This transcript has been auto generated
00;00;00;00 - 00;00;23;20
Tom Godar
Welcome to 麻豆十三女郎's Labor Law Insider podcast. This is your host, Tom Godar. I've been practicing in the labor law sector for, gosh, more than 40 years. And I can tell you that in no time of my practice has labor law had greater changes than in the last 5 or 6 years. We began the podcast in May of 2021, following the election of President Biden.
00;00;23;25 - 00;00;49;12
Tom Godar
And the elections have consequences. And under the Biden administration, a new National Labor Relations Board with the new general counsel reshaped labor policies. And they were very consequential during that time because it was so important to stay on top of liberal issues. The family of Hirsch Blackwell, labor law and counsel more than doubled and its coast to coast reach to assist our client.
00;00;49;15 - 00;01;18;11
Tom Godar
Well, we've since had another election. In the January of 2025, President Trump was inaugurated to his second but now continuous term. And once again, we're seeing significant changes in how the National Labor Relations Board and its appointed members Bugsey right now and acting general counsel and the board members are going to interpret the National Labor Relations Act and its associated laws.
00;01;18;14 - 00;01;58;01
Tom Godar
So once again, we're continuing a wild ride of labor law. That's not likely to change soon. So buckle up and enjoy the Labor Law Insider podcast. Today, I also have a great opportunity to welcome one of my colleagues, Mary-Ann Czak, who's going to join us and talk a little bit about a most recent, I think it was May 16th when acting General Counsel William Cowen provided a new memo regarding damages and remedies that he would anticipate his regional offices to look to for guidance.
00;01;58;01 - 00;02;23;20
Tom Godar
And it changes much of what had been promoted by former General Counsel Abruzzo. So that was what was the kickoff for this discussion. But things hardly ever stay settled in this transition of authority between the Biden and the Trump administration. And so let me give you about a two minute, one minute, a summary of some of the things that we've seen.
00;02;23;22 - 00;03;12;13
Tom Godar
Of course, I'm sure you know that. Surely after the inauguration, President Trump fired General Counsel Abruzzo and interestingly, also fired two board member Wilcox. And as a result, the board is now down to two members and in the sense can't take any decisive action because it doesn't have a quorum. That question as to whether or not a sitting board member whose term has an expiration date can be fired by a president before that date occurs, has been litigated, and has found its way to the Supreme Court, where just in the past ten days or so, the Supreme Court said that they are not going to act to reinstate Member Wilcox to the board.
00;03;12;15 - 00;03;49;18
Tom Godar
So now we sit with two board members and the board is functioning, doing all the things that does except for the board itself, making decisions. That also means that there's a little bit of a hesitancy for counsel, like Mary-Ann and me, to tell clients that they can ignore or settled at least settled recently. Board precedent, even if we don't anticipate, given the leanings of appointee Cowen or the anticipated someday, approval of new board members, that will be more management leaning.
00;03;49;21 - 00;04;22;20
Tom Godar
So there's a bit of a problem there, but it still is working. That is the National Labor Relations Board, and there's still many ERPs being filed and settlements being reviewed. And that's why even without a sitting quorum of board members, it's important to have a good notion of what the board is going to be doing these days. And there's nobody better to talk about that with than my colleague Mary-Ann Czak, Mary-Ann, sitting right now, I think, in South Carolina, but anticipating a move back to the Big Apple.
00;04;22;23 - 00;04;27;00
Tom Godar
Tell us a little bit about yourself and maybe this move that's coming up for you.
00;04;27;02 - 00;04;56;27
Mary-Ann Czak
Yes. Thank you, Tom. Mary-Ann Czak, I've been a practicing traditional labor attorney for over ten years now. Born and raised on Long Island in New York, made the move to Charleston, South Carolina, about a year and a half ago. But New York is calling us back. It's it's always felt like home. So we took this year and a half detour down south, but we'll be going back to Long Island, a nice town on the south shore by the water.
00;04;56;27 - 00;05;08;07
Mary-Ann Czak
So returning to our roots in about two months. Not looking forward to packing and all of that, but, looking forward to getting back to to the good Italian and bagels for sure.
00;05;08;10 - 00;05;32;16
Tom Godar
Well, I am going to be across the water from you are going to be on the Connecticut shore looking over at Long Island with some friends in a couple of weeks, and I'm sure that you're going to be lagging behind. Otherwise we might have found an Italian restaurant together. I could join the funny fact that I mentioned to you before we got on the air was that New York has been identified as the United States most happy town.
00;05;32;19 - 00;05;42;10
Tom Godar
I was smiling at that because it's frankly, it's intimidating to me and I can't wait to when I go next time, I'll look you up and you can give me a tour of the happy places that I should visit. Mary-Ann.
00;05;42;13 - 00;05;47;23
Mary-Ann Czak
Yeah, I was surprised to hear that. But hey, I'm happy to be back and have that in my backyard for sure.
00;05;47;25 - 00;06;15;10
Tom Godar
Well, let's launch into a discussion about what's going on with the new memorandum. I think it's Memorandum Juicy 2506, which was released by, Bill Cowan on Friday, May 16th. We'll put that in our podcast notes so you can dial it up. If you'd like an article written by one of our colleagues, John Anderson. He called this a refreshing, common sense approach to the resolution of cases before the agency.
00;06;15;12 - 00;06;41;22
Tom Godar
Then is it? It was challenging some of the ways in which the agency had been instructed to look at remedies, and certainly settlements of cases under the Biden administration and general counsel? Abruzzo? Some of the statements that were offered in the memo that we've read suggest that this is acting general counsel Cohen's statement. If we attempt to accomplish everything, we risk accomplishing nothing.
00;06;41;24 - 00;07;14;26
Tom Godar
And I'll be honest, some of our colleagues have had a real hard time getting to resolution, as they might have over the past 10 or 15 or even 25 years or more. Because of the difficulty that folks in the region had, finding places to agree with management, they were looking for complete remedies, not taking into account, in my estimation, some of the risks of litigation, the cost of litigation, the time that it would take and the impact it would have on labor peace in the meantime.
00;07;14;29 - 00;07;36;18
Tom Godar
And so employers are saying, well, if you're going to be that hard nosed, I might as well continue going on to a trial. And even at that point, I might be able to get an administrative law judge to approve a settlement that apparently can't be approved, within, you know, the region at this time. Have you had some of those experiences, Mary-Ann?
00;07;36;21 - 00;08;04;09
Mary-Ann Czak
Yeah. And I think, you know, you hit the nail on the head in terms of employers positions. Obviously, you know, we're management side attorneys. So those are the parties we represent. You know, former general counsel though her position on settlement back in 2021 when she first issued her own memo in terms of remedies and settlement agreements, and she basically directed the regions to pursue, quote, the full panoply of remedies.
00;08;04;11 - 00;08;41;29
Mary-Ann Czak
And, you know, what did that mean to her? It basically meant, you know, not just back pain reinstatement, but consequential damages that really, as practitioners, we did not see before her thought was monetary remedies, only back pay and, you know, lost benefits. It failed to truly make whole victims of a you all pay so when she issued that memo back in 2021, she basically directed the regions to seek no less than 100% of back pay benefits, as well as consequential damages that could be attributable to the ULP.
00;08;42;02 - 00;09;10;23
Mary-Ann Czak
And the example she gave were really expansive from what we were dealing with prior to that. Like late fees on credit cards, penalties if employees withdrew from their retirement accounts, if employees lost their home or their cars, or had late payments or missed car payments, you know, they would try to get those as, as remedies in settlement agreements or damages to credit ratings, or if they had to get trained or new coursework to get a new job.
00;09;10;25 - 00;09;36;03
Mary-Ann Czak
So that really expanded kind of what we were dealing with in terms of settlement agreements and like you said, maintaining labor peace, avoiding litigation costs, all of that goes into play. You know, just because the region issues complaint doesn't mean it's a done deal. So employers saw that and thought, okay, if we're going to get now 100% back pay reinstatement and all these extras, why not roll the dice on litigation?
00;09;36;10 - 00;09;55;28
Mary-Ann Czak
Well, what do I have to lose? Of course some companies think, okay, litigation costs, that's where they'll the buck stops there. But, frequently we saw an employer saying, you know, why should I agree to a settlement agreement where, you know, I'm I could just roll the dice and potentially come out ahead in that regard.
00;09;56;00 - 00;10;35;05
Tom Godar
There's those financial pieces that might affect someone who was wrongly discharged for asserting his or her, collective rights, that sort of thing. We understand how that can happen. People disagree about what that might be. But there was further sort of remedies that were being insisted upon as well. And sometimes having the C-suite member making videos or, not just publishing and posting settlement, but having very harsh language and very little opportunity to have non admissions clauses.
00;10;35;05 - 00;10;58;06
Tom Godar
And without regard to the dollar signs at the end of a settlement, there were also these things which seemed very, very harsh, at least compared to historically what other settlements are and other types of litigation. And within the National Labor Relations Board did that have any impact upon the Council or the receipt of opportunities to settle for any of the clients with whom you were working?
00;10;58;06 - 00;10;59;04
Tom Godar
Mary-Ann.
00;10;59;06 - 00;11;29;08
Mary-Ann Czak
Yeah, I mean, we did see that the region seeking to have personal apology letters, you know, handwritten apology letters to employees in the vein of. Oh, well, that's labor peace that will alleviate any tensions in the workplace when an employee returns. And I think, you know, employers and maybe members of management would scoff at that and, you know, not necessarily want to go down that road because, again, at the point where we're potentially discussing settlement, there hasn't been an adverse finding against the employer.
00;11;29;10 - 00;12;07;03
Mary-Ann Czak
And I'm sure there's, you know, still defenses available. So in their mind, issuing a handwritten letter of apology or not being able to include non admission language in a settlement agreement, which, you know, as management side attorneys, we always seek to include that because at that point there hasn't necessarily been an adverse finding by an ALJ not being able to include those standard provisions or like the default language, where I believe Roberta insisted on language where the board basically could automatically get a board order if they find out, or they determine that an employer is not complying with the settlement agreement.
00;12;07;06 - 00;12;35;11
Mary-Ann Czak
All of that I think, just left, you know, a potentially sour taste in an employer's mouth. Again, why go through all this? Let me just take my chances at litigation. You know, I don't think I did anything wrong. I don't think I violated, employees rights. So I, I just really, I think, turned off many employers about going down this settlement path because it really what was the benefit that they were getting other than, you know, getting this off their ledger.
00;12;35;18 - 00;12;41;15
Mary-Ann Czak
So I found people and employers more willing to litigate than settle.
00;12;41;17 - 00;13;08;15
Tom Godar
Let's break down a couple of things that you said, and I think they're really important. So they might merit a couple more comments. And let's start off with the default language, which I think you just ended on default language. According to, Jacob Rousseau was the norm almost exclusively to have a settlement. Miriam, why don't you explain about what that might mean and what is the current standard, at least as expressed by acting GC?
00;13;08;15 - 00;13;08;29
Tom Godar
Cowan.
00;13;09;03 - 00;13;42;23
Mary-Ann Czak
Sure. So the original memo issued by a Brazeau back in 2021, GC memo 20 1-07, which you know obviously has been rescinded. But just referring to it in order to look back and at the context, basically provided that regions should include what's called default language in all settlement agreements, that provides for the expedited issuance of a board order in the event they determine an employer who entered into this settlement agreement hasn't been complying with the settlement agreement.
00;13;42;26 - 00;14;10;10
Mary-Ann Czak
So without having to go to trial or have any other Fact-Finding proceeding, the board can issue an order that basically provides a full remedy for the violations that were settled. So it kind of just expedites everything. And the reason why Abruzzo insisted on that and all such agreements, is that it was her position that it was an effective means to ensure charge parties complied with their obligations set forth in the agreement to which they agreed to.
00;14;10;10 - 00;14;36;00
Mary-Ann Czak
So it's kind of like protection language more than regions wouldn't have to litigate. What they determined were issues that had already been settled in the agreement. So it's streamlined things at the region in the event of noncompliance. So that was the default language that she insisted all settlement agreements have to have. Cowan took a bit of a different position and kind of rolled that back a bit.
00;14;36;02 - 00;14;55;10
Mary-Ann Czak
Then basically, he said that it limits the need to include that type of language in all settlement agreements and, you know, really looks at each case on an individual basis, though. Okay, is the employer that we're dealing with, are they repeat offenders where that language might be more appropriate? For example,
00;14;55;13 - 00;15;38;03
Tom Godar
Mary-Ann, thanks a lot for that thoughtful response about how default language is going to be a less significant or at least seemingly less significant part of any settlement, that we're looking at. That should be good news for the management side equation. And honestly, given what you've already said, good news for arriving at settlements and resolutions of UPS long before they have to go all the way through trial and appeal, let's call it, stop right there and then take up, next time at part two, when we talk about not admissions clauses and other issues that are related to the GC memo that just came out a few days ago, and learn more about
00;15;38;03 - 00;15;51;22
Tom Godar
how this is going to influence our clients, our friends, and the unions. Of course, in looking at settlements under the National Labor Relations Act. Again, Mary-Ann, thanks so much. And we'll see you in part two.
00;15;51;24 - 00;15;56;00
Mary-Ann Czak
Yes. Thank you Tom, good time.