In this installment of our Workplace Strategies Watercooler 2025 podcast series, Tom Davis (shareholder, Nashville) and Tom Stanek (shareholder, Phoenix)—both of whom are chairs of the firm's Traditional Labor Relations Practice Group—are joined by Sara E. Olschewske (shareholder, Greenville) to provide the latest updates from the National Labor Relations Board (NLRB). Our speakers reflect on the NLRB under the former administration, when the agency overruled significant precedent and created new rules, most of which dramatically favored labor unions—and how the change in administration has created the opportunity to appoint a new general counsel and two new Board members. The panel also offers insights into what lies ahead for employers in light of the changes brought by the new administration and, in particular, what changes new leadership at the agency may bring to the NLRB and how quickly changes will be implements, and how will they impact employers.
Transcript
Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.
Tom Stanek: All right, welcome everyone. We are here at
Workplace Strategies 2025. I am Tom Stanek, one of the Co-Chairs of
Ogletree Deakins Traditional Labor Practice Group. And had the
pleasure of speaking with Tom Davis, another Co-Chair of our
Traditional Labor Practice Group, and one of our traditional labor
specialists, Sara Olschewske.
We are going to walk through for everyone today a brief summary of
the NLRB, the National Labor Relations Board, an update on what to
expect in 2025 and beyond. We're hoping to cover some issues
regarding the status of the current board itself in Washington,
including board members and the General Counsel's Office.
We're going to have some predictions on anticipated changes as
well as priorities. And then, possibly, if we have time, we're
going to get into political issues outside of the NLRB itself that
may also affect traditional labor.
With that, knowing that this has been a very exciting 100 days in
office for President Trump, a lot of changes happening in the
federal government. The NLRB is one of those offices that has been
affected by the Trump administration. I'm going to hand it over
to Tom Davis to talk about our current Board and what we're
seeing today, and maybe what we'll see down the road.
Tom Davis: Hey, thanks, Tom, and welcome, everyone. Appreciate
you listening in. I think the focus of our discussion today is
about what the law is and what it might be in the future, but the
key to all of that is what's going on with the National Labor
Relations Board itself. And we're in an unusual situation where
that Board is typically made up of five members. At the end of
2024, the then-chairman of the National Labor Relations Board,
Lauren McFerran, her term expired. And as the Trump administration
came into office, the National Labor Relations Board, again, which
typically has five members, had two Democratic members and one
Republican member.
And bear in mind, this is the agency, the entity that makes
decisions about what the law is. And for those of you who follow
this area of the law, we've had four or five years of decisions
that I'll phrase bad, bad Biden Board decisions, decisions that
are problematic for managers and, frankly, problematic for
employees. And we're hoping to see better law from a quote,
unquote, "Trump Board," but we can't really do that
until we have Republicans in majority.
And as I said at the end of 2024, and as President Trump took
office, he had the ability to fill two slots with
management-minded—regardless of their political
persuasion—more management-minded members. I think we hoped
for that to happen, we expected it to happen, but the reality is it
hasn't. And I think the bottom line is, at best, we have three
members at the NLRB too who are part of the "bad"
decisions. And the bottom line is we're not going to see any
decisions from that group anytime soon. And frankly, there are not
even any names being discussed about who might be nominees. And I
think the reality is we're not going to see much change from
the Board.
The other development that happened is the President could have
nominated a new board member. He hasn't. But what he did do is
he took the rather unprecedented step of terminating, who was at
the point of his termination, the Chair, Gwen Wilcox. I say
unprecedented because of two things. It's never happened in the
90-year history of the act. And frankly, the statute says a
president can't just terminate without cause an NLRB member,
but nonetheless, that's what he has done.
And so, that also adds to the dynamics, the fact that this
five-member board currently only has two members, which means it
doesn't have a quorum to take action. That means not only do
you not have three management-minded members, you don't even
have enough members to change the law if you wanted to. We're
in a period of time where there's a lack of a quorum, which
means the Board itself can take very little action. And we're
going to have to see this play out. It's really a test of
what's called the unitary executive theory, and it's a
high-priority issue for President Trump. And ultimately, I think
the Supreme Court will tell us whether he has the right to
terminate people like NLRB, former Chairman Wilcox.
The other thing, Tom, is that what he did do, what we expected the
President to do, was he terminated Jennifer Abruzzo. Again, for
those of you who follow this area, you know she's really been
the source of a lot of legal change, reform change, and change that
made it harder for management to respond to union activity and
easier for unions to exploit that environment. For a while, there
was no nomination. President Trump did appoint an Acting General
Counsel, Bill Cowan. But we also have at least one nominee for a
general counsel replacement, a woman named Crystal Carey, who is
coming out of private practice. And ultimately, we think she's
aligned with what we want to see in terms of improvement in the
law. But the bottom line is we're locked into wait and see.
Let's see what happens. And until those nominations happen, and
the confirmations occur, we're again in a wait-and-see
mode.
Tom Stanek: Basically, the takeaway, Tom, it sounds at the Board
level itself, we're going to wait and see as it relates to the
Board decisions that we're hoping to come out in the near
future regarding management-friendly decisions. That's probably
going to take longer than we had hoped. And then in the general
counsel's role, while we do have Acting General Counsel Bill
Cowan in his seat. We're going to talk in just a moment about
some of the actions he's taken that have been favorable for
management. But we want to, I guess, wait and see to see what
occurs in terms of a more permanent person in that capacity.
Sara, I'd like to turn it over to you for a second just to
maybe talk about some other interesting things that are happening
as it relates to change in traditional labor. We know that
President Trump has issued numerous executive orders since taking
his seat in the White House this go around. And there have been
some executive orders, I think, that could potentially affect how
the NLRB operates during this interim period.
Sara Olschewske: Yeah, that's right. Thanks, Tom. Welcome, everyone, to the podcast. I wanted to talk quickly about an executive order that relates to the accountability of all agencies. And along the lines of this, or for the purpose of this, the White House has essentially asserted control over the interpretation of the way in which regulatory agencies or independent agencies view the law. Under this executive order, what the attempt is is that the White House will have agencies submit for review the proposal of a significant change in regulatory action. And as a result of this, we've seen at least one coalition send a letter to the Attorney General, which outlined the ways in which the Biden administration took the law too far, that there were things that were unconstitutional about some of the decisions that they made and that the board should be required to pull those actions back. We may be seeing more decisions coming from this EO than what we had seen previously.
Tom Stanek: And it does seem too, Sara, that with the new administration, the White House wants to have more control over what the administrative agencies are actually doing, right?
Sara Olschewske: That's right.
Tom Stanek: They actually want to have feedback from the White House directly in terms of agency action.
Sara Olschewske: That's right.
Tom Stanek: Interesting. Well, the good news is what we have so
far in 2025 experienced is some change in the general counsel
memorandum that had been issued during the prior board and Jennifer
Abruzzo's term as general counsel of the NLRB. When Acting
General Counsel Bill Cowan assumed the role, he shortly thereafter,
on February 14th of this year, gave us all a little Valentine's
gift by rescinding approximately 30 GC memos that Jennifer Abruzzo
issued.
Now, GC memos, for those who are not familiar with them, basically
outline the initiatives of the General Counsel's Office, which
guides the agency's policy towards the regional offices that
pursue and investigate and thereafter could prosecute unfair labor
practice charges and different types of union election petitions.
On the 14th of February this year, acting General Counsel Cowan
issued a memo rescinding the prior Jennifer Abruzzo memoranda and
essentially brought us back to the pre-Jennifer Abruzzo general
counsel term.
Notably, what Acting General Counsel Cowan stated is that the
backlog that the agency is currently facing, it's immense. Back
years ago, the NLRB prided itself on very, very quick wheels of
justice turning. However, following the pandemic with people
leaving the agency, with people not returning to work, and now with
some of the reductions in force experienced by the federal
government, the backlog is immense. And in fact, what Acting
General Counsel Cowan said, basically, that notwithstanding the
efforts of the agency, the backlog of cases has grown to a point
where it is no longer sustainable. And the unfortunate truth is
that if the agency, the NLRB attempts to accomplish everything, it
risks accomplishing nothing, which I think is very insightful. It
basically tells us that there is more reason coming from the
General Counsel's Office in terms of how to approach some of
these issues, focusing more on priority matters, things that
actually do affect employees, employers, and the workplace in
general. There's a few specific General Counsel memos that were
rescinded that we'd like to highlight. The first of which I
want to hand it over to Sara again to talk about the rescission of
General Counsel Memo 2106 and 2107 which focused on the types of
remedies and settlements that the NLRB regional offices would
pursue in unfair labor practice proceedings.
Sara Olschewske: Thanks, Tom. First is 2106. What 2106 initially
did from GC Abruzzo was it included additional remedies based on
the Thryv decision that included consequential damages as
a remedy to an unfair labor practice charge. With the rescission of
that, what we are hoping to see it will happen is that the standard
remedies will come back to all of our regions and then board
decisions once the board is back to a majority.
The idea behind this is that we maybe see a return of back pay
being at 80% to 100%. You would see just the typical notice posting
and you wouldn't see all of the additional remedies. Some of
those additional remedies included having to, say, give an apology
note to the employee, having to pay credit card interest or
penalties as a result of no longer having a job. Those are some
changes from 2106. On 2107, the idea there from GC Abruzzo was that
you needed to have a full and effective settlement, which prevented
employers from being able to agree to a settlement that didn't
include default language, non-emission clauses, or less than 100%
back pay. Here we're hopeful that with 2107 being gone, we will
see a return of the default language, we'll see the return of
the non-emissions clauses that employers are looking for.
Tom Stanek: It sounds like, Sara, with the rescission of those two memos at issue, the regional offices should be more reasonable in approaching settlement and maybe trying to tackle some of that backlog of cases by having them resolved amicably between the parties through resolution and settlement as opposed to just litigation and, again, having the backlog of cases continue at the NLRB.
Sara Olschewske: That's right. And we're already seeing this today. We're seeing the idea that regions across the country are being more forthcoming and wanting to have the dialogue of, "Hey, is there a way that we can settle this out in a quicker and more efficient way?"
Tom Stanek: It's quite refreshing, actually. It's
actually very refreshing and encouraging, and something I think
that the employer community can maybe take some comfort in knowing
that the horizon in the near future, at least, should be more
agreeable when it comes to early resolution and settlement. Another
rescission memo... I'm sorry, the rescission memo also
rescinded GC memo 2305. And for those of you who are not familiar
with it, it actually was the memo that highlighted the seminal
decision that came out in 2023, McLaren Macomb. That's
the decision that touched the entire employer community in one way
or another. All employers covered by the NLRA, whether unionized or
not, likely use separation or severance agreements with their
employees when the employment relation comes to an end.
McLaren Macomb took on a high level of interest by
mainstream media because it essentially stated that all separation
or severance agreements for non-managerial employees who have
rights under the National Labor Relations Act, those agreements
cannot have confidentiality requirements or very broad
non-disparagement provisions. And so often, a lot of those
settlement agreements had such provisions. Even though McLaren
Macomb is a board decision, and in just a moment I'm going
to hand it back over to Tom Davis to talk about the distinction
between board decisions and these general counsel memoranda, at
least the rescission of GC Memo 2305 suggests that we may not see
that same kind of ambitious agenda of broadening McLaren
Macomb and focusing on the alleged public rights that the NLRA
is intended to protect as opposed to individual employee rights,
including the rights of employees to choose to enter into
separation agreements that may have confidentiality and/or
non-disparagement language in exchange for a severance
payment.
Going through those GC memoranda, and again, the 30 or so memoranda
that Acting General Counsel Cowan rescinded on Valentine's Day,
that is some hope. But there are still a number of NLRB board
decisions that remain the law and will remain the law until a new
board is constituted and overrules those. In November of 2024,
there was a very significant decision, which I don't think
received the attention it probably deserved, and it focused on
changes in how management communicates with employees about what a
union could mean to their relationship. Tom Davis, can you maybe
discuss this decision and maybe how the employer community should
really approach that, and maybe spend a little bit of time training
their management team on what this decision really means?
Tom Davis: Yeah. Yes, Tom. It's good these GC guidance memos
are gone, but to the extent ideas originated with Jennifer Abruzzo,
and they then are adopted by the Labor Board, we now have to deal
with them as the law. And the case you're talking about is iron
retail is what changed the law, but it related to a case that had
been in place for 40 years called Tri-Cast. And it
actually, as you said, it relates to how you describe to employees
the impact of unionization. What changes does that unionization
make on the relationship between the employer and the employee and
how issues get resolved?
And frankly, Tri-Cast had allowed broad latitude for
employers to describe this in general terms because it is a reality
that unionization changes that direct relationship. Unfortunately,
under this new standard, employers can't do it in general
terms. They can't say, "It'll be a loss of your direct
relationship." They can't say, "You can no longer
deal with issues directly or resolve them individually." They
can't say that you'll lose your individual voice. All of
those things are true, accurate, but without more, they're
unlawful under this new standard. And basically, you've got to
add two things, nuance and legalistic aspects of these concepts,
both of which reduce the effectiveness.
But the bottom line is you can still resolve issues directly with
employees who are unionized, but it's not the same way you do
it without a union. And fundamentally, if you have to bargain with
a union, for example, then you've got to jump through those
hoops. Or secondly, if there's a collective bargaining
agreement that tells you what to do, you've got to follow that
contractor. Or in some cases, you may actually have to involve the
union in that, quote, unquote, "direct resolution of
issues." And I just think clients, you guys need to understand
that as you're communicating about this with employees, or
perhaps more importantly, as you're training managers how to
communicate about this nuanced concept, we're going to have to
hold hands better and be more specific as we do that training.
Tom Stanek: Basically, Tom, as a summary, for all of the employers that used to tell their employees that if you get a union, you can't come to me with your issues any longer, this decision complicates how we approach that.
Tom Davis: Absolutely.
Tom Stanek: Okay. Another challenging decision that came out in November of 2024 dealt with what we characterize as employee educational meetings and what unions tend to call captive audience meetings. And it basically is the concept of making sure employees are informed before they go vote on whether or not to unionize. Sara, this decision came out in November. It's been the law now as a board decision and remains the law today for about six months. What can you share with our audience about this decision?
Sara Olschewske: Sure. Thanks, Tom. When you think about the
idea of this meeting, a captive audience meeting, as it's
normally phrased, historically, employers were allowed to exercise
their rights under AC by holding meetings with their employees to
talk about why they did or did not want a union in their facility.
Under this case, in November, they've changed a law to say that
you can no longer have those mandatory captive audience meetings.
Now there's a change that you can still have those meetings,
just with caveats to it.
First caveat is that you have to have or provide notice to your
employees that first, it's voluntary to go, and second, that
the purpose of the meeting is to explain your union position, the
position of the company on unionization. Second, you have to
explain that there is going to be no positive or negative reaction
or job consequence as a result of the union meeting that's
being held. You can come, you can leave, you can not show up, but
there is going to be no type of consequence as a result of the
meeting. And then finally, you have to make sure that employees
understand that there's not going to be any type of monitoring
of who's attending. There's not attendance being recorded;
there's not a list that's being passed around of who's
going to be there, who didn't show up.
Tom Stanek: Thank you, Sara, for that. Now, that's a challenging one, of course, because so many employers want to educate their workforces before they vote in an election, and of course, this decision from November equally complicates that in terms of making sure that they do so, but with these disclaimers, as you added, in place. Now, another issue that a lot of employers have struggled with over the last several years at the NLRB level is what to do with employees who act up, maybe use those four-letter words or other types of inappropriate language in the workplace, but then they do it through the lens or at least with the ideal that they're engaging in protected concerted activities. There've been a few decisions lately in this space, Tom. One in particular that I know you want to talk about is called Lion Elastomers. It's had quite the checkered history, and it begs the question: Where do we stand today?
Tom Davis: Yeah, really complicated procedural history around
that case, but it was a very significant departure from how you
evaluate employee conduct that is rightly characterized as
misconduct: profanity, anger, angry language, use of threats,
sexual, racial epithets, all of those things that I think most of
us would agree or not appropriate in the workplace. The question
under this Lion Elastomers case is whether, if that is
done in the course of engaging in otherwise protected conduct,
either unionized, unionization or just this basic concerted
activity where two or more employees try and improve workplace
conditions.
If, in the course of that protected conduct, someone engages in
this misconduct, can you discipline them for doing that or does the
conduct remain protected? And what the Biden board did with
Lion Elastomers was it reversed a very common sensical
Trump board decision involving GM, which essentially would have
said that if you would've disciplined that person for that
conduct, if they had done it outside of the protected context, that
you can still discipline them and that's not discriminatory or
unlawful. Lion Elastomers actually established a higher
level of protection, focusing on the Section 7 protections, even
though it's done in a way that involves inappropriate
misconduct. And as Tom said, that case actually has been vacated on
appeal, so we think it is no longer active.
And we thought with a Biden Board, we'd see that theory
re-articulated in another case, but where we are now, and I think
there are a couple things that are important, one is we're
probably under that GM standard, really treat people who are
engaging in misconduct the same regardless of the context in which
they do it. And the other thing I think is just to realize that
there is really an elevated awareness of employees today about this
protected concerted activity concept. And anytime you have
misconduct that relates to workplace issues, you need to stop and
have a conversation to evaluate whether that's protected or
not, and if not protected, what the appropriate response is.
Tom Stanek: It's an interesting procedural case and posture,
as you said, Tom. And it begs the question for our administrative
legal junkies on the line with us today to ask them if you have a
case that overrules another case, but that case is overruled or
vacated in this situation, does the prior case become the law? And
that's to be determined, I think, once this is remanded to the
new board, whenever that is constituted.
Okay, let's talk about one other policy-esque Board decision
that came out in 2023. That decision affected handbooks for
employers, again covered by the NLRA, which is nearly all employers
out there. That decision made it very, very difficult for employers
to meet the NLRB's expectations when it comes to drafting
policies in a way that they could not have some impact or adverse
effect on protected concerted activities. In fact, the way that
that decision reads, and I'll just summarize it, is if there is
a more narrow way to draft a policy or work rule that would not
interfere with the section seven activity at issue, then the policy
or work rule does violate the law. Again, the way the NLRB drafted
that decision in 2023, which affects, again, all employers out
there that are covered by the NLRA, those policies and work rules
are the ones that are going to be violations of the Act if they
could be more narrowly drafted with the benefit of hindsight.
The good news is even though that is the current state of the law,
we have great hope that when the new Board has three members
operating, and ideally five operating, we will have a return of the
standard that came out in 2016, which issued categories to
different types of rules. For example, if you had a civility rule
in your workplace that required employees to be respectful towards
one another, that would be presumptively lawful under the NLRA,
depending upon how it was applied, but presumptively lawful as
drafted as a policy or work rule. Similarly, a no recording policy
under that prior standard from the 2016 category one rule, that too
would be permissible and not a violation of the NLRA.
Under that 2016 standard, however, there are still policies or
rules that would violate the act. For example, the classic case
under the National Labor Relations Act is an employer who directs,
whether it's in writing or verbally, its employees not to
discuss their wages or benefits. That's going to be a violation
under any standard. Even though the 2023 decision remains the
status of the law from the Board perspective, there is some hope
that at least we will see a change in that decision soon and that
the board agents who are reviewing your handbooks and policies
during ULP charge investigations will not have that fine-tooth comb
they were using for the last few years. I also want to now hand it
back to Sara to talk about one other seminal case. It dealt with
the concept of bargaining orders, which, for most employers out
there not familiar with what these things are and what they may
mean. So, maybe, Sara, if you could explain what a bargaining order
is and what happened also in 2023 to affect the actual concept
around bargaining orders.
Sara Olschewske: Sure. The concept of bargaining orders, when
you think about it, is that there's something that occurs
during a campaign, so during the petition to an election for a
unionized facility that occurs that could be egregious enough to
require the parties to go straight to bargaining, to overturn
whatever the election was previously and it has to go to a
bargaining table. Both parties have to meet. Prior to the decision
that Tom was referring to, there was what was called a Gissel
order. And that was when you had egregious things that had happened
during a campaign. The employer threatened to shut the facility
down, they fired all of the union organizers, they did things that
frankly were too reckless that no employee who was voting could
have felt as if they could vote in a fair and efficient way that
would've not in some way resulted in retaliation by the company
against themselves.
This decision that occurred changed that in that now a bargaining
order can occur during a campaign for lesser things. Now if you
interrogate an employee by asking questions as simple as, "Why
do you want a union? Who went to the meeting?" If you had a
workplace policy that in some way or some fashion violates the law,
those things added together could result in a bargain order, which
means it is a lower standard for potentially getting yourself to
the table without having a determinative vote.
Tom Stanek: Sara, that's great. And I know that the three of
us at least would love to continue this conversation. We've
been going for about 30 minutes. We've covered a lot of bases.
We know there's a lot of uncertainty regarding the National
Labor Relations Board in DC. The General Counsel's Office, some
more certainty coming soon, hopefully, with the new General Counsel
taking her seat in the hopefully coming months. And then we also
have the GC memos that were rescinded. Again, new hope there. And
Board decisions that we just discussed that remain the law, but
likely will change maybe not in the next few months, but ideally in
2025.
For those of you listening, I would like to invite everyone to come
join us at Labor Law Solutions 2025. Our firm, Ogletree Deakins,
has a labor-specific program every year. This year, we're back
in Las Vegas from December 3rd to December 5th of 2025. We'd
love to have you join us. From Tom Stanek here speaking on behalf
of the Traditional Labor Practice Group of Ogletree Deakins,
I'd like to have a special thanks to my colleagues in the room,
Tom Davis, Co-Chair of the Traditional Labor Practice Group from
our Nashville office, Sara Olschewske, a Traditional Labor Practice
Group member and a great valued asset of the firm and of practicing
traditional labor attorney. Thank you so much for your time. Look
forward to having our next podcast soon, with maybe more answers to
questions that our audience may have.
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