On the morning after an election that lacked all the drama that Americans have become accustomed to on election night, employers woke up with at least some level of relief knowing that the federal agency that has terrorized employers for the past three and a half years will at least be slowed, if not shelved, over the next four years. Few things are more predictable than the impact a change in the White House has on the National Labor Relations Board (“NLRB” or the “Board”), the federal agency responsible for enforcing the National Labor Relations Act (“NLRA”). Because of the Board’s unique structure, change is inevitable when there is a transition from one party to the other in the White House.

While the election outcome may signal changes ahead, especially regarding the NLRB, the Biden NLRB is continuing its pro-union agenda until a new administration officially takes over. Historically, the Board’s direction shifts significantly with a new party in the White House, leaving employers now to ask: how big will the changes be, and how fast will they happen?

Biden’s pro-union agenda in action

President Biden set the tone early on, declaring his intention to be “the most pro-union president in American history” and swiftly implementing this vision. Within 24 hours of taking office, he replaced the Trump-appointed NLRB General Counsel with Jennifer Abruzzo, who rescinded past policies and outlined an ambitious pro-labor agenda. Under GC Abruzzo, the NLRB has consistently advanced pro-union decisions, although significant legal changes take time, as they often require active unfair labor practice cases to prompt new rulings.

Overruling over 100 years of precedence

In two recent decisions issued in the week since the election, the Biden NLRB overturned two longstanding precedents that previously allowed employers more leeway in responding to union campaigns.

1. Starbucks decision on employer’s statements during a union-organizing campaign.

On November 8, 2024, the NLRB overruled a 40-year precedent in the Starbucks case (Siren Retail Corp). Previously, under the Tri-Cast Inc. standard, employers could explain how unionizing might change the employer-employee relationship, as long as no explicit threat was implied. Now, under the new standard, the NLRB will use the test established in NLRB v. Gissel Packing Co. to scrutinize employer statements more strictly. This test requires employers to base any predictions about the impacts of unionization on objective, external facts. Employers who predict negative outcomes without substantiating them as beyond their control could face unfair labor practice allegations. As a result, employers must be especially careful to ensure their statements are fact-based and objective during union campaigns.

2. Board issues Amazon decision on “captive audience” meetings.

Shortly after the Starbucks decision, the NLRB overturned nearly 80 years of precedent in a ruling involving Amazon. For decades, employers have used “captive audience” meetings during work hours to present their stance on unionization. This practice has been a powerful tool in union campaigns, but the new NLRB decision now categorizes mandatory attendance at such meetings as an unfair labor practice. This shift effectively removes a key tool for employers in union campaigns.

Implications for Employers: What’s Next?

While these new rulings complicate matters for employers facing union activity, more changes are likely in the months before the next administration takes over. The Biden NLRB is expected to continue advancing its pro-union agenda by issuing more rulings that restrict employer responses to unionization.

However, when the new administration arrives, a shift is expected. Following his inauguration, President Trump is almost certainly to replace General Counsel Abruzzo immediately. The new General Counsel will take steps to reverse many of GC Abruzzo’s initiatives. Among other things, the new GC is likely to withdraw guidance expanding the scope of penalties and damages sought by the NLRB in unfair labor practice cases. The new GC will also likely reverse the Memoranda issued by GC Abruzzo on all the following issues:

• Breadth of consequential damages that regional offices should seek in unfair labor practice cases;
• The scope of extraordinary and consequential damages sought by the General Counsel;
• The need for full remedies in settlement agreements;
• Electronic monitory and the use of algorithms; and
• Employer use of non-compete and stay-or-pay provisions.

More significant changes will have to wait until the Republicans take a Board majority. The Board currently has a 2-1 Democratic majority. In June 2024, Biden renominated current Board Chair Lauren McFerran (whose term expires on Dec. 16, 2024) to a third term and nominated Joseph L. Ditelberg to fill the Board’s vacant Republican seat. The Senate, however, has not yet confirmed these nominations. If McFerran is confirmed for a third term, the Board will maintain a Democratic majority until at least August 2026, when Member David Prouty’s term expires. This extended majority could lead to the continuation and expansion of pro-labor policies and decisions. But if the nominees are not confirmed by the Senate before Trump takes office, they will likely be filled by Trump appointees and the Board will return to a Republican majority.

Once the Board becomes a majority Republican, the Board will begin the process of reversing the Biden Board’s decisions in a number of key areas, including:

• Work rules and employer policies: Returning to a more employer-friendly standard for evaluating;
• Confidentiality and non-disparagement in severance agreements; and
• Independent contractor rules.

The new Board will also likely exercise their rule-making authority to rescind the Biden Board’s “quickie election” rules.

Conclusion

For employers, the recent election is a welcome sign of what is to come, but immediate changes at the NLRB will take time. As we await the new administration, employers should prepare for stricter scrutiny and be cautious with union-related messaging and practices to avoid legal pitfalls. Bianchi & Brandt’s attorneys are available to help employers navigate these evolving regulations and remain compliant.