Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio
Speaker 1: All Rise. The Court of Impeachment of the Texas Senate
Speaker 1: is now in session.
Speaker 2: Texas Attorney General Ken Paxton's eight year tenure as the
Speaker 2: state's top law enforcement officer has been marked by public
Speaker 2: scandals and criminal charges. The toughest test of his political
Speaker 2: resilience came when he was impeached by fellow Republicans in
Speaker 2: the House over allegations including bribery and corruption. Paxton denied
Speaker 2: any wrongdoing and said the impeachment was a political sham
Speaker 2: orchestrated by his opponents. And after a ten day trial.
Speaker 1: For being fourteen ya's sixteen nays, a finding of acquittal
Speaker 1: is entered as to Article one, and that was the.
Speaker 2: Vote on all sixteen charges, a resounding acquittal that puts
Speaker 2: back into office and attorney general, who's facing trial on
Speaker 2: felony securities fraud charges, remains under an FBI investigation and
Speaker 2: could be disbarred in ethics proceedings brought by the Texas
Speaker 2: State Bar Of course, Democrats and Republicans had strikingly different
Speaker 2: responses to Paxton's acquittal. Here's Democratic State Representative Anne Johnson
Speaker 2: and Republican state Senator Bob Hall. The Republicans in the
Speaker 2: Texas Senate just returned him to the office of top cop.
Speaker 2: I will rely on what I said on the floor
Speaker 2: of the Texas Help House.
Speaker 3: God help us.
Speaker 4: When you talk about impeaching someone, destroying their life, taking
Speaker 4: them out of office. If they've done something and there's
Speaker 4: evidence for it, that needs to happen. What we don't
Speaker 4: need to have or sham investigations.
Speaker 2: Joining me is Madlin Meckelberg Bloomberg Texas Legal reporter. Madeline
Speaker 2: start by telling us about the articles of impeachment broadly,
Speaker 2: what was he accused of so.
Speaker 5: Ken Paxton was impeached by the Republican dominated House in
Speaker 5: May of this year on twenty charges that spanned the
Speaker 5: various allegations raised since he took office as Attorney General
Speaker 5: in twenty fifteen. They talked specifically about allegations raised by
Speaker 5: top staffers in the Attorney General's office who reported Paxton
Speaker 5: to the FBI for alleged bribery. They all really center
Speaker 5: on Paxton's relationship with a friend and political donor named
Speaker 5: Nate Paul, who's a real estate developer in Austin and
Speaker 5: he's been accused of using his office to aid Paul,
Speaker 5: both in terms of turning over potentially confidential law enforcement
Speaker 5: investigation information to Paul, who was under an FBI probe
Speaker 5: at the time, and issuing opinions that would favor Paul
Speaker 5: in some of his proceedings. And so there's twenty different
Speaker 5: articles that go into different facets, but this relationship is
Speaker 5: really what's at the heart of them.
Speaker 2: And we should note that Nate Paul has been indicted
Speaker 2: on charges of making false statements to influence financial institutions
Speaker 2: over loan applications, and he's pleaded not guilty. Now, going
Speaker 2: back to the impeachment trial, can you give us some
Speaker 2: of the highlights of the evidence against Paxton? What stood
Speaker 2: out to you?
Speaker 5: I think something that really stood out from these two
Speaker 5: weeks proceedings was consistent testimony from top employees in his
Speaker 5: office who said they told him time and time again
Speaker 5: that they were concerned about his actions. We heard from
Speaker 5: people who said that they had private conversations with him,
Speaker 5: who called meetings with him to tell him that they
Speaker 5: were concerned that what he was doing was stepping over
Speaker 5: the line. Something that's really key in the case here
Speaker 5: that gets into this bribery allegation is his alleged extramarital affair.
Speaker 5: One of the accusations is that Nate Paul hired the
Speaker 5: woman with whom he was allegedly having an affair and
Speaker 5: kept her on his payroll, and in turn, Paxton was
Speaker 5: performing these acts in his office to benefit Paul. We
Speaker 5: heard from his former chief of staff in the office
Speaker 5: who talked about how this relationship affected the staff and
Speaker 5: how these actions that Pat Paxton was taking had impact.
Speaker 5: And she talked about feeling that people were uncomfortable fielding
Speaker 5: phone calls from Paxton's wife and having to make certain
Speaker 5: accommodations for him and this relationship. I think that was
Speaker 5: a really compelling piece of testimony that we heard.
Speaker 3: What was the defense to those allegations.
Speaker 5: The defense called witnesses and they cross examined the prosecution's
Speaker 5: witnesses and went line by line trying to depute these claims.
Speaker 5: But I think the big picture from them is that
Speaker 5: this is a politically targeted attack at Ken Paxton. They
Speaker 5: say none of the actions he took violated the law.
Speaker 5: All of the things were things that he was allowed
Speaker 5: to do within his power or as attorney general. One
Speaker 5: thing that was interesting during the proceedings in addition to
Speaker 5: allegedly hiring this woman who was part of the affair
Speaker 5: with Paxton, but the prosecutors claim that Paxton had renovations
Speaker 5: done at his home that were funded by Paul and
Speaker 5: that was another element of the bribery allegations, and his
Speaker 5: defense were was really focused on that point. During the proceedings,
Speaker 5: they pulled up pictures of his kitchen that was allegedly renovated,
Speaker 5: and they confirmed that the countertops had actually not been
Speaker 5: changed out at this time, that supposedly the renovations were
Speaker 5: paid for, and they showed invoices of him making this payment.
Speaker 5: That was a big victory, I think for the defense
Speaker 5: during the proceeding, but I think broadly speaking, they cast
Speaker 5: this as a political witch hunt against Paxton who did
Speaker 5: nothing well.
Speaker 2: Paxton didn't testify, and he wasn't even there for most
Speaker 2: of the trial.
Speaker 5: That's correct. He appeared on the first day to plead
Speaker 5: not guilty to all of the charges, and then he
Speaker 5: appeared briefly at the end of the proceedings, but he
Speaker 5: was not present in the chamber and the court decided
Speaker 5: that he did not have to testify. What's significant about
Speaker 5: his absence is that the person who was present and
Speaker 5: had to listen to all of these allegations was his wife,
Speaker 5: who was a state senator herself, Angela Paston. She was
Speaker 5: not allowed to vote on any decisions during the trial,
Speaker 5: but she did have to be there during the court
Speaker 5: proceedings to listen to all of the testimony and evidence.
Speaker 2: Did you find out what his strategy was of not
Speaker 2: even Deigny to appear.
Speaker 5: Oh, we didn't learn much about how that fit into
Speaker 5: his broader strategy. But I think the goal for his
Speaker 5: defense was clear here, and that was to cast this
Speaker 5: as a mutiny by some staffers in his office who
Speaker 5: wanted to take over as attorney general. Potentially, that was
Speaker 5: something they brought forward. They said, this is all a
Speaker 5: political ploy. They tried to create this idea that there
Speaker 5: was some kind of happening about who should be leading
Speaker 5: the state's law office in this way. But we didn't
Speaker 5: hear from Pakistan. We heard from people close to him
Speaker 5: in the office, and most of the witnesses for the
Speaker 5: prosecution were former employees who spoke to his conduct during
Speaker 5: the period alleged. When the defense did call witnesses, they
Speaker 5: asked four current members of the Attorney General's office to testify,
Speaker 5: including one of the people that oversees the Open Records Division,
Speaker 5: and folks who could speak to what they said was
Speaker 5: Paxton's correct behavior while he was in office, But we
Speaker 5: didn't get to hear from him himself.
Speaker 2: Tell us about the vote for a conviction. Twenty one senators,
Speaker 2: which represent two thirds of the chamber, would have had
Speaker 2: to vote for Paxton's conviction.
Speaker 5: That's exactly right. And this chamber, just like the Texas House,
Speaker 5: is dominated by Republicans, so there were nineteen Republicans, which
Speaker 5: would mean that some Republicans would have to vote in
Speaker 5: favor of conviction in order to achieve a conviction at
Speaker 5: the end of this. But what happened. What we saw
Speaker 5: was consistently a party line vote, with all Democrats voting
Speaker 5: in favor of conviction on most of the articles and
Speaker 5: most of the Republicans voting in favor of acquittal on
Speaker 5: all the articles. Only two Republicans in the Chamber ever
Speaker 5: voted to convict on a single article, and the process
Speaker 5: itself was a little bit confusing. Some of the witnesses
Speaker 5: talked about this experience of seeing rules both for criminal
Speaker 5: and civil proceedings being used in this trial, and so
Speaker 5: the vote at the end of the day there wasn't
Speaker 5: one single vote. All of the members voted individually on
Speaker 5: each of the articles pending against him, and so we
Speaker 5: saw some variation, but at the end of the day
Speaker 5: it was a largely party line vote, with just two
Speaker 5: Republicans ever, voting to convict on two of the articles.
Speaker 2: I understand that Trump surrogates and allies tried to pressure
Speaker 2: Republican senators not to impeach Paxson and posted names and
Speaker 2: phone numbers of potential impeachment swing voters.
Speaker 3: Do you know what they were doing behind the scenes.
Speaker 5: That's right, There was a really big pressure campaign around
Speaker 5: this entire proceeding. Obviously, Ken Paxton is a loyal ally
Speaker 5: of our former president who spoke on his behalf as himself.
Speaker 5: But then we did hear reports of these pressure campaigns
Speaker 5: that you're talking about. There were reports we saw of
Speaker 5: an effort to have online influencers pay people to post
Speaker 5: on behalf of the Attorney General advocating for him, and
Speaker 5: we certainly saw phone numbers being circulated, senators receiving phone calls.
Speaker 5: But I think in addition to that campaign, I mean,
Speaker 5: this is the defining political site I think of this
Speaker 5: period in Texas politics. There's so much a play here.
Speaker 5: Ken Paxson's been under indictment since twenty fifteen, and so
Speaker 5: most of the allegations that we were talking about in
Speaker 5: this impeachment proceeding have been known publicly, have been known
Speaker 5: by the members for the duration of his tenure as
Speaker 5: Attorney General, and it all culminated in this fight. So
Speaker 5: I think the political pressure has been mounting from the
Speaker 5: very beginning and really intensify it as a trial date
Speaker 5: group closer.
Speaker 2: Coming up next, we'll talk about the other legal cases
Speaker 2: that Paxton is facing. You're listening to Bloomberg. I've been
Speaker 2: talking to Bloomberg Texas legal reporter Madlen Mecklberg about the
Speaker 2: acquittal of Texas Attorney General Ken Paxton after a nine
Speaker 2: day impeachment trial.
Speaker 3: So Paxton is.
Speaker 2: Back in office as the state's top law enforcement officer,
Speaker 2: but he's facing other legal problems.
Speaker 5: That's right, he's been reinstated as attorney General. I think
Speaker 5: there's a lot of eyes now on what happens next.
Speaker 5: How do you go back to that office after going
Speaker 5: through this like really public ordeal where a lot of
Speaker 5: details were shared about your alleged conduct. And then he's
Speaker 5: got other legal battles regarding his conduct that he still
Speaker 5: has to fight. Like I mentioned, he's been under indictment
Speaker 5: that's twenty fifteen or security fraud in a case that
Speaker 5: is yet to go to trial. It's been delayed significantly
Speaker 5: by these different pre trial squabbles over venue and such.
Speaker 5: But I think we're going to get a date on
Speaker 5: a trial very soon in that case. And he's also
Speaker 5: tied up in some disciplinary proceedings involved in the state
Speaker 5: bar of Texas who accused him of professional misconduct for
Speaker 5: his efforts to try to overturn the twenty twenty presidential
Speaker 5: election results. And there's an ongoing federal probe into his
Speaker 5: conduct that was prompted by the whistleblowers who are behind
Speaker 5: some of these impeachment claims, So we could still see
Speaker 5: charges them from that. So while this was a significant step,
Speaker 5: it's not the final word on Paxton's legal saga.
Speaker 2: Those two state securities fraud charges, he was indicted on
Speaker 2: those just months after he took office in twenty fifteen,
Speaker 2: and it's always surprised me that that hasn't gone to
Speaker 2: trial yet. How has he managed to avoid trial for
Speaker 2: a year.
Speaker 5: That's a great question. There's been quite a few skirmishes
Speaker 5: ahead of this trial date. I think a key one
Speaker 5: was venue where the case should be tried, either in
Speaker 5: Houston or in his home county of Colin County. There
Speaker 5: have been objections raised to the prosecutor bringing the case,
Speaker 5: and all of these disputes have gone through a full
Speaker 5: appeals process on their own, going up to the top
Speaker 5: state appeals court in Texas, and they caused significant delays.
Speaker 5: I think finally the state appeals court said that the
Speaker 5: case can proceed in Harris County. There was a date
Speaker 5: here in state for Paxton in the case just before
Speaker 5: the impeachment proceedings began, and the judge said, once those
Speaker 5: proceedings wrap, she's ready to get this case moving again
Speaker 5: in Harris County.
Speaker 2: And as you said, there is an investigation by the
Speaker 2: FBI and the Justice Department's Public Integrity Section. Is that
Speaker 2: on the same allegations that were to testified to in
Speaker 2: the impeachment trial.
Speaker 5: That's right. So these top employees in Paxton's office, who
Speaker 5: we call the whistleblowers, they reported Paxton's conduct to the FBI.
Speaker 5: As it relates to advancing causes on behalf of his
Speaker 5: friend and political donor Nate Paul, and the FBI and
Speaker 5: the DOJ they've been investigating. We haven't seen the result
Speaker 5: of that investigation up to this point, but those cases
Speaker 5: are ongoing as far as we're aware.
Speaker 2: And there's a civil suit by those whistleblowers against Paxton.
Speaker 5: That's right. The whistleblowers stewed Paxton under the state's whistleblower statute,
Speaker 5: saying that they were retaliated against and in some cases
Speaker 5: terminated because they reported his behavior. And that case is
Speaker 5: actually what prompted this impeachment inquiry to start with, because
Speaker 5: Paxton and the whistleblowers had struck a three million dollar
Speaker 5: settlement agreement in the case, but in order to fund
Speaker 5: that settlement agreement, Packs then needed state lawmakers to allocate
Speaker 5: money towards that effort. State lawmakers said they weren't prepared
Speaker 5: to allocate that money until they investigated the claims behind
Speaker 5: the lawsuit, which is what prompted the investigation that led
Speaker 5: to the drafting of the impeachment article.
Speaker 2: Then he's also accused of professional misconduct by the state
Speaker 2: bar of Texas, and he could be disbarred in that proceeding.
Speaker 5: That's correct, that's a civil proceeding that's happening right now.
Speaker 2: Despite the impeachment, all the public scandals, the criminal charges
Speaker 2: he's still facing, some political experts think that he could
Speaker 2: reach prominence on the national political stage.
Speaker 5: I think that's totally fair. I mean, from the beginning,
Speaker 5: Puxton's reputation has been built on being a conservative agitator
Speaker 5: who does the Biden administration over everything that they do,
Speaker 5: and he's worked to align himself with former President Donald Trump,
Speaker 5: who we saw goats through a similar thing during his presidency,
Speaker 5: being acquitted in impeachment cases and only serving to boost
Speaker 5: his reputation. And I think that that's exactly what we're
Speaker 5: going to see happen here with Paxton, who's going to
Speaker 5: certainly be emboldened by this outcome. I think we're still waiting,
Speaker 5: kind of with bated breast to see what his first
Speaker 5: moves they're going to be now that he's been reinstated
Speaker 5: to the office. But I think it's certainly fair to
Speaker 5: say that this has only helped to bolster his reputation
Speaker 5: within his own party.
Speaker 2: That's an appropriate comparison to Trump, and just to be
Speaker 2: clear he was re elected last year to a third
Speaker 2: term despite all these criminal and ethical allegations. Was it
Speaker 2: by a wide margin or a narrow margin?
Speaker 5: That's exactly right, And that was a point that we
Speaker 5: heard from Paxton's defense council throughout the proceedings. They said,
Speaker 5: Texas voters knew about these allegations, and they didn't care.
Speaker 5: They elected him anyway, and so why should the state
Speaker 5: Senate overturn that? Why should they overturn the will of
Speaker 5: the voters. I was elected by a large margin in
Speaker 5: the general election campaign, but actually last cycles primary was
Speaker 5: the first time we saw some very strong contenders who
Speaker 5: challenged him in the Republican primary, including George P. Bush,
Speaker 5: a descendant of the Bush political dynasty in Texas, and
Speaker 5: Congressman Louis Gohmer and former Texas Supreme Court Justice Eva
Speaker 5: Guzman challenged him. That primary went to a runoff, but
Speaker 5: Paxton secured the nomination for his party there. But it
Speaker 5: was kind of the biggest political test of the impact
Speaker 5: of these allegations against him until we got to this
Speaker 5: impeachment proceeding.
Speaker 2: Well, a lot more to come with Ken Paxton's legal troubles,
Speaker 2: and I know you'll be following them for us.
Speaker 3: Madline, thanks so much.
Speaker 2: That's Bloomberg Texas legal reporter Madlin Mecklberg coming up next
Speaker 2: on the Bloomberg Law Show. The ua W strike as
Speaker 2: automakers layoff more union workers, the question is whether the
Speaker 2: union's aggressive stance will work. You're listening to Bloomberg.
Speaker 3: It's exciting, but very scary because the unknown. You don't
Speaker 3: know when you're going to get that full paycheck again.
Speaker 3: You don't know when you're going to get back in
Speaker 3: there to work again.
Speaker 2: Tonia Sullivan is a third generation auto worker at Ford.
Speaker 2: She's one of the nearly thirteen thousand workers on strike
Speaker 2: against the Big three automakers, and as the strike enters
Speaker 2: its fifth day, GM and Stilantis laid off more than
Speaker 2: two thousand additional union workers. Marcel Edwards has worked for
Speaker 2: Ford for thirty five years and says, though there's some nervousness,
Speaker 2: the striking workers support each other. The nervousness about the
Speaker 2: strike right now, it's just the uncertainty.
Speaker 6: But we believe in fame, We believe in this membership.
Speaker 4: We believe in.
Speaker 2: Our elected officials downtown to make sure that we come
Speaker 2: make with a contract that's respectable, and UAW president Sean
Speaker 2: Faine told workers in a video that he'll call on
Speaker 2: more members to walk away from the job if there's
Speaker 2: no major progress and talks by the end of the week.
Speaker 1: We've been available twenty four to seven to bargain a
Speaker 1: deal that recognizes our members' sacrifices and contributions to these
Speaker 1: record profits. Still the Big three failed to get down
Speaker 1: the business.
Speaker 2: My guest is labor law expert Michael Duff, a professor
Speaker 2: at the Saint Louis University School of Law. Last year,
Speaker 2: public approval for unions reached its highest level since Lyndon
Speaker 2: Johnson was president. Sixty seven percent of Americans approve of them.
Speaker 2: Have unions been making a lot of inroads?
Speaker 6: Well, what I tend to focus on when having this
Speaker 6: conversation with my students is the number of private sexist
Speaker 6: employees unionized throughout the country. Right. So, a lot of
Speaker 6: time we get union activity, we get popular approval, which
Speaker 6: is better than popular disapproval from the perspective of unions.
Speaker 6: But then we turn around and we look at the
Speaker 6: total number of employees presented by a union, and we're
Speaker 6: stuck at a number in the low six percent, right,
Speaker 6: so six point one, six point three, six point four.
Speaker 6: So my guarded answer is yes, I do think unions
Speaker 6: have been making inroads with respect to the attitude that
Speaker 6: the general public has to them, but so far that
Speaker 6: has not translated into people actually joining unions, So it's
Speaker 6: kind of a mixed picture.
Speaker 2: UAW President Sean Fain. I want to talk about the
Speaker 2: way he's framed these negotiations as a broader struggle. He said,
Speaker 2: it's the battle of the working class against the rich,
Speaker 2: the haves versus the have nots, the billionaire class against
Speaker 2: everyone else.
Speaker 3: What do you think of that framing?
Speaker 6: So I come from a blue collar background in a
Speaker 6: prior to life, I was a blue collar worker in
Speaker 6: the airline industry for a number of years. I didn't
Speaker 6: go to law school until my thirties. I was a
Speaker 6: teamster shop steer for a number of years. And I
Speaker 6: would say that that rhetoric resonates with me as somebody
Speaker 6: from that class and somebody who has gone through on
Speaker 6: a personal level labor structure. I think, you know, to
Speaker 6: be honest, we have to look at that and say, well,
Speaker 6: there's a generation of people, people of roughly my age
Speaker 6: or a little bit younger who would be very put
Speaker 6: off by that language that would seem extremely corrosive, not
Speaker 6: tending to lead to agreements and so forth. Now we
Speaker 6: have younger people coming up through the ranks of organized labor,
Speaker 6: and the sort of precariousness that a lot of them
Speaker 6: are facing, I think makes the rhetoric almost suddenly appropriate,
Speaker 6: almost unbelievably to those of us who have been involved
Speaker 6: studying the labor movement for the last few decades. So
Speaker 6: what I think of it is that it matches I
Speaker 6: think the enormity of some of the structural changes that
Speaker 6: we see going on in the economy for workers.
Speaker 2: What about this so called stand up strike targeting work
Speaker 2: stoppages at plants.
Speaker 6: Well, I think to the outside observer, a lot of
Speaker 6: the sounds are pretty esoteric and strange, But actually from
Speaker 6: a legal perspective, it makes sense, right, because once you
Speaker 6: begin to learn a little bit about labor law, you
Speaker 6: find out pretty quickly that unions strike at their peril,
Speaker 6: and the reason they strike at their peril is that
Speaker 6: if employees are striking over economic subjects of bargaining, that's
Speaker 6: the phrase of art. So you're not paying me enough,
Speaker 6: I need more contribution to healthcare from you, mister and
Speaker 6: his employer. If they are economic subjects that are sort
Speaker 6: of fomenting the conflict between the union and the player,
Speaker 6: employees go on and strike, they can be permanently replaced.
Speaker 6: And that's sort of the animating principle behind a lot
Speaker 6: of what's going on here. What permanent replacement means is
Speaker 6: that you go out on strike over an economic subject,
Speaker 6: you can't be fired, but we have to be able
Speaker 6: to attract people to do the job that you're no
Speaker 6: longer doing because you're on strike, and we can't very
Speaker 6: well go to this prospective employee that we want to
Speaker 6: take your place and say, well, we're only going to
Speaker 6: temporarily hire you. Why because we're not going to get
Speaker 6: a lot of people that are going to like that deal.
Speaker 6: So what we say is the replacement worker, the worker
Speaker 6: who's replacing the striking employee, is like, you come in
Speaker 6: and you can hold the job as long as you want, right,
Speaker 6: And so as a matter of law, the employer is
Speaker 6: not required to fire that person at the end of
Speaker 6: the strike. And so if you're the average worker, you
Speaker 6: go out on strike and you're permanently replaced, it's kind
Speaker 6: of a lawyer's distinction, the distinction between being fired from
Speaker 6: being permanently replaced. If it means no employment for a
Speaker 6: couple of years, then you're out of work either way. Right,
Speaker 6: there's no money coming in and you don't have food
Speaker 6: on the table. Once you understand that this is the
Speaker 6: background rule, you begin to understand why unions are very
Speaker 6: leary and have become more leary over the decades of
Speaker 6: just going out on strike, because if you go out
Speaker 6: on strike and the job is the kind of job
Speaker 6: that somebody coming in off the street could do, and
Speaker 6: then what's going to happen is the employer is simply
Speaker 6: going to replace all or most of the bargaining unit,
Speaker 6: and it's a very difficult situation for union. Now, lockouts
Speaker 6: or another area of concern. Your blockouts further complicate the
Speaker 6: scenario because one of the things that employers have been
Speaker 6: able to do, and they've actually been able to do
Speaker 6: it is nineteen sixty five. A lot of people are
Speaker 6: not aware of that. In order to compel the union
Speaker 6: to agree to whatever the bargaining issue is, they can
Speaker 6: simply lock out members of the bargaining unit, say Okay,
Speaker 6: you're not coming back to work and so if what
Speaker 6: there are rules surrounding that, But it's what we know
Speaker 6: of as a bargaining b lockout. You know, it's not
Speaker 6: viewed as discrimination. It is permitted under the.
Speaker 3: Black What about these layoffs?
Speaker 2: All three of the Detroit autel makers have laid off workers,
Speaker 2: and they say that it's because of internal supply chain issues,
Speaker 2: due to a lack of parts needed for certain assembly
Speaker 2: workers to do their jobs. So why are they citing that.
Speaker 2: Do they need a reason for laying off workers during
Speaker 2: a strike?
Speaker 6: That's a very good question. So when you lay off
Speaker 6: workers because you don't have enough materials to continue production,
Speaker 6: arguably that's not even a lockout, right. You're not laying
Speaker 6: the workers off, at least on the surface. You're not
Speaker 6: laying them off to pressure the union to accept your
Speaker 6: bargaining position that you have. You're laying workers off because
Speaker 6: you can't continue production. In the old days, we used
Speaker 6: to talk about lockouts, and just give you a sense
Speaker 6: of how far back this line law goes. It used
Speaker 6: to be that we would say that defensive lockouts were lawful,
Speaker 6: but offensive lockouts were unlawful. The distinction was a defensive
Speaker 6: lockouts you had a good business reason for doing what
Speaker 6: you were doing right, there was no way that you
Speaker 6: were doing it to pressure the union. You had a
Speaker 6: business justification for locking employees out. I think the strategy
Speaker 6: of the automakers here is the position themselves in such
Speaker 6: a way that it's much harder to say that they're
Speaker 6: doing what they're doing for discriminatory reasons. So probably they're
Speaker 6: allowed to do it anyhow, They're probably allowed to do
Speaker 6: it to pressure the union to accept their bargaining position.
Speaker 6: They arguably could do that, But here they actually have
Speaker 6: a business justification, which is, we can't make cars if
Speaker 6: we don't have park.
Speaker 2: Do you consider a lockout and a layoff the same thing?
Speaker 6: I do not. I think lockouts formally are workstoppages initiated
Speaker 6: by the employer, undertaken to pressure the union to accept
Speaker 6: the employer's position on a bargaining dispute, whereas layoff typically
Speaker 6: you're talking about the cessation of work that's prompted by
Speaker 6: various economic exigencies.
Speaker 3: It sounds like management has all the cards. What cards
Speaker 3: does the union hold?
Speaker 6: Well? The sort of gamesmanship, that's what it is. It's
Speaker 6: a high safe game. But this idea of the stand
Speaker 6: up strike is that by moving around, all right, So
Speaker 6: you know, a boxer doesn't stand in one place and
Speaker 6: allow himself to be punched. You sort of move around.
Speaker 6: So you're not on strike at a number of facilities,
Speaker 6: but you are at one key facility, right, And so
Speaker 6: what you're doing is you're setting up a situation where
Speaker 6: the employer could permanently replace in that particular location or
Speaker 6: lock out, but then you have other facilities where nothing's
Speaker 6: going on. It's a variant of something that labor inside
Speaker 6: is called withsaw strikes because actually this actually goes back
Speaker 6: a number of decades. Right. The idea is and typically
Speaker 6: it was a union bargaining with different employers than what
Speaker 6: was called a multi employer bargaining unit. But the idea
Speaker 6: is very similar that what you did was, as the employer,
Speaker 6: you see that the union is striking, an employer say
Speaker 6: over there, So what you do is you lock out
Speaker 6: your employees to prevent the union from being able to
Speaker 6: strike according to its own timetable. And the idea is
Speaker 6: that that pressures the union in unforeseen ways. But what
Speaker 6: the union can do is to engage in work stoppages
Speaker 6: in unpredictable ways, it will run into various legal doctrines
Speaker 6: that have been designed over the decades to frustrate that
Speaker 6: kind of maneuver. But I do think that that's the
Speaker 6: union's best opportunity to wind up with a positive outcome here.
Speaker 2: The union president has said that if there's not serious
Speaker 2: progress in negotiations by Friday, war workers are going to
Speaker 2: walk off the job. That's pretty aggressive, right.
Speaker 6: Yeah, well, it is aggressive. And you know what this
Speaker 6: reminds me of. You know, at the end of World
Speaker 6: War Two, there was a period in history where aggressive
Speaker 6: union activity was obviously curtailed during the war, and there
Speaker 6: was a lot of hint up labor activity that all
Speaker 6: of a sudden was released at the conclusion of the war,
Speaker 6: and you had a lot of strikes occur, and that
Speaker 6: became the impetus for creation of the TAP Partly Act,
Speaker 6: which is a part of the National Labor Relations Act
Speaker 6: as it's been amended. Right, And I almost feel like,
Speaker 6: you know, as a result of just everything that's been
Speaker 6: going on with respect to the gig economy and the
Speaker 6: precariousness of employment coupled with the pandemic and some of
Speaker 6: the labor conflicts that emerged because of the pandemic. A
Speaker 6: lot of it centered on healthcare and perceived dangerous workplaces.
Speaker 6: All of that kind of culminates over this summer. You
Speaker 6: have a situation where workers maybe have had enough, they're
Speaker 6: willing to take risk, and I think Sean Fatis is
Speaker 6: tapping into that. He realizes almost viscerally that he has
Speaker 6: a rank and file employee group that's ready to hear
Speaker 6: that message. If that message had been attempted in other eras,
Speaker 6: it might not have been successful. But I think he
Speaker 6: is mirroring some of the emotions that are percolating up
Speaker 6: from the rank and file. And of course he is
Speaker 6: a rank and file member. He has deep roots in
Speaker 6: the Auto union itself.
Speaker 2: If you had to call it, how do you think
Speaker 2: this will end?
Speaker 4: Well?
Speaker 6: You know, the idea of labor law is that there
Speaker 6: is in the end compromise, and we have a very
Speaker 6: odd system in the United States where we're simultaneously bargaining
Speaker 6: in good faith, which has a very specific statutory meaning,
Speaker 6: even while there are strikes and lockouts and all kinds
Speaker 6: of things that look to the average outside observer like
Speaker 6: anything but bargaining and good faith. My guess is that
Speaker 6: the union is going to make significant gains. And the
Speaker 6: reason I say that is because all of this is
Speaker 6: bubbling up in an era where you already have labor unrest.
Speaker 6: And so my sense is that the company, looking into
Speaker 6: its crystal ball out into the future, sees an environment
Speaker 6: that's likely to be favorable to labor, or at least
Speaker 6: the foreseeable future, and I don't think it would be
Speaker 6: a good marketing strategy to be seen as digging in now.
Speaker 6: Having said that, I'm not suggesting that I think the
Speaker 6: union's going to get everything at once. That's why this
Speaker 6: is ultimately a negotiation. What I do think is that
Speaker 6: at the end of the day, there will be a negotiation.
Speaker 3: Thanks Michael.
Speaker 2: That's Professor Michael Dove of the Saint Louis University School
Speaker 2: of Law.
Speaker 3: And that's it for this edition of The Bloomberg Law Show.
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Speaker 2: I'm June Grosso, and you're listening to Bloomberg