Under the Biden administration, the National Labor Relations Board was aggressive in implementing employee- and union-friendly decisions and interpretations of the National Labor Relation Act. Within a week of being sworn in, President Trump started reversing that trend. For the last three months, the shift toward a more employer-friendly view of the NLRA has continued and is expected to move forward.
To start, on January 27, 2025, Trump fired the NLRB’s general counsel, Jennifer Abruzzo, a Biden appointee who replaced Peter Robb, the holdover general counsel from the first Trump administration. Biden terminated Robb and replaced him with Abruzzo shortly after taking office in 2021. The firing was subsequently upheld by a U.S. appeals court, who ruled the president had the authority to do so. Because the general counsel interprets the NLRA and decides which cases should be heard by the Board, the appointment of a new, handpicked general counsel is significant.
Moreover, Trump also fired NLRB chairperson Gwynne Wilcox. On March 6, 2025, a federal judge ruled that the termination violated the NLRA and ordered the administration to reinstate her. On March 28, 2025, however, the U.S. Court of Appeals for the District of Columbia ruled that Wilcox should remain unseated for now. Whether Trump has the authority to fire and replace holdover Biden-appointed Board members will continue to be an issue for the courts to sort out.
In the meantime, what is the effect of Trump firing the general counsel and Wilcox? On March 28, 2025, Trump nominated Crystal Carey to be the new NLRB general counsel. Carey is a management-side labor relations attorney in private practice who has previously criticized certain Board decisions issued during the Biden administration.
While her nomination awaits Senate confirmation, Trump appointed William Cowen to be the acting general counsel. In this new role, he has already rescinded several significant interpretive memos issued by Abruzzo, including a memo that advocated more extensive remedies to be assessed against employers in unfair labor practice charges; a memorandum limiting employers’ rights to have non-disparagement and confidentiality provisions in settlement agreements and severance agreements; a memorandum interpreting the NLRA to prohibit certain types of non-compete and non-solicitation agreements; and a memorandum that encouraged an expansive view of what constituted concerted protected activity. If or when Carey is confirmed, it is likely that she will continue this trend of more employer-friendly decisions.
While courts sort out whether Trump has the authority to terminate Wilcox, and while two other vacancies are pending, there is not a quorum on the Board. As a result, the Board cannot issue any decisions that would overrule prior Board decisions. Realistically, it will take some time for the Board to overrule many of the most employee-friendly decisions issued during the Biden administration.
What should employers do now?
As the NLRB continues its shift toward more employer-friendly policies, what should employers do?
First, employers must understand that the NLRA is in effect and remains the law. While there are significant changes in the direction of the general counsel and likely the Board, the NLRB’s regional offices will continue to investigate and handle unfair labor charges and representation petitions.
Second, as the NLRB moves towards a more employer-friendly stance, unions and plaintiff-side attorneys may be more aggressive in other areas. If they believe they cannot rely upon the Board to address their concerns, unions may implement more aggressive union campaigns or file more grievances. Similarly, plaintiff-side attorneys may look for ways to file lawsuits instead of unfair labor practices.
Finally, employers should stay updated on changes coming from the NLRB. Those changes can allow much more flexibility in how employers handle significant issues such as union campaigns, confidentiality agreements, employee handbooks, and claims of alleged concerted activity.
