How quickly and thoroughly the second Trump administration can bend labor law in a pro-management direction will likely depend on whether the current head of the National Labor Relations Board can win Senate approval for another five-year term.
Chair Lauren McFerran (D) has been awaiting a floor vote since a Senate committee signed off on her nomination in August. If the full Senate—which is controlled by a razor-thin Democratic majority—reconfirms McFerran, then Democratic board members would retain the majority into 2026.
The NLRB is an independent agency not under the White House’s direct control. Members have five-year terms that can overlap presidential administrations so it maintains some measure of autonomy, although agency leadership reflects the policy preferences of the current president. The board largely sets labor law rules through decisions in individual cases, which are prosecuted by the agency’s presidentially appointed general counsel.
Maintaining a Democratic majority would protect the nearly 20 precedent-setting decisions issued so far during the Biden administration. At the top of the NLRB’s accomplishments is its landmark decision to ease union organizing in Cemex Construction Materials LLC, which McFerran called the most significant ruling from her two terms with the board.
But confirming McFerran to a third term could spark the Trump administration to take the unprecedented step of violating the National Labor Relations Act’s removal protections for board members and firing members without cause, labor law observers said.
“What if the president becomes so enraged, and others become so enraged, that they say, ‘Why don’t you let them all go, aside from Marvin [Kaplan, the sole GOP member], and come up with a new slate of nominees, and we’ll take it from there, and if people want to challenge that, let them?’” said Michael Lotito, co-chair of Littler Mendelson PC’s Workplace Policy Institute. “Nobody thinks outside of the box and is willing to take chances more than Donald Trump.”
The possibility of Democratic board members getting the pink slip from the Trump administration is “on the table regardless” of whether it’s necessary to create the space for a Republican board majority, Lotito said.
The prospect of the Trump administration veering from the standard playbook on NLRB members seems possible given the ongoing constitutional challenges to their removal protections, said Celine McNicholas, general counsel and director of policy and governmental affairs at the left-leaning Economic Policy Institute.
Immediate Change Opportunities
Flipping the board majority from Democratic to Republican control is key for more durable changes to labor law. Whether or not the Trump administration needs to shatter norms and violate the law to get there remains to be seen.
But the incoming administration will immediately change the direction of the agency by firing General Counsel Jennifer Abruzzo and her top lieutenant, Peter Sung Ohr, as soon as Inauguration Day, labor law observers said. President
In the meantime, “Abruzzo plans to continue to robustly enforce the National Labor Relations Act and govern labor management relations during the remainder of her term,” NLRB spokesperson Kayla Blado said.
Once the Trump administration fires Abruzzo, it will appoint an acting general counsel from the pool of existing agency officials while a permanent replacement moves through the nomination process, board watchers said.
“It’s not easy to find somebody within the NLRB ranks that the management community will feel comfortable with, from both an operational and philosophical perspective,” said Roger King, senior labor and employment counsel for the employer group HR Policy Association.
William Cowen, a regional director in Los Angeles and former Republican board member during the George W. Bush administration, would be an “excellent choice,” King said.
New Top Attorney
The new general counsel—or even the acting GC—could rescind swaths of Abruzzo’s aggressive, pro-worker enforcement policies with the stroke of a pen. That would likely include her memos that mandatory anti-union “captive audience” meetings are illegal, as are noncompete and stay-or-pay agreements.
The agency’s new top lawyer could also try to unwind major cases with pro-employer settlements, such as the case against the University of Southern California, the NCAA, and the Pac-12 Conference.
The Trump administration’s GC can also change enforcement posture by declining to bring complaints that violate Biden-era precedents, said Marshall Babson, an attorney at Seyfarth Shaw LLP and former NLRB member.
The new general counsel will also push for changes to labor law precedents via cases on administrative law judge decisions that have been appealed to the NLRB, he said.
Thomas Mandler, co-chair of the traditional labor law practice at Akerman LLP, said a Republican-majority board could push to implement positions that are more conservative than the last Trump administration.
“We’ve seen this polarization in the country, to the far right and far left,” he said. “The pendulum has always swung back and forth but it wasn’t until eight years ago that you started to see these wider swings, and I don’t know where that takes us with this administration.”
Wilma Liebman, a former NLRB member, said a conservative board could have varying effects on budding organizing efforts, such as those at
“It could accelerate,” she said of the worker activism. But “it could also be suppressed more if employers become more emboldened to think that they can suppress it, retaliate, or try to end it because there won’t be any real consequences.”
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