05-07-2025
The object of the game of Tug of War is to get all players from both teams on the same side of the line using force. The strongest team will pull the other side across the line for the win. Successfully navigating the changes to labor relations and determining the impacts on your organization may have you feeling like you’re playing a perpetual game of Tug of War, or at least a game every four years – with a new administration in Washington D.C. – as we anxiously wait to see how the winning team will influence labor relations.
A new administration can significantly impact labor relations, resulting in changes to policy, legislation, and enforcement, favoring either employers or unions. The change from the Biden administration to the Trump administration is no exception. To effectively traverse changes in labor relations, employers must stay informed and proactively assess potential impacts to their organizations. This article highlights the likely impacts of the new administration and offers suggestions on how employers may want to respond.
Changes in the National Labor Relations Board Composition – Do we have a quorum?
At the time President Trump took office, there were two open seats on the five-member National Labor Relations Board (NLRB or Board). At the top of President Trump’s agenda were terminating Board General Counsel Jennifer Abruzzo, naming Marvin E. Kaplan Chairman, and removing Board Member Gwynne Wilcox, whose term was not set to expire until 2026. These changes left the Board with two members, Kaplan – a Republican, and David Prouty – a Democrat; and without a quorum.
The removal of Wilcox kicked off a legal battle regarding the constitutionality of the National Labor Relations Act (NLRA) removal protections. If you’ve been following the battle, you may feel like you have whiplash. Since the initial removal on January 28, here is what has transpired:
- March 6: The DC District Court ruled termination was illegal and reinstated Wilcox.
- March 28: A three-member panel of the DC Circuit Court removed Wilcox again.
- April 7: The entire DC Circuit Court vacated the March 28 order and reinstated Wilcox again.
- April 9: Chief Justice Roberts of the U.S. Supreme Court issued an administrative stay against the reinstatement pending further review by the full Court.
The administrative stay allows the removal to stand while the battle continues. So, as of now, we do not have a quorum.
Employers should note the lack of a quorum does not mean that the Board shuts down. Not all Board functions require the participation of the members, and other functions are automatically delegated when there is not a quorum. Even with no quorum, employers should expect to see unfair labor practice (ULP) charges and representation petitions continue as usual since these are handled by the regional offices. Matters that are automatically delegated to an administrative law judge (ALJ) include certain motions and requests. Delegation allows cases to be fully processed, even though a final decision may be delayed until there is once again a quorum. Finally, appeals to an ALJ decision and certain requests for review can only be reviewed by the Board so these final resolutions may be delayed. When there is no quorum, employers may want to consider the pros and cons of prolonging a case with an appeal or request for review to the Board.
As soon as President Trump appoints and the Senate confirms the new NLRB members, the Board will likely shift to a Republican majority, begin to reverse Biden-era NLRB decisions, and set forth new pro-employer precedent. While the timeline for appointments and the subsequent confirmation process could take months, President Trump’s firing of Abruzzo will affect employers immediately as this action ends her authority over the agency and her aggressive pro-union agenda. Until President Trump’s nominee, Crystal Carey, is confirmed as the new NLRB General Counsel, acting NLRB General Counsel William Cowen will likely remain in the position.
Key Decisions Expected to Change
Employers can expect the new administration to focus on overturning or revising several decisions made by the NLRB during the Biden administration, a few of which are discussed in this article.
In November 2024, in Amazon.com Services LLC,[1] the Board overruled the seminal case of Babcock & Wilcox Co.[2] and held that an employer violates the NLRA if they require employees to attend a meeting where the employer expresses their views on unionization. These meetings are commonly called “captive audience” meetings. The ability of an employer to meet with employees to share their views on unionization is one of the most powerful tools against labor organizing. For now, employers can hold meetings with employees so long as the employer gives the employee reasonable notice in advance of the meeting that (1) the employer intends to express their views on unionization at the meeting and attendance is voluntary, (2) employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting, and (3) the employer will not keep records of which employees attend, fail to attend, or leave the meeting. Regardless of the decision in Amazon, best practices include being transparent with employees about the purpose of the meeting, expressly stating attendance is not mandatory, and confirming that no attendance record will be taken. The reality is that if you must make attendance mandatory to get employees to attend a meeting, you’re probably already at risk of having a unionized workforce.
Another decision the Board made in November 2024 turned on its head a 40-year standard in Siren Retail Corp. d/b/a/ Starbucks[3]. Prior to Starbucks, employers were permitted to tell employees that unionization would eliminate employees’ abilities to address workplace issues individually with management. This rule was based on the Board’s longstanding view that such employer campaign statements were not unlawful threats or coercion because the employment relationship would change once there was union representation. In addition to that view, the Board developed a position that their role in regulating ordinary speech designed by both employers and unions to persuade voters was limited. Post Starbucks, an employer’s statements must be “grounded in objective fact.”[4] This means general or broad statements that could be interpreted as meaning all engagement between employees and employers will end, or that every workplace issue that must go through the union, may result in an unfair labor practice (ULP) charge.
Finally, the framework for union recognition established in Cemex Construction Materials Pacific, LLC[5], which requires an employer to either recognize the union or promptly (within two weeks) file a petition for election with the potential for bargaining orders if a ULP occurs, is likely to be overturned with a shift back to the standard established in Linden Lumber Division, Sumner & Co.[6] The Linden Lumber standard allowed the employer to refuse to accept evidence of a majority support in favor of a union, and it required the union to file the petition in order for an election to occur, with the potential of an election redo if a ULP occurs. Employers should have a plan ready to respond to union demands including timely filing of the petition for election. Employers should also proactively train on acceptable and unacceptable actions during an organizing attempt to mitigate the likelihood of ULP charges resulting in an order to bargain.
Final Thoughts
With Abruzzo gone and the NLRB likely to shift to a Republican majority – regardless of whether Wilcox remains a member of the Board – revising current decisions may take considerable time, and employers can take the following steps now to strategically play the perpetual game of tug of war:
- Prepare for an organizing attempt before one occurs. Assess your organization’s readiness and how well it would respond if an organizing attempt occurred today.
- Review campaign materials and communications carefully to assess whether the content could be interpreted as threatening and revise accordingly.
- Train management on acceptable and unacceptable actions in response to organizing activity to mitigate the filing of a ULP.