The start of the second Trump administration will trigger a partisan shift at the National Labor Relations Board, where the accomplishments of the past four years will become the targets of the next board majority and top agency lawyer.
Soon after President-elect
Once Trump’s choices are approved by the Senate, the flip-flopping process will begin in earnest.
During the Biden administration, the NLRB handed down about 20 full-board decisions that changed board precedent. Roughly three-quarters of those overturned or modified rulings from the first Trump administration, including precedents for assessing work rules, employee status, severance agreements, and labor law protections for employee misconduct.
The NLRB also created new law with its heavy-weight decisions in Cemex Construction Materials Pacific LLC, which established a novel framework intended to discourage illegal conduct prior to union elections, and Thryv, Inc., which expanded standard board remedies to cover the downstream consequences of unlawful conduct.
In addition, the Biden-era board reached back to reverse much older precedent in two cases, including its November decision involving
“I expect that the Trump board will reverse anything that the Biden board did,” said Ryan Funk, a management side attorney at Faegre Drinker Biddle & Reath LLP. “They may not have time to get to all of it, assuming they also have other initiatives they want to pursue.”
Cross Hairs on Top Accomplishments
There’s nothing new about NLRB flip-flopping—known in labor law circles as policy oscillation—after partisan control of the board changes hand.
The board sets the rules for labor-management relations almost exclusively by interpreting the National Labor Relations Act in individual case decisions. While the NLRB sets precedents like a court, future boards aren’t bound by those decisions—provided they have the votes to rule otherwise.
The partisan nature of the NLRB initially ramped up during the Reagan administration, and intensified again in the George W. Bush administration, according to labor law scholars.
“Since then, it’s been tit for tat,” said Jeffrey Hirsch, a labor law professor at the University of North Carolina and a former NLRB attorney. “The attitude has been: ‘If the other guy isn’t holding back, I won’t either.’ There’s been this constant increase in the willingness to overturn precedents.”
The Biden administration’s more expansive decisions will likely be first on the chopping block when the second Trump administration has its NLRB majority and general counsel in place, labor law observers said.
While many practitioners accept that policy oscillation has long been standard operating procedure at the NLRB, routine instability has drawbacks.
“It is endlessly frustrating to tell clients one thing and then have the board change the rules, especially when there’s retroactive application” of new requirements, said Amy Moor Gaylord, co-chair of the traditional labor law practice at management-side firm Akerman LLP.
Ways to Skin a Cat
Gaylord said she expects the NLRB to address some policy areas through rulemaking rather than case adjudication, which has the potential to produce more durable standards than those that come out of individual case decisions.
During the first Trump administration, the GOP majority turned to the regulatory process for substantive issues more frequently than previous boards. It issued rules on election procedures, three policies related to selecting or rejecting union representation, and the standard for joint employment.
The NLRB during the Biden administration undid those three regulations through its own rulemakings, although a court invalidated its rule for joint employment.
The rule on election procedures may be an early target of the next board majority, but making a persuasive argument to get rid of a measure that’s improved election petition processing during a time of high demand may be difficult, said Lauren McFerran, NLRB chair during the Biden administration.
A new Republican-controlled board could also attempt to strategically use court review to ditch Biden-era precedents without the prospect of the next Democratic majority reviving them, said Funk, the Faegre Drinker attorney.
“If the Supreme Court said Cemex is inconsistent with Gissel, that would remove it from the list of policy issues that will oscillate going forward,” he said. “Even if that strategy backfires and the court upholds it, presumably the agency would have room through adjudication and rulemaking to revert to the pre-Cemex landscape.”
Personnel is Policy
The NLRB’s next approach to labor law depends on who Trump installs. The first Trump administration provides the best clues for what could come next, several labor law observers said.
Trump didn’t break new ground, nominating veteran management-side lawyers Peter Robb, William Emanuel, and John Ring, as well as Kaplan, who previously worked for Republican House committees and the Occupational Safety and Health Review Commission.
But there’s a potential for surprises, said Michael Duff, a labor law professor at Saint Louis University and a former NLRB lawyer.
On the one hand, there appears to be an emerging strand of labor populism in the Republican Party. One example is Missouri Sen. Josh Hawley, who recently issued a substantive “pro-worker framework” for the next Congress.
On the other hand, one of Trump’s top advisors is Elon Musk, whose companies have tangled with the NLRB several times—most notably, in lawsuits that argue elements of the agency violate the US Constitution.
NLRB appointees from one or both of those camps could disrupt the agency’s pattern of predictable policy oscillation, Duff said.
“Existential questions about the entire enterprise of labor law may be nipping at the heels of Republicans and Democrats alike,” he said.
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