President Trump’s recent shake-up of the membership and staffing of the National Labor Relations Board (NLRB) is likely to have a significant impact on Arizona employers.
The NLRB works to “assure fair labor practices and workplace democracy nationwide,” according to its mission statement. In pursuit of this mission, the NLRB investigates and enforces compliance with federal labor relations laws, including the National Labor Relations Act (NLRA).
Traditional “union shops” represent only a small percentage of the workplaces in Arizona, which can lead many “non‑union” business owners to believe they don’t need to be concerned about the NLRA. But the law protects the rights of non‑union workers as well; that is, non‑union workers have certain legal rights under the NLRA, too.
NLRB under the biden administration
The NLRB has traditionally devoted significant effort to investigating and citing non‑union business owners for any business practices the agency believes violate workers’ federal rights. During the Biden administration, for instance, those enforcement efforts had included seeking to prohibit non-union businesses from using non-compete or non-solicitation agreements, citing non-union companies for conducting “captive audience” meetings to provide workers with information about union membership and union operations, and seeking to bar companies from including non‑disparagement clauses in separation agreements with departing workers.
The Biden-era board also scrutinized employee handbooks and personnel manuals for work rules and policies that, while seeming neutral at face-value, the board felt could nevertheless be viewed as discouraging collective action. For example, the board pursued unfair labor practice charges against employers for social media policies the board felt went too far in terms of restricting criticism of the business, and prosecuted employers who monitored workers’ social media accounts.
The board also pursued charges against employers for policies limiting audio and video recordings at work, as well as policies restricting employee email use. The Biden board also had taken a strict view of various workplace monitoring practices, such as the use of security cameras and RFID badges to monitor access to company property, the use of GPS tracking devices and cameras to review employee conduct while operating company vehicles, the use of tracking capabilities on employer-issued phones, the use of keylogging software on company computers and the use of workplace software packages and platforms designed to monitor employee productivity; in the view of the Biden board, all such practices have the potential to “interfere with or prevent reasonable employees from engaging in” protected organizing activity, and so constitute “unfair labor practices” in violation of the NLRA.
The Biden board also adopted legal interpretations that had the overall effect of making it easier for workers to advocate for union membership and to install union representation in the shop. Those included rules promoting “quickie elections,” which tend to produce votes for union representation.
Many of the NLRB’s aggressive tactics during the Biden era took the form of guidance memoranda issued by the board’s general counsel, Jennifer Abruzzo. As the board’s lead attorney, Abruzzo’s role included shaping and expressing the Biden board’s broad interpretations of how any given employer policy, work rule or job action might violate federal labor laws. NLRB investigators in the field, regional enforcement officials and board litigation counsel then are expected to apply those interpretations when investigating complaints and prosecuting unfair labor practice charges against employers. Those memoranda generally resulted in investigators and prosecutors taking a more aggressive and sweeping approach in their pursuit of unfair labor practice charges against employers.
2025 changes to the NLRB
In practical effect, President Trump’s expected firing of Abruzzo on January 27 portends a quick reversal of those broad interpretations and that aggressive approach. Observers expect President Trump to appoint a new general counsel who will likely rescind many of Abruzzo’s guidance memoranda, and who will issue new interpretations that will be far more favorable to business owners.
The most likely areas for rescission are expected to be the current restrictions on non‑compete and non‑solicitation agreements, the current hostility to non‑disparagement clauses in separation agreements, the current strict limits on captive audience meetings and the board’s current strict limitations on workplace monitoring practices (such as security cameras and RFID badges, GPS tracking on company vehicles, tracking on employer-issued phones and employee productivity software. Employers who utilize those types of policies or practices, therefore, can breathe a sigh of relief; the new general counsel is likely to make it clear that such practices do not necessarily violate the NLRA.
President Trump has ousted member and chairman Gwynne Wilcox from the board and appointed sitting member Marvin E. Kaplan as chair. Wilcox had been appointed to the board by President Biden in 2021 and appointed chair in December 2024. Kaplan has been a member of the NLRB since Trump appointed him in August 2017. The five‑member board already had two vacancies when Trump took office, so Wilcox’s firing leaves the NLRB with only two members.
Federal law requires a quorum of three members for the board to take any formal action, so the board is effectively frozen until President Trump appoints new members to fill the vacancies. Observers expect him to do so quickly, and to fill those vacancies with members with much less expansive views of the NLRA than their Democrat predecessors. The new membership is far more likely to adopt the position that federal law does not prohibit the kind of workplace practices discussed above, such as non‑compete and non‑solicitation agreements, non‑disparagement clauses, captive audience meetings and workplace monitoring.
Some observers also expect the new Republican‑dominated majority on the board to return to a number of legal interpretations and rules that the board had adopted during the first Trump administration. For example, the Trump board had issued rules making it more difficult for unions to force elections in non-union shops by “cherry picking” smaller groups of workers who might be viewed as more supportive of union membership; the newly constituted board in 2025 is likely to go back to those rules, which would require unions seeking elections to focus on broader swaths of workers. The Trump board also will most likely go back to its prior stance of giving property owners more flexibility to restrict access to private property.
All in all, the NLRB is a near‑paradigmatic example of the old expression that “elections have consequences.” President Trump has tremendous leeway to install decisionmakers at the NLRB whose views of federal labor law will make life that much easier for employers.
Click here to read Don's article published by the Phoenix Business Journal.
about the author
Don Johnsen represents employers in matters involving employment discrimination and sexual harassment, wrongful discharge, breach of contract, wage and hour disputes, arbitrations, and labor practice charges. Practicing employment and labor law exclusively, Don advises on employee hiring, discipline and discharge procedures, drug and alcohol testing, non-competition matters, labor relations issues, and other employment-related policies and procedures.