Update: On December 11, the lame duck Senate voted down a procedural cloture motion regarding Chair McFerran’s nomination by a 49-50 margin, effectively killing that nomination and opening the way for Trump to appoint a GOP-majority Board immediately upon his inauguration. Interestingly, independent Senators Manchin and Sinema (who typically vote with the Democrats) voted to reject McFerran.
Early in his presidency, Joe Biden promised to be “the most pro-union President leading the most pro-union administration in American history.” To that end, the National Labor Relations Board (NLRB or the Board) under Biden’s watch steered labor law in a direction that favored unions, and it walked back Board precedent established during Donald Trump’s first presidency. Trump has now taken back control of the executive branch. Here’s what employers can expect from the NLRB during Trump’s second term.
General Counsel Abruzzo will be removed promptly
Although the NLRB’s general counsel is removable at the will of the president, new administrations have historically allowed them to finish their four-year term. Biden broke that tradition on the first day of his administration, removing then-General Counsel Peter Robb 10 months before his term ended. Courts upheld Robb’s removal, and we expect Trump to remove General Counsel Jennifer Abruzzo early in his administration.
The Board could have a change in control
If Trump is unable to secure control of the Board, he may remove Board members. Board members serve five-year staggered terms. The current Board has a 2-1 Democratic majority, but it also has an empty Republican seat and a Democratic seat occupied by Chairman Lauren McFerran that expires in December 2024. Although Biden has nominated McFerran for a third term, she has not been confirmed by the Senate. If the Senate confirms McFerran before Trump takes office, it will seal a Democratic majority into 2026.
McFerran’s reappointment could prompt Trump to remove her. Board-member removal would be unprecedented – Board members are only removable for “neglect of duty or malfeasance in office, but for no other cause.” The Supreme Court’s decision in Sec. & Exch. Comm’n v. Jarkesy, 144 S. Ct. 2117 (2024), however, has called this removal restriction into question. If Trump believes that the removal restriction is unconstitutional, he could remove McFerran and return a Republican majority to the Board.
Trump’s general counsel will rescind many of Abruzzo’s memorandums
In her role as general counsel, Abruzzo issued 26 memorandums setting forth novel and aggressive legal theories that drove labor law in an antiemployer direction. For example, Abruzzo set forth her view that noncompete agreements and certain stay-or-pay provisions violate the National Labor Relations Act (NLRA), she instructed regional offices to seek more expansive remedies, and she announced her intention to seek a ban on captive audience meetings (which the Board has now adopted). Trump’s general counsel likely will rescind many of Abruzzo’s memorandums and steer the law to its state during Trump’s first presidency.
The Board will slowly course-correct
General Counsel Abruzzo issued a memorandum early in her tenure setting forth her enforcement strategy and identifying precedent she hoped to challenge. Abruzzo accomplished many of her goals, guiding the NLRB’s enforcement strategy in a union-friendly direction that resulted in the Board overturning many Trump-era precedents. We expect Trump’s general counsel to focus on reversing Abruzzo’s efforts and restoring precedents. Here are a few issues that are ripe for reversal under Trump’s Board.
The speed with which the Board might reverse these and/or other Biden-era precedents will depend on (1) how soon the Board converts to a Republican majority, (2) when a suitable case would make its way to the Board to reverse a particular Biden Board decision, and (3) with respect to changing existing rules, how long it would take to go through the rulemaking process.
Of course, it is difficult to predict with precision what rules and decisions will be changed in the second Trump term. BakerHostetler’s Labor Relations team will continue to monitor these developments. Be on the lookout for client alerts and articles in our blog, The Bargaining Table, and feel free to contact one of the team’s members with any questions or concerns.
