Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today, we are featuring a discussion with Stacey McClurkin Macklin.
It’s common for the National Labor Relations Board (NLRB) to change its approach when a new presidential administration takes office, especially when the new administration also represents a change of political parties.
But the degree of change in the last few years has surprised experts in the employment law space. Add that to an ever-changing work environment, and it’s never been more important for employers, human resources executives and employment attorneys to be on top of unfair labor practice issues.
Our guest to steer us through these tumultuous waters is Stacey McClurkin Macklin. Today, she’s an attorney at Stinson, where she advises companies on a wide range of employment law issues. Before joining Stinson, she spent eight years with the NLRB, where she investigated unfair labor practice charges, educated employers on labor law and had a police escort away from a union vote.
Macklin offers best-practices advice about how to avoid NLRB investigations, how to handle them when they come up and how to deal with the NLRB’s newfound aggressive policies. The supplemental materials and episode transcript are available below.
Stacey McClurkin Macklin’s Stinson profile
12:20 | McClurkin Macklin, Stacey. (February 17, 2023). How Employers Can Balance Labor's Surge With NLRB's Restrictions. Bloomberg Law.
18:51 | Michigan Law. (2022). Curtis L. Mack.
I. HOW TO ENFORCE POLICIES CONSISTENTLY
Matt Crossman, Host: Let’s start with some background. You left the NLRB last year to go to work for Stinson. What did you do at the NLRB?
Stacey McClurkin Macklin: I had an eight-year career at the National Labor Relations Board as an attorney advisor. I was in the Baltimore office. We wear different hats in that position.
The first thing that happens is you’re an investigator. You get unfair labor practice charges that are brought either against an employer or a union. What I would do in that position is actually conduct the entire investigation from start to finish. I’d speak with the charging parties, I’d get their witness statements, I’d collect evidence, and I’d find any other witnesses I may need to speak to.
Then I would reach out to the charge party, which would be an employer or a union, and I’d let them know, this is the information that I need, whether it’s talking to their potential witnesses or getting a position statement from them or documents that I think could be helpful in the investigation.
And ultimately, after I have all of that information, I would make a recommendation to the regional director on whether or not there’s enough evidence to say a violation has or has not occurred.
So that’s one role. I would also help facilitate negotiating settlement agreements and ultimately, if there was no settlement agreement, we would litigate that case against a charge party.
MC: If there’s one thing you could tell every human resources executive and employment attorney that you learned at the NLRB that would help them do their jobs better, what would it be?
SM: My advice would be to be consistent. You put policies in place, be consistent in how you apply those policies. Be fair in how you apply those policies. One of the biggest issues that I saw was charging parties feeling, well, you have this policy in place, but you made an exception for this other person. Why are you coming down on me harder? Is it because of my union activity? Is it because of my protected activity?
When you have these policies in place, be consistent with applying them, whether it’s discipline or attendance policies. Whatever the type of policy needed in your industry or your particular type of environment, be fair in how you actually apply them so that you can hopefully minimize the trouble you’re exposed to.
MC: I’m guessing you saw some behavior where you thought, Oh, come on, why did you do that? What are some red flags or common mistakes that HR execs and employers should absolutely avoid?
SM: They should avoid not applying their policies fairly. They should avoid favoritism in the workplace. They should definitely avoid having a situation where they don’t actually document what happened.
Let’s say you have a situation where you discipline an employee. Just take the moment to actually document it. There’s often charges that would come in, and the employer would say, well, we had to escalate it, this person needed to be terminated because of past situations.
But you ask for the documentation of the past situations, and it’s just not there. So it’s hard to justify a termination when you have no documentation that anything has happened in the past. It comes down to a “he said, she said” thing. Just take the time to document what has occurred so that if you had to escalate a situation as far up to termination, you could actually justify it.
MC: That term documentation, frankly, comes up often in employment law matters. It seems so obvious. What are people missing that they’re not doing that?
SM: That’s a very fair question. For me, I take the approach of ‘document everything,’ whether it’s an email chain or getting someone to sign off and acknowledge on a piece of paper that I did X, Y, Z.
I think sometimes, employers, especially maybe frontline supervisors, want to keep it more casual. That could be positive in terms of trying to build rapport with their employees - they want to keep it more casual so that they have that positive relationship. But it’s also something that could come back and really bite the employer if they just don’t take the time to document it.
And I can understand wanting to have that positive rapport: OK, I talked to you. It’s OK, we’ll leave it at that. But if you just jot it down - I spoke to such-and-such on this date about this issue, that can help you avoid problems.
II. HOW TO DEAL WITH THE EVOLVING NLRB
MC: Starting while you were still there, the NLRB’s reputation is that they’re becoming more union friendly. Do you agree with that and why is that?
SM: One thing I learned in my experience with the board is that it’s a pendulum. It definitely swings with each administration, and it definitely swings even more when there’s a change in the political parties.
What has really surprised people is just how far it has swung this past administration change. It definitely has gone more in favor of unions and employees. I think what has been surprising is the extent.
MC: What do HR execs and labor and employment attorneys need to know about this swing?
SM: It’s literally a developing situation. Every day we’re waiting to see what’s coming out of the board to see what precedent-shifting decisions have occurred. So I think it’s really important that if HR doesn’t have someone internally who’s looking into these things that they have counsel who can advise them on things as they change.
One thing that I often do is study the initiatives coming out of the board. This particular general counsel (Jennifer Abruzzo) has been very vocal about the things that she would like to change, and so she puts out memorandums every once in a while talking about those initiatives.
For HR execs, before putting certain things into place, it’s good to run them by your employment attorney and ask, what’s the status of this? Is this a hot topic that could be changing soon? Do we need to be a little more mindful of that?
MC: Let’s say I’m an HR executive. My company has been accused of an unfair labor practice and the suddenly more aggressive NLRB launches an investigation. What kind of policies should I have in place ahead of time so that when I get a call like that, I know how to handle it?
SM: It comes down to discipline. So if you have a discipline policy that’s actually in place and followed, that’s one of the things you want to go back and say, This is the policy. This is why we made the decision to treat this employee in this certain way, and that’s the decision we made.
And then also looking at what your specific industry is, if there’s anything that’s out of the norm, have a policy for it so that the expectation is known for employees.
MC: Should I have a written policy for how I respond to that call?
SM: Once you get the call, oftentimes the board agent will be letting you know what the allegations are. That’s putting you on notice that the board agent is looking into this. They haven’t necessarily decided that they’re going to issue an allegations letter, which is what they issue saying, These are the allegations, this is the documentation that I need, this is the group of potential witnesses that we want.
So although you haven’t gotten that yet, once you get that initial phone call, what you want to be thinking about doing is gathering the documents that they may be looking at, because they’re still going to explain to you what the allegations are, even without giving you that official letter.
And think about who the witnesses are that you may need to speak to. There’s nothing wrong with going ahead and figuring out, what kind of internal investigation do we need to run right now? Because the thing is, once you get that letter, it’s a limited amount of time to actually respond. So be proactive in figuring out what exactly happened and why you responded the way you did.
Was there something that should have been different? If so, communicate that. Is there something that needs to be fixed or is it, we did our investigation, and we stand by what we did. This is the documentation that we have, and we’re prepared to give a position statement to explain why we made the decisions that we made.
MC: How important is transparency in dealing with all this?
SM: Transparency’s very important. You want to do it under guidance of good counsel to walk you through the process, and oftentimes let them be the person interacting with the board because they know how to best navigate that. What’s important is being upfront and putting forth your position and explaining the why behind whatever decision was made so that the investigators don’t have to guess.
One of the biggest things that it comes down to is making a credibility determination. One of the things that they’re looking at throughout the investigation is, is this employer cooperating? Are they being forthcoming with the information, or are they trying to hide the ball? Are they being truthful? Was this an honest mistake, or is this something that they intended to do and they’re trying to hide that so it’s not uncovered?
MC: I imagine that what you just said about the honest mistake versus intended to do - that must be the most difficult fact to figure out during an investigation. Is that true?
SM: It really depends on the situation. You have some charged parties who may have been “frequent flyers”—they may have received charges often.
But a lot of times I would see smaller companies who really just don’t know, and sometimes in addition to being an investigator, I’d have to educate. And so what would actually happen is an opportunity to explain, well, X, Y, Z happened. This is the allegation.
And initially people were defensive: Well, what’s wrong with that? Why can’t I do that? And then I explain, well, this is what the law says. This is why this is an issue.
One of the cool things about having that conversation and getting people to understand, especially with the small employers, is the opportunity to get things resolved before it even goes to the regional director.
III. HOW TO MANAGE THE NEW ORGANIZING LANDSCAPE
MC: This is a challenging time for HR execs and employers regarding employees organizing. You hinted at this when you wrote a piece for Bloomberg. “Employers must strategically respond to such organizing campaigns as they navigate the limitations placed on them by the NLRB.” What are some strategies these companies can use?
SM: The first strategy is to not wait until you actually get a petition to make it important, to actually care about this. And what that means is, actually focus on having that positive relationship with your employees from the very beginning.
If you wait until you have a petition with a union saying that they want to represent your employees, and all of a sudden now you talk about how much you care about your employees, it very much comes off as disingenuous. Employees can see right through that.
So actually working with your employees from the beginning and having that positive relationship is important. Train your managers, especially your first-line supervisors, to be able to receive whatever issues that employees have. Let them be comfortable coming to first-line managers, supervisors, and discussing the issues they have.
MC: You advise companies to pay attention to what the competition is doing so the employees don’t think that the grass is greener on the other side. Why is it important to take a holistic view of employment?
SM: If we take a look at what’s been going on, especially for the last few years with the pandemic, I think it’s making employees really stop and think about what’s important to them. The work-life balance is important. Being at a place that you feel like actually values you is very important.
And so how people feel valued, they’re also going to assess, well, do they value me as much as this company over here? Because these are the perks and benefits that they’re receiving. You have to look at what the trends are in your industry and what things they’re considering, whether it’s flexibility, if you have a type of company where employees can work at home or hybrid, if that’s something that they’re starting to chatter about. It’s not saying that you have to absolutely make the decision to do that. But you have to be willing to have a conversation when it’s presented to you.
That’s one of the biggest things. When employees come to management or first-line supervisors expressing their concerns, they want to actually know that information’s going to be received and honestly considered. And give feedback on why you can or cannot make such changes, and if you can’t make some change right away, what can we do in the meantime?
You have to do something to show, This is a give and take. We value you and we want to show you that.
MC: For Bloomberg, you wrote, “Union organizing efforts have been nationally highlighted as the persistent push to organize workers has spread beyond traditionally unionized industries.”
The phrase that interests me there is “beyond traditionally unionized industries,” Starbucks is probably the best example. What’s going on there that HR execs and employers need to know?
SM: What’s interesting is that traditionally in the past there’s been organizing or a lot of union representation in factories, things of that nature. But what you’re seeing more and more now is it’s going into new spaces, such as the tech industry, some areas of retail that we haven’t necessarily seen before. Digital media is a very big thing in organizing.
Employers and HR execs need to be mindful that even if maybe in the past, organizing has been a big thing in certain industries, it’s not limited to those industries. More and more employees are actually being vocal about it. In the news, it’s being talked about more. It’s making employees in non-traditional industries wonder, well, how does this possibly play into my own position?
So there’s not necessarily a limit on what field can be organized. People are exploring, what are our options to also get representation as well?
MC: One of the trends with companies dealing with organizers is they are litigating it to the Nth degree, drowning the union in paperwork. Is that a fair assessment and what do you think is going to happen with that as a trend?
SM: I will say things have been highly litigated. But I think it’s not necessarily about employers merely trying to inundate unions or bury them with paperwork. I think they’re really fighting back the push that has come at them from this change in administration.
I think you’re going to continue to see companies be aggressive because there have been so many drastic changes coming out of the board. I think it will continue, but I don’t think the purpose is, we’re trying to bury unions. I think employers are trying to have a fair fight.
IV. HOW TO KEEP YOUR COOL: PHONE HOME
MC: Now I want to pivot and ask you some professional development questions. You transitioned from private practice to the NLRB back to private practice. Walk me through those stages.
SM: So I actually had a little bit of time with the government prior to my first initial step with private practice. I was at a sheriff’s office in Georgia until there was a change in administration.
Once I left the sheriff’s office, I went into private practice for a while doing employment law. That was a great experience. I had previously done employment law for several summers in between law school years, and I enjoyed that. But one thing that was always in the back of my mind was this three-hour class I took on Fridays in law school - labor law.
And it was funny because I remember having some friends who were very much like, oh, why did we sign up for our class on a Friday afternoon for three hours? What is wrong with us?
And I just thought it was such a fascinating class. I remember the professor to this day, Curtis Mack. He would always tell us about his experience working with the National Labor Relations Board.
He would tell us his experiences, the cases he tried or the different elections, and I thought, that would be really cool. I really wanted to get the opportunity to not just have heard about this in class but actually get hands-on labor work. So when presented with the opportunity, I jumped at it and had a very rewarding career at the National Labor Relations Board.
Getting to actually see and gain that institutional knowledge was totally valuable. Ultimately, over time, I started thinking that the work that they do at the board is very important, but I also started thinking I could be in a position to work with employers who need good counsel on how they can limit their risk.
There’s situations where some companies are making decisions and they just don’t have that guidance and don’t know what issues to actually look out for when making those decisions. So that’s when I started looking at, What opportunities do I have to actually use my knowledge to educate employers on how they can still achieve their goals and their objectives and their business, but also do it within the confines of the law?
MC: I want you to imagine Curtis Mack, your old professor, gives you a call and says, Stacey, I heard you followed me to the NLRB. What was that like? Tell me a war story. What would you tell him?
SM: So one particular occasion I was conducting a manual election, and the joke that came out of it is Stacey had the police called on her.
The police weren’t actually called on me. But a sheriff’s deputy’s office did show up because unfortunately, although the employer agreed to host the election on their property, they did not want to allow the union to be present during certain portions. This particular owner of the company said, why are they on my property?
And I’m thinking, what? Who are we talking about? This is the union. They’re here for this pre-election conference. But the company wasn’t having it. And so ultimately they called the police. The sheriff’s office came out and spoke to me. What are you doing here? Can you do this somewhere else? And I said, I’m confined to doing this where the parties actually agreed to hold this election.
And I ultimately figured out that one particular manager did not sign off on it, their attorney did. So it seemed like there was some confusion as to what would take place. They always say, phone home if there’s an issue. So I’m phoning home to my supervisor saying, This is new. I’ve never had this happen.
And then, the cops returned and I’m thinking what now? The deputy comes up to me and says, They don’t want you to conduct the ballot count and allow the union to be there. I’m thinking, but this is something that they agreed to. I’m not authorized to leave, I have to do what’s on this paper that they agreed to. And I phoned home, and they confirmed, you can’t move from where the parties agreed to be.
And then the deputy said, to diffuse this, would you mind doing your count on the side of the road? And I said, excuse me, you want me to do the count - like the ballot count - on the side of the road with the cars coming? What are you talking about?
That ultimately didn’t happen. The deputies stayed around, and eventually, the employer did allow the union representatives to be present during the ballot count. Afterward, I packed up my ballot box, my booth, and I had a lovely police escort off of the property, and so the joke was when I got back to work, people were like, so we heard you got escorted by the police. We heard you were causing a scene down there.
I’m like, I just did my job.
MC: In the interviews that I’ve done with employment law attorneys, I hear pretty regularly that one of the things they like about the job is that no two days are the same. Now, that was an extreme example, obviously, because you’ve never been almost arrested again.
MC: But I wonder if the variety of the work that you get to do is part of what appeals to you about the three different ways that you’ve worked in the employment law field?
SM: That definitely is one of the things that I absolutely love about labor and employment, because you never really know what you’re going to encounter.
It’s an opportunity to learn different industries because you get clients from across the board. For me, it was really rewarding actually getting to see something resolved. I take the position that my job as an attorney is not to merely argue but to also be a problem solver.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on May 11, 2023.
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