What Does Trump’s Win Mean for the NLRB?

Donald Trump has won the presidency for a second time. This means that the leadership of the National Labor Relations Board (NLRB) will change over to Republican hands. There are certain policy areas that Trump seems personally interested in, but labor law does not seem to be one of them. Thus, the direction of the NLRB is likely to be determined not by Trumpian idiosyncrasies, but rather by the usual Republican business interests.

In the next couple of months, look for the following possible actions:

1. General Counsel Jennifer Abruzzo removed on January 20. Historically, NLRB GCs have been replaced after their term was over. But the Biden administration departed from that norm in 2021 and removed GC Peter Robb from office on the first day of Joe Biden’s presidency. At the time, there was some uncertainty about whether that was legal, but the courts subsequently indicated that they will allow it. The Trump administration is likely to follow the same course of action and remove GC Abruzzo on the first day of the Trump presidency.
2. New list of mandatory submissions to Advice. Whoever replaces Abruzzo should issue a memo that contains a new list of mandatory submissions to the Division of Advice. Abruzzo issued hers in August of 2021. GC Robb issued his in December of 2017. This list will indicate what NLRB precedents the new GC will try to change by bringing a test case to a newly composed NLRB. Based on recent history, this list may include bringing cases with the hope of overturning 1) Stericycle and McLaren Macomb, which dealt with rules, like confidentiality and nondisparagement rules, that interfere with protected activity, 2) Lion Elastomers, which dealt with the standard for determining when the way an employee engages in…