Unions Brace Themselves as Trump Prepares to Defang Labor Board

In November, the National Labor Relations Board (NLRB) sided with Amazon workers in ruling that it is illegal to force workers to attend mandatory anti-union propaganda sessions, upending a doctrine of U.S. labor law that has existed since 1948.

The anti-union propaganda sessions, which are formally referred to as “captive audience meetings” are a controversial practice that has long been used to deter unionization drives.

“These coercive meetings are well-known union-busting tools, and the practice has no place in America’s workplaces or in our democracy,” AFL-CIO President Liz Shuler said in a statement celebrating the NLRB’s role in ending the practice.

The celebration will presumably be short-lived, however, as the incoming Trump administration is expected to revert the board to the pro-business, anti-union agency that it was during his first term. This means workers’ rights will inevitably be rolled back and much of the progress made over the past four years could be lost.

Potential Firings

It’s hard to know exactly how long the process of realigning the NLRB will take, but most labor experts and leaders expect Donald Trump, upon arriving in the White House, to sack General Counsel Jennifer Abruzzo, who steered the board in a pro-worker direction via 26 issued memorandums. There’s precedent for such an action, as President Joe Biden dumped Trump’s General Counsel Peter Robb on his first day in office. That move was challenged in court but was ruled to be legal.

“One of the first anti-union moves we’d expect would be that he will fire pro-labor appointees at federal agencies, beginning with Jennifer Abruzzo,” the Economic Policy Institute’s Director of Government Affairs and Advocacy Samantha Sanders told Truthout. “As general counsel at the NLRB, Abruzzo is arguably one of the most effective forces for workers in the Biden administration, and has taken a lot of proactive steps to defend workers’ rights to form unions and to hold employers accountable for illegal union-busting activities.”

“Her office has taken action to put checks on employers monitoring and surveilling workers, getting workers rehired if their employer fires them for trying to form a union, and protecting undocumented workers’ rights to join together with their colleagues to form unions, among other actions,” she continued.

This is where things get a bit trickier. That court ruled that federal law doesn’t protect the board’s general counsel because they act as a prosecutor, but it does protect the other members. This certainly doesn’t mean that Trump won’t try to fire other members of the board.

The National Labor Relations Act of 1935 (sometimes referred to as the Wagner Act) states that members can potentially be removed over “neglect of duty or malfeasance in office, but for no other cause,” and some conservatives are pushing for Trump to use the loophole to immediately upend the court. This would lead to some legal drama, as the act would have to run through Humphrey’s Executor v. United States, a Supreme Court precedent that’s been on the books for almost 90 years.

In an article for OnLabor, Teamsters staff attorney Kevin Vazquez points out that this obstacle might not deter an unpredictable figure like Trump or be especially relevant given the right-wing Supreme Court.

“Although Humphrey’s Executor remains controlling precedent, the current unitary-executive-curious Court has made clear that it holds the decision in low esteem, and a majority of Justices may well embrace the opportunity to further narrow or even outright overrule it,” writes Vazquez. “Indeed, in recent years, the Court — three members of which were appointed by Trump — has demonstrated little concern for disregarding or overturning precedent and scant interest in reigning [sic] in Trump’s excesses or stifling the Republican Party’s authoritarian pretensions. All told, whether the Supreme Court would protect the NLRB from Trump’s overriding ambition to remake the federal government in his own image is, unfortunately, anyone’s guess.”

The Washington Post has reported that multiple Trump advisers have discussed the possibility of firing all the Democratic members of the board.

There is currently one vacant spot on the board and Chair Lauren McFerran’s term is up in December. Biden has nominated her for a third term, but she needs to be confirmed by the Senate. Sanders has noted that the Trump administration actually renominated her for a second term in 2019 and was confirmed with some Republican votes. “It is critical that Congress reconfirms her before the end of the year so that the board can at least maintain a quorum to keep hearing cases,” Sanders told Truthout.

Union Elections

Union elections doubled during the Biden years. “We are seeing underserved, vulnerable populations actually feeling empowered to elevate their voices and be heard (and) to demand a seat at the bargaining table, whether that’s through established labor organizations or homegrown ones,” Abruzzo recently told a panel.

Trump’s NLRB will undoubtedly be filled with lawyers from the union-busting world hell-bent on stifling this momentum. We can anticipate the new board to overturn the decision on Cemex Construction Materials Pacific, which established a new framework for employers bargaining with workers.

For nearly 50 years employers could either voluntarily recognize a union or require a secret-ballot election. This created massive problems for workers, as employers could repeatedly break the law in order to diminish support for the organizing effort. There wasn’t a huge downside of being found violating labor law, as it simply initiated another election.

In August 2023, the NLRB ruled on a case between the Teamsters and a cement company called Cemex and rejected the existing precedent. The board said that if a majority of workers sign up to join a union, the employer can either recognize the union or file a petition to hold an election within two weeks. If the employer misses the deadline, the NLRB can order the company to recognize the union. If the employer invalidates the election by committing labor law violations, the NLRB forces the company to recognize the union and start bargaining a contract.

This decision was cited in a number of bargaining orders and unfair labor practice complaints, but it also yielded tangible wins.

For instance, workers at the Red Rock Resort in Las Vegas were inundated by anti-union propaganda from their pro-Trump employer after a majority of them signed cards to join the Culinary Workers Union. These efforts included an anti-union website, promises of new benefits if the organizing drive was defeated, and complimentary steaks in the break room all branded with the phrase, “VOTE NO!”

These antics managed to keep the union’s vote total under 50 percent, but the NLRB ruled that the company’s “egregious misconduct” meant that it had to immediately recognize the union and start bargaining.

We can also expect the “Quickie Election” precedent to be overturned. This rule was adopted under Obama in 2014 and reduced the amount of time between the filing of a representation petition and a union election. The move deprived businesses of opportunities to pressure workers into voting no. It was largely eliminated by the GOP-controlled board in 2019, but was restored by Biden in August 2023.

After the rule was reinstated, the anti-union law firm Morgan Lewis (which Amazon has employed to quash organizing efforts) published a message to employers warning that the move could lead to a unionization boom.

“Combined with other limitations on employer speech that the NLRB’s General Counsel is pursuing, as well as the risk that the Board has created for employer campaigns in Cemex, it is important for employers to thoughtfully prepare for campaigns so that they are ready to hit the ground running,” the message read.

“Abusive” Conduct Rules, Severance Agreements

The Lion Elastomers decision, which gave workers some leeway to use heated language while engaging in protected activity, will also presumably be reversed.

One of the Trump NLRB’s most notorious moves was its General Motors decision, which overturned a 70-year precedent protecting a workers’ right to occasionally use strong language. Biden’s board had restored the precedent through a ruling concerning a union steward who worked at a Texas rubber plant for 40 years. He had been fired for allegedly making heated comments during a couple of safety committee meetings. In one instance he told a manager that they weren’t doing their job. The Biden NLRB ordered the company to rehire the worker with full back pay going back to his termination.

The Biden board also returned to a longstanding precedent in its McLaren Macomb decision, which prohibits employers from offering severance agreements that require workers to waive their labor rights. “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act,” McFerran said after the decision.

It’s probable that Trump will roll back that precedent again. Many also expect his board to bring forward cases that would roll back recent decisions like Stericycle, which established tougher standards for workplace rules, and Miller Plastic Products, which made it easier for a single worker’s action to be considered “concerted.”

In the case of Stericycle, unions are now able to challenge company rules that intimidate workers from organizing or holding protests. In Miller Plastic Products the board returned to a long-established test for determining whether workers are engaging in protected concerted activity when they organize to improve their working conditions.

The Right Is Trying to Defang the Board, or Eliminate It Entirely

There might be cause for concern beyond the overturning of rulings. The board is currently facing several legal challenges from the right aimed at stripping away its legal authority.

In November, Amazon and SpaceX (a company founded and run by Trump adviser and megadonor Elon Musk) argued in the Fifth Circuit Court of Appeals that the NLRB should be sapped of any power.

Amazon’s lawsuit stems from a union election that occurred at a New York City warehouse in 2022, which it claims the NLRB illegally involved itself in, in part because it initiated administrative litigation against the company to reinstate a fired union organizer. Musk’s company launched its lawsuit after the NLRB accused the company of illegally firing workers who wrote an open letter criticizing Musk.

These developments might prove to be relevant as Trump has picked Musk to help lead a commission devoted to gutting regulations and federal agencies (among other things). Not only does the billionaire have a history of antagonism toward unions, he also joked with Trump about firing workers during an interview with the returning president.

“You’re the greatest cutter,” said Trump, presumably referring to the SpaceX workers who were fired after criticizing Musk. “I look at what you do. You walk in and say, ‘You want to quit?’ I won’t mention the name of the company but they go on strike and you say, ‘That’s OK. You’re all gone.’”

This jovial attitude toward union-busting is prevalent on the right. We’ll soon find out how thoroughly it will envelop labor law in the United States.

This piece was originally published in Truthout.