In a major blow to organized labor, the Senate voted on November 10, 2024, against the confirmation of NLRB Chair Lauren McFerran to another term, thus keeping McFerran from continuing the Democratic majority at the National Labor Relations Board (NLRB or Board) until at least 2026. The decisive votes were cast by two outgoing ex-Democrats, Sens. Joe Manchin and Kyrsten Sinema, who both appeared for the Senate vote late in the process to reject confirmation. Sinema was one of only three Democrats who declined to sponsor the Pro Act, and Manchin had voted against President Biden’s renomination of another Democrat to the Board last year. Both Manchin and Sinema had departed the Democratic Party to become independent, and both are leaving office in January.
The five-member NLRB currently has one open seat, which means President-Elect Trump will get to make two appointments next year, allowing the future NLRB to have a 3-2 Republican-appointed majority.
Which Biden-Era Pro-union Rulings Will Be Overruled First?
Flipping the Board majority from Democratic to Republican control together with a newly-appointed General Counsel will likely cause the new NLRB to move quickly to overturn the most controversial rulings under the prior administration. Chairman McFerran had called the NLRB ruling in Cemex Construction Materials to be the most significant ruling from her two terms with the Board, a case which caused the Board to invoke a “card-check” process ordering union recognition where the employer had committed an unfair labor practice, disregarding a secret ballot election. Another ruling highly likely to be overturned is that of prohibiting “mandatory captive audience” meetings in which employees are given the company’s views on union representation, emanating from the Amazon ruling in November. The effect of this ruling was to prohibit employers’ most commonly used tactic of persuading employees not to unionize, a recognized right of employers for over 75 years. Also in November, the Board issued a controversial ruling in a case against Starbucks, casting doubt on the legality of employer statements to employees on the impact that unionization would have on the relationship between the individual employees and their employer. The statement in question was that: “If you want to maintain a direct relationship with leadership, you’ll check-off no.”
This writer heard a presentation by the sole current Board Republican member, Member Kaplan, in December, listing the many Board precedents set during the Biden Administration, in which he dissented. The implication was that he was awaiting an opportunity to have his dissents become the majority at the new Board. Member Kaplan lamented during his presentation that it was practically impossible for an employer to draft a legally-compliant employee handbook based on the Biden Board’s rulings.
With a new Acting General Counsel at the NLRB, pro-union enforcement policies can be changed very quickly, even absent rulings from the full Board. The new General Counsel has the power to push for changes to labor law precedents, and to decide which cases to pursue in NLRB complaints against employers.
This article is part of our January 2025 Newsletter.
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