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Justice Department At War With Judges & Starbucks Strikes · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:12
  Speaker 2: It's a war man.
• 0:15
  Speaker 3: That's Todd Blanche, the second in command at the Justice Department,
• 0:19
  Speaker 3: saying the department is at war with federal judges. Blanche,
• 0:24
  Speaker 3: echoing words often used by President Trump and Attorney General
• 0:28
  Speaker 3: Pam Bondi, criticized rogue activist judges for their decisions against
• 0:34
  Speaker 3: the Trump administration.
• 0:37
  Speaker 2: These activist judges that they have a RoboN, but they
• 0:43
  Speaker 2: are more political, or certainly as political as the most
• 0:47
  Speaker 2: liberal governor of da.
• 0:50
  Speaker 3: Speaking at a Federalist Society event, the Deputy Attorney General
• 0:54
  Speaker 3: defended the Justice Department against claims of weaponization and then
• 0:59
  Speaker 3: urged young conservative lawyers to join the war against judges.
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  Speaker 2: And I looked around, and I said to myself, man,
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  Speaker 2: there has got to be a couple dozen young lawyers
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  Speaker 2: who are thirsty and hungry and ready to work because
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  Speaker 2: we need you, because because it is a war.
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  Speaker 3: Well, a group of federal judges is pushing back against Blanche,
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  Speaker 3: saying the language he used poses a grave threat to
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  Speaker 3: the rule of law, and the judiciary joining me from
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  Speaker 3: the keep our Republic's Article three coalition is retired Judge
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  Speaker 3: Johnny Jones, the third formerly of the US District Court
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  Speaker 3: for the Middle District of Pennsylvania. Judge Jones, First, your
• 1:45
  Speaker 3: reaction to the Deputy Attorney General saying that the Justice
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  Speaker 3: Department is at war with the judiciary.
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  Speaker 4: I think that the comment is at minimum ment opportunity,
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  Speaker 4: and I think writ large, it's grossly respond for the
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  Speaker 4: number two individual at the Department of Justice to characterize
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  Speaker 4: anything involving the federal judiciary as a war at war
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  Speaker 4: against so called rogue judges. It is highly problematic and
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  Speaker 4: I think it's causing a great deal of consternation among
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  Speaker 4: the judiciary, not just active judges, but retired judges as well.
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  Speaker 3: He said, we have judges literally telling the president the
• 2:26
  Speaker 3: executive what he can and cannot do. We have seen
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  Speaker 3: judges not following the law on the Constitution, and he
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  Speaker 3: said they have a row bomb. But they are more political,
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  Speaker 3: or certainly as political as the most liberal governor or
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  Speaker 3: da Well.
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  Speaker 4: June, here's a newsflash. That's exactly what judges are supposed
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  Speaker 4: to do, is say what the law is. They've been
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  Speaker 4: interpreting the law, of course since Marbury versus Madison. And again,
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  Speaker 4: I think he's protesting too much. What he's really striking
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  Speaker 4: out against our decisions that are, in the judges view,
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  Speaker 4: in accordance with the law and legal precedent. Simply because
• 3:02
  Speaker 4: you disagree with the decision doesn't mean that you're at
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  Speaker 4: war with the judge who made the call. The government
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  Speaker 4: is fully able to exercise its appellate rights, and in
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  Speaker 4: fact they have in any number of these cases. So
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  Speaker 4: you know, to say that judges are political simply because
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  Speaker 4: they rendered a decision that you don't agree with is
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  Speaker 4: really a baseless allegation. I guess red meat, if you will,
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  Speaker 4: for the conservative lawyers in the Federalist society, But I
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  Speaker 4: would suspect that a lot of those lawyers entertained, though
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  Speaker 4: they may have been no better.
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  Speaker 3: So his target was sort of on the district court judges,
• 3:40
  Speaker 3: the trial court level, and he said that when it
• 3:44
  Speaker 3: gets to the Supreme Court, the Supreme Court has reversed
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  Speaker 3: them all except for one or two times, which is true,
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  Speaker 3: but that assumes that the conservative majority on the Supreme
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  Speaker 3: Court is right and the federal district judges are wrong.
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  Speaker 3: And these decisions were all made on the emergency docket
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  Speaker 3: without full briefing or oral arguments.
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  Speaker 4: Well, a couple of things I'd say about that, there
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  Speaker 4: are far more decisions that are standing than ones that
• 4:11
  Speaker 4: are appealed to the Supreme Court. As you know, that
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  Speaker 4: court has a discretionary docket. So some of these lower
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  Speaker 4: court decisions have stood up simply because the Supreme Court
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  Speaker 4: hasn't taken them. Now, it is noteworthy that the Supreme
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  Speaker 4: Court has placed on its emergency dock at a number
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  Speaker 4: of different cases. And yes, the government has been successful.
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  Speaker 4: I don't know that it's necessary under the circumstances for
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  Speaker 4: mister blanche, you know, to be a sore winner and
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  Speaker 4: do a sort of victory dance about that and castigate
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  Speaker 4: lower court judges. You know, the Supreme Court gets the
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  Speaker 4: final word on these cases. But I can go over
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  Speaker 4: any number of cases that district courts have heard and
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  Speaker 4: have indicated that those decisions are in accordance with precedent
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  Speaker 4: and the law under the circumstances. You know, these are
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  Speaker 4: close questions in some cases as well. But again, this
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  Speaker 4: sort of or winterer thing is pretty wearying and unbecoming. Again,
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  Speaker 4: i'd say the Department of Justice that I knew and
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  Speaker 4: worked with and was very professional during my nearly two
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  Speaker 4: decades on the federal bench.
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  Speaker 3: The number of threats against federal judges have skyrocketed. As
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  Speaker 3: you know, what does it do when you have the
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  Speaker 3: second in command saying things like this, saying, you know,
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  Speaker 3: we're at war, saying that judges are not following the law,
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  Speaker 3: they're not following what the Supreme Court says. What does
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  Speaker 3: that do when the general public hears something.
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  Speaker 4: Like that, Well, you have to take it in concert
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  Speaker 4: June with what's been happening for this entire year since
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  Speaker 4: January twentieth, which is that judges are being singled out
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  Speaker 4: by name, their families are being singled out, they're being docked.
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  Speaker 4: Anybody can find the location of a judge, even though
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  Speaker 4: there's been legislation to redact and hide some of their
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  Speaker 4: personal information, and I think fairly judges are frightened. It
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  Speaker 4: puts a bullseye on judges, and you correctly site the
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  Speaker 4: US Marshall Service as indicated that threats against judges there
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  Speaker 4: were five hundred plus bona fide threats in the last
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  Speaker 4: fiscal year, and they're growing exponentially. I've always said that,
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  Speaker 4: you know, there are a lot of people that disagree
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  Speaker 4: with judges' decisions, that's the nature of the business. But
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  Speaker 4: it's that small percentage of unbalanced people who kind of
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  Speaker 4: hear this as a dog whistle. And I have said
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  Speaker 4: for years, because of this employmentatory rhetoric, that we're going
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  Speaker 4: to get a judge hurt or killed. You need only
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  Speaker 4: look back at my former colleague, Ester Sallus's tragedy. You
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  Speaker 4: know where son Danny was was shot and killed back
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  Speaker 4: in twenty twenty. I fear that's going to happen again
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  Speaker 4: if we don't dial down the rhetoric again. This goes
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  Speaker 4: to the irresponsibility of mister Blanche's comments. We need to
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  Speaker 4: level set here instead of making it worse.
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  Speaker 3: And to put this in context, these weren't casual remarks
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  Speaker 3: because we've heard similar remarks from the Attorney General, Pam Bondy.
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  Speaker 3: She's actually called out individual judges for their decisions and
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  Speaker 3: the President himself. Is there some kind of strategy at
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  Speaker 3: play here by the Justice Department? Are they trying to
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  Speaker 3: scare judges? What's at play?
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  Speaker 4: Well, if they're trying to scare judges, that won't work
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  Speaker 4: because I think fairly my friends and former colleagues and
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  Speaker 4: the judiciary are not easily frightened sure. I mean, there
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  Speaker 4: may be a motivation to have them look over their shoulders.
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  Speaker 4: I think what it is is it tears down the
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  Speaker 4: integrity of the judicial system. All three branches, I think,
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  Speaker 4: at bottom, have a responsibility to uphold the integrity of
• 7:38
  Speaker 4: their existence as coequal branches of government. We are seeing
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  Speaker 4: this unitary president going wild. Now there's another problem here, June,
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  Speaker 4: and I think it's that we are losing any line
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  Speaker 4: of distinction between the President and the Department of Justice.
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  Speaker 4: Of course, not naive. There's always some interaction between the
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  Speaker 4: President and the Department of Justice, but they've almost become
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  Speaker 4: one and the same, which I think is truly troubling.
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  Speaker 4: So this is the number two man, and in fact
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  Speaker 4: the Attorney General doing the bidding for the President of
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  Speaker 4: the United States and simply parroting his view of federal
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  Speaker 4: judges and carrying out We know this now because we've seen,
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  Speaker 4: you know, some of the things that the president has
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  Speaker 4: written and thought that he was playing to an audience,
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  Speaker 4: for example General Bondi and instructing them to prosecute people.
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  Speaker 4: I think my conservative lawyer friends, you know, for example,
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  Speaker 4: who listened to Todd Blanche ought to be careful what
• 8:35
  Speaker 4: they wish for, because in a world like that, I
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  Speaker 4: don't think anybody is particularly safe.
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  Speaker 3: And Blanche denied that the Justice Department was being weaponized,
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  Speaker 3: and he said the Justice Department had been weaponized before
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  Speaker 3: in the Biden administration. And then he talked about the
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  Speaker 3: prosecutions against Trump. Of course, he didn't address the prosecutions
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  Speaker 3: against former FBI Director James Comy and New York Attorney
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  Speaker 3: General Letitia James.
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  Speaker 4: My response to that, June is, you know, I saw
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  Speaker 4: in the news a little earlier today that there was
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  Speaker 4: a statement bayded by the New York Bar Association criticizing Blanche,
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  Speaker 4: and his response was LOL. To that, well, my response
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  Speaker 4: to what mister Blanche said about weaponization is LOL. You know,
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  Speaker 4: it's the same thing. If this isn't weaponizing the Justice Department.
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  Speaker 4: You know, people may disagree or agree about weaponization during
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  Speaker 4: the Biden administration. I'm talking about the here and now.
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  Speaker 4: I don't think we've seen a stark a weaponization of
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  Speaker 4: the Department of Justice ever. Think about the DOJ as
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  Speaker 4: it participated in the efforts the executive orders against law firms.
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  Speaker 4: You know, they litigated those cases. You know, it was
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  Speaker 4: lawyer on lawyer through that. You know, think about mister
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  Speaker 4: Blanche traveling to federal prison to see Glaine Maxwell and
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  Speaker 4: getting a statement from her. We know now that he
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  Speaker 4: probably had access to emails that directly contradict did what
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  Speaker 4: she apparently told him, looking like every bit the president's
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  Speaker 4: personal lawyer instead of the number two man at Justice.
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  Speaker 4: I mean, we're in a world that is vastly different
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  Speaker 4: than anything I've ever seen in terms of the interaction
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  Speaker 4: between the Justice Department and the courts. When I was
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  Speaker 4: a judge, by the way, you know, I thought federal
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  Speaker 4: judges had pretty enormous power to be used very sparingly
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  Speaker 4: and carefully. We're now living in a time when essentially
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  Speaker 4: the President of the United States and the Department of Justice,
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  Speaker 4: they're saying, in as many words, just disregard district court judgments.
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  Speaker 4: They're not worth the electronic ink that's being used to
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  Speaker 4: render them. I don't think that that's helpful or appropriate
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  Speaker 4: in any way in terms of integrity of the third
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  Speaker 4: branch of government.
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  Speaker 3: Judge Jones, he didn't just attack judges. He also attacked
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  Speaker 3: the bar associations. And explain this to me if you can.
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  Speaker 3: He vowed to take away the bar association's oversight power,
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  Speaker 3: saying that the DOJ would now be reviewing complaints in
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  Speaker 3: house first with its ethics department, which I'm not sure
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  Speaker 3: exists anymore because the head of it was fired a
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  Speaker 3: while back. Aren't the complaints against Justice Department lawyers filed
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  Speaker 3: with the bar associations? I mean, does the Justice Department
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  Speaker 3: have any power here?
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  Speaker 4: I confess June to confusion about as well, about how
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  Speaker 4: that could be accomplished, because you're a member of a
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  Speaker 4: bar association, and you know, in Pennsylvania, for example, the
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  Speaker 4: Pennsylvania Bar Association police is its own and they can
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  Speaker 4: deprive you, suspend you. The Supreme Court of Pennsylvania can
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  Speaker 4: get involved and suspend your right to practice for a period,
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  Speaker 4: or they can disbar you. So good luck with that.
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  Speaker 4: I don't know how you do that at all. You know,
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  Speaker 4: not only is it I think an overreach from a
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  Speaker 4: rhetorical standpoint, but I think it's it's mission impossible. So
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  Speaker 4: I confess I don't know what he has in mind.
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  Speaker 3: There and your group. The Article three Coalition has responded
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  Speaker 3: to Blanche's remarks.
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  Speaker 4: The Article three Coalition, of course, put out a statement today.
• 12:03
  Speaker 4: You know this is fifty judges banding together retired judges.
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  Speaker 4: I should say that this is something that we feel
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  Speaker 4: in unanimity that is really injurious to the rule of law.
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  Speaker 4: And you know, if you can get fifty retired, you know,
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  Speaker 4: thoughtful appointed by different presidents, you know, folks at different
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  Speaker 4: viewpoints going the same direction. Like this you're doing. You've
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  Speaker 4: got something that that is really really problematic, and you know,
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  Speaker 4: I was proud to join that group. I fear it's
• 12:35
  Speaker 4: going to get worse before it gets better, and that's
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  Speaker 4: really troubling.
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  Speaker 3: Well, thank you for sharing your concerns and insights with us.
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  Speaker 3: That's Judge Johnny Jones. The third unionized Starbucks workers went
• 13:01
  Speaker 3: on strike at stores in forty five cities today to
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  Speaker 3: protest what they call the company's union busting and failure
• 13:08
  Speaker 3: to finalize a union deal. Starbucks workers first voted to
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  Speaker 3: unionize at a store in Buffalo back in twenty twenty one.
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  Speaker 3: Four years later, around five hundred and fifty Starbucks stores
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  Speaker 3: are unionized, but the company still hasn't reached a contract
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  Speaker 3: agreement with the union. Starbucks Workers United accuses the heads
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  Speaker 3: of the coffee giant of stone walling baristas on their
• 13:33
  Speaker 3: demands for better hours and better pay, and the resolution
• 13:37
  Speaker 3: of hundreds of outstanding unfair labor practice charges. And on
• 13:41
  Speaker 3: the legal front, Starbucks and the National Labor Relations Board
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  Speaker 3: squared off in a federal appeals court for the eighth
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  Speaker 3: time in the last two and a half years, with
• 13:52
  Speaker 3: even more cases on deck stemming from the coffee chain's
• 13:56
  Speaker 3: aggressive pushback against union organizing. My guest is labor and
• 14:01
  Speaker 3: employment law expert Kate Andreas, a professor at Columbia Law School.
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  Speaker 3: So this is the eighth federal appeals court argument in
• 14:10
  Speaker 3: the last two and a half years. They're arguing two
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  Speaker 3: more cases at the Fifth Circuit next month, and there
• 14:16
  Speaker 3: are five other pending appellate court cases. I mean, is
• 14:20
  Speaker 3: this number of federal appellate court cases unusual for a company?
• 14:25
  Speaker 3: It sounds like a lot.
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  Speaker 1: It is unusual, And I think there's three things going on.
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  Speaker 1: One is that there's been a massive effort at organizing
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  Speaker 1: among the workers. We went from having zero Starbucks stores
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  Speaker 1: organized back in early twenty twenty one to the numbers
• 14:41
  Speaker 1: are disputed, but it looks like about six hundred and fifty.
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  Speaker 1: So just that volume of organizing produces a lot of
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  Speaker 1: legal issues. The second thing I think is going on
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  Speaker 1: is that Starbucks has violated the law, or at least
• 14:52
  Speaker 1: allegedly violated the law in many ways across the country,
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  Speaker 1: and so that produces a lot of legal cases. But
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  Speaker 1: the third thing, and this came through at the oral
• 15:01
  Speaker 1: argument yesterday, is that the legal landscape is shifting, and
• 15:05
  Speaker 1: so there's a lot more opportunity to challenge long standing
• 15:08
  Speaker 1: board precedent, both because of changes with the Executi branch
• 15:13
  Speaker 1: and the administration, but also because of changes at the
• 15:15
  Speaker 1: Supreme Court with administrative law.
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  Speaker 3: And Starbucks workers first voted to unionize at a store
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  Speaker 3: in Buffalo in twenty twenty one. They're striking today in
• 15:24
  Speaker 3: more than twenty five cities. They've been negotiating, I take it,
• 15:28
  Speaker 3: but they haven't been able to reach an agreement yet.
• 15:31
  Speaker 1: Exactly. Yeah, I mean, I think the workers are striking
• 15:34
  Speaker 1: for really two reasons. One is to protest the unfair
• 15:36
  Speaker 1: labor practices committed by the company, and the others to
• 15:39
  Speaker 1: try to achieve a fair contract. And their demands include
• 15:43
  Speaker 1: higher wages and more fair scheduling and things like that.
• 15:47
  Speaker 1: The law requires the company to bargain in good faith,
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  Speaker 1: but it doesn't create a mechanism to impose a contract,
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  Speaker 1: and so it's not uncommon for it to take a
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  Speaker 1: long time to reach a first contract because frequently employers
• 16:01
  Speaker 1: really resist negotiating a first contract, and the law doesn't
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  Speaker 1: give the workers a lot of mechanisms to force that.
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  Speaker 1: The mechanism is to exercise economic pressure through a strike
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  Speaker 1: and through trying to put public pressure on a company,
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  Speaker 1: and that's what they're trying to do.
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  Speaker 2: Now.
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  Speaker 1: It's really fairly remarkable to see this much organizing, especially
• 16:19
  Speaker 1: by young people across the country, and this is an
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  Speaker 1: expression of their effort to improve their jobs.
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  Speaker 3: They've struck on Red Cup Day for the last four years.
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  Speaker 3: I don't know is it getting across to the public.
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  Speaker 3: Is Starbucks suffering at all?
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  Speaker 1: I think one difference, and we'll see if it ultimately
• 16:36
  Speaker 1: makes a difference, is that they continue to organize more stores.
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  Speaker 1: So now we're talking about over six hundred stores organized,
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  Speaker 1: and in order to really make an economic difference for
• 16:44
  Speaker 1: the company, it has to be big and it has
• 16:46
  Speaker 1: to affect a lot of the stores.
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  Speaker 3: Let's talk about the case at the second circuit, where
• 16:52
  Speaker 3: the issue is the wearing of Union T shirts and buttons.
• 16:56
  Speaker 3: The average person might say, Okay, they can't wear you
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  Speaker 3: onon T shirts or buttons. I can't wear certain things
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  Speaker 3: at work either. Why is this so important that there
• 17:06
  Speaker 3: have been so many cases about it?
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  Speaker 1: Yeah, so absolutely right. I mean, in most work sites,
• 17:12
  Speaker 1: when there's no union and no union organizing, employers pretty
• 17:15
  Speaker 1: much have the right to do whatever they want. They
• 17:18
  Speaker 1: can't discriminate on basis of race or sex or something
• 17:21
  Speaker 1: like that, but they can tell workers what to wear,
• 17:22
  Speaker 1: what time to show up, when to go to the bathroom,
• 17:25
  Speaker 1: track people's movements with AI and other technology. But the
• 17:30
  Speaker 1: law creates protections for the right to organize. The National
• 17:33
  Speaker 1: Labor Relations Act, which was passed in nineteen thirty five,
• 17:37
  Speaker 1: gives workers a right to engage in concerted action for
• 17:40
  Speaker 1: mutual aid or protection. And that means that workers have
• 17:43
  Speaker 1: the right to get together to organize a union, or
• 17:45
  Speaker 1: to get together to just try to improve their jobs.
• 17:48
  Speaker 1: And all the way back to the early days of
• 17:51
  Speaker 1: the National Labor Relations Act, the Board and the Supreme
• 17:55
  Speaker 1: Court have held that part of that right is to
• 17:58
  Speaker 1: engage an expression of support for union activity, including by
• 18:02
  Speaker 1: wearing union buttons, union T shirts, and other union insignia.
• 18:07
  Speaker 1: At the same time, the Board and the court have said, well,
• 18:10
  Speaker 1: we have to balance that interest with employer's interests in
• 18:13
  Speaker 1: managing the work site. So basically the approach has been
• 18:17
  Speaker 1: to balance worker's right to engage in concerted activity, to
• 18:21
  Speaker 1: join a union and should show their support for the union,
• 18:25
  Speaker 1: even if otherwise the employer might prohibit wearing buttons with
• 18:29
  Speaker 1: employer's right to manage their work sites. And to do that,
• 18:33
  Speaker 1: it's been for many, many decades, the board's rule has been,
• 18:36
  Speaker 1: there's a presumption in favor of allowing workers to wear
• 18:39
  Speaker 1: buttons or union t shirts or other union insignia in
• 18:43
  Speaker 1: order to mindicate their right to organize. However, if the
• 18:47
  Speaker 1: employer can show that there's a special exception that means
• 18:51
  Speaker 1: that particular workers should not be allowed to wear union
• 18:55
  Speaker 1: buttons or union insignia, then the employer can prohibit them
• 18:59
  Speaker 1: or can limit them. Certain special exceptions include things like
• 19:03
  Speaker 1: patient care and hospitals, and also sometimes include public facing
• 19:09
  Speaker 1: jobs like at Starbucks. So what Starbucks is saying here
• 19:12
  Speaker 1: is is this a public facing job. Our image is important,
• 19:15
  Speaker 1: and so we can limit the extent to which workers
• 19:18
  Speaker 1: can show their support for the union.
• 19:20
  Speaker 3: And is it about wearing a union t shirt and
• 19:23
  Speaker 3: more than one union button.
• 19:25
  Speaker 1: Yeah, the Starbucks rule is that workers can wear only
• 19:29
  Speaker 1: one union button and they cannot wear any T shirts
• 19:32
  Speaker 1: with messages other than messages the company has approved. So
• 19:37
  Speaker 1: that's what makes the case a bit complicated. If the
• 19:40
  Speaker 1: Starbucks rule was no messages at all, or no different
• 19:43
  Speaker 1: T shirts at all, or no union buttons at all,
• 19:45
  Speaker 1: the whole analysis might be easier. But basically, they're saying
• 19:48
  Speaker 1: you can wear one union button and no union T shirts,
• 19:51
  Speaker 1: and the board says that there's a right to wear
• 19:54
  Speaker 1: union T shirts, there's a right to wear union buttons,
• 19:56
  Speaker 1: and you haven't shown that there's a special exception for you,
• 20:00
  Speaker 1: because in fact, you allow workers to wear T shirts
• 20:04
  Speaker 1: with messages. Workers at Starbucks are allowed to wear various
• 20:07
  Speaker 1: messages that are approved by the company. So that's the cruxit.
• 20:11
  Speaker 1: The issue, I think, stepping back, what's really at stake
• 20:14
  Speaker 1: and what kind of came through in the argument is
• 20:16
  Speaker 1: to what extent workers are going to continue to have
• 20:19
  Speaker 1: the right to engage in pro union expression at work
• 20:22
  Speaker 1: versus how much is an employer able to control that
• 20:25
  Speaker 1: or to limit it, even if it doesn't have a
• 20:27
  Speaker 1: really good reason for doing so. And the Court of
• 20:31
  Speaker 1: Appeals appear to be quite sympathetic to the employer's desire
• 20:36
  Speaker 1: to control what workers are wearing, even if it limits
• 20:40
  Speaker 1: their ability to engage in union expression, especially because here
• 20:43
  Speaker 1: there was some limited right to wear a union button.
• 20:46
  Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
• 20:48
  Speaker 3: this conversation with Columbia Law School professor Kate Andreas. We'll
• 20:53
  Speaker 3: talk about how a recent Supreme Court decision may play
• 20:57
  Speaker 3: in the case at the Second circuitue and you're listening
• 21:01
  Speaker 3: to Bloomberg, a federal appeals court expressed skepticism toward the
• 21:08
  Speaker 3: National Labor Relation Board's precedent for employee dress codes that
• 21:13
  Speaker 3: it applied to rule against Starbucks. The case before the
• 21:17
  Speaker 3: Second Circuit centers on the nrb's ruling last year that
• 21:22
  Speaker 3: Starbucks illegally prohibited shirts with graphics on them, including union insignia,
• 21:28
  Speaker 3: and the board also found fault with the company banning
• 21:31
  Speaker 3: workers from wearing more than one pin related to labor
• 21:35
  Speaker 3: organizing or any advocating for personal, political, or religious issues.
• 21:41
  Speaker 3: I've been talking to professor Kate Andreas of Columbia Law School. So, Kate,
• 21:46
  Speaker 3: this was before the Second Circuit in Manhattan, but in
• 21:50
  Speaker 3: twenty twelve, didn't they already uphold the Starbucks policy to
• 21:55
  Speaker 3: wear only one union pin.
• 21:57
  Speaker 1: They did, but they did so in a different circuit
• 22:00
  Speaker 1: from stance, a different store with a different background uniform rule.
• 22:05
  Speaker 1: So in that other store, there wasn't the right to
• 22:07
  Speaker 1: wear all these other buttons and all these other messages.
• 22:09
  Speaker 1: And so here what the Board is saying is you
• 22:11
  Speaker 1: have a different uniform policy here where you allow a
• 22:14
  Speaker 1: lot of messages and you allow all these buttons. This
• 22:17
  Speaker 1: doesn't kind of meet the same requirement.
• 22:20
  Speaker 3: So is this the same issue that the Fifth Circuit
• 22:23
  Speaker 3: and the Eighth Circuit ruled on? Is it the exact
• 22:26
  Speaker 3: same issue?
• 22:27
  Speaker 1: It's similar. It's not the exact same issue because the
• 22:29
  Speaker 1: facts are very different in the different cases, but it's
• 22:32
  Speaker 1: a similar issue, Which is is the board's long standing
• 22:36
  Speaker 1: rule now granted during the Trump admitisation, there was a
• 22:38
  Speaker 1: brief period where this rule wasn't in place, but it's
• 22:41
  Speaker 1: been a long standing rule that makes it very hard
• 22:43
  Speaker 1: for employers to limit the extent to which workers can
• 22:46
  Speaker 1: wear union insignia. Is that going to stand or are
• 22:50
  Speaker 1: the courts that feels going to limit that rule and
• 22:53
  Speaker 1: give employers more ability to restrict what workers can do,
• 22:57
  Speaker 1: and different versions of that issue have come up with
• 23:00
  Speaker 1: different sets of facts, but that's coming up in numerous differencer.
• 23:04
  Speaker 3: So I haven't been to this Starbucks, but it sounds unique.
• 23:08
  Speaker 3: Former CEO Howard Schultz compared it to Willie Wonka having
• 23:12
  Speaker 3: built the ultimate coffee shop instead of a chocolate factory,
• 23:16
  Speaker 3: and it has an overall quote steampunk, hipster chic design esthetic.
• 23:22
  Speaker 3: So Second Circuit Judge Susan Carney, an Obama appointee, said
• 23:27
  Speaker 3: that Starbucks imposing this dress code in accordance with a
• 23:31
  Speaker 3: general desire to create a vibe for this retail establishment,
• 23:36
  Speaker 3: seems to be a reasonable position. However, she also said
• 23:39
  Speaker 3: it's kind of inconsistent with the notion that no personal
• 23:43
  Speaker 3: or cause oriented messages can be displayed because of the
• 23:47
  Speaker 3: steampunk hip vibe, when in fact there's a lot of
• 23:50
  Speaker 3: other kinds of social issue messaging that Starbucks is allowing.
• 23:54
  Speaker 3: But another judge, William Nardini, a Trump appointee, said, do
• 24:00
  Speaker 3: do workers have a right to wear union hats and
• 24:02
  Speaker 3: giant blinking signs sandwich boards that say hooray for the union?
• 24:08
  Speaker 3: Did it seem like the judges were not sympathetic to
• 24:10
  Speaker 3: the union and the NLRB.
• 24:13
  Speaker 1: Here, yeah, I mean I think well, first at Carney's
• 24:16
  Speaker 1: point seemed to be, look, you're allowing all these other messages,
• 24:19
  Speaker 1: so why not allow union t shirts? But even she
• 24:22
  Speaker 1: seems skeptical of the Board's position, and the other judges also,
• 24:26
  Speaker 1: I think, seemed skeptical of the Board's position.
• 24:28
  Speaker 3: Now, this has been the Board's.
• 24:29
  Speaker 1: Position basically since the nineteen forties. The Quarter of Appeals
• 24:33
  Speaker 1: judges seemed to be suggesting that the Board was interpreting
• 24:35
  Speaker 1: the Lontanan rule too broadly as applied to these facts.
• 24:38
  Speaker 1: It's not clear what's going to happen with the decision,
• 24:41
  Speaker 1: but I do think the judges were expressing skepticism of
• 24:45
  Speaker 1: the Board's desire to protect so robustly the ability of
• 24:49
  Speaker 1: workers to wear insignia in public facing jobs.
• 24:52
  Speaker 3: And will you just explain again what the board's rule
• 24:55
  Speaker 3: is is that the Tesla rules.
• 24:56
  Speaker 1: Well, it dates all the way back to this early
• 24:59
  Speaker 1: early case called public Aviation, which on the Board decided
• 25:03
  Speaker 1: and then the Supreme Court affirmed, which established a series
• 25:06
  Speaker 1: of presumptions about what workers can do and what they
• 25:08
  Speaker 1: can't do. And it was developed in further cases, including
• 25:11
  Speaker 1: one involved in a hospital. But more recently, the Board
• 25:14
  Speaker 1: has elaborated the rule in the Tesla case and others
• 25:17
  Speaker 1: where it has made very clear that there's a lot
• 25:20
  Speaker 1: of protection for workers' ability to wear union insignia. If
• 25:23
  Speaker 1: an employer is going to restrict it because of a
• 25:26
  Speaker 1: special exception because of the particular context of the work,
• 25:30
  Speaker 1: it has to show that it really needs to do that.
• 25:33
  Speaker 3: So the judges were asking about what level of deference
• 25:37
  Speaker 3: court should apply to the Board's decisions. This relates to
• 25:42
  Speaker 3: the Supreme Court case Lope or Brides. So explain how
• 25:45
  Speaker 3: the landscape is different right now?
• 25:47
  Speaker 1: Yeah, So historically, really, since the statute, the Nationalianbrre Relations
• 25:52
  Speaker 1: Act was first enacted, the courts of appeals have given
• 25:55
  Speaker 1: a lot of deference to the board's legal interpretations status
• 26:00
  Speaker 1: and also its application of the law to facts. Even
• 26:04
  Speaker 1: before the Supreme Court decided its famous Chevron case, which
• 26:07
  Speaker 1: required courts to defer to agencies reasonable interpretations of statutes,
• 26:14
  Speaker 1: the Board, even prior to Chevron, received a lot of
• 26:17
  Speaker 1: difference from the courts. Recently, the Supreme Court ruled in
• 26:21
  Speaker 1: a case called Low or Bright that that level of
• 26:23
  Speaker 1: deference to the agency's legal interpretations is not appropriate, and
• 26:29
  Speaker 1: rather courts should, in the first instance, determine what the
• 26:33
  Speaker 1: statute means when a statute is ambiguous, And that really
• 26:37
  Speaker 1: shifts the landscape because for so many decades courts have
• 26:41
  Speaker 1: been deferring to the board's understanding of how an organizing
• 26:44
  Speaker 1: campaign occurs and how to defend workers' rights to organize,
• 26:48
  Speaker 1: and to what extent employer rights have to give way
• 26:51
  Speaker 1: to the right to organize. And now the courts are saying, well,
• 26:54
  Speaker 1: we have to look at this in the first instance,
• 26:56
  Speaker 1: and that suggests that a lot of Board law might
• 27:00
  Speaker 1: be up for grabs or challenge, which is in part
• 27:02
  Speaker 1: I think why there are so many cases percolating through
• 27:05
  Speaker 1: the courts.
• 27:05
  Speaker 3: Now, have any of the other circuit courts described the
• 27:09
  Speaker 3: level of deference that the NLRB should be getting.
• 27:12
  Speaker 1: Now, some of those circuits have concluded that lowber Bright
• 27:16
  Speaker 1: does extend to the NLRB. Not all courts have ruled that,
• 27:21
  Speaker 1: but it seems likely that that's the direction where the
• 27:24
  Speaker 1: courts are moving. So essentially, after Low or Bright, when
• 27:28
  Speaker 1: we're dealing with a legal question, the court would not
• 27:31
  Speaker 1: be giving deference to the Board other than to accept
• 27:33
  Speaker 1: the Board's interpretation as persuasive, but it wouldn't be giving
• 27:36
  Speaker 1: any special difference to the board. Still though, when the
• 27:39
  Speaker 1: Board makes factual determinations, those are entitled to deference. And
• 27:43
  Speaker 1: part of the debate in the case yesterday was is
• 27:45
  Speaker 1: this well established law and the really debating how it
• 27:47
  Speaker 1: applies to these facts, in which case the Board would
• 27:50
  Speaker 1: be entitled to difference even after Lobe or Bright. Or
• 27:53
  Speaker 1: is this a question of interpreting the law, in which
• 27:55
  Speaker 1: case the Board isn't entitled the difference, and the court
• 27:57
  Speaker 1: seemed not clear about which way it was going with that.
• 28:00
  Speaker 3: Is it possible that the court doesn't address that deference
• 28:03
  Speaker 3: issue and just does a narrow ruling on the wearing
• 28:07
  Speaker 3: of the pins and the T shirts.
• 28:09
  Speaker 1: It's possible, you know. I think the court could say
• 28:11
  Speaker 1: that the Board just got the law wrong and it
• 28:13
  Speaker 1: has to reconsider, or that, even using the board's own tests,
• 28:17
  Speaker 1: it was applied incorrectly. There are many different ways the
• 28:19
  Speaker 1: court could rule here. Or the court could say, you know,
• 28:22
  Speaker 1: given the other messages that the Starbucks is allowing workers
• 28:25
  Speaker 1: to wear, and given that workers have a right to
• 28:28
  Speaker 1: express their support for unions, the Board is correct that
• 28:32
  Speaker 1: Starbucks doesn't have a right to prohibit these.
• 28:34
  Speaker 3: So telling me about the Starbucks strike and you know
• 28:37
  Speaker 3: the effort to unionize. Are there instances where companies have
• 28:42
  Speaker 3: been able in this kind of a situation to avoid unionization.
• 28:47
  Speaker 1: Well, lots of companies have been able to avoid unionization
• 28:51
  Speaker 1: by aggressively campaigning against unionization, including by violating the law,
• 28:56
  Speaker 1: by terminating workers who organized, by threatening workers who organized.
• 29:00
  Speaker 1: And although all of that is against the law, the
• 29:02
  Speaker 1: penalties are very minimal, and so frequently employers do violate
• 29:06
  Speaker 1: the law in order to squelch union organizing campaigns. And
• 29:09
  Speaker 1: I think we see this when people are asked whether
• 29:11
  Speaker 1: they support unions or whether they wish that they could
• 29:13
  Speaker 1: have a union. A majority of workers, over fifty percent
• 29:16
  Speaker 1: of workers say they wish they could have a union,
• 29:18
  Speaker 1: and yet unionization rates among private sector workers are as
• 29:21
  Speaker 1: low as six percent, And that gap is explained in
• 29:24
  Speaker 1: part because the law does not effectively protect the right
• 29:28
  Speaker 1: to organize, even though it promises to do so.
• 29:30
  Speaker 3: The NLRB under this new administration is it changing its
• 29:35
  Speaker 3: positions right now?
• 29:37
  Speaker 1: There is no functioning NRB. President Trump has fired contrary
• 29:41
  Speaker 1: to statute board member, which means that there's no longer
• 29:45
  Speaker 1: a quorum. His argument is he has the right to
• 29:48
  Speaker 1: fire board members, even though the statute says he can't
• 29:53
  Speaker 1: under a unitary executive area. It's the same argument they're
• 29:56
  Speaker 1: making in the context of the Federal Trade Commission and
• 29:58
  Speaker 1: other agencies. And so right now, the spoom Court has
• 30:01
  Speaker 1: not yet decided whether, in fact, Congress has the ability
• 30:05
  Speaker 1: to protect board members from removal or rather the president
• 30:08
  Speaker 1: has the ability to fire them for any reason. But
• 30:11
  Speaker 1: right now there's no quorum at the board, so there
• 30:13
  Speaker 1: is no board making decisions. Presumably at some point there
• 30:16
  Speaker 1: will be one again, and i'm the board will become
• 30:19
  Speaker 1: more pro employer in its orientation.
• 30:22
  Speaker 3: That does seem like the likely outcome. Thanks so much, Kate.
• 30:27
  Speaker 3: That's Professor Kate Andreas of Columbia Law School. And that's
• 30:31
  Speaker 3: it for this edition of The Bloomberg Law Show. Remember
• 30:34
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• 30:36
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• 30:40
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• 30:46
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• 30:49
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• 30:53
  Speaker 3: and you're listening to Bloomberg