the perspective of unions.

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Speaker 6: But then we turn around and we look at the

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Speaker 6: total number of employees presented by a union, and we're

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Speaker 6: stuck at a number in the low six percent, right,

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Speaker 6: so six point one, six point three, six point four.

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Speaker 6: So my guarded answer is yes, I do think unions

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Speaker 6: have been making inroads with respect to the attitude that

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Speaker 6: the general public has to them, but so far that

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Speaker 6: has not translated into people actually joining unions, So it's

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Speaker 6: kind of a mixed picture.

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Speaker 2: UAW President Sean Fain. I want to talk about the

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Speaker 2: way he's framed these negotiations as a broader struggle. He said,

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Speaker 2: it's the battle of the working class against the rich,

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Speaker 2: the haves versus the have nots, the billionaire class against

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Speaker 2: everyone else.

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Speaker 3: What do you think of that framing?

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Speaker 6: So I come from a blue collar background in a

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Speaker 6: prior to life, I was a blue collar worker in

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Speaker 6: the airline industry for a number of years. I didn't

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Speaker 6: go to law school until my thirties. I was a

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Speaker 6: teamster shop steer for a number of years. And I

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Speaker 6: would say that that rhetoric resonates with me as somebody

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Speaker 6: from that class and somebody who has gone through on

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Speaker 6: a personal level labor structure. I think, you know, to

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Speaker 6: be honest, we have to look at that and say, well,

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Speaker 6: there's a generation of people, people of roughly my age

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Speaker 6: or a little bit younger who would be very put

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Speaker 6: off by that language that would seem extremely corrosive, not

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Speaker 6: tending to lead to agreements and so forth. Now we

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Speaker 6: have younger people coming up through the ranks of organized labor,

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Speaker 6: and the sort of precariousness that a lot of them

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Speaker 6: are facing, I think makes the rhetoric almost suddenly appropriate,

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Speaker 6: almost unbelievably to those of us who have been involved

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Speaker 6: studying the labor movement for the last few decades. So

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Speaker 6: what I think of it is that it matches I

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Speaker 6: think the enormity of some of the structural changes that

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Speaker 6: we see going on in the economy for workers.

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Speaker 2: What about this so called stand up strike targeting work

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Speaker 2: stoppages at plants.

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Speaker 6: Well, I think to the outside observer, a lot of

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Speaker 6: the sounds are pretty esoteric and strange, But actually from

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Speaker 6: a legal perspective, it makes sense, right, because once you

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Speaker 6: begin to learn a little bit about labor law, you

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Speaker 6: find out pretty quickly that unions strike at their peril,

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Speaker 6: and the reason they strike at their peril is that

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Speaker 6: if employees are striking over economic subjects of bargaining, that's

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Speaker 6: the phrase of art. So you're not paying me enough,

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Speaker 6: I need more contribution to healthcare from you, mister and

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Speaker 6: his employer. If they are economic subjects that are sort

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Speaker 6: of fomenting the conflict between the union and the player,

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Speaker 6: employees go on and strike, they can be permanently replaced.

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Speaker 6: And that's sort of the animating principle behind a lot

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Speaker 6: of what's going on here. What permanent replacement means is

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Speaker 6: that you go out on strike over an economic subject,

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Speaker 6: you can't be fired, but we have to be able

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Speaker 6: to attract people to do the job that you're no

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Speaker 6: longer doing because you're on strike, and we can't very

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Speaker 6: well go to this prospective employee that we want to

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Speaker 6: take your place and say, well, we're only going to

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Speaker 6: temporarily hire you. Why because we're not going to get

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Speaker 6: a lot of people that are going to like that deal.

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Speaker 6: So what we say is the replacement worker, the worker

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Speaker 6: who's replacing the striking employee, is like, you come in

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Speaker 6: and you can hold the job as long as you want, right,

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Speaker 6: And so as a matter of law, the employer is

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Speaker 6: not required to fire that person at the end of

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Speaker 6: the strike. And so if you're the average worker, you

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Speaker 6: go out on strike and you're permanently replaced, it's kind

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Speaker 6: of a lawyer's distinction, the distinction between being fired from

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Speaker 6: being permanently replaced. If it means no employment for a

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Speaker 6: couple of years, then you're out of work either way. Right,

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Speaker 6: there's no money coming in and you don't have food

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Speaker 6: on the table. Once you understand that this is the

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Speaker 6: background rule, you begin to understand why unions are very

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Speaker 6: leary and have become more leary over the decades of

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Speaker 6: just going out on strike, because if you go out

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Speaker 6: on strike and the job is the kind of job

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Speaker 6: that somebody coming in off the street could do, and

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Speaker 6: then what's going to happen is the employer is simply

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Speaker 6: going to replace all or most of the bargaining unit,

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Speaker 6: and it's a very difficult situation for union. Now, lockouts

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Speaker 6: or another area of concern. Your blockouts further complicate the

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Speaker 6: scenario because one of the things that employers have been

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Speaker 6: able to do, and they've actually been able to do

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Speaker 6: it is nineteen sixty five. A lot of people are

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Speaker 6: not aware of that. In order to compel the union

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Speaker 6: to agree to whatever the bargaining issue is, they can

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Speaker 6: simply lock out members of the bargaining unit, say Okay,

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Speaker 6: you're not coming back to work and so if what

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Speaker 6: there are rules surrounding that, But it's what we know

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Speaker 6: of as a bargaining b lockout. You know, it's not

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Speaker 6: viewed as discrimination. It is permitted under the.

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Speaker 3: Black What about these layoffs?

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Speaker 2: All three of the Detroit autel makers have laid off workers,

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Speaker 2: and they say that it's because of internal supply chain issues,

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Speaker 2: due to a lack of parts needed for certain assembly

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Speaker 2: workers to do their jobs. So why are they citing that.

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Speaker 2: Do they need a reason for laying off workers during

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Speaker 2: a strike?

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Speaker 6: That's a very good question. So when you lay off

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Speaker 6: workers because you don't have enough materials to continue production,

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Speaker 6: arguably that's not even a lockout, right. You're not laying

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Speaker 6: the workers off, at least on the surface. You're not

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Speaker 6: laying them off to pressure the union to accept your

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Speaker 6: bargaining position that you have. You're laying workers off because

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Speaker 6: you can't continue production. In the old days, we used

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Speaker 6: to talk about lockouts, and just give you a sense

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Speaker 6: of how far back this line law goes. It used

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Speaker 6: to be that we would say that defensive lockouts were lawful,

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Speaker 6: but offensive lockouts were unlawful. The distinction was a defensive

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Speaker 6: lockouts you had a good business reason for doing what

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Speaker 6: you were doing right, there was no way that you

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Speaker 6: were doing it to pressure the union. You had a

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Speaker 6: business justification for locking employees out. I think the strategy

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Speaker 6: of the automakers here is the position themselves in such

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Speaker 6: a way that it's much harder to say that they're

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Speaker 6: doing what they're doing for discriminatory reasons. So probably they're

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Speaker 6: allowed to do it anyhow, They're probably allowed to do

439
00:25:37,080 --> 00:25:40,399
Speaker 6: it to pressure the union to accept their bargaining position.

440
00:25:40,520 --> 00:25:44,440
Speaker 6: They arguably could do that, But here they actually have

441
00:25:44,520 --> 00:25:48,080
Speaker 6: a business justification, which is, we can't make cars if

442
00:25:48,119 --> 00:25:49,240
Speaker 6: we don't have park.

443
00:25:49,359 --> 00:25:51,880
Speaker 2: Do you consider a lockout and a layoff the same thing?

444
00:25:52,359 --> 00:25:57,760
Speaker 6: I do not. I think lockouts formally are workstoppages initiated

445
00:25:57,800 --> 00:26:02,480
Speaker 6: by the employer, undertaken to pressure the union to accept

446
00:26:02,720 --> 00:26:08,400
Speaker 6: the employer's position on a bargaining dispute, whereas layoff typically

447
00:26:08,560 --> 00:26:12,120
Speaker 6: you're talking about the cessation of work that's prompted by

448
00:26:12,520 --> 00:26:14,600
Speaker 6: various economic exigencies.

449
00:26:15,160 --> 00:26:18,159
Speaker 3: It sounds like management has all the cards. What cards

450
00:26:18,200 --> 00:26:19,200
Speaker 3: does the union hold?

451
00:26:19,600 --> 00:26:22,520
Speaker 6: Well? The sort of gamesmanship, that's what it is. It's

452
00:26:22,520 --> 00:26:25,879
Speaker 6: a high safe game. But this idea of the stand

453
00:26:26,000 --> 00:26:31,240
Speaker 6: up strike is that by moving around, all right, So

454
00:26:31,880 --> 00:26:34,520
Speaker 6: you know, a boxer doesn't stand in one place and

455
00:26:34,640 --> 00:26:37,959
Speaker 6: allow himself to be punched. You sort of move around.

456
00:26:38,000 --> 00:26:42,200
Speaker 6: So you're not on strike at a number of facilities,

457
00:26:42,600 --> 00:26:45,600
Speaker 6: but you are at one key facility, right, And so

458
00:26:45,800 --> 00:26:48,640
Speaker 6: what you're doing is you're setting up a situation where

459
00:26:48,640 --> 00:26:53,280
Speaker 6: the employer could permanently replace in that particular location or

460
00:26:53,359 --> 00:26:56,439
Speaker 6: lock out, but then you have other facilities where nothing's

461
00:26:56,480 --> 00:27:00,000
Speaker 6: going on. It's a variant of something that labor inside

462
00:27:00,359 --> 00:27:04,040
Speaker 6: is called withsaw strikes because actually this actually goes back

463
00:27:04,160 --> 00:27:07,400
Speaker 6: a number of decades. Right. The idea is and typically

464
00:27:07,440 --> 00:27:11,280
Speaker 6: it was a union bargaining with different employers than what

465
00:27:11,440 --> 00:27:14,800
Speaker 6: was called a multi employer bargaining unit. But the idea

466
00:27:14,880 --> 00:27:18,480
Speaker 6: is very similar that what you did was, as the employer,

467
00:27:18,600 --> 00:27:21,720
Speaker 6: you see that the union is striking, an employer say

468
00:27:21,880 --> 00:27:25,639
Speaker 6: over there, So what you do is you lock out

469
00:27:25,920 --> 00:27:29,719
Speaker 6: your employees to prevent the union from being able to

470
00:27:29,840 --> 00:27:33,119
Speaker 6: strike according to its own timetable. And the idea is

471
00:27:33,520 --> 00:27:37,080
Speaker 6: that that pressures the union in unforeseen ways. But what

472
00:27:37,119 --> 00:27:41,480
Speaker 6: the union can do is to engage in work stoppages

473
00:27:41,600 --> 00:27:46,440
Speaker 6: in unpredictable ways, it will run into various legal doctrines

474
00:27:46,880 --> 00:27:49,840
Speaker 6: that have been designed over the decades to frustrate that

475
00:27:50,200 --> 00:27:52,399
Speaker 6: kind of maneuver. But I do think that that's the

476
00:27:52,480 --> 00:27:56,360
Speaker 6: union's best opportunity to wind up with a positive outcome here.

477
00:27:56,760 --> 00:27:59,600
Speaker 2: The union president has said that if there's not serious

478
00:27:59,600 --> 00:28:04,560
Speaker 2: progress in negotiations by Friday, war workers are going to

479
00:28:04,600 --> 00:28:07,240
Speaker 2: walk off the job. That's pretty aggressive, right.

480
00:28:07,640 --> 00:28:10,080
Speaker 6: Yeah, well, it is aggressive. And you know what this

481
00:28:10,280 --> 00:28:12,720
Speaker 6: reminds me of. You know, at the end of World

482
00:28:12,720 --> 00:28:16,520
Speaker 6: War Two, there was a period in history where aggressive

483
00:28:16,600 --> 00:28:21,160
Speaker 6: union activity was obviously curtailed during the war, and there

484
00:28:21,240 --> 00:28:24,360
Speaker 6: was a lot of hint up labor activity that all

485
00:28:24,400 --> 00:28:27,560
Speaker 6: of a sudden was released at the conclusion of the war,

486
00:28:27,720 --> 00:28:31,200
Speaker 6: and you had a lot of strikes occur, and that

487
00:28:31,280 --> 00:28:35,040
Speaker 6: became the impetus for creation of the TAP Partly Act,

488
00:28:35,040 --> 00:28:37,840
Speaker 6: which is a part of the National Labor Relations Act

489
00:28:37,920 --> 00:28:41,080
Speaker 6: as it's been amended. Right, And I almost feel like,

490
00:28:41,400 --> 00:28:45,120
Speaker 6: you know, as a result of just everything that's been

491
00:28:45,160 --> 00:28:47,680
Speaker 6: going on with respect to the gig economy and the

492
00:28:47,720 --> 00:28:52,000
Speaker 6: precariousness of employment coupled with the pandemic and some of

493
00:28:52,120 --> 00:28:55,520
Speaker 6: the labor conflicts that emerged because of the pandemic. A

494
00:28:55,520 --> 00:28:59,360
Speaker 6: lot of it centered on healthcare and perceived dangerous workplaces.

495
00:28:59,520 --> 00:29:02,680
Speaker 6: All of that kind of culminates over this summer. You

496
00:29:02,760 --> 00:29:06,840
Speaker 6: have a situation where workers maybe have had enough, they're

497
00:29:06,880 --> 00:29:09,720
Speaker 6: willing to take risk, and I think Sean Fatis is

498
00:29:09,800 --> 00:29:13,960
Speaker 6: tapping into that. He realizes almost viscerally that he has

499
00:29:14,320 --> 00:29:17,960
Speaker 6: a rank and file employee group that's ready to hear

500
00:29:18,040 --> 00:29:21,880
Speaker 6: that message. If that message had been attempted in other eras,

501
00:29:21,880 --> 00:29:24,520
Speaker 6: it might not have been successful. But I think he

502
00:29:24,880 --> 00:29:29,480
Speaker 6: is mirroring some of the emotions that are percolating up

503
00:29:29,520 --> 00:29:31,920
Speaker 6: from the rank and file. And of course he is

504
00:29:32,280 --> 00:29:35,160
Speaker 6: a rank and file member. He has deep roots in

505
00:29:35,200 --> 00:29:36,440
Speaker 6: the Auto union itself.

506
00:29:36,880 --> 00:29:38,720
Speaker 2: If you had to call it, how do you think

507
00:29:38,760 --> 00:29:39,360
Speaker 2: this will end?

508
00:29:39,960 --> 00:29:40,320
Speaker 4: Well?

509
00:29:40,720 --> 00:29:43,960
Speaker 6: You know, the idea of labor law is that there

510
00:29:44,160 --> 00:29:47,320
Speaker 6: is in the end compromise, and we have a very

511
00:29:47,360 --> 00:29:52,000
Speaker 6: odd system in the United States where we're simultaneously bargaining

512
00:29:52,240 --> 00:29:56,280
Speaker 6: in good faith, which has a very specific statutory meaning,

513
00:29:56,720 --> 00:30:00,960
Speaker 6: even while there are strikes and lockouts and all kinds

514
00:30:00,960 --> 00:30:03,760
Speaker 6: of things that look to the average outside observer like

515
00:30:03,880 --> 00:30:07,360
Speaker 6: anything but bargaining and good faith. My guess is that

516
00:30:07,400 --> 00:30:10,840
Speaker 6: the union is going to make significant gains. And the

517
00:30:10,880 --> 00:30:14,000
Speaker 6: reason I say that is because all of this is

518
00:30:14,040 --> 00:30:18,240
Speaker 6: bubbling up in an era where you already have labor unrest.

519
00:30:18,360 --> 00:30:21,320
Speaker 6: And so my sense is that the company, looking into

520
00:30:21,440 --> 00:30:25,400
Speaker 6: its crystal ball out into the future, sees an environment

521
00:30:25,560 --> 00:30:28,800
Speaker 6: that's likely to be favorable to labor, or at least

522
00:30:28,800 --> 00:30:31,640
Speaker 6: the foreseeable future, and I don't think it would be

523
00:30:31,680 --> 00:30:35,920
Speaker 6: a good marketing strategy to be seen as digging in now.

524
00:30:36,000 --> 00:30:39,200
Speaker 6: Having said that, I'm not suggesting that I think the

525
00:30:39,320 --> 00:30:42,280
Speaker 6: union's going to get everything at once. That's why this

526
00:30:42,520 --> 00:30:45,880
Speaker 6: is ultimately a negotiation. What I do think is that

527
00:30:45,960 --> 00:30:48,440
Speaker 6: at the end of the day, there will be a negotiation.

528
00:30:48,800 --> 00:30:49,440
Speaker 3: Thanks Michael.

529
00:30:49,680 --> 00:30:52,840
Speaker 2: That's Professor Michael Dove of the Saint Louis University School

530
00:30:52,880 --> 00:30:53,280
Speaker 2: of Law.

531
00:30:53,640 --> 00:30:55,960
Speaker 3: And that's it for this edition of The Bloomberg Law Show.

532
00:30:56,320 --> 00:30:58,640
Speaker 2: Remember you can always get the latest legal news on

533
00:30:58,720 --> 00:31:02,280
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts,

534
00:31:02,360 --> 00:31:07,280
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535
00:31:07,520 --> 00:31:10,400
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536
00:31:10,480 --> 00:31:12,520
Speaker 2: Show every weeknight at ten.

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00:31:12,360 --> 00:31:13,640
Speaker 3: Pm Wall Street Time.

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00:31:14,200 --> 00:31:16,880
Speaker 2: I'm June Grosso, and you're listening to Bloomberg