When President Donald J. Trump took the oath of office on January 20, two seats on the National Labor Relations Board (NLRB) were open. As a result, President Trump can immediately reshape the NLRB and alter its political leanings by appointing two Republican board members.
Back in December, Senate Democrats had the opportunity to confirm the re-appointment of then-NLRB Chairman Lauren McFerran, a Democrat, whose term had expired December 16. President Biden’s nomination and attempted re-appointment of McFerran failed on a procedural vote. Following that vote, a scheduled vote on another of President Biden’s NLRB nominations, a Republican nominee, was withdrawn.
The failure by Senate Democrats to confirm McFerran is especially significant given that her confirmation would have established a Democrat majority NLRB into late 2026, the next time a scheduled opening would have occurred, stalling President Trump’s labor agenda for at least half of his term.
Now, however, the NLRB has two open seats, allowing President Trump to nominate two persons who (most likely) will be Republicans. As soon as President Trump appoints and the Senate confirms the new NLRB members, the NLRB will shift to a Republican majority and begin to reverse Biden-era NLRB decisions and set forth new pro-employer precedent.
President Trump has not yet appointed anyone to fill the open positions. On his first day in office, he named current NLRB lone Republican member Marvin Kaplan as Chairman. While this role is largely in title only, it could signal how President Trump expects the NLRB to govern. During the Biden presidency, Kaplan wrote many lengthy and aggressive dissents to the decisions of Biden’s NLRB.
In continuing his plan of “shock and awe,” one week into his term President Trump fired board member Gwynne Wilcox, one of the two remaining Democrat members. This unprecedented action has been challenged by Wilcox in federal court where Wilcox has sued President Trump arguing that her termination violated the National Labor Relations Act’s requirement that the president can fire NLRB members only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Wilcox is seeking a court order to reinstate her as a member of the NLRB. Unless a court reinstates Wilcox and for the time being, Wilcox’s removal leaves the five-member board with only two members, meaning that it no longer has the requisite three-member quorum and thus cannot decide cases. This action effectively prevented the Democrat members from being able to issue decisions that would likely have been contrary to those desired by President Trump prior to Senate confirmation of his forthcoming appointments.
It is likely that once the Republicans become the majority, the NLRB will begin reversing various pro-union decisions the Biden NLRB delivered during the last four years, especially those decisions in which the Republican members issued lengthy and robust dissents. Of the 20 full board decisions issued by the Biden NLRB, approximately three-fourths modified or overturned decisions from the first Trump NLRB alone, in addition to other historical precedents. Notable decisions we expect Trump’s NLRB to modify or overturn include:
- Amazon.com Services LLC – prohibiting mandatory “captive-audience” meetings.
- Thryv Inc. – authorizing the NLRB to seek consequential damages.
- Cemex Construction Materials Pacific LLC – instituting a new standard for bargaining orders, making it easier for the NLRB to require employers to bargain with unions.
- Stericycle Inc. – creating a presumption that work rules inherently suppress workers’ rights and is only rebuttable if an employer can show that it is necessary to advance legitimate interests that cannot be achieved by a narrower policy.
- McLaren Macomb – ruling that a severance agreement violates the National Labor Relations Act (NLRA) if its terms tend to interfere with workers’ organizing rights.
- Siren Retail Corp. d/b/a Starbucks – limiting employers’ statements to workers about certain potential consequences of unionization.
While the Senate awaits President Trump’s appointments and the subsequent confirmation process, which could take weeks or months, the most immediate effect will be seen now that President Trump has fired NLRB General Counsel Jennifer Abruzzo. Although her replacement has not yet been named, this action ends her authority over the agency and terminates her aggressive pro-union agenda.
President Trump’s general counsel could immediately have an impact by rescinding Memoranda issued by Abruzzo and by issuing new Memoranda that announce revised general counsel positions and correspondingly change enforcement directives issued to the NLRB’s regional directors, who are part of the enforcement process. These changes are expected to be a dramatic shift from Abruzzo’s positions and much more employer friendly. In fact, on February 14, Acting General Counsel William Cowen rescinded nearly all of Abruzzo’s substantive prosecutorial guidance memoranda. In addition to aggressively seeking to have the above-mentioned cases overturned or modified, we expect that the new general counsel will also focus on:
- Reducing or eliminating the practice of seeking consequential damages, a practice that has been held unlawful by some federal courts.
- Changing the current practice in settlement negotiations directing regional directors to refuse any settlement that results in less than full relief for impacted employees – in other words, changing the practice that some have criticized as effectively requiring employers to fully capitulate in settlement negotiations by requiring they agree to pay 100% of the backpay and benefits owed in cases that are settled and, in cases where reinstatement is waived, requiring regional directors to require front pay as part of any settlement.
- Changing the current practice on the use of video surveillance that assumes such practices are in violation unless the employer can demonstrate that the practices at issue are narrowly tailored to address a legitimate business need.
- Changing the NLRB’s current position on the unlawfulness of certain “stay-or-pay” provisions in employment agreements.
Lastly, while the new NLRB gets traction and the new general counsel begins shifting initiatives, there are multiple challenges to differing aspects of the NLRB and its authority pending in federal courts around the country, which could further limit the power of the NLRB. They include:
- Challenging the Cemex decision and the NLRB’s authority to issue bargaining orders.
- Challenging the NLRB’s 10(j) power (the U.S. Supreme Court recently imposed a more stringent standard for NLRB-sought 10(j) injunctions).
- Loper Bright deference – courts are no longer required to defer to the NLRB’s interpretation of the NLRA but rather are empowered to exercise independent judgment in deciding whether an agency acted within its statutory authority and to review on their own the NLRB’s interpretation of non-NLRA legal conclusions.
- Challenging the NLRB’s power to seek consequential remedies through its own body instead of before a jury.
- Challenging the structure of the NLRB and its Administrative Law Judges (ALJs) with respect to the president’s ability (or lack thereof) to fire NLRB board members and ALJs.
The Bottom Line
In conclusion, whether it be through a newly composed NLRB, the new general counsel or the federal court system, these changes are expected to create a significant shift in labor law across the nation during the second Trump presidency. Ultimately, it is expected that this shift will likely benefit employers and give what employers consider greater freedom to operate their businesses without having to worry that an overly aggressive NLRB will come knocking on their door.
Tim Garrett is a member at Bass, Berry & Sims in Nashville, Tennessee. He helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. Tim can be reached at tgarrett@bassberry.com.
Hunter Yoches is an associate at Bass, Berry & Sims in Nashville, Tennessee. He represents management in all aspects of labor and employment law and related litigation, regularly defending employers against various claims and counseling clients on a wide range of day-to-day employment matters. Hunter can be reached at hunter.yoches@bassberry.com.
The post <strong>Big Changes Are Coming to the NLRB with President Trump’s Second Term</strong> appeared first on HR Daily Advisor.