What a Republican Administration Could Mean for the NLRA

With the change to a Republican administration, similar to the past, it is likely that we will see a change in enforcement of the National Labor Relations Act (“NLRA”). 

First, the agenda of the National Labor Relations Board (“NLRB”) is set by its General Counsel. To the extent the agenda of the current General Counsel has not been adopted in cases decided by the NLRB, it is likely that on the first day of President Trump’s presidency the General Counsel will be replaced by a new interim appointee (which is what President Biden did on his first day and which was ultimately upheld).

If that is the case, we can expect early in the administration that the NLRB’s Counsel:

• will no longer take issue with non-compete and non-solicitation provisions (or would only do so on a much more limited basis);
• will not be interested in limiting employer’s rights to engage in captive audience speeches;
• will not be interested in imposing broad penalties for violations of the NLRA; and
• will no longer be interested in making it easier to establish joint employer status or broadening the rights of independent contractors under the NLRA.

We should also expect that a new General Counsel will affirmatively take steps to help employers, including:

• trying to adopt new rules regarding elections that are more favorable to employers;
• pushing cases limiting the types of conduct that is protected under the NLRA;
• making it easier for unions to be decertified; and
• limiting conduct that is considered bad faith bargaining.

We can also expect that the General Counsel will attempt to overturn much of the precedent set by the NLRB during the Biden administration. Likely targets would include:

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023) (currently on appeal in the Ninth Circuit, with oral arguments having been heard on October 21, 2024), which made it much easier for Unions to organize
• Thryv, Inc., 372 NLRB No. 22 (2022) (currently facing challenges in both the Third and Sixth Circuits), which broadened the penalties that can be issued by the NLRB
• McLaren Macomb, 372 NLRB No. 58 (2023), enf’d by Nat. Lab. Rel. Bd. v. McLaren Macomb, 2024 WL 4240545 (6th Cir. Sept. 19, 2024) (enforcing order but declining to decide whether Board correctly interpreted the NLRA), which took issue with many standard provisions in employment agreements (e.g. non-solicitation and non-compete clauses); and
• American Steel Construction, Inc., 372 NLRB No. 23 (2022), which made it easier to organize by allowing unions to represent “micro units.”

However, because such cases can first be overturned with a seating of a Republic majority on the NLRB, and NLRB litigation over these issues will take time to ripen into a dispute that is appealed to the Board, changes in these decisions are likely to take a considerable period of time.

We may also see legislative efforts and funding decisions that further impact the NLRA and NLRB. Further, employers are already arguing in several courts that the NLRB’s structure violates the law. In those lawsuits the NLRB is defending itself. With a Republican-controlled NLRB, it is possible that the NLRB itself will agree with employer’s positions – upending how it determines violations of the NLRA.

In short, we will likely see changes regarding enforcement and interpretation of the NLRA. However, it is not exactly clear what those changes will be and some of those changes may be more immediate than others.

If you have any questions regarding the information of this update, please contact your Quarles attorney or:

• Judith Williams-Killackey: (414) 277-5439 / judi.williams@quarles.com
• Harrison Rayment: (414) 277-5105 / harrison.rayment@quarles.com
• Rod Betts: 619-243-1560 / rod.betts@quarles.com