‘We’re going to litigate a lot.’ Management-side lawyer offers prediction on labor’s moment

From Hollywood to Detroit to Washington, D.C., unions have become more muscular and they are involved in sectors from fast food to technology. In Los Angeles, a talent strike has now lasted more than four months. In Detroit, the United Auto Workers called a surprise strike last week. And in the nation’s capital, the Biden administration and particularly the National Labor Relations Board are moving fast to put in place new pro-union rules.

Now seemed like a good time to check in with Robert Millman, who next year will mark 50 years as a management-side labor lawyer at Littler Mendelson PC. He joined Littler after law school at Cornell, in 1974, when the firm had just one office, in San Francisco.

“San Francisco had always had a very strong labor history going back to the waterfront strike in the 1930s when they shut down the city. There we were, and one of the things that set us apart was that we were willing to fight organized labor. The white shoe firms did not want to get down and dirty in a room and use ‘expletives deleted’ with labor unions,” Millman recalled.

Millman opened Littler’s first Los Angeles office in 1980. The firm now has two offices in LA, among 106 in 105 cities around the world. He agreed to talk about the current state of labor law with the proviso that he wouldn’t talk about certain union actions underway due to client representation in those disputes. (An interview with a union-side lawyer will be published soon.)

This Q&A was edited for brevity and clarity:

Daily Journal: President Joe Biden has been called the most pro-union president in many decades. How are his policies reshaping labor law?

Millman: Well, they’re actually rewriting the National Labor Relations Act. They are the most pro-labor administration that I have seen in the 49 years of my practice.

DJ: How does this compare to the Barack Obama presidency?

Millman: Prior to Obama taking over the presidency, there was a certain amount of stability in labor relations law. Unions and management knew what the basic rules were. There was a lot of precedent. The Obama administration reversed 50 years of labor precedent. And we thought that was progressive!

DJ: Jennifer Abruzzo, a former lawyer with the Communications Workers of America, was appointed general counsel of the National Labor Relations Board in 2021. What have been the most significant changes she’s made?

Millman: She’s pushed unionization very, very far.

DJ: What are some of the recent decisions by the NLRB board that you think have gone too far?

Miller: There’s a case called Miller Plastics. If a single worker, off by themselves protesting something, that’s now protected, concerted activity. Typically under the act, you’d have to be acting on behalf of two or more people. Now, if everyone else is thrilled with their wages and one worker gets terminated for complaining about his wages, that’s now an unfair labor practice. [In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023)]

DJ: Are there other cases?

Millman: There’s a case called Cemex that’s absolutely unparalleled. The way this has worked since 1935 is if a union wants to be recognized they file a petition with the NLRB, and you wind up with an election and win, lose or draw. In the Cemex decision, the burden will no longer be on the union to file a petition with the board seeking election. They can make a demand for recognition with the employer. [Cemex Construction Materials Pacific LLC, NLRB Case No. 28-CA-230115.]

Here’s where Cemex became extraordinary: If an employer commits one unfair labor practice — one! — no matter how insignificant, the board is going to seek an order for the employer to negotiate a collective bargaining agreement with the union without an election taking place, based simply on the fact they believe the union has majority status. And it’s often the case that an employer can slip up, make a mistake, not a big mistake.

DJ: Are there other areas where you think Abruzzo has gone too far?

Millman: She put together new election rules, which are going to take effect in December, that accelerate the time period with which there will be elections. She’s made everything on a superfast track. All of this is an effort, from an employer perspective, to not allow employers to tell their story.

DJ: What about joint employer status in which a company is required to jointly bargain alongside a subcontractor in a union effort. Are you seeing the NLRB do more in this area?

Millman: Yes! Abruzzo has promised us her view of this issue by Oct. 12. We know she is going to make it easy to prove joint employer status. Any other result would be inconsistent with her pillaging of the employer community.

DJ: What is the recourse for employers, especially given that the Republican presidential front-runner, Donald Trump, plans to meet with striking UAW members next week?

Millman: I think that’s all about votes and has nothing to do with taking a position one way or another relative to the issues at hand.

DJ: Does that mean you believe these changes won’t be long-lasting?

Millman: If Biden is reelected, this will become further entrenched and Ms. Abruzzo will continue to remake and redo and revamp, and then these things will be more hardened in place. We will have an environment for some time that’s very, very pro-labor.

DJ: A renewal of unions really began before President Biden was elected. What do you think are some of the drivers?

Millman: One of the things that has been driving things at the bargaining table is the very high rate of inflation and the fact that the average worker is making less money today than they might have made three years ago. We’re told that in 2024 the cost of health benefits is going to greatly escalate. So wages and benefits are really being scrutinized right now in light of what’s going on with the economy. There are acute labor shortages in a lot of industries, nursing for instance. And when you have shortages of labor in a profession, the people in that profession have more leverage.

There’s one other factor that you need to think about: There’s been a lot of organizing going on involving today’s generation; 18- to 25-year-old people want to have a say. They could work for a very good employer. But they want to have a voice at work. That has been a factor in terms of the organizing going on in the country, and it is very unusual.

DJ: How do you think this will be resolved?

Millman: One point I would really emphasize is — and I would argue Ms. Abruzzo hasn’t sufficiently thought through — she’s just going to foment a tremendous amount of litigation. It’s just going to be more and more legal fees for employers. She can change all these rules but the reality is some of this is not going to pass legal muster. And much of her very hard work in terms of trying to change so much so quickly will get flipped come 2024 depending on the results of the election.

We’re going to litigate and we’re going to litigate a lot. And that’s somewhat unfortunate but that’s the only recourse that the employer community is left with because she’s not giving us options with respect to these very one-sided decisions which really interfere with the operations of a business.