The President’s nominee for General Counsel, Crystal Carey, a management-side labor attorney, is currently pending before the Senate.  She appeared before the Senate Health, Labor and Pensions Committee on July 16, 2025.  At this time William Cowen continues to serve as the agency’s Acting General Counsel at this time.

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.

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.

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 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.

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.”

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.

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 ...

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.

While four circuits – the Fourth, Seventh, Eighth, and Ninth – already followed the four-factor preliminary injunction test, five other circuits – the Second, Third, Fifth, Tenth and Eleventh, and the Sixth Circuit, where Starbucks v. McKinney originated – had applied a less demanding standard that only required the NLRB to demonstrate that the Board’s Regional Director had concluded that “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” This two-factor test versus the four-factor test was seen by many to be a lower barrier to injunctive relief.

What the New Rule Says

The Walkaround Rule modifies part of an existing standard that governs who may be authorized to join an OSHA inspector during a ...

The Tesla, Inc ...

The ...

Board Membership Update: Member Wilcox Confirmed for a Second Term – One Vacancy Remains

On Wednesday, September 6, 2023, the Senate confirmed President Biden’s nomination of Gwynne Wilcox for a ...

The majority opinion in Stericycle Inc. substantively revives the NLRB’s stance on workplace rules as established in the 2004 Lutheran Heritage decision.Under this new framework, any employer’s rule, policy, or handbook provision that  has a “reasonable tendency to chill employees from exercising their Section 7 rights” may be deemed to constitute an unfair labor practice and to be unlawful in violation of the NLRA.

The case concerned the issue of whether the National Labor Relations Act, 29 U.S.C. §§ 151–169 (“NLRA” or the “Act”), preempted a state tort claim seeking damages for harm suffered by their employer, caused by employees’ inaction in failing to deliver concrete that had already been loaded into the employer’s trucks or otherwise taking action to prevent the hardening concrete from damaging the trucks, thus intentionally destroying property owned by Glacier. Notably, the striking employees and their union knew that the trucks had been loaded when they began their strike. An eight-justice majority held that the union and its members were, on the facts of the case, not engaged in protected conduct as that term is defined under the NLRA. Justice Barrett delivered the opinion of the Court, in which the Chief Justice and Justices Sotomayor, Kagan and Kavanaugh joined. Justices Thomas, Gorsuch, and Alito concurred. As against this jurisprudentially diverse array, Justice Jackson was the only dissenter.