The election of Donald Trump to a second term undoubtedly presages significant changes in the composition of the National Labor Relations Board, and with it a sharp change from the board's prounion agenda over the last few years.

But the timing of this anticipated sea change could either be swift or delayed by nearly two years depending on whether the current Senate confirms two pending nominees to board positions.

The current board has issued a series of decisions that eased union organizing, expanded the scope of protected activity and strengthened remedies against employers in unfair labor practice cases.

These decisions are likely to be overturned after Trump has an opportunity to make at least one appointment to the five-member board.

However, at this juncture, there is no way to know exactly when, or how, these changes will occur, and employers hoping for a quick fix are likely to be disappointed.

Partisan Makeup of the Board

More so than many federal agencies, personnel is policy at the board. Historically, the board's decisions have vacillated with changes in its composition, particularly over the last decade.

The board is composed of five members who are appointed by the president with the advice and consent of the Senate. Members' terms are five years, and by law and tradition, three members are from the president's political party.

Currently, the board has three Democratic members, one Republican member and one vacant seat. The current Democratic majority has been in place since Sept. 22, 2021, when David Prouty was confirmed to fill a vacancy created when Republican William Emanuel's term expired.

The vacant seat has been open since Republican John Ring departed the board in December 2022.

The term of Chairman Lauren McFerran, a Democrat, expires on Dec. 16, 2024. Earlier this year, President Joe Biden nominated McFerran to serve another term, and also nominated Joshua Ditelberg, a management-side labor lawyer, to fill the vacant Republican seat.

Over the summer, the Senate Health, Education, Labor and Pension Committee voted to send these nominees to the full Senate for a confirmation vote. However, the Senate has not yet scheduled a vote, and based on the election results, Democrats will lose control of the Senate in January.

Accordingly, when Trump takes office on Jan. 20, he may have two board vacancies to fill, or zero, depending on whether the Senate confirms McFerran and Ditelberg before the end of the year.

In the former scenario, we can expect Trump to nominate, and the Senate to confirm, two Republicans, which would return control of the board to the Republicans. In the latter scenario, the Democrats would hold a 3-2 majority until August 2026, when Prouty's term expires.

There is speculation that Trump may attempt to fire one or more of the Democratic members of the board if McFerran is confirmed to another term.

Such action almost certainly would violate Section 3(a) of the National Labor Relations Act, which provides: "Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause."

However, the constitutionality of the board itself is being challenged in the federal courts, and in light of recent decisions protecting, if not expanding, the prerogatives of the president, the U.S. Supreme Court may be receptive to an argument that Section 3(a) impermissibly constrains the president's constitutional authority to control the executive branch.

Of course, any such action by Trump, or any president, would provoke a firestorm of controversy and opposition, and moderate Senate Republicans might refuse to confirm a nominee they viewed as tainted. But, to put it mildly, the incoming president is not averse to controversy.

The Board's General Counsel

The president also has the power to appoint the board's general counsel with the advice and consent of the Senate. The board's general counsel is responsible for investigating and litigating unfair labor practice charges through regional offices nationwide and conducting union representation elections.

Although the general counsel does not create precedent or establish rules governing practice under the NLRA, they have a tremendous sway over what cases and issues are presented before the board.

Historically, in situations where control of the White House changed parties, the board's general counsel served out their four-year term before being replaced by the new president.

In 2021, Biden shattered this convention by firing then-general counsel Peter Robb on Inauguration Day. Several federal courts have upheld the legality of Biden's action.

Accordingly, it is widely expected that on his first day in office, President Trump will fire the board's current general counsel Jennifer Abruzzo and deputy general counsel Peter Sung Ohr, and appoint an acting general counsel, pending nomination and confirmation of a new general counsel.

Such action would be greatly welcomed by employers, particularly nonunion employers, that have been adversely affected by Abruzzo's aggressive enforcement of the act and her expansive interpretation of the act's coverage.

A new general counsel can have an immediate impact. First, he or she can issue guidance to NLRB regions on board precedent that they wish to revisit or overturn. This guidance, called a general counsel memorandum, can instruct regions to identify test cases that implicate various board decisions and cull those out for the agency's Division of Advice.

Abruzzo did this early in her term with a memorandum where she identified over 50 types of cases that she wanted to carefully examine for reconsideration.[1]

The effect of this decision was to slow the investigation of those cases while her administration reviewed them for fact patterns useful to overturn established NLRB precedent.

Presumably, a new general counsel appointed by Trump would do the same, declining to immediately prosecute cases or choosing to push those forward that would be an appropriate vehicle for overturning NLRB precedent at odds with the new general counsel's interpretation of the act.

Finally, a new general counsel is likely to rescind Abruzzo's general counsel memoranda unsupported by current board law, such as her:

Pronouncement against noncompetes and stay-or-pay provisions;[2]

Direction to continue seeking injunctive relief through the courts;[3] and

Instruction that settlement agreements and orders contain remedies for consequential damages, so-called apology letters and other initiatives.

Rather than attempt to expand the NLRB footprint beyond the act's traditional jurisdiction — as noted by several recent appellate court decisions — an incoming general counsel would presumably pull back from many of the positions advanced by Abruzzo.

It Ain't Over Till It's Over

Unfortunately for employers, notwithstanding the election results, the current board continues to issue decisions overturning established precedent favorable to employers, and there may be more to come.

For example, on Nov. 8, the board overturned decades of precedent and issued a new, more restrictive standard for evaluating whether employers' statements about how unionization would affect employees' relationship with their employer violate the National Labor Relations Act.

A few days later, in Amazon.com Services LLC, the board voted to ban so-called captive audience speeches, in which employers compel employees to listen to the employer's messaging about unions. And there are more cases from Abruzzo's list in the pipeline, including:

• Ex-Cell-O Corp., regarding whether employers must pay damages to unions for bargaining in bad faith;
• Moore Dry Dock Co., involving restrictions on secondary picketing;
• MV Transportation, involving unilateral changes undertaken pursuant to a contractual management's rights clause; and
• Care One LLC, concerning whether an employer must bargain with a newly certified union over disciplining employees.

Accordingly, employers hoping for a quick turnaround at the board may have to gird themselves for a longer timetable. Indeed, as noted above, from the employers' perspective, things at the board may get worse before they get better.

The pendulum swing that has characterized the board's jurisprudence will come eventually, but not all at once, and certainly not overnight, and perhaps not until late 2026. Employers looking for insight on what comes next should keep a close eye on the Senate over the next six weeks.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] General Counsel Memo 21-04.

[2] General Counsel Memo 25-01.

[3] General Counsel Memo 24-05.

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