Employers may expect the incoming administration to claw back many of the arguably “pro-union” and anti-employer decisions handed down by the National Labor Relations Board (“NLRB” or “Board”) in the Obama era. While this anticipated change may eventually materialize, employers should not expect dramatic change to come quickly as the legacy of the pro-union Obama Board will likely endure for some time yet. 

Former President Obama’s Imprint on the Board Will Continue

The most immediate change that employers will likely see is to the composition of the Board. There are presently two vacant seats on the five-member Board, which currently has one Republican and two Democratic members. President Trump can fill these openings immediately, and, if his nominee for Labor Secretary is any indication, he will almost certainly appoint individuals critical of the decisions under the Obama-era Board and tilt the majority to the Republicans. However, a Republican majority would still have to contend with the Board’s two Democratic members, including the Chairman, whose terms do not expire until 2018 and 2019.

More importantly, the Democratic General Counsel will remain in his appointment until October 31, 2017. The General Counsel decides which cases to prosecute before the Board, so he can delay meaningful change simply by declining to pursue cases that will give a Republican majority the opportunity to overturn key decisions.

President Trump will likely appoint a General Counsel who is more sympathetic to employers’ plights over the seemingly pro-union developments under the Obama Board, but it will still take time for cases brought by a new General Counsel to wind their way through the agency’s administrative process and up to the Board. Indeed, former President Obama made his labor initiatives a focal point of his administration in 2008, yet major changes to the labor landscape did not come to fruition until 2011 and 2012, with many of the most dramatic changes occurring in the last couple of years. It is still unknown how President Trump will prioritize his labor initiatives, but one thing is certain: It will take time for President Trump’s appointees to effectuate change within the agency. 

Change to Key NLRB Decisions Will Take Time

In the last five years, the Board has greatly expanded employee rights and made it easier to organize with hotly debated decisions that have allowed unions to strategically craft micro-bargaining units that are easier to organize, dramatically relaxed the joint- employer standard, nullified class action waivers and mandatory arbitration agreements, and invalidated commonplace employment policies on a wide range of topics—from confidentiality to employee conduct to social media and use of employer email. These decisions have been harshly criticized by the business community, including President Trump’s nominee for Labor Secretary, who publically denounced the Board’s new joint-employer rule as a “lose-lose scenario for everyone—except for the labor unions that have long dreamed of organizing restaurant workers nationwide.” Many have called for legislative repeal of some these developments, and there have already been two bills introduced in the Senate that would reverse the Board’s decisions on micro-bargaining units and joint employers.

However, legislative amendments to the National Labor Relations Act have historically proven divisive and difficult to enact, and while the Republicans enjoy a majority in Congress, they will still need Democratic votes to move such bills out of the Senate, making the success of such legislation unlikely. Instead, reversal of these decisions will most likely come from new Board decisions, which is an inherently lengthy process that, for the reasons discussed above, probably will not begin in earnest until late 2017. In fact, the Supreme Court of the United States may very well weigh in on the class action waiver issue before a Republican-controlled Board does, as the nation’s high court has agreed, at the urging of the current Board, to review a ruling by the U.S. Court of Appeals for the Fifth Circuit reversing the Board’s invalidation of class action waivers.

New Election Rules Are Unlikely to Be a Top Priority

In 2015, the Board’s new election rules took effect, which dramatically expedited elections and curtailed employers’ ability to litigate important election issues and disseminate information to employees about the realities of unionization prior to an election so their employees can cast an educated and informed vote. While opponents bemoan the new rules as unfairly advantageous to unions, the Board is not likely to undertake the complex and time-consuming process to repeal and replace these rules early on, nor are employers likely to push this as a top priority given the host of other detrimental decisions that more immediately impact business.   

What Employers Should Do Now

Trump’s presidency could ultimately bode well for employers impacted by labor developments that unreasonably favor unions and seem out of touch with workplace realities. However, the Board’s decisions early in the new year show that it intends to continue to enforce the standards adopted in the last eight years. Therefore, employers must remain vigilant in complying with these standards unless and until the anticipated change materializes. If anything, employers can breathe a sigh of relief that things will not likely get worse, but they also will not get much better quickly.