Robert F. Millman

Millman is a shareholder, the founder of Littler Mendelson's Los Angeles office and a former chairman of the firm's board of directors. He's been around a long time but he said that even for him, the Covid-19 crisis has given rise to surprising issues as he represents employers in collective bargaining with unions and in cases before the National Labor Relations Board.

"What about Zoom bargaining? I haven't done any so far because my clients and the unions don't want it," he said. "You don't get the body language and you don't get the side meetings were so much gets worked out. But is there a duty to bargain by electronic means? The NRLB has yet to decide this. If you refuse, can that be considered an unfair labor practice? Unions act on behalf of membership, so if union leaders unilaterally refuse to Zoom bargain, is that actionable by membership?"

Since March, Millman said, he's been preoccupied by advising clients trying to navigate a labyrinth of state, county and city rules over pandemic response. "Things change weekly or daily, and it's a real challenge when you are dealing with a national employer."

The overlap between the virus crisis and the rise of protests over racism has also created confusion. "Can an employer prohibit a worker from wearing a Black Lives Matter mask? The California Labor Code prohibits discrimination on the basis of political activity, but this is becoming a very hot issue now. Some states have similar statutes, some have none. But then there are First Amendment considerations. There are legal questions and issues of employee relations." The possible analogous NRLB rules concern the wearing of expressive buttons in the workplace, Millman said. "You can wear one saying 'I Support SEIU,' that's legal. So do we borrow from the button cases regarding masks? The Obama NLRB protected the job of a repairman who arrived at a front door wearing a cap reading 'F-word-my-employer,' but now that's been overruled. But there are no answers yet on masks."

Millman represents school nutrition supplier Gold Star Foods Inc. in negotiations as its drivers were being organized by a Teamsters Union local following the company's acquisition of a wholesale distributorship. "The bargaining unit kept turning down the company's offers and bringing us back to the table," he said. "Then Covid hits, the company's business is suddenly hurting and they're furloughing people. Gold Star makes a smaller offer as a placeholder for a year to see how things develop. But the bargaining unit refused to ratify and the local disclaimed interest and walked away, so it became a non-union facility."

Millman was surprised. "It favored my client in a very quirky way. A wild turn. I've never had this happen in 45 years in this business."

-- John Roemer