President Trump fired acting chair of the National Labor Relations Board, Democrat Gwynne Wilcox Monday night. Additionally, he removed General Counsel of the Board, Jennifer Abruzzo, who had become a strong advocate for unionization.
The general counsel of the Board has sweeping authority to determine what types of cases are prosecuted by the NLRB, which is responsible for enforcing most private sector employees’ right to unionize or take collective action to improve their working conditions. The terminations signal a purge of the Board, which had been a strong ally for workers and unions through the Biden Administration. The moves clear the way for Trump to install a top NLRB attorney who will likely take a much more pro-business approach to the role and overturn Biden-era precedents that made it easier to unionize and harder to fire protesting workers. It is likely that many current general counsel memos will be rescinded including, but not limited to, the following:
- Memo discussing the breadth of consequential damages that regional offices have sought and continue to seek.
- Memo instructing regions, “in negotiating settlement agreements, in addition to seeking no less than 100 percent of the backpay and benefits owed, Regions should always make sure to seek compensation for all damages attributable to an unfair labor practice.”
- Memo instructing regions to allege employers “presumptively violated Section 8(a)(1) where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in” Section 7 activity.
- Memo arguing certain “stay-or-pay” provisions are unlawful under the NLRA as part of her initiative declaring certain non-competes and restrictive covenants unlawful.
Additionally, in one of the most significant Board decisions, the Biden-era Board made it easier for unions to circumvent the NLRA’s election procedures and announced a framework for when employers must recognize a union without an election. Under the Cemex decision, if the employer commits an unfair labor practice that would require the election to be set aside, the Board will dismiss the petition without an election and order the employer to recognize and bargain with the union. Trumps new general counsel will likely stop pursuing cases under this new standard and overturn the Cemex decision.
Further, the new Trump Board will likely return to the more consistent, business friendly standard for work rules and handbook policies which classified company rules into three categories:
- Rules that are lawful to maintain under the NLRA.
- Rules that warrant individualized scrutiny; and
- Rules that are unlawful and the adverse impact on the NLRA rights are not outweighed by justifications associated with the rule.
We also expect that a Trump Board will return to the standard that severance agreements, by themselves, are lawful which is a departure from the Biden Board’s restrictions on certain confidentiality and non-disparagement clauses in severance agreements. A Trump Board will also likely return to its prior test for determining if an individual is an independent contractor which will focus on the arrangement between the business and the individual.
While many other changes are likely with a new Trump pro-business Board, we believe these are the most immediate changes to come. If you have questions regarding these updates, please contact Dani Smid or your BrownWinick attorney.
