Photo of Terry Potter

A former field attorney with the National Labor Relations Board (NLRB), Terry views labor and employment cases from an insider’s perspective. He represents employers in collective bargaining, arbitrations and union avoidance techniques in a myriad of factual settings before the NLRB, National Mediation Board (NMB) and various state public labor relations boards.

On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act (the “Act”).

It is not often that the National Labor Relations Board (the “Board”) gives employers a heads-up before it makes broad, and often burdensome, changes, but a recently issued ALJ decision might be the exception to the rule. Earlier this year, an Administrative Law Judge issued a decision in Saint Leo University, Inc., 12-CA-275612 (2023) reinforcing how the National Labor Relations Act (the “Act”) is applied to religious educational institutions, however, the briefing in the case indicated how that application might change in the near future.

Jennifer Abruzzo, the General Counsel for the National Labor Relations Board issued a new memo, 23-02, over her concerns that electronic surveillance by employers is impairing employees’ ability to engage in protected concerted activity and keeping that activity confidential from their employer. GC Abruzzo refers to case law that is, for the most part, dated

On August 29, 2022, the NLRB issued its decision in Tesla, Inc., overruling precedent that allowed employers to enforce facially-neutral dress codes to prohibit wearing non-conforming attire, including union insignia and union logos. Now, employers must allow employees to wear union attire absent a showing of “special circumstances.”

The Labor Law Insider continues the discussion in this podcast episode with Tom Godar, Tom O’Day, Terry Potter and Rufino Gaytán on actions employers should take proactively to deter unions from garnering employee support in the workplace. Shifting social issues in and outside the workplace along with significant public support for labor unions subject all

The Labor Law Insider takes on the recharged union optimism and activity in this podcast episode. Moderator Tom Godar is joined by members of Husch Blackwell’s Labor Law team, Terry Potter, Tom O’Day, and Rufino Gaytán, to discuss the increase in public support for unions, recent changes in organizing activities by unions, and implications for

Earlier this spring, in a 3-1 vote, the Board issued a notice and solicited briefs on whether to reconsider Johnnie’s Poultry doctrine (doctrine), which was established in the 1964 Board decision, Johnnie’s Poultry Co. The doctrine balances the legitimate need of the employer to question employees as part of its investigation of facts and preparation of its defense for the litigation of unfair labor charges in administrative hearings against the employees’ right to engage in protected activity or otherwise exercise their statutory rights under section 7 of the National Labor Relations Act (Act). To minimize the risk of coercive behavior levied against employees during the interviews, the doctrine establishes safeguards that limit the scope and manner of  employers’ interviews with employees. Chair McFerran, the sole Democrat on the Board, opposes reconsideration of the doctrine and dissented from the notice.

On June 1, 2021, in a 5-2 decision, the Missouri Supreme Court sitting en banc affirmed a circuit court decision that voided in its entirety HB 1413, which was enacted by the Missouri legislature in 2018 and sought to change collective bargaining laws for public-sector labor organizations in the state of Missouri. We previously discussed the circuit court’s decision in our December 14, 2020 post, Missouri Supreme Court to Decide Constitutionality of Public Reform Law. While the circuit court decision permanently enjoined the Missouri State Board of Mediation and Missouri Department of Labor and Industrial Relations from implementing and enforcing the law, the law was not void with respect to entities that were not parties to the litigation—until the Missouri Supreme Court released its decision. As of June 1, 2020, HB 1413 is void in its entirety with respect to all entities in Missouri.