Published by the Connecticut Business and Industry Association
For the first time since 2021, the National Labor Relations Board (“NLRB” or “Board”) has a Republican quorum. In December, the U.S. Senate confirmed two Trump nominees for seats on the NLRB creating a two to one Republican majority. This Republican controlled Board is expected to overturn many decisions made during President Biden’s term. But there is a rub.
It is longstanding tradition for the NLRB to not overturn precedent until at least three members vote to do so. The two new Republican Board Members told the Senate, during their confirmation hearings, that they would continue to follow this tradition. If they are true to their word, the Republicans will have to rely on the vote of David Prouty, the lone Democrat on the NLRB, to support overturning Biden-era precedent which is unlikely. Of course, once a third Republican Member is seated, reversal of the Biden decisions will come quickly.
So what cases are most likely to fall? The first one is Cemex Construction Materials (“Cemex”). In Cemex, the NLRB announced a new framework for determining when employers are required to bargain with unions without a representation election. This case provided some major changes. First, if a union requests voluntary recognition by the employer, and the employer refuses, the employer must immediately request an NLRB election. Historically, the union made this request. Second, Cemex changed the standard for when unions can represent employees without winning a secret ballot election. Historically, this only happened if the employer committed gross violations of the National Labor Relations Act after the petition for an election was filed. Under Cemex, the required magnitude of employer violations was greatly reduced. The net effect is that it is much easier for a union to win the right to unionize employees, without an election.
Another decision likely to fall is Amazon.com Services LLC (“Amazon”). In Amazon, the NLRB ruled that mandatory captive audience meetings are a violation of the National Labor Relations Act. Captive audience meetings occur when management requires employees to attend a Company sponsored meeting while being paid and at which management will present its position on unionization. Prior to this decision, captive audience meetings were not only legal but common practice.
The Biden-era Board found captive audience meetings were coercive and created an improper power imbalance between the employees and the employers. The Board made sure to clarify that employers may still hold such meetings, however, they must fall into the limited “safe harbor” exception. To fall under the safe harbor exception, employers must inform employees:
- The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
- Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
- The employer will not keep records of which employees attend, fail to attend or leave the meeting.
Many employers and pro-business politicians believe captive audience meetings allow employers to communicate with employees about their perspectives on unionization beyond what the union has said. Others will argue it creates an opportunity for employers to improperly coerce or threaten employees not to unionize. A Republican Board will surely side with the former perspective.
The Board’s decision in McClaren Macomb is also likely to be targeted by the Republican-led board. In 2023, the Board held that most non-disparagement and confidentiality clauses in severance agreements violate the NLRA and are thus void. The Board argued that by offering severance benefits conditioned on waiving certain rights, the conditions tended to restrain the exercise of an employee’s Section 7 rights under the NLRA even though there is no union activity involved. Following this decision, former General Counsel Abruzzo issued a memorandum urging Regional Directors to enforce this decision aggressively. Abruzzo also mentioned that non-compete clauses, non-solicitation clauses and other similar restrictive covenants should be challenged.
General Counsel memoranda, from the last Administration, have already been rescinded. In February 2025, Acting General Counsel William Cowen issued Memorandum GC 25-05 which rescinded over 30 Biden-era memoranda. The notable policies that were rescinded were the priority enforcement of the prohibition on confidential and non-disparagement clauses in severance agreements; the prohibition on non-compete agreements; heightened scrutiny on employee monitoring; and expanded remedies in unfair labor practices cases.
While the Cemex and Amazon NLRB rulings are two of the major decisions likely to be targeted, until President Trump successfully adds a third Republican to the Board, it is unclear if such precedent will be overturned. However, the newly appointed Republican Board Members could break with tradition. Given the tumultuous times in Washington, seating more Board Members may not be as easy as one might expect and may lead the Republican Members to break with precedent.
Brody and Associates regularly advises its management clients on all labor management issues, including union-related matters, and provides union-free training and strategic guidance. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
