Impact of a Second Trump Presidency on Biden-Era NLRB Decisions

This article is part of our 2025 Labor & Employment Roundup. To read the other articles, click below:

Recent and Upcoming Legislation Impacting Employers in 2025
New Risks to Arbitration Agreements with Class Waivers
2024 PAGA Updates

A second Trump presidency is likely to shift the National Labor Relations Board (NLRB) back toward a pro-employer stance, reversing key decisions made under the Biden administration. Employers should closely monitor NLRB actions in the early months of 2025 as these will set the tone for labor law under Trump.

What this means for employers: Employers can expect significant changes in labor law, including potential reversals of pro-union rulings like expanded union recognition and restrictions on employer speech. Employers should stay vigilant during the transition to navigate new regulatory shifts and potential challenges to unionization efforts.

Impact of a Second Trump Presidency on Biden-Era NLRB Decisions

Donald J. Trump will once again assume the office of the presidency of the United States on January 20, 2025.  The last time this occurred, in 2017, the National Labor Relations Board (the “NLRB”) rapidly became much more employer-friendly under his guidance, and it ushered in a four-year era of more management-friendly rulings, to the detriment of unions and those who would unionize.  So, upon Trump’s swearing in as this nation’s 47^th president, should we anticipate a return to the prior pro-business Trump era?  While certainly a more pro-employer NLRB can be anticipated, employers should pay close attention to how the NLRB acts during the onset of a new Trump administration, since those early months will likely set the course for the next four years (or beyond, depending on what happens in the next presidential election cycle).

Machinations of the NLRB

The NLRB is a five-person board established by Congress almost 90 years ago during the New Deal to enforce the then-nascent National Labor Relations Act (“NLRA”).  The NLRA protects the rights of non-management employees to join or form a union and to engage in “actions” meant to address the terms and conditions of employment (referred to as “protected concerted activities”).

The NLRB is served by a General Counsel (“GC”) who issues memoranda (“Memos”) setting forth intended changes to existing law that the GC would like to see the NLRB implement by asking each of the 32 NLRB Regional offices (covering the entirety of the USA) to look for violations with issues and fact patterns that would allow the NLRB to take up those cases and ideally issue decisions to change the law consistent with these Memos.

In an unprecedented move on President Biden’s inauguration day (January 20, 2021), he fired the Trump-appointed GC, Peter Robb, whose four-year term was not set to expire until November 2021. This move allowed Biden’s hand-picked appointee, GC Jennifer Abruzzo, to issue Memos early in Biden’s term with the aim of undoing many of the changes made during the preceding Trump administration.  Her goal, which became NLRB implemented policy, was to greatly expand the rights of employees by making unionization much easier and ramping up the protections afforded to “protected concerted activity.” During these past four years, the NLRB has largely operated in line with its current pro-union, worker friendly agency by issuing new rules (a) limiting the types of policies that can be included in employee handbooks, (b) making it easier for independent contractors to qualify as employees, and (c) forcing employers to unionize even without a union election or despite the fact the employees overwhelmingly voted against unionization.

It is expected that Trump will fire GC Abruzzo on January 20, 2025, just as Biden had fired her predecessor four years prior.  The NLRB has been incredibly active in issuing decisions intended to continue making law out of all the pro-union Memos that have yet to be addressed by the NLRB during the Biden administration.  Employers should thus expect the NLRB to be working in overdrive during the current administration’s final weeks to further this mission.  Will this change once Trump appoints a new GC?  That would be the conventional wisdom, but only time will tell.  The first 6 months of the new GC’s term should be watched closely.

Key Biden-Era NLRB Decisions and Their Possible Fate Under Trump

Valley Hospital Medical Center, Inc. (“Valley Hospital”) — Payment of Union Dues after Expiration of Contract.  In October 2022, the NLRB issued a decision in Valley Hospital requiring employers to continue deducting union dues from employee paychecks even after expiration of a collective bargaining agreement (“CBA”).  This decision resulted in the reversal of a 50-year-old precedent, which had previously been reversed only briefly during the Obama era before being returned to the long-standing precedent by the last Trump administration.  Notably, for more than 50 years, employers were permitted to unilaterally cease dues checkoff after the expiration of a CBA, except where the CBA specifically stated otherwise.  However, the Biden-era NLRB has reversed that rule, and now employers must continue remitting union dues subject to the dues-checkoff arrangements established in their CBA until they reach a successor CBA or valid overall impasse in bargaining.  Practically speaking, unions now have no real incentive to promptly reach agreement on a successor CBA.  However, employers may reasonably expect the incoming Trump administration to reverse this ruling, given that the NLRB under the last Trump administration did just that, and return NLRB precedent back to the 50-year standard.

Cemex Construction Materials Pacific, LLC (“Cemex”) — Union Recognition Mandated, With or Without an Election.  In Cemex, decided late 2023, the NLRB created a new test that requires employers to recognize a new union or promptly file for an election when the union asks for recognition based on a majority of workers showing support.  Cemex eliminates any requirement for unions to file an election petition before an employer may be required to grant union recognition.  Instead, a union can demand recognition based on merely a claim of majority support.

The Cemex case arose as a result of a campaign to organize a bargaining unit of cement truck drivers and driver trainers, who rejected unionization by a narrow margin after a NLRB-administered secret ballot election. As quite often occurs after a union loses a close election, the union alleged that the company engaged in several unfair labor practices (“ULPs”) during the election campaign.  In Cemex, the judge ruled that Cemex committed ULPs by threatening and spying on pro-union employees, restricting the ability of employes to meet with union representatives, and hiring security to “intimidate” employees. The Judge then employed a common remedy in such cases by ordering the parties to conduct another secret ballot election or a “rerun election.”

On appeal, the NLRB made two important changes to long-standing labor law. First, the NLRB ruled that the proper remedy for situations when employers commit ULPs during a union campaign is not a rerun election (despite that being the standard for five decades). Rather, the NLRB ruled that such cases justify an order requiring the employer to recognize and bargain with the union – even if the employees overwhelmingly rejected unionization.  No re-vote or assessment of employee choice, but rather an order having the same effect as if the majority of employees had voted in favor of the union to begin with, regardless of the actual voting outcome.

The second change implemented by the NLRB in the Cemex decision is the ability to force an employer to unionize even without a secret ballot election. The NLRB held that if the union obtained evidence of majority support from the employees (typically in the form of employees signing cards indicating their support for the union), the union could demand recognition from the employer. Once this demand is made, the burden shifts to the employer to demand an election from the applicable Regional Office within 14 days, or the employer would again be forced to recognize and bargain with the union as if the union had won a secret ballot election.  This change is of particular concern, since even in elections where employees ultimately reject the union (and in many cases, by clear margins), the union is almost always successful in obtaining authorization cards from a substantial majority of employees before filing the election petition with the NLRB.  These election results show that employees will agree to sign union authorization cards without giving careful consideration of whether or not unionization will actually benefit them, but then, when presented with evidence from employer representatives, or after doing their own independent research, will vote against the union in a secret ballot election.

Siren Retail Corp d/b/a Starbucks (“Starbucks”) and Amazon.com Services, LLC (“Amazon”) – Restrictions on Management Speech and “Captive” Meetings.

The names “Starbucks” and “Amazon” have become synonymous in recent years for their hard line against mass unionization of its workforce.  In just the last month, the NLRB has used cases involving these large-scale employers to issue two decisions overturning long-standing precedent governing what an employer can say and how it can meet with employees during a union organizing campaign.  

Starbucks.  In Starbucks, the NLRB heard an appeal regarding the types of statements employers can make during a union campaign and found that Starbucks violated Section 8(a)(1) of the NLRA by threatening employees that unionization could result in a potential loss of certain benefits. The NLRB also found Starbuck’s statements to employees that voting in favor of unionization would impede employees’ ability to address issues directly with management to be an implied threat. While it did not find such statements to be a Section 8(a)(1) violation in this particular case, the NLRB did overrule 40-year-old precedent in Tri-Cast, Inc., 274 NLRB 377 (1985), which had previously allowed employers to make broad statements about unionization’s impact on individual dealings with management.

In overturning Tri-Cast, the NLRB adopted a new standard that will be applied prospectively (i.e., to cases that arise after Starbucks) requiring that all statements from employers during a campaign “be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond its control.”  Unless and until Starbucks is overturned, employers are now forced to carefully message their opinions and comments to include only “objective facts” and “demonstrably probable consequences.” This is a very difficult standard for managers and supervisors to meet when they are talking to employees in the midst of a union campaign when uncertainties abound regarding the election outcome itself (i.e., will there even be a union victory?) and, importantly, when there is no union contract and no real guidance for the employer as to what terms and conditions of employment might result from future union negotiations.

Amazon.  In Amazon, the NLRB ruled that employers cannot force employees to attend meetings, under threat of discipline or discharge, during which the employer expresses its views about unionization – i.e., captive audience meetings.  In doing so, it overturned a 1948 decision, Babcock & Wilcox Co. (“Babcock”). Under Babcock, employers were allowed to hold “captive audience meetings” during a union campaign where they could require employees “on the clock” to listen to the employer and its agents voice their opinions on why they opposed unionization.  Such meetings have historically been a valuable tool used by employers to resist union organizing campaigns.  Captive audience meetings are now unlawful under Section 8(a)(1) of the NLRA because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize. Now, employers may only hold voluntary meetings with their employees during which they express their views on unionization and only as long as the employer provides advance notice to its employees of the following: i) that the employer intends to express its views on unionization at a meeting; ii) that attendance is completely voluntary and employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and iii) that no records will be kept of which employees attend, fail to attend, or leave the meeting.

The Amazon and Starbucks decisions overrule decades-old precedent that employers have long relied upon in their efforts to fend-off unionization of their workforce.  Both the Starbucks and Amazon decisions ignore the power of very strong-willed, pro-union employees and union agents who have been proven to antagonize, harass, cajole, and bully their co-workers into agreeing to support unionization, lest they be labelled “traitors” or even worse.   These active union proponents often tell employees that any information which management and management consultants —  many of whom may have previously been union members or worked in union environments – might tell them needs to be ignored and, in certain cases, outwardly scoffed.   Such efforts to convince employees to “declare” their position early on could result in a Cemex request for union recognition without a secret ballot election.  Prohibiting management from expressing its point of view, especially as a counterweight to pro-union propaganda fed to the employees in the lead-up to an election, results in a much less informed group of voting employees.

While it remains uncertain whether and/or for how long these decisions will hold up under the incoming Trump administration, they are the law for now.

What To Look For As Trump Takes Office

On December 14, 2024, the term of the current NLRB chairperson, Lauren McFarren will end, and the five-person NLRB will then have two empty seats. President Biden previously nominated Lauren McFerren (a pro-labor appointee) and Joshua Ditelberg (a pro-employer appointee) for five-year terms. On December 11, 2024, the U.S. Senate rejected McFarren’s nomination for a new term, giving President-elect Donald Trump a chance to cement Republican control of the NLRB soon after taking office. Had the Democrat-controlled Senate approved her nomination, the NLRB would have retained a pro-labor majority until 2026.  With this Senate action, Trump will be able to appoint pro-management members to the vacant seats shortly after he takes office.

Who might he choose?  Consider that President Trump aggressively campaigned for support from union members. Sean O’Brien, the Teamsters President, was a speaker at the Republican National Convention in July.  Exit polls confirm that forty-five percent of union households voted in favor of President Trump in the 2024 election.  Will Trump be loyal to this voting bloc, thereby tempering his efforts to undo the work of Biden’s pro-union NLRB and GC?  Given the influence of Trump’s last administration, most likely not, but employers are well advised to pay very close attention to the NLRB in the first weeks and months of his second presidency.

Questions?  Comments?  Please contact the author: Travis Gemoets

About JMBM’s Labor & Employment Practice
JMBM’s Labor and Employment attorneys counsel businesses and management on workplace issues, helping to establish policies that address problems and reduce job-related lawsuits. We act quickly to resolve claims and aggressively defend our clients in all federal and state courts, before the Department of Labor, the NLRB, and other federal, state and local agencies, as well as in private arbitration forums. We represent employers in collective bargaining negotiations and arbitration.

This update is provided to our clients, business associates and friends for informational purposes only. Legal advice should be based on your specific situation and provided by a qualified attorney.