What’s Going on at the NLRB?

By Timothy Murphy - Skoler Abbott P.C.

March 10, 2025

On January 27, 2025, President Trump fired General Counsel Jennifer Abruzzo, in a widely expected move. At the same time, he also fired Gwynne Wilcox, a sitting Democratic Board member, in a surprise unprecedented move. With Member Wilcox’s firing, the NLRB had only two members left—too few for a quorum, and so it could no longer handle appeals, issue new rules or review contested elections.

Wilcox filed suit challenging her firing. This past Thursday, a federal district court judge sided with her and ordered her reinstatement to the NLRB. With her reinstatement, the NLRB’s decision to function has been restored.

Here’s the details of what happened in court (for inquiring minds):

The Trump administration claimed that it has the power to remove any executive officer at will. Wilcox argued to the court, the National Labor Relations Act (NLRA) gives NLRB members job protections so they can’t be fired without cause—meaning they can only be removed for things like neglect of duty or misconduct. The Trump Administration gave no reason for Wilcox’s termination.

The court’s decision hinged on whether the President has full control over the executive branch, including the power to remove executive officers at will. The court concluded instead that in setting up the NLRB as an independent agency, Congress had the authority to impose limits on presidential removal power. The court further noted that the President’s attempt to remove Wilcox without cause violated the NLRA, which explicitly grants Board members removal protections.

Stay tuned for an appeal and then another to the Supreme Court.

[Author’s note: As of the morning of March 10, there is no indication that Member Wilcox has resumed work.]

In other news…

Acting General Counsel William Cowan, who replaced Ms. Abruzzo, recently rescinded over 30 guidance memos issued by her. With that he advanced the process of undoing the union-friendly positions of the Biden Board has begun.

Although GC memos are not legally binding, they provide useful information on how the General Counsel plans to enforce the NLRA. Many of the rescinded memos set out novel or controversial positions tipping the legal balance in favor of unions. These include:

• GC 23-02, stating the potential interference with protected employee rights by electronic monitoring and algorithmic management tools.
• GC 23-05, holding that severance agreements, or even just offering a severance agreement, with broad waivers of legal rights are not generally lawful under the National Labor Relations Act (NLRA).
• GC 23-08 and GC 25-01, stating that noncompete agreements violate the NLRA.
• GC 24-01, providing additional information on the lowered Cemex criteria for issuing a bargaining order due to unfair labor practices during an organizing election.
• GC 25-04, setting out how requirements under the NLRA and EEO laws can be harmonized.

In addition, the 2022 guidance holding that mandatory “captive audience” meetings to discuss unionization are unlawful was also rescinded, but a recent NLRB decision in Amazon.com Services LLC was already issued endorsing that position.

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