Decisions and policies under the National Labor Relations Board ("NLRB" or "Board") have become increasingly politicized the last few decades resulting in significant swings between pro-employer and pro-union/employee positions depending on which party holds the Presidency or controls Congress. (The President has discretion in the hiring or firing of the NLRB General Counsel; while appointment of board members to the NLRB for five-year terms are made by the President and confirmed by the Senate). The last four years have seen a decided, and extensive, pro-union/employee shift in labor law in a number of General Counsel initiatives and Board decisions. Under the Trump Administration, and Republican Congress, it is expected the Board and a new NLRB General Counsel will, over time, roll back and overturn many of the NLRB's pro-unionization rules and decisions under the Biden Administration. Below we discuss how, and when, the Trump Administration will seek to change the NLRB, and discuss the consequential NLRB rules and decisions likely to be reversed over the next four years.
NLRB General Counsel Replacement
It is expected President-elect Trump will terminate the current General Counsel Jennifer Abruzzo ("GC Abruzzo") soon after the inauguration. President Trump will likely quickly nominate a pro-employer successor who should easily pass confirmation with the future Republican controlled Senate. The NLRB General Counsel is independent from the Board and plays a significant role in directing the investigation and prosecution of unfair labor practice cases and providing general supervision and direction of the NLRB field offices (also known as Regions) in the processing of cases. It is expected the new General Counsel should immediately rescind the following initiatives and GC Guidance Memos issued by GC Abruzzo:
GC Abruzzo Initiatives and Memos Likely to Be Rescinded:
- Employee Surveillance: GC Memo 23-02 recommended that the Board find an employer's use of surveillance practices that interferes with or prevents a reasonable employee from engaging in protected activity creates a rebuttable presumption that the employer has violated Section 8(a)(1), unless the employer can demonstrate that the practices at issue are narrowly tailored to address a legitimate business need.
- Expanded Remedies: GC Memos 21-06, 21-07 and 24-04 instructed Regions to seek "the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices" and, in cases where a discharged employee waived reinstatement to his or her former position, the GC Memos instructed the Regions to include front pay as part of any settlement.
- Section 10(j) Injunctive Relief: GC Memo 24-05, directed all Regional Offices to continue "aggressively seek[ing] Section 10(j) injunctions," despite the Supreme Court's recent decision in Starbucks Corp. v. McKinney, No. 23–367 (2024) that rejected using a reduced burden for the Board to obtain injunctive relief in federal district court.
- Confidentiality and Non-Disparagement Provisions: GC Memo 23-05 advised Regional Directors to advance enforcement of McLaren Macomb, 372 NLRB No. 58 (2023), where the Board found that broad confidentiality and non-disparagement clauses in severance agreements violate Section 8(a)(1).
- Organizing in Higher Education: GC Memos 24-06 and 21-08 recommend that the Board take an expansionary approach in finding that both student-athletes and student-workers at institutions of higher education to be employees under the NLRA. President-elect Trump has not publicly stated whether his administration will seek to change the "employee" status of college athletes, graduate students and others who seek to unionize, but the administration will eventually be forced to weigh in given the many representation petitions and unfair labor practice charges working their way through the NLRB process.
Potential Changes in NLRB Members
Despite the General Counsel's ability to set the agenda, the National Labor Relations Board itself effectuates the rules and decisions. The Board is intended to consist of five quasi-judicial members split between the political parties. Traditionally, the Board maintains a political balance, with three members from the President's party and two from the opposing party. As of December 16, 2024, there will be only three sitting members, two Democrat appointments and one Republican.
In June 2024, Biden renominated current Board Chair Lauren McFerran to a third term and nominated Joseph L. Ditelberg to fill the Board's vacant Republican seat. In a last-ditch attempt to get Board Chair McFerran reappointed, a limited vote was held on December 11th, prior to the lame duck session. The Senate voted 49-50, denying McFerran's reappointment. President-elect Trump will be able to flip the Board's majority soon after his inauguration when Republicans take control of the Senate. Depending on how quickly he nominates (and the Senate confirms) two replacement Republican nominees, the below decisions and rules are fair game for reversal.
NLRB Legal Issues to Watch the Next 4 Years
We anticipate the below listed legal issues will be reviewed by both the new General Counsel and eventually the Board.
- Quickie Elections. On August 24, 2023, the Board issue a Final Rule modifying certain procedures applicable to processing representation cases. The rules reestablished tight timelines on pre- and post-election hearing dates and elections, and shortened the amount of time employers have to respond to election petitions. The Final Rule also limited pre-election litigation to specific issues and, when there is a hearing, it will happen more quickly, post-hearing briefing will be limited, a decision will be issued, and the election will be held as quickly as possible after a petition is filed.
- Voluntary Recognition and Election Conduct under Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (Aug. 25, 2023). As one of, if not the, most consequential decisions in the last 40 years, the Board upended representation case procedures in the Cemex decision. The Board first held that if a majority of employees in an appropriate bargaining unit have designated a union as their representative, through authorization cards, but the employer refused the union's request for recognition, the Board will issue a bargaining order, unless the employer files a timely petition for a Board election. This will likely be referred to as a Cemex Bargaining Order. Second, if the employer files a timely election petition but commits a meaningful unfair labor practice(s) during the lead-up to the election, the Board will issue a bargaining order. The Cemex decision is currently being appealed in the Ninth Circuit.
- Captive Audience Meetings. In Amazon Services, LLC, 373 NLRB No. 136 (Nov. 13, 2024), the Board ruled that an employer violates the NLRA by requiring employees under threat of discipline or discharge to attend meetings in which the employer expresses its views on unionization. This decision overturned a more than 70-year precedent, where employers were previously allowed to hold mandatory meetings during paid work hours ("captive audience" meetings) to express their views on labor organizations.
- Employer Statements During Union Campaign. In Siren Retail Corp d/b/a Starbucks, 373 NLRB No. 135 (Nov. 8, 2024), the Board overturned an almost 40-year precedent, in ruling that employer statements about the effects of unionization on the relationship between workers and management will be deemed illegal unless they are "carefully phrased," based on objective facts, and relate to consequences out of an employer's control.
- Independent Contractor Test. In The Atlanta Opera, Inc., 372 NLRB No. 95 (Jun. 13, 2023) decision, the Board returned to a less stringent standard utilizing traditional common-law factors making it easier to establish employee status (and thus the right to bargain collectively). The Trump Administration will likely return to a previous standard that analyzes whether the arrangement between the "employer" and the alleged employee provided an "entrepreneurial opportunity" to the individual.
- Workplace Rules and Handbook Policies. In Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), the Board returned to a case-by-case review in determining employer policies to be presumptively unlawful if the rule could – rather than would – be interpreted to limit employee rights.
- Job Requirements and Working Conditions. In Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (Dec. 10, 2024), the Board returned to its previous longstanding "clear and unmistakable waiver" standard, which only allows unilateral changes when a union specifically waived its right to bargain over changes to job requirements and working conditions.
Venable's Labor and Employment Group will continue to monitor any developments by the Trump Administration and the NLRB on these issues. If you have specific questions about the above GC Memos, rules and decisions or any forthcoming NLRB decision, please contact the authors of this alert.