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Home | BakerHostetler

The Bargaining Table

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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.

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General Counsel Abruzzo will be removed promptly

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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.

Workplace Rules: Trump’s NLRB will likely restore precedent for assessing whether neutral employment rules violate the NLRA. In Stericycle, Biden’s NLRB rejected a Trump-era test for assessing neutral employment rules, holding them unlawful if they “could” be interpreted to limit an employee’s Section 7 rights, when viewed from the perspective of an economically dependent employee, unless the rule was narrowly tailored to advance a legitimate and substantial business interest. We expect Trump’s NLRB to reverse this employee-friendly standard and restore the Trump-era test, which used a stricter reasonable person standard and paid more respect to an employer’s legitimate justifications.

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Confidentiality and Nondisparagement Provisions: In McLaren Macomb, Biden’s NLRB held that an employer violates the NLRA merely by proffering a severance agreement with a confidentiality or nondisparagement provision, finding that such provisions would chill an employee’s ability to exercise his or her Section 7 rights. That decision reversed Trump-era precedent permitting broad confidentiality and nondisparagement provisions. Trump’s NLRB will likely return to the pre-McLaren Macomb standard.

Solo Protests and Concerted Activity: In 2019, Trump’s NLRB held that solo protests are only protected “concerted activity” when accompanied by evidence group activities – e.g., prior or contemporaneous discussion of the concern between or among members of the workforce. Biden’s NLRB rejected that holding in Miller Plastic Products, Inc., reasoning that solo protests are protected if they could be viewed as intending to induce mass actions based on elements from a wide range of possible evidence. Trump’s NLRB will likely restore the Trump-era precedent, which took a narrower view of concerted activity.

Derogatory Language: Trump’s NLRB will likely reverse Lion Elastomers LLC II, which made it more difficult to discipline employees for abusive behavior, by requiring a series of tests that use context- or setting-specific factors. Biden’s NLRB rejected Trump-era precedent that focused on the employer’s motive for the adverse action and asked whether the employer would have reprimanded the employee absent the alleged union activity. Trump’s NLRB will likely restore that precedent.

Union Elections: For decades, when employees requested voluntary union recognition, employers had the choice to either (1) voluntarily recognize the union based on employee support or (2) require the union to seek a secret-ballot election overseen by the NLRB. In Cemex, the NLRB rejected this precedent, holding that employers faced with a request for voluntary recognition by a union with alleged support of over 50 percent of the proposed bargaining unit must recognize and negotiate with the union or submit a representation-management petition to the NLRB that tests the union’s majority support or challenges the appropriateness of the unit. Moreover, the Board suggested that even minor unfair labor practices permit the NLRB to bypass a vote altogether and order the company to begin negotiations. Trump’s NLRB will likely overrule Cemex and restore the former standard.

“Quickie” Election Rule: In 2014, a Democrat-led NLRB implemented rules that hastened the union-election process. Trump’s NLRB issued a rule that relaxed the timeline, but in 2023, Biden’s NLRB reimplemented many aspects of the 2014 rule. Under the new administration, the NLRB will likely return to the 2019 Trump-era rules.

Captive Audience Rule: For decades, the NLRB has permitted employers to hold mandatory meetings during union organizing campaigns to express the employer’s view on unionization. On November 13, 2024, the NLRB overturned that long-standing precedent and held that captive audience meetings violate the NLRA. Trump’s NLRB will likely reject this controversial decision and restore the status quo, permitting captive audience meetings.

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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.

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