Aaron T. Vance: Early moves at the NLRB signal changes to come

As expected, President Donald Trump has moved quickly to reshape the National Labor Relations Board.

After appointing Republican board member Marvin Kaplan to chair the board, Trump followed suit with his anticipated removal of General Counsel Jennifer Abruzzo, a pro-union champion appointed to the role by President Biden, who had similarly removed her predecessor, Peter Robb.

Trump also made the decision to remove board member Gwynne Wilcox in a move that could reshape the president’s powers over independent agencies. These changes, along with the early actions of Acting General Counsel William Cowen, signal an intention of rolling back Biden-era measures. While these early moves provide key insight on the Board’s anticipated agenda, real change is still on the horizon.

The removal of Wilcox

Trump’s decision to remove Wilcox was an unprecedented decision, one that has already drawn a challenge concerning the removal protections recognized by the Supreme Court for independent federal agency heads in Humphrey’s Executor v. United States. Whether that protection explicitly extends to members of the NLRB has yet to be decided, but Wilcox has mounted a legal challenge.

Of more immediate concern, this decision leaves the board with only two members and creates a third vacancy on the five-member Board. New appointments have yet to be announced but are anticipated to be drawn from management circles, which will influence board policy and decisions away from its recent pro-union positions.

With only two members, the board now lacks its required three-member quorum. The Supreme Court in New Process Steel LP v. NLRB held that absent this three-member quorum the board cannot execute its duties, which include deciding appeals of administrative law judge decisions in unfair labor practice, or ULP, cases, reviewing challenges to representation election results, and issuing new rules or regulations.

Furthermore, this means any decision handed down during the Biden Administration stands, until the Board has the ability to address it.

What is unknown, however, is once quorum has been achieved through new appointments, what the impact that an appeal by Wilcox regarding her termination may have on the board’s decision-making capacity. Such decisions may be in jeopardy or invalidated if Wilcox is successful in her challenge of the lawfulness of her removal.

General counsel

Shortly after the removal of General Counsel Abruzzo, Trump appointed William B. Cowen, Regional Director for Region 21 (Los Angeles), as Acting General Counsel for the board on Feb. 3, 2025.

Likewise, Cowen has not wasted any time in reshaping the priorities of the board, acting quickly to rescind prior guidance from Abruzzo in a memo (GC25-05) released on Feb. 14, 2025. Cowen’s memo specifically rescinded Abruzzo’s prior list of pro-union priorities and various other guidance outlining the general counsel’s position with regard to subjects like: electronic monitoring of employees; the lawfulness of non-compete, confidentiality, and non-disparagement agreements under the NLRA; expansive remedies for NLRA violations; the lawfulness of stay-or-pay agreements under the NLRA; and union demands for recognition.

The recession of this guidance signals a likely shift in the board’s prosecutorial priorities, too. For example, it is less likely that ULP charges filed will go to complaint and instead will face tougher scrutiny, and with a preference towards dismissal or settlement of such charges.

Once a board quorum has been restored, with a likely Republican majority, it is anticipated that many major decisions from the Biden era will also be on the chopping block. The general counsel’s office will likely help shepherd along such rulings in the cases it prosecutes.

This will certainly include overruling the Board’s decision in Stericycle, which replaced the earlier Boeing decision and instituted more exacting scrutiny of employer work rules; the Board’s Thryv decision permitting expanded monetary remedies for ULPs; and other decisions touching on subjects like workplace misconduct (Lion Elastomers) and employee confidentiality and non-disparagement restrictions (McLaren Macomb).

Another key decision thought likely to be scrapped, is the Board’s landmark 2023 decision in Cemex Construction Materials Pacific, LLC, which instituted a new framework for the recognition of unions upon demand and a showing of majority support and the threat of a bargaining order for employers that unlawfully denied recognition or committed ULPs in the wake of such a demand.

However, in one of his first acts since assuming the role of Acting General Counsel, Cowen approved of seeking a Cemex bargaining order against Starbucks in a case pending in Missouri. Even with a flurry of early activity to rescind other Biden-era measures, this decision indicates that Acting General Counsel Cowen, is ostensibly unready to totally deviate from the prior Administration’s aggressive prosecution of alleged unfair labor violations and interested in keeping this recently developed remedy in play.

What does this all mean?

Employers, employees, and unions across Indiana and the nation should continue to exercise caution and diligence as this new era of federal labor law begins to take shape. This litany of changes in a little under a month is enough to leave anyone’s head spinning. And while many might see these early changes as a cause for celebration, it would be wise to postpone any festivities. The reality is that many of these changes, in substance, are still months, if not years away.

The lack of board quorum will have minimal immediate impact on the operations of the regional offices in processing ULPs and representation cases. And any appeal to the board itself will not be decided until quorum has been restored.

Moreover, this means that decisions handed down by the Biden board will also continue to stand as precedent in regional decision-making until the board has the ability to revisit and potentially overrule them. Even then, depending on the outcome of Wilcox’s legal challenge, any action taken by the board may be called into question and invalidated.

Finally, while a more tempered approach is expected from the general counsel’s office in terms of prosecution and policy making, Cowen’s recent approval to seek a Cemex order, makes it clear that the general counsel’s office is not totally reverting back to its pre-Biden era policies, at least not yet.

With all of this initial change it’s easy to assume that things will be just like the first Trump Administration. And they likely will be, with the board tilting back towards being more pro-employer.

But for now, the new administration is just getting started and there is still plenty of uncertainty. At this point, if anything is to be assumed, it should be the status quo as things continue to develop.•

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Aaron T. Vance is an associate at Faegre Drinker. Opinions expressed are those of the author.