Labor Relations: Before, During, and After Collective Bargaining Through Unions

Katya Valasek:

We're joined today by Joe Richardson, a union lawyer at a mid-sized law firm in Pennsylvania. You enrolled in law school after a five-year tour with the Marines in the Middle East and four years with defense contractors in Afghanistan. Why did you make a career change at 30?

Joe Richardson:

This decision actually came to me while I was serving overseas as a contractor. I'd done some really interesting things in the Marine Corps. I worked in the intelligence community. My work as a contractor afterwards was sort of adjacent to the intelligence community and special ops. With the position that I was in, I didn't feel like I was really in a position to make changes to how things were done. So I could make recommendations. I was doing a lot of research and analysis, but I was really far away from the people who were making decisions about the environments that I was working in. And so I felt a real lack of agency in that. And so I wanted to go do something where I felt a little bit more, I guess, personal and professional empowerment.

And the other thing to be honest is that I felt really morally conflicted about the work that I was doing. You know, I joined the Marines out of a sense of service and patriotism. And I kept doing that work as a contractor after I got out of the Marines because there was a war going on and I still felt like I could contribute. But I wasn't happy about a lot of the things that I was seeing and I wanted to find a profession where I could, I guess, make a difference and change some of the things that I was seeing.

Katya Valasek:

What did you think would be your next move after law school?

Joe Richardson:

When I went to law school, I thought I would do national security law. So I would take the skills and experiences that I had as a Marine and working around the intelligence community and use those skills and experience along with a law degree to keep working within that general domain and perhaps even try to start addressing some of the problems that I had seen while I was working within that field.

Katya Valasek:

So how did you end up pivoting to union work?

Joe Richardson:

Well, so in the Marines, there's this saying, “no plan survives first contact with the enemy.” And I would say that my career plan did not survive first contact with law school. So I was a couple of months in to my first year, I was at an American university in Washington, DC. Even with that limited exposure to the law, which was really my first exposure to law. I knew lawyers growing up, but hadn't really talked to them much about what they did. I realized that the goals that had sent me to law school were not going to be met by following the path that I had set out for myself. Both because it was starting to become obvious to me that being a lawyer was different from what I had imagined it to be. And also very specifically within the national security field, it's hard to do meaningful work if you don't work for the government. And in order to work in government doing that work, there's sort of an orthodoxy about national security that you have to be willing to accept. And my inability to accept that was really the thing that drove me out of that profession and into law school. And so that was really what I realized in my first semester. And it left me kind of adrift, wondering, okay, I just wrote a check for my first year, was this the dumbest financial decision I'd made up until then?

Katya Valasek:

So I actually think that's fairly common that someone comes into law school, they think they have a passion in one specific area of law, and then they start sitting in on classes, they start speaking to attorneys who do that work. Maybe they get a summer internship or externship there and they realize, “this isn't for me.” And it can feel overwhelming to try and find your direction after you experience something like that. What set you on a path to get you to where you are now?

Joe Richardson:

I was really just casting around. I took a labor and employment survey class. So that covered labor law, but also Title VII, employment discrimination, that kind of thing. And a couple of things happened. The first is that I had a profoundly impactful professor who became a mentor to me, and I wound up working for her while I was in law school. But the other thing that happened was I started reading these cases in my law book that came out of labor law, came out of the National Labor Relations Board or related agencies or courts reviewing those decisions.

And, just to back up for a second, I grew up in a working class family in Philadelphia. My dad was a welder at a shipyard before he went on to business school nights and then became a labor organizer, an activist. I grew up on picket lines. So the perspective of working people is really part of my DNA. And so when I was reading these cases and thinking about the stories that my father had told me growing up and remembering the struggles that I had seen him be a part of, I was really just instantly hooked. I went to law school, like when I joined the Marines, because I wanted to do something impactful. I wanted to make a difference. I'd already had a job making a lot of money doing something that I didn't feel great about. So I didn't go to law school to do that. And reading these cases, looking at the particular, unique problems of workers within our economy and our society, it just instantly hooked me. And so I focused very quickly on doing that.

The thing about going to law school and coming out of it with some kind of direction, I think, is that most people when they leave law school don't have any set of substantive skills that are really going to allow them to go out and practice as an attorney. So even if you've decided you're going to focus on intellectual property or something like that, and you took a lot of courses in law school, you may have built up a community of practice and some network, but you're not ready to really go out and practice in that field. And so while I think that can be a deficit for people coming out of law school, it also means that you are relatively informed when you graduate. And I think the options for people are a lot wider than they may think when they're graduating.

Katya Valasek:

So you mentioned the National Labor Relations Board. What is that?

Joe Richardson:

So the National Labor Relations Board is a federal agency that regulates labor relations in the private sector. So I like to say that in the full contact sport that is labor relations and bargaining in this country, the National Labor Relations Board is the referee. So it's a New Deal agency. It's an independent agency that's not part of the Labor Department or any other established executive department, and its mandate is to enforce this single law, the National Labor Relations Act, which codifies the rules of play, if you will, between unions and employers with respect to the employees that those unions represent.

Katya Valasek:

So you mentioned the labor and employment survey class and at law firms you often see labor and employment in a practice group name, especially at the largest firms. But there are two parts to that categorization. Can you talk about the differences between the labor piece and the employment piece?

Joe Richardson:

So employment, I think broadly speaking, is focused on the vindication of individual rights within the employment context. And so from an employer's perspective, it's defending against assertions of rights under statute for individual employees, like a discrimination case or wage and hour where somebody's saying that they're not being paid appropriately. Those can proceed on a class action basis at times, depending on your court and your situation, at heart, they're individual claims, individual causes of action. One individual is asserting that they've been harmed in some way that's protected by law.

Labor law is very different. Labor law, traditional labor law, which is what I practice, is the law related to collective bargaining, which is the process where groups of employees get together and bargain with their employer for terms and conditions of employment, oftentimes through a formal union, but not always. And so labor law is the set of rules, statutes, customs that define that relationship between any collective bargaining representative, a union or a group of employees, and their employer.

Katya Valasek:

So you practice labor law. Who do you represent in your work?

Joe Richardson:

I represent all sorts of people. I represent correctional officers outside Philadelphia. I represent a huge group of teamsters out in Chicago, who do everything from over the road trucking to moving shipping containers on and off of railroad cars to working in factories. I represent government contractors. I represent paramedics here outside of Philadelphia.

I also represent occasionally some of our clients who do longshore work up and down the South Atlantic and Gulf Coast. And I represent poor hotel workers here in Philadelphia. I mean, I represent people who make $200,000 a year or more driving a truck. Whenever I talk to them, I joke with them that I made some very poor career choices here. And then I also represent people who make minimum wage in Philadelphia. So all over the place.

Katya Valasek:

And are your clients the unions themselves or the members?

Joe Richardson:

That's a great question. Yeah. So my clients are the unions and that can get a little bit complicated sometimes. A lot of what we do is assisting our union clients in representing members in grievance arbitration. So a contract, a collective bargaining agreement between an employer and a union, will customarily have a provision where if there's a dispute about that contract, it goes to arbitration. And a dispute about a contract in this context would include somebody not getting the overtime that they were entitled to or, if somebody gets discharged or disciplined, often there's a just cause requirement in the contract. So a lot of what we do is helping our clients litigate those cases in front of an arbitrator. But we represent the union in those cases, even though we're doing it on behalf of the individual.

Katya Valasek:

What happens if the desires of the union don't match the desired outcome of the individual?

Joe Richardson:

That can get very messy. Oftentimes those interests are aligned. I would say the vast majority of the times those interests are aligned. But there are circumstances where they aren't, particularly when we're talking about an individual member may have a way of reading a contract that would be very nice for them, but damaging for everybody else in the workplace. And so the union at that point has to make a judgment call about how to handle that grievance.

And there's a whole set of laws that govern a union's responsibility to its members in that context. So if you have a situation where a member's interpretation of the contract would be damaging to everybody else in the bargaining unit, oftentimes that's a reasonable basis for not taking a grievance.

Katya Valasek:

I want to zoom out a little bit and talk about the different categories that your work falls into. What are the big buckets that you say you would say you typically work through on a day-to-day basis?

Joe Richardson:

I would say that there are really four main buckets. And I'm cheating on the last one, I'll get to that. And it kind of follows a chronological progression, if you will, in the formation of a collective bargaining relationship.

So the first thing would be helping unions in organizing drives. If a union is trying to organize a workplace, like the auto workers just went after the Volkswagen plant down in Tennessee. Their lawyers would have been involved in developing the strategy for organizing. I personally have done plenty of organizing campaigns where we assist the union with some strategy and then also handle all of the legal work that goes on with respect to that organizing campaign because there is a fair amount of sort of legal procedures that is involved in getting union recognition in this country.

And there are a couple of different ways that that happens, but one of the primary ones is that a petition will be filed with the National Labor Relations Board to have them conduct an election to see whether the employees want to be represented by that union. We assist our clients with preparing the filings for that petition. And then often there are issues that come up about whether or not an individual or a group of employees should be within the collective bargaining unit. And the employer may contest that or raise other challenges. And all of those have to be handled through an administrative proceeding that can involve evidentiary hearings and writing briefs and that sort of thing. We handle all of that stuff for our clients.

The second bucket is, once that's done, you're negotiating a contract. The goal is to get a collective bargaining recognition and then negotiate a contract with the company that will set terms and conditions for the employees who are covered by that bargaining unit. And so I do a lot of work that is involved in contract negotiation. And it really depends on the client what scope of that work will be.

Sometimes I'm the person who's sitting at the table negotiating the contract. Sometimes I'm sitting in the room and I'm there listening and taking notes and there to answer questions for my client if they have them about whether or not they should make a bargaining proposal or how to respond to something. Sometimes they have me on call in case they have questions. And then oftentimes there can be work that's done away from the bargaining table that supports bargaining, like drafting information requests and following up on those if an employer has failed to respond.

A contract campaign is about bringing together different levers of power against an employer to get them to agree to a contract. And so there can be things outside of the context of bargaining that we can get involved in to help create those levers, which would include anything from potentially initiating litigation, either through us or through a partner law firm over a violation of state labor law, like a wage and hour law or something like that, or doing some kind of regulatory filing. Or potentially if the employer is refusing to bargain, filing charges with the National Labor Relations Board to try and get them to come to the table and bargain in good faith.

Bucket three is, once you have a contract, you have to enforce it. And that's the arbitration process that I talked about earlier. Almost every collective borrowing grant, not all, but almost every has a grievance procedure in it that ends in binding arbitration. And the way that works is there are variety of methods for selecting an arbitrator, but you get to the end of the grievance procedure, the company and the union pick an arbitrator. And then they have that individual decide the grievance, the contract dispute, which again could be anything from was there just cause to fire John Smith to how do you interpret this overtime provision and what does it mean for the employees?

And then the fourth bucket is really just everything else. And I think that was the part that surprised me most about leaving the government and coming to the private sector as a union-side labor lawyer is the number of phone calls that I get from my clients that really have nothing to do with those first three buckets. It's just the random legal question, or it's not even a legal question, it's just a strategic question. They're looking for somebody who can give them advice on all sorts of different things. And so getting those phone calls, being able to respond to them, and being able to help my clients think about broadly how to address a problem. That's been, I think, the most surprising and rewarding part of my practice as a private sector union lawyer.

Katya Valasek:

I want to go back and focus on the two sides of the collective bargaining agreement, both getting one made and then enforcing it after the fact. Let's just say that there is a union whose collective bargaining agreement is expiring in the near term. When do you start negotiations?

Joe Richardson:

Well, like any good lawyer, I'm gonna answer that with, “depends.” I will say that generally speaking within the legal framework of private sector labor law, there is a common window period within which collective bargaining negotiations will start at the end of an agreement. And that's usually 60 to 90 days out from contract expiration. But that's just a baseline. People can start bargaining a contract really whenever they want to, whenever the parties agree to start bargaining for a new contract. It really does depend on the industry, the relationship between the parties. But I would say several months before the end of a contract is pretty normal time for those negotiations to start.

Katya Valasek:

So I think those of us who don't do this work only ever hear about this part of the process when something goes wrong and it becomes contentious. Is that the norm or does this process typically run relatively smoothly?

Joe Richardson:

I think that really depends on the client and the company. Different unions have different cultural approaches to this, if you will. So I think a great example of this is the United Auto Workers. That historically, over the last couple of decades, there has been a culture at the United Auto Workers of engaging what I would call fairly non-controversial or non-contested negotiations where, there is bargaining that occurs, the unions ask for things, they push, but there was always an understanding that there were limits to what those members, the employees were willing to do to get a contract. And quite recently in the auto workers, there was a shakeup in leadership. The current president, Sean Fain, won by, I think it's 500 votes out of 60,000 or something like that. It was very close. And he took a very different approach. And his approach was, for starters, not to extend contracts, right? So when you're bargaining for a contract, you can extend the contract that exists until you finish bargaining. And that often happens. And it may not happen all at once, but oftentimes we do extend contracts in the course of bargaining. But he said, “no, we're not doing that. We're gonna use the contract end date as the end date. If we don't have a contract by then, we're gonna hit the streets, we're gonna strike.” I've heard him say that that was surprising to the company or the companies that he was dealing with. But so he took a very aggressive approach. Had a very strategic plan around getting workers out on strike at different plants and applying pressure on the companies.

If you're looking for sort of an example at one end of the spectrum, that's a fairly decent example of a very aggressive and strategic approach to collective bargaining. And not all bargaining relationships work like that. There are certainly plenty of circumstances where if the employers are getting what they want out of the employer or the economic circumstances for employees in that location or that area are such that they feel pretty good about how they're doing relative to everybody else. Oftentimes, bargaining doesn't have to be that contested.

Katya Valasek:

In a non-extreme example, what are some typical elements that you're negotiating over?

Joe Richardson:

it's interesting the kinds of things that you can see people bring to the table. The big things are wages, health care, pension, or some kind of retirement plan. And I don't think it's news to anybody that defined benefit pensions where you get a set check every month for the rest of your life, that those are pretty rare these days, although I still see them.

One thing that comes up a lot in the Teamster world that I deal with is cameras, safety cameras in vehicles. Whether it's a camera that's mounted on the front of the truck to look at the road, or even much more concerning for our drivers, inward-facing cameras that are monitoring them in their cab. A lot of these drivers think of the cab as their office, not as the company's factory floor. And so there's a bit of an expectation of privacy there, and working through issues about that can take a lot of time. That was certainly a big issue that came up in the UPS negotiations last year with the International Brotherhood of Teamsters.

Katya Valasek:

So you mentioned that you are sometimes surprised by what people bring to the table to negotiate over. Who are bringing items to the table?

Joe Richardson:

That really depends on the client and they can have different processes for how they get that kind of information. But I think in sort of an abstract and ideal sense, those ideas are coming from your membership. A collective bargaining agreement really exists to meet the needs of the employees who are working in that facility, working for that employer. And so ideally, there's a process that goes on before you get to bargaining where the interests of those people are being discussed, being raised, vetted, perfected, so that you can present those to the employer, both in a form that I think is well-developed so that they can understand what you're asking for, but also in a form that has buy-in from the bargaining unit. The point is to get advantages, to get improvements for employees that they want. That'll create a contract that they will support. In most unions, employees have to vote on their contract at the end of the bargaining process. And that certainly is the case with most of the Teamsters that I work with. And so we always want to make sure that when we get to that vote, the employees are voting on something that addresses their needs. They're voting for something that they can get behind.

Katya Valasek:

So you brought up a really interesting point. The fact that there is a vote that happens at the end of this process and negotiations imply a give and a take of the parties involved. How do you have conversations about concessions that need to be made with your clients?

Joe Richardson:

Yes, that can be very complicated. When I say the client, I'm usually talking about the elected officers of the union. They've done this for a while. They understand the realities of bargaining and the need to make concessions. Oftentimes there'll be a committee of members from the bargaining unit, line employees who are sitting in contract negotiations, contributing to proposals, helping make decisions about how to bargain. Those people, generally speaking, will understand what's going on and understand that there's been a process to get to whatever types of concessions may have had to have been given.

And certainly one of my roles when I am helping to bargain a contract is to help educate the bargaining committee so that they understand why we're making those concessions when we do and so that they are on board with having made them, right? Because in an ideal world, they will have been part of the decision-making process to get to whatever that final package is. They will have helped make the decision whether to insist on something or to let it go. But it's bringing all those people along and then bringing the membership along so that they can understand, yes, it's a give and take. We can't get something without giving something up. And we're also explaining to members what the alternative is, right? And in a collective bargaining relationship, your best alternative to negotiate an agreement is to go out on strike. And while some people talk a lot of game and want to go out on strike, and I'm sure some of them are sincere, a lot of people worry about their health care and how they're going to feed their kids. And so I think for a lot of people, the idea of having to go out on a strike, particularly if it seems like it might have to last for a long, is daunting and they're gonna take a contract that may not have everything that they want because they understand that the alternative really isn't workable for them.

Katya Valasek:

That was something that was just recently in the news with the writer's strike, right? We all saw how long that lasted and what the implications were.

Joe Richardson:

And that's a group where I think you have oftentimes a certain amount of career flexibility. I'm speaking broadly here, right? But people who make decent wages and maybe have a different type of work that they could do on the side or something like that. A lot of the folks that I work with, they're in the bottom half of the economic strata in this country and they don't have the money in the bank to go two weeks without a paycheck, let alone a month, two months, three months. And most unions have a strike fund that will help support those members while they're out. But that's not bringing home a full paycheck.

Katya Valasek:

Right. And it's not unlimited. So once you have an agreement in place, what does it mean to enforce

Joe Richardson:

So contract enforcement primarily takes place through the grievance and arbitration procedure. That's something that is negotiated as part of the contract and at the lowest level is enforced by union members in the workplace. So oftentimes there'll be an official of the union called a shop steward who is either appointed or elected. And they're a line employee. So they're somebody who has a day job at the company as part of the bargaining unit. They work on the factory floor, what have you. And then, for some period they take off their employee hat and they put on a shop steward hat and they go handle grievances or investigate things that have happened in the workplace or talk to management about small issues that have come up. And they really do the lion's share, you know, the day-to-day enforcement of a collective bargaining agreement. If they can't resolve things, then there's, generally speaking, a process for elevating those concerns through several layers of different meetings or grievance hearings, they're sometimes called, until you get to some kind of final decision maker. It's often a union officer and a general manager or other senior manager at an employer. And if they can't agree on an outcome, that's when you're going outside of the union and the employer to get an arbitrator to come in and decide that dispute.

Katya Valasek:

And what does it look like to bring an arbitrator in to try and settle a dispute?

Joe Richardson:

Every time I get a grievant ready, we call the person who has a grievance a grievant. Every time I get one of those people ready for arbitration, I have this whole talk I do with them about how arbitration looks something like putting a case on in front of a court, but is really different. And then we talk about Judge Judy and the fact that Judge Judy is actually an arbitrator and people sign arbitration agreements. I always tell them that they don't know this, that Judge Judy, the show actually pays the fines that she imposes on people, which I heard on another podcast. But it's the same thing. She hears from both sides and she yells at everybody and she imposes Judy Law. And arbitration for us is a lot like that too, hopefully without the yelling. Even though it's sort of legalistic, arbitration is hiring some knowledgeable, fair-minded person to decide as a dispute/ I think of it as being more like King Solomon than a court proceeding. Although, it does superficially, I think, compare to litigating a case in front of a judge. And there are lawyers making opening statements and examination of witnesses and presentation of evidence without any established rules of civil procedure or evidence.

Katya Valasek:

What are the different ways that a resolution may look like once you go through arbitration?

Joe Richardson:

So arbitrators have very broad power to fashion a remedy. It's often an equitable kind of remedy. So they generally speaking don't impose any type of penalty or damages unless there's something very specific in a contract that calls for that. The scope of an arbitrator's authority in any particular instance is defined by the contract under which the arbitration arises. If the parties have negotiated a collective bargaining agreement that provides for specific limitations on the arbitrator's ability to impose a remedy, the arbitrators are obviously bound by those provisions. If not, customarily arbitrators are going for what's called make-whole relief or some version thereof where they're trying to undo whatever harm we've established based on the violation that's occurred. Or if there isn't any tangible or financial harm issuing some kind of declaratory judgment or cease and desist that will clarify the rights of the parties in a specific situation.

Like, I don't know, if there's an overtime rule that we feel like has been violated and the company makes the person whole or the individual was gonna take the overtime and then got sick so they couldn't do it, there might not be a financial remedy. But we'd want to potentially have the arbitrator clarify, okay, going forward in this type of circumstance, this is how the company is going to assign these benefits.

It really is very broad, although, like I said, generally speaking, there would not be a provision for any type of punitive damages or penalties. An arbitrator is primarily supposed to, if there has been a violation, just undo the effects of that violation. And the different arbitrators take a narrower or broader view of that obligation and the scope of their authority there. And that is one of the things that you think about when you're picking an arbitrator.

That's an important point to raise is that one of the things that we do is, when we're going to arbitration, is that we go through a process to select an arbitrator. And knowing the arbitrators and picking an arbitrator who is going to be good for your client in that case is probably one of the most important things you can do in an arbitration.

Katya Valasek:

So just like litigators who get to know the judges and understand what may resonate in front of one judge over another, you get that same sort of knowledge about the arbitrators. Do both parties need to agree on the arbitrator that they're meeting in front of?

Joe Richardson:

The parties do have to agree. There is often a process though, it's not just building consensus. So oftentimes the parties will have an alternating strike procedure where it's sort of the reverse of picking people for kickball teams. We'll get a list of arbitrators and the parties take turns knocking people off that list. Most people who practice this kind of law practice it all the time and do a lot of these arbitrations. So we all know the arbitrators, you know, we know what their leanings. The company lawyers always knock my favorites off the list and I always knock their favorites off the list and we wind up with the people in the middle who are, for the most part, mostly fair.

Katya Valasek:

So I wanna go back to something you mentioned earlier in our interview, which is that you moved into labor law in order to find meaning in your work. I'm curious, where do you find the most fulfillment in what you do?

Joe Richardson:

Well, I would say that there is, just in terms of the feeling in the moment, there is nothing like helping a client win an organizing campaign, right? When we've filed for an election and gone through that process and fought the fight. I did this last year with a group in South Jersey, a group of paramedics. And we had to go through a very difficult NLRB proceeding to get them even the right to vote. Going through that process with a group of workers, helping, not only helping the union, just from a legal perspective, getting to the point where it can have that election, going through the process with the board, but also helping them with their strategy and talking to workers and helping them get people to the point of being able to vote for representation. When we win, there's no feeling like that.

But I'm not sure that that's the most impactful work that I do. I would say that, if I'm just looking at in terms of what has the greatest effect for the greatest number of people, it's probably contract negotiations and contract negotiations can be frustrating and intensely boring at times, very difficult. I think it's hard work for some lawyers to get used to because there aren't any rules. There just really aren’t. There are overall rules that govern bargaining in good faith. You have to be careful about not crossing over those lines. But within those guidelines, there's no good manual on how to bargain a contract because it's very personal. But going through that process, working with members, getting a contract campaign accomplished and getting a contract, I think just in terms of its long-term impact, that's probably the most important thing that I do.