Management Memo

The U.S. Court of Appeals for the District of Columbia Circuit, by the full court, has ordered that the stay of National Labor Relations Board (“NLRB” or “Board”) Member Gwynne Wilcox’s reinstatement to her seat on the Board be dissolved and that Wilcox, for the second time, be returned to her seat. This action by the D.C. Circuit means that the NLRB once again has three members and a “quorum,” as that term is defined in the National Labor Relations Act (NLRA).

Back and Forth and Back Again

As we previously reported, on February 3, President Trump fired Wilcox from her seat on the Board, leaving only two of the Board’s five seats filled and stripping the NLRB of the quorum required by the NLRA for the Board to issue decisions, make rules, and fulfill other statutory duties.

On March 28, 2025, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled that President Donald Trump likely has the authority to remove National Labor Relations Board (NLRB) member Gwynne Wilcox, as well as Merit Systems Protections Board (MSPB) member Cathy Harris, without cause. In granting the Government’s motion for an emergency stay of the reinstatement orders of the United States District Court for the District of Columbia, the appeals court has once again left the NLRB without a quorum.

The Federal Mediation and Conciliation Service (FMCS) has begun to significantly curtail services as the agency moves to implement a March 14 Executive Order, Continuing the Reduction of the Federal Bureaucracy, that directs FMCS and other agencies to “reduce the performance of statutory functions and associated personnel to a minimum presence and function required by law.” In response to this Executive Order, FMCS anticipated implementing the agency’s contingency plan, issued in December 2020 in preparation for the potential of a budget-based disruption of agency operations.

As a result, and as noted in a statement FMCS released on March 19th, the agency announced it would examine how to apply the Executive Order in practice moving forward, specifically by ensuring “a coordinated approach to efficiency, optimization, and mission focus.” Among the immediate effects is that, on March 26, most, if not all of FMCS mediators were placed on administrative leave pending layoff, according to multiple news sources.

What Does This Mean For Employers?

To say that the past fifty days have been a period of significant changes at the National Labor Relations Board (“NLRB” or “Board”) is surely an understatement. On January 27^th, the President terminated Biden appointee Jennifer Abruzzo from her role as the Board’s General Counsel and on February 3^rd appointed William Cowen, a career Board lawyer, to serve as Acting General Counsel.   

That same day, the President fired Gwynne Wilcox from her position as a Member of the Board. The firing of Wilcox left the Board without a quorum, which it must have to issue decisions and engage in rulemaking. Wilcox brought a lawsuit in the U.S. District Court for the District of Columbia challenging her termination and seeking a declaratory judgment holding that the President could not terminate a Board Member other than for cause as defined in the National Labor Relations Act (the “Act”) and seeking her immediate reinstatement to her seat on the Board. On March 6, 2025, U.S. District Judge Beryl A. Howell granted Wilcox summary judgment and ordered Board Chair Marvin Kaplan to reinstate her for the remainder of five-year term which is set to expire on August 27, 2028. So where does this leave employers, unions and anyone else who has business before the Board?

As expected, the Trump administration has shifted the National Labor Relations Board (“NLRB”) into a new era marked by notable changes that will reshape the Board. The first and most significant of these changes is the termination of Board Member Gwynne Wilcox. The second is the termination of General Counsel Jennifer Abruzzo. The removal of Wilcox leaves the NLRB down to two Members, a Democrat and a Republican, and without a quorum for decision making and other actions until the President fills at least one of the three current vacancies. These changes raise many questions as to what is in store for the NLRB and its ability to perform its main functions.

As discussed further below, employers should consider the impact of these decisions on pending cases before the Board, consider asserting affirmative and procedural defenses early and often, and stay aware of rapidly developing changes expected to take effect over the coming months.

Just hours after it became clear that Donald Trump would be returning to the White House, the majority Democratic National Labor Relations Board (“NLRB”) showed no signs of slowing down its efforts to implement the Biden Administration’s pro-labor agenda before January 20. In its latest decision the Board severely curtailed what types of statements employers can make to employees when pointing out the legal and practical effects of unionization.

On November 8, 2024, the NLRB issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135, which overturned long-standing case law Tri-Cast, Inc., 274 NLRB 377 (1985). Under Tri-Cast, the Board held that it was lawful for employers to accurately explain that a union’s certification as the collective bargaining representative of employees would change the relationship between the employer and its employees, holding that, “there is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and employer will not be as before,” regardless of “the truth or falsity of the parties campaign statements.” Tri-Cast, 274 NLRB 377, 378 (quoting Midland National Life Insurance Co., 263 NLRB 127, 133 (1982)).

National Labor Relations Board (“Board”) General Counsel Jennifer Abruzzo (“Abruzzo”) issued a General Counsel Memo (Memo GC 25-01) last week signaling that employers could face civil prosecution and significant monetary remedies for using non-compete and so-called “stay-or-pay” provisions in agreements with their employees.The new memo, issued on October 7, 2024, builds on Abruzzo’s earlier General Counsel Memo issued in May 2023, where, as we reported, she outlined her belief that nearly all post-employment non-competes violate employees’ rights under the National Labor Relations Act (the “Act”).

Since Abruzzo’s May 2023 memo, employers have witnessed a number of significant developments in this space, including the Federal Trade Commission’s (“FTC”) issuance of a rule in April 2024 banning the use of most non-competes and a subsequent decision by a Texas federal judge blocking that FTC rule. In June 2024, an NLRB Administrative Law Judge issued a ruling in a case involving an Indiana HVAC company finding that non-competes and non-solicitation clauses violate the Act, a decision currently being appealed to the Board.

In her October 7, 2024 memo, Abruzzo again urges the Board to find non-competes with all employees who are subject to the Act’s jurisdiction (nonmanagerial and nonsupervisory employees) to violate the Act except in a few limited circumstances, arguing that such provisions are frequently “self-enforcing” and deter employee mobility. She also advocates for “make whole” remedies where employers are found to have continued to maintain unlawful non-competes. Specifically, the memo argues that merely voiding such provisions is insufficient and that employees should be afforded the right to seek compensatory relief for the “ill effects” that flow from complying with “unlawful non-compete provisions.”

On September 12, 2024, the Regional Director of the National Labor Relations Board’s (“NLRB”) Region 22 in Newark, New Jersey, issued an unfair labor practice complaint against a New Jersey building services company, alleging that employee non-hire (or “no poach”) provisions in the company’s contracts with its building clients violate the National Labor Relations Act (the “Act”).

According to the NLRB’s news release, the complaint alleges that Planned Companies D/B/A Planned Building Services, which is a janitorial, building maintenance, and concierge services provider, “has maintained provisions in its contracts with its client buildings that interfere with, and are inherently destructive of, workers’ rights under Sections 8(a)(1) and (3) of the National Labor Relations Act.”  It further alleges that “Planned Companies restricts its client buildings from soliciting its employees to work for them in a similar job classification for a period of six months after the agreement is terminated, or from hiring employees after they leave Planned Companies’ employment. Any entity retained by the client building to replace Planned Companies is also bound by the hiring restriction.” 

A hearing before an NLRB Administrative Law Judge has been set for November 12, 2024.

In an action brought by Space Exploration Technologies Corporation, commonly known as SpaceX, a U.S. District Court Judge in the Western District of Texas, Waco Division, has declared that the structure of the National Labor Relations Board (“NLRB” or the “Board”) is unconstitutional.

The determination is the basis for an Order granting SpaceX’s motion for a preliminary injunction and enjoining the NLRB General Counsel, as well as the presidentially appointed, Senate-confirmed Board Members and NLRB staff, from proceeding with a scheduled unfair labor practice ...

The Supreme Court’s June 28 decision to overrule the 40-year-old case of Chevron U.S.A. v. Natural Resources Defense Council should not be cause for alarm. It is, however, likely to have implications for employers that are subject to the myriad of workplace laws administered by the United States Department of Labor, the National Labor Relations Board and other executive branch bodies.

Why the Buzz About Chevron?

For decades, courts have relied on the so-called Chevron doctrine—a mandate by which judges were required to defer to agency expertise when handling controversies surrounding Executive Branch policy, but that rule ended with Loper Bright Enterprises et al., v. Raimondo. While the categorical rejection of Chevron—as inconsistent with the responsibility of courts defined in the APA—went farther than most analysts expected, it should be noted, as Justice Neil Gorsuch’s concurrence makes clear, that the Supreme Court hasn’t decided a case on the basis of Chevron since 2016.