With two Board member vacancies open for incoming President Trump to fill with Republicans, the National Labor Relations Board is expected to shift to a 3 – 2 Republican majority. The shift in Board composition will likely mean a return to more employer-friendly standards and rules. Yet, conditions for labor organizing and activism still seem strong and even likely to grow. Here’s what we know about the status quo and likely immediate and mid-range shifts.
Takeaways
- Immediate changes at the NLRB are expected, including the appointment of a new GC.
- Many current GC memos will likely be rescinded.
- The expected NLRB Republican majority is anticipated to return to standards providing more consistency and predictability for employers.
- Organizing activity is anticipated to continue rising.
- Changes are expected in how unions are recognized, making it harder to unionize without an election.
Immediate Changes to Expect
Similar to President Biden’s termination of NLRB General Counsel Peter Robb on Inauguration Day 2021, incoming President Trump is also expected to terminate current GC Jennifer Abruzzo and appoint a new GC soon after taking office. A new GC will likely rescind current GC memoranda and decline to prosecute certain issues, including those related to:
- Consequential damages.
- Remedies in settlement agreements.
- Electronic monitoring and algorithmic management of employees.
- “Stay-or-pay” in employment agreements.
Later Changes to Expect
A Republican NLRB will likely return to employer-friendly policies and decisions, including those related to:
- Ordering union recognition without an election.
- Work rules and handbook policy enforcement standards.
- Independent contractor test.
- “Quickie election” rules and other procedural changes.
- Prohibitions on “captive audience” meetings.
- Stay-on provisions and non-competes.
What Likely Will Not Change
The following items are likely to remain unchanged despite a change in presidential administration:
- Weingarten rights.
- Obligation to bargain over discipline post-certification but before CBA negotiation.
- Joint-employer standard.
- Agency funding.
- Organizing and strike activity: Political divisions, along with incoming President Trump’s support for organized labor, suggest the likelihood of a continued uptick in organizing and strike activity.
The Year Ahead 2025: Political Pendulum Swings and the “Labor Renaissance”
Hosts: Laura A. Pierson-Scheinberg, Principal, Labor Relations Co-Leader and Retail Industry Co-Leader, and Richard F. Vitarelli, Principal and Labor Relations Co-Leader
“Most of our clients and most employers out there understand that there's going to be a pendulum swing. The key thing for us right now is to make decisions that consider where the law is and where it might go, understanding that we have four-year terms in the presidential administrations and things always change.”
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