Hunton Employment & Labor Perspectives

Under President Biden, the National Labor Relations Board (“Board”) has been very active, making a significant number of changes that benefit unions and other labor organizations.  But then President-Elect Donald Trump won the 2024 Presidential election, along with Republican majorities in both the House and the Senate.  This is expected to have significant repercussions for employers with respect to how the National Labor Relations Act (“Act”) will be applied to them. 

To start with, it is possible President Trump will follow President Biden’s lead and fire the Board’s General Counsel Jennifer Abruzzo, replacing her with a new General Counsel who will begin taking steps to undo much of what the Board has done under the Biden Administration.  Additionally, it is also possible that President Trump will be able to convert the Democratic-majority Board into a Republican-majority, which would then potentially be able to cement changes undoing some of what the Biden Board accomplished.

The following are some of the recent changes made by the Biden Board which employers should keep an eye on during the second Trump Administration:

• The Cemex Decision – the Board issued its well-discussed Cemex decision in August 2023 in which it reversed longstanding precedent and placed the burden on employers rather than unions to file representation petitions, as well as lowering the standard for the Board to issue a bargaining order;
• Consequential Damages – the Board has been seeking to require employers to pay employees back for consequential damages beyond the traditional backpay remedy, such as mortgage payments and credit card bills;
• Mandatory Employee Meetings – the Board reversed nearly 75 years of precedent and banned employers from conducting mandatory meetings with their employees on the subject of unionization;
• Micro Units – the Board issued a decision in 2022 which restored a union’s ability to tactically establish a bargaining unit consisting of a small subsection of an employer’s employees to get one “foot in the door” before extending their efforts to the rest of the workforce; and
• Severance Agreements with Confidentiality Provisions – the Board banned employers from offering employees severance agreements that contain standard confidentiality clause provisions.

Close attention should be paid first to whether the Senate reconfirms the current Chairman of the Board, Lauren McFerran, prior to the 118^th congress ending. If it does so, it would cement a Democratic majority until 2026.  If Chairman McFerran is not reconfirmed that would open the door for President Trump to put in place a Republican majority.  The next event to watch for is to see what happens with the General Counsel role shortly after President Trump’s inauguration on January 20, 2025, including whether General Counsel Abruzzo is fired or resigns. 

Employers should keep an eye on whether there is a new General Counsel and Republican Board majority and stay in touch with their counsel to understand how exactly any potential resulting changes affect their interests.