With a second Trump administration moving into the White House, the fact that major changes are in motion at the National Labor Relations Board (NLRB) hardly qualifies as a surprise. What is surprising, however, is the nature of some of those changes, and the lack of a clear direction for the agency moving forward.

Historically, the five-member board (Board) has consisted of three members of the president’s party and two members of the opposing party. Because Board member terms often overlap administrations, and Board appointments must be confirmed by the Senate, once a new party takes the presidency, there is typically a year or so before the president’s party has a majority and begins issuing precedent-changing decisions and/or engaging in significant rulemaking.

This time, the second Trump administration’s approach to the Board has been unlike any administration before. About a week after his inauguration, President Trump fired NLRB General Counsel Jennifer Abruzzo, as was widely expected (President Biden did the same early in his administration, an action that was upheld by the courts). More surprising, however, was his removal of NLRB member and Board Chair Gwen Wilcox, a Biden appointee whose term was not set to expire until 2028. This action was unprecedented and contrary to the National Labor Relations Act’s requirement that Board members be removed only for negligence or malfeasance, and even then, only after notice and a hearing. Supporters of this move argue that the Act’s limitations on the president’s power to remove Board members is a violation of the constitutional separation of powers. Wilcox has filed a lawsuit challenging her removal, a litigation that is ongoing.

With only two members, the Board currently lacks the three-member quorum necessary to decide cases or rescind or promulgate regulations. For the time being, this means that controversial Biden-era decisions and rules relating to confidentiality and non-disparagement language in severance agreements, election procedures, employer workplace policies, “captive audience” speeches, and the limits of protected employee conduct in the workplace, among others, will remain in place. Notably, Trump has not nominated any new Board members or a permanent general counsel. It is unclear whether the Trump administration intends to install a more employer-friendly Board that will yet again begin the process of reversing key actions made by its predecessors, or whether the administration is content with rendering the already thinly staffed agency toothless through inaction and, potentially, the type of staffing reductions occurring at many other agencies.

Trump has named William Cowen, a former Board member appointed by President George W. Bush, as acting general counsel. On February 14, in his first significant action, Cowen rescinded a long list of guidance memoranda issued by former General Counsel Abruzzo. While these memoranda do not carry the force of law, they dictate Board enforcement policy at the regional level, impacting how both unfair labor practice and election cases are handled on the ground. While the precise impact of the rescindment of these memoranda is yet unclear, it’s safe to say that the acting general counsel will take a more-employer friendly approach than his predecessor. But again, without a Board quorum in place, the underlying precedents and rules the acting general counsel is charged with enforcing will not change.

For now, the most prudent approach for employers is to continue complying with Biden-era decisions and rules, which remain law of the land until further notice, and to consult with labor counsel on areas of uncertainty.

If you have questions regarding developments at the NLRB or compliance with the National Labor Relations Act, please contact Emmanuel “Manolis” Boulukos, or any of the member of Ice Miller’s Workplace Solutions Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.