The installation of a new Administration with a fundamentally different philosophical identity once again foreshadows fundamental changes in the relationship between private sector employees and employers governed by the National Labor Relations Act (the “Act”). Official acts taken since January 20 confirm that the changes will be at least as significant as those imposed under the Biden administration.

The National Labor Relations Board (the “Board”) is an independent federal agency that is empowered under the Act to safeguard the employee rights identified under Section 7, to prevent and remedy unfair labor practices committed by private sector employers and unions, and to conduct secret ballot elections. The NLRB is governed by a five-person Board appointed by the President, which retains all of the adjudicatory functions, and a General Counsel, also appointed by the President, who supervises most of the attorneys employed by the Board and exercises all of the prosecutorial functions. Two significant personnel decisions by President Trump directly impacted the Board and its General Counsel.

On January 27, 2025, just one week into his second administration, President Trump terminated both General Counsel Jennifer A. Abruzzo and Board Member Gwynne A. Wilcox.  The termination of Ms. Abruzzo was unsurprising; President Biden almost immediately removed the then-incumbent General Counsel Peter Robb at the outset of his term of office. By contrast, the termination of Board Member Wilcox, who was serving as the Chair of the Board at the time of her termination and had over three years remaining on her term, was unprecedented. Board Member Wilcox has since challenged her termination.

Why Does This Matter?

It is widely understood that the Trump administration will act to restore a more employer-friendly approach by the Board and the General Counsel, an approach similar to that implemented during the first Trump administration. The terminations decisions, although somewhat unsettled, are consistent with this approach.   

William B. Cowen was appointed Acting General Counsel (AGC) on February 3, 2025, and he wasted little time in rescinding substantive guidance provided by his predecessor. On February 14, the AGC issued Memo GC 25-05 which rescinded over two dozen GC Memos issued by General Counsel Abruzzo. The rescinded memos included:

• Guidance on non-compete agreements (GC-23-08 and 25-01),
• Full remedies for unlawful conduct (GC 24-04, 21-06 and 21-07),
• Electronic monitoring (GC-23-02),
• Severance agreements (GC 23-05); and
• Guidance on Cemex (GC-24-01). 

Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), was a controversial Board decision that provided, in part, that any unfair labor practice committed by an employer during a union election that would otherwise require setting aside the election would be remedied by the Board requiring recognition of the union and bargaining rather than re-running the election.

We anticipate that anyone serving in the General Counsel role (whether AGC Cohen or a subsequent nominee) will continue to issue prosecutorial guidance that reverses the pro-union guidance issued under the Biden administration and restore the objectives adopted under President Trump’s first term. However, while the General Counsel’s office has a great deal of power and influence, it cannot set aside or modify decisions and regulations or rules that have been issued by the Board itself. Instead, the Board itself (or a court) must act to alter its precedent. In the meantime, the NLRB’s Office of Public Affairs announced on February 1 that the General Counsel’s Field Offices will continue their normal operations of processing unfair labor practice and representation cases including the issuance of appropriate election certifications by the Regional Director even if Board review is requested. 

With the termination of Board Member Wilcox on January 27, we anticipate some delay in the Board issuing any decisions to reverse Biden-era precedent. At present, the Board has only two members instead of the five provided under the Act and less than the minimum of three members required for a valid quorum. Consequently, appeals to the Board to interpret, modify or establish new law are effectively on hold and the effect of the freeze on the Board’s future exercise of its adjudicatory function remains to be seen as there have been no member appointments made by President Trump, much less the requisite Senate confirmations, and the effective return to functionality is unknown. This means that recent controversial Board decisions like the Cemex decision mentioned above that are conceptually at odds with the views of the previous and current Trump NLRB will remain the law and hypothetically subject to enforcement by the General Counsel and the Regional Offices for the time being. At present, we have not yet seen how the Regional Officers under AGC Cohen will enforce these decisions.

Examples of other recent controversial Board decisions that remain the position of the Board while there is no quorum include:

• The reinstatement of the“clear and unmistakable” standard to evaluate employer waiver defenses to charges involving unilateral changes to working conditions without notice and opportunity to bargain. Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024)
• The prohibition of captive audience speeches by employers during union representation campaigns. Amazon.com Services LLC, 373 NLRB No. 136 (2024)
• The adoption of a new legal standard for evaluating work rules challenged as facially unlawful under Section 8(a)(1) based on whether the rule could be reasonably interpreted from an employee’s perspective to chill their exercising of protected rights. Stericycle, Inc., 372 NLRB No. 113, (2023)
• The prohibition of confidentiality, nondisclosure, and nondisparagement provisions in nonsupervisory severance agreements.  McLaren Macomb, 372 NLRB No. 58 (2023)

We are monitoring what is happening with the Board and impacting enforcement of the Act, including whether and when the Trump administration will seek to nominate persons to fill Board seats to establish a quorum, the litigation brought by former Member Wilcox concerning her challenge to her dismissal, and the actions by the Regional Offices under AGC Cohen.

If you have any questions about how the recent changes and those to come will affect your labor relations efforts, the labor and employment team at Spilman is able to assist.