Employment Policy Changes to Be Considered in Light of Current NLRB Changes
Recent changes in the composition of the National Labor Relations Board (NLRB), and government directives suggest the possibility of significant changes in future human resource practices. Some of the changes will affect the ability of employers to utilize employee handbooks and other written employment policies, including policies relating to confidentiality, non-competition, employee misconduct, and union organizing. This webinar focused on which policies are currently at issue and how employers might address whether changes are necessary or desirable, or whether a “wait and see” attitude is best. This webinar was led by Jim Wimberly.
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Webinar Transcript
James W. Wimberly, Jr. (00:00):
Happy Friday. Jim Wimberley here. This is Robert Robin Turnham over here, <laugh> my assistant who's gonna be handling the IT aspects of this. There will be questions at the end and you know, if somebody just has to answer a question during the program, I'll take that too. Robin, do you have to unmute them or will they be able to I inject. I don't know. I'll, I'll find out. Okay. All right. The subject today is how the changes that the National Labor Relations Board that are quite dramatic have possibly allowed employers to make some necessary and helpful policy changes. I can say that the developments at the NLRB are quite interesting. Just to give you a quick five minute version of the dramatic changes just as president Biden had done, president Trump when he came into office, fired the general counsel at the Labor Board and put his own acting general counsel in place.
James W. Wimberly, Jr. (01:27):
Now, many say that the general counsel at the Labor Board is the most powerful position at the Labor Board because the General counsel determines what cases to prosecute and what theories to use. And this is quite significant because the board members themselves only decide the cases that come before them. Now, president Trump is made changes involving the members of the Labor Board. Also there were three Democrats members of the board. Now there's just one president Trump fired the other two. And so now there's not a quorum because there were only two members of the Labor Board remaining, one Democrat and one Republican. So the Labor Board right now cannot render a decision at that level. That doesn't mean the Labor Board processes have stopped because all the regional offices are still carrying out their normal functions. Presumably there can even be administrative law judge rulings or trials.
James W. Wimberly, Jr. (02:43):
And it's really only at the appellate level that the board itself decides cases. Now, I'm not going to get into the subject of firing board members, but one of the Democrats on the board who had been the chairperson sued one at the district court level. However, the appellate Court stayed that ruling until there's a final ruling on whether the president can fire Labor Board members. I won't get into that. There are complicated issues there. It's probably pretty close to a 50 50 proposition who will ultimately prevail. But in any event let's look at what policy changes or in the air and how that affects employer policies.
James W. Wimberly, Jr. (03:42):
One of the most difficult things that the Labor Board was doing to employers during the previous administration was that they were finding an employer policy, whether it was written unwritten in a handbook as an internal policy posted on the board or whatever, to be unlawful if it could have a reasonable tendency to chill, to tear employees asserting their rights. And those rights include both form a union or engaging in what's called concerted activities for mutual aid protection. When two or more employees decide they want to see changes in wages are terms and conditions of employment, even if a neurological interpretation of the rule was also reasonable. Now, just to give an example of this let's take a rule that used to be quite common and maybe still is walking off the job. I think we all know what walking off the job normally means is you're on a production line or what have you, you're at work, and then you just take off and leave.
James W. Wimberly, Jr. (05:07):
The Labor Board under the previous administration found that policy to be illegal. Why? Because employees have a right to strike and therefore they have a right to work, walk off the job if they choose to do so. Now, that's a strained interpretation, but it's a possible interpretation. So there you get the problem we had with the Biden board because they were saying that if an employee might view the rule as restrictive, it was unlawful. So the new board is highly likely to return to a standard, more supportive of company rules as they did under the administration's prior to Obama and Biden. And what they did in those times, they put rules into three categories and gave examples.
James W. Wimberly, Jr. (06:16):
They gave examples of rules that were lawful. They gave examples of rules that were unlawful, and then there were other rules that were potentially questionable that warranted individual scrutiny. We think they'll return to that standard. In other words they'll make it easier for employers to write and enforce reasonable work rules. It doesn't mean the work rules shouldn't be legally reviewed. They absolutely should because some of the determinations on what's a lawful and an unlawful work rule are not a hundred percent logical. So we still recommend legal review of, of work rules, handbook, rules, and the like, but we want you to know that help is on the way. A second thing the new board will do is turn to a more lenient test for determining if an individual's, an independent contractor under the Biden administration, and I'm deviating slightly from just Labor Board and talking about general policy, they put out a memorandum that workers are presumed to be employees, and it was a heavy burden on the employer to show that a person was an independent contractor and they put out another standard that a person is unlikely to be an independent contractor if they perform a primary function of the business.
James W. Wimberly, Jr. (07:59):
Just to get an example, you're a trucking company and you have employee truck drivers, but you also have a group called Owner Operators that own their own trucks and contract with the employer on an independent contractor basis. The Biden administration didn't like that concept and said, or suggested that such a person was more likely to be an employee. So and, and also the administration or general counsel at the Labor Board at the time, the one that was fired took the position that if an employer improperly called someone an independent contractor that worked for 'em, even though they were actually an employee that was also a violation of Labor Act. 'cause You were telling that employee or worker that he or she didn't have the right to form a union or engage in, in survey protected activities. And the implications of that approach are staggering because and rather than go through a long lawsuit employee or union could simply run to the Labor Board and say, Hey that person's really an employee, the employer's calling 'em an independent contractor.
James W. Wimberly, Jr. (09:29):
We want the Labor Board to intervene and make a decision. And that's a rather quick way and without cost to reach a determination. So there's gonna be a more lenient test for determining if an individual is an independent contractor. We do believe in having a written contract with groups that we consider independent contractors and having all the right terminology. Another issue, employers are gonna have more rights or to exclude organizers, non-employees from access to the property. I'm not gonna go into detail about that, but the previous administration seemed to have a goal of giving employees as many opportunities to unionize as possible. And what better way of doing it than to give organizers access to the employer property, for example. Strictly saying that if an employer allowed any anybody to come on his property that wasn't an employee, they ought to allow union organizers to come on the property. And if the employer had any public areas of the property, union organizers ought to be able to have access to that public area as well. Next slide.
James W. Wimberly, Jr. (11:05):
Now, one of the most difficult things for our clients, and I think the public to understand is that labor board rights extend not only to organizing for union, but to engage in something called activity for mutual aid protection actually has to be concerted activity for mutual aid protection. The mutual aid for protection is simply to improve one's working life. So if it one or more employees acts concertedly, meaning as a group involving more than one person to improve some aspect of work that's protected from retaliation by the employer, exactly like attempting to organize a union is protected some from retaliation. So the Labor Board had kind of gone overboard in many people's view as to what was concerted. If one person makes a complaint, is that concerted activity that's normally considered a personal gripe not protected by the labor board. Certainly anytime any employee has a personal gripe pertaining to himself or herself, that shouldn't create a federal issue.
James W. Wimberly, Jr. (12:35):
But that seemed to be the way the Obama administration was headed. So the current administration is gonna look more closely as to whether it's actually concerted involving two or more employees getting together to promote some common interests. Now, also, the previous administration, and I'm singling out the previous administration, not because it's never happened in the past, but that was the current issue the changes from the previous administration. They allowed employees engaging in either union activity or other concerted activity, a lot of leeway in how they express themselves. For example, suppose a an employee approaches a supervisor and says, you're overworking me on overtime. You're not giving me enough overtime, whatever the like gripe is, and I'm getting tired of it. And you're a sorry SOB <laugh>. The issue was, could an employer discipline the employee for the sorry SOB part of that protest?
James W. Wimberly, Jr. (14:03):
And obviously I'm being kind in my choice of words, the employee may have had stronger things to say to the supervisor or manager. What the previous administration, and I'm talking about the Labor Board and under the previous administration was often saying that when employees are expressing their complaints, they sometimes get carried away and going too far. But we're gonna give 'em a lot of leeway to do that. Well, if the employee's actions in some type of protest is profane and threatening, we believe the current administration will be more supportive and employer's right to discipline for that part of the behavior that is in fact profane and threat. Another issue, email systems. The previous administration took the position that if an employer has an internal email system they were wanting to set the law so that employees could use that email system to organize a union.
James W. Wimberly, Jr. (15:17):
In other words, they could use the employer's company owned and operated equipment for the purpose of union organizing. It might not, it might go beyond an email system to include other things. It's clear the current administration is not gonna allow that. If the employer has a system or equipment. It's for business purposes only. The employer can have such a policy. Now, if the employer grants too many exceptions to that policy, that's another issue. Discriminatory application application. But at least the employer can have the right, the management right to limit the use of its systems like email systems for business purposes only. Another position, the general counsel, the Labor Board was taking, and this is kind of weird, but many employers now have various types of surveillance systems. We all know about video cameras and so forth, but some of these surveillance systems go way beyond that.
James W. Wimberly, Jr. (16:36):
And the Labor Board General Counsel had taken the position that if employer can know too much about what's going on in the facility, that might ter employees in that facility for trying to organize a union or engage in other concerted activity. Well, the theory which was never really endorsed by the board itself, but that was the general counsel's position, is now we expect to go by the wayside. We don't see any way that the current administration general counsel will endorse such a claim. Now, one of the most disturbing and far reaching aspects of limitations the previous administration had placed was against so-called captive audience meetings. Now, let me first explain what a captive audience meeting is and what, and to do that, I'm gonna explain in two to three minutes what an employer's most common tactics were to remain union free. If a union was trying to organize that employer.
James W. Wimberly, Jr. (17:48):
The two two most common tactics employers used were one to summon groups of employees together in some cases small groups, in some cases, large groups, in some cases the whole facility, and have a presentation by a company spokesman on why the company wanted to remain union free. The disadvantages of a union and that type thing. Well, the Labor board during the Biden administration took the position that if you required employees to attend such a meeting, it was an unfair labor practice. It was a serious unfair labor practice. Now, you could still have such meetings as long as the employees could decide on the whether to attend or not attend based on their own desires. They could still be done. But otherwise the employer couldn't bring employees together and speak to 'em about the benefits of the non-union status. A as an aspect of that, they had taken the position legally, although it wasn't clear in the ruling which way they would go on there, that even one-on-ones were prohibited.
James W. Wimberly, Jr. (19:04):
What is a one-on-one? That's when a manager or supervisor goes around and speaks to individual employees and has a similar conversation about why they believe it's an employee's best interest to remain union free and not get involved in signing union cards and things of that nature. In other words, in one respect, the Biden administration had taken away the two most important measures. An employer had to remain union free if a union was campaigned. I don't believe there's any way those rulings will be continued during the current administration. As a matter of fact, the new acting general counsel appointed by the president has already done away with the guidance put out by the prior administration on the subject to captive audience meetings. Next slide.
James W. Wimberly, Jr. (20:05):
The Labor Board had general counsel under the previous administration took the position that an employer couldn't limit non-comp employees from working elsewhere under non-compete agreements and restricted covering. By the way, where did the previous administration's general counsel come up with these theories? Well, on the captive audience meeting, the theory on the prior general counsel was that employees had a right not to listen to company discussions about union free status. They had a right not to attend, not to listen. The employer may have a right of free speech, but employees had an equal right not to listen and not to attend such meetings. Where did she come up with the limitation on non-competes and restricted comments? Well her rationale was that employees, when they band together and so forth to form a union, if they knew they couldn't get another job, they might be deterred from trying to form a union or engage in concerted activities because they knew they had no alternative to go somewhere else.
James W. Wimberly, Jr. (21:25):
So those were the rationale the previous general counsel took. It was obviously an effort to promote Union organization. Indeed. I think the previous administration took the position that there was no noer policy other than remote unionization, and that was reflected in policies of the Labor Board and other policies. Anyway. Now, probably the most disturbing, and this was an actual ruling, I cite the case, CMEX case during the previous administration was to establish a card check like procedure. Now, a little background on a card check. First of all, what is a card check? Well, normally there's a secret valid election to determine whether employees want a union, but employers can voluntarily enter into agreements to have a card check, meaning if an employee signs a union authorization card, somebody would look at that card, compare it to an employee list, and decide whether a majority had signed up for the union outside the process of a secret ballot election.
James W. Wimberly, Jr. (22:51):
It was very rare for an employer to voluntarily agree to that. And proponents of unionization sponsored the so-called PRO Act and probably the most obnoxious opposed part of the Pro Act was a car check procedure. Well, the PRO Act didn't get enough votes in Congress, so the previous administration put it in through the Labor Board <laugh> without Congressional authority. How did they do it? They said that if an employer commits any unfair labor practice, even one that might be the basis for an objecting to an election, then that was enough to require a card check like procedure to determine if the union has a majority and therefore is a designated bargaining representative. That case is gonna go out in the next administration in a hurry.
James W. Wimberly, Jr. (23:54):
Now employers of all types union, non-union and remember majority of the rules set by the Labor Board probably affect non-union employers more than union employers. So keep that in mind. Employers of all types of concerned about obnoxious social media posts made by employees, and we get calls all the time of outrage, employers saying that their company's been demeaned a certain manager, supervisor's been demeaned, and also the previous Labor Board had put in rules or rulings against this prohibiting disparagement of the employer. Because when you organize the union, of course, unions often disparage the employer. And so employees support unionization often disparate the employer. So the, the new Labor Board, in essence is gonna give the employer more free speech. At the same time, they're gonna give employers more rights to regulate things like social media, use outside employment, non-disparagement, and be allowed to keep certain investigations confidential.
James W. Wimberly, Jr. (25:26):
This has been a sore spot because <laugh>, there was kind of a disagreement between two federal agencies. The EEOC took the position that when you're conducting discrimination investigation such as on harassment, you probably want to keep the investigation confidential. The NLRB took the position, Hey, an employee ought to be able to talk about a workplace investigation as a protected right for mutual aid protection. Well, we believe the new administration is gonna give employers more rights to keep investigations confidential. Now, there are all sorts of issues that come up when employees wear controversial badges or pens at work. It's pretty well settled that an employer is required to allow employees to wear union badges at work. This may be surprising to some, but it's pretty much the rule. There are very few exceptions to that. It might be an exception if an employer has somebody dealing face to face with the public, but generally employees have a right to wear union badges.
James W. Wimberly, Jr. (26:51):
But what about other controversial badges? You say, what am I talking about? Well I give an example. Black Lives Matter badges. Some might say what's wrong? That what you gonna do when White Lives Matter badge pops up? What you gonna do if somebody with a confederate flag badge walks up? There are a whole host of political issue type badges and controversial type badges, and the bottom line is the Labor Board and the prior administration was quick to find that controversial badges had some connection to the workplace and therefore were protected. As for mutual labor protection relating to work life in some way, they had the most difficulty in deciding whether an employee had a right to a Black Lives Matter badge at work. But there were some cases saying they did have a right to wear such badges. The bottom line is we expect the new administration to allow employer rules to have stricter policies on wearing controversial or political badges.
James W. Wimberly, Jr. (28:15):
The previous administration general counsel took the position that if an employee was called in for an investigation of misconduct, that is the alleged perpetrator of the misconduct was called in for an investigatory interview. That is, you know, you're under investigation for such and such. We're going to get your side story closing. Employee says, well, I want a representative here in a union shop. There's Supreme Court case that says they have that rights, it's the line Garden case. But in the non-union sector, the general rule was that the employee had no right to any outside representative. Well, the general counsel during the previous administration was gonna change that doctrine and say that even non-union employees had the right to outside representation during an interview. Might be a coworker, might be somebody who didn't work for the family, but that concept is going away. Next slide.
James W. Wimberly, Jr. (29:38):
Hmm. Okay. Now this slide is <laugh> a very broad slide, and I have to apologize in advance because the devil is in the details, meaning the specific rule has to be looked at. But here's the direction the new board is gonna take on allowing company rules. First, they're going to give companies more right to have confidentiality rules. Now, one right employees do have that, some of you might consider confidential employers cannot under any administration, keep employees from sharing personal pay information with other employees. Virtually all administrations that said that inherent in employee's right to engage in conduct for mutual aid protection is to share information about how they're treated and paid. So that ain't going to change. But there are a lot of other confidentiality rules about company private information and so forth or, or confidentiality during internal company investigations that are probably gonna be allowed by the Trump board.
James W. Wimberly, Jr. (31:13):
Again, I say that the devil's in the details. Number two, the previous administration had gone so far to prohibit rules about civil conduct being respectful to coworkers. Why? They said, when you're trying to organize a union or advocating for some working condition, sometimes you're not respectful to your coworkers. And they wanted to give them that right <laugh>. They didn't want to chill the efforts to organize the union or organize other aspects of mutual aid protection by rules about being respectful to coworkers. Well, being respectful of coworkers is a common sense rule that we believe will be allowed by the trunk board. It's like the walking off the job issue. We all know what walking off the job's intended to accomplish, the fact that it might remotely in some situation be confused with a strike shouldn't invalidate the rule. Well, it's the same about being respectful to coworkers and prohibiting unprofessional behavior.
James W. Wimberly, Jr. (32:30):
This was something where the previous administration probably went too far. Same about doing things that harm a company's reputation, rules against offensive behavior, inappropriate behavior, and so on. So these are just examples and they're not the wording of the rule themselves, but examples of the movement the administration has made that will give you the HR world the opportunity to make more rules that you like. Now notice my note at the bottom of the page that's called my note, is actually advocating for disclaimer. Now, I'm not saying every rule you have, you have to put in a disclaimer after it. I'm saying there are some rules that are questionable and maybe you fear you've gone too far. And by the way, what's the danger of going too far? Well, your rule number one's an unfair labor practice. But more serious, if you have a union election and win, the union may file objections saying the election's no good 'cause you had unlawful rules that chill union activity, therefore, we want another election.
James W. Wimberly, Jr. (33:53):
Well, that's not a good thing. Maybe the odds of that happening are low, but it still helps to have lawful rules. The second problem, if a rule is over fraud and thus unlawful, it may be that the discipline is unlawful and therefore the worker's entitled to reinstatement back pay not a good thing. So there are all sorts of reasons why we want to have lawful rules. And a safety value might say that may not always protect you, but it'll go some ways in protecting you. If you've got a rule that's questionable, whether it goes too far, you can always have a disclaimer at the end, except to the extent such activities are protected by section and seven National Labor Relations Act. That gives you an argument that even if your rule might be a little over broad, that employees are put on notice and they still have all the rights to engage in activities protected by the Labor Act. And that may get you out of trouble in a questionable situation. Next slide. Now what I've said up to now pertains to all employers.
James W. Wimberly, Jr. (35:15):
I want to just deviate here just for a minute and talk about union employers. Union employers generally have a collective bargain agreement or contract with a union. And almost all collective bargain agreements have what's called a management rights loss. A management rights clause might be one paragraph, it might be two pages long, and there are pros and cons of each version, which I don't have time to get into. But suppose an employer makes a change in the workplace. Maybe it's an application of management rights, but it's nevertheless a change. The previous administration took the position that unless the management right was very explicit as to this matter, the employer could only make a change in working conditions without giving the union notice and an opportunity to bargain. And if the employer made that change under that union contract, without giving the union notice prior notice and an opportunity to bargain, it was unlawful and was subject to attack as an unfair labor practice that would require, require rescission of the change.
James W. Wimberly, Jr. (36:53):
The current administration is gonna make a more lenient application of that concept. The concept's still there, but if the management right is implied from the management rights clause, it's probably not gonna require notice and opportunity to bargain with union. Some may think that's a subtle change, but actually in effect it's a big change. So this is gonna be good for unionized employers. They're gonna have more rights to make unilateral change. What is a unilateral change? That's one without the union's approval or advance notice even to the union. Now here's one that's gonna make a big difference.
James W. Wimberly, Jr. (37:44):
The checkoff in non right to work states almost all employee. Well, all employees are likely to have to pay union dues and right to work states only employees who sign up to pay union dues have to pay because the concept of a right to work law is that each employee can choose whether to join a union or to pay union dues. But in doing so, making this voluntary election to pay union dues, they sign what's called a checkoff card. The checkoff card generally says that once employees sign this card, it will be automatically renewed year by year unless the employee notifies the union and the employer within so many days of each anniversary date that they want to withdraw from paying union dues. Now, that doesn't mean all checkoff cards read that way, but I would say 90% read that way. Now, when a company's bargaining with the union the union's trying to put pressure on the company, presumably to get what it wants, the company's trying to put pressure on the union to get what it wants.
James W. Wimberly, Jr. (39:17):
But what happens if the contract expires and no new contract is reached? Is there any additional pressure that a company can put on a union to bring about a contract? Well, yeah, one might be to stop withholding union dues. I think in the current administration, the law is gonna allow employers to stop paying union dues after a contract expires. That's not the way it is during the previous administration, but will allow companies to have more influence on bringing about reaching a new contract. It'll also allow the new administration more leeway to engage in hard bargain. Now, what I mean by hard bargain, well <laugh> it, it means what it says being tough. This is my proposal. I'll be glad to keep negotiating on it, but I don't expect my position to change. And the union says, well, what do you mean you aren't gonna agree to such and such? Every other employer in our industry's agreed to that. The employer comes back and says, I don't care what every other employer in the industry does. This is what my proposal is and I'm sticking to it. Some might call that hard bargaining.
James W. Wimberly, Jr. (40:49):
The previous administration was quick to say that many types of hard bargaining were bargaining in bad faith and therefore an unfair labor practice. So I'm saying the current administration we believe is gonna allow the employers more rights to engage in hard bargain. I will make a couple of comments on this. I rather enjoy. As many of you know, the Republican party is now becoming more of a working person's party. As a matter of fact, a half of union households voted Republican, and if you look at working people at a whole, it was closer to 60%.
James W. Wimberly, Jr. (41:40):
And the current administration even appointed a very pro-employee secretarial labor and many in the administration had very ProLaw even pro-union positions, including the vice president. The, the, the vice president is supported by the Teamsters Union Secretary, new Secretary of Labor is supported by the Teamsters Union. So there are a lot of elements in the Republican party that are not just totally management like they used to be. However, <laugh>, there's still a lot of management sympathies left in the current administration. To give you an example and it doesn't have anything to do with you, it's more it has to do with federal employees. The administration is moving to cancel all labor contracts that they say relate to national security, and that's an awful lot of 'em that they're claiming related to national security. So just like President Reagan fired all the air traffic controllers that were striking, some of you might remember that many years ago the new administration is largely trying to eliminate union contracts in the federal sector. So I guess I wanted you to know there's you kind of have to watch the, the details of this, but in general, the new administration is gonna be much less pro-union than the previous administration. Next slide.
James W. Wimberly, Jr. (43:28):
The next issue is what about union organizing campaigns? Now, this pertains to the non-union sector. I'm gonna be brief on it both because I'm getting close to running out of time and I want to take questions. And by the way if the questions go beyond 12 o'clock I'll stay on a bit longer. So don't worry about having to get the questions out quick or having lots of questions. I'll do my best to answer 'em. But what about union organizing campaigns? Well, one of the things the democratic administrations have done, and Obama did promising to be the most pro-union president in history, and I think he fulfilled that goal. He was the most pro-union president in history was to hold quickie elections. Now, quickie elections is, is really just what it says. It is held very quickly after the union asked for it. If you go back 20 years, the average time between the union going to the labor board, filing a petition for an election, and the day of the election was roughly 60 days.
James W. Wimberly, Jr. (44:51):
Fast forward to the period of time when the quickie election rule was most strongly in effect, that 60 days got cut down to more like 25 days. Unions love quick elections because statistically it enormously improves their odds of winning. If a union had its way, their traditional organizing strategy was to, was to keep the organizing secret. They liked keeping it secret because the employer didn't have an opportunity to respond to the other side of the story. They don't want the employer giving the other side of the story. So they wanted to keep everything secret as long as possible. They wanted to ask for the election at the time. There was the height, the union strength, and they wanted to have the election as quickly as possible.
James W. Wimberly, Jr. (45:56):
The quick election rules were designed to number one hold the election so quickly. The employer didn't have an opportunity reasonably to explain the other side of the story for the employees to figure it out. And two, give so many the employers, so many legal maneuvers to have to meet that it was tied up with meeting the labor board procedures rather than engaging in the union campaign. So I anticipate one of the first things the new administration will do is to change this, these quickie election rules to give the employer more time, to give the voters more time to figure out whether they feel they're better off, whether without a union. You know, I I suspect the amount of time that employers gonna have will go till I'd say 40 days or more. That's not a ton of time, but 30 days is the minimum.
James W. Wimberly, Jr. (47:08):
I believe that an employer needs to turn a situation around where a union has a lot of people signed up and a union's not gonna ask for an election unless it has a vast majority signed up. So the employer's gonna need a month and more of how it would be helpful to turn the tide and give the employees the other side of the story. Okay? Now another thing the Obama and Biden administrations came up with. We'll just allow the unions any voting unit they want. Now, that's an overstatement, but they were called microunits. You know, normally in industry, the most common election group was a production and maintenance unit for the entire facility. In other words, a typically a union has to ask for an election in an entire facility.
James W. Wimberly, Jr. (48:15):
But what the unions later decided on that, if they can't win an entire facility, let's win part of that facility and then let's use that as a springboard to win the rest of the plan. An example of this, the Volkswagen plant in Chattanooga, Tennessee, the unions got clobbered trying to organize the plant as a whole, initially at least. But they were able to organize the maintenance department and they were gonna use the maintenance department as a springboard for the entire plan. And you might say, what happened, <laugh>, we don't really have time to get into that, but the union plan didn't work. But nevertheless, that was the plan. The employer is gonna have an opportunity to return to captive audience meetings and one-on-one sessions with employees advocating its union free status. More importantly, they're gonna be given more free speech to speak out against unionization. I'm gonna give you the most pertinent and most current example of the advantage of free speech.
James W. Wimberly, Jr. (49:35):
One of the most common arguments for employers to make, keep a union out and is that, hey, with a union, you lose the right to come resolve issues directly with the employer because you gotta go through the union for your representation. For years, that was constitutionally protected free speech. Lo and behold, the Biden, NLRB six or eight months ago came up with a case that said, that's an unlawful threat. <Affirmative>, the employees still have the right to go directly to their employer, even though they can go to the union as well. And so by saying that your unlawfully threatening employees with retaliation if you vote for a union. So the Biden board attempted to take away probably the most common argument against the union that an employer had. Well, that case is gonna go away. And remember, it might be some time before we have a, a quorum at the board.
James W. Wimberly, Jr. (50:52):
There are two members that now takes three for quorum. One member is litigating her case. It's a possibility she could be reinstated. Also President Trump has nominated another person from a management law firm be on the board. And presumably that confirmation process will certainly be over in 60 days, I would think, maybe 30. So in any event, what I've tried to cover with you here in this 45 minutes is three things. One, the current administration is gonna allow employer more rights in dealing with the union. The current administration is going to allow employers more rights in speaking out against the union and a union organizing campaign. But what I had billed this program as is to advocate that the employers are gonna have more right, the right reasonable rules and policies and have them forced without somebody coming in and saying, Hey, somebody could argue that kills my right to form a union or work with other or one or more other employees for mutual aid protection.
James W. Wimberly, Jr. (56:12):
So thank you for attending. Thank you.
